Wakilii

Mukasa Kakembo T a Baskon Hostel v Oyet T a Sunways Hostel and Another (Civil Suit No. 161 of 2013)

High Court · [2021] UGHCLD 151 · 2021 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass and damages arising from encroachment on registered land
Decision
Judgment for plaintiff with declaration of trespass, monetary awards, and order to remove gate blocking access

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court Land Division held that defendants who admitted trespassing on plaintiff's registered land by 32.72 square meters must pay special damages for proven losses including sewer line reconstruction and boundary wall repairs, general damages for business disruption, aggravated damages for blocking access, and annual rent for continued occupation of the encroached area. The court declined to order demolition of the trespassing structures in the spirit of good neighbourliness but required removal of a gate blocking plaintiff's access.

Outcome

Judgment for plaintiff with declaration of trespass, monetary awards, and order to remove gate blocking access

Facts

The plaintiff was registered proprietor of land in Kibuga Block 3 Plot 154, Makerere, operating Baskon Hostel. The defendants owned adjacent plots 869 and 870. In 2010, defendants commenced construction of Sunways Hostel, encroaching 32.72 square meters onto plaintiff's land. The trespass included setting foundations and building structures on plaintiff's land, clearing land for parking, digging sewerage trenches that weakened plaintiff's boundary wall, placing timber poles on the wall, discharging water into plaintiff's sewerage system causing overflow, and blocking plaintiff's access by constructing a small gate. Survey reports by Geoteal Ltd and Terrain Consult confirmed the encroachment. On 21 June 2018, defendants admitted the trespass in a partial consent judgment. Plaintiff incurred costs constructing a new sewer line and required boundary wall repairs.

Issues

  1. Whether the Plaintiff is entitled to the reliefs sought in the plaint.

Orders

  • Declaration that the Defendants trespassed on the Plaintiff's suit land.
  • Special damages of UGX 101,146,000 awarded to the Plaintiff.
  • General damages of UGX 70,000,000 awarded to the Plaintiff.
  • Aggravated damages of UGX 30,000,000 awarded to the Plaintiff.
  • Annual rent of UGX 12,000,000 to be paid by the Defendants from 21 June 2018 until the trespass is rectified.
  • Defendants ordered to immediately demolish and/or remove the small gate and restore the Plaintiff's access to his land.
  • Costs of the suit awarded to the Plaintiff.

Rules and key headnotes

Special Damages — Proof Requirements — Documentary and Direct Evidence
Special damages must be specifically pleaded and proved, but strictly proving does not mean that proof must always be documentary evidence; special damages can also be proved by direct evidence, for example by evidence of a person who received or paid or testimonies of experts conversant with the matters.
Special Damages — Boundary Wall Repairs — Standard Items Not on Site
Where a bill of quantities for repairing a damaged boundary wall includes standard items that were not present on the original structure before the trespass, such items cannot be awarded as special damages even if they are standard practice in construction; only the cost of restoring the wall to its pre-trespass condition is recoverable.
General Damages — Assessment Principles — Judicial Discretion
Measurement of the quantum of damages is a matter for the discretion of the individual judge which must be exercised judicially with regard to the general conditions prevailing in the country and prior decisions relevant to the case; in assessment, courts are mainly guided by the value of the subject matter, the economic inconvenience suffered, and the nature and extent of the breach or injury.
General Damages — Compensatory Nature — Avoiding Unjust Enrichment
General damages are compensatory in nature; where special damages have already compensated most of the plaintiff's losses, an award of general damages must be calibrated to avoid unjust enrichment while still compensating for inconvenience, suffering, and business disruption not covered by special damages.
Aggravated Damages — Distinction from Exemplary Damages — Compensatory Nature
Aggravated damages are extra compensation for injury to a plaintiff's feelings and dignity caused by the manner in which the defendant acted and remain essentially compensatory in nature; exemplary damages are completely outside the field of compensation and their object is entirely punitive; the distinction, though not always easy to see, is to some extent an unreal one.
Trespass to Land — Blocking Access — Aggravated Damages
Where a defendant trespasses on a plaintiff's land and affixes a gate without consent thereby blocking the plaintiff's access to his property, this violates the plaintiff's right to property and enjoyment of the same and constitutes an aggravating factor warranting an award of aggravated damages.
Trespass — Remedy — Rent in Lieu of Demolition — Good Neighbourliness
In the spirit of good neighbourliness, where a defendant has trespassed on a plaintiff's land and constructed buildings thereon, a court may decline to order demolition and instead award annual rent for the encroached area from the date the trespass was admitted until the trespass is rectified, thereby allowing the defendant to derive benefit from the building while compensating the plaintiff.

Cases cited (8)

  • Gapco (U) Ltd v A.S. Transporters (U) Ltd (Court of Appeal Civil Appeal No. 18 of 2004)
  • Haji Asuman Mutekanga v Equator Growers (U) Ltd (Supreme Court Civil Appeal No. 7 of 1995)
  • Moses Ssali a.k.a. Bebe Cool & Others v Attorney General & Others (High Court Civil Suit No. 86 of 2010)
  • Southern Engineering Company v. Mutia [1985] KLR 730
  • Uganda Commercial Bank Vs. Kigozi [2002] 1 EA 305
  • Nabukeera Getrude v Kawombe Memorial Secondary School (High Court Civil Suit No. 10 of 2012)
  • Huljich V. Hall [1973] 2 NZLR 279
  • OBONGO v. KISUMU COUNCIL [1971] EA 91

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Mukasa_Kakembo_T_a_Baskon_Hostel_v_Oyet_T_a_Sunways_Hostel_and_Another_(Civil_Suit_No._161_of_2013)_[2021]_UGHCLD_151_(29_October_2021)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.