Kambale v Kabwimukya and Another (Misc Cause 8 of 2024) [2024] UGHC 1029 (30 October 2024)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **MISC. CAUSE NO. 0008 OF 2024 KAMABALE MOSES ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

#### 6 **1. KABWIMUKYA DOMITILLA MUKONJO**

# **2. COMMISSIONER FOR LAND REGISTRATION::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA**

### 9 **RULING**

#### **Introduction:**

- 12 This is an application under Section 71, 72 and 167 of the Registration of Titles Act, Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act and Order 52 rules 1 & 3 of the Civil Procedure Rules seeking: - 15 **1. An order directing the Commissioner Land Registration to issue a certificate of title for land comprised in Block 113, Plot 154 at Mwibale, Burahya, Kabarole District to the applicant.** - 18 **2. A vesting order vesting the land comprised in Block 113, Plot 154, Land at Mwibale, Burahya, Kabarole District in the applicant.** - **3. That the costs of taking out the application be provided for.**

#### 21 **Grounds of the Application:**

The application is supported by the affidavit of Mr. Kamabale and three 24 supplementary affidavits of Rukaada Charles Abooki, Godwin Nyamugabwa and Niwenge Christine where it is stated as follows:


- 1. On 17th January 2009, the applicant purchased land measuring one acre from Godwin Nyamugabwa and in 2020, the applicant engaged a surveyor to 3 process the certificate of title only to discover that the said land was registered under the Registration of Titles Act and comprised in Block 113, Plot 154 at Mwibale, Burahya, Kabarole District. - 6 2. The applicant later established that before his death, Kabwimukya Domitira Mukonjo had sold the land to the late Namugabwa Charles around 1989 but did not transfer the titles into his names. Godwin Nyamugabwa had inherited 9 the said land from his father Namugabwa Charles. - 3. The applicant fully paid for and has been in occupation of the said land for a period of over 14 years without any interruption and has developed the said 12 land as his residential home. - 4. The duplicate certificate of title was irretrievably lost and when he applied to for the same, it was rejected. - 15 5. That he has failed to establish the whereabouts of Domitilla Kabwimukya Mukonjo or any surviving relative. - 6. It is just, fair and equitable that this application is granted. - The application was served upon the 2nd 18 Respondent per the return of service on record attached to the affidavit of service of Aliija Bosco.

#### 21 **Representation and Hearing:**

The applicant was represented by M/s Acellam Collins & Co. Advocates and filed 24 written submissions to that effect.


**Issues:**

- **(1)Whether the application is maintainable against the 1st Respondent.** - 3 **(2)Whether there is a proper case for grant of a vesting order over land comprised in Block 113, Plot 154, land at Mwibale, Burahya, Kabarole District.**

#### 6 **Consideration by Court:**

#### **1. Whether the application is maintainable against the 1st Respondent.**

It is stated by the applicant under paragraph 5, that the 1 st Respondent is dead.

In the Tanzanian case of *Babubhai Dhanji Pathak v. Zainab Mrekwe [1964] E. A. 24* court found that a case filed against a dead person is a nullity and of no legal 12 consequence.

In **C. Muttu v. Bharath Match Works AIR 1964 Kant 293** the court observed

- 15 that: *"If he (defendant) dies before the suit and a suit is brought against him in the name in which he carried on business, the suit is against a dead man and it is a nullity from its inception. The suit being a nullity, the writ of summons issued* - 18 *in the suit by whomsoever accepted is also a nullity……. It is immaterial that the suit was brought bona fide and in ignorance of the death of such a person."* - 21 In the Indian *Case of Pratap Chand Mehta v Chrisna Devi Meuta AIR 1988 Delhi 267* the court citing another decision observed as follows: *".... if a suit is filed against a dead person then it is a nullity and we cannot join any legal* - 24 *representative; you cannot even join any other party, because, it is just as if no suit had been filed….. If the case has been instituted against a dead person and that*


*person happened to be the only person then the proceedings are a nullity and even Order 1 Rule 10 or Order 6 Rule 17 cannot be availed of to bring about* 3 *amendment."*

In this case, the 1st Respondent died before institution of this application. It is thus not sustainable against the 1 st 6 Respondent and consequently a nullity. I thus strike out the 1st Respondent as a party to this application and terminate this issue in the affirmative.

### **2. Whether there is a proper case for grant of a vesting order over land comprised in Block 113, Plot 154, land at Mwibale, Burahya, Kabarole** 12 **District.**

Section 151 of the Registration of Titles Act Cap. 240 provides that:

*If it is proved to the satisfaction of the registrar that land under this Act has* 15 *been sold by the proprietor and the whole of the purchase money paid, and that the purchaser has or those claiming under the purchaser have entered and taken possession under the purchase, and that entry and possession have* 18 *been acquiesced in by the vendor or his or her representatives, but that a transfer has never been executed by the vendor and cannot be obtained by reason that the vendor is dead or residing out of the jurisdiction or cannot be* 21 *found, the registrar may make a vesting order in the premises and may include in the order a direction for the payment of such an additional fee in respect of assurance of title as he or she may think fit, and the registrar upon* 24 *the payment of that additional fee, if any, shall effect the registration directed to be made by [section 166](https://ulii.org/akn/ug/act/ord/1922/22/eng@2011-09-02#part_XI__sec_166) in the case of the vesting orders mentioned there, and the effecting or the omission to effect that registration shall be attended*


