Bamuhiga and 4 Others v Attorney General and Another (Misc Cause 2 of 2023) [2024] UGHC 1048 (22 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **MISC CAUSE NO. 002 OF 2023 1. YOWERI BAMUHIGA 2. TINKASIMIRE JACKSON** 6 **3. KSEI KABOONA 4. KWONKA MARTIN 5. JACKSON KAGGWA ::::::::::::::::::::::::::::::::::::::: APPLICANTS** 9 **VERSUS 1. ATTORNEY GENERAL 2. HON. SAM MAYANJA :::::::::::::::::::::::::::::::::: RESPONDENTS** 12 **BEFORE: HON. JUSTICE VINCENT WAGONA RULING**

#### **Introduction:**

- 15 The applicants filed a Notice of Motion under section 37 of the Judicature Act, Section 98 of the Civil Procedure Act and Rules 3 and 6 of the Judicature (Judicial Review) Rules 2009 seeking the following: - 1. A declaration that the 2nd 18 Respondent's directives to the Resident District Commissioner Ntoroko in the letter dated 12th April 2023 to destroy the Applicant's structures on their land, demarcate the applicant's land in favour 21 of other unknown persons and process titles over the Applicant's land decreed to them by Court in favour of other unknown persons are irrational, ultravires, null and void.


- 2. A declaration that the 2nd Respondent's directive to the Resident District Commissioner Ntoroko in the letter dated 12th April 2023 amount to 3 contempt of the orders of the High Court in Civil Suit No. 68 & 11 of 2006 which were confirmed on appeal in civil appeal No. 11 of 2010 by the Court of Appeal. - 6 3. An order of certiorari be issued quashing all the decisions and directives of the 2nd Respondent to the Resident District Commissioner Ntoroko in the letter dated 12th April 2023 and also quashing the implementation of the 9 same. - 4. An Order of Mandamus compelling the Respondents to recognize, obey and implement the orders of both the High Court and Court of Appeal. - 12 5. An order prohibiting the Resident District Commissioner Ntoroko and all other district leaders from executing the directives of the 2nd Respondent contained in the letter dated 12th April 2023. - 15 6. A permanent injunction be issued restraining the Respondents, the Resident District Commissioner Ntoroko, their agents and any other person acting under them or on their directives from interfering with the valid court orders 18 and restraining them from unlawfully entering the land decreed to the applicants and purportedly put other unspecified people in possession of the same. - 21 7. An order for General, exemplary and punitive damages against the Respondents - 8. In the alternative and without prejudice, an order compelling the 24 Respondents to compensate the applicants prior to allocating land decreed to the applicants to other people.


9. Costs of taking out the motion be provided for.

#### 3 **Grounds of the Application:**

The motion is grounded in the affidavits of Mr. Tinkasimire Jackson (2nd Respondent), Kwonka Martin (4th Respondent) and Jackson Kaggwa (5th 6 Respondent) who deposed in brief as follows:

- (1)The applicants filed Civil Suit No. 068 of 2006 and 78 of 2006 which were heard and determined in their favour. The defendants in the said suits 9 appealed to the Court of Appeal which dismissed the appeal with costs in favour of the applicants. - (2)After the conclusion of the suits, the applicants sought to occupy the land 12 decreed to them and commenced building structures thereon. Later, people who had never occupied the land in dispute were brought by the local leaders to the suit land without their consent and efforts to evict such people 15 were met with resistance from the political leaders. - (3)The new entrants sought assistance from the political leaders like the L. C. III Chairperson of Kanara Sub County, L. C. II Rwengoma Parish, Councilors and the area Member of Parliament and subsequently the 2nd 18 respondent who is the current Minister of State for Land. - (4)The applicants wrote letters to the former minister for land Dr. Chris 21 Baryomunsi about the political interference and no response come through save for the letters encouraging the new settlers on the land. In particular, the 2 nd Respondent as the Minister of State for land wrote a letter to the Resident 24 District Commissioner of Ntoroko and all leadership directing them to


interfere with the applicants' lawful possession of the suit land in total disobedience of the orders of court.

