Karuhanga & Another v Rumomo & 5 Others (Civil Suit 22 of 2022) [2023] UGHC 443 (7 September 2023)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA

## HOLDEN AT RUKUNGIRI

## HCT CIVIL SUIT NO.022/2022

# (FORMERLY HCT CIVIL SUIT NO.016/2018 AT KABALE HIGH COURT)

### 1. KARUHANGA DAVID

- 2. KIRIISA AMOS - 3. KABAJUNGU JOVIA::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. RUMOMO GORETI - 2. NKABAMANYA VINCENT - 3. NATUKWATSA BRIAN - 4. KADUGARA DADURENSIO - 5. TUKAIHAIRWA AMBROSE a.k.a KAPABU - 6. KURINEHO KASHUMBUSHA::::::::::::::::::::::::::::::::::::

BEFORE: HON. JUSTICE TOM CHEMUTAI, JUDGE.

#### **RULING**

#### **Brief facts**

The Plaintiffs filed this suit against the Defendants for a declaration of ownership of the suit land, declaration of trespass against the Defendants, permanent injunction, eviction order, general damages, interests and costs of the suit. It is the plaintiffs' case that they are sons and daughter of Kakoraho Stanley and his wife Tinditumire Viviana (deceased) who were customary owners of the suit land at Kyashamire village, Rwanyambari cell, Kyamakanda parish, Buyanja Sub County, Rukungiri District. It is their case that their parents died in the 1980s but before their death they had migrated with their entire family from the suit land to Kiruhura District in search for bigger land and left the suit land in custody of their father's brother Baryahikaki Rurema Petero as a caretaker.


The Defendants disputed the Plaintiffs' claim in their defence and contended that the Plaintiff's suit is time barred and the suit does not disclose a cause of action against the Defendants. It is further the Defendants case that the suit land belonged to Baryahikaki Rurema Petero who utilized the same from time immemorial until in 2013 when he died and left the 1<sup>st</sup>, 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup> Defendants as beneficiaries and have utilized the suit land since they were born without any claims from the Plaintiffs during the lifetime of to Baryahikaki Rurema Petero. The 1<sup>st</sup> and 2<sup>nd</sup> Defendants are children of late to Baryahikaki Rurema Petero and 3<sup>rd</sup> and 4<sup>th</sup> Defendants' are children of the 1<sup>st</sup> and 2<sup>nd</sup> Defendants respectively. It is their case that to Baryahikaki Rurema Petero distributed the suit land among his children before his death. The Defendants prayed that the suit be dismissed with costs.

#### Representation

During hearing of this matter, the Plaintiffs were represented by M/S Bwatota Bashonga & Co. Advocates/Solicitors and the Defendants were represented by M/S Ahimbisibwe & Agaba Co. Advocates.

Time lines were given for parties to file written submissions and both parties complied and Court shall take the said submissions and authorities into consideration.

At scheduling, the parties agreed upon the following issues which Court finds convenient in disposing of this matter.

- 1. Who is the rightful owner of the suit land? - 2. Whether the defendants committed trespass on the suit land? - 3. What remedies are available to the parties?

Before addressing the said issues, Court has taken note of the preliminary objections raised by counsel for the Defendants to the effect that the suit is barred by limitation and that it does not disclose a cause of action against the defendants.

#### **limitation**

Limitation of actions in respect of claims for recovery of land is provided for under Section 5 of the Limitation Act. It is limited to 12 years from the date on


$\mathcal{I}$

which the cause of action arises. Section 11 of the Limitation Act is to the effect that the right of action in recovery of land arise where there is adverse possession (hostile and unauthorized possession by another person).

$\mathcal{L}_{\mathcal{S}}$

It is trite law that court only needs to look at the pleadings alone to determine the issue of limitation. I have perused the plaint, and reply thereto. It reveals that the Plaintiffs inherited the suit land from their parents the late Kakoraho Stanley and late Tinditumire Viviana who were the customary owners and that the said parents died in the 1980s but before their death, they left the suit land in the custody of Baryahikaki Rurema Petero, as caretaker.

I have also perused the written statements of defence and it reveal that the 1st-4<sup>th</sup> Defendants, who are children and grand-children of Baryahikaki Rurema Petero contend that their father owned the land and before his death he distributed the same to them. The $5<sup>th</sup>$ - $7<sup>th</sup>$ Defendants are purchasers of the suit land.

It is clear that the cause of action arose in the 1980s. This suit was filed in 2018. after 38 years. This is contrary to section 5 of the limitation Act which requires actions for recovery of land to be brought within 12 years from the time the cause of action accrued. Therefore, this plaint is rejected as per Order 7 Rule 11 of the Civil Procedure Rules, S. I-71-1.

In the final result, Civil Suit 022/2022 is declared barred by limitation Act and it is dismissed with costs to Defendants.

Delivered at Rukungiri this....................................

HON. JUSTICE TOM-CHEMUTAI JUDGE


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