Kakembo & 2 Others v Ssekyanzi & 3 Others (Miscellaneous Application 2608 of 2024) [2024] UGHCLD 285 (4 December 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISC. APPLICATION NO. 2608 OF 2024** *(ALL ARISING FROM CIVIL SUIT NO. 1411 OF 2023)*

- **1. MOSES KAKEMBO (Administrator of the estate of the late Charles Segujja)** - **2. JOYCE NADDAMBA** - **3. ERNEST SENSALIRE SSEMAKADDE ::::::::::: APPLICANTS (Administrators of the Estate of Gabriel Galabuzi suing through their Attorneys)**

#### **VERSUS**

- **1. SSEKYANZI FRED** - **2. KAKEMBO CHRISTOPHER :::::::::::::::::::: RESPONDENTS** - **3. WALUGEMBE WILLIAM** - **4. UGANDA NATIONAL ROADS AUTHORITY**

#### **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA**

#### **RULING.**

#### *Introduction;*

1. The applicants brought this application by way of notice of motion under section 98 of the civil procedure act, section 37 of the

judicature act and order 52 rules 1 and 3 of the civil procedure rules for orders that;

- i) The proceeds from the compensation by Uganda National Roads Authority in respect to land comprised in Block 489 Plots 4331 and 4332 at Sanda Nakawuka, Busiro Wakiso be deposited in an escrow account in either Absa bank. Equity Bank, Centenary Bank or such other bank as the court my direct. - ii) Costs of the Application be provided for.

#### *Applicants' evidence;*

- 2. The application is supported by an affidavit deponed by the 1st applicant which briefly states as follows; - i) That land comprised in Busiro Block 489 Plots 4331 and 4332 which were subdivided from Plot 137 land at Ssanda was at all material times registered in the names of Ernest Ssensalire Ssemakade and Joyce Naddamba being the administrators of the estate of the late Gabriel Galabuzi Bigirwa. - ii) By an irregularly obtained consent judgement between Ssekyanzi Fred and one Mutebi in Civil Suit No. 207of 2021,

it was agreed that the land (Plots 226 and 227 then) be subdivided and transferred in the names of the 1st respondent.

- iii) On the 5th August 2022, the 2nd and 3rd applicants were removed/cancelled from the area schedule on the account of the impugned decree and consent judgement. - iv) On the 7th of November 2023, the consent Judgement was set aside by the Family Division and Plots 226 and 227 were cancelled out and Plot 137 was reinstated. - v) The applicants filed Civil Suit No.1411 of 2023 against the 1st 2nd 3rd and 4th respondents and one Kiyimba Fred for orders that the recovery of the suit land currently registered in the names of Kakembo Christopher, declaration that the registration and transfer of the above suit land in the names of the 1st 2nd and 3rd respondents and one Kiyimba Fred was procured through fraud and many other orders. - vi) That while Civil Suit No. 1411 of 2023 is still pending, Plot 4331 which was registered in the names of Kiyimba Fred was further transferred into the names of the 1st respondent who later transferred into the names of the 3rd respondent.

- vii) That the said land comprised in Block 489 Plot 4331 and 4332 land at Sanda is now subject to compulsory acquisition for the Entebbe-Nakawuka Road project. - viii) That in a letter dated 26th march 2024, UNRA indicates that the 1st respondent was compensated for the suit property and was notified to vacate the said land to enable the construction process. - ix) That however by a letter dated 17th June 2024, the 4th respondent clarified that the 1st and 3rd respondent have never been compensated for the land comprised in Block 489 Plot 4331 and 4332 and that the 4th respondent does not own a certificate of title to the land he claims. - x) That this court has powers to order that the proceeds of compensation from the 4th respondent in respect of land comprised in Block 489 Plot 4331 and 4332 be deposited in an escrow account pending determination of the suit.

## *1st respondent's evidence;*

3. The application is responded to by an affidavit in reply deponed by the 1st respondent which briefly states as follows;

- i) That the compensation for the said land is not due and the body compensating the monies is a government body which is still in existence. - ii) That instead of depositing the money in an escrow account, I have no objection to UNRA holding on the compensation to avoid unnecessary costs and that the 4th respondent has not communicated when the compensation is yet to be done.

## *2nd respondent's evidence;*

- 4. The application is responded to by an affidavit in reply deponed by the 2nd respondent which briefly states as follows; - i) That I am not the registered proprietor on any of the land in dispute neither am I a beneficiary since I was wrongly sued by the applicants. - ii) That I do not have any interest whatsoever in the main suit and it would be just if I was removed as a party to this application.

