Karema and 2 Others v Karema (HCT-05-CV-MA 316 of 2022) [2024] UGHC 332 (17 May 2024)


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-MA-0316-2022** 5 **(ARISING FROM HCT-05-CV-CS-0040-2014)**

| | 1.<br>JANE KAREMA RUKEERA | | | |----|------------------------------------------------------------------------------|------------|--| | | 2.<br>FLORENCE KAREMA | | | | | 3.<br>ANNA KAREMA ---------------------------------------------------------- | APPLICANTS | | | 10 | | VERSUS | | | | DR. NATHAN KAREMA ------------------------------------------------------ | RESPONDENT | | | | | AND | | | | THE COMMISSIONER LAND REGISTRATION -----------<br>NOMINAL RESPONDENT | | | | | | | |

15 **Before:** Hon. Justice Nshimye Allan Paul M.

#### **RULING**

#### **REPRESENTATION**

The Applicants were represented by M/s Pearl Advocates & Solicitors, while the

20 Respondent (Dr. Nathan Karema) was represented by M/s Kahungu-Tibayeita & Co Advocates.

#### **BACKGROUND**

The Applicants brought this Application under Section 98 of the Civil Procedure Act

- 25 Cap 71, Section 33 of the Judicature Act Cap 13, Sections 168 & 177 of the Registration of Titles Act Cap 230, and Order 52 Rules 1&3 of the Civil Procedure Rules SI 71-1 seeking orders that; - 1. Consequential orders be made against the Respondent Dr. Nathan Karema, and the Nominal Respondent, that respective certificates of title of land - 30 comprised in Block 5 Plots 84,85,86,87,88,89,90,91,92,93,94,95,96,97,98 and 99 belonging to the Applicants and other beneficiaries of the estate of the late Daudi Karema as decreed by Court on 3rd September, 2020 and sealed on 17th

September, 2020 be registered in their names from the names of Dr. Nathan Karema.

- 2. The Nominal Respondent registers the Applicants and all other beneficiaries of the estate of the late Daudi Karema as the proprietors of the respective plots in - 5 1 above and effects changes in the Register accordingly. - 3. Costs of this Application be provided for.

The Application is supported by an affidavit deponed by Jane Karema Rukeera the 1 st Applicant. It was opposed in an affidavit deponed by Dr. Nathan Karema, the 10 Respondent.

### **GROUNDS**

The grounds as stated in the Notice of Motion are;

- 1. That Civil Suit No.0040 of 2014 filed at Mbarara High Court was resolved by 15 consent of the parties on 03/09/2020 and the consent Decree sealed on 17/09/2020 whereby land comprised in LRV 1345 Folio 7, Isingiro Block 5, Plot 21 at Birere Isingiro registered in the 1 st Respondent was to be sub-divided and respective shares registered in names of the respective beneficiaries. - 2. That Daudi Karema and Evelyn Karema left ten children namely; Nathan Karema, - 20 Jackson Karema (deceased), Grace Karema Rwakajara (deceased), Alice Ganafa Karema (deceased), Jeska Karema Rwabuganda, Anna Karema, Florence Karema Byanyima, Jane Rukeera Karema and John Karuhanga Karema (deceased with no beneficiary). - 3. That the terms of the consent dated 17th September, 2020 were clearly stated - 25 as follows; - a) That land comprised in LRV 1345 Folio 7, Isingiro Block 5, Plot 21 at Birere Isingiro measuring approximately 30.2 hectares registered in the names of Dr. Nathan Karema is property of the estate of the late Daudi Karema to which all parties to this case and others not party to this case are 30 beneficiaries. - b) That Dr. Nathan Karema agreed and consented that he shall immediately handover the certificate of title for the land mentioned in paragraph 7(a) above to be subdivided and shared equally amongst all beneficiaries to the estate.

