Namusisi & 2 Others v Makumbi & Another (Civil Suit 39 of 2017) [2023] UGHC 368 (30 May 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CIVIL SUIT NO.39 OF 2017.**

## **1. LEOCADIA NAMUSISI**

## **2. NAWENJA ANNET**

# **3. KABANDA DEOGRATIUS:::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFFS VERSUS**

## **1. MAKUMBI MAURICE**

**2. MAKUMBI HENRY::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANTS.**

# *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba.* **JUDGMENT**

The Plaintiff brought this suit against the Defendants jointly seeking the following orders:

1. A declaration that the 1st Defendant obtained Letters of Administration through fraud.

2. Revocation of Letters of Administration granted to the 1st Defendant vide Administration Cause No.151 of 2011.

3. Vacation of a caveat lodged by the 1st Defendant on Buddu Block 368, Plot 164.

4. A permanent injunction against the Defendants jointly restraining them and any of their individual or joint tenants, agents, family members or anybody claiming under them, from any interference with the suit land.

5. General damages

6. Interest on any pecuniary awards at a Court rate from the date of Judgment until full settlement.

7. Costs of the suit.

## **Background**.

It is the Plaintiffs' claim that at all times, they have been in occupation of a portion of land situate at Buddu Block 368 Plot 164 which was given to them as a gift *intervivos* by the late Teodolo Kayiira and that the gift was confirmed in his will. The Plaintiffs' state that the late Kayiira was a husband to the 1st Plaintiff and a father to the 2nd and 3rd Plaintiffs. It is also stated for by the Plaintiffs that the late Kayiira was a father to the 1st Defendant and a grandfather to the 2nd Defendant. It is also the Plaintiffs' case that the 1st Defendant fraudulently acquired letters of administration to the estate of the late Kayiira. That specifically, the letters


of Administration were acquired without the consent or involvement of the Plaintiffs and that the Defendants stated that the late had died intestate which was not the case. It is further alleged that the Defendants did not exhibit any inventory even after obtaining letters of administration. It was also the Plaintiffs' case that the Defendants have used the letters of administration to effect changes to the certificate of title of land comprised in Buddu Block 368 Plot 164 which previously belonged to the deceased. The Plaintiffs also claimed that the Defendants were jointly interfering with the Plaintiffs' use, quiet possession and enjoyment of the land which was given to them as a *gift intervivos* by the late Kayiira and that the 1st Defendant without justifiable cause, lodged a caveat.

The Defendants filed a joint Written Statement of Defence. The Defendants denied the Plaintiffs' claims and stated that the Plaintiffs have never been in possession of the land which they seek. The Defendants denied any trespass on their part and alleged that the Plaintiffs jointly sold off part of the estate of the late Ibrahim Njuba to Andrew Damulira under a belief that it had been donated to them as a gift *intervivos* by the late Theodoro Kayiira. It was further alleged that the late Kayiira never left any will and neither did he donate any gifts *intervivos* to the Plaintiffs. The Defendants further alleged that the caveat was intended to protect the interest of all beneficiaries. The Defendants also denied fraud in the acquisition of the Letters of Administration.

Four issues were raised for determination;

- 1. Whether the late Theodolo Kayiira died intestate. - 2. Whether the 1st Defendant's Letters of Administration should be revoked. - 3. Whether the Defendants are trespassers on the suit land. - 4. What remedies are available to the parties.

The parties adduced evidence by way of witness statements except for PW1 who adduced evidence orally.

The Plaintiffs relied on evidence of PW1, Leocadia Namusisi, PW2, Nazziwa Folomera Nalongo, PW3, Nantume Justine and PW4, Nawenja Annet however, I note that PW1 and PW2 have since passed on. The Defendants on the other hand relied on the testimonies of two witnesses that is; DW1, Makumbi Henry and DW2, Edward Mukwaya.


