Wakilii

Twagirayesu v Kamulegeya [2025] UGCOMMC 2

High Court · 2025 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for vacant possession of security land deposited in execution proceedings arising from a consent judgment
Decision
Applicant granted 90 days for respondent to deliver vacant possession of security land, failing which eviction procedures to follow

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Held that the consent judgment was enforceable under the doctrine of locus poenitentiae where parties rescinded an illegal land sale agreement before the illegal purpose was performed. The court exercising inherent jurisdiction granted vacant possession of security land deposited during execution proceedings. The Registrar lawfully committed the respondent to civil prison for wilful refusal to satisfy the decree. Land registered in the respondent's name remained attachable despite claims of trust ownership not recorded on the register.

Outcome

Applicant granted 90 days for respondent to deliver vacant possession of security land, failing which eviction procedures to follow

Facts

In March 2017, the respondent agreed to sell mailo land to the applicant, a Rwandan citizen, for US$230,000. The applicant paid US$38,000 but the respondent failed to surrender the certificate of title. The parties rescinded the contract and the respondent undertook to refund the payment. When the respondent defaulted, the applicant sued and obtained a consent judgment on 15th February 2018 for payment in three instalments. The respondent defaulted again. On 13th July 2018, a consent order was entered whereby the respondent deposited two certificates of title as security and agreed to pay within 14 days, failing which the applicant could sell the properties. The respondent made multiple payments totalling US$28,000 and shs.11,000,000, leaving a balance unpaid. The applicant revived execution, and the respondent was arrested and committed to civil prison on 14th February 2024. The respondent secured release by depositing title to Busiro Block 347 Plot 213 registered in his name but allegedly held in trust for third parties. The respondent lost his appeal challenging the execution process. The applicant now sought vacant possession of the security land.

Issues

  1. Whether the court has inherent jurisdiction to grant an order of vacant possession for security land deposited during execution proceedings.
  2. Whether the consent judgment of 15th February 2018 and consent order of 13th July 2018 are enforceable given the alleged illegality of the underlying sale agreement between a non-citizen and mailo land.
  3. Whether the procedure leading to the arrest and detention of the respondent as a civil debtor was lawful.
  4. Whether a Registrar has jurisdiction to issue orders for arrest and committal to civil prison in execution of a decree.
  5. Whether land comprised in Busiro Block 347 Plot 213 at Nalumunye registered in the respondent's name but allegedly held in trust for third parties is attachable in execution of the decree.
  6. Whether the applicant is entitled to an order of vacant possession of the security land.

Orders

  • Application allowed.
  • The respondent, his agents and persons claiming under him should deliver to the applicant possession of land comprised in Busiro Block 347 Plot 213 at Nalumunye within 90 days of this ruling.
  • Upon failure of voluntary surrender, the applicant is to follow procedures under the Constitution (Land Evictions) (Practice) Directions, 2021.
  • Costs of the application awarded to the applicant.

Rules and key headnotes

Civil Procedure — Inherent Jurisdiction — Limits — Court cannot use inherent powers to contradict or circumvent legislation
Inherent jurisdiction of court cannot be used in a way that would directly contradict any legislation. It can be used to fill a gap where there is no existing applicable legislation, but not as a way of getting around or circumventing existing legislation.
Contract Law — Illegal Contracts — Locus Poenitentiae — Recovery Where Parties Withdraw Before Performance
Where parties to an illegal contract withdraw before the illegal purpose has been performed, and the mere making of the bargain does not involve serious moral turpitude, the doctrine of locus poenitentiae allows a party to recover money paid, provided proceedings are taken before the illegal purpose has been performed. The court does not look into the motives of the party who wishes to repudiate the agreement.
Civil Procedure — Execution — Civil Imprisonment — Prerequisites — Bad Faith, Wilful Refusal or Culpable Neglect Required
Before ordering detention of a judgment debtor in civil prison, the court must be satisfied that there was an element of bad faith, not mere omission to pay but an attitude of refusal on demand verging on disowning of the obligation under the decree. A judgment debtor's previous conduct representing a dishonest and fraudulent character may constitute sufficient justification to compel a court to issue an order of arresting and detaining him or her as a civil debtor.
Civil Procedure — Execution — Civil Imprisonment — Committal in Absentia — Permissible Where Debtor Duly Served and Deliberately Absent
The court may proceed to commit a judgment debtor to civil prison in absentia where the debtor was duly served with notice to show cause, had sufficient notice to enable preparation, and it is reasonable to conclude that the debtor knew of or is indifferent to the consequences of the case proceeding in his absence. The onus is on the judgment debtor to show cause why he should not be committed, and failure to appear or show cause satisfactorily permits the court to make an order of committal.
Civil Procedure — Execution — Jurisdiction of Registrars — Registrar Deemed Civil Court in Execution Matters — Power to Commit
In matters of execution, Order 51 rule 6 of The Civil Procedure Rules deems a Registrar a civil court. The power of committal inheres in the exercise of that jurisdiction or is ancillary or sub-serves the auxiliary jurisdiction to make formal orders in execution. According to section 23 of The Interpretation Act, where any Act confers a power on any person to do or enforce the doing of any act or thing, all such powers reasonably necessary to enable the person to do or enforce the doing of the act or thing are also given. The Registrar has power to conduct all proceedings in execution of a decree, including committing the judgment debtor.
Land & Property — Registered Land — Trusts — Notice of Trusts Not Entered on Register — Transferee Not Affected by Trust
Section 50 of The Registration of Titles Act provides that no notice of trusts, whether express, implied or constructive, may be entered in the Register Book. A person taking a transfer from the proprietor of any registered land is not affected by notice, actual or constructive, of any trust or unregistered interest. A person dealing with the registered proprietor can assume he has unlimited power to dispose of the estate free from any limitation, unless there is a restriction or caveat in the register.
Civil Procedure — Execution — Security for Decree — Vacant Possession — Court May Order Vacant Possession Where Security Property Required for Valuation and Sale
Where security has been taken for due performance of a decree and there is default, the court may order recovery by issuing a warrant for attachment and sale of the property. That process requires vacant possession of the property to be sold for purpose of valuation and handover to the successful bidder. Vacant possession means the property is free from people, animals and chattels allowing the judgment creditor to assume immediate and exclusive possession, occupation and control.