*by the same results as declared by section 150 in respect of the vesting orders mentioned there.*

In *Aidah Najjemba v Ester Mpagi, C. A. C. A. No. 74 of 2005* it was stated that**:** *"There are 4 conditions provided for under the section in order for the registrar* 6 *to exercise his powers.*

- *(1)The land must be registered under the provisions of the Registration of Titles Act and the purchaser must have paid the whole of the price to the* 9 *vendor.* - *(2)The purchaser or those claiming under him or her have taken possession of the purchased land.* - 12 *(3)That the entry into possession by the purchaser has been acquiesced by the vendor or his or her representative.* - *(4)The transfer of the property has not been executed because the vendor is* - 15 *dead or is residing out of jurisdiction or he/she cannot be found."*

The Hon. Justice Andrew Bashaija in *Ronald Oine v Commissioner Land* 18 *Registration, HCMC No. 90 of 2013* held that in addition to the above, the applicant must prove that he or she made an application to the Registrar of Titles who declined to exercise the power conferred upon him or her under section 167 (now 151 of Cap.

- 21 240). This requirement is on account of the fact that the powers under the section are exercisable by the Registrar. - 24 It is my understanding that the requirement that the purchaser or those claiming under him or her have taken possession of the purchased land, also additionally


means that, the purchaser or those claiming under him have to furnish proof of purchase of the land. This is because, the transfer envisaged under section 151 is a

- 3 forced transfer made on condition that the a transfer has never been executed by the vendor and cannot be obtained by reason that the vendor is dead or residing out of the jurisdiction or cannot be found. - 6

In the present motion, the applicant attached a copy of a search certificate as annexure C which confirms that the suit land is registered under the Provisions of 9 the Registration of the Titles Act and described as Burahya Block 113, Plot 154, land

- at Mwibale, Burahya, Kabarole District. The said land is registered in the names of Kabwimukya Domitilla Mukonjo under instrument No. FP3318. The applicant and - 12 those who swore the supplementary affidavits averred that the said Kabwimukya Domitilla Mukonjo died and no relative of the said Mukonjo was traceable. That the suit land was bought by the late Nyamugabwa Charles from the late Mukonjo on - 12 15 th March 1989 and he did not transfer the land to the late Nyamugabwa. That Godwin Nyamugabwa the son of the late Nyamugabwa sold the land in issue to the applicant. The sale was witnessed by the chairperson L. C 1 of the area, Rukaada - 18 Charles Abooki who confirmed the same in the supplementary affidavit on record. That at the time of sale, the seller (Godwin Nyamugabwa) and the applicant were not aware that the land was titled. That when the applicant attempted to have the - 21 land titled, he discovered that the same had a title. That no relative of Mukonjo could be traced and he died before signing the transfer forms. That the applicant made an application to the Registrar of Titles for a vesting order which was rejected by the - 24 registrar of titles (Annexure F) for failure to comply with the requirements under section 151 of the Registration of Titles Act hence the motion at hand.


It is discernable from the pleadings on record that the person who allegedly dealt 3 with the late Mukonjo was the late Nyamugabwa Charles, father to Gowin Nyamugabwa who sold the suit land to the applicant. Therefore, the proper person to lodge an application against under section 151 of the Registration of Titles Act is 6 an administrator of the Estate of Nyamugabwa who dealt with the registered proprietor who allegedly passed on before effecting the transfer of the land into the names of the late Nyamugabwa. Further, there is no sufficient evidence furnished to

9 confirm that Mukonjo is dead, which could be in form of a death certificate. I find it so unsafe to rely only on the evidence of the applicant and the supplementary affidavits on record as confirmation that Mukonjo is dead.

Further and notably, there is no evidence of purchase of the suit land by Nyamugabwa Charles from Mukonjo that has been furnished to this court. The 15 applicant and Godwin Nyamugabwa (son) to the late Nyamugabwa stated that the suit land was bought by the late Nyamugabwa around 1989 and the agreement of purchase was witnessed by Rukaada Charles Abooki who swore a supplementary 18 affidavit, but the said agreement was not presented in court as proof of the alleged sale and purchase. In the absence of cogent and clear evidence as to the acquisition of the suit land from the proprietor by Nyamugabwa, I find that section 151 of the 21 Registration of Titles Act cannot be properly invoked. Additionally, the applicant dealt with Godwin Nyamugabwa whose father allegedly dealt with the proprietor, I believe the claim by the applicant would lie against the said Gowin Nyamugabwa 24 who would then follow the due process of the law to have the title changed from the late Mukonjo to the estate of the late Nyamugabwa and now to the applicant. I find


that the application cannot be maintained under section 151 of the Registration of Titles Act since the applicant did not transact with the registered proprietor.

I this find that this application is improper before court and it is thus rejected. The applicant is advised to follow the proper procedure to get registered on the title. I 6 make no award as to costs. I so order.


Vincent Wagona

9 **High Court Judge FORTPORTAL DATE: 30/10/2024**