- 3 (5)The directions by the Minister for Lands are unfair, outrageous and done in bad faith without just cause since the land was decreed to the applicants. That the 2nd Respondent has no power to overturn a decision of court. - 6 (6)The applicants wrote to the Respondents seeking compensation for part of the land settled on by other unknown people and their requests were ignored. The Respondents are thus in contempt of the orders of court and the directives issued by the 2nd 9 Respondent are ultra-vires and void for failure to follow procedure and ought to be quashed. - (7)The acts of the Respondents to block the implementation of the orders of 12 court are irrational, illegal and should be quashed. The court has powers to stop the abusive directives issued by the 2nd Respondent which are illegal. - (8)As a result of the Respondent's acts, the applicants and their dependent 15 relatives have not been able to enjoy their homesteads for fear of persecution or being lynched as such they have shifted their cows to other land. The Respondents' actions ought to be punished to protect the sanctity of courts 18 as orders of court will be violated.

## **Reply of the Respondents:**

The motion was opposed by the 1st Respondent through the affidavit of *Mr.* 21 *Ssekitto Moses*, the Acting Principal Registrar of the Titles and Head Litigation in the Ministry of Land, Housing and Urban Development and by the 2nd Respondent through his own affidavit and they averred as follows:

24 (1) The motion by the applicants is not amenable to judicial review, an abuse of court process and ought to be dismissed with costs.


- (2)The applicants are not the sole owners of the land in dispute measuring about 5 (five) square miles. Some of the said land is occupied by different 3 persons (customary owners) who claim different interests in the land. - (3)In the judgment of court in Civil Suit No. 78 of 2006 and 68 of 2006 and the appeal to the Court of Appeal in Civil Appeal No. 011 of 2011, 6 proprietorship of the land in dispute was not decreed to the applicants solely but merely declared the applicants as one of the customary owners of their respective pieces of the land in dispute since there were others who claimed 9 interest in the land in dispute who suffered from the illegal eviction. - (4)There are other customary owners who claim interest in the land in dispute who will be prejudiced in the event the application is granted since the same 12 is a disguised form of execution where the applicants are seeking eviction orders which do not fall under the purview of Judicial Review. - (5)The directives issued by the 2nd Respondent do not amount to contempt as 15 they are premised on his interpretation of the judgment relied upon by the applicants which included the interests of other people whom the applicants now seek to evict. Further, the 2nd Respondent's act of preventing the illegal 18 eviction of customary tenants on the suit land in disobedience of the Land Eviction (Constitutional) Guidelines 2021 is not illegal, irrational or ultra vires. - (6)The 2nd 21 Respondent's actions did not amount to contempt of the orders of court as he did not settle any person on the suit land but sought to protect those on the suit land from illegal eviction planned by the applicants. If the 24 applicants intended to have the customary owners on the land evicted, they would have sued for trespass and not using a judgment of court which did


not determine their interests. It is fair and just that the application is denied with costs to the Respondents.

#### 3 **Rejoinder of the Applicants:**

In rejoinder, Mr. Kesi Kabona (3rd Applicant) and Jackson Kaggwa, (5th Applicant) averred in brief as follows:

- 6 (1)The Respondents failed to identify the list of persons who petitioned the office of the 2nd Respondent as a minister and the nature of interests they claimed in the suit land. The respondents are merely using this as an excuse 9 to introduce new people on the land in dispute. - (2)The applicants did not intend to evict persons who were resident in the 5 square miles but intend to protect their interests in the land from new 12 entrants. Prior to the institution of the suit, the applicants and other persons occupied the entire land and in 2006, their homes were burnt down by suspected game rangers and they opened a criminal case. - 15 (3)While the case was still on-going, in 2009, the applicants attempted to rebuild their homes and were stopped by police citing the pending suits. The judge in the judgment noted that the applicants had over 8000 heads of cattle which had grazed on the suit land and the occupants alluded to by the 2nd 18 Respondent were not known.

(4)The current application is not about determination of ownership of land but

determination of whether the actions of the 2nd 21 Respondent were irrational, ultra-vires, illegal and void. Ownership of land was already determined by court and if there is anyone who is aggrieved by the decision of court, they 24 ought to seek redress from court and not the respondents.


