Byoleko (represented by his personal representative Edward Kanyarusoke) v Kampala Capital City Authority & Others (Civil Suit No. 128 of 2016) [2022] UGHCLD 124 (14 June 2022)

### naTHE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DIVISION)

#### **CIVIL SUIT NO. 128 OF 2016**

EPAFURA BYOLEKO (represented by his

personal representative: Edward Kanyarusoke)................... PLAINTIFF

$\mathsf{S}$

### **VERSUS**

- 1. KAMPALA CITY COUNCIL AUTHORITY - 2. ATTORNEY GENERAL (struck of the record by consent of all parties) - 3. KIGOZI RICHARD....................................

15 Before: Lady Justice Alexandra Nkonge Rugadya

#### **JUDGMENT:**

#### Introduction:

The plaintiff is the registered proprietor of land comprised in *Kibuga Block 38 Plot 20 land at* 20 **Makerere** (suit land). Upon his demise, court appointed his son Mr. Edward Kanyarusoke as his legal representative to complete this suit.

He filed this suit against the defendants, seeking a declaration: that the $1^{st}$ and $3^{rd}$ defendants are trespassers on his land; a declaration that the 1<sup>st</sup> defendant compulsory acquired the suit land without compensating the plaintiff; an order compelling the 1<sup>st</sup> defendant to remove the drainage

25 channel created in the suit land; a permanent injunction restraining the defendants from further trespassing on the suit land; compensation from the defendants for the value of the land illegally acquired general damages; and costs of the suit.

Duboug


It was the plaintiff's claim that at the time he took over possession of the suit land it was comprised in one piece and was not divided by any drainage channel, neither did it have a road cutting through.

The 1<sup>st</sup> defendant (KCCA) without any color of right or obtaining or compensating the plaintiff, $\mathsf{S}$ diverted a drainage channel which formerly used to flow between the neighbouring *plots 29 and* $21$ as per the deed prints to the certificate of title to instead flow through the plaintiff's **plot** 20, thus causing a drainage channel to be illegally created unto the plaintiff's land.

The plaintiff also claimed that the 3<sup>rd</sup> defendant, Mr. Kigozi Richard took advantage of the situation and on 25<sup>th</sup> December 2014, without the plaintiff's prior consent, poured murram soil on one side of the land and created an illegal access road thereon.

That the drainage was poorly maintained by the 1<sup>st</sup> defendant and carries foul smelling solid and liquid waste/sewage which has continued to destroy the plaintiff's land and pose a serious health hazard to the occupants.

The 1<sup>st</sup> and 3<sup>rd</sup> defendants filed WSD denying the claims.

#### Issues arising for determination by court. 15

At the conferencing, the following issues were framed for determination.

#### 1) Whether the plaintiff's suit discloses a cause of action against the defendants;

2) Whether the $1^{st}$ and $3^{rd}$ defendants trespassed on the plaintiff's land;

### 20

3) Whether the $1^{st}$ defendant compulsorily acquired the plaintiff's land and if so, whether the acquisition was lawful;

#### 4) Whether the plaintiff is entitled to the reliefs sought?

#### 25 Resolution of the issues:

Auto Garage Vs Motokov (1971) E. A 519 gives the following three essential elements: that the plaintiff enjoyed a right; the right was violated and that the defendant was liable. A cause of action is established where pleadings disclose that there is a right, a right is violated and that the defendant is liable. A reasonable cause of action is one which in light of the pleadings has some chance of success. (H. C. M. A No. 111 of 2013: Harriet Fowler & Anor vs Arthur Busingye).

Jahory

Thc plaintiff prcscnled a ccrtificatc of titlc (PExh7), which shows him as the registered owner of plot 20. IIis namc was entcrcd onto thc titlc on thc 9rr, August, 1996. IIc claimcd that his right to quict cnjoymcnt and occupation of thc suit land as a rcgistcrcd proprictor had bcen violatcd by thc dcfcndants who crcatcd an illegal drainagc and acccss road through his land and without

5 his permission.

> F'urthermorc, that the KCCA divcrtcd thc drainagc channel from its original place, a few blocks away and madc it flow through his land thus crcating a drainagc channcl which cut the suit land into two pieces.

That thc 3.rdefcndant taking advantagc of KCCn's actions started using one portion ofthe suit land as an access road and that KCCA has sincc continucd to prcscrvc thc drainage channcl over the suit land without compcnsating thc plaintiff. 10

That correspondcnccs from KCCA to thc plaintiff clcarly indicatcd that thc drainagc channel and thc access road crcatcd on his land wcrc not gazettcd and as such illegal and amounting to trespass.

