Birungi Nandaula and Another v Nantumbwe and 2 Others (Miscellaneous Application No. 69 of 2024) [2025] UGHCLD 113 (30 June 2025)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DlVlsloN)

MISCELLANEOUS APPEAL NO. 69 OF 2024

5 (ARISING OUT OF THE RULING OF THE REGISTRAR IN MISC. APPL. NO' 0676 OF

# 2024\

### (ARISING FROM CIVIL SUlr NO. 253 OF 20241

| | 1. BIRUNGI NANDAULA JACKLINE | | |--|------------------------------|--| |--|------------------------------|--|

2. SERUYULU RONALD------- '-----"-----"-- APPELLANTS

#### VERSUS

- 1. NANTUMBWE HADIJAH - 2. SUSAN MUKASA - 3. JULTUS MUBIRU----------"----- ------------- RESPONDENTS

#### 15

## Before: Hon. Ladv Justice Olive Kazaarwe Mukwava

#### RULING

This application is brought under Article 126(2Xe) of the Constitution' Sections 98 and 79(1Xb) of the Civil Procedure Act Cap 282, Section 33 of the Judicature Act Cap 16 and Order 50 rule 8 and Order 41 rule 4 of the Civil Procedure Rules seeking the

following orders; 2A

- l,AdeclarationthatthelearnedRegistrar,sorderdismissingtheappellant,s application for a temporary injunction in Miscetlaneous Application No'0676 of 2024 was contrary to the facts and the law governing temporary injunctions' - 2'ThelearnedRegistrar,Sorderdismissingtheappellants,applicationfora temporary injunction be varied and or set aside' - 3. That Miscellaneous Application No 676 of 2024 be allowed and orders sought in the terms;

- a) A temporary injunction be issued restraining the Respondents their agents' servants, workmen, employees and anyone working under their direction from further construction, ferrying construction material and building works on the suit land,interferencewiththeapplicantsuse,possessionandquietenjoymentofthe suit land, disposing off, selling, sub-dividing and or alienating the suit land comprised in Busiro Block 377 Plot 442 until the disposal of the main suit: - b) An order maintaining the status quo of the register of the suit land comprised in Busiro Block 377 Plot 442 be issuedi - c) Costs ofthe Application/Appeal be provided for - 10

## Gro nds Of e ADolic

- 1) The appellants are the biological children of and beneficiaries of the estate of the late Moses Kaweesi Moses (the deceased)' - 2) The deceased owned the suit land comprised in Busiro Block 337 Plol442land al Seguku, Wakiso district measuring approximately 0'492 hectares and was registered as a proprietor lhereon on the 6th of December, 1990 vie instrument No' 144326. - 3) During his lifetime, he occupied the suit land, built a farm house and carried on cultivation, among other things. - 4) Around 2009, the deceased brought the lstRespondent on the suit land and she lived in the farm house, with the deceased visiting occasionally' - 5) Before he passed on, the deceased had commenced the process of amalgamation of the suit land to a neighbouring piece he owned, by handing over the titles to a friend for that purpose, but he died before it was completed' - 6) The 1"r Respondent, without the consent of the beneficiaries' sold part of the suit land measuring 70 feet by 75 feet at a consideration of UGX 23'000'000/= (Twentythree million shillings) - 7) ln October 2023, the 3'd Respondent, togetherwith surveyors' opened and curved off a portion of the suit land and later commenced the construction of a permanent

structure on the suit land which prompted the appellants to institute HCCS No 253 of 2024.

- 8) Miscellaneous Application No. 676 of 2024 was also filed, seeking for a temporary injunction restraining the Respondents, their agents, servant's workmen' employees and anyone working under their direction from further construction' ferrying construction materials and building works on the suit land, interference with the applicant's use, possession and quiet enjoyment of the suit land comprised in Busiro Block No. 377 Plot No. 422 until disposal of the main suit' - 9) The parties filed their respective submissions in the matter by 'l4th June 2024 and notified court that the permanent structure being erected on the suit land was still in the preliminary stages, but Court after a long delay delivered its ruling' - 10) By the 13rh September 2024, wrlen the ruling was delivered, lhe 2nd and 3'd Respondents had almost completed their structure on the suit land, by 90% and taken occupation of it. - 'l1)The learned trial Registrar erred in law and fact when she dismissed the application for a temporary injunction and found that the suit land was not an ancestral home and therefore had no emotional attachment to the said land disregarding the fact that the land belonged to the Appellant's late father and they had occasionally visited the land which was used as farm land' - 12) The learned Registrar erred in law and fact when she held that the injury the Appellants shall suffer if the application is not granted is reparable and can be compensated for in terms of damages disregarding the fact that the ground had to be proved in favour or against the Appellants and not the Respondents' - 13) The learned Registrar erred in law and in fact when she held that the 2nd and 3'd Respondents will be more inconvenienced because they would be deprived of the use of the suit land in disregard of the fact that the suit land forms part of the estate of the late Kaweesi Moses, the registered proprietor and that the Appellants are beneficiaries in the said estate. - 14)The learned Registrar erred in law and fact when she denied to grant an order to maintain the status quo of the suit land comprised in Busiro Block 377 Plol442 given that the order would require the Commissioner Land Registration to

