Kabahenda v Mayanja (MISC. CAUSE NO. OO13 OF 2024) [2024] UGHC 1221 (15 July 2024)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **LAND DIVISION**

#### MISC. CAUSE NO. 0013 OF 2024

#### JANIPHER KABAHENDA::::::::::::::::::::::::::::::::::::

#### **VERSES**

## FAROUK MAYANJA::::::::::::::::::::::::::::::::::

## BEFORE: HON. LADY JUSTICE NABAKOOZA FLAVIA. K.

### **RULING**

- 1. The Applicant moved court by way of notice of motion brought under Section 222 of the Succession Act, Section 33 of the Judicature Act and Order 52 rule 1 & 2 of the Civil Procedure Rules SI-71-1 for orders that: - a. The Applicant be granted Letters of Administration limited to the prosecution of C/S No. 280 of 2023. - b. The costs be provided for. - 2. The grounds of the application are contained in the notice of motion and the affidavit in support deposed to by Ms. Janipher Kabahenda. They are, briefly. That the Applicant is the only surviving daughter of the late Keti Kajumbikire who died in 2002. The late Keti Kajumbikire occupied and utilized part of the land comprised on Kyadondo Block 232 Plot 1552 (hereinafter the suit land) registered in the names of Haji Edirisa Mayanja Njuki, the Respondent's late father. That the occupation of the suit land was unchallenged for a period in excess of 12 years thereby acquiring title by adverse possession. That the late Edrisa Mayanja died in 2019 but no administrator has been chosen to date; and that the Respondent is his customary heir and is in custody of important documents. That the Applicant has filed CS No. 280 of 2023 to protect her interests and its pending hearing, but seeks Letters of Administration limited to the prosecution of that suit. - 3. The application was opposed by the Respondent who deposed that the Applicant has never purchased any interest in the suit land, and has never been in possession thereof to claim as an adverse possessor. That the Applicant is not a bonafide

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occupant because she used the suit land without the permission of the landlord. That the Applicant's late mother was always chased by Alhaji Mayanja *(deceased)* who stopped her from rearing pigs and selling alcohol from the suit land. That the law is clear on how parties should apply for letters of administration and that this has not been done by the Applicant since her mother's demise in 2002. That the Applicant has not also furnished this court with a death certificate to prove her mother's death.

- 4. The Applicant filed a rejoinder which is on record. - 5. **Representation:** The Applicant was represented by Counsel Ssengooba John Fisher from M/s John F. Ssengooba & Co. Advocates while the Respondent was represented by Counsel Higenyi from M/s Ajungule & Co. Advocates. Both counsel filed written submissions and they shall be relied on in this ruling. - 6. The Applicant raised the following issues for determination. - i. Whether the Application is properly brought before court? - ii. Whether the application should be granted? - 7. Submissions by the Applicant's Counsel. - 8. Regarding the first issue, Counsel relied on Section 222 of the Succession which applies to grants *pendente lite*. The Section provides that:

When it is necessary that the representative of a person deceased is made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in the suit, limited for the purpose of representing the deceased in that suit or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in that cause or suit, and until a final decree *shall be made in it, and carried into complete execution.*

- 9. He further cited the case of Okway John Kimber Vs. Odidia Nuru & Anor, Civil Application No. 39 of 2019 where it was held that, 'such a grant is permitted to be issued without prior advertisement'. - 10. Counsel argued that the Applicant paid 40,000,000/- to the late Edrisa Mayanja who regularized her occupancy. That peaceful means failed hence filing a suit to make her interest permanent so that her survivors can inherit; and that for purpose of locus standi, the Applicant seeks letters of administration limited to the suit.

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- 11. On the second issue; Counsel relied on Section 33 of the Judicature Act and submitted that this court is allowed to make orders for the ends of justice if there is no injustice to the opposite party. - 12. Submissions of the Respondent's Counsel

Counsel relied on the decision of Annakili Vs Vedanayagam & Ors [AIR 2008 SC 346] which gave essential elements of adverse possession to argue that the Applicant is not an adverse possessor. He submitted that the Applicant has not been in possession and is not a bonafide occupant under Section 29 (2)(a) of the Land Act since her mother was always chased from the suit land because she was rearing pigs and selling alcohol.

- 13. On the second issue, Counsel submitted that the Applicant lacks legal entitlement, possession and evidence of bad faith in the Application. That the applicant failed to take any action since her mothers' demise in 2002, and referred to the maxim of equity that equity helps the diligent and delay defeats equity. - 14. I have seen the submissions in rejoinder. - 15. Determination of the Application. - 16. I shall deal with both issues together. - 17. Am mindful that, there is no law which limits an Applicant, as a beneficiary to an intestate estate, to sue in her names to protect the estate without first obtaining letters of administration. I premise this view on the decision of the Supreme Court in Isreal Kabwa Vs Martin Banoba SCCA No. 52 of 1995 to the effect that a beneficiary has locus standi to prosecute a suit to protect his or share in an estate. - 18. This application revolves around Section 222 of the Succession Act (supra) which provides for administration limited to a suit. From reading of the section, there are conditions that must be satisfied for the grant of the application. The primary condition is that there must be a pending suit to which a person under whom the grant pendente lite is sought was party. With regard to that, the section's opening provisions are that "when it is necessary that the representative of a person deceased is made a party to a pending suit...". - 19. All the cases I have come across refer to the said primary condition, either expressly or impliedly (Okway John Kimbo Vs Oddia Nuru & Anor HCMA No. 39 of 2016, Arising from CS No. 31 of 2013; Galukanda Kiganda Micheal Vs. Racheal Nakiirya & 3 Ors HCMA No. 23/2023; Mugasha Rodney Vs.

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# Housing Finance Bank & Anor HCMA No. 1132 of 2020, Arising from CS No.685 of2020).

- 20. In this case, the record shows no indication that there is a pending suit between the late Keti Kajurnbikire and the Respondent. - 21. The case cited by Counsel for the Applicant of Okway John Kimbo Vs Oddia Nuru & Anor, supra, is clearly distinguishable frorn the facts ofthis case. In that case, before the Applicant moved court, there was a pending suit involving Anna Ayeyoboth, the 5tr'Defendant in the suit, whorn he sought to be substituted with upon being granted a granl pendente lile. This is not tlte case here. - 22. Therefore, I find the facts in the application inadequatc to rnerit invocation of Section 222 of cap 268. - 23. In conclusion, the Application is disrnissed with costs.

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Signed, dated and delivered at Karnpala this 1sth day ol ... <sup>J</sup>uly <sup>2024</sup>

Nabakooza Flavia. K Judgc