#### **Plaintiffs' case.**

PW1 testified that the 1st Defendant was her step son while 2nd Defendant was a son to the 2nd Defendant. She then stated that she was a wife to the late Theodolo Kayiira. She further stated that the Defendants are interfering with her use of the land her husband left her. Specifically, that the 1st Defendant entered her land and gave her coffee Plantation to his son, the 2nd Defendant and that the 1st Defendant also planted boundary marks outside her kitchen which were later removed but that the Defendants took the land on which her coffee plantation sits. She further stated that the Defendants changed the names on the certificate of title from the late Kayiira's names to Kyagulanyi Steven, the family heir, then to Makumbi without her consent. She also stated that her husband died testate.

PW2, stated that the 1st Defendant is her son while the 2nd Defendant is her grandson. She stated that she is a widow to the late Kayiira with whom they had 8 issues including the 1st Defendant. The late Kayiira gave her part of the land comprised in Buddu Block 368 Plot 164 which measures 8 acres and 70 decimals on which she constructed a house where she has been residing to date. She stated that the land previously belonged to the late Kayiira's father, Njuba Ibrahim who then gave it to the late Kayiira. She then stated that in 1952, the late Kayiira married the 1st Plaintiff (PW1) and gave her a portion of the land on which she has been residing and that PW1 and her children have been using the land for cultivation. She further stated that the late Kayiira also gave the 1st Defendant a portion of the land and that the 3rd Plaintiff and a one Mukwaya Edward also got portions but the 1st defendant has opted to also take her portion. She stated that her husband died testate in 1996 and that in the will, he left Steven Kyagulanyi as heir but upon the heir's death, the Defendants forcefully took over her portion of the land and the 2nd defendant constructed shrines thereon. She also stated that the 1st Defendant obtained letters of Administration without their consent and also got himself registered on the certificate of title in 2011. She further stated that the 2nd Defendant was forcefully harvesting her crops. She also stated that the land sold was land given to the heir by the late Kayiira and it was sold by the heir.

PW3, Nantume Justine in her witness statement stated that her late father Kayiira divided the land into 2 portions giving one portion to the 1st plaintiff and another to her mother Nazziwa Folomera who were both wives of the deceased during his life time. She then stated that her mother and the 1st Plaintiff were at all times resident on the land and they raised their children on the land. She reiterated the partition of the land into other portions by the late Kayiira. She further stated that the late Kayiira also partitioned the 1st Plaintiff's land into portions and that


each of the parties occupied and starting using their portions. In 2011, the 1st Defendant removed boundary marks. She also stated that her father left a will. The will was read to them in 2005 by the Administrator General in his offices in Kampala in presence of the 2nd Defendant. The heir Steven Kyagulanyi obtained letters of Administration in 2003 and duly registered himself as proprietor to the suit land and only sold a portion that was given to him under the will. She then stated that Steven Kyagulanyi passed on but left a will where he appointed a one Kyobe Ibrahim as executor of his will but by the time Kyobe Ibrahim became administrator in 2013, the 1st Defendant had already obtained letters of Administration in 2011 without the consent of the family. That the 1st Defendant got himself registered as proprietor and subsequently distributed his mother's portion to his son, the 2nd Defendant who has since then taken the land constructing shrines thereon.

PW4, Nawenja Annet on her part stated that she was a daughter to the 1st plaintiff. She also corroborated the distribution of the land among the family members. She also stated that sometime in 2005, they were summoned to the Administrator General's office where their father's will was read to them. The witness thereafter reiterated the sequence of events as stated by the PW3.

That was the Plaintiff's case.

#### **Defendants' case.**

DW1, Makumbi Henry stated that he was informed by his father and other clan leaders that the said Ibrahim Njuba never occupied or utilized the land in dispute. He stated that after the death of a one Braziriyo Tebujanga who was a brother to the late Ibrahim Njuba, Njuba allowed Nabakooza Tereza who was the widow of the late Braziriyo to go and utilize the land together with her daughters and that they have been in occupation since 1920. He further stated that the late Kayiira was an heir to Braziriyo and not Njuba. That the portion given to the 1st Plaintiff and his mother was a portion from that of the widow, Nabakooza Tereza and her sisters. He further stated that the 1st Defendant's aunt, Nantume Zulurina donated her portion measuring 1 acre to the 1st Defendant who then donated the same to him. That during the last funeral rites of his father, no will was ever produced. He then stated that the clan recommended the 1st Defendant to get letters of administration when it was discovered that the late Kyagulanyi Stephen had procured registration on the land illegally. He then stated that the 1st Plaintiff and Kyagylanyi Stephen sold the biggest portion of the land.


