Haji Katamba v Sheik Kalumba and 9 Others (Misc Cause 124 of 2019) [2024] UGHCLD 147 (24 May 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### LAND DIVISION

# MISC. CAUSE NO. 124 0F 2019

HAJI KATAMBA MAHAD APPLICANT

#### VERSUS

- 1. SHEIKH ADNANI KULUMBA - 2. DR. HAKIM I(ALUNGI - 3. SUNDE KASULE - 4. HAJI KATIMBO KASULE - 5. HA"II I(AJOBA ABDULLAH

(Administrators to estate of late H. K. Kibirige)

- 6. NAKAMYA SEMUWEMBA - 7. KIGGUNDU REHEMA - S. ISMAEL KIBIRIGE - 9. HAMIDA NABUNTA - 10. COMMISSIONER LAND

REGTSTRATTON ......................... RESPONDENTS.

## BEFORE HON. LADY JUSTICE FLAVIA NASSUNA MATOVU

#### RULING

1. This application was brought under the provisions of S. 188, S. 140 and S. 3 of the Registration of Titles Act plus 0.52 rr 1

and 3 of the Civil Procedure Rules. It was seeking for orders that;

a) The caveats lodged on land comprised in Kyaddondo Block 203, plot 734 at Bwaise by the 6th, 7th,8th and 9th respondents under instrument number KCCA - 0005654 1 and KCCA 56579 dated 3.d December 2018 be dislodged by the 10th respondent and costs of the application be provided for.

2. It was brought by notice of motion which was supported by an affidavit sworn by the applicant. Grounds of the application were laid in the notice of motion and affidavit in support. Briefly the grounds were that;

a) the applicant was the lardul owner of the said land having purchased the same from 1"t, 2nd, 3,d,4th and 5th respondents on the 30th JanuarJr 2O19 pursuant to a consent judgment executed in HCCS. No. 250 of 2018.

b) Upon purchase, the 1"t, 2nd, 3'd, 4tt and 5th respondent warranted that the land was free from any encumbrance and third party claims.

c) However the 6th, 7th, 8th and 9th respondent lodged a caveat on the said land on 3.d December 2O18 without any reasonable on the said land.

3. The respondents filed affidavits in reply by which they called upon court to dismiss this application with costs.

a) The 1"t respondent swore an affidavit in reply on behalf of the lst !nd, Jrd, {th and 5th respondent by which he stated that it was true they as administrators of late Haji H. K. Kibirige sold

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the suit land to the applicant pursuant to a consent judgment that was executed on 3d December.

b) That after the said sale they distributed proceeds of the same to a,11 beneficiaries including the 6th, 7th and Sth respondents who were children of the late Haji H. K. Kibirige. However, the 9th respondent was not a beneficiary to the said estate.

c) The 6th respondent maintained that she was a daughter to late Haji H. K. Kibirige and therefore a beneficiar5r to his estate .

d) That whereas it is true a consent judgment was executed in HCCS. No. 250 of 2018, and the said property was consequently sold by the 1",, 2.d, Jrd,{th and Sth respondents, the said respondents did not give her any share out of the proceeds of sa-le and had not filed an inventory to court as agreed.

e) That she had consequently filed HCCS. No. 194 of 2Ol9 against the 1"1, )nd, Jrd,4th and Sth respondents and the same was still pending disposal and that the said caveat should be maintained on the land until the disposal of the said suit.

0 The 7tt and 8th respondent maintained that they had since lost interest in the suit land and had no objection to the removal of the said caveats.

h) the 9th respondent (Hamida Nabunya) stated that she had never lodged any caveats on the said land and was therefore wrongly added as a party to the application.

i) The 10th respondent stated that the caveats referred to were lodged before the applicant purchased the said land and the applicant was therefore bound by the said caveats.

3. ISSUES

- a) Whether the application against the 1"t, 2od, 3'dr 4th and Sth respondents is proper. - b) Whether the 6th, 7tn, 8to and 9th respondent have a caveatable interest in the land and whether the said caveats should be dislodged.

4. Parties filed written submissions which I carefully studied and need not reproduce them here. I have also carefully studied all the pleadings on record and the relevant law.

