Mugisha v Nalongo Katente and Another (HC1-LD-MA-0107-2024) [2025] UGHC 444 (11 June 2025)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

### **HC1-LD-MA-0107-2024**

# **(ARISING OUT OF HCT-01-CV-CS-057 OF 2007)**

**MUGISHA VINCENT ::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

## **1. NALONGO KATENTE**

# **2. MASHEMERERWA WINSTON ::::::::::::::::::::::: RESPONDENTS**

#### **BEFORE: HON. JUSTICE VINCENT WAGONA**

## **RULING**

### **Introduction**:

- 1. The Applicants brought the instant Application under Section 98 of the Civil Procedure Act Cap 282, Section 33 of the Judicature Act Cap 13, and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules. The Applicant seeks Orders that; - - **(1)The Respondents be cited and sanctioned for acting in contempt of court by refusing to comply with lawful orders of this Honourable Court in HCT-01-CV-CS-057 OF 2007.**


- **(2)The Orders made by this Court in HCT-01-CV-CS-057 OF 2007 be enforced legally.** - **(3)An order directing the Respondents jointly and or severally to pay the Applicant punitive and general damages for mental anguish and suffering, economic/financial loss to a tune of Ug. Shs. 500,000,000/= (Five Hundred Million Uganda Shillings) in order to purge the contempt.** - **(4)An Order directly the Respondents jointly and or severally to pay a fine of Ug. Shs. 100,000,000/= (One Hundred Million Uganda Shillings) in order to purge the contempt.** - **(5)An Order for detention/committing the Respondents to Civil Prison.** - **(6)Costs of the Application be provided for.**

# **Grounds of the Application**:

2. The Application is supported by thirteen Affidavits deponed by, the Applicant, the Applicant's farm manager *Mr. Byamaraki Sipiriano, Kamugisha Humphrey, Kyomugisha Peace, Tuhaise Imelda, Kyohirwe Meburo, Monday Edward, Businge Harriet, Kyomugisha Clare, Muhirwe Fortunate, Mubu Robert, Byaruhanga Herbert,* and *Orishaba Grace* (hereinafter referred to as *PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW10, PW11*, *PW12* and *PW13* respectively). The Application is premised on grounds that; -


- (1)On 16th August 2024, this Court delivered judgement in **HCT-01-CV-CS-057 OF 2007** wherein it was declared under Paragraphs 2 and 5 of the decree of this Court, that the Applicant was a trespasser on the suit land except that the Applicant was the lawful owner of land comprised in FRV Block 149 Plot 5 measuring and limited to 146.09 Hectares. - (2)Under Paragraph 5 of the decree, this Court ordered that a resurvey, mapping and plotting should be concluded in respect of the suit land within three months from the date of delivery of the judgment by a team consisting of surveyors appointed by the Respondents, a surveyor appointed by the Applicant and led by the district land surveyor for Kyenjojo District. - (3)In the morning of **25th November 2025**, the 1st Respondent with 100 hooligans led by her sons *Kato Katenta* and *Blick Katenta* dawned on to the suit land comprised in Block 149 Plot 5 equipped with machetes, spears, pangas, sticks and stones and chased away the Applicant's workers, stole 15 acres of sugarcane, cut down maize gardens and cut down cows feed (ebisagazi) of around 20 aces. - (4)The Respondents are continuously clearing and cutting the Applicant's crops especially grass for feeding animals, sugarcane and staling matooke found on the suit land.