DW2, Edward Mukwaya on his part stated that the land belonged to Ibrahim Njuba and that the late Njuba never occupied or utilized the land. He further stated that after the death of Njuba, Njuba's brother Braziriyo Tebujanga allowed Njuba's widow (Nabakooza Tereza) and her sisters to occupy and utilize the land. He was informed by the clan heads that Nabakooza Tereza and her sisters moved to the land in 1920. He stated that 10-15 years after, the late Kayiira who is a son to Nabakooza Tereza joined them. The late Kayiira identified a portion and started cultivating on the same. That the late Kayiira was an heir to Braziriyo Kayiira and not Ibrahim Njuba. He then stated that the late Kayiira in 1968 built a house on the portions of the land belonging to Zuluka and Agati who were his sisters and later shifted the 1st Plaintiff and her children to the portion. In 1973 after the death of Namuleme, the late Kayiira took over her portion and chased away her children and the 1st Plaintiff took over the portion adding it to the portion she already had. He further stated that in 1974, the late Kayira, out of the portion he held with Nazziwa Folomera donated a portion measuring 1 acre to him and that Namuleme Zulurina donated her portion measuring 1 acre to the 1st Defendant who in turn donated it to his son, the 2nd Defendant who currently occupies and uses it and that the portion of the land formerly occupied by the late Nabakooza Tereza is currently being occupied by the 3rd Plaintiff and his son Lwanyaga Edward. He then stated that the late Kayiira died intestate in 1996 and that the 1st Defendant was appointed as heir. That sometime later, they discovered that a will had been forged by the 1st Plaintiff and a one, Stephen Kyagulanyi and that the said Stephen Kyagulanyi sold a huge part of the land.

That was the Defendants'case.

At the closure of the Defendants' case, there was a locus visit. The Defendants were absent at locus visit despite having chosen the day on which the Court was to visit locus. I also note that the Defendants were duly reminded on the date of the locus visit.

Parties were instructed to file written submissions, however the Defendants never filed any submissions despite the fact that there is an affidavit of service on record. This Court shall therefore dispense with submissions for the Defendants.

#### **Submissions for the Plaintiffs.**

**1. Whether the late Theodolo Kayiira died intestate.**


It was submitted for the Plaintiffs that the late Teodolo Kayiira died testate in 1996 and that on 14th January 1990, he made a will before his former lawyers' M/S Nnyanzi and Nnyanzi Advocates. That PW1 testified to the existence of a will and that the evidence of existence of a will or its authenticity was never challenged. Counsel submitted that evidence of existence of a will was corroborated by PW3 and PW2 who is the biological mother of the 1st Defendant. It was also submitted that PW3 led evidence which was to the effect that the will was read to the family members at the Administrator General's office in 2005 and that the 2nd Defendant was present at the reading. Counsel argued that the 2nd Defendant did not dispute the will. In conclusion, it was submitted for the Plaintiffs that the existence of the will calls for revocation of letters of Administration since upon application by the 1st Defendant for Letters of Administration, he indicated that the late Kayiira had died intestate.

### **2. Whether the 1st Defendant's letters of administration should be revoked.**

Counsel submitted that the Letters of Administration granted vide Administration Cause No. 151 of 2011 should be revoked on account of fraud. That during trial, evidence was led to show that the 1st Defendant obtained Letters of Administration without the Plaintiffs' consent or knowledge. It was further submitted that PW1 in her testimony stated that the 1st Defendant in his Application for letters of Administration stated that the late Kayiira had died intestate and yet it was not the case. Counsel submitted that the above was corroborated by PW2 and PW3. Counsel proffered that the Defendants did not adduce any evidence to counter the fact the 1st Defendant obtained the Letters of Administration fraudulently. Counsel relied on Section 234(1) and Section 234(2)(b) of the Succession Act Cap 162 as amended to support his submission on the revocation of the Letters of Administration for a just cause. Counsel also relied on the case of Fredrick Zabwe versus Orient Bank and others, SCCA No.04 of 2006.

