Kiyingi and 2 Others v Nabuuso (Miscellaneous Cause No. 163 of 2021) [2022] UGHCLD 120 (31 May 2022)

Full Case Text

# THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DIVISION)

## **MISCELLANEOUS CAUSE NO.163 OF 2021**

#### 1. KIYINGI PAUL BANADDA $\mathsf{S}$

2. KIINGI SARAH ROSSETTE

3. DR. LUTALO KIINGI SAM

(Administrator of the estate of the Late DAVID KULUMBA KIINGI)::::::::::::::::::::::::::::::::::

# **VERSUS**

ROSE NABUUSO RUSIYATA:::::::::::::::::::::::::::::::::::

# Before: Justice Alexandra Nkonge Rugadya.

# RULING.

#### Introduction:

15 The applicants are the joint administrators of the estate of the late David Kulumba Kiingi and brought this application under the provisions of Section 40 of the Registration of Titles Act Cap.230, Section 33 of the Judicature Act, Cap.13, Section 98 of the Civil Procedure Act, Cap. 71 and Order 52 rules 1 & 3 of the Civil Procedure Rules S. I 71-1 seeking orders that:

1. This court be pleased to unconditionally vacate the caveat lodged by the respondent on land comprised in Mailo Register Kyadondo Block 180 plot 1862 measuring approximately 1.244 hectares situate at Kitukutwe Wakiso district for just cause;

### 2. The costs of this application be provided for.

- 25 The grounds upon which this application is premised are fully set out in the affidavit in support of Mr. Paul Banada Kiyingi wherein he states *inter alia* that he is the biological son and one of the administrators of the late David Kulumba Kiingi who is the original owner and registered proprietor of land comprised in Mailo Register Kyadondo Block 180 plot 849 measuring 2.258 **hectares, land at Kitukutwe Wakiso** (hereinafter referred as 'the suit land') having purchased - 30 the same from one George Mukasa Kyagaba, the former administrator of the late Bernado Kasirye Kasaato, father to the respondent, who was the administrator of the estate of the late Isaya Gawedde, the former owner of the said land.

That the respondent who still has a case to wit; Miscellaneous Application No.162 of 2012 arising from Civil Suit No. 107 of 2009: Rose Rusyata Nabuuso vs George Mukasa Kyagaba still pending in the family division, by consent dated 13th November, 2009, relinquished all her

( On have

claims in respect of the suit land, which was thc bcncficial share of George Mukasa Kyagaba (grandson to the late Gawedde). As such thc lodging of a cavcat in rcspcct of thc same land could not be justified.

5 In addition, that thc rcspondcnt hugely bencfitted from thc conscnt dccrce which she now seeks to set aside having sold off most of her share which she obtaincd undcr thc consent decree and that she has no claim of right over the caveatcd land. That it is in thc interest of justice that the application is granted.

The respondent opposed the application through her affidavit in reply. She deponed that after her father's dcath in 1993, Georgc Mukasa Kyagaba unlar.r.fully, fraudulently and stealthily obtained letters of administration in respcct of thc cstatc of thc late Ilcnard Kasato Kasirye's estatc vide

Adr,nt'I:lstr(rtlo'i. Cause No.69 ol ,995, without obtaining a ccrtificatc of no objcction.

That before his death, the late Ilcrnard Kasaato Kasiryc ncd Hlgh Court Clvll Sult lvo.8ls o, I99I through George Mukasa Kyagaba as his ncxt friend and that aftcr thc former's death, thc latter continued prosecuting the suit as administrator of his cstatc.

The matter was decided against the deccased's estatc and thc said Ceorge Mukasa went on to prosecute the appeal which was dccided in his favor. 15

In addition, that after obtaining the said grant of lcttcrs of administration, George Mukasa thcn unlar+'fully, fraudulently and in breach of trust dealt with the estate property. I{e denied the bencficiaries of the estate their rights and dealt with the estate as though it was his personal

property thereby prompting the respondent to file Hlgh Coura CTull Sult IlIo. IO3 oJ 2OO7 in a bid to salvage the estate. 20

That George Mukasa ard the rcspondent cxecuted a consent in respcct of the above suit and that it was agreed thcrein that the respondent would withdraw thc suit upon rcccipt of all her father's assets and that she would give Gcorgc Mukasa a consolidatcd total of 28 acrcs of land compriscd

#### in Kgado',,,d,o Bloclc I8O la,nd at Nlhtkutute. 25

That bcing aggricvcd with thc conscnt ordcr shc filcd Miscellcrneots Appalcdtion No,762 oJ2072 for a rcvicw of thc samc.