Since hc was ncithcr consultcd nor compcnsatcd by KCCA, such actions amounted to compulsory acquisition of his land, which claims wcrc howcvcr rcfuted by KCCA and thc 3',t defendant in their rcspcctive WSI)s-15

Thc subjcct matter of thc disputc as I undcrstand it thcrcforc rotatcs around two main questions which, applying my discrction undcr Order 75 rule 5 of the Ctvll Procedure Rules, I shall amcnd as follows:

- Whether the 7"t defendo.nt (KCCA) conpulsorllg a.cqulred the plqtntttf s lqnd and lf so, whether the acquisltion was lawful? 1 - 2, Whether or not the 3d deJendont created on access road. ulthout the consent and knouled.ge oJ the platntilf.

# Issue.lvo. 7: Whether the 7't deJend.ant (KCCA) compulsorilg acquired lhe plgt4ltffs lend and. iJ so, tohether the acquisitio'a uas lawJul?

Thc plaintiff alleged that the dcfcndants' actions of creating an acccss road and an opcn drainage channcl overplot 2O (suit land) neithcr of which had been gazctted amounted to trespass on the Iand and compulsory acquisition of his propcrty by KCCA, without compensation.

Counscl citod ILC. C. S .lYo. I 18 of 2O72, Tqgebua Geo;fJreg and Anor Vs Kagimu Ngudd.e MustaJo.; Justlne E. M. N. Lutqqga Vs Sterllng Clull Englneering Co, SCCA No. 77 oJ 2OO2

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wherein court laid down thc ingredicnts of trcspass on land as follows: lhol the disputed land belonged to the plainlilf; lhe defendant had entered upon il; the entry uas unlanaful in lhal it uas made utithoul permission or that the defendanl had no claim or ight or interest in the disputed land.

5 Thc plaintiff rclicd on thc evidcnce of two witncsscs. PtD2, Mr. Itdward Kanyarusoke a son and legal representativc of thc plaintiff testified in paragraph 4 of his witncss statemcnt that at thc timc thc plaintiff took posscssion of thc suit land, it was comprised in onc block, was not dividcd by any drainagc channcl neithcr did it havc a drainagc passing through.

l.urthcrmore in paragraph 6 of his witncss statcmcnt that thc only cxisting drainage channel in thc arca was a fcw bkrcks away from thc plaintiffs tand. Originally thc drainage flow was on thc upper sidc of Nkinzi Iload passing through Plots 29 qnd 27 on Kibuga Block 38 but had becn divcrted by thc KCCA, to run through his plot 20. 10

IIis evidence was corroboratcd by the ficld surveyor who tcstified as a court witness. CurI, Mr. Humphrey Mitmda interprcted thc dccd plan of Btock 38 for court, proving that thc channcl

- was passing through an arca which had not bccn originally intcndcd for it, cutting the suit land into two parts: that is, a biggcr portion on which thc plaintiff opcratcs his garage busincss and a smaller portion on the othcr sidc of the drainagc channel. It was the plaintiffs further contention that the wastc watcr running through had startcd damaging the structures of the garage. 15 - Thc dcfcndants in thcir rcspcclivc WSI)s howcvcr plcadcd that the said Nkizi road allegcd to bc trcspassing on thc plaintiffs land had cxisted as far back as thc ycar 1996 as an eascmcnt to thc neighbouring plots, bcforc thc plaintiff becamc the rcgistcred proprietor. 20

According to the l"t defcndant's plcadings, KCCA has ncvcr divcrted the drainage channel as alleged by the plaintiff from its original place to thc plaintiffs land as the samc existed evcn before the plaintiff becamc thc rcgistcrcd owner of thc suit land. That thc plaintiff had been fully awane of the existcncc of the said road and drainage channcl. IIis claim thcrefore was only intended for his unjust cnrichmcnt. 25

During cross cxamination, I)ur.l Kawccsa the solc witncss for thc KCC^, tcstificd that drainage channels and roads must be gazcttcd and confirmcd that thc onc which passcd through plot 2O was ncver gazettcd.

lle admittcd during cross examination that thc KCCA created a cross culvert from one cnd ofthe road to the other, which divcrts thc drain watcr to Ilow to p,ot 20. CurI Humphrey Mitanda tendercd in a survcy rcport IPExh E, of thc suit land.