#### **3. Whether the Defendants are trespassers on the suit land.**

Counsel submitted that the land was given to the Plaintiffs as a gift *intervivos* during the late Kayiira's lifetime. It was submitted that the Plaintiffs have been in occupation of the suit land for more than 65 years until their occupation and use of the land was interrupted by the Defendants in 2012. Counsel further submitted that the 2nd Defendant has taken over the portion belonging to PW2. It was then submitted that PW1, PW2 and PW3 led evidence to support the fact that the late Kayiira gave them their respective portions of the land during his lifetime and that PW1 and PW2 had been utilizing their portions until the 2nd Defendant started cultivating on the land and also erected shrines on the same. Counsel submitted that this was all verified


during the locus visit. Counsel relied on the case of **Justine Lutaaya versus Stirling Civil Engineering Company Limited, Civil AppealNo.11 of 2002** to support his submissions on the Defendant's actions amounting to trespass.

# 4. **What remedies are available to the parties.**

Having submitted on all issues and inviting Court to determine the same in the Plaintiffs favor, Counsel sought the following;

1. A declaration that the late Teodore Kayiira died testate.

2. An order Revoking letters of Administration granted to the 1st Defendant vide Administration Cause No.151 of 2011.

3. A declaration that the Plaintiffs are the owners of the suit land and that the Defendants are trespassers on the land.

4. An order vacating the caveat lodged by the 1st Defendant on the suit land.

- 5. A permanent injunction against the Defendants. - 6. Mesne profits. - 7. Punitive damages. - 8. General damages - 9. Costs of the suit.

Having carefully considered the evidence of both parties and the submissions for the Plaintiff, I now proceed to determine the issues.

## **Court's determination**.

Before I delve into the resolution of the issues, it is important to note that the legal burden of proof rests on the Plaintiffs and the standard of proof is on the balance of probabilities. (see: *Kamo Enterprises Limited versus Krystalline Salt Limited, SCCA No.8 of 2018*.)

# 1. **Whether the late Theodolo Kayiira died intestate.**

I am alive to the fact the late Kayiira's will was executed before the amendment to the current Succession Act . Under *Section 50* of the *Succession Act* prior to the amendment, for a will to be valid;

**(a)** *the testator shall sign or affix his or her mark to the will, or it shall be signed by some other person in his or her presence and by his or her direction;*

 *(b) the signature or mark of the testator or the signature of the person signing for him or her shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will;*

*(c) the will shall be attested by two or more witnesses, each of whom must have seen the testator sign or affix his or her mark to the will, or have seen some other person sign the will in the presence and by the direction of the testator, or have received from the testator a personal acknowledgment of his or her signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.*

From the above provision, for a will to be valid, it must be in writing, the testator must sign or affix their mark, the will must also be attested to by two witness who must have seen the testator signing. (see: *James Kamukama versus Zaribwedde and another, HCCS. No.1144 of 1997*).

On perusal of the will which was admitted into evidence and marked PExh2, the same is dated 15/01/1990. The late Theodolo Kayiira affixed his thumb print twice at the end of the will and the will is also attested by two witnesses. The Will also appointed the late Stephen Kyagulanyi as heir. The Will also provides for distributions of his property.

As to the existence of a will and whether Kayiira executed the will, it was PW1's testimony that the late Kayiira left a will. This was corroborated by PW2, PW3 and PW4. They also stated that sometime in 2005, they attended a meeting called by the Administrator General's office where the will was read to them. They further stated that DW1, the 2nd Defendant was privy to the meeting however, the 1st Defendant refused to attend the meeting despite constant calls for him to attend.