- c) That Dr. Nathan Karema shall sign mutation, transfer forms and also submit all necessary documents to be used in the sub division of the land transfer and registration into the names of different beneficiaries. - d) That the lawyers of the respective parties herein mentioned shall jointly 5 appoint the surveyor to carry out the subdivision process under the Advocates' supervision. - e) That each beneficiary shall equally contribute to the surveyor's fees to be agreed upon by the Advocates and pay for transfer of their share of land into their names. - 10 f) That the Defendants shall withdraw the caveat on the title of the suit land. - 4. That M/s Melidan Surveyors, Plot 36 High Street Mbarara were appointed as joint surveyors to carry out the subdivision of the suit land. - 5. That the Respondent refused to hand over the certificate of title until the Applicants applied for execution under EMA No.008 of 2021, that he handed 15 over the certificate of title. - 6. That the Applicants through their lawyers requested the Respondent to contribute to the ground rent which was assessed by the Chief Government Valuer at UGX13,950,000/= (Uganda Shillings Thirteen Million Nine Hundred Fifty Thousand only) that was communicated to the Senior Lands Management 20 Officer Isingiro District Local Government, but the Respondent did not make his - contribution as a way to frustrate the execution of the Court Decree. - 7. That the surveyor appointed to carryout subdivision has completed the subdivision of the suit land which has resulted into 14 land titles. The Applicants' lawyers wrote to the lawyers for the Respondent requesting the Respondent to - 25 submit transfer forms to enable respective beneficiaries get their shares transferred and registered in their names but the Respondent has either refused or ignored their request. - 8. That the Respondent has not signed and handed over 14 transfer forms, photocopies of his national identity card and passport photographs to enable - 30 respective beneficiaries to the estate to transfer and register their titles into their names as decreed by Court. - 9. That the nominal Respondent has the statutory authority and powers to effect changes in the register of titles in the country.

Page **3** of **11**

10. It is just and equitable that this Application be granted.

# **SUBMISSIONS**

The parties filed written submissions. The Applicants filed their submissions on 27th March, 2023, while the Respondent filed his submissions on 3 rd 5 April, 2023. The Applicants rejoined on 17th April, 2023.

# **Applicants' submissions**

Counsel for the Applicants submitted that the purpose for seeking consequential orders was to give effect to the consent judgment/decree of 17th 10 September, 2020 wherein it was agreed that land comprised in LRV 1345 Folio 7, Isingiro Block 5, Plot 21 at Birere Isingiro measuring approximately 30.2 hectares registered in the names of Dr. Nathan Karema is the property of the estate of the late Daudi Karema to which beneficiaries have a share. That it was further agreed that the said land 15 be subdivided so that every beneficiary gets a share, the Respondent surrenders the certificate of title and signs transfer forms for the new subdivided plots. That the Respondent has been non-compliant and has refused to undertake his

- obligations as stipulated in the said decree. Counsel pleaded for Court to invoke its powers under **Section 33 of the Judicature Act Cap 13** to grant the sought orders 20 and relied on **BANK OF UGANDA AND 2 OTHERS VS BASSAJJABALABA HIDES &** - **SKINS LTD & OTHERS HCT-00-CV-MA 566 OF 2008**. Counsel also prayed for costs of the Application under **Section 27 of the Civil Procedure Act Cap 71**.

# **Respondent's submissions**

Counsel prayed for this Application to be dismissed as regards the 2nd and 3rd 25 Applicants because they did not file any affidavits in support, nor authorize the 1st Applicant to depone an affidavit on their behalf. Counsel relied on **LUGGYA ANDREW VS KIKONYOGO RICHARD AND ANOTHER CA MISC APPLICATION NO.248 OF 2021**.

Regarding merits of the Application, counsel argued that consequential orders are made consequent upon the recovery of land **(see LWANGA VS REGISTRAR OF TITLES [1980] HCB 24)** and that they are sought under Section 177 of the Registration of Titles Act Cap 230. Counsel cited **SSENTONGO MATIA VS MPALANYI**

**AND ANOTHER HC MISC APPLICATION NO.410/2018** for the position that for an Application for consequential orders to succeed, the Applicant must prove ownership of the legal interest and for cancellation of title which are missing in this Application. counsel contended that as per the decree, the land belongs to all beneficiaries who should have claimed it but not the 1st 5 Applicant purporting to represent them. Counsel contended further that this should be a matter of execution before the Deputy registrar and not an Application before this Court and prayed for its dismissal with costs.

#### 10 **Applicants' rejoinder**

In response to the Respondent's objection, counsel submitted that the affidavits of the 2nd and 3rd Respondents would have no value given that all beneficiaries have the same claim and grievances against the Respondent. Counsel cited **NAMUTEBI MATILDA VS SSEMANDA SIMON AND OTHERS MISC APPLICATION N.0430 OF** 15 **2021** for the position that an affidavit should not be filed if it adds very little to the probative force of the other evidence in the case.

