Wakilii

Registered Trustees of Kampala Kindergarten Association v Labarnum Courts Limited and 3 Others (Civil Suit No. 36 of 2008)

High Court · [2023] UGHCLD 15 · 2023 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass, encroachment, and recovery of land
Decision
Judgment for the Plaintiff against the 1st Defendant. Vacant possession ordered for the encroached 16 decimals. Permanent injunction granted. Case dismissed against the 2nd, 3rd, and 4th Defendants.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the 1st Defendant's land comprised in Plot 4 Akii-Bua Close encroached on the Plaintiff's Plot 12 Kyaggwe Road by approximately 16 decimals. The court adopted the joint surveyor's report under section 26(2) of the Judicature Act and ordered vacant possession in favour of the Plaintiff. The case against the 2nd, 3rd, and 4th Defendants was dismissed for lack of evidence on liability and damages.

Outcome

Judgment for the Plaintiff against the 1st Defendant. Vacant possession ordered for the encroached 16 decimals. Permanent injunction granted. Case dismissed against the 2nd, 3rd, and 4th Defendants.

Facts

The Plaintiff, registered proprietor of Plot 12 Kyaggwe Road (0.437 hectares), operates a school on the land. In 2007, the 1st Defendant, owner of adjacent Plots 3-11 Akii-Bua Close and Plot 358 Kyadondo Road, allegedly encroached on approximately 0.061 hectares of the Plaintiff's land by constructing structures. The 2nd Defendant oversaw the construction, the 3rd Defendant acted as contractor, and the 4th Defendant designed the structures. The Plaintiff claimed the encroachment denied school children access to open space and compromised their safety. The 1st Defendant contended the disputed land formed part of its own plots and that all developments were approved by Kampala City Council. After prolonged procedural delays involving multiple surveyors, a joint surveyor appointed by court determined that the 1st Defendant's land encroached on the Plaintiff's land by approximately 16 decimals.

Issues

  1. Whether the Plaintiff's suit discloses a cause of action against the Defendants jointly and severally.
  2. Whether the Defendants' developments encroached on the Plaintiff's land and if so, whether they were illegal and unlawful.
  3. What remedies are available to the parties?

Orders

  • The land belonging to the Plaintiff comprised in Plot 12 Kyaggwe Road is 0.387 hectares while land belonging to the 1st Defendant comprised in Plot 4 Akii-Bua Close has an area of 0.171 hectares as reflected on their respective titles.
  • The 1st Defendant encroaches on the Plaintiff's land by approximately 16 decimals. Mr. Sserunjogi of Geo-Consultant Surveyors should effect a clear demarcation between the two Plots in compliance with the findings of the survey.
  • An order for vacant possession issues in favour of the Plaintiff for the 16 decimals encroached upon by the 1st Defendant. This should take effect after demarcation has been complied with, but in any case in not less than 6 months from the date of this judgment.
  • A permanent injunction issues restraining the Defendants, their agents, servants, workmen and all those claiming under them from trespassing, encroaching, interfering and/or in any way dealing with the Plaintiff's land.
  • The case against the 2nd, 3rd and 4th Defendants is dismissed with each party bearing own costs.
  • The Plaintiff is awarded costs of the suit against the 1st Defendant.

Rules and key headnotes

Cause of Action — Disclosure in Plaint
A cause of action is disclosed when it is shown that the plaintiff had a right, that right was violated resulting in damage, and the defendant is liable. The question of whether a plaint discloses a cause of action must be determined upon perusal of the plaint alone together with anything attached so as to form part of it.
Reference to Referee — Adoption of Report as Judgment
Under section 26(2) of the Judicature Act, the report of an official or special referee may be adopted wholly or partly by the High Court and if so adopted may be enforced as a judgment or order of the High Court. Where court exercises its discretion to appoint a joint surveyor and orders that the survey report shall be a conclusive guide for court to pronounce judgment, the surveyor becomes an officer of court within the meaning of section 28 of the Judicature Act.
Inherent Powers of Court — Prevention of Abuse of Process
Under section 98 of the Civil Procedure Act and section 33 of the Judicature Act, the High Court has wide discretionary and inherent powers to grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings avoided.
Boundary Disputes — Determination by Survey Evidence
In boundary disputes between registered proprietors of adjacent land, where court appoints a joint surveyor by agreement of parties and on agreed terms of reference, and the surveyor determines boundaries using coordinates obtained from the Department of Surveys and Mapping at Entebbe and cadastral sheets, the court may adopt the surveyor's findings to determine the extent of encroachment.
Right to Fair Hearing — Speedy Determination
Article 28(1) of the Constitution provides that in the determination of civil rights and obligations, a person is entitled to a fair, speedy and public hearing. Where prolonged procedural delays threaten to defeat the ends of justice, court may invoke its inherent powers to adopt procedures that ensure speedy determination while safeguarding the parties' right to a fair hearing.
Trespass and Encroachment — Remedies
Where a defendant is found to have encroached on a plaintiff's registered land, the court may order vacant possession of the encroached portion, grant a permanent injunction restraining further trespass, and award costs to the plaintiff.

Legislation cited (7)

Cases cited (8)

  • Cooke vs Gull LR &E.P 116
  • Read v Brown 22 QBD P.31
  • Tororo Cement Co. Ltd v Frokina International Limited (Supreme Court Civil Appeal No. 2 of 2001)
  • Kebirungi v Road Trainers Ltd & 2 others [2005] HCB 72
  • Kapeka Coffee Works Ltd v NPART (Court of Appeal Civil Appeal No. 3 of 2000)
  • Crane Bank Ltd v Nipun Narottam Bhatia (Supreme Court Civil Appeal No. 2 of 2014)
  • Ali Ahmad v Mohamad Ahmad & 2 Others (High Court Civil Suit No. 38 of 2011)
  • Eakaluba Peter Mukasa v Nambooze Betty Bakireke (Supreme Court Election Petition Appeal No. 4 of 2009)

Full judgment

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

Registered_Trustees_of_Kampala_Kindergarten_Association_v_Labarnum_Courts_Limited_and_3_Others_(Civil_Suit_No._36_of_2008)_[2023]_UGHCLD_15_(27_January_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.