Legislation cited (41)

Cases cited (31)

  • Brooke Bond Liebeg (T) Ltd v Mallya [1975] EA 266
  • Mulagusi v Pade (Civil Appeal No. 28 of 2010)
  • Municipal Manager OR Tambo District Municipality and Another v. Ndabeni [2022] ZACC 3
  • Kyabahwa v China Henan International Group Co Ltd (Civil Suit No. 721 of 2020)
  • Goyal v Goyal (Civil Application No. 109 of 2004)
  • Biyinzika Enterprises Ltd v Biyinzika Farmers Ltd (Civil Appeal No. 18 of 2017)
  • Olal v Kaggwa (Miscellaneous Civil Application No. 41 of 2020)
  • Ruparelia v Crane Bank Ltd (Miscellaneous Application No. 320 of 2019)
  • Tribe v. Tribe [1996] Ch 107
  • Petherpermal Chetty v. Muniandi Servai (1908) 24 T.L.R. 462
  • Kiriri Cotton Co. Ltd. v. Dewani [1960] A.C. 192
  • Aikman v. City of Wheeling, 120 W.Va. 46, 195 S.E. 667
  • Chinamora v. Angina Furnishers (Private) Ltd [1997] 1 LRC 149
  • Jolly George Verghese v. Bank of Cochin, (1980) 2 SCC 360; 1980 AIR 470, 1980 SCR (2) 913
  • Caroline McCann v. Judge of Monaghan District Court, [2009] IECH 276
  • KCB Bank Ltd v Gichohi (Civil Appeal No. 323 of 2023)
  • Alfa Bank v. Reznik [2016] EWHC B21 (Comm)
  • Taylor v. Van Dutch Marine and others [2016] EWHC 2201
  • Fusun Investment Co Ltd v Fare Associates Ltd (Miscellaneous Civil Application No. 271 of 2020)
  • In Re Mutesi (Bankruptcy Petition No. 5 of 2011)
  • Dawaru v Angumale (Miscellaneous Civil Application No. 96 of 2016)
  • Kaggwa v Apire (Miscellaneous Application No. 1 of 2023)
  • Regional Container Freight Station Limited and two others v. Zum Zum Investment Limited (Civil Case 116 of 2016) [2023] KEHC 20196 (KLR)
  • Acaitum v Alkas International Ltd (Execution Miscellaneous Application No. 1823 of 2014)
  • Mobil Oil Kenya v Njiru (Civil Case No. 53 of 2003)
  • National Housing Corporation v. Lawi Kiplagat [2017] eKLR
  • Mandavia v Rattan Singh [1968] EA 146
  • Kampala Bottlers v Damanico Ltd (Civil Appeal No. 22 of 1992)
  • H. R. Patel v. B.K. Patel [1992 - 1993] HCB 137
  • Zaabwe v Orient Bank (Civil Appeal No. 4 of 2006)
  • Grobbelaar v. News Group Newspapers Ltd. [2002] 1 WLR 3024

Full judgment

↓ Download PDF

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

Twagirayesu v Kamulegeya 2025 UGCommC 2 (7 January 2025)
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.