Kakembo v Kabengwa (HCCS 17 of 2020) [2022] UGHCLD 136 (22 July 2022)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### [LAND DIVISION]

#### HCCS. NO. 0017 OF 2020

**KAKEMBO PHILIP**

**PLAINTIFF**

$\mathbf{V}$

## **KABENGWA FLORENCE**

**DEFENDANT**

# BEFORE: HON. LADY JUSTICE P. BASAZA – WASSWA

#### J U D G M E N T

Representation:

Mr. Lubega Robert for the Plaintiff.

None for the Defendant.

#### Introduction:

- Mr. Kakembo Philip (the Plaintiff) brought the present suit, by ordinary plaint, $[1]$ against Ms. Kabengwa (the Defendant), for alleged breach of an agreement of sale of land. - In his pleadings, Mr. Kakembo contends that; $[2]$ - By an agreement of sale of land dated February 21, 2019 he bought $\overline{i}$ an unregistered piece of land at Katimbo village, Lukuli Parish, Makindye Division, on Mubuke Road, measuring 70ft. by 58ft. by MasamWanny 22/7. $\mathbf{1}$

**70ft**, with a residential house thereon. (Hereinafter referred to as 'the suit property').

- That out of the purchase price of UGX. 70M, he paid UGX. 40M to ii) Ms. Kabengwa, leaving unpaid UGX. 30M. That he looked for Ms. Kabengwa to pay her the said outstanding balance but his search for. her was in vain. - He seeks for the following orders against Ms. Kabengwa; $[3]$ - An order for specific performance of the agreement, for the hand over $i)$ to him of vacant possession of the suit property. - An award of general damages, interest and costs of the suit. ii) - In the alternative, an Order that Ms. Kabengwa refunds to him the iii) sum of **UGX. 40M** that he claims he paid to her, with interest thereon at the commercial rate of 25% per annum. - Although duly served with court process by way of substituted service1, Ms. $[4]$ Kabengwa did not file a defence, nor did she attend court. The hearing of this suit thus proceeded ex -parte of her under the provisions of Order 9 Rules

10 & 11 (2) of the CPR.

parambamm 22/7.

&lt;sup>1 See the affidavits of service by a one Achom Cissy dated July 8, 2020 and May 6, 2022 together with the accompanying extracts of the Daily Monitor of March 4, 2022 & May 4, 2022 respectively.

#### Issues for determination:

- There are two (2) issues for this Court's determination; [5] - Whether there was breach of an agreement of sale of land by the $1.$ **Defendant?** - Whether the Plaintiff is entitled to the remedies he seeks? $2.$

#### Determination of issues:

Issue No. 1: Whether there was breach of an agreement of sale of land by the **Defendant?**

- PW1: Mr. Kakembo (36), the sole witness in this case, testified that by a sale $[6]$ agreement dated February 21, 2019 (EXB PE 1) between Ms. Kabengwa and himself, he paid to her a 1st installment of **UGX. 30M** on the day of execution of the agreement, and that later, on March 3, 2019 he paid her a 2nd installment of **UGX. 10M** at a restaurant in Nsambya. - He testified further that the payment of the 1st installment was witnessed by $[7]$ a lawyer, a one Balikuddembe, and by Ms. Kabengwa's Daughter; a one Joan, and by a broker; a one Brian. That the payment of the $2nd$ installment was acknowledged by all Ms. Kabengwa's children; the heir to her husband, a toddler (sic) and her daughter Joan.

pacamblumm22/7.

- He also testified that he paid an additional sum of **UGX. 3M** to Ms. [8] Kabengwa, which brought his total payments to her to **UGX. 43M.** That he left unpaid a balance of UGX. 27M out of the purchase price of UGX. 70M. - He stated that when he paid the 2nd installment to Ms. Kabengwa, she $[9]$ undertook to hand over the suit property to him within a week from that date, but later gave excuses until a month elapsed. Whereupon he ran out of patience and engaged the Police to track her down, but in vain. That by which time, Ms. Kabengwa had stealthily moved her family to another location.

## Submissions of Counsel on issue No. 1:

Mr. Lubega; learned Counsel for the Plaintiff filed written arguments to the $[10]$ effect that Ms. Kabengwa was in breach of the agreement of sale when she left the suit property and handed it over to unknown people without the Plaintiff's consent. He cited Clauses 1, 2 & 5 of the sale agreement. (PE 1), and relied on a number of authorities.

#### Analysis by this Court:

I have carefully assessed the evidence adduced by Mr. Kakembo and I find $[11]$ that his claim; 'that he entered into an agreement for the sale of the suit property with Ms. Kabengwa', is a claim that is supported by the existence of the sale agreement itself' (PE. 1). Massimil umm 22/7.

- I further find that his claim 'to have paid UGX. 40M to Ms. Kabengwa on $[12]$ 21/02/2019 and on 03/03/2019 in two installments of UGX. 30M and UGX. 10M respectively', is also supported by both PE.1, and by the acknowledgments of receipt thereof by Ms. Kabengwa. Refer to the acknowledgments at the back of **PE 1.** - However, I did not find any proof of payment of the alleged additional sum $[13]$ of **UGX. 3M.** That allegation is not supported anywhere and only remains a mere assertion. In any case, that alleged payment of UGX. 3M was not pleaded in the plaint. It only sprung up at the hearing of this suit, and is as such, a departure from pleadings and cannot be sustained.

'A party is expected and is bound to prove the case as alleged by him. He will not be allowed at the trial to change his case or set up a case inconsistent with what he alleged in his pleadings'.

