Namande v MKS Limited and 2 Others (Miscellaneous Application 399 of 2023) [2023] UGHCLD 253 (23 August 2023)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DIVISION)

## **MISCELLANEOUS APPLICATION NO.399 OF 2023**

## (Arising from Civil Suit No.656 of 2020)

NAMANDE FLASIKA NAKIBUUKA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. MKS LTD

$\mathsf{S}$

2. DEANNE THOMPSON TARAKABAJWISA

# 3. PROBUILT CONSTRUCTION FIRM LIMITED:::::::::::RESPONDENTS 10

## Before: Lady Justice Alexandra Nkonge Rugadya.

## Ruling.

## **Introduction:**

The applicant through her the firm of *M/s Kayongo Jackson & Co. Advocates* brought this application under the provisions of section 98 of the Civil 15 Procedure Act cap.71, and Order 1 rules 10 (2) & 13, & Order 52 rules 1 & 2 of the Civil Procedure Rules SI 71-1, seeking orders that the applicant be joined as a party cum defendant to Civil Suit No.656 of 2023 and all applications arising therefrom; and that costs of the application be provided for.

#### Grounds of the application: 20

The grounds of the application are contained in the affidavit in support deponed by the applicant.

Briefly that at the time of her death, the late Lusiya Nabawanuka Namutebi (hereinafter referred to as 'the deceased'), the applicant's aunt was the registered

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proprietor of the land comprised in Btock 276 plot 25OO neasurlng dppfoxllmo/telg 2 acres sltuate dt Buge Ntlnda (hereinafier referred to as 'the suit land,) which is the subject of ciutl sult No.655 oJ 2O2O, having purchased the same to be used as a burial ground; and that the deceased was indeed buried

5 thereon

That sometime in February 2023, tJrre applicant learnt that the respondents instituted clutl sutt No.656 o! 2O2O seeking various orders including an order for cancellation of Nabuuma Justine Lusiya as the registered proprietor of the suit land, and reinstatement of the respondents as the registered proprietors of

10 land comprise d in Kgadondo Block 276 plot 4478 & 4477 in their capacity as bonafide purchasers for value, without notice of fraud'

That the applicant being the heir and one of the beneliciaries of the late Lusiya Nabawanuka Namutebi claims an interest in the land claimed by the respondents;andthatanyorderssoughtbytherespondentsarenotonlylikely to affect the applicant,s interest in the suit, but also tantamount to depriving her

of her interest in the deceased's estate. 15

That the 2.4 defendant in cluil suit trIo.556 of 2O2O who is not known to the family purporting to be the administrator of the deceased's estate was fraudulently granted letters of administration.

- That since the 1940s, the suit land has been taken care of by the late Nsubuga as burial grounds until sometime in 2o 11 when a one Mugabi Samuel and the respondentsstartedclaiminginterestthereinandthattheyhaveworkedin concert on their illegal scheme to disentitle the deceased's bonafide and lawful beneficiaries. 20 - That while the respondents further embarked on fraudulently and illegally registering the suit land in their names, the said Nabuuma Justine Lusiya is neither daughter nor is she a descendant to the late Nabawanuka Namutebi as she claims in the grant' 25

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That in furtherance of their illegalities, the respondents caused the subdivision of Elock 276 plot 25OO and created Kgadondo Block 276 plot 4478 & 4477 and instituted ctuit suht No.656 of 2O2O claiming to have bought the lal1d administered by Nabuuma Justine Lusiya yet the 2 acres remained for the

5 beneficiaries of the deceased's estate'

Upon discovery of the illegalities by the respondents and their accomplices, the applicant now seeks to be joined as a party to clvll sult IVo.556 oJ 2O2O so that the record can be straight.

This apptication is intended therefore to protect her beneficial interest in the suit land; avoid multiplicity of proceedings and that the applicant ought to be heard in regard to her interest in the suit land; and that this court has jurisdiction to add a party to a suit before it at any stage of the proceedings to enable court effectually and completely deal with all matters before it. 10

Furthermore, that it is in the interest of justice that the applicant is joined as a defendant in ctutt sult 556 o? 2O2O to safeguard her beneficial interest in the land.

# Decislon of court:

None ofthe respondents filed an application to oppose the prayers sought in this application, each having been served with court process as directed by this court.

20 It is now settled law that where facts are sworn to in an afhdavit and they are not denied by the opposite party; the presumption is that they are accepted' (see: Makerere llnluersTtg uersas St. Mark Educatlon Instltute Ltd. & Others [1994] KALR 26; Ertdadi Ahlmblslbue uersas World Food Programme & Others [1998] KALR 32; Kalyesubula Fenekansl oersus Luuero Dlstrlct Land Board & Others; Miscellaneous Appllcatlon No' 367 of 2071) 25

It would be therefore in the interest of justice that all matters touching the subject matter of the suit land be determined finally and completely, to avoid

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litigating over the same matters again, and since none of the respondents did not object to this application, this court is inclined to grant this application.

This application is therefore granted with no orders as to costs.

I so order.

$\mathsf{S}$

alulaega. $\cdots$

Alexandra Nkonge Rugadya

**Judge**

23<sup>rd</sup> August 2023. $10$

Deliveed<br>23/08/2023