DW1, with regards to the will stated that he was not aware of any will and he only got to know about it in Court. DW2 on the will, stated that it later came to their knowledge that a will had been forged.

I am inclined to make a finding that the late Kayiira left a will because the Plaintiffs witness were consistent in their evidence. I also note that the authenticity of the will was never challenged in cross examination. DW1 on his part stated that he did not know of existence of the will but only got to know about it in Court. I find this highly unlikely because DW1 never


challenged the fact that he was present at the Administrator General's office when a family meeting was called to read the will. I therefore come to a conclusion that DW1 was not being truthful in terms of his knowledge of existence of the will. I am further inclined to come to the conclusion that the late Kayiira left a will because DW2 only stated that it came to their knowledge that a will had been forged. Besides his assertion that they learned that a will had been forged, there was no evidence adduced to support the charge of forgery. Nothing was led to establish the alleged forgery.

It is therefore my finding that the evidence considered in general, supports the fact that the late Theodolo Kayiira left a valid will and died testate.

This issue is hereby answered in the negative. The late Teodolo Kayira did not die intestate.

## **2. Whether the 1st Defendant's letters of administration should be revoked.**

As rightly submitted for the Plaintiffs, annulment and revocation of grants is governed by *Section 234 of the Succession Act* as amended and it is to the effect that;

*(1) The grant of probate or letters of administration may be revoked or annulled for just cause.*

*(2) In this section, "just cause" means—*

*(a) that the proceedings to obtain the grant were defective in substance;*

*(b) that the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case;*

*(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though the allegation was made in ignorance or inadvertently;*

*(d) that the grant has become useless and inoperative through circumstances; or*

*(e) that the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with Part XXXIV of this Act, or has exhibited under that Part an inventory or account which is untrue in a material respect.*

It was submitted for the Plaintiffs that the 1st Defendant obtained the letters of administration through fraud. It was submitted that on the Application for the letters of Administration the 1 st Defendant stated that the late Kayiira had died intestate and yet it was not the case.

*Fraud is an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. Fraud*


*is also a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations,or by concealment of that which decieves and is intended to decieve another so that he/she act upon it to his legal injury*. (see: *Fredrick Zabwe versus Orient Bank and others, SCCA. No.04 0f 2006.*)

Fraud must be specifically pleaded and the standard of proof is beyond a balance of probabilities but not beyond reasonable doubt. (see: *J. W Kazoora versus M. L. S Rukuba, SCCA. No.13 of 1992*)

It was specifically pleaded for the Plaintiffs that the 1st Defendant on his Application for letters of administration stated that the late Kayiira had died intestate and yet it was not the case. It was also pleaded that the 1st Defendant obtained the letters of Administration without the consent or knowledge of the Plaintiffs and that the 1st Defendant willfully neglected to file an inventory.

Letters of Administration issued to the 1st Defendant were admitted as evidence and marked PExh4. PW2 stated that the 1st Defendant obtained letters of Administration without their consent and subsequently got himself registered as proprietor. PW2 was crossed examined by both DW1 and DW2 but her assertion that the 1st Defendant obtained letters of administration without their consent was never challenged. The fact that the 1st Defendant obtained letters of administration without the Plaintiffs' consent was corroborated by PW3. In cross examination, no evidence arose as to the fact that the family gave their consent to 1st Defendant. The Defendants never adduced any evidence to support the fact that they obtained the consent of the family.

Secondly, that there is no dispute that PW1 and PW2 are the widows of the late Theodore Kayiira. The Defendants contend that the suit land has never belonged to the late Teodolo Kayiira.. However, the certificate of title to the suit land clearly indicates that the late Theodore Kayiira was the registered proprietor in 2003. Further, when the 1st Defendant applied for the letters of administration, he applied for letters of administration to the estate of Theodore Kayiira. The 1st Defendant was aware of the ownership of the land when he applied for letters of administration. I also earlier observed that a meeting was called in the Administrator General's office in 2005 where the will of the late Kayiira was to be read but the 1st Defendant refused to the attend it, even though his son, the 2nd Defendant was present. This evidence was never rebutted.