- (5)The 1st Respondent and her gang have so far cleared 50 acres and have threatened to harm the Applicant and his family as well as the workers if he does not migrate from the area. - (6)All indicators show that the Respondents have deliberately ignored, overlooked and/or failed to heed to and/or enforce the Court Order. - 3. In his Affidavit in Support of the Application, **PW1** mainly reiterated the above grounds and stated that he was informed by his farm manager, **PW2** that the said acts were reported to the Police on 21st November 2024 under a criminal trespass complaint but the Police informed him that the matter is civil in nature and not criminal. On his part, **PW2** stated that while hiding in a nearby forest on 21st November 2024, he saw *Asiimwe Ronald Katenta, Basingye Edson, Tusiime Juluis Kageyo, Mugisha Bushambire, Omuhereza Baguma, Brian S/o Kabarozi, Clovice s/o Otuyganyiire* and *Balinda Wilson* on the Applicant's land carrying pangas and spears. That on 30th November 2024, he witnessed those people harvesting and carrying the sugarcane, cassava, sweet potatoes and irish potatoes belonging to the Applicant and other farmers. - 4. *PW4, PW5, PW6, PW7, PW9, PW10, PW11*, and *PW12* stated that on 29th November 2024, they saw *Asiimwe Ronald Katenta, Balinda Wilson, Omuhereza Baguma, Brian Muhindo, Businge Edson, Tusiime Julius* and others carrying spears, pangas and sticks. *PW3* first saw them on 20th


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November 2024 and that they came back on 21st, 22nd, 23rd, 24th, 25th up to 9th December 2024. *PW8* saw them on them on 30th November 2024 while *PW13* saw them on 6th December 2023.

#### **Respondents' Affidavit in Reply**:

- 5. The Respondents opposed this Application through an Affidavit in Reply deponed by the 1st Respondent who deposed in brief as follows; - - (1)After receiving the judgement of this Court in **HCT-01-CV-CS-057 OF 2007**, on 10th September 2024, the 1st Respondent's Lawyers wrote to the Kyenjojo District Staff Surveyor seeking to have the suit land surveyed and also requested the Applicant to nominate a surveyor to represent him in survey exercise but he has not done so up to date. - (2)The 1st Respondent has never instructed the said *Kato Katenta* nor any other person to enter onto the suit land and chase the Applicant's workers or destroy and steal the Applicant's crops. - (3)It is instead the Applicant's workers who are harvesting the Applicant's crops and clearing the suit land using the Applicant's tractor. The 1st Respondent has not cleared any portion of the suit land which is subject to the survey, mapping and plotting as decreed by this Honourable Court. - (4)The 1st Respondent together with *Asiimwe* were summoned by Matiri Police to record statements but the complaints were later dismissed for lack


of evidence as opposed to the matter being criminal in nature because the allegation of theft of property are not civil in nature as alleged by the Applicant.

- (5)The Applicant has not demonstrated which exact paragraph of the Court Order that was violated and how the same was violated. - (6)The 1st Respondent has taken active steps to implement the judgment and orders of this Court but it is the Applicant who is frustrating the implementation of the orders of this Court by failing to appear in meetings called by the security officials to harmonise the issue of appointment of surveyors. - (7)The Applicant has not adduced any evidence to connect the 1st Respondent to the contempt and the purported pictures of destroyed maize crops, potatoes, sugarcanes attached to the supplementary Affidavits do not show the 1st Respondent harvesting those crops.

### **Affidavit in Rejoinder**:

6. In his Affidavit in Rejoinder, the Applicant stated in brief, that, the 1st Respondent started harvesting food from his land on 21st November 2024 up to 14th January 2025. *Breek Katenta* and *Kato Katenta* were visible in the garden commanding a group of 120 people and motor cycles among which is No. UFX 081M carrying irish potatoes was confiscated and is now at Kyenjojo


Police Station. It was the 1st Respondent who cleared a portion of the suit land which is a subject of the survey, mapping and plotting and the Police investigators from Kyenjojo visited the scene of crime and found the allegations to be true, photographs were captured by the investigators and he file is pending submission to the State Attorney of Kyenjojo.

7. That on 28th December 2024, the same gang led by *Ronald Breek Asiimwe* not only went ahead to harvest people's crops but also assaulted and threatened to harm people that ere protecting their properties namely *Muhire Richard* who was speared in the palm, and *Mujurizi Innocent* who was chased from his home together with his entire family. On 5th January 2025, the Applicant's tractor Registration Number UAZ 745P was confiscated by the 1st Respondent and her gang with spears and pangas, its driver and spanner boy were tortured and assaulted, handcuffed and taken to Matiri Police Post and later transferred to Kyenjojo Central Police Station where they were released on Police bond.