Further, that although Mukasa Georgc was ordcred by court to dclivcr to thc custody of court the grant of lettcrs of administration he obtained in respcct of thc rcspondcnt's father's estatc, he has

not delivcrcd thc same and that thc respondcnt has sincc discovcrcd that hcr late father's land was transferred to Kulumba Kiingi David who was thc cstatc lawycr and fathcr to thc applicants. 30

That the land was sold and transferrcd to Kulumba Kiingi David in scttlcmcnt of Gcorge Mukasa's personal debts and that it is a false misreprcscntation that thc suit land originatcs from plot 345, block 78O.

That Clull Suit lvo. IOS ol 2OO7 as wcll as thc applications thcrcundcr wcrc filcd in a bid to challengc thc abusivc, illcgal and unlawful conduct of Gcorgc Mukasa and thc rcspondcnt lodgcd

\o'l""d

the caveat in a bid to protect her beneficial interest in the suit land which belonged to her father before it was transferred.

Therefore it is just, fair and equitable for this court to dismiss this application as the procedure by which the late Kiingi obtained the land were not only gross and fraudulent but also illegal and unlawful.

The applicants also filed an affidavit in rejoinder deponed by the 1st applicant contending that the affidavit in reply is argumentative, irrelevant, misconceived and evasive as it does not address the core issue for which the respondent lodged the caveat on the suit property as entailed in her affidavit in support of the caveat.

10 That the respondent has failed to demonstrate any caveatable interest in the suit land that the applicants' father bought from the estate of the late Bernado Kasirye Kasaato; and that it is in the interest of justice that the application be granted to enable the applicants perform their mandate as administrators of the deceased's estate.

# **Representation:**

$\mathsf{S}$

15 The applicants were represented *M/s Eric – Kiingi & Co. Advocates* while the respondent was represented by *M/s Ojjiambo Olara Advocates & Solicitors*.

### Consideration by court:

I have carefully studied the pleadings and considered all arguments raised by counsel in their submissions on the issues in this application. The core issue for determination by this court is whether the respondent has shown cause why her caveat should not be removed.

It is trite law that for a caveat to be valid, the caveator must have a protectable interest, legal or equitable otherwise the caveat would be invalid. (Sentongo Produce V Coffee Farmers Limited & Anor vs Rose Nakafuma Muyiisa HCMC 690/99).

In the instant case, it is not in dispute that the late Kulumba Kiingi David the applicants' late 25 father is the registered proprietor of **Kyadondo Block 180, plot 1862** land at Kitukutwe, having purchased the same from George Mukasa Kyagaba, the administrator of the estate of the late Bernard Kasato Kasirye and father to the respondent.

The respondent on her part alleges that she lodged the caveat in a bid to protect her beneficial interest in the suit land. That the George Mukasa Kyagaba illegally dealt with her late father's estate which she is trying to salvage and that she even filed **MA No.0162 of 2012** seeking to set aside the consent entered into with the said George Mukasa Kyagaba.

This court noted the application arose from Civil Suit No. 103 of 2007, not 107 of 2009 as indicated in parts of the applicant's pleadings.

In a supplementary affidavit in support of the Notice of Motion, George Mukasa Kyagaba stated 35 that he is the grandson of the late Isaya Gawedde who was the original owner of the land comprised in **Kyadondo Block 180 at Kitukutwe** and that Kasaato Kasirye who was the eldest and only

arport

surviving son of Isaya Gawcdde obtained a grant of lettcrs of administration for his estate. Upon Kasaato Kasirye's demise, Gcorge Mukasa obtained letters of administration for his estate.

ln paragraph 3 of the supplementary affidavit by George Mukasa, he admitted that he obtaincd letters of administration for the estatc of Bernard Kasaato in crror since Kasaato Kasirye ncver owned any property but was mere administrator of Cawcddc's cstatc.

Accordingly, that on 1l'h July, 2008, this court having revoked his grant of letters of administration to the estate of Kasaato Kasirye instead issued to him a grant of letters of administration for the estate of latc Isaya Gawedde.

