Wakilii

Namakajo v KCB Bank Uganda Limited and Another (Miscellaneous Application 523 of 2023)

High Court · [2023] UGCOMMC 108 · 2023 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for temporary injunction arising from pending civil suit seeking cancellation of mortgage registered on suit land
Decision
Temporary injunction granted on condition of payment of 30% security deposit based on fresh valuation to be obtained

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that the Applicant established a prima facie case with substantial questions to be tried regarding ownership of the suit property. Irreparable injury was not established as loss could be compensated monetarily, but the balance of convenience favoured the Applicant. The mandatory 30% security deposit under Mortgage Regulations Regulation 13(1) must be paid before a temporary injunction can be granted. The valuation report by Stanfield Partners was defective as the firm did not exist when the report was dated. Application granted on condition that the 1st Respondent provides a fresh valuation report and the Applicant deposits 30% of the forced sale value.

Outcome

Temporary injunction granted on condition of payment of 30% security deposit based on fresh valuation to be obtained

Facts

The Applicant's late father purchased suit property as a kibanja in 1994 and built commercial rental houses thereon. In 2019, the late father discovered his title deed did not correspond to his land and that the correct title was Plot 221. He initiated steps to swap titles with the original landowner. Before the swap could be completed, the 2nd Respondent transferred Plot 221 into his name in August 2021 and subsequently mortgaged it to the 1st Respondent bank as security for a loan of UGX 400,000,000. The 2nd Respondent defaulted and the bank issued notices of sale. The Applicant instituted a main suit seeking cancellation of the mortgage and filed this application for a temporary injunction to prevent eviction and auction. The bank's valuation report was dated 14 September 2021 but the valuer Stanfield Partners was only registered on 21 November 2021.

Issues

  1. Whether the Applicant should be exempted from paying the security deposit of 30% of the forced sale value of the suit property or outstanding amount.
  2. Whether the Applicant should be granted a temporary injunction restraining the Respondents, their agents, and servants from evicting, intimidating, or threatening them from land comprised in Busiro Block 333 Plot 221 at Nabbingo Wakiso.

Orders

  • Application for temporary injunction granted.
  • The 1st Respondent is directed to contract a firm to value the suit property and submit the report to the Applicant within two weeks from the date of this ruling.
  • The Applicant shall deposit 30% of the forced sale value of the suit property within two weeks of receipt of the valuation report.
  • The costs shall abide the outcome of the main suit.

Rules and key headnotes

Civil Procedure — Interlocutory Injunctions — Conditions for Grant — Prima Facie Case
For a prima facie case to be found, the court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried. The court does not profess to anticipate the determination of the suit but merely gives its opinion that there is a substantial question to be tried and that until the question is ripe for trial, a case has been made out for the preservation of property in the meantime in status quo.
Civil Procedure — Interlocutory Injunctions — Irreparable Injury — Adequacy of Damages
Irreparable injury does not mean that there must not be the physical possibility of repairing the injury, but means that the injury must be a substantial or material one, that is, one that cannot adequately be compensated for in damages. Where loss can be compensated in monetary terms, irreparable injury is not established.
Civil Procedure — Interlocutory Injunctions — Balance of Convenience
The balance of convenience lies more on the one who will suffer more if the Respondent is not restrained in the activities complained of. Where the applicant derives income from commercial property and the respondent has multiple properties as security, halting the sale of the suit property will not inconvenience the respondent as much as it will inconvenience the applicant.
Banking & Finance — Mortgages — Mortgage Regulations — Mandatory Security Deposit
Under Regulation 13(1) of the Mortgage Regulations, the court will only stop or adjourn the sale of mortgaged property upon payment of a security deposit of 30% of the forced sale value of the mortgaged property or outstanding amount. This requirement is mandatory and applies where the mortgagor or any other interested party seeks to adjourn a sale by public auction.
Civil Procedure — Evidence — Documentary Evidence — Authenticity of Documents
A document purportedly authored by a legal entity on a date before that entity existed is incurably defective. A non-existent entity cannot author a report. Where a valuation report is dated before the valuer was registered as a business entity, the report lacks authenticity and cannot be relied upon.

Legislation cited (8)

Cases cited (15)

  • Mutegeki John v Mutabazi Joseph and 2 Others (Miscellaneous Application No. 109 of 2016)
  • E.L.T Kigimba Kaggua v Hajii Abdu Nasser Katende [1985] HCB 43
  • Kingston Enterprises Ltd and 2 Others v Standard Chartered Bank Ltd (Civil Appeal No. 446 of 2021)
  • American Cyanamid Co v Ethicon Limited [1975] AC 396
  • GAPCO Uganda Limited v Kaweesa and Another (Miscellaneous Application No. 259 of 2013)
  • Godfrey Sekitoleko and Others v Seezi Peter Mutabazi and Others [2001-2005] HCB 80
  • Akello Olak and Others v Bonnie S Rwamukaaga (Miscellaneous Application No. 127 of 2019)
  • Kigongo Edward Nakabale v Kakeeto Rogers and Another (Miscellaneous Application No. 144 of 2017)
  • Ndungo Seti and Others v Sekiziyivu Sammy Jones and Another (Civil Suit No. 286 of 2011)
  • Robert Kavuma v M/S Hotel International (Supreme Court Civil Appeal No. 8 of 1990)
  • Serefaco Consultants Ltd v Euro Consult BV and Another (Court of Appeal Civil Application No. 16 of 2007)
  • American Cyanamid v Ethicon [1975] 2 WLR 316
  • Kiyimba Kaggwa Vs. Katende Abdu Nasser (supra)
  • Legal Brains Trust (LBT) Ltd v AG (Civil Application No. 56 of 2023)
  • Ferdsult Engineering Services Ltd and Mugisha Ferdinand v The Attorney General and Absa Bank Uganda (Constitutional Petition No. 18 of 2021)

Full judgment

↓ Download PDF

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

Namakajo v KCB Bank Uganda Limited and Another (Miscellaneous Application 523 of 2023) [2023] UGCommC 108 (17 October 2023)
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.