Katongole v Commissioner Land Registration (Civil Miscellaneous Application 3 of 2024) [2024] UGHC 695 (13 June 2024)

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MPIGI

### **MISCELLANEOUS APPLICATION NO. 003 OF 2024**

KATONGOLE LAWRENCE...................................

### **VERSUS**

#### COMMISSIONER LAND REGISTRATION....................................

### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

### Ruling

The applicant brought the instant application by way of Notice of Motion under Section 167 of the Registration of Titles Act, Section 98 of the Civil Procedure Act, Order 52 Rules 1 and 2 of the Civil Procedure Rules against the respondent seeking the following orders:

- 1. That a vesting order be issued in favour of the applicant in respect of land comprised in Block 92 Plot 22 Mawokota. - 2. That the respondent enters the applicant's name in the register as the registered proprietor of the land. - 3. Costs of the application be provided for.

The application is supported by an affidavit sworn by the applicant and the grounds briefly are as follows;

- 1. That the applicant bought the above mentioned land in the year 1966 from Lwomwa Kezekia S. Kagwa and Kiingi Leubeni M. who are currently the registered proprietors at a consideration that was fully settled. - 2. That the said Lwomwa Kezekia S. Kagwa and Kiingi Leubeni M. were/and are registered on the said land title as joint tenants. - 3. That after the said purchase, the applicant took possession of the said land till date and is currently using the same for commercial use. - 4. That later Lwomwa Kezekia S. Kagwa passed on in the year 1967 and Kingi Leubeni passed on the year 1989. - 5. That prior to the death of the late Lwomwa Kezekia S. Kagwa and Kingi Leubeni, the said land had not yet been transferred into the name of the applicant. - 6. That the applicant has lived, existed on the said land for all that period of time without any challenges or interference.

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7. That it is in the interest of justice that this application is granted.

The affidavit in reply was sworn by Kankaka Robert Kizza, a senior Registrar of Titles in the office the respondent, who stated as follows;

- 1. That the respondent is the official of government charged with the statutory duty of keeping the Land Register, registration of dealings in land and maintaining the sanctity of the register. - 2. That the applicant should be in active possession with the entry acquiesced by the vendor and that such vendor should be dead or residing out of jurisdiction or he or she cannot be found. - 3. That the status of the land that is a subject of this application to wit; Mawokota Block 92 Plot 22, is that it is registered in the names of Kezekia S. Kagwa Lwomwa & Leubeni M. Kiingi of Natete Kibuga, Kyadondo as joint tenants with no survivorship who got registered thereon on the 20<sup>th</sup> day of October, 1967 vide instrument No. KLA 48577. - 4. That the said land was encumbered with a lease of 49 years in favour of Sebastio Diedade Miranda of Mpigi with effect from 13<sup>th</sup> August, 1955 which lease expired. - 5. That the claims of the applicant have to be investigated by this court through visiting locus and in the event court finds that the application raises sufficient grounds that warrant the issuance of the orders sought, the respondent shall comply with the orders given. - 6. That the applicant is seeking for costs against the respondent which greatly prejudices her duties since she has no personal interest in the land, the subject of the application save for being the custodian of the lands register and as such, court should absolve the respondent from costs.

# Representation:

Ms. Esther Nalunkuma appeared for the applicant, no representative of the respondent was in court. The applicant filed written submissions.

# Submissions:

It was submitted for the applicant that he bought land Block 92 Plot 22 Mawokota from the late Lwomwa Kezekia S. Kagwa and Kiingi Leubeni M. who were joint tenants are currently the registered proprietors at a consideration that was fully paid. That at the time of the demise of the vendors the land had not yet been transferred into the name of the applicant. However, after the purchase, the applicant took possession of the said land till date where he is using it for commercial use unchallenged since 1966.

Further, that the applicant applied to registrar to be registered on the certificate of title and he was advised to apply to court for a vesting order. That the whereabouts of the vendor's relatives are unknown and as such they cannot be traced. Counsel prayed that in the circumstance the application be allowed.

