Kibirige v Commissioner Land Registration (Miscellaneous Application 79 of 2023) [2024] UGHCLD 127 (13 May 2024)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DIVISION)

# **MISCELLANOEUS APPLICATION NO.79 OF 2023**

$\mathsf{S}$ ALI MUWANGA KIBIRIGE

> (Executor of the Will of the Late BULAIMU MUWANGA KIBIRIGE vide A. C No. 1425 of 2022)::::::::::::::::::::::::::::::::::

#### **VERSUS**

$10$ COMMISSIONER LAND REGISTRATION::::::::::::::::::::::::::::::::::::

## Before: Lady Justice Alexandra Nkonge Rugadya.

## Ruling.

This application brought by notice of motion under the provisions of **Articles**

- 42 & 44 of the 1995 Constitution of the Republic of Uganda (as 15 amended), Section 98 of the Civil Procedure Act cap. 71, Sections 36 & 37 of the Judicature Act cap.13, and Rules 2, 3, 4, 6, & 7 of the Judicature (Judicial Review) Rules, 2009 (as amended) seeking an order of mandamus directing the commissioner land registration to rectify the register in respect of land comprised in LRV 4000 Folio 4 Block 273 Plot 20 46 Mulamula Road by cancelling the names of Haruna Muwanga Kalule, and reinstating the same in the names of **Bulaimu Kibirige**, or the executor of his estate, who is also applicant herein. - Secondly that this Court should make a declaration that the registration of Haruna Muwanga Kalule as the proprietor of above stated land on 7<sup>th</sup> March, 25 2022 long after the demise of the former registered proprietor, and without the consent of the lessor was illegal, null and void, and ultra vires the powers of the respondent under the provisions of the Registration of Titles Act, as well as the Land Act.

Asloy

The grounds upon which this application is premised are contained in the af{idavit in support thereof and deponed by Mr. A1i Muwanga Kibirige, the applicant herein, and the exccutor of thc will of thc late Buiaimu Muwanga Kibirige. He states inter alia that the late Bulaimu Muwanga Kibirige died in Nairobi on lOth September, 2027, and that the applicant applied for the grant of the letters of probate which was grantcd on 26Lh September, 2022.

That while the land comprised in LRV 4OOO Folio 4 Block 27O plot 46 Mulamula Road was registcred in the deceased,s names at the time of his demise, somctime in October 2022, it came to the applicant,s attention that the suit property had on 7tb March, 2022,long after the deceased,s death been transferred into the names of onc Haruna Muwanga Kalule and that the applicant immediately wrote to thc respondent requesting his office to rectify

That on 1Sth November , 2022, the rcspondent issucd a notice to effect changes in the register to the said Haruna Muwanga Kalule, inviting him to attend <sup>a</sup> public hcaring slatcd for 7th Novcmbcr, 2022 and that while the said Haruna Muwanga Kalu1e did not cnter appcarancc on the date of the hearing, the rcpresentatives of M/S Yako Bank (U) Limtted instead appeared, claiming that thcy had not been scrvcd with the notice yct thcy had registered an order of attachment before judgeme nt on the certificatc of titlc. 15 20

the registcr by reinstating the dcccascd's namcs on the ccrtificate of title.

That on 14th February, 2023, Lh'c rcspondent then issucd a 2nd notice, inviting both Haruna Muwanga Kalulc, and M/S yako Bank (ll) Limited. to a pubiic hearing scheduled for 9th March, 2023 at 9:00am, and that during the said hearing, it was brought to thc rcspondent,s attcntion that 1\_he applicant,s lawyers M/S Kirumlra & Co. Adoocctes had earlier on caused the examination of the deceased's signature that was used on the transfer form by the said Haruna Muwanga Kalule to transfer the suit property into his names and the same was found to bc forged. 25

That the respondent has to date neglected/ refused to either act, or make <sup>a</sup> decision in rclation to the rcgistration of thc said Haruna Muwanga Kalule as the proprictor of thc suit propcrty inspite of thc fact that the respondent is 30

2 tp},'6'

mandated to rectify the register by virtue of the provisions of Sectioa 9I f2J o.f the Land Act where a certificate of title is issued illegally, or wrongfully obtained and as such it is in thc intercst of justicc that the respondent is compellcd to render its dccision pursuant to thc two public hearings conducted on 7th December, 2022, and on 9th March, 2023.