It is therefore my opinion that the evidence supports the fact that the 1st Defendant was aware of the will and the fact that the will confirmed the late Kayiira distributions and the Plaintiffs entitlements as wives to the late Teodolo Kayiira. When the 1st Defendant proceeded to apply for letters of administration, he concealed the existence of a will which in my opinion, he was aware, existed. The preceding proposition together with the fact that the Defendants never challenged the fact that the 1st Defendant never obtained the consent of the Plaintiffs, points to deliberate acts of dishonesty intended to deprive the Plaintiffs a right to participate in the administration of the estate process.

I am therefore inclined to annul the letters of administration issued to the 1st Defendant on account of fraud.

I also note that the 1st Defendant having used the fraudulently obtained letters of Administration to have himself registered on the certificate of title to the land, affects his title to the land and the circumstances warrant a cancellation of his name from the certificate of title having got himself registered through fraud.

This issue is answered in the affirmative.

## **3. Whether the Defendants are trespassers on the suit land.**

In *Justine E. M. N. Lutaaya vs Starling Civil Engineering Co. SCCA No.11 of 2002*, it was observed that trespass to land is premised upon interference with the possession of land and to bring an action of trespass as one is required to have had an interest in the subject land. In the determination of this issue, it is important to first establish that the Plaintiffs have an interest in the suit land and that the Defendants are interfering with their possession.

As earlier observed, the late Theodore Kayiira left a will. In his will, he confirmed his gifts *intervivos* to various members of his family.

A gift inter vivos is defined in *Black's Law Dictionary 8th Edition at page 710* as;

"…a gift of personal property made during the donor's life time and delivered to the donee with the intention of irrevocably surrendering control over the property."

In the case of *Joy Mukobe vs. Willy Wambuwu HCCA No. 55 of 2005*, the court held that; "…for a gift *intervivos* to take irrevocable roots, the donor must intend to give the gift, the donor must deliver the property, and the donee must accept the gift."

In the will, the testator indicated that he already gave the 1st Plaintiff a portion of the land on which is a house where she resides and a coffee plantation which extends upto a mugavu tree


and a banana plantation neighboring Kalema. To PW2, he stated that he already gave her a house, a banana plantation and coffee plantation bordering Kalema downwards and Mukwaya. To his children namely; Maurice Makumbi, Kabanda Deogratious Kabanda and Edward Mukwaya, he stated that he had already given them each a part of the coffee plantation. To Ibulahim Kyobe, he had given a portion starting from the road sloping to Kaweesa. And for Kyagulanyi, his portion started from the road up to the house yard of Nnalongo bordering Kabanda and downwards he borders Makumbi and stops at kaweesa's portion.

The above distributions were corroborated by the Plaintiffs witnesses. PW1 and PW2 stated that the late Kayiira had earlier divided the land into two portions to each be occupied by PW1 and PW2 and their respective children in 1952. However, when the children grew older, the late Kayiira further demarcated the land into more portions as indicated in the will. The Plaintiffs' witnesses stated that when the distributions were made, each of the beneficiaries to the distributions immediately took possession. It was further stated for the Plaintiffs that they have been in occupation of the land for more than 65 years. It is my observation that the Defendants did not challenge the Plaintiffs occupation of the land.

DW2's evidence was to the effect that the land was not owned by the late Kayiira but it was instead owned by Ibrahim Njuba. That on the death of Njuba's brother Braziriyo Tebujanga, Njuba allowed his brother's widow and her daughters to utilize the land. He further stated that he was informed that the daughters shifted to the land in the 1920s. He then stated that the late Kayiira simply condoned off a portion for himself from that which the same was being used by the daughters. In cross examination, he stated that the whole family is on the land. He then stated that the only occupants of the land are members of the family of the late Kayiira. He further stated there were no disputes on the late Kayiira's land during his life time. He also stated that his further gave him a portion and that the late Kayiira gave everyone a portion. DW1 on this part stated that he only occupied his father's portion and that he was not born yet when his father got the land.