#### **Representation and Hearing**:

8. The Applicant was represented by *M/s Kayonga, Musinguzi & Co. Advocates* and *M/s Kesiime & Co. Advocates* while the Respondents were represented by *M/s KTA Advocates*. Both Counsel addressed me by way of written submissions which I have considered.


#### **Issues**:

- 9. The following issues arise from the pleadings and submissions of both parties for consideration by court: - **(1)Whether the Respondents are in contempt of the Court Orders issued in HCT-01-CV-CS-057 of 2007.** - **(2)What remedies are available to the parties?**

# **Consideration by Court**:

- 10. The *Black's Law Dictionary, 4th edition at page 390* describes contempt of court as the willful disregard or disobedience of a public authority. It is any act which is calculated to embarrass, hinder, or obstruct court in administration of justice, or which is calculated to lessen its authority or its dignity. It is committed by a person who does any act in willful contravention of court's authority or dignity, or tending to impede or frustrate the administration of justice, or by one who, being under the court's authority as a party to a proceeding therein, willfully disobeys its lawful orders or fails to comply with an undertaking which he has given. - 11. In **Hon. Sitenda Sebalu vs. The Secretary General of the East African Community, in Reference No. 8 of 2012***,* the East African Court of Justice citing the authors of **Halsbury's Laws of England, 4th Edition page 284 paragraph 458** described civil contempt thus: *"it is a civil contempt to refuse*


*or neglect to do an act required by a judgment or order of the court within the time specified in that judgment, or to disobey a judgment or order requiring a person to abstain from doing a specific act."*

12. The main import of the doctrine of contempt of court is to ensure that the orders of court are respected and to protect the sanctity of the institution that issues such orders by seeing to it that the orders issued are put into effect. This was elaborately brought out by **Romer J in Hadkinson v Hadkinson [1952] All ER***,* where he relied on the case of (**Church vs. Cremer (1 Coop Temp Cott 342**) where it was held thus; *"A party who knows of an order whether null or valid, regular or irregular, cannot be permitted to disobey it. . . as long as it existed".* The doctrine is also hinged on the principle of law that the whole purpose of litigation as a process of judicial administration is lost if orders by court through the set judicial process, in the normal functioning of the courts are not complied with in full by those targeted and/or called upon to give due compliance. Further, it is not for that party to choose whether or not to comply with such order. (See **Housing Finance Bank Ltd & Another**

### **vs. Edward Musisi, Miscellaneous. Application No. 158 of 2010**).

13. In addition to the above, orders of court must be complied with in totality in all circumstances by the party concerned, subject to the party's right to challenge the order in issue in such a lawful way as the law permits. It is the position of the law that to disobey an order of court or offer no explanation for


non-compliance to the issuing court, at any party's choice or whims, on the basis that such an order is null or irregular, or is not acceptable or is not pleasant to the party concerned is to commit contempt of court. (**See Andrew Kilama Lajul vs. Uganda Coffee Development Authority & 2others, Misc. Application No. 324 of 2020**).

- 14. In our legal, constitutional and jurisprudential matrix, the doctrine of contempt is not provided for in any statutory legislation either principal or subsidiary. Recourse is therefore made to the common law and the doctrines of equity as far as possible. Therefore, a review of case law on contempt is instructive as it offers in-depth guidance (**See Court of Appeal Civil Appeal No. 190 of 2015, Jingo Livingstone Mukasa vs. Hope Rwaguma at page 13**). Courts in adjudication of contempt of court claims always refer to the provisions of **Section 98** of the **Civil Procedure Act Cap. 284** and **Section 33** of the **Judicature Act** and the guidance from case law in Uganda and from common law jurisdictions. - 15. The East African Court of Justice in **Hon. Sitenda Sebalu vs. The Secretary General of the East African Community, in Reference No. 8 of 2012** laid down the test or grounds which must be proved in order to succeed on an application for contempt thus: *"To prove contempt, the complainant must prove the four elements of contempt, namely:* - *1. Existence of a lawful order;*