As indicated by the salc agreement datcd 8rh Septcmber, 2006, the latc Kiingi had already obtaincd an equitable interest in plot 345 finother plot) aftcr purchasing some land from Gcorge Mukasa, thc administrator of Kasaato Kasiryc's estatc and this was before Ciull Sult .ilo, 1O3 oJ 2OO7 was instituted by the respondent against the administrator. 10

Subdivisions had been made out of plot 345 being the mother title, to create plot 849, furlher subdivided to create plots 786O-7862. Plot 7862 was registered in the names of the late Kulumba Kiingi in 2012 and, this was after the suit lilcd against George Mukasa as an administrator had been concluded following a consent decrcc signed between the respondent and the administrator on13rh November, 2009.

Among the terms spelt out in the conscnt, Georgc Mukasa had to surrendcr to thc respondcnt all the property, with the exccption of, (for the purposes of this application): 20O acres of the land

situate in Kitukutwe, Block 78O; Iand comprising 27 acrcs; and onc acre of land whcre Georgc Mukasa's house and shop at Kitukutwc were located, arnong others. 20

After the consent was filed a memorandum of understanding was entcrcd bctween thc rcspondcnt and George Mukasa as thc administrator ofthc Kasaato's estatc in 2O11. By that time Kiingi was alrcady in possession of thc suit land as deponed by Gcorgc Mukasa in paragraph 8 of the supplementary aflidavit, which asscrtion was not contested by thc rcspondent.

ln paragraph .10 thereof, the respondent is said to have given George Mukasa 4 out of the 15 land titles for land at Kitukutwe including the mothcr plot 345. From clcuse lllo. I of the MOU, thc respondent had also acknowledged rcccipt of somc propertics and transfer forms for the cstatc from the administrator.

It is important to notc that what was agreed upon and surrendered to the respondent however excluded thc plots which were crcatcd out ol plot 345, including plot 849 out of which plot I852 (sutt lond) had been curvcd out. 30

Thus also as noled by thjs court, by the time the MOU was signcd in 2Ol l, ltlot 1852 had already been created and George Mukasa Kyagaba as administrator of the estate of Kasaato had been

rcgistered on it as early as 20 I 0. In 2O I 2 which was aftcr thc signing of thc MOU, the late Kiingi's equitable interest was rcgistcred in his namcs. 35

. Uil" "8

From the MOU the respondcnt had cven received transfcr Iorms for about 63.67 acres from BIocIc I8O which was given to hcr as part of her fathcr's estate, and prcsumably therefore separate from that of her grandfather which Georgc Mukasa Kyagaba was entitled to administer as per grant to him issued on I I'h July, 2008.

5 George Mukasa in paragraph 4 of his supplementary alfidavit avers that the grant issued to him by court in respect of Kasaato's cstate was revoked by court and a frcsh grant issued to him in respect of the estate of Isaya Gawcdde.

Whether or no1 therefore at the time the consent and MOU and transfer were entered between the said administrator and respondent the former could validly deal with the estate since as noted the

letters of administration for Kasaato's estate had becn rcvoked, was another matter which was not raised as an issue in this court. 10

What is clear is that he had the authority to deal with Cawedde's estate after the grant was issued to him in 2008 and that it bccame necessary at that point to separate the property of the two estates.

- lnformation about the application for review of the conscnt and rcasons why, a-ftcr endorsing it and participating in the process of its execution the respondent decided to challenge it, is rather scanty for according to the applicant, the mattcr was still pending. Suffice to note that the respondent was a party to both the consent and MOU madc thereaftcr in 201l which reinforced the consent. 15 - This court however landed on an order: vi.de IIIA No. O762 oJ 2O12 made by this court in the family division on 21st Novcmbcr, 2017 which thc parties had been directed by court to have the said consent fully executed. 20

This by implication meant that George Mukasa had all the neccssary powers as the administrator to deal w"ith thc estate, until after the conclusion of the sharing of the recovered properties as directed by court.

He still therefore had the capacity to sell and trarsfer the property as he did in respect of the suit property for whatever had been lcft of the late Kasaato's estate for him to register, but also in respect of Gawedde's estate as administrator.