# 5. DECISION OF COURT.

# Issue 1

# lVhether the application against the 1"t, 2nu, 3'u, 4th and sth respondents is proper.

From the pleadings on record it is clear that the caveats that the applicants seek to dislodge were lodged by 6tn, 7th 8th respondents and one Vicent Businge who allegedly was acting on behalf of the 9th Respondent ( Hamida Nabunya). There is nothing on record to show that the 1"t, )nd , Jrd, 4th and 5th respondents had any hand in lodging the said caveats. They merely sold land to the applicant. I failed to appreciate why the applicant filed the instant application against the lst, 2nd, 3,d,,4th and Sth respondents It is therefore clear that the applicant had no cause of action against the said respondents and they were therefore wrongfully added as parties to this application. I find that the application against them was not proper and is accordingly hereby struck off as against them.

4 O^

### Issue 2

Whether the 6th, 7tn, 8to and 9th respondent have a caveatable interest in the land and whether the said caveats should be dislodged.

a) S. 139 of the Registration of titles Act provides that;

"Any beneficiary, or other person claiming any estate or interest in land under the operation of Act, or in any lease or mortgage or under any unregistered instrument or by devolution in law or otherwise, may lodge a caveat w.ith the registrar....".

Therefore, for a caveat to be valid, the caveator must have a caveatable interest, legal or equitable in the land. A caveatable interest must be an actual interest in the land, legal or equitable such as an easement, a mortgage, tenancy, purchase etc.

I do appreciate that from the pleadings it is clear that the 6th, 7th, 8th and 9th respondents are children of late H. K. Kibirige and therefore beneficiaries to his estate and therefore have a caveatable interest in the land.

- b) The pleadings show that the two caveats were lodged as follows: One by Nakamya Semuwemba , Kiggundu Rehema, and Ismae1 Kibirige vide Instrument No. KCCA 0005654 1 and another by Vicent Businge vide Instrument No. KCCA 00056579 - c) In an a{fidavit sworn by Vicent Businge on 28th October 2OL9, he specifically denied having interest in the said land and clarified that as an advocate he lodged the caveat

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on behalf of his client one Hamida Nabunya and after this clarification the court ordered Hamida Nabunya to be joined as a party .

- d) By an a-ffidavit dated 2oth November 2023,the said Hamida Nabunya denied having lodged any caveat on the said land. In my view since both Nabunya Hamida and Vicent Businge denied having lodged the said caveat the same should automatica-lly be dislodged as it appears to have been entered in error. - e) As regards the caveat lodged by Nakamya Semuwemba, Kiggundu Rehema and Kibirige Ismael, I have made the following observations. - i) By an affidavit sworn on 19th October 2019, Kiggundu Rehema stated that whereas she had lodged the said caveat, she no longer had interest in the said land and had no objection to remova-l of the same. - ii) By an affidavit dated 24th October 2019, Klbirige Ismael too stated that whereas he had lodged the said caveat, he too no longer had interest in the said land and had no objection to removal of the said caveat. - iiil The only person who contested the remova-l of the caveat was Nakamya Semuwemba who contended that she and others had since filed HCCS. NO. L94 of 2Ol9 concerning the mismanagement of estate of late H. K. Kibirige and that the said caveat should not be removed until the disposal of the said suit. This court has reliably established that the said suit was dismissed on 17ft Aprtl 2023. In addition, perusal of the plaint which was

attached to Nakamya's affidavit shows that the land comprised in Block 203 Plot 734 which was caveated is not one of the properties for which the plaintiffs in HCCS. NO. 194 of 2019 sought a remedy. It thus clear that the land in the instant application is not subject of any known dispute in courts law.

- i't ) From the pleadings it is clear that the applicant purchased the said land pursuant to a consent judgement that was executed by the parties in HCCS. No. 250 of 2018 and therefore acquired interest in the same and in light of the a-fore going observations, I have not found reason as to why the caveat on the said land should not be dislodged. - v) The application is therefore allowed. The caveat that was lodged by the 6Lh, 7th, 3,n, and 9th respondent (Vicent Businge ) on land comprised in Kyaddondo Block 203 Plot 734 at Bwaise under Instrument No. KCCA 00056541 AND KCCA 565798 should be dislodged by the lOth respondent

Each party sha-ll meet their costs for this application.

DATED at Kampala tt i"?STy or 2024.

AG. E