Kirumba Augustine v Lutakome Martin and Others (Miscellaneous Application No 100 of 2025) [2025] UGHC 570 (23 June 2025)

Full Case Text

## THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT MPIGI

# MISCELLANEOUS APPLICATION NO. 100 OF 2025

# (Arising from Civil Suit No. 112 of 2024)

APPLICANT $\mathsf{S}$ KIRUMBA AUGUSTINE ..............

### **VERSUS**

**1. LUTAKOME MARTIN**

2. BUKIRWA EXENCIA

- 3. SERUBIRI PETER................................... - (Administrators of the estate 10

Of the late Nawati Victoria)

4. KABANDA FAIZO

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

#### Ruling

The applicant brought the instant application by Notice of Motion under Section 98 of the Civil Procedure Act, Civil Procedure Rules, Order 6 Rules 28, 29 and 30, Order 51 Rules 1 and 2 against the respondents seeking orders that:

1. The plaintiffs' plaint and reply to the Written Statement of defence be 20 rejected and struck out for lack of cause of action, full of falsehoods, being frivolous and vexatious.

2. The plaintiffs' main suit No. 112 of 2024 against the applicant/defendant be dismissed for lack of a cause of action.

#### 3. Costs of the application be provided for. 25

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

1. That the respondents do not own the suit land and they neither have a claim of right nor a right of action against the applicant.

2. That the respondents have no cause of action against the applicant in the 30 civil suit no. $112$ of 2024.

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3. That the suit land is not part of the estate of the late Nawati Mary Victoria wherefrom the plaintiffs claim beneficial interest.

4. That the registration of Nawati Mary Victoria was cancelled by the consent judgment vide High Court Civil Suit No. 795 of 2019 wherein the 1st and 2nd respondents were parties.

5. That the respondents' lawyer Mr. Sebi Muhamed was part and signed the said consent judgment.

6. That the applicant is a kibanja owner on the suit land which belongs to the estate of the late Simeon Semambo.

7. That the Applicant pays Busulu to the administrators of the estate of the late 10 Simeon Semambo.

8. That the respondents' main suit is frivolous with intent to harass the applicant, baseless in law and facts, a product of delusion or fantasy.

9. That the respondents' main suit is vexatious with intent to malice, subdue the applicant and an abuse of court process aimed at wasting court's time and 15 the applicant's resources.

10. That it is in the interest of justice to allow this application.

The application was opposed through an affidavit in reply sworn by the $3rd$ respondent who among others stated that their mother was a daughter to the 20 late Simeon Semambo and a beneficiary of the estate of her late father and in his Will he left her a portion of the land and was later registered on the title by the then Administrator of the estate. That at all times the late Mary Nawati was the land lord of the said estate and was collecting Busulu from the applicant and the applicant was aware of her status as a beneficiary and registered proprietor of the land. And, they entered into a land sharing 25 agreement with the defendant with full knowledge of her status as the proprietor of the said land.

### Brief facts:

$\mathsf{S}$

The respondents filed the main suit No. 112 of 2024 against the applicant for specific performance and recovery of land as landowners with legal interest in 30 the suit land from the applicant, the kibanja owner. However, the applicant in his Written Statement of Defence contended that the respondents have no cause of action against him and that their case is frivolous and vexatious on grounds that the plaint does not disclose proof of ownership of the suit land by the respondents. 35

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#### Representation:

Counsel Zimbe N. appeared for the applicant while counsel Sebe represented the respondents. Both parties filed their written submissions.

$\overline{4}$

#### Issues:

- 1. Whether the respondents'/applicants' main suit No. 112 of 2004 against the applicant/defendant should be dismissed for lack of a cause of action? - 2. Whether the respondents'/plaintiffs' pleadings in the main suit no. 112 of 2024 should be rejected, struck out and case dismissed for being frivolous and vexatious and full of falsehoods?

#### Resolution:

I will resolve the two issues raised above concurrently and not separately.

In the case of Kapeka Coffee Works LTD v. NPART, CACA No. 3 of 2000, it was held that; in determining whether a plaint discloses a cause of action, the court must look only at the plaint and its annextures if any and nowhere else.