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ln his cross cxamination hc informcd court that according to thc dccd print there was no drainagc channel or road cutting through plot 20 (thc suit land).

l)uring thc locu.s visit hc showcd court whcrc according to thc decd print the acccss road and drainage channel should be flowing, and that was bctween plots 27 @nd 29 , but not plot 20

5 which is owncd by thc plaintiff.

> Counscl for the plaintiff rcfcrrcd to corrcspondenccs made bctwcen KCCA and the plaintiff (PExh 9 o,nd PExh IO in which KCCA had writtcn to the plaintiff confirming that thcrc cxistcd a drainage and a road on plot 20 (thc suit land) which had not bccn gazcttcd.

IIe dismissed thc argumcnt by thc defcndants that thc acccss road through the suit land was created to serve Makcrere Univcrsity students to access Mulago I Iospital as false and untenable, thus making thc dcfcndants mcrc trespasscrs on thc suit land. 10

l'rom thc cvidencc on record thc plaintiff claimcd to havc provcd on a balancc of probabilitics that thc drainagc channcl and the acccss road nevcr uscd to pass through the suit land but wcrc rather illcgally creatcd by thc dcfcndants without the prior conscnt and/or compensation of the plaintiff, which amounted to compulsory acquisition of his land.

#### The la ut:.

S,ectlorn 7O7 oJ the Evld.eace Act providcs that whocvcr dcsircs any court to givc judgment as to any legal right or liability dcpcndent on thc cxistcncc of facts which he or she asserts must prove that thosc facts exist and thc burdcn of proof lics on that pcrson,

## 20 Section I03 furthcr stipulatcs th?rt:

"The burden oJ prooJ as to ang partlculor Jq.ct lles on thot person ll,lho uJlshes the court to belleue la its exlstence."

25 Arttcle 25(2ffb) oJ the L995 Constltutlon oJ the Republtc oJ Uganda, stipulatcs that no person is to bc dcprivcd of propcrty or any intercst in or right ovcr propcrty unlcss the pcrson is promptly and adequately compcnsatcd prior to thc taking of possession or acquisition of thc propcrty.

Sectloln 2 of the Land. Acqulsition Act, Cap.226, givcs powcr to a person authorizcd by the Minister to entcr upon thc lald; survcy thc land; dig or borc into thc subsoil and remove samplcs; and do any othcr thing ncccssary for asccrtaining its suitability.

30 lly virtuc of szbsectlon (2) thcrcof, (iovcrnmcnt is rcquircd to pay compcnsation to any person who suffcrs damagc as a rcsult of thc cxcrcisc of thc powcrs confcrrcd by thc Act. Sectton 3 (7)


is clcar indication that whcn land is rcquircd for public purposc thc Ministcr must make a declaration to that cffcct by statutory instrumcnt. It is thcn that thc land is markcd out and measured; and a plan o[ thc land to bc acquircd is madc, if not alrcady madc. (section 4).

Under sectlon 5, a noticc in thc gazcttc must bc given to all conccrned parties not later than 30 days after thc publication in the gazettc, requiring thcm 10 appear and statc their objections among othcrs, to the plan.

KCCA in its defencc whilc dcnying that it had compulsorily acquircd the plaintiffs land, contcnded that thc Nkinzi road allegcd to bc trcspassing on thc plaintiffs land had existcd as far back as the year 1996 as arl cascmcnt providing acccss to thc ncighboring plots.

KCCA also dcnicd having divcrtcd thc drainagc channcl as allcged by thc plaintiff from its original placc to thc suit land sincc thc samc had cxistcd cvcn beforc thc plaintiff bccamc thc registercd owner of thc suit land, contending that thc plaintiff acquircd titlc ovcr the suit land, whilc fully awarc of the existcncc of thc road and drainagc channcl. 10

KCCA rclying on thc statcmcnt by Pw2 that thc acccss road had been crcated by thc 3.,r defcndant, maintaincd that thc statcmcnl had cxoncratcd it from liability,

It was also noted by this court that the certificate of titlc was obtaincd by the plaintiff on 9rh August, 1996. Thc first complaint appcaring on record to have bccn raised by him conccrning this matter was addresscd to KCCA, dated lSth August, 2O0l and titled: Changed Drainage System.