Thus between 2009 and 2Ol2 when the transfer was made to the late Kiyingi, this court finds nothing that should have prevcntcd the administrator from trarsferring plot 1852 to the late Kiingi who as early as 2006 had already acquired equitable intcrcst, even before the suit was filed, before the consent entered and before it was challcngcd. 30

The respondent went ahead and acted on the strength of the consent decree and MOU, created subdivisions and titles (as shown in the area schedule annexed to the affidavit in support of the

application), madc numerous transfers, a numbcr of thcsc in the names of onc Omalla Deogratious. 35

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She did not refute the allegation that shc had bcnefitted out of thc said consent decree and MOU. It is now settlcd law that facts as adduccd in aJfidavit evidence which are neither denied nor rebutted ere presumed to be admitted. (See: Erldadl Ahlntbislsbute v world. Food Progrqrn & others 179981 ltl I<ALR 32).

5 Whilc she was entitled therefore to lodgc a cavcat in respect oI hcr fathcr's cstate, a part of which had been handed over to her by thc administrator of that estate in cxccution of the consent, it is clear that she had no caveatable interest in the rest of the property which belonged to other beneficiaries of the estates, and which rcmained under the hands of thc administrator as a trustee.

With atl due respect therefore, following the above trend of events, plot 7862 had not been a subject of the suit under which the consent was made. The late Kiingi was not a party to the suit and consent and in any case, he purchased the suit land in 2oO6 from a person who had authority to deal with the land. 10

All property ol the intestatc dcvolvcs upon the pcrsonal rcprcscntativc of thc dcccased upon trust Ior thosc persons entitled to thc propcrty (sectlon 25 o, the Successlon ActJ. I,'or all purposes,

- thc administrator of an cstatc is thcrelorc the deceased's pcrsonal rcprcscntative for all purposcs and all propcrty of the dcccascd vcsts upon him. fsection 78O of the Succession Act). An administrator of thc estatc thcrcforc also has powers to disposc of thc propcrty in such manncr as hc or she may think fit. (sectlon 27O). 15 - The administrator's failure to file an inventory and surrendcr letters of administration for her father's estate was a matter betwcen the administrator and the beneficiaries. It did not affect the late Kiingi's rights as a purchaser. 20

Such omission and pending actions by the administrator which werc not attributcd to Kiingi could not thcrefore justify the caveat lodged long aftcr the transfer had bccn laMully made to him and after taking possession of the land which hc had enjoyed without interruption.

'l'hc doctrinc of estoppel by conduct prcvonts a party against whom it is sc1 1() dcny thc truth of thc mattcr. (sectlo,l 774 of the Evld.ence Act, Cqp. 6) o:nd Pc,'r Alrlcan l^su,ro:n.ce Co (U)Ltd. 25

Since the respondent had rclinquished hcr claim in the mother plot 345 later subdivided into plot 849 out of which thc suit land had been created, arrd had even benefitted from the sharing agrecment she cannot now be seen to rcvcrsing the transactions some of which a-ffected third party rights which she had acquiesccd to, directly or indirectly. Shc secms therefore bent on reintroducing mattcrs that had alrcady bccn dealt with and concludcd and in relation to which this court would bc Ttrnctus o.yffao. 30

In light of the above, the respondent can only hold interest in what rightfully belonged to her father's estate. It follows therefore that she has no caveatable interest in the suit land which was properly disposed of by the administrator in 20O6. 35

Accrrr<ling to Segirinyo Gerald versus Mutebi Innocent H. C. M. A No. Oal oJ 2076,

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"The primary objective of a caveat is to give the caveator temporary protection. It is not the intention of the law that the caveator should relax and sit back for eternity without taking positive steps to handle the controversy, so as to determine the rights of the parties affected by its existence."

$\mathsf{S}$ After filing the caveat in 2017 the respondent sat back and twiddled her fingers without taking any further action to challenge Kiingi's interest.

In light of the above, the applicants have satisfied court that the continued existence of the caveat on the suit land have affected their rights over the land on which the caveator had no valid interest.

This application succeeds in the following terms:

- 10 1. An order issues directing the Commissioner for Land Registration to remove the caveat lodged by the respondent on land comprised in Kyadondo Block 180 Plot 1862; - 2. Costs awarded to the applicants.

I so order.

Alexandra Nkonge Rugadya Judge 31st May, 2022.

Delivered by email Ashooy Jol 6/2022.