implement it and it was not a party to the suit and thus court could not give orders in vain disregarding the fact that the order can be served upon the Commissioner for its enforcement.

- 15)The learned Registrar erred in law and in fact when in her ruling she failed and or refused to maintain the status quo of the suit property which is the key purpose for grant of temporary iniunctions. - '16) lt is in the interest of justice that the Application be granted'

#### The Replv

The 1'r Respondent, l\4s. Nantumbwe Haddijah in her affidavit in reply averred that;

- 1 . That the appeal against the decision of the Registrar was brought in bad faith and the same is intended to derail the main case and the appeal does not disclose reasonable grounds for determination by the court. 10 - 2. The Registrar's decision was based on the law and facts as presented by the parties and information received and observed when the court visited locus in the presence of all the parties when the Appellants could not show court any boundaries of the suit land among others. - 3. The 1"r Respondent was in a long-standing relationship with the deceased late lvoses Kaweesi and the two parties had two children namely; Beatrice Sandra Namazzi born on 4th September 1995 and Edith Kisakye Nabisaalu born on 25rh NIay 2006. - 4. The late Moses Kaweesi acquired the suit land in 1990 forthe purpose of growing food crops on the suit land. - 5. Later in 2010, the late Moses Kaweesi died and was buried in his cultural grounds' The late lvloses Kaweesi having been the breadwinner of the family and now deceased started facing financial constraints and could not pay schoolfees for his children. - 6. The 1"r Respondent also had a heart condition that required treatment and therefore the 1sr Respondent had no choice but to sell off part of the suit land

- 7. The suit land was purchased and given to her during the lifetime ofthe late Moses Kaweesi and she utilised the same during his lifetime' - 8. The contents of paragraphs 3-4 are untrue as the 1't Respondent has been utilising the suit land for more than 25 years. - 9. The suit land has always been used for farming purposes and she sold part of it to the 2nd and 3'd Respondents. And the 3'd Respondent has since constructed a house on the land and is currently occupying it. - 1O. The Registrar visited locus in lhe presence of all the parties to the application for a temporary iniunction and it was found that the Appellants did not know the boundaries of the suit land and the house on the said land was built by the late Moses Kaweesi. - 'll.ltwasalsoobservedthatthe2ndRespondentwasinoccupationofpartofthesuit land with a residential house and his lamily was also present' - 12. The Appellants grounds of appeal contained in paragraphs 18-25 of the affidavit in reply are not grounded in taw and the altegations in the said paragraph not true S

#### Representation

The Appellants were represented by Nls Atulinda Majda of M/S Kabega' Bogezi & Bukenya Advocates while Mr. Ferdinand Musimenta of M/S Jambo & Co Advocates 20 represented the Respondents.

Submissions were filed on behalf of both parties and I have duly considered them'

## DETERMINATION BY THE COURT

#### lssue

# qrounds exist to set aside the orders of the Learned istrar 25 Wh rsufficie in Miscellaneous Dlication No.0676 of 2024?

ln E. L. T Kiyimba Kaggwa Versus Haji Abdu Nasser Katende ['1985] HCB 43' Odoki J (as he then was), laid down the rules for granting a temporary Injunction as follows:

1. The granting of a temporary injunction is an exercise of iudicial discretion and the purpose of granting it is to preserve the mafters in the status quo until the question to be investigated in the main suit is finally disposed of.

2. The conditions for the grant of the interlocutory iniunction are;

5 l. Firstly that, the applicant must show a prima facie case with a probabilify of success. ii. secondty, such injunction will not normally be granted unless the applicant might otherwise suffer irreparabte iniury which woutd not adequately be compensated by an award of damages.

iii Thirdly, if the Couti is in doubt, it woutd decide an application on the balance of 10 convenience.

The Appellants case is thatthey are beneficiaries of the estate of the late Moses Kaweesi and they brought the main suit to preserve the suit land comprised in Busiro Block 337 plol442land at Seguku, Wakiso district measuring approximately 0.492 hectares, which

15 they termed as estate property.