 - *2. The Potential Contemnor's knowledge of the Order;* - *3. The potential contemnor's ability to comply;* - *4. The potential contemnor's failure to comply."* - 16. The court also laid down the standard of proof where it was stated thus: *"The standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, and almost, but not exactly, beyond reasonable doubt. The jurisdiction to commit for contempt should be carefully exercised with the greatest reluctance and anxiety on the part of the court to see whether there is no other mode which can be brought to bear on the contemnor".* - **(a)Existence of a lawful order**: - 17. In **Lukenge Hakim vs. Hajjat Ajiri Namagembe and others, Court of Appeal Civil Application No. 0290 of 2020**, the court of appeal cited the position in **Carrey vs. Laiken (2015) 2 RCS 79** where court noted that the order alleged to have been breached must equivocally state what should and should not be done. - 18. In the instant case, there exists a lawful Order issued by this Court on 16th August 2024 in **HCT-01-CV-CS-057 of 2007**. The Respondents brought the said suit against the Applicant herein under the tort of trespass in respect of land comprised in Block 149 Plot 2, 120 acres of freehold land at Matiri and five pieces of customary land measuring different sizes. On 16th August 2024,


in its judgement, this Court found that the 2nd Respondent is the lawful owner of land comprised in **Block 149, Plot 2** of approximately 39.3 acres, the Respondents are the lawful owners of 120 acres of land at Matiri located between the National Forestry Authority (NFA) forest and the Mailo block originally belonging to Polycarp Kanyankole. That the pieces of customary land measuring different sizes belong to the 1st Respondent. This Court also declared the Applicant as a trespasser on the suit land but found that the Applicant is the lawful owner of land comprised in **Freehold Register Block 149 Plot 5** measuring and limited to 146.09 Hectares.

19. This Court also ordered the Applicant to vacate the suit land and issued a permanent injunction restraining him and his agents from further trespass on the suit land which belongs to the Respondents. The Court also ordered a resurvey, mapping and plotting in respect of Block 149 Plot 2 which belongs to the 2nd Respondent and Block 149 Plot 5 which belongs to the Applicant to ensure that each party is limited to the confines of the land that they lawfully own.

## **(b)Potential contemnors knowledge of the order and Potential contemnor's ability to comply**

20. It is a requirement of the law that for one to be found in contempt, he or she should have knowledge of the order. The knowledge should not be assumed but should be actual. Proof of knowledge may be by way of proof of service


of the order upon the contemnor or by implication that the contemnor by his conduct directly or indirectly had knowledge of the order.

21. In the instant case, the Applicant was the Defendant in **HCT-01-CV-CS-057 of 2007**, while the Respondents were the Plaintiff therein. On 16th August 2024 when judgement was pronounced in the same civil suit, the 1st Respondent was physically present in Court, as well as her Counsel *Mr. Nyakuni Nobert*. The Applicant was also ably represented in Court by his Advocate, *Mr. Musinguzi Bernard*. In the Affidavits in Support to the Application and in the Affidavit in Reply thereto respectively, both parties have alluded to the contents of the decree in **HCT-01-CV-CS-057 of 2007**. Therefore, both parties have knowledge of the existence of the judgement and Orders issued in **HCT-01-CV-CS-057 of 2007** and have the ability to comply with all the Orders.