In that lettcr, thc plaintiff rcquestcd KCCA to construct a propcr drainage to stop water from stagnating on his land. (PExh 2), the lctter was addressed to thc City linginccr, Kawcmpc Division and copicd to othcr dcpartmcnts within thc Authority. 20

It was writtcn by counscl rcprcscnting thc plaintiff at thc timc: M/s Twrnusllme, Kabega & Co. Aduocdtes.

25 It statcs

Sometime back, gou withoul hts knotuledge and consenl changed the drainage sgslem in the area from its planned posilion lo a neu) one passing under and/ or near his land qnd buildings <sup>7</sup>hi.s ruas because a sloried house across the oiqinal draitaqe sustem! lemphasis minel

30 As a result ofthe above changes, running water has ertensiuely d.omaged our client's house and garage. The house and peimeter wall are on lhe uerge of collapse. IIis (plainttffs)


concerns have been brought to your attention a number of occasions but no positive steps have been taken. Our client at one time requested you to construct a proper drainage to *stop the water from stagnating on his land but you refused.*

Our instructions are to demand as we hereby do, that you immediately construct a proper drainage system to prevent water from damaging our client's land...(emphasis added).

**PExh 4,** is another letter dated 14<sup>th</sup> of June, 2003, addressed to KCC. It referred to some time back in 1994 when the former KCC Engineering department of Kawempe Division divided the land into two parts by changing the drainage system from its original plan and digging into his plot.

10 That when the plaintiff protested, the agents of KCC decided to leave the sewage/drainage open to drop all the waste in that plot, without due consideration of the health hazards it entailed, let alone denying him the right to use the plot to full effect.

Furthermore that the Town Clerk made a verbal commitment to cover up the channel once funds were available, which commitment apparently he never fulfilled.

15 On 28<sup>th</sup> January, 2006 some three years later, the plaintiff E. M Byoleko, wrote again, this time as director of B. K Motor Garage. (**Refer to PExh 3**) to the Town Clerk Kawempe Division, with a copy to the City Engineer.

His complaint again was that his plot had been divided into two portions. He reminded the Town Clerk of the several times he had written to the institution and their failure to act on his request. He made another request to him to have the drainage channel repaired, back to its original

position so that he could enlarge the garage business.

A response was made dated 27<sup>th</sup> March, 2014 by Eng. Justus Akankwasa, Deputy Director Buildings and Drainage to yet another one by the plaintiff dated 10<sup>th</sup> March, 2014. The first step therefore towards corrective action by KCCA therefore came after 13 years, following constant

25 reminders by the plaintiff. KCCA in its reply indicated to the plaintiff that a site visit had been made. (Refer: PExh 9).

KCCA committed itself to open up boundaries of the **plot 20** and neighboring properties and guide on the access road and proposed that after obtaining guidance from the Physical Planning Directorate they would be able to handle the request for a closed drain on the suit land.

30 **PExh 10** is the subsequent correspondence to the plaintiff, dated $7<sup>th</sup>$ May, 2014. Eng. Justus Akankwasa, wrote to say that based on the guidance of Physical Planning Department it was


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notcd that therc was an cxisting drainagc channel that passcs through plot 20 and on the side there is an access road that connects to thc bchind plots.

That both the drainage channcl and acccss road werc on the suit land and that though the access road was not gazettcd, it had becn creatcd to servc thc neighboring plots. Based on the above

5 guidancc as well as the obsemed dire statc of thc drainagc channel as admittcd by KCCA, the plaintiff was requcstcd to provide cnginccring drawings showing the proposed plan for a closcd drain at this location.

That it was only after rcvicw and approval of thc abovc dcsign that rcpair/ construction works on this section wcrc to bc allowcd to commcncc. It is not known if thc drawings wcre made by thc plaintiff since court found no rcply to that lctter.

What is on rccord howcvcr is thc fact that on 2nd Octobcr, 201 5 thc plaintiff through his counsel took the decision to filc both a noticc to suc and a statutory notice to sue. [PE:ch 5 a'nd PExh 6).

