Kainembabazi v Sebowa and Another (Miscellaneous Application 164 of 2021) [2023] UGHCLD 162 (30 June 2023)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DTVTSTON)

# MISCELLANEOUS CAUSENo. 164 of2O2L

SUZANNE MUSHERURE I{AINEMBABAZI = ===== = APPLICANT (Suing as Administrator of the Estate of the Late Timothy Musherure)

#### VERSUS

1. ABBEY MWANJE SEBOWA

| 2. TIjIE | COMMISSIONER LAND | | REGISTRATION | |---------|-------------------|--|--------------| | | | | RESPONDENTS |

## BEFORE: HON. JUSTICE FLAVIA NASSUNA MATOVU

#### RULING

- 1. This was an application for vesting order to land comprised in LRV 2243 Folio 14 Plot 23 , Mpanga close, Bugolobi, Nakawa Division. It was brought under several provisions of the law but specifically under S. 167 of the Registration of Titles Act and O. 52 1& 2 of the Civil Procedure Rules. - 2. It was seeking for orders that; - a. A vesting order be granted in favour of the Applicant in respect of the land at LRV 2243 Folio 1 1 Plot 23 at Mpanga Close, Bugolobi, Nakawa Division, Kampala. - b. The 2"d Respondent enters the Applicant's name in the Register Book in respect of the suit land;

c. Costs of this application be provided for.

- 3. The application was brought by notice of motion which was supported by an a-ffidavit sworn by the applicant. The grounds of the application were laid in the notice of motion and affidavit in support. Briefly the grounds were that; - a) the suit land is registered under the provisions of the Registration of Titles Act, Cap. 230. - b) the Applicant is the holder of Letters of Administration of the Estate of the late Timothy Musherure. - c) the late Timothy Musherure purchased the whole of the land from the 1"t Respondent and he paid the whole purchase price to the l"t Respondent. - d) the Applicant learnt of the land recently while tracing the properties of the deceased. - e) the deceased never sold the said land to anyone and the Applicant was in possession of the duplicate Certificate of title of the said land - f) entry into possession of the land would not be difficult. - g) all efforts to trace the l"t Respondent had so far been futile. - h) the transfer of the land had not been effected because the Applicant had not been able to find the l"t Respondent to sign a transfer instrument in her favour. - 4. The second Respondent filed an affidavit in reply which was sworn by one Ssekabira Moses who stated that; - a) perusal of the Register, showed that the said land was registered in the name of Abbey Mwanje Sebowa vide Instrument No. 263455 of 2"d June, 1994 at 9:45am and it had no incumbrance.

- b) the applicant applied for a vesting order from the office ot the Commissioner Land Registration, however, the same was not considered by the Ag. Commissioner Land Registration. - c) the applicant did not explain why the registered proprietor (the vendor) did not sign transfer forms. - d) in the event that the order is granted by this Honourable Court, the applicant should be compelled to pay stamp duty. - 5. The l"t Respondent did not file any affidavit in reply to this application and it is not clear whether any efforts were made to serve him with the same. - 6. Counsel for the Applicant filed written submissions which I have carefully studied. Briefly he submitted that the applicant had complied with the conditions stipulated under section 167 of the Registration of Titles Act, under which the application was brought and therefore a vesting order should be issued in her favour. She cited several authorities in support of her case which I have carefully studied. - 7. The issue to be decided is whether court should grant vesting order in respect of land comprised in LIiY 2243 Folio 11 Plot 23 land at Mpanga Close, Bugolobi, Nakawa Division.

### 8. Decision of Court

S.167 of the Registration of titles Act under which this application was partly brought provides;

"If it is proaed to thc satisJaction oJ the registrar that land under this Act ho.s been sold bg the proprietor qnd the uthole of the purchase nurneg paid, and thqt tlu purchaser has or those claim:ing under the purchaser haue entered and taken possession under tlte purchase, and thqt entry and possession haue been acquiesced in bg the uendor or his or her representatiues, bttt that a transfer has neaer been exectrted. bg the rrendor qnd crrnnot be obtained bg reason that the uendor is dead or residing out of the jurisdiction or cc;nn,ot be Jound, the registrar mag rnake a uesting order in tle premises and mag include in the order a directionfor the pagnent oJ such an ad.ditionalJee in respect of assurance of title as he or she tnag think ftt, and the registrar upon the pagment oJ that additionql Jee, it ang, shall elfect the registration directed to be rnade bg section 766 in the case of the uesting orders tnentioned there, and. the elfecting or the omission to elfectthat registration shall be qttended bg the sante results ds declared bg sectiott 766 in respect oJthe aesting orders tnentioned there."

Therefore before a vesting order is issued the applicant must show that;

a) The land is registered under the Registration of titles Act;

- b) There was a sa-le of the said land and the purchaser paid the entire purchase price to the vendor. - c) That the purchaser or those claiming under him/her have taken possession of the purchased land and the entry has been acquiesced in by the vendor or his/her representatives. - d) That the transfer of the property has not been effected because the vendor is dead or is residing out of the jurisdiction or cannot be found.

Ideally this kind of application should be made to the Registrar of titles and the court can only intervene where the Registrar has failed to act and for no clear reason.

In the instant case, it is true that the applicant applied for vesting order to Registrar of titles but the sarne was declined. In the affidavit in reply , the Registrar stated that the Applicant did not explain why the vendor did not sign transfer forms. Unfortunately, the Applicant did not make any response to this particular concern and it still remains unclear why the vendor did not sign transfer forms if indeed the transaction was completed as claimed.

Perusal of the record shows that the purchaser allegedly bought the suit land in 1994 and died in 2O2O as indicated in the certificate of death attached to this application. It is not clear why for a period of close to 26 years, the purchaser neither took possession of the land nor bothered to have the land transferred to his names.

Whereas the Applicant claimed that efforts to trace the vendor had been futile, she did not elaborate what exact efforts had been taken to trace for him. In my view it is not enough for an applicant to

merely depone that efforts have been futile. He or she must further elaborate on the exact efforts taken. Suffice to say that even no effort was taken to serve the instant application on the Vendor at least by way of substituted service.

The Applicant further states that she is in possession of the duplicate certificate of title and entry into possession will not be difficult. With all due respect, 5.167 clearly states that the Applicant should be in possession of the suit land and the said possession should be acquiesced by the vendor or his or her representatives.

In the instant case since the Applicant is not in possession of the land, the court cannot grant a vesting order in her favour.

Before I take leave, I must also note that at the time of the alleged sale, the vendor only had a leasehold interest in the land for a period of only 5 years. It is trite law that leasehold interests only last for a fixed period of time and a person can only give what they possess. In the case of Were Fred v. Kaga Ltd; H. C. C. S 53O of 2OO4 it was held that a transferor cannot give a better title to property than he or she possesses. This therefore implies that at the time of sale (7994), the vendor could only pass on the 5 years interest he had in the land. Certainly, this lease ought to have expired in 1999 and there is nothing to show that it was subsequently renewed or extended.

The application fails to meet the criteria set under Section 167 of the RTA and the same cannot be granted. I have not found any special circumstances that would warrant court to go outside the

specific provisions of S.167 and invoke its inherent powers under the other laws cited in this application.

For all the reasons advanced above this application hereby fails and the same is dismissed with costs to the 2"d Respondent.

Dated at Kampala this day of 2023. -=fr.,---l

FLAVIA NASS A MATOVTI Judge.

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