In rejoinder to the merits of the case, counsel relied on **KALIBBALA AND ANOTHER VS ATTORNEY GENERAL MISC APPLICATION NO.10 OF 2015** to argue that 20 consequential orders are orders of Court giving effect to a judgment to which they are consequential or resultant therefrom. And thereby the orders sought are to enforce the consent judgment entered in Civil Suit No.40 of 2014. Regarding that the objection that this matter should be for execution and in the wrong forum, counsel contended that the Applications are not intending to execute the Decree 25 but to give effect to the orders in the decree. Counsel reiterated his earlier prayers.

#### **DETERMINATION**

# **Preliminary objection**

I will first deal with the preliminary objection raised by counsel for the Respondent praying for this Application to be dismissed as regards the 2nd and 3rd 30 Applicants because they did not file any affidavits in support, nor authorize the 1st Applicant to depone an affidavit on their behalf.

In principle an application filed by way of a Notice of Motion that is grounded on evidence, is supported by an affidavit in support as is stated In Order 52 Rule 3 of the Civil Procedure Rules.

- 5 The court record shows that the applicants filed a joint application, with the same Advocate firm representing them. The 1st applicant that swore the affidavit in support did not state that she was making it on her behalf and on behalf of the other respondents (see affidavit in reply to motion). This means that the facts in this application are distinguishable from the case of **LUGGYA ANDREW VS** - 10 **KIKONYOGO RICHARD AND ANOTHER CA MISC APPLICATION NO.248 OF 2021** cited by the respondent in support of his preliminary objection, because in the that case (**LUGGYA VS KIKONYOGO**)before the court of Appeal the 1st respondent appeared to swear an affidavit on his behalf and on behalf of the 2 nd respondent without attaching a consent from the 2nd respondent permitting him to swear an - 15 affidavit on his behalf . it is therefore clear that the facts are different, because in the application at hand before this court the 1st applicant does not purport to swear an affidavit on behalf of her co-applicants. - The applicants in their wisdom found the evidence on record as averred by the 1st 20 respondent was sufficient to make out their case, hence did not file other affidavits. What is key is that there is a Notice of Motion, and it is supported by affidavit evidence on court record.

It is trite that **any** affidavit that contains the evidence to be relied upon in an 25 application shall be served with the motion as is stated in Order 52 Rule 3 of the Civil procedure rules, which states that:

"3. Contents of notice.

Every notice of motion shall state in general terms the grounds of the 30 application, and, where any motion is grounded on evidence by affidavit, a copy of **any affidavit** intended to be used shall be served with the notice of motion." (Emphasis mine) I find that the motion in this application is supported by an affidavit, and the 1st applicant did not swear that affidavit in support on behalf of the other applicants. Secondly the applicants are all represented by the same lawyers who did not see any reason to add extra affidavits. I therefore base on the above to overrule the 5 preliminary objection as lacking merit.

**Merits of the application**

In principle the High Court may grant remedies meant to resolve controversy and serve the ends of justice as is provided in section 33 of the Judicature Act.

The evidence on court record by the applicant is that they seek to give effect and implement the consent they signed with the 1st respondent (*see annexture A on both the affidavit in support and the 1st respondent's affidavit in reply*). They claim he has frustrated the allocation of titles into their names, even after the titles have

been subdivided and individual titles made. The 1st 15 respondent does not challenge the consent but is averring that he was not involved in the subdividing of the land.

I have perused the pleadings and I find that there are some facts that are agreed by both parties that will make the resolution of the merits easier. They are;

20 1. The parties both agree in their evidence that a consent decree was entered in HCCS 40 of 2014 (*See paragraph 6 of the affidavit in support , paragraph 2 ( c) of the 1st respondent's affidavit in reply and the consent decree marked annexture A on both the affidavit in support and the 1st respondent's affidavit in reply)*.

25 2. The parties both agree in their evidence that the land comprised in LRV 1348 Folio 7 Isingiro Block 5 plot 21 at Birere Isingiro Measuring approximately 30.2 hectares that was registered in the names of the 1st respondent belonged to the estate of the late Daudi Karema who had children that include both the applicants and the 1st respondent (*see paragraph 1 and 2*

- 30 *of the consent decree attached as annexture A on both the affidavit in support and the 1st respondent's affidavit in reply)* - 3. The parties both agree in their evidence that the 1st respondent was to handover the title of the land in LRV 1348 Folio 7 Isingiro Block 5 plot 21 at Birere Isingiro Measuring approximately 30.2 hectares to be divided into

equal shares for the beneficiaries listed as nine in the consent decree *(see paragraph 3 of the consent decree attached as annexture A on both the affidavit in support and the 1st respondent's affidavit in reply)*.