## **Representation and Hearing:**

*Mr. Robert Luleti* appeared for the applicants, *Mr. Kawalya Ronald* for the 1st 3 Respondent and *Mr. Bonny Ntanda* for the 2nd Respondent. Counsel addressed me on the merits of the application by way of written submissions which I have duly 6 considered herein.

# **Issues:**

9 The following issues or questions arise from the pleadings and submissions of the parties for consideration by court:

# **(1)Whether the claim by the applicants is amenable for judicial review.**

- 12 **(2)Whether or not, the motion by the applicant meets the test for grant of judicial review remedies sought.** - **(3)Whether the Respondents are in contempt of the decree of court in** 15 **consolidated Civil Suit No. 68 of 2006, 68 of 2006 and Court of Appeal** - **Civil Appeal No. 011 of 2011.** - **(4)What remedies are available to the parties?** - 18 **Issue No. 1: Whether the claim by the applicants is amenable for judicial review.**

# **Submissions for the Applicants:**

- 21 The application is amenable for judicial review. There were illegalities and procedural improprieties committed by the 2ndRespondent in issuing directives stopping the applicants from enjoying quite possession of their land. These call for - judicial review to have the illegal and irrational directives by the 2nd 24 Respondent set aside.


#### **Submissions for the Respondents:**

- 3 In considering an application for judicial review, court must satisfy itself that it is amenable to judicial review. A party seeking review must have exhausted all available legal remedies and must involve a decision of an Administrative/Public - 6 body or official. The issues raised herein do not fall under the ambits of judicial review. No illegality, irrationality or procedural impropriety was cited by the applicants to warrant considering this motion under judicial review. On that - 9 account the application ought to be dismissed. Judicial review provides corrective measures against the unlawful use of public powers by public bodies. As such, it is applicable against a public body exercising - 12 public functions in a public law matter. (See: *Mrs. Anny KatabaziBwengye v Uganda Christian University, HCMC No. 268 OF 2017*). Two things must exist, that is; (a) the body under challenge must be a public body whose activities can be - 15 controlled by judicial review, (b) the subject matter of the challenge must involve claims based on public law principles not the enforcement of private law rights. - 18 The application herein seeks to enforce private rights of land ownership and not public rights which are the subject of judicial review. The claim by the applicants is in trespass against people whom they allege settled on their land. As such the - 21 motion is outside the purview of judicial review. If the applicants were aggrieved, they ought to have filed a claim for trespass and not judicial review. (See: *Baguma Julius & 4 others v Butunduzi Town Council & 3 others, HCMC No. 24 of 2024*) - 24 Judicial review concerns itself with regularity and validity of proceedings under review. Judicial review is not an appeal, neither does it concern itself with the correctness or legality of the decision, but the decision making process. (See:


*Attorney General v YustusTinkasimire& others, CA. CA No. 208 of 2013 and Kuluo Joseph Andrew &orsvAttorney General & others HCMC No. 106 of* 3 *2010*).

The applicants failed to make out a case for judicial review as no illegality, 6 irrationality or impropriety was cited by the applicants in their motion. The application ought to be dismissed with costs.

#### 9 **Consideration by Court:**

Section 7A of the Judicature (Judicial Review) Rules, 2009 provides as follows:

# **Factors to consider in handling applications for judicial review**

- 15 *(1) The court shall, in considering an application for judicial review, satisfy itself of the following —* - *(a) that the application is amenable for judicial review;* - 18 *(b) that the aggrieved person has exhausted the existing remedies available within the public body or under the law; and (c) that the matter involves an administrative public body or official.* - *(2) The court shall grant an order for judicial review where it is satisfied that the decision making body or officer did not follow due process in* 24 *reaching a decision and that, as a result, there was unfair and unjust treatment.* **[Added Emphasis].**

27 The law does not define how an application for judicial review becomes "*amenable for judicial review"*. However, courts have observed that the for a matter to be amenable for judicial review, it must involve a public body in a public 30 law matter; that is, the body under challenge must be a public body whose


activities can be controlled by judicial review; and secondly, the subject matter of the challenge must involve claims based on public law principles and not the