On 8th April, 2O14 a survey (PExh al was conducted by Cut7, I lumphrcy Mitanda a Consultant l,and surveyor with M/.s Synergg SurueAs & rssociales. The report notcd that a watcr drainage channel of three mctrcs wide passes through thc plot and hcnce making approximately 0.005 acres (PE:ch 8j. tle also informed court that the drainage is a natural stream that had becn developed through thc land. 15

A second rcport was a onc pagcd rcporl DExh 2, datcd 26rh April, 2016 tcndcrcd in court by thc same pcrson, this timc for thc 3"1 dcfcndant. It had a skctch showing a watcr strcam that runs from Nkinzi road alongsidc plot 2Oand on thc cdgc of plot 79, and bcyond. 20

It was the only acccss road shown on thc skctch. Thc said channcl had a strcam, a drainagc and access road all in thc same arca and indccd as established by thc survey report, and as seen by court during the locu.s visit, these fcaturcs cncroachcd partly on to thc suit plot. The cxtent of the encroachment could not bc dctcrmined with ccrtainty, from the survey findings.

PurI Charlcs K. Okolong, a rcgistcrcd survcyor wilh M/s Oringo & Compdny carried out an inspection and evaluation rcport for thc suit land. In his rcport, PExh 7, dated gth September, 20i5 he rcferrcd to an approximatc O. OO7 <>f an acrc as having bccn takcn up by thc drainagc and the ncw acccss road. Ilowevcr a pcrusal of thc survcy rcport on which he rclied showed an

area of 0.005 of an acrc. 30

Yet anothcr survcyor's report by Cqr-l datcd 1U'h July,2O16 addrcssed to this court confirmcd that thc drainage channel passcd into plot 20, An arca of 0.01 acrcs was cstimatcd as thc actual

8 \*4

arca of encroachmcnt by thc channel. Both CpI qnd Pw7's findings thercfore rcquired further verification on account of thosc discrcpancics, which court failcd to reconcilc.

But bc that as it may, there was no doubting the fact that thc watcr flow and acccss road were partly on the suit land. Ilowcver save for the divcrsion of thc drainagc watcr, thcre was no evidencc dircctly linking thc KCCA to thc cncroachmcnt, so as to lcad to the conclusion that it compulsorily acquired a portion of thc suit land within the meaning of lhc Lend Acqulsltlon Act so as to justify an award for compensation to thc plaintifl

What the cvidence led by thc plaintiff was able to cstablish however was that KCCA all along knew about the pcrennial problcm but actually failcd/omitted/ rcfused to address it at the appropriatc time, dcspitc thc numcrous rcmindcrs.

This was a potcntial hcalth h:rzard not only to thc plaintiff, but to thc entire community KCCA was obliged to serve. It failcd to carry out its duties to cnsurc propcr maintenance of the water channel; failing to monitor, cvaluatc, ovcrscc and maintain thc public facility up to the required standards.

KCCA is faulted by its failurc to rcctify thc problcm which ovcr timc developcd into a matter of serious concern for the entirc community as the opcn channcl collccted all the lilth and garbage for thc growing population in that area, pouring evcrything into thc swamp and making the place almost inhabitablc, making it an cyesorc . 15

But as deduced from the contents of thc various corrcspondcnccs bctwccn KCCA and the plaintifl the problcm on this land had startcd in 1994, evcn beforc thc plaintiff had acquired the title to that land-20

Thc suggestion madc by thc dcfcndants in submission which court subscribes to, was that thc plaintiff was awarc of the division of thc plot and so ought to have reasonably foreseen thc potential risks and hazards which thc drainagc on his land prcscntcd, bcforc buying and settling on that land.

DruI, Kawccsa's cvidcncc as a KCCA cnginecr was absolutcly crucial to this case. IIe testified that an outlct had bccn crcatcd by KCC^ to pour water and scwagc in plot 20. Ilcforc thcn, it was passing through thc ncighbouring plots 27 a^d.29 where it had bcen gazetted to flow, as clearly markcd on the deed plan.

KCCA howcver blockcd it, rcdirecting it to pass through thc lowcr sidc whcre it found its way to plot 20. That complaints about thc drainage bcgan as far back as 1994. The said witness confirmed that thc road had been illcgally crcatcd as it was ncvcr gazcttcd. 30

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It did not appear on the dccd print and that this had affccted thc size of plot 20, reducing i1 by about 0.005 acrcs, estimatcd by him as thc sizc/area of cncroachmcnt. According to Dro4, these plots had becn creatcd in thc 1968s by KCC.

Court thcrcfore found it rather absurd that KCCA which creatcd the problem for thc community was unable to find appropriate solutions for it.

It had initially committed itself to opcn thc boundaries and maintaining thc drainage channcl but evcntually did not. It later on tricd to shift thc burdcn to thc plaintiff being the owner of the affccted plot.