## **(c) The potential contemnors failure to comply**:

- 22. As per the grounds of the Application stated in the Notice of Motion, it is alleged that in the morning of 25th November 2025, the 1st Respondent and her gang while on the land chased away the Applicant's workers, stole 15 acres of his sugarcane, cut down his maize garden and cut down 20 acres of his grass feed (ebisagazi). - 23. I have critically examined all the thirteen Affidavits in Support of the Application and found that the Applicant was not an eye witness but relied


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mainly on information given to him by his farm manager, **PW2**. The Applicant does not state anywhere in his Affidavit in Support of the Application that he saw any of the Respondents carrying out any of the alleged acts of contempt. **PW2** did not see any of the Respondents carrying out any of the alleged acts of contempt. Instead, he saw *Asiimwe Ronald Katenta, Basingye Edson, Tusiime Juluis Kageyo, Mugisha Bushambire, Omuhereza Baguma, Brian S/o Kabarozi, Clovice s/o Otuyganyiire* and *Balinda Wilson*. There is no evidence to suggest that these were working on the instructions and orders of any of the Respondents and the Applicant did not make them parties to this Application to enable the Court inquire into that. However, **PW2** did not see them on 25th November 2025 as stated in the Notice of Motion, he instead saw them on 21st and on 30th November 2024.

24.**PW3 – PW13** also never saw any of the Respondents committing any of the alleged acts of contempt. They instead saw *Balinda Wilson*, *Omuhereza Baguma, Brian Muhindo, Businge Edson, Tusiime Julius alias Kageyo* and others. Those were purportedly seen on 29th November 2024 and not 25th November 2024 as indicated in the Notice of Motion and none of the deponents to any of the Affidavits in Support of the Application show that these were acting on the instructions of the Respondents. Under Paragraph 20 of her Affidavit in Reply, the 1st Respondent stated that she has never instructed the said *Kato Katenta* and *Blick Katenta* or any other person to enter


onto the suit land, chase the Applicant's workers, destroy or steal the Applicant's crops and the Applicant has not adduced any evidence to rebut this.

- 25. The persons who purportedly entered onto the suit land and committed the alleged acts of contempt of Court are well known and have been listed in all the Affidavits in Support of the Application, but they were never made parties to this Application. These include *Asiimwe Ronald Katenta, Basingye Edson, Tusiime Juluis Kageyo, Mugisha Bushambire, Omuhereza Baguma, Brian S/o Kabarozi, Clovice s/o Otuyganyiire, Balinda Wilson* and other. Under **Article 28** of the **Constitution of the Republic of Uganda**, the principle that no person should be condemned unheard is a cornerstone of natural justice and due process. This principle ensures that all parties have an opportunity to present their case before any adverse decision is made against them. This Court therefore is constrained from making a decision that the said persons committed the alleged acts of contempt when they are not parties to this Application for them to first be accorded an opportunity to present their case or defend themselves. - 26. Additionally, this Application was rightly brought by Notice of Motion. **Order 52 Rule 3** of the **Civil Procedure Rules** provides that; *"Every notice of motion shall state in general terms the grounds of the application, and where any motion is grounded on evidence by affidavit, a copy of the affidavit*


*intended to be used shall be served with the notice of motion."* Therefore, the notice of motion must contain the grounds upon which the motion is premised and the Affidavit(s) in support thereto ought to contain the evidence in support of the stated grounds of the Application. In the case of **Kaloli Tabuta vs. Transroad Uganda Limited (Misc. Application No. 478 of 2019)**, the *Hon. Mr. Justice Henry I. Kawesa* stated that; -

*"I do agree. The purpose of O.52 r3 of the Civil Procedure Rules is to emphasise the fact that the notice of motion must contain grounds on which the application is based. Actually the supporting affidavit is to contain the evidence. Therefore, the notice of motion contains two sets of information, the first is the general grounds (not evidence) of what a party is pleading for in the motion. The 2nd part is the evidence upon which part one is based; which is normally an affidavit."*

27. In the instant case, ground 7 of the Application as stated in the notice of motion is as follows; -

*"7. That on the morning of 25th November 2024, the 1st Respondent and her gang while on the chased away the applicant's workers, stole sugarcanes of approximately 15 acres, cut down maize gardens and cut grass that cows feed on (ebisagazi) of around 20 acres."*

28. It would therefore be expected that the Affidavits in support of the Application would contain evidence to support the said ground upon which the Application


is based by confirming that on 25th November 2024, the 1st Respondent and her gang invaded the suit land and chased away the Applicant's workers. However, in this case, the Affidavits in support do not provide such evidence, they instead set out distinct and different particulars of alleged contempt of Court.