- 4. The parties both agree that the 1st respondent was to sign the mutation, 5 transfer, and necessary documentation to transfer the beneficiaries' interests into their respective names. *(see paragraph 4 of the consent decree attached as annexture A on both the affidavit in support and the 1st respondent's affidavit in reply)* - 10 The application has thus been brought to operationalize the consent and enable the beneficiaries obtain their individual parts of land from land of the estate of their late father, the late Daudi Kalema, which the 1st resident Dr Nathan Karema had taken for himself alone. - 15 I note that the estate land that comprised in LRV 1348 Folio 7 Isingiro Block 5 plot 21 at Birere Isingiro Measuring approximately 30.2 Hectares is still in the names of the 1st respondent ( Karema Nathan) has since been subdivided several plots *( see paragraph 10 of the affidavit in support)* - 20 The land of the estate of the late Daudi Kalema formerly comprised in comprised in LRV 1348 Folio 7 Isingiro Block 5 plot 21, is now comprised in - 1. LRV MBR 637 Folio 11 Isingiro Block 5 Plot 84 - 2. LRV MBR 637 Folio 15 Isingiro Block 5 Plot 85 - 3. LRV MBR 637 Folio 8 Isingiro Block 5 Plot 86 - 25 4. LRV MBR 637 Folio 7 Isingiro Block 5 Plot 87 - 5. LRV MBR 637 Folio 4 Isingiro Block 5 Plot 88 - 6. LRV MBR 637 Folio 12 Isingiro Block 5 Plot 89 - 7. LRV MBR 637 Folio 5 Isingiro Block 5 Plot 90 - 8. LRV MBR 637 Folio 10 Isingiro Block 5 Plot 91 - 30 9. LRV MBR 637 Folio 3 Isingiro Block 5 Plot 94 10. LRV MBR 637 Folio 13 Isingiro Block 5 Plot 95 11. LRV MBR 637 Folio 14 Isingiro Block 5 Plot 96 12. LRV MBR 637 Folio 6 Isingiro Block 5 Plot 97 - 13. LRV MBR 637 Folio 2 Isingiro Block 5 Plot 98

14. LRV MBR 637 Folio 9 Isingiro Block 5 Plot 99 15. LRV MBR 637 Folio Isingiro Block 5 Plot 100

The details of the above subdivisions are attached as annexture f to the affidavit in support and were done by the applicants as beneficiates after the 1st 5 respondent also a beneficiary allegedly refused to corporate to put into effect the consent.

In my analysis of the above evidence since all the parties in this application agreed in the consent that the suit land is for the estate of the late Daudi Karema, there is no reason why it ought to stay in the names of the 1st 10 respondent, which is now perpetuating a conflict that was otherwise concluded in a consent of all the parties on 3rd September 2020 *(See annexture A on both the affidavit in support and the 1st respondent's affidavit in reply).*

- 15 I have considered the law and evidence and deduced the following; - 1. That there is no evidence that the late Daudi Karema died testate, meaning he left no will . - 2. That the beneficiaries have by a consent decree agreed to share the property of the estate equally. This consent is an order of court now. - 20 3. That the land of the estate of the late Daudi Karema is still registered in the names of the 1st Respondent Nathan Karema, in his individual capacity. - 4. That there is animosity among the beneficiaries that has prevailed paralyzing the operationalization of the consent decree in HCCS 40 of 2014. - 5. That the estate of the late Daudi Karema does not have an Administrator. - 25 6. That some beneficiaries of the estate of the late Daudi Karema passed on leaving behind children. - 7. That the Administrator General is in cases of the estate of an intestate deemed to have a right to letters of administration. - 30 I have considered the above itemized realties in this respect to the estate of the late Daudi Karema and I find that it is in the interest of justice for this court to invoke its inherent powers in sections 17 (2)(c), 33 of the Judicature Act and also consider the law in Section 4 (5)(a) of the Administrator General's Act to appoint the Administrator General as the Administrator of the estate of the late Daudi

Karema for purposes of allocating the land already subdivided among the beneficiaries guided by the law and the wishes of the majority.