KCCA also failcd to givc an appropriatc responsc to thc serious allcgation made that it had 10 changed thc drainagc systcm in the arca from its planned gaT,cttcd position to a new one passing under and/or ncar the plaintiffs buildings; and that this was because someone in the neighborhood had put up a storicd housc across thc original drainage system.

The Authority takes thc blame therefore for its failurc to pay attention and/or takc into serious considcration thc ovcrall cffcct this could havc on thc community. I,'rom the abovc findings thereforc, a right to a healthy cnvironmcnt owcd to thc plaintiff did exist and was violated by KCCA.

# the 3'd delendqnt creqted. qn access road, without the con,sent slltlepk4s e o. Llhe plqintilJ.

Thc claim against the 3,d dcfendant as thc registcrcd owncr of plot I9, was made by Pw2, Mr. Fldward Kanyarusoke that the 3d dcfendant took advantagc during the Christmas holiday in I)ecembcr, 2014 to creatc an acccss road on thc plaintifl's plot. lle claimed that the 3.d defcndant's plot originally had an acccss road which was not through the suit land. 20

I.'urthcrmore, rn paragraph i I of his witncss slatcmcnt that thc 3(l defendant never obtained a permit to construct thc road on thc suit land. lt was thc plaintiffs conclusion that thc dcfendants

trcspassed on thc plaintiffs land by crcating an illcgal drainagc channel and access road thercon and had donc so without his conscnt. 25

Dut7, Krgozi Richard thc 3.d dcfcndant in his defcncc howcvcr dcnicd rcsponsibility for the creation of the access road, claiming that at thc timc hc purchased his land in 2007 thc access road which currcntly scrvcs his land, his ncighbours arrd thc community of both Kimwanyi and 30 llusia 7,oncs, was alrcady in existencc..

This was corroboratcd by Dro4, onc Kabahwcza Chucu Kcroi. Shc had livcd in Wandegcya for more than 30 years and only stoppcd bcing thc Chairpcrson in thc prcvious elcctions. In her

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evidencc she statcd that shc ncvcr saw KCCA crcalc a drainagc or a road on the suit land which was originally a swamp.

That KCCA's rolc was mcrely to maintain thc drainage which it nevcr creatcd, and which according to ,r@4 has cxisted ovcr thc ycars, claims which thc plaintiff disputed but failed to

5 disprovc.

> In rcaction to that, KCCA claimcd that thc abovc cvidcncc was cnough to cxonerate it from the allegation that it had becn involvcd in thc illcgal acccss road. That thc liability ifany, fell squarely on the 3.d dcfcndant who was ncithcr a scryant nor an agent of KCCA.

Counscl for thc 3"1 defcndant howcvcr rcfcrrcd to lhc lasl paragraph of PExh 4, a letter datcd l4th June, 20O3 which was a complaint to KCCA whcrc thc plaintiff statcd as follows: 10

> .... Nou mg plot utas used ds a ualkd\adA path but to mA surpise 91Le1]t-leiohbor Iorcefullg used it o.s a stepDina stone to constntct an access road to his place hauina chanaed the access to is pldce.. (emphasis add.ed.).

It is upon this that I atn requesting lJour humble oJfice lo come to mA rescae lo reclifA the issue oflhe seuage line th@t had been disposing waste in m!/ plot lor the last 20 Aedrs dnd the qccess rodd that

As already notcd the complaint was madc in rcfcrencc to incidcnts that had occurred around 1994, long beforc thc 3"1 dcfcndant had bought ptot I9, also bcforc thc plaintiff had bought his land.

The 3.d dcfcndant therefore dcnicd any act of trcspass claiming that the water flowing from plot 2O (suit land) passcd through his land and also partly affcctcd plots 2I adjacenl lo plot 20, as well as plot 22. 20

Irur3, Wasswa Hassan, who had bccn chairman of thc Kimwanyi zone area since 1993 told court that thcre was a drainage which poscd a sccurity threat; and an access road crcated bcfore the plaintiff bought the suit land and that the drainage was therc cvcn before he became the LC of

the arca.

That somctimc in 2014, the 3.,1 dcfendant had consultcd thc arca leadcrs about thc need to covcr the drain sincc both plots 79 qnd 20 wc.rc affcctcd cqually by thc drainage channel but that when he approached his ncighbor hc did not buy thc idca.