- 29. In his own Affidavit in Support of the Application, the Applicant himself stated that it was on the 21st of November 2024 when the 1st Respondent and her gang entered the land and chased away his workers. This averment by the Applicant contradicts and does not support the ground of the Application to the effect that the alleged acts of contempt happened on 25th November 2024. **PW2** also averred that the alleged acts of contempt happened on 21st and 30th November 2024 and he did not provide any evidence to show that the alleged acts actually happened on 25th November 2024. The evidence provided in the Affidavit in Support of the Application by *PW4, PW5, PW6, PW7, PW9, PW10, PW11*, and *PW12* is to the effect that the alleged acts of contempt happened on 29th November 2024. PW8 alleged to have witnessed the alleged acts of contempt on 30th November 2024 while PW13 stated that it happened on 6th December 2023. - 30. In my view, it amounts to a departure from pleadings where the Affidavit in Support of an Application has evidence contradictory to the grounds of the Application as stated in the Notice of Motion. Departure from pleadings is not


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allowed under **Order 6 Rule 7** of the **Civil Procedure Rules** which provides; *"No pleading shall, not being a petition or application, except by way of amendment, raise any new grounds of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading."*

It was held in **Struggle (U) Ltd vs. Pan African Insurance Company Ltd (1990) KAL 46 – 47**, that parties are bound by their pleadings which have the potential of forming part of the record and moreover, the court itself is also bound by what the parties have stated in their pleadings as to form facts relied upon by them. Therefore, the Affidavit in Support cannot put up a case which is different and distinct from that which is set out in the Notice of Motion itself. An Affidavit in Support must only contain facts that support the grounds as set out in the notice of motion. I would therefore reject the said evidence as contained in the different Affidavits in support of the Application for being a departure from the grounds as stated in the notice of motion.

31. PW3 (Kamugisha Humphrey) stated that she first saw the 1st Respondent's sons, Asiimwe and Kato leading a group of people with armed with pangas, spears and sticks and this this group came back on 21st, 22nd, 23rd, 24th, 25th up to 9th December 2024. However, no tangible evidence was provided, such as for example photographs, to support the said averments. In this digital era, it is unlikely that such forbidden acts would be committed on a daily basis from 20th November 2024 to 9th December 2024 and there is no single photographic


evidence to that effect. Under **Paragraph 10** of his Affidavit in Support of the Application, *PW2* stated verbatim as follows; -

*"10. That I then looked for Kamugisha Humphrey who is also a Manager and Muhire Richard. I first requested for the smart phone from Kesiime Miriam wife of the Applicant to go and capture some photographs. We went to a strategic place captured what they were doing and then I identified some people among others who included Asiimwe Ronald Katenta, Businge Edson, Tusiiime Julius Kageyo, Kazooba, Sunday Erick, Clovice S/o Otuganyire, Balinda Wilson and William S/o Kamihanda. I captured some photographs where they had cut grass, uprooted groundnuts and sweet potatoes. The photographs I captured are hereto attached as group annexture "B""*

- 32. I am able to discern from the above Paragraph that PW2 got a smart phone from the Applicant's wife, he got into a strategic place and captured photographs of what *Asiimwe Ronald* and others were doing on the land. I have critically examined the photographs which are attached on PW2's Affidavit in Support of the Application as group annexture B and found that they are merely undated photographs of grass, and crops. The photographs do not show anyone carrying out any activity on the suit land. - 33. As already stated herein above, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, and almost, but not


exactly, beyond reasonable doubt. I find that the evidence adduced by the Applicant in the instant case is insufficient to sustain an action for contempt of court.

34. I find the instant Application devoid of any merit and it is hereby dismissed with costs. It is so ordered.

**Dated at Fort Portal this 11th day of June 2025**


Vincent Wagona

**High Court Judge**

**FORTPORTAL**

**Ruling delivered on the 19th day of June 2025**