## *4th respondent's evidence;*

5. The application is responded to by an affidavit in reply deponed by one Isaac Wabulembo, a surveyor at UNRA which briefly states as follows;

- i) That I know during the data capture and field survey exercise for the Kisubi-Nakawuka road project, land comprised in Block 489 Plot 227 and 226 were identified as one of the different parcels of land to be affected by the Kisubi-Nakawuka road project. - ii) That both interests on the respective plots were assessed and valued differently, Plot 227 the registered interest was valued at Ugx 98,842,500 and the Kibanja interest was valued at UGX 194,551,250. Under Plot 226 the registered interest was valued at UGX 19,975,500 and the Kibanja interest valued at UGX 132,010,800. - iii) That whereas the 4th respondent has no objection to depositing the entire compensation sum for both plots in court, its interest is acquiring site for its project not to be stalled by the project affected person's dispute.

## *Representation;*

6. The applicannts were represented by Counsel Winnie Leku holding brief for Alunga Patruck of M/S Alvarez Advocates, the 1st respondent was represented by Counsel Mulumba Hannington of M/S Lule Godfery & Mulumba Advocates, the 2nd respondent was

represented by Counsel Kato Paul Ssemengo, the 3rd respondent was represented by Counsel Andrew Mugumya and the 4th respondent was represented by Counsel Pecos Mutatina.

#### *Issues for determination;*

Whether the proceeds from compensation by UNRA in respect of land comprised in Block 489 Plots 4331 and 433 can be deposited in an escrow account in either Absa Bank, Equity Bank, Centenary Bank or such other bank as court my direct?

## *Resolution and Determination of the issue;*

- 7. Section 37 of the Judicature Act provides thereof that *the High Court shall, in the exercise of the jurisdiction vested in it by the constitution, this act or any other written law grant all such remedies as any of the parties to a cause or matter is entitled to so that in so far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided.* - 8. Section 98 of the Civil Procedure Act provides thereof that nothing in the act shall be deemed to limit or otherwise affect the inherent


power of the court to make such orders as may be necessary to make the ends of justice meet.

9. It is the evidence of the applicants through an affidavit deponed by the 1st applicant under paragraph 6 that the applicants filed Civil Suit No. 1411 of 2023 against the 1st,2nd,3rd,4th respondents and a one Kiyimba Fred for various orders including recovery of land comprised in Busiro Block 489 Plot 4332 and Plot 4331.

10. Additionally, under paragraph 8 of the affidavit in support of the application, it is stated that the land comprised in Block 489 Plots 4332 and 4331 are subject to compulsory land acquisition for the Entebbe-Nakawuka Road project.

11. It appears from the evidence on record that the compulsory land acquisition of the above-mentioned plots of land is not in dispute. From the evidence in an affidavit in reply deponed by Isaac Wabulembo for the 4th respondent, it is stated under paragraph 3 that the suit land was identified as one of the different parcels of land to be affected by the road project.

12. In addition, it is stated under paragraph 6 of the same affidavit that the 4th respondent has no objection to depositing the entire

compensation sum for both plots in court but rather its interest is acquiring the site for its project not to be stalled by the project affected persons' disputes.

13. The 1st respondent also under paragraph 5 of the affidavit in reply states that he has no objection to the 4th respondent holding on the compensation to avoid unnecessary costs.

14. I entirely agree with the submission of learned counsel for the applicant that if the said monies are paid to a specific account of a particular beneficiary or party to the suit, there is a risk of rendering the main suit nugatory. It would also open the case to protracted litigation that may arise if the monies were to be deposited to a particular beneficiary during the pendency of the suit.

15. What would then be left for the plaintiffs if the case by any chance is determined in their favour?

16. Concurrently, the existence of disputes among project-affected individuals should not serve as a basis to halt the progress of the government undertaking. The Court is cognizant that the expeditious execution of the road project is imperative for advancing the public good.

16. Balancing the imperative of public interest in the timely completion of such infrastructure projects with the need to safeguard the rights and interests of the parties to the main suit, the Court affirms the necessity of allowing the project to proceed without unwarranted obstruction.

17. In consideration of the foregoing, this court in exercise of its inherent powers under Section 98 of the Civil Procedure Act and section 37 of the Judicature Act grants this application in the following terms;

i) The 4th respondent is hereby directed to deposit in court the assessed compensation sum in respect of land comprised in Block 489 Plots 4331 and 4332 Land at Sanda, Nakawuka, Busiro Wakiso pending determination of Civil Suit No. 1411 of 2023.

ii) The amount so deposited shall be subject to recovery by the party or parties adjudged entitled to the suit-land, as determined by the court in Civil Suit No. 1411 of 2023.

iii) No orders as to costs.

**I SO ORDER**.


### **NALUZZE AISHA BATALA**

**Ag. JUDGE.**

# **04/12/2024**

# **Delivered Electronically via ECCMIS on the 04th day of**

## **December, 2024**