Wakilii

Wavamuno Samuel Lumu and Another v Kigongo Harriet (Civil Suit No. 319 of 2021)

High Court · [2025] UGHCLD 237 · 2025 Counter Claim Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Counter claim arising from civil suit for land ownership; plaintiff's suit dismissed for non-appearance; counter claim proceeded exparte
Decision
Counter claim allowed; counter defendant ordered to vacate within 30 days; permanent injunction granted; general damages and costs awarded to counter claimants

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a beneficiary under a validly executed will, where probate has been granted and distribution effected by the executor, acquires lawful ownership of the bequeathed property. A person occupying such property without permission or claim of right is a trespasser. The court declared the 1st counter claimant lawful owner of the kibanja bequeathed under his late father's will, found the counter defendant to be a trespasser, ordered eviction, granted a permanent injunction, and awarded general damages of UGX 15,000,000 plus interest at 8% per annum.

Outcome

Counter claim allowed; counter defendant ordered to vacate within 30 days; permanent injunction granted; general damages and costs awarded to counter claimants

Facts

The late Ssalongo Nelson Kiwanuka died testate in 1991, bequeathing a kibanja at Bulenga Trading Centre to his son (1st counter claimant) and daughter Nakku Rose. The 2nd counter claimant was appointed executor and obtained letters of probate in 2010, filing an inventory in 2013 showing distribution as per the will. The counter defendant, another child of the deceased who was not given property under the will, occupied the suit land claiming it was given to her by her father during his lifetime. When the 1st counter claimant attempted to take possession, the counter defendant reported him to police for criminal trespass. The counter defendant was operating commercial activities on the land including food vending stalls and a bicycle repair shop. The plaintiff's original suit was dismissed for non-appearance and the counter claim proceeded exparte.

Issues

  1. Whether the 1st Counter Claimant is the lawful owner of the suit land?
  2. Whether the Counter Defendant is a trespasser on the suit land?
  3. What are the remedies available to the parties?

Orders

  • The 1st Counter Claimant is the lawful owner of a Kibanja measuring 20 ft by 40ft located at Bulenga Trading Centre, Mityana Road, Wakiso District formerly forming part of the estate of the late Ssalongo Nelson Kiwanuka.
  • The Counter Defendant, Harriet Kigongo is a trespasser on the suit Kibanja.
  • The Counter Defendant and all those claiming through her shall vacate the suit property within 30 days from the date of this Judgment.
  • Eviction proceedings shall ensue if the Counter Defendant fails to vacate the suit property within 30 days as ordered by Court.
  • A permanent injunction is issued restraining the Counter Defendant, her agents, servants, successors and all those claiming under her and/or deriving authority from her from trespassing, encroaching, interfering and/or in any way dealing with the 1st Counter Claimant's Kibanja and claiming ownership over the same.
  • The Counter Defendant shall pay general damages of UGX 15,000,000 (Fifteen Million Shillings only) to the 1st Counter Claimant.
  • The Counter Defendant shall pay interest of 8% per annum on the general damages from the date of judgment until payment in full.
  • The Counter Defendant shall pay costs of the counter claim to the Counter Claimants.

Rules and key headnotes

Wills — Validity and Effect — Bequest of Property
A valid will executed by a person of sound mind and not a minor disposes of property according to the testator's wishes, and such disposition takes effect upon the testator's death.
Probate — Grant of Probate — Effect on Executor's Powers
No right as executor or legatee can be established in any court unless a court of competent jurisdiction has granted probate of the will. Once probate is granted, the executor has the power and right to execute the will by effecting distribution of the estate property as per the testator's wishes.
Ownership — Proof of Title — Bequest Under Will
A beneficiary under a validly executed will acquires lawful ownership of bequeathed property where probate has been granted, the executor has effected distribution, and an inventory has been filed in court showing the distribution.
Family Relationships — Insufficient Basis for Ownership Claims
The mere fact of being related to a deceased registered proprietor of land does not by itself confer ownership rights over the land. Ownership must be proved by evidence of allocation, a will, letters of administration, or registration in accordance with the law.
Trespass to Land — Elements of the Tort
Trespass to land occurs when a person makes an unauthorized entry upon land and thereby interferes with another person's lawful possession of that land. To establish trespass, a claimant must prove that the disputed land belonged to the claimant, that the defendant entered upon it, and that the entry was unlawful in that it was made without permission or the defendant had no claim of right or interest in the disputed land.
Trespass to Land — Occupation Without Permission After Death of Testator
Where a person enters upon land bequeathed to another under a will after the testator's death, without permission of the beneficiary and without a claim of right, and refuses to vacate when requested, such occupation constitutes trespass.

Legislation cited (8)

Cases cited (13)

  • Uganda Petroleum Co Ltd v Kampala City Council (Civil Suit No. 250 of 2005)
  • Senkungu & 4 Ors v Mukasa (Civil Appeal No. 17 of 2014)
  • Rose Nakayiza v Nalongo Sarah & Others (HCCA No. 68 of 2015)
  • Asire Mallinga v Jonathan Obukunyang Mallinga (HCCS No. 0013 of 2013)
  • Moshe Mujogya & 3 Others v Smart Bwango & 2 Others (HCT-FD-No. 037 of 2028)
  • Re- Estate of Julius Mimano (Deceased) (2019) Eklr
  • Beatrice Asire Mallinga v Jonathan Obukunyang Mallinga (HCT-04-CV-CS-0013-2013)
  • Justine EMN Lutaaya v Stirling Civil Engineering Company Limited (SCCA No. 11 of 2002)
  • Sheik Muhammad Lubowa v Kitara Enterprises Ltd (CCA No. 4 of 1987)
  • Sheikh Muhammed Lubowa v Kitara Enterprises Ltd (CA No. 4 of 1987)
  • FDK Zaabwe v Orient Bank & 5 Ors (HC Civil Suit No. 715 of 1999)
  • James Fredrick Nsubuga v Attorney General (HCCS No. 13 of 1993)
  • Uganda Commercial Bank v Kigozi (2002) 1 EA 305

Full judgment

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

Wavamuno_Samuel_Lumu_and_Another_v_Kigongo_Harriet_(Civil_Suit_No._319_of_2021)_[2025]_UGHCLD_237_(27_August_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.