- 3 enforcement of private law rights. (See: *Arua Kubala Park Operators and Market Vendors' Cooperative Society Ltd vs Arua Municipal Council, HC MC No. 003 of 2016*). The right sought to be protected should not be in personam but a public - 6 one enjoyed by the public at large. The "public" nature of the decision challenged is a condition precedent to the exercise of the courts' supervisory function. (See: *Arua Kubala (supra*). - 9

Judicial review should not be used as a mechanism to enforce rights which would ordinarily be properly investigated through a regular suit. Thus where the claim 12 involves a determination of ownership of property and an individual seeks to assert his or her right to property, judicial review would not be the appropriate remedy in the circumstances, but a regular suit, where court will weigh the evidence 15 presented and made a well informed decision. Therefore, in complex matters or in matters which require evidence and legal analysis beyond what is provided in the affidavits usually limited to the parties, I find that a regular suit would better serve

- 18 the interests of justice as opposed to judicial review. Judicial review remedy is not intentioned to determine personal rights over property but processes by administrative bodies exercising administrative law and involving a matter of - 21 public law. (See: *Baguma Julius & 4 others v Butunduzi Town Council & 3 others, HCMA No. 0024 of 2023*). - 24 In this case the applicants averred that they are the owners of the suit land in consolidated High Court Civil Suits No. 068 of 2006 and 078 of 2006 which decision was confirmed on appeal by the Court of Appeal in Civil Appeal No. 11

 of 2010. That later people who had never been on the land decreed to them were brought by local leaders without their consent. That they faced resistance from the

3 political leaders in having these people removed from the land. The named political leaders are the L. C.2, 3 Chairpersons, the area Member of Parliament, the Resident District Commissioner and lastly the minister who issued directives 6 stopping any eviction which directives they contended were illegal.

The respondents on the other hand maintain that whereas the judgment seems to 9 have decreed the suit land to the applicants, there were other persons who claimed interests in the suit land. In acknowledgment of this fact, the applicants had originally filed an application for a representative order seeking to be allowed to 12 represent the rest of those who claimed interests in the suit land and thus the land was decreed to them as representatives of other persons on the land. The respondents contended that the applicants wanted to use the judgment to evict 15 about 500 families who were staying on and held interests in the suit land. The directives by the minister (2nd respondent) were to stop the illegal eviction and to protect the interests of those who have been living on the suit land.

In rejoinder the applicants acknowledged that it was indeed true that some other people claimed interest in the suit land. These were originally on the suit land. That 21 the people they complain of are those who are being brought on the land by the local leaders, the area member of parliament and who are now protected by the minister. That if the said people claim interest in the land in issue as alleged by the respondents, they ought to have filed a suit and not use political offices and the 2nd 24 respondent to issue orders.

I have reviewed the record of court in consolidated Civil Suits No. 68 and 78 of 27 2006. In the original plaint filed in court on 11/12/2006, the applicants stated in


paragraph 3 (a), that the suit land customarily belonged to them and many others that they would seek to represent. The applicants lodged High Court Misc.

- 3 Application No. 145 of 2006 seeking a representative order in respect of the other people who were on the suit land and they attached a list of 45 people. The application was dismissed on ground that the intended people to be represented had - not consented to the application in writing. In a letter dated 10 6 th April 2007, the applicant's former lawyers Mwesige Mugisha & Co. Advocates wrote a letter to court and attached a list of 113 people as those who claimed interest in the suit - 9 land. The applicants however later proceeded with the suit on their own without a representative order and court entered judgment in their favour. - 12 The applicants are now using the said judgment to claim the entire suit land to the exclusion of all other customary claimants. This is reflected in the letter dated 16th December 2022 to Dr. Sam Mayanja, State Minister for Lands, attached as - annexure 'H' to the application, where the applicants' lawyer stated in the 3rd 15 paragraph of the letter thus; "*That subsequently our client sought to occupy their entire land decreed to them in the aforementioned judgments, however, their* - 18 *efforts have been hampered by some persons trying to grab their land falsely claiming the same."* In an earlier letter attached as annexure 'G' dated 14th October 2022, by M/s KRK Advocates for the applicants, it is stated under - 21 paragraph 2 thus; "*Our clients are the owners of approximately five (5) square miles of land in Ntoroko District which ownership was confirmed by the Court of Appeal in Civil Appeal No. 11 of 2010, Christine Mugarra& 7 others v Yoweri* - *Bamuhiga & 5 others*…). Similarly in a much earlier letter dated 20th 24 September 2017, by KRK Advocates for the applicants, the applicants attorney indicated at page 2 of the said letter, 2nd paragraph that; "…….*. The Court decided that our*


