Wakilii

Settanda Kwemara v Kankindi and 6 Others (Civil Suit No. 19 of 2009)

High Court · [2022] UGHCCD 132 · 2022 Judgment for Plaintiff (Partly) AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for recovery of land, declaration of ownership, eviction, permanent injunction, general damages and mesne profits
Decision
Judgment entered for plaintiff with vacant possession ordered against 1st and 3rd defendants. 2nd and 4th defendants declared bonafide occupants with security of tenure. General damages and permanent injunction granted against 1st and 3rd defendants.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a mailo landlord who purchased registered land subject to existing occupancies cannot be found to have acted fraudulently merely by knowledge of unregistered interests. Persons who purchased bibanja interests before the land was registered qualified as bonafide occupants under Land Act s.29 and enjoyed security of tenure. However, persons who purchased bibanja interests after registration without landlord consent or without giving the landlord first option contravened Land Act ss.34(1) and 35(1), rendering such transactions illegal and void, and such purchasers were declared trespassers.

Outcome

Judgment entered for plaintiff with vacant possession ordered against 1st and 3rd defendants. 2nd and 4th defendants declared bonafide occupants with security of tenure. General damages and permanent injunction granted against 1st and 3rd defendants.

Facts

In 2005, the plaintiff purchased Freehold Block 85, plot 1 at Kasambya, Kibaale District from Timothy Lugolobi, the registered proprietor. The plaintiff alleged that seven defendants encroached on his land by grazing animals, using domestic water wells, alienating portions of land to third parties, and harvesting trees. The 1st defendant claimed she was a caretaker for the 5th, 6th and 7th defendants who subsequently vacated the land. The 2nd defendant claimed he purchased 12 acres in 1999 and 2000 from persons who had occupied the land for over 60 years. The 3rd defendant purchased 1 hectare in 2006 from Alozio Semuga and another small plot from an LC1 chairperson. The 4th defendant purchased 3 acres in 1999 from Kasalina Kabonesa, who had been born on and occupied the land for over 60 years. The defendants claimed status as bonafide occupants. The 2nd defendant counter-claimed that the plaintiff had trespassed on his kibanja by cutting trees and crops and ploughing the land.

Issues

  1. Whether or not the plaintiff fraudulently obtained title to the suit land.
  2. Whether the defendants are trespassers or bonafide occupants of the suit land.
  3. What remedies are available to the parties.

Orders

  • The plaintiff lawfully obtained title to the suit land and his actions on the suit land do not amount to trespass.
  • The 1st and 3rd defendants are trespassers on the suit land and orders for vacant possession do issue against each of them.
  • The 2nd and 4th defendants are bonafide occupants on the plaintiff's land enjoying security of occupancy thereon.
  • The 2nd defendant/counter claimant's claim of trespass is dismissed for lack of evidence in support of the claim.
  • General damages of trespass of UGX 15,000,000 awarded against each of the 1st and 3rd defendants for depriving the plaintiff's use of the land they each illegally occupy, destruction of the plaintiff's trees and crops, psychological trauma and mental anguish inflicted on him as a result of the trespass.
  • Permanent injunction restraining the 1st and 3rd defendants, their agents/servants from ever occupying and or trespassing on the plaintiff's land.
  • Interest of 12% per annum on the general damages from the date of judgment till payment in full.
  • Costs of the suit awarded to the plaintiff as against the 1st and 3rd defendants.

Rules and key headnotes

Land & Property — Bonafide Occupants — Definition and Status
A bonafide occupant under Land Act s.29(2)(a) is a person who, before the 1995 Constitution came into force, had occupied and utilized or developed any land unchallenged by the registered owner for twelve years or more, and any person who has purchased or otherwise acquired the interest of such a qualified bonafide occupant shall also be taken to be a bonafide occupant.
Land & Property — Bonafide Occupants — Restrictions on Alienation
Once an occupant on registered land has been qualified as a bonafide occupant, such person has a right to transact the portion of land occupied subject to consent of the landlord or giving the landlord the first option of taking the assignment of the tenancy under Land Act ss.34(1) and 35(1).
Land & Property — Bonafide Occupants — Effect of Illegal Transactions
Land transactions undertaken in breach of a statute create no interest in land. A sale of a kibanja interest on registered land without the consent of the registered owner or without giving the owner the first option to purchase is illegal and void, and the purported purchaser acquires no interest and is a trespasser.
Land & Property — Mailo Land — Indefeasibility of Title Subject to Lawful Interests
The indefeasibility of a registered proprietor's title is subject to existing bibanja interests of bonafide occupants who acquired their interests before the land was registered, and such bonafide occupants enjoy security of occupancy and cannot be found to be trespassers.
Land & Property — Fraud — Knowledge of Unregistered Interests
Mere knowledge by a purchaser of unregistered interests on registered land cannot be imputed as fraud where the land is registered subject to any lawful interests and the existing interests enjoy security of occupancy by operation of law.
Tort Law — Trespass to Land — Definition
A person is a trespasser on registered land when occupying the land without either the permission or consent of the registered proprietor.

Legislation cited (7)

Cases cited (8)

  • Sebuliba v Co-operative Bank Ltd [1982] HCB 130
  • Jovelyn Barugahare v Attorney General (Supreme Court Civil Appeal No. 28 of 1993)
  • David Sejjaka Nelima v Rebecca Musoke (Civil Appeal No. 12 of 1985)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • David Byatike Matovu v Richard Kikonyogo (High Court Civil Appeal No. 3 of 2014)
  • Kampala Distributors v National Housing and Construction Corporation (Supreme Court Civil Appeal No. 2 of 2007)
  • Sheikh Muhammed Lubowa v Kitara Enterprises Ltd (Civil Appeal No. 4 of 1987) [1987] UGSC 3
  • Tito Lukwago v Samwiri Mudde Kiiza and Another (Supreme Court Civil Appeal No. 13 of 1996)

Full judgment

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

Settanda Kwemara v Kankindi and 6 Others (Civil Suit No. 19 of 2009) [2022] UGHCCD 132 (16 August 2022)
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.