Kaitare v Kasolo (Civil Appeal 41 of 2022) [2025] UGHC 205 (20 April 2025)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CIVIL APPEAL NO. 41 OF 2022 (ARISING FROM CIVIL SUIT NO.023 OF 2021)**

**KAITARE JOSEPH::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

#### **VERSUS**

**KASOLO SALAPIO:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

## **Before: HON JUSTICE LAWRENCE TWEYANZE**

## **JUDGMENT**

### **Introduction.**

- 1. This is an appeal in which the Appellant being dissatisfied with the judgement and orders of His Worship Kitiyo Herbert, Magistrate Grade One at Chief Magistrates Court of Rakai at Rakai in Civil Suit No.023 of 2021, brought this appeal seeking orders that the appeal be allowed and judgment of the lower Court be set aside with costs. - 2. The brief background as discerned from the record is that the Respondent filed a suit claiming the recovery of Ushs 2,550,000/= arising out of the damage caused by the Appellants' cows on his garden, general damages and costs of the suit. It was the Respondent's/Plaintiff's case that on the 13th day of May 2021 at around 4:00pm, the Appellant's/Defendant's cattle strayed and destroyed his crops eating off his beans which were at flowering level in Nseese village, Kasaasa parish. The Appellant denied all the allegations. The Trial Magistrate found in favour of the Respondent and the Appellant was dissatisfied hence this appeal.

# **The Ground of Appeal.**

3. The Appellant raised One (1) ground of appeal in his Memorandum of Appeal namely that; The *Learned Trial magistrate erred in law and fact when he held and found that it is the Defendant's/ Appellant's cattle that destroyed the Plaintiff's garden of beans.*

### **Representation and hearing.**

4. The Appellant was represented by M/s Bashasha & Co. Advocates. The Respondent was represented by M/s JN Katerega Advocates & Legal Consultants.

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The appeal was heard by way of written submissions and both Counsel filed their respective written submissions which have been considered.

# **Duty of the first appellate Court.**

5. The duty of a first Appellate Court is to scrutinise and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. **See:** *Section 80 of the Civil Procedure Act Cap 282 (Revised Edition)*. This position has also been re-stated in a number of decided cases including J.*F. Zaabwe vs Orient Bank Ltd CACA No. 4 of 2006*. In case of conflicting evidence, the appellate Court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions (*See Lovinsa Nankya Vs Nsibambi (1980) HCB 81).*

# **Consideration of the appeal**

**The Learned Trial Magistrate erred in law and fact when he held and found that it's the Defendant's/ Appellant's cattle that destroyed the Plaintiff's garden of beans.**

- 6. Counsel for the Appellant submitted that it is trite law that he who alleges must prove the allegations. That to prove his case the Respondent produced four witnesses. PW1 testified that on 13/5/2021 that he got the Appellants cows in his garden of beans. That he shares boundaries with the Appellant. That it was around 3pm to 4pm. He contended that he knew the cows. That on cross - examination, he admitted that he did not report the matter to police. He alleged that he apprehended the cows but the children overpowered them. PW2 in his statement stated that he did not see any cow in the garden on that day when he visited. That it was around 6.30pm. PW3 the Agricultural Officer who visited the scene claimed to have taken pictures of the destroyed crops and foot marks but never presented this evidence in Court. - 7. That whereas the Respondent claimed to have apprehended the cows, PW4 told Court that a one Paul Mugerwa and unknown person drove the cows out of the garden after overpowering them. The Respondent told PW2 that he had apprehended the cows and whereas not. That it was the Appellant's evidence that at 3pm on the alleged date, his cows were at a watering point. That this evidence was never controverted.