I also find that in order for the Administrator General to act as will be ordered by 5 court there is need for the land of the estate of the late Daudi Karema to be registered into the Administrator General's name, this therefore calls for the High Court to invoke its power in Section 177 of the Registration of Titles Act to cause the cancelation of the 1st respondent's name in the titles because it is already a fact agreed in the consent decree by all parties including the 1st respondent that he is 10 not the owner of the land, but rather the land belongs to the estate of the late Daudi Karema, their late father.

- Lastly considering that the 1st respondent did not comply with orders 3 and 4 of the consent decree in HCCS 40 of 2014, which were in his power to initiate he acted in 15 bad faith frustrating the operationalizing of the consent, which would only serve to further deny the beneficiaries of their interest. The 1st respondent hands are therefore not clean and as such he cannot now challenge a subdivision done by vigilant beneficiaries who are fighting to ensure that the consent decree in HCCS 40 of 2014 is put into effect. The subdivision is valid with the road networks therein to - 20 link the created titles are justified since the whole of Uganda is now a planning area as provide in Section 3 of the Physical Planning Act 2010.

In conclusion, I order that;

- 1. The subdivision of land formerly comprised in LRV 1348 Folio 7 Isingiro Block 25 5 Plot 21 is valid. - 2. The land that constitutes the estate of the late Daudi Karema is now comprised in several titles whose details are LRV MBR 637 Folio 11 Isingiro Block 5 Plot 84, LRV MBR 637 Folio 15 Isingiro Block 5 Plot 85, LRV MBR 637 Folio 8 Isingiro Block 5 Plot 86, LRV MBR 637 Folio 7 Isingiro Block 5 Plot 87, 30 LRV MBR 637 Folio 4 Isingiro Block 5 Plot 88, LRV MBR 637 Folio 12 Isingiro Block 5 Plot 89, LRV MBR 637 Folio 5 Isingiro Block 5 Plot 90, LRV MBR 637 Folio 10 Isingiro Block 5 Plot 91, LRV MBR 637 Folio 3 Isingiro Block 5 Plot 94, LRV MBR 637 Folio 13 Isingiro Block 5 Plot 95, LRV MBR 637 Folio 14 Isingiro Block 5 Plot 96, LRV MBR 637 Folio 6 Isingiro Block 5 Plot 97, LRV MBR 637

Folio 2 lsingiro Block 5 Plot 98, LRV MBR 637 Folio 9 lsingiro Block 5 Plot 99 and LRV MBR 637 Folio lsingiro Block 5 Plot 100.

- 3. That the Administrator General is appointed the Administrator of the estate of the late Daudi Karema for purposes of distributing the land already subdivided among the beneficiaries guided by the law, Consent decree in Mbarara HCCS 40 of 2At4 and the wishes of the majority. - 4. That the Commissioner Land Registration is directed under the provisions of Section L77 of the Registration of Titles Act to cancel the entry of the name of Nathan Karema and replace it with the Administrator General as an Administrator of the estate of the late Daudi Karema for the land titles comprised in LRV MBR 637 Folio L1 lsingiro Block 5 Plot 84, LRV MBR 537 Folio 15 lsingiro Block 5 Plot 85, LRV MBR 637 Folio 8 lsingiro Block 5 Plot 86, LRV MBR 637 Folio 7 lsingiro Block 5 Plot 87, LRV MBR 637 Folio 4 lsingiro Block 5 Plot 88, LRV MBR 537 Folio 12 lsingiro Block 5 Plot 89, LRV MBR 637 Folio 5 lsingiro Block 5 Plot 90, LRV MBR 637 Folio 10 lsingiro Block 5 Plot 91, LRV MBR 637 Folio 3 lsingiro Block 5 Plot 94, LRV MBR 637 Folio 13 lsingiro Block 5 Plot 95, LRV MBR 637 Folio 14 lsingiro Block 5 Plot 96, LRV MBR 637 Folio 6 lsingiro Block 5 Plot 97, LRV MBR 637 Folio 2 lsingiro Block 5 Plot 98, LRV MBR 537 Folio 9 lsingiro Block 5 Plot 99 and LRV MBR 637 Folio lsingiro Block 5 Plot 100. - 5. The parties should extract this order and serve it along with the consent decree in Mbarara HCCS 40 of 2AL4, on the Administrator General's office in Mbarara as well as on the Commissioner land registration through the Registrar Lands at the Mbarara zonal land office. - 6. The 1.'t respondent shall pay the applicants costs of this application. 25

NSHIMYE ALLAN PAUL M. JUDGE 17-05-2024

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