That if a decision is not madc by the respondent, thc samc shall cause an injustice to the cstatc, and bcneficiaries of the cstate of 1]re late Bulaimu Muwanga Kibirigc since Yalco Bank (U) Limited. is in the advanced stages of sclling the suit propcrty in salisfaction of tlc decrec against the said Haruna

Muwanga Kalule in High Court, Ciuil Suit No. 927 oJ 2022 thus it is in the interest ofjusticc that this court grants the orders sought hcrein. 10

The respondent did not oppose the application despite having been served with court process as directed by this court on the 1Sth day of March, 2024. Accordingly, this application stands unopposed.

#### Detenninrrtion bu court. 15

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I have carefully perused the cvidence, as well as the written submissions in support of the application frlcd by thc applicant through his lawyers M/ <sup>S</sup> Kirumlra &, Co. Aduocates, thc dctails of which arc on court record, and which I have taken into consideration in dctermining whether or not this 20 application discloses sufficient grounds warranting thc grant of the prayers sought.

The first issuc for determination is whether this application is properly before this court. Thc applicant sceks an ordcr of mandamus directing the rcspondent to rectify the register in as far as 1}re suit land is concerned, and reinstating the names of the dcceascd thereon.

It was the applicant's undisputcd evidcnce that the rcspondent has to date not yet taken a decision regarding the suit land. Therc is no evidence on record that in fact thc said transfcr was found or declarcd to be issued illegally or that the Certificatc of titlc was wrongfully obtaincd as per the provisions of

Section 91 (2) of the Land Act quoted by the Applicant. This would imply that thc issue of whethcr or not the certificatc of title of the suit land was 30

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wrongfully transferred is yet to bc resolved, implying that the prayers sought by the applicant arc pre-emptive and based on spcculation.

Be tllat as it may, it appears to this court that this matter involves allegations of fraud that must be specifically pleaded. sec 97 (2) and the provisions there

5 under, granting the Commissioncr the powcr to canccl and altcr the register, do not apply to the instant facts.

An allcgation of fraud is so scrious in natrrrc and is requircd to be specifically pleaded and strictly proved bcfore a court of 1aw. lSee the ruling ofthe Supreme Court in Hllda Wilson Nannusoke & 3 Ors u Outalla's Home Inuestrnent Trust (E. A) Litnited. SCCA No. 15 of 2O171.

This court has also carefully read the pleadings on record in Commercial Division: High Court Ctuil Suit No.92l of 2022, Thc applicant,s fear that M/s Yako Bank U Ltd is in advanced stages of sclling thc suit propcrty in satisfaction of thc decrcc appears unfounded since the suit property in this application is not menlioned anywhere among the properties listed under that suit.

In the premises:

# Decision of court:

I. Since it lies uithin the hands of this court to cancel a certificdte of dtk once fraud is proued, a d.ecision bg the Commissioner, La.nd Registration to make the changes in the title and the register based on section 9I of the Land Act, Cap,227 would be begond the scope of its powers; and in respect o;f which no ord.er of mandam:us ccn issue.

- 2. This ls a matter that should h.aae been l'r.stif:.fied through a Jortnal suit slnce serlous allegations of fraud ltaae been imputed. against the current reglste"ed proprietor, Haruna Muuq.nga. Kalule, uho is not parw to this application. It would therefore offend the rules of natural Justice it this application is issued, uithout giving him a fair hearing. 25 - 30 - 3, It also follous that the second prager seeking that tLe registratlon oJ Haruna Muuanga l(alule as the proprietor of the suit land on Vh Mdrch

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2O22 was illegal, null and aoid., cannot be granted based on fiw atfidauit evid.ence.

This application accordingly fails. No costs awarded.

Alexand.ra Rugadga. Judge 13th Mag, 2O24.

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