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- 8. That at page 3 and 4 of the proceedings, PW 2 and PW3 did not see the Appellant's cows destroy and or enter/found them in the Respondents' garden. At page 7 of the proceedings, PW4 clearly stated that the land is being used by other many people to graze thereon thus a possibility that the cows that destroyed the Respondent's garden are not necessary belonging to the Appellant. The Respondent also admitted that the land is not used by him alone but with other people like Kayemba. PW1 and PW4 claim to have been overpowered by the children of the Appellant/Defendant but did not even inform the police which was in the area. He did not at all tell Court that the cows he saw belonged to the Appellant. PW3 claimed to have taken pictures of the destroyed garden and the foot marks but he did not present this evidence in Court. - 9. Counsel for the Appellant concluded that whereas it might be true the Respondent's garden was destroyed by cows, he did not produce evidence to show that the cows belonged to the Appellant. That the Respondent ought to have produced the evidence of the mother and or the children who were in the garden to corroborate his evidence. That the only eye witness was PW4 but in his evidence, he never at all made it clear to Court that the cows belonged to the Appellant, and prayed that this Court finds that the Learned Trial Magistrate erred in law and fact when he found that the Appellants cows destroyed the Respondent's garden of beans and hence allow this appeal. - 10. For the Respondent, it was submitted that the evidence was of people well versed with the facts surrounding the case. For example, PW4 (Lubega Mukaya Levi) who is an immediate neighbour to the parties and a relative to the both of them PW2 (Ssekito Gracious) an LC.1 Chairman an Agricultural Officer and the Respondent himself. That from the Memorandum of Appeal and reading of the Appellant's submission, the Appellant seems to suggest that there was no evidence pointing to the fact that it was the Appellant's cows that destroyed the Respondent's garden. That the record of proceedings reveals that the Respondent is a neighbour to the Appellant and he knew the Appellant's cows very well. That at page 3 of the record of proceedings, the Respondent stated "since we are neighbours, I knew the cows to belong to the Defendant". That the Respondent continued to state that "the children of the Defendant came and removed the cows from me by force as I had impounded them and was driving them to the LC.1". - 11. That this evidence is consistent with that of PW4 who stated at page 7 of the proceedings that "I had someone making an alarm in the down side of my garden. So, I decided to go and see what had happened in the neighbouring area. When I reached the Claimant's garden, I saw many cows eating the beans of the Claimant which were at a flowering stage and the Claimant was trying to impound the cows.

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I identified the cows to belong to Mzee Kaitare (Defendant)". That all this evidence is of neighbours who well know the Appellant's cows and this evidence was not even disputed.

12. The Respondent prayed that the appeal be dismissed with costs.

# **Consideration of the appeal.**

- 13. I have read the record of the lower Court, the judgment, pleadings, evidence on record and submissions by both Counsel. This Court is required under Section 80 of the Civil Procedure Act Cap 282 to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. See: *F. Zaabwe v Orient Bank Ltd CACA No. 4 of 2006* (supra). - 14. I shall therefore proceed to re-appraise the evidence and come to my own conclusion as required by law. In so doing, I am of the view that the ground stated in the Memorandum of Appeal sets forth the following question, a determination of which will dispose of this appeal: *Whether the Appellant's cattle destroyed the Respondent's garden of beans?* - 15. Court shall therefore proceed to answer the above question. The Appellant's argument is that whereas it might be true the Respondent's garden was destroyed by cows, he did not produce evidence to show that the cows belonged to the Appellant. That the Respondent ought to have produced the evidence of the mother and or the children who were in the garden to corroborate his evidence. That the only eye witness was PW4 but in his evidence, he never at all made it clear to Court that the cows belonged to the Appellant. For the Respondent, it is argued the Learned Trial Magistrate rightly evaluated the evidence on record and indeed it was the Appellant's cattle that destroyed the Respondent's garden. - 16. The Trial Magistrate at page 2 of the Judgment found that it was the cows of the Defendant (now Appellant) that strayed into the garden of the Plaintiff and ate the beans therefrom. The Trial Magistrate stated as follows: -

"*Having carefully evaluated all the evidence presented before me by both the Plaintiff, his witnesses and the Defendant who did not call any witness, I will rely on the evidence of Mr. Lubega Mukaya (PW4) who is related to both the Plaintiff and Defendant in one way or another.*

*Lubega Mukaya (PW4) told Court that on 13/5/2021 around 4:00pm while in his garden he heard an alarm coming from down side of his garden and responded to it.*


