Lutaaya v Commissioner Land Registration (Misc Cause . 32 of 2024) [2025] UGHC 166 (14 February 2025)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## LAND DIVISION

## MISCELLANEOUS CAUSE NO. 32 OF 2024

MUHAMMAD LUTAAYA ::::::::::::::::::::::::::::::::::

#### **VERSES**

# COMMISSIONER LAND REGISTRATION :::::::::::::::::::::::::::::::::::: BEFORE: HON. LADY JUSTICE NABAKOOZA FLAVIA

#### **RULING**

This application was brought by Muhammad Lutaaya (herein after referred to as the Applicant) against the Commissioner Land Registration (herein after referred to as the Respondent) under the provisions of Section 139 and 177 of the Registration of Titles Act, Section 98 of the Civil Procedure Act and Order 50 Rules 1 and 3 and Order 41 Rules 1, 2 and 9 of the Civil Procedure Rules SI 71-1 seeking for orders that

- a. The Applicant registers a caveat on the Certificate of Title for Land comprised in Kibuga Block 28 Plot 357 Land at Makerere (herein after referred to as 'the suit land' - b. The costs of the application be provided for. 10

$\mathsf{S}$

The grounds of the application are supported by the affidavit of the Applicant. He avers therein that he is a beneficiary of the suit land, which formerly belonged to the late Monica Bajenja Kahinju, his grandmother. That both the late Monica Bajenja Kahinju and his constructed their homes on the suit land and it is where the applicant is resident to date and derives a sustenance therefrom. That the late Monica Bajenja Kahinju gave the suit land to the Applicant's father, but it was fraudulently transferred in to the Applicant's paternal uncle's names (the late George Nyakana) on 1/07/1990 who attempted to evict the Applicant's family. That they reported the matter to the Administrator General and the late George Nyakana agreed to transfer the land to the Applicant's names when he becomes of age, but he did not until he passed on. That later, the same land was transferred into the names of his estate's Administrators to wit; - Kabagenyi Janet Ssembusi and Mugisha

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Adam. That the said registered proprietors are in the process of disposing off the suit land in total disregard of the Applicant's beneficial interests yet the Respondent has refused to register his caveat despite constant demands. That it is just and equitable that the application is granted to protect the Applicant's interest in the suit

- The Application was opposed by the Respondent through Mr. Ssekabira Moses 30 (Registrar of Titles) who filed an affidavit in reply wherein he deposed that the office of the Administrator General under Instrument No. KLA 197929 of 7/08/1998 lodged a caveat on the suit land which was withdrawn under instrument No. KCCA 00098200 on $1/11/2022$ . That there was no need for the Respondent to first notify the Applicant who had no interest in the suit land before transferring the land into 35 the names of Kabagenyi Janet Ssembusi and Mugisha Adam. That the Applicant's caveat was rejected on grounds that no caveatable interest was proved since the person the Applicant claims an interest from transferred her interest in 1990. - 40 Representation; the Applicant was represented by Counsel Tumusime Judith while the Respondent was represented by Sharon Arinaitwe. Only Counsel for the Applicant filed written submissions which shall be relied on in this ruling.

## Issues for determination;

- In the submissions, the Applicant's Counsel raised two issues to wit; - 1. Whether the caveat should be lodged on land comprised in Kibuga Block 28 Plot 357 Land at Makerere? - 2. What are the remedies available?

Resolution of the issues; Issue 1. Whether the caveat should be lodged on land comprised in Kibuga Block 28 Plot 357 Land at Makerere?

Counsel argued, while relying on Section 33 of the Judicature Act, Section 139 and 177 of the Registration of Titles Act Cap 230, that the Applicant derives his interest 55 as a beneficiary of the late Monica Bajenja Kahinju and that it is on the suit land where he was born, raised and derives sustenance to-date. That the person holding letters of Administration claims to hold the same in trust for the beneficiaries of the

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late Monica Bajenja Kahinju but the Respondent, without any reason, refused to register the Applicant's caveat on the suit land hence seeking the indulgence of this

Section 139 (1) of the Registration of Titles' Act Cap 230 (now Section 123 (1) of the RTA Cap 240) provides that, 'any beneficiary or other person claiming any

estate or interest in land under the operation of this Act...may lodge a caveat with the Registrar forbidding the registration of any person as transferee or proprietor of and of any instrument affecting that estate or interest until after notice of the intended registration or dealing is given to the caveator, or unless the instrument is expressed to be subject to the claim of the caveator as required in the caveat, or unless the caveator consents in writing to the registration'. In the case of Sentongo Producers & Coffee Farmers Ltd v Rose Nakafuma Muyiisa, HC MSC No. 690 of 1999, it was noted that, it is now settled law that for a caveat to be valid, the caveator must have protectable interest, legal or equitable to be provided by the caveat, otherwise the caveat would be invalid'.