The law:

Section 167 of the Registration of Titles Act provides that;

"If it is proved to the satisfaction of the registrar that land under this act has 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 been acquiesced in by the vendor or his or her representatives, but that a transfer has never 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, the registrar may make a vesting order in the premises and may include in the order a direction for payment of such an additional fee in respect of assurance of title as he or she may think fit. and the registrar upon the payment of that additional fee, if any, shall effect the registration directed to be made by section 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 166 in respect of the vesting orders mentioned there."

The case of Aida Najjemba v. Ester Mpagi, Miscellaneous Application No. $74/2005$ , lays down the conditions to be satisfied for a vesting order to be issued as follows:

- a. That the land must be registered under the Registration of Titles Act and the purchaser must have paid the whole of the purchase price to the vendor. - b. That the purchaser or those claiming under him or her have taken possession of the purchased land. - c. That the purchaser has entered the land and the entry has been acquiesced in by the vendor or his or her representative. - d. That the transfer of the property has not been executed because the vendor is dead or is residing out of jurisdiction or cannot be found.

# Resolution:

I have carefully considered the application, the affidavit for and against the application, the submissions for the applicant, and all the documentary evidence on record. The major issue for resolution in this application is whether this application is a proper case for issuing a vesting order? 不耐

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The applicant applied on the $19^{th}/10/2023$ to have the land transferred into his name but the respondent declined to effect the transfer and advised the applicant to come to court to first prove his case. As rightly submitted for the applicant, it is trite law that the applicant before invoking the inherent jurisdiction of this court in an application of this nature, he or she must have applied first for a vesting order to the Commissioner Land Registration who for some reason must have declined to exercise his or her powers under Section 167 of the Registration of Titles Act. (See: Mutyabe v. Kayimbye & Another, Miscellaneous Cause No. 40 of 2018 where it was held that; Section 167 of the Registration of Titles Act makes it a procedural prerequisite that applications of this nature must be made to the commissioner land Registration before coming to court).

In the affidavit in reply to the application under paragraph 5, it was confirmed that the land comprised in Mawokota Block 92 Plot 22, is registered in the name of Kezekia S. Kagwa Lwomwa & Leubeni M. Kiingi of Natete Kibuga, Kyadondo as joint tenants with no survivorship who got registered thereon on the 20<sup>th</sup> day of October, 1967 vide instrument No. KLA 48577. A certified copy of the duplicate certificate of title was attached there to as Annexture "A".

Additionally, that the said land was encumbered with a lease of 49 years in favour of Sebastio Diedade Miranda of Mpigi with effect from 13<sup>th</sup> August, 1955 which lease expired.

The applicant is said to have been on the land for over 40 years without being challenged by anyone. He attached to the application the death certificates of the vendors. A search was conducted in the land registry and according to the search certificate dated the 13<sup>th</sup>/9/2023 as attached to the application the registered proprietors are indicated as Lwomwa Kezekia S. Kagwa and Kiingi Leubeni M. who sold to the applicant. The applicant stated that the vendors were paid the full consideration and there is no outstanding balance. That upon purchase he immediately utilized the land up to date for commercial purposes.

According to the submissions for the applicant he is said to have enjoyed a quiet and peaceful enjoyment of his land without any interferences since the date of purchase of the same in 1966 to date. This was also confirmed by the Local council chairperson of the area. However, the transfer to have the title in the applicant's name could not be effected by the respondent because the vendors have since passed on and the whereabouts of their relatives are unknown.

It is therefore my finding that the applicant has satisfied all the conditions required before a vesting order can be issued.

I accordingly allow this application in the following terms;

- 1. That a vesting is issued in favour of the applicant in respect of land comprised in Block 92 Plot 22 Mawokota. - 2. The respondent is ordered to enter the applicant's name in the register as the registered proprietor of the land. - 3. The applicant is to meet the costs of the transfer and of this application.

I so order.

OYUKO ANTHONY OJOK

JUDGE

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