*clients were the customary owners of the contested land entitled to possession and occupation of that land among other orders*." The applicants therefore are 3 riding on the fact that the land was decreed to them and have never at any forum and in all the letters written to the Ministers of Land (the 2nd respondent) about the suit land disclosed that there are other people who claim interest in the 5 square 6 mile land which they claim was all decreed to them.

In the letter by the 2nd respondent dated 19th April 2023, he captures the origin of 9 the dispute and the fact that there were people on the land who claimed interest therein at the time the suit was filed. That the applicants wanted to use the judgment of court to evict them yet they hand interests in the suit land. The 12 minister's intervention was to stop what in his judgment was an illegal eviction to allow for the due process of the law to be followed.

15 The applicants in their affidavits in rejoinder contended that whereas originally, apart from themselves, there were also other people on the suit land, the ones they were complaining against were never on the suit land before; although all of them 18 seem to claim that they were always on the suit land. As it is, both the original claimants acknowledged by the applicants, and the ones the applicants describe as new entrants, lay a claim of ownership over the suit land. Whoever the applicants 21 complain about as being in illegal or unauthorized possession, occupation, or use of the suit land, I believe this claim perfectly falls under the tort of trespass which is a private legal right which is enforceable through a regular suit and not an 24 application for Judicial Review. In my evaluation, this application is meant to serve as a disguised execution which the applicants have never effected since the decree was made. The applicants' claim in my view squarely falls under the tort of 27 trespass through which the applicants can file a regular suit seeking to have the


alleged illegal entrants or those who have allegedly illegally remained on the land, legally removed. I therefore agree with Mr. Ntanda for the 2nd Respondent that this 3 application is not amendable for judicial review.

Having resolved that this application is not amendable for judicial review it becomes irrelevant for me to consider the next issue which is - whether or not, the 6 motion by the applicant meets the test for grant of judicial review remedies sought.

**Issue No. 3: Whether the Respondents are in contempt of the decree of court in consolidated Civil Suit No. 68 of 2006, 68 of 2006 and Court of Appeal Civil** 9 **Appeal No. 011 of 2011.**

#### **Submissions for the applicants:**

- 12 The respondents are illegally stopping the applicants from quite enjoyment of the land decreed to them by court. The respondents by their actions disregarded the orders issued by court and in lieu thereof replaced the same with directives issued - by the 2nd 15 respondent which have the consequential effect of denying the applicants quite use of their land, and loss of property through the illegal eviction ordered by the minister which are in contempt of the orders of court. The respondents are in - 18 contempt of the decree of court in consolidated Civil Suits No. 68 and 78 of 2006 which were confirmed by the Court of Appeal in Civil Appeal No. 011 of 2010.

### 21 **Submissions for the Respondents:**

Contempt proceedings are intended to ensure smooth administration of justice and

24 ensure that orders of court are respected. (See*: Hadkinson v Hadkinson (1952) ALL ER 367*). For contempt to arise, it must be established that (a) a lawful order of court exists, (b) knowledge of the order by the contemnor (c) the potential


contemnors failure to observe the same and the none compliance was mala-fide. (See: *Nkamusaba v Makerere University, HCMC No. 709 OF 2018*).

Whereas the order exists, the same was not clear as to what the respondents were barred from doing. Whereas the decree talks about the applicants, there were other

- 6 people who claimed interest in the suit land. The order alleged to have been disobeyed must be free from ambiguity. (See: *OdoiOdome v Uganda Electricity Generation Company, HCMC No. 1088 of 2022*). The applicants did not prove the - 9 part of the decree which was not complied with by the respondents. The applicants did not prove that the 1st respondent or the 2nd respondent were - 12 served with the decree of court alleged to have been disobeyed. There is no affidavit of service as such the applicants failed to prove that the respondents had knowledge of the decree in issue. The disobedience must be intentional. Where the - 15 same is not intentional, court may not impose a penalty. (See: *Kizito v Nsubuga, SC Civil Application No. 25 of 2021-2022*). The applicants failed to prove that the disobedience was intentional. The application ought to be rejected with costs. - 18