The 1st Respondent's defence is that she is the mother of two of the late Moses Kaweesi's children and her interest in the suit property arose from that relationship'

As far as I can determine from the record of proceedings of the lower court and the pleadings in the main suit, no letters of administration exist for the estate of the late Moses

20 Kaweesi.

## Section 4 of the Administrator General's Act Chapter 264 provides;

4. Death to be repofted to Administrator General, who may apply for grant of letters of administration

(1) When a person dies in uganda, the agent of the area in which the death occurs shall, 25 upon receiving notice of the death or upon the death coming to his or her knowledge, forthwith institute inquiries to ascertain whether the deceased left any, and if so what, propefty in tJganda and shatl repoti the death with futt particulars as to propefty, as far as asceftainable, to the Administrator General.

(2)WhenapersondieselsewherethanintJgandaleavingpropertywithinUganda,the agent of the area in which the propefty is situate shatl, upon receiving notice of the death or upon the death coming to his or her knowledge, forthwith repotT the death with full particulars of the propefty to the Administrator General'

5(3)Uponreceivingsuchreportoruponsuchdeathcomingtohisorherknowledge,ifit appears to the Administrator General-

(a) that the deceased has left a wilt appointing the Administrator General as sole executor:

(b) that the deceased having made a witl devising or bequeathing his or her estate or any part of it has omitted to appoint an executor;

10(c)thatthepersonorpersonsnamedasexecutororexecutorsinthewillhave predeceased the testator or renounced probate of the will;

(d) that probate or lefters of administration have not been obtained within two months from the death of the testator: or

(e) that the Person died intestate,

1 5 the Administrator General may appty to the coutt for letters of administration of the estate ofthedeceasedperson,whereuponthecourtshatl,exceptforgoodcauseshown,make a grant to him or her of tetters of administration'

My understanding, is that under Section 4 of the Administrator General's Act, it is mandatory that the death of a person is reported to the Administrator General for the

20 purpose of applying to the court for a grant of letters of administration, regardless of whether the deceased died testate or intestate'

TheAppellants,pleadingsaresilentaboutawill,andinmyview,itissafetoassumethat the late Moses Kaweesi died intestate'

# Section 187 of the Succession Act Chapter 268 provides;

25 187. Rightto,ntesfafe's property, when established Except as provided in this section, but subiect to section 4 of the Administrator General's Act,nonghttoanypaftofthepropertyofapersonwhohasdiedintestateshallbe

establishedinanycourtofiustice,unlesslettersofadministrationhavefirstbeengranted by a court of competent jurisdiction.

ln my view, Section 4 of the Administrator General's Act read together with Section 5 187 of the succession Act provide the limits and parameters within which the property of the deceased ought to be managed and who possesses the legal mandate to exercise the right to enforce the rights in an intestate's property' The two provisions must always be read together, in the case of an intestate's estate'

- 1O lfind that in the main suil out of which the application for a temporary injunction arose, a prima facie case with a probability of success' must begin with a demonstration that the Appellants are clothed with the legal right under Section '187 of the Succession Act to establish the rights in the late Moses Kaweesi's estate in this Court However' as this Court has already observed' there is no indication from the Plaint that the deceased's - 15 death was reported to the Administrator General and that the process to legally manage his property as envisaged under Section 4 of the Administrator General's AGt' is ongoing. The status quo, as can be gathered from the pleadings' is that only the Administrator General has the right/duty/obligation to bring an action in respect of the estate of the late Moses Kaweesi. - 20

## Section 37 of the Administrator General's Act provides;

37. Succession Act not to supersecle rights of Administrator Generul Nothing contained in the Succession Act shalt be taken to supersede the rights' duties and priviteges of the Aclministrator General under this Act'

ln conclusion, I find that the Appellants have yet to be identified as beneficiaries of the estate of the late MoSeS Kaweesi, through the legally recognised avenue, the office of the Administrator General as provided for under Section 4 of the Administrator General's Act. ln my view this fact renders their Plaint barred under law'

Order 7 rule 1l (d) of the Civil Procedure Rules provides; 30

11. Rejection of plaint The plaint shall be reiected in the following cases- (d) where the suit appears from the statement in the plaint to be barred by any law;

5 I hereby reject the Appellants plaint in Civil Suit No. 253 of 2024 on grounds that it is barred by Section 4 of the Administrator General's Act and Section 187 of the Succession Act. lt is hereby struck out with costs. Accordingly, this appeal fails and is dismissed with costs.

10 I

Olive Kazaarwe Mukwaya

JUDGE

30th June 2025

15 Delivered by ECCIVI|S