Kayiwa v Commissioner Land Registration (Misc Cause 1 of 2024) [2024] UGHC 503 (20 March 2024)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI MISC. CAUSE 001 OF 2024

#### KAYIWA TOM::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# COMMISSIONER LAND REGISTRATION::::: RESPONDENT **BEFORE: HON. JUSTICE OYUKO ANTHONY OJOK**

#### **RULING**

#### **Background**

This is an application for a vesting order brought under S. 167 of the Registration of Titles Act, S.98 of the Civil Procedure Act and O.52 r1-3 of the Civil Procedure Rules, seeking for orders that;

a) A vesting order be issued directing the Respondent to transfer the suit property comprised in Kimbo Gomba Block 231 Plots 83,84 and 85.

b) The Respondent enters the applicant's name in the register as the registered proprietor of the land

c) Costs of the application be provided for.

The grounds of the application are contained the Affidavit in support of the application deponed by KAYIWA TOM and briefly are that;

1. The applicant bought land Block 231 Plots 83,84 and 85 from the late Nsereko Antonio who is currently the registered proprietor, in

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three instalments thus on 29<sup>th</sup> April 2017,13<sup>th</sup> December 2018 and 14<sup>th</sup> March 2020.

2. The above land was formerly Block 231 Plot 79 and upon purchase of the land, the applicant took possession and is currently using the same for cultivation.

3. The late Nsereko Antonia handed over fully signed transfer forms, mutation forms, the mother title and any other document to aid the applicant in subdividing and transferring the said land into his names.

4. That the applicant embarked on the process of subdivision of land formerly Block 231 Plot79 now Block 231 Plots 83, 84 and 85 all registered in the names of the late **NSEREKO ANTONIO**.

5. That later in September 2023, the late Nsereko Antonio passed on just after the said land had been subdivided.

6. That the late Nsereko Antonio passed on and the said land had never been transferred into the applicant name.

7. The applicant occupancy has never been challenged for all the times he has existed on land. The application is further supported by the following evidence; copies of the land sale agreement, copies of transfer forms, mutation forms, search form from the Ministry of Land, Housing and Urban Development.

In reply to the application, the application was opposed by the Respondent through Mr. Kankaka Robert Kizza (**Registrar of Titles**) who filed an affidavit in reply in which he deponed that, the Respondent is an official of Government charged with Statutory duty of registration of land and keeping the sanctity of the land register, that the suit land is registered in the names of the late NSEREKO

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ANTONIO. That the Respondent under takes to comply with the outcome of the Court orders.

#### **Representation**

Upon hearing of this Application, the applicant was represented by Counsel Nalunkuma Esther of M/s Xander Advocates while the respondent was represented by Counsel Atusaasire Godwin.

## **Submissions**

Counsel for the Applicant filed written submission and Court visited locus on 15<sup>th</sup> March 2024.

## Resolution by Court.

### Issues for determination;

1) Whether this application has been properly made before this Court.

2) Whether the land comprised in Kimbo Gomba Block 231 Plots $83,84$ and $85$ can be vested into the applicant.

Resolution of issue one: whether this application has been properly made before this Court.

Section 167 of the Registration of Titles Act Cap 230, 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 been executed by the vendor and cannot be obtained by reason that the vendor is dead or $\overline{3}$

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 the 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 the additional fee, if any, shall effect the registration directed to be made under Section 166 of the Registration of Titles Act Cap 230, 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.

Therefore, application of this nature must be made to the Registrar of Titles as an office of first instance and all evidence to warrant a grant of a vesting order must be proved before a registrar. Where a Registrar fails/refuses for some reason to grant the same, then an application for a vesting order can be made to the High Court.

In the instant application, it is the applicant's evidence that they applied to the Respondent by the letter dated 04<sup>th</sup> January 2024 through $M/s$ Xander advocates, to the Registrar of title to have the land in issue vested to the Applicant but the Respondent declined and advised them to apply to Court.

In the case of **Mutyaba Tom Versus James Kayimbye Misc** Application No. 40 of 2018, Justice Henry Kaweesa, pointed out that, by suggesting that the Respondent obtains a vesting order from Court, it is in my view that the Commissioner was disinterested in granting the vesting order under **Section 167 of the Registration of** Titles Act cap 230. From the above submissions, I find that this application was properly brought before this Court.

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Issue Two: Whether the land comprised in Kimbo Gomba Block 231 Plots 83,84 and 85 land at Gomba can be vested into the Applicant.

Counsel for the Applicant relied on the case of Aida Najjemba Vs Ester Mpagi Misc. Appn No. 74/2005 which laid down the grounds for a vesting order thus;

- a) The vender is deceased and there is proof of death. - *b) Transfer is not effected.* - c) *The applicant paid the full purchase price.* - *d) The applicant took possession.* - e) The agreement that the Applicant bought the land and there is no mortgage. - *f)* That the land is registered under the Registration of Titles Act. - g) That the relatives of the deceased have no problem with the *Applicant obtaining the order."*

Counsel further submitted that, a search report attached to their pleadings shows that the land is still registered in the name of the late **NSEREKO ANTONIO.** The applicant paid all the purchase price to the vendor, and signed transfer forms, mutation form and the mother title to enable the applicant transfer the land into his names, but later in September 2023 the late Nsereko Antonio passed on and the said land had never been transferred into the applicant name.

The Applicant sale agreement between the late Nsereko Antonio were presented to Court, from these agreements it is clear that the Applicant paid the full purchase price.

To prove possession, the Applicant attached a letter from the Chairperson Mr. Kasagga Emmanuel of Kimbo Local Councill Nsambwe Parish, Kyegonza Sub County Gomba District, in which he confirmed to this Court that the Applicant bought land Block 231 $\mathsf{S}$

Plots 83,84 and 85 from the late Nsereko Antonio and the applicant is in occupation of the suit land.

Be it as it may, Court visited locus and confirmed that the applicant is in occupation of the suit property. In the instant case, am satisfied that the conditions set out in Section 167 of the Registration of Titles Act Cap 230 and the case of Aida Najjemba Versus Ester Mpagi (Supra) for grant of a vesting Order have been met by the applicant.

Issue two is answered in affirmative.

In a nutshell, this application is granted on the following orders;

- 1. The Respondent vest the land comprised at Kimbo Gomba Block 231 Plots 83,84 and 85 in the names of KAYIWA TOM - 2. The applicant shall meet all the necessary fees for vesting the land into his names and the costs of the application.

## I so order

Delivered on this 20<sup>th</sup> day of March 2024

HON: JUSTICE OYUKO ANTHONY OJOK **JUDGE**