## **Consideration by Court:**

The *Black's Law Dictionary, 4th edition at page 390 describes* contempt of court 21 as the willful disregard or disobedience of a public authority. It is any act which is calculated to embarrass, hinder, or obstruct court in administration of justice, or which is calculated to lessen its authority or its dignity. It is committed by a person 24 who does any act in willful contravention of court's authority or dignity, or tending to impede or frustrate the administration of justice, or by one who, being under the court's authority as a party to a proceeding therein, willfully disobeys its lawful

27 orders or fails to comply with an undertaking which he has given.


In *Hon Hon. Sitenda Sebalu Vs. The Secretary General of the East African Community, in Reference No. 8 of 2012,* the East African Court of Justice citing

- 3 the authors of *Halsbury's Laws of England, 4th Edition page 284 paragraph 458* described civil contempt thus: *"it is a civil contempt to refuse or neglect to do an act required by a judgment or order of the court within the time specified in that* - 6 *judgment, or to disobey a judgment or order requiring a person to abstain from doing a specific act."*

The main import of the doctrine of contempt of court is to ensure that the orders of

- 9 court are respected and to protect the sanctity of the institution that issues such orders by seeing to it that the orders issued are put into effect. This was elaborately brought out by Romer J in *Hadkinson v Hadkinson [1952] All ER,* where he - 12 relied on the case of (*Church v Cremer (1 Coop Temp Cott 342*) where it was held thus; *"A party who knows of an order whether null or valid, regular or irregular, cannot be permitted to disobey it. . . as long as it existed".* The doctrine is also - 15 hinged on the principle of law that the whole purpose of litigation as a process of judicial administration is lost if orders by court through the set judicial process, in the normal functioning of the courts are not complied with in full by those targeted - 18 and/or called upon to give due compliance. Further, it is not for that party to choose whether or not to comply with such order. (*See Housing Finance Bank Ltd & Another Vs. Edward Musisimisc. Appln No. 158 Of 2010).* - 21 In addition to the above, orders of court must be complied with in totality in all circumstances by the party concerned, subject to the party's right to challenge the order in issue in such a lawful way as the law permits. It is the position of the law - 24 that to disobey an order of court or offer no explanation for non-compliance to the issuing court, at any party's choice or whims, on the basis that such an order is null


or irregular, or is not acceptable or is not pleasant to the party concerned is to commit contempt of court. (*See Andrew Kilama Lajul Vs. Uganda Coffee*

# 3 *Development Authority & 2others, Misc. Application No. 324 of 2020).*

In our legal, constitutional and jurisprudential matrix, the doctrine of contempt is 6 not provided for in any statutory legislation either principal or subsidiary. Recourse is therefore made to the common law and the doctrines of equity as far as possible. Therefore a review of case law on contempt is instructive as it offers in-depth

- 9 guidance *(See Court of Appeal Civil Appeal No. 190 of 2015, Jingo Livingstone Mukasa Vs. Hope Rwaguma at page 13).* Therefore, courts in adjudication of contempt of court claims, reference is always made to the provisions of section 98 - 12 of the Civil Procedure Act Cap. 71 and Section 33 of the Judicature Act and the guidance from the different cases both in Uganda and from common law jurisdictions. - 15 The East African Court of Justice in *Hon. Sitenda Sebalu Vs. The Secretary General of the East African Community, in Reference No. 8 of 2012* laid down the test or grounds which must be proved in order to succeed on an application for - 18 contempt thus: *"To prove contempt, the complainant must prove the four elements of contempt, namely:* - *1. Existence of a lawful order;* - 21 *2. The Potential Contemnor's knowledge of the Order;* - *3. The potential contemnors ability to comply;* - 4. *The potential contemnors failure to comply."* - 24 The court also laid down the standard of proof where it was stated thus: *"The standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, and almost, but not exactly, beyond reasonable doubt.*


*The jurisdiction to commit for contempt should be carefully exercised with the greatest reluctance and anxiety on the part of the court to see whether there is no*