That the LCs had also approached him rcgarding this mattcr, but he still showcd no intercst. They adviscd thc 3"t defcndant to go ahcad and work on his part of the drainagc which he had done, with mobilization of thc community through bulungi brrcnsi efforts. 30

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The witness faulted the plaintiff for suing thc 3"r dcfcndant bcforc consulting the local leaders who had the prior knowlcdgc and history of thc arca.

The evidencc of both witnesses, Dut3 end Du4 which court found no rcason to doubt was that thc access road was originally crcated by mcdical studcnts of Makerere Univcrsity in the 1970s

5 under thc leadership ofOtunnu and it has since bccn rcferred to as Otunnu road, and expanded into a bigger road with thc help of thc community, which claims thc plaintiff rcfutcd as intendcd to mislead court.

Upon inspccting the alleged acccss road during the locus visit, court notcd Lhat a fair access to plot I9 bclonging to thc 3d defcndant from plot 20 (suil land) did exist. I lowevcr that there was limitcd access for vchicles going bcyond plot 79 up to llinaisa lload.

Thc question thercforc whcthcr or not thc 3.1 dcfendant crcatcd an access road, without the consent and knowledgc of the plaintiff thcrcforc did not arisc.

#### Conclrrslon-'

Access was dcfincd in thc casc of Muglsha Stephen Vs Karugaba fostasl -HC€S No, OOSO of

- 3OI3 wherc court relied on thc Blcclc Lan t Inctlon,a,ry 6.h Edltlon page ,2 as dcnoting the right vcstcd in the owner of thc land which adjoins a road or other highway to go and return from his own land to high way without obstruction, Acccss to property docs not nccessarily carry with it possession. 15 - Such evidencc as highlighted abovc proved that an acccss road was in existence prior to 2007, when thc 3"r defendant purchascd the land for usc but not for posscssion by KCCA or any membcr of the community, 20

With assistance by thc community and consultation with thc LCs, thc 3.d defendant acted in good faith when hc repaircd for thc community what was alrcady in cxistence, The cvidencc that the plaintiff had bcen consultcd but declined to cooperatc provcd hc had knowledge of whatever

was happening. 25

> Also as correctly pointcd out by counsel for the 3.d dcfendant, when a person purchases land aIrd becomes thc rcgistcred proprietor of the samc, hc docs so subject to the existing rights on the land, which includcs cascments.

Whcre an-easemcnt in thc land is crcatcd, a person has a right to usc the samc, subject ofcourse to the owner's dghts. An cascmcnt does not confcr owncrship/ posscssion but it confcrs a right to use/ access. 30


$\cdot$ $\overline{\phantom{a}}$

Thc plaintiff did not adducc any cvidcncc to supporl his bclicf that it was the 3"r defendant who had initially crcatcd thc ungazcttcd acccss road, and that whcn he pourcd the soil on the land it was for his sole bencfit and exclusivc usc/sclfish gain. The plaintiffs complaint against his neighbor was thercforc misdirected and not wcll thought out.

5 In light of the above findings, the creation of thc road did not happcn at the instance of the 3'r defcndant in 2014 but some years bcforc thc 3"r defcndant purchascd his land and for ease of quick passage to Mulago by studcnts.

As declared tn Barclags Bank versus Patel [79701 EA 99 a way of ncccssity arosc by operation of law and it continucs to cxist notwithstanding that it was not rcferred to in the certificate of titlc to the scrvient tcncment. t)locking thc road would dcny thc community in thc arca acccss to their homcs.

I.'rom Pur2's evidcncc at cross-cxamination all in all, what his fathcr had actually wanted was a proper constructcd drainagc by KCCA and gathcrcd from thc cvidcncc of l)atrick Kawccsa, DUI hc wantcd KCCA to align thc cxisting natural drain in his land to limit its cxpansion and also to

protect the cxisting structurqs. 15

It was also his evidcncc which was confirmcd by court following thc locus visit that thc lower cnd of Nkinzi Road was covcred by natural developed swamp wherc thc surfacc flow from Nkinzi Road was directed. Thc corrcspondcnccs PExh9 and PExhTO provcd that thc KCCA did acknowlcdge its mandatc to manage thc drainagc. lJut dcliberately failcd to mect that expectation.