Per Oder, JSC in Interfreight Forwarders (U) Ltd v East African Development Bank2. Also see Akisoferi Biteremo v Damscus Munyanada Situma3.

It is also trite law that he who alleges or asserts must prove his / her allegations. He / she is bound to prove the existence of that fact which he / she asserts. .....

See sections 101- 103 of the Evidence Act4.

In view of the above, it is my conclusion therefore, that Ms. Kabengwa $[14]$ who received from Mr. Kakembo, part payment of UGX. 40M out of the machine mm 22/3.

&lt;sup>2 SCCA No. 33 of 1992

&lt;sup>3 SCCA No. 15 of 1991

&lt;sup>4 Cap 6 of the Laws of Uganda.

purchase price of UGX. 70M, is indeed in breach of the said agreement of sale of the suit property (PE. 1) after failing, and still fails, to hand over to Mr. Kakembo vacant possession of the suit property, contrary to clause 3 of PE. 1.

- Under clause 3 of PE 1, Ms. Kabengwa undertook to hand over to Mr. $[15]$ Kakembo vacant possession of the suit property at the execution of the agreement of sale dated February 21, 2019. It is now two (2) years and some months since then, yet she has failed to perform that obligation. - In the result, issue No. 1 is held in the affirmative. Ms. Kabengwa is in $[16]$ breach of the agreement of sale (PE 1) of the suit property.

# Issue No. 2: Whether the Plaintiff is entitled to the remedies he seeks?

- Having concluded as I have under issue No. 1, it follows that Mr. Kakembo $[17]$ is entitled to relief against Ms. Kabengwa. The question this court has to determine therefore is; the nature and extent of such relief. - First Mr. Kakembo seeks for an order for specific performance of the $[18]$ agreement (PE 1). He seeks that Ms. Kabengwa be ordered to hand over to him vacant possession of the suit property. - I have considered the factors below, and I find that this prayer for specific $[19]$ performance of the agreement, is untenable.

Macmul Wann 22/7.

Court visited the locus on June 22, 2022 and discovered that; contrary $i)$ to the testimony of PW1, who told court that the suit property was an abandoned property, the suit property was in fact occupied by a third party, an occupant with his family, allegedly since December 2019.

The occupant identified himself as a one Kasereka Kamuha Paulin and claimed that he was the owner of the suit property, and that he bought it from a one **Tumwine Abel** in December 2019.

An order for specific performance would tantamount to issuing an ii) eviction order against the said 3rd party who was never given an opportunity to be heard.

Had the Plaintiff and his Counsel exercised prudence at the appropriate time, which they failed to do, they ought to have applied to join both Kasereka Kamuha Paulin and Tumwine Abel as codefendants in this suit. In that way, all questions of ownership and possession of the suit property would be adjudicated upon and resolved. As it were, they did not. In the absence of doing so, an eviction order against the said duo or any one of them, cannot be To do so would be a derogation from the fundamental made. principle 'that no person shall be condemned unheard'. (Arts. 28 & 44 of the 1995 Constitution of the Republic Uganda).

HaramWamm 22/4.

$\overline{7}$

- The provisions of **sec. 64 (2) of the Contracts Act, 20105** prohibit the iii) remedy of specific performance in circumstances such as are manifest in this case, as described in (i) & (ii) above. - In the premises, and also since Ms. Kabengwa warranted in the agreement [20] (PE. 1), under clause 5 (ii) $^{6}$ , that she would refund the amount paid to her by Mr. Kakembo, I find this relief apt. and do hereby grant it. - In addition, I will award general damages on account of the anguish and $[21]$ frustration that Mr. Kakembo asserts that he suffered resulting from the actions of Ms. Kabengwa. - In my assessment, indeed anguish and frustration are a natural consequence [22] resulting from the Plaintiff paying **UGX. 40M** towards the purchase of a residential house that he has never possessed, where the one who should have handed over to him possession, has absconded, and taken flight to some unknown place. To this end, I find an award of **UGX. 5M** appropriate. In arriving at this figure, I have looked at and taken into account similar awards made in various previous decisions, involving similar circumstances.

#### Decision of Court:

In the final result, Judgment is hereby entered for the Plaintiff; Mr. Kakembo [23] against Ms. Kabengwa (the Defendant) in the following terms; Marin mm 22/7

&lt;sup>5 Act No. 7 of 2010

&lt;sup>6 Under Clause 5 (ii) of PE 1, it was agreed that a refund would be made by Ms. Kabengwa to Mr. Kakembo in the event of any 3rd party claims, or any failure to attain quiet enjoyment of the suit property by Mr. Kakembo.

- Ms. Kabengwa is Ordered to immediately refund to Mr. Kakembo the $1.$ sum of UGX. 40M (forty Million) that he paid to her as part payment towards the purchase of the suit property. - Ms. Kabengwa is also ordered to pay to Mr. Kakembo; $2.$ - General damages of UGX. 5M (Five Million) for breach of the $i)$ agreement of sale of the suit property. - Interest at the rate of 18% per annum, on the amount of UGX. $\ddot{\text{ii}}$ 40M ordered to be refunded under clause 1 above, calculated from March 3, 2019 until the date payment is made in full. - Interest at 6% per annum on the amount of UGX. 5M awarded iii) as general damages, calculated from the date of this Judgment, until the date payment is made in full. - Costs of this suit. $iv)$

I so Order,

Maghill mm 247.

# P. BASAZA - WASSWA **JUDGE**

July 22, 2022

Judgment delivered via e-mail and uploaded on the ECCMIS system.