And, in the case of Tororo Cement Co. Ltd v. Frokina International Ltd, Civil Appeal No. 2/2001, it was held that; in order to prove there is a cause of action, the plaint must show that the plaintiff enjoyed a right; that the right has been violated; and that the defendant is liable.

20 Counsel for the applicant submitted that the respondents in the instant case did not attach the certificate of title for Mawokota Block 1 plot 160 nor an inventory of the estate of Nawati Mary Victoria as evidence of ownership of the suit land. The applicant contends that the consent judgment attached to the reply to his Written Statement of Defence cancelled the certificate of title

- of Nawati Mary Victoria and the ownership reverted to the estate of Simeon 25 Semambo. Thus, the respondents have no proof of ownership and therefore their plaint discloses no cause of action against the applicant. Counsel cited the case of Lworomoi Torbisch and Okot James Okidi v. Aloti Hellen Ogwal, HCCS No. 007 of 2020, where it was stated that; to disclose a cause of action, - the facts in the plaint must show a claim of right as against the defendant, an 30 allegation that the right has been violated and that the defendant is liable.

Counsel for the respondents on the other hand submitted that the plaint discloses a cause of action being that the applicant entered into a land sharing agreement with the late Mary Nawati in which he was giving up a portion of

his kibanja to the late Mary Nawati, however upon her death the applicant 35 turned around to claim that the late Mary Nawati did not have a right in the land. That the applicant states that the land belonged to the estate of Simeon Semambo who was the father of the late Mary Nawati.

$\mathsf{S}$

Counsel added that the two estates entered into a consent judgment vide Civil Suit No. 795 of 2019 in which they recognized the transactions entered into by the late Mary Nawati and assert that the same would be mutated off the plot 160 Block land further went ahead to share the residue 50/50 between the two estates. As such the late Mary Nawati in this case had a right in the land as a beneficiary of the late Simeon and registered proprietor and entered into the said land sharing agreement with the applicant under the said right. The applicant on the other hand turned around and disowned the agreement violating the rights of the beneficiaries of the estate of the late Mary Nawati.

10 15 Further, that the beneficiaries of the estate of the late Mary Nawati bring this suit in their capacity as Administrators as per the provisions of Section 180 of the Succession Act. Counsel relied on the case of Maureen Tumusiime v. Macario and Another, [2006] H. C. B 127, where it was held that; according to Section 180 of the Succession Act, ownership of the property of the deceased vests into the one being appointed administrator or executor through grant of letters of administration or probate.

20 Counsel concluded that while the applicant refers to the consent judgement, he only hand picks what suits the preliminary objection yet the said consent judgment recognises all the people that the late Nawati sold to and is instructive that those shall first be mutated off then the residue shall be shared between the two estates on a ratio of 50/50. That the applicant cannot now approbate and reprobate the same consent judgment he relies on to claim that the late Mary Nawati did not have a right in the suit land. (See: Energo (U) Ltd v. Geoffrey Ruberamira and Attorney General, Civil Appeal No. 0183 of 2013).

I have carefully considered the submissions of both parties in this matter, the law and authorities cited therein which I am mindful of in resolving the two issues.

I associate myself with the authorities cited above in regard to what constitutes a cause of action and how the same must be proved. In this case I have carefully perused the plaint of the respondents and its annextures.

In my opinion Paragraph 5 of the plaint which I will not reproduce clearly and in detail sets out the respondents' claim against the applicant. Additionally, the consent judgment in Civil Suit No. 795 of 2019 under paragraph 8 makes provision on the portion to be shared between the estate of Simeon Semambo

35 and that of the estate of Nawati Mary Victoria upon which the respondents base their claim.

In the circumstances I find and hold that the plaint discloses a cause of action against the applicant and the suit is not frivolous and vexatious as claimed by C

ale

the applicant. Let the main suit be heard and determined on its merits. Each party bears their own costs. I so order.

Right of appeal if any explained.

OYUKO ANTHONY OJOK JUDGE 23/06/2025