Thc plaintiff to that extcnt had a causc of action against KCCA. In rcsponse to Issue No. 2, no causc of action was discloscd against the 3"1 defcndant. 20

## Issae TVo. 4 Retnedles:.

Thc plaintiffls praycrs thcrcforc wcre: (r declaration that the plaintiff is the nghtful ouner of the suit tand; lhe dekndanls are trespassers on the plainhffs land; an order compelling the 1"1 dekndanl (KCCA) to moue the drainage channel back to the oiginal position ofJTout between plots

27 and 29; or direct it to moue to another main channel but not lhrough lhe plainfiffs bnd.

Thc plaintiff also praycd for a pcrmanent injunction against thc dcfcndants, their assigns and successors in title from further trcspassing on the suit land; and compcnsation for the illegal occupation, dcvclopmcnt and unplanncd usc of his land in rcspcct of the value of the suit land

that was illegally acquircd by thc defendants. 30


.

According to Blc.ck's laut Dlctlondry, th Ed.ltlo'1-, Page 307 compcnsation mcans paymcnt of damages or any othcr act that a court ordcrs to bc donc by a pcrson who has caused thc injury to anothcr.

5 The compensation in this case was in respcct of thc injury suffercd by the plaintiff on account of the KCCA S failurc to fulfill its role of maintaining public facilitics as mandatcd by law, thus causing inconvcnicncc and cxposing thc plaintiff and thc community to hcalth hazard over a period of timc. This court faults thc KCCA on account of it dccision to divert thc flow of drainagc water to an area which had not bccn planncd, without giving proper cxplanation.

Mr. Charlcs Okolong a land valucr who tcstificd as PurI tcndcrcd in a valuation rcport of thc suit land dated grh Septcmbcr 20 I 5. (See PExh-7) which indicatcd that thc value of thc land takcn by thc access road and drainagc was Ugx 116, a89,5OO/=. llc claimed howevcr that givcn the passage of timc thc valuc of the affectcd land had now accumulated to Ugx 233, 779,OOO/-. llis cstimated valuc of thc land was Ugx 7,5OO,OOO,OOO/-. 10

The abovc notwithstanding, thcrc was no evidcncc to merit that award sincc the plaintiff had failed to prove that the KCCA had compulsorily acquircd any portion of the plaintiffs land. IJesides court notcd that thc actual arca affectcd was ncvcr ascertained.

Sccondly, thc plaintiff was fully awarc of thc challcngcs and possible risks of acquiring land which from thc plaintiffs corrcspondcnccs with KCCA, alrcady had a drainage flow and a pathway even bcforc hc purchascd that land in 1996.

Thirdly thc community which had creatcd thc eascmcnt which later became the access road beforc the 3.t dcfcndant bought plot ,9 was not made party to this suit. 20

All in all the available evidcnce against thc KCCA was based on its negligcnce, having failed to covcr the opcn drainage channel and maintain it. Over the years it bccame a health hazard to the community.

## 25 Ge^eral d.qmaqes.

It is tritc law that damagcs arc thc dircct probable conscqucnccs of thc act complaincd of such loss ofusc, loss ofprofit, physical inconvcnicnccs, mcntal distrcss, pain and suffcring. (Kampalq. Dlstrict Land Board Vs Veno,nsLo Babuegana Clvll Appeal No. 2 of 2OO7)

30 Givcn all thc inconvcnicnccs and unquantifiablc damagcs suffcrcd by thc plaintiff duc to the KCCA's failurc to maintain thc drainagc, thc arca bccamc a dumping ground for rubbish and filth, making it also a brccding ground for mosquitoes and a hcahh hazard not only lo thc plaintiff who was dircctly affcctcd as the owncr of thc plot but also thc entire community in that a.rea.


In addition, the drainage channel is wide and open, which makes it dangerous and susceptible to abuse by wrong elements in the community. The plaintiff's prayer for general damages was therefore justified.

### Accordingly,

- $\mathsf{S}$ The following are the orders of court: - 1. An order issues for KCCA to cover the open drainage within a period of six months from the date of delivery of this ruling and to direct KCCA to carry out periodical maintenance of the drainage channel. - 10 2. An award of Ugx 50,000,000/= as damages is made to the plaintiff as general damages payable by KCCA on account of its failure to carry out its duties, which amount shall attract interest of 15%, payable from the date of delivery of this judgment until payment is made in full. - 15 3. Costs of the suit shall be paid to the plaintiff by KCCA. - 4. The plaintiff to meet costs of the $3^{rd}$ defendant.

Alexandra Nkonge Rugadya

20 **Judge**

14<sup>th</sup> June, 2022