According to the pleadings and submissions of Counsel, Applicant alleges that he is 75 a grand-child to the late Monica Bejenja Kahinju who was the registered proprietor of the suit land before it was fraudulently transferred to the late George Nyakana.

I have had the benefit of looking at the certificate of title for the suit land, which is attached to the Respondent's affidavit in reply; and it shows that the suit land is 80 currently registered in the names of Kabagenyi Janet Ssembusi and Mugisha Adam as on 31/10/2023 vide KCCA 011526.

I note that the suit land has had a number of previous transfers before its transfer to the current registered proprietors in 2023. Notably, evidence shows that Monica 85 Bejenja Kahinju was first registered thereon on 24/09/1969; then George Nyakana on 4/07/1990, and later administrators of his estate on 19/09/1996, Bazaare, Sam Kaijuka and Fulgence Nyakana. Currently, it is registered in Kabagenyi Janet Ssembuusi and Mugisha Adam.

As already noted, Section 123 (1) of the Registration of the Titles Act Cap.240 requires a caveator to have caveatable interest in the suit land. The Applicant's

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caveatable interest, in this case, is allegedly rooted in the late Monica Bejenja Kahinju, one of the earliest proprietors of the suit land, who is no longer registered as proprietor. However, the Applicant alleges fraud against George Nyakana, the successor in title of Monica Bejenja Kahinju in this application. In addition to that, he adduced evidence of a pending suit at the Family Division of the High Court wherein Herbert Kalenzi and Kajjumba Margret sued him together with the current registered owners of the suit land, among others. The subject matter of the said suit is still the suit land, according to a copy of pleadings of Civil Suit No.260 of 2024, which the Applicant attached as annexure "A" to his affidavit in rejoinder.

The Applicant, in the above mentioned suit counterclaimed against the current proprietors of the suit land, claiming as a beneficiary of the estate of the late Sunday 105 Katwere, and pleaded that the late Katwere was given the suit land as a gift intervivos from the late Monica Bajenja Kahinju. Further, that his late father Katwere constructed his home on the suit land and this is where his family resided since 1980 to date but, that the counter-defendants intend to evict them. For that case, he sought for a declaration that the suit land belongs to his late father's estate, and a permanent injunction restraining the counter defendants from further trespass, 110 among others.

Whereas the suit and counterclaim have not yet been determined to establish the Applicant's interest in the suit land, one fact that is relevant to the matter at hand. 115 This fact involves the allegation that the Applicant father's family resided on the suit land up to date. Under paragraph (d) of the affidavit in rejoinder, the Applicant expressly stated that he is a resident on the suit land, and that the Respondent is well aware of the suit. This fact alone connotes physical possession.

The occupation and possession of land is prima facie proof of ownership (Section 120 110 of the Evidence Act Cap.6; Madina Kirige & Others vs. John Bosco Muwonge HCCS No.0058 of 2014). In other words, the Applicant's plea herein and counterclaim sufficiently qualify him as one with prima facie interest in this land for which he is entitled to temporary protection. Therefore, I find that the Applicant 125 has a caveatable interest in the suit land, and accordingly find the issue in the affirmative.

## Issue 2 What are the remedies available?

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The first issue having been found in the affirmative, I find that the circumstances warrant a protective measure to preserve the Applicant's prima facie interest in the suit land pending the determination of Civil Suit No.260 of 2024 by the High Court of Uganda, Family Division.

In conclusion, the application is granted in terms of the following orders:

- a. The Respondent shall register the Applicant's caveat on land comprised in Kibuga Block 28 Plot 357 upon lodgment of the same by the Applicant, and payment of the necessary fees. - b. The caveat shall subsist on the said land until the determination of Civil Suit No.260 of 2024, or further orders of court. - c. Each party to bear own costs.

Signed, dated and delivered at Kampala this. 14. day of Februa 140 $1.2025.$

Jabakooza Flavin. k Judge

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