*That when he reached where the alarm was coming from, he saw cows eating the Plaintiff's garden of beans at flowering stage and that the Plaintiff was trying to impound the cows. That he (PW4) identified the cows to belong to the Defendant Mr. Kaitare. That they decided to take the cows to the LCI Chairman but that they were intercepted by the sons of the Defendant who overpowered them and took the impounded cows. The two sons of Defendant were Paulo and Mugerwa.*

*That he (PW4) then advised the Claimant to go to report to the LCI Chairman.*

*This evidence of PW4 corroborates the evidence of the Plaintiff and since PW4 is a village mate and relative to both parties to this case with no grudge against any of them, his evidence is believable and this Court finds that with the available evidence, the Plaintiff has proofed his case on a balance of probabilities that it was the cows of the Defendant that strayed into the garden of the Plaintiff and at the beans therefrom and that while the Plaintiff assisted by Lubega Mukaya in escorting the impounded cows to the LCI Chairman, they were violently attacked by the two sons of the Defendant Paulo and Mugerwa who overpowered them and the two Paulo and Mugerwa took the impounded cows from them (Plaintiff and Lubega). This evidence is further cemented by the testimony of the Defendant himself when he told Court in his evidence that on the alleged fateful date, he was not the one who was looking after the cows.*

*This Court decides this case for the Plaintiff against the Defendant for recovery of shs. 2,550,000/= accruing from crop/beans destruction by the cows of the Defendant, with costs of this suit."*

- 17. From the above, in coming to a conclusion that that it was the cows of the Defendant (now Appellant) that strayed into the garden of the Plaintiff and ate the beans therefrom, the Trial Magistrate considered the evidence of PW4- Lubega Mukaya, who is said to be related to the parties, against the evidence of the Appellant. This implies that the Trial Magistrate relied on identification evidence, considered the evidence on record and the testimonies before coming to a conclusion. - 18. Upon a clear scrutiny of the record of proceedings at page 2, the Respondent as PW1 testified that since they were neighbours, he knew the cows belonging to the Defendant (now Appellant). Further at page 4 he testified that the Defendant has both local and crossbreed cows and he still has them at his place. That it was not the first time the cows of the Defendant were damaging his crops and he had previously reported to police but police advised him to file a civil case in Court. - 19. PW2, Ssekito Glacious, testified that he is the LC1 Chairman of Nseese village, Kasaasa Parish, Kifamba sub-county, Rakai District and that he knows both parties. He testified that the Defendant and the Claimant are close neighbours. That on reaching the Claimant's garden, he found that all beans had been eaten off but did not find the cows. That the Defendant told him that it is not him who herds the cows but that he would ask the herdsman. PW3, Bwowe Francis, the Agricultural Officer valued the damage at Ugshs. 2,550,000/=.


- 20. The Appellant (Defendant), as DW1 did not deny owning cows and being a neighbour to the Respondent in the same village, but stated that it was not him grazing the cows on the day alleged. That his cattle are taken to drink water in the afternoon and return at 4:00pm to his farm. On the other hand, PW1, testified that on the 13th day of May 2021 at around 4:00pm, the Appellant's as Defendant's cattle strayed and destroyed his crops eating off his beans. In my view, this timing is also considered in the case as circumstantial evidence, and it corroborated the Respondent's case. - 21. I find that the Respondent's above evidence and testimonies would point to one thing, that it was the cows of the Defendant (now Appellant) that strayed into the garden of the Respondent/Plaintiff and ate the beans therefrom. PW4 clearly identified the cattle he saw as belonging to the Appellant, and his sons. - 22. I therefore find that there was sufficient evidence and the Trial Magistrate rightly found that the Respondent/ Plaintiff proved his case on a balance of probabilities that it was the cows of the Appellant/Defendant that strayed into the garden of the Respondent/Plaintiff and ate the beans therefrom. Therefore, the Trial Magistrate properly evaluated the evidence on record. - 23. The above findings consequently dispose off the appeal. This appeal fails and is hereby dismissed with costs awarded to the Respondent. Therefore, the judgment and orders of the Trial Magistrate are upheld. I make the following orders: - a. This appeal fails and is dismissed. - b. Costs of this Appeal are awarded to the Respondent. - c. The judgment and orders of the Trial Magistrate are upheld.

It is so ordered.

Judgment signed and delivered electronically at Masaka this 20th day of April., 2025