- 3 *other mode which can be brought to bear on the contemnor".* - **(a)Existence of a lawful order**

In *Lukenge Hakim Vs. Hajjat Ajiri Namagembe and others, Court of Appeal*

- 6 *Civil Application No. 0290 of 2020*, the court of appeal cited the position in *Carrey v Laiken (2015) 2 RCS 79* where court noted that the order alleged to have been breached must equivocally state what should and should not be done. - 9 In this case in consolidated Civil Suits No. 68 of 78 of 2006 court issued the following orders: *(a) confirming the applicants'customary owners of the suit land and entitled to quite possession thereof. (b) the alienation of the suit lands to the* - 12 *Defendants in both suits by the corporate defendant and the processes that ensued therefrom are hereby all nullified for being unlawful, wrongful and or fraudulent, (c) The defendants are all ordered to give vacant possession of the suit land to the* - 15 *plaintiffs, (d) An order of permanent injunction hereby issues restraining the corporate Defendant and other Defendants from meddling in, or in any way interfering with the proprietary interests of the plaintiffs in the suit lands, (e) the* - 18 *plaintiffs are each awarded general damages in the sum of U shs 3,000,000/= (Three Million only), (f) The Defendants shall pay costs of the suit*. I find that indeed there is a clear order in existence.

# 21 **(b) Potential contemnors knowledge of the order**

It is a requirement of the law that for one to be found in contempt, he or she should have knowledge of the order. The knowledge should not be assumed but should be 24 actual. Proof of knowledge may be by way of proof of service of the order upon


the contemnor or by implication that the contemnor by his conduct directly or indirectly had knowledge of the order.

In the directive which the applicants sought to challenge, the 2nd respondent stated that he had read and internalized the judgment of court in consolidated Civil Suits

6 No. 68 of 78 of 2006 and the decision in Civil Appeal No. 11 of 2010. Therefore, the 2nd Respondent had knowledge of the orders of court.

## (c) **The potential contemnors ability to comply**

9 Learned counsel for the respondents did not raise any worry on the ability of the respondents to comply with the decree in issue. I take it that the respondents had the capacity to comply with the decree of this Court.

## 12 **(d)The potential contemnors failure to comply**

I have examined the directives by the 2nd respondent and their impact on the orders of court. What the 2nd respondent emphasized is the fact that the land in dispute

15 was not exclusively owned by the applicants as claimed; that the judgment protected others who were on land. The directives were meant to protect the interests of those who were on the suit land against the risk of illegal eviction by 18 the applicants without complying with the presidential directives on eviction of

persons from land.

I find no act done by the 2nd respondent that was contrary to the decree of court. At

- 21 the time the consolidated suits were filed, the other claimants were referred to, and the applicants had filed an application for a representative order, seeking to represent all the other claimants. The application was dismissed on a technicality - 24 and the applicants went ahead with the suit without securing another representative order. The 2nd respondent by his actions, sought to protect the other claimants on the suit land from unlawful eviction or eviction without following due process of


the law. The judgment of court did not abate the interests of the other claimants who were on the suit land, or order them to give vacant possession of the suit land 3 to the applicants, or order for their eviction. Further, in the amended plaint of the applicants filed in court on 4/3/2008, the applicants had in paragraph 8 thereof, claimed ownership of land of which they were possession and occupation. The 6 judgment did not specify which portions of the suit land of which the applicants were in possession and occupation. In the absence of clear evidence as to the portion of land which each of the applicants were put into possession after the decree was issued, I am unable to find that the people the minister (2nd 9 respondent) was protecting and preventing from eviction, were on the land owned by the applicants, so as to conclude the actions of the 2nd respondent in respect to the

12 applicants and the people complained of, were contrary to the decree of court. I find that the applicants have on a balance of probabilities failed to prove their claims against the respondents. In the result, this application fails and it is hereby

15 dismissed. I make no order as to costs as the application appears to have been prompted by the uncertainty of both parties regarding how to deal with the persons considered by the applicants to be trespassers on the suit land. I so order.

Vincent Wagona

**High Court Judge**

21 **FORTPORTAL**

**DATE: 22/10/2024**


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