From the evidence adduced, I find that the land belonged to the late Kayiira and it was gifted to the Plaintiffs during his life time.

A certificate of title to land comprised in Block 368 Plot 164 Buddu County was tendered in evidence and marked PExh1. The certificate of title indicates that the late Kayiira was the registered proprietor after his father. The Defendants never challenged the authenticity of the certificate of title and neither did they adduce sufficient evidence to challenge the late Kayiira's ownership of the land. DW1 on his part stated in cross examination that he only occupies his father's portion while DW2 in cross examination stated that the portion he occupies was given


to him by the late Kayiira while also giving other family members their portions with each of them having taken possession.

I therefore find that the evidence is consistent with the fact that during his life time, the late Kayiira owned the suit land, gifted various portions of the suit to the different members of the family and the beneficiaries of the distributions duly took possession and have been occupation of the portions given to them and as such the portions of land given to them constituted *gifts intervivos*.

As to whether the Defendants are trespassers, as earlier observed it will have to be established that the Defendants are interfering with the Plaintiffs possession.(see: *Justine E. M. N. Lutaaya vs Starling Civil Engineering Co. SCCA No.11 of 2002.)*

PW2 stated that the 1st Defendant gave their portions to the 2nd Defendant who thereafter entered on the portions and started planting crops and also forcefully constructed 5 shrines thereon. She further stated that the 2nd Defendant has been harvesting her crops without her consent. PW2 also stated that the defendants removed boundary marks from the 1st Plaintiffs land. Both Defendants in cross examination never challenged the assertion made by PW2. PW1 stated that the 1st Defendant gave the 2nd Defendant her coffee Plantation and that he further planted boundary marks next to her kitchen. In cross examination, she insisted that the Defendants took her coffee Plantation. PW3 corroborated the fact that the Defendants took her the land. The Defendants never disputed the acts complained of however, the 2nd Defendant stated that the land belongs to his father.

At locus the distribution as contained in the will by the late Kayiira and as corroborated by the Plaintiffs evidence was confirmed. At locus this Court also observed that the 2nd Defendant had constructed a home and shrines on the Plaintiffs portions. These structures where largely on the portion belonging to PW2 but they also extended to the 1st and 2nd Plaintiffs pieces of land. It is my observation that as much as the 2nd Defendant alleges that he is in occupation of the 1st Defendant portion, the evidence adduced by all the plaintiff's witnesses and his own testimony show otherwise. I therefore find that the land which he occupies does not belong to him but belongs to the Plaintiffs and as such, his belief is misconceived.

With the above, it is my finding that the Defendants are trespassing on the portions of the suit land that were specifically donated to the Plaintiffs and belong to the Plaintiffs.

I am alive to the fact that the 1st Plaintiff has since passed on however, her interest in her land devolves to her children.

Issue 3 is hereby resolved in the affirmative.


On the caveat lodged by the 1st Defendant on the entire piece of land, it is not jusfied and should be vacated because as I observed earlier in the Judgement, each party is in possession of their portion of the suit land except the 2nd Defendant who I have held is a trespasser on portions belonging to the Plaintiffs. It is also my observation that the evidence adduced by the Defendants is insufficient to support the fact that the 1st Defendant has any interest in portions occupied by the Plaintiffs and as such, the caveat interferes with any dealings the Plaintiffs might want to have on the land in respect to their portions. I therefore consider it necessary to vacate the caveat lodged by the 1st Defendant.

## **Remedies.**

Having found that the late Kayiira died testate and that the letters of Administration obtained by the 1st Defendant were obtained through fraud and that the Defendants are trespassers on the Plaintiffs' land, I hereby issue the following the following orders;

**1. A declaration is hereby issued that the letters of administration granted to the 1st Defendant vide Administration cause No.151 of 2011 were obtained through fraud.**

**2. The letters of Administration in 1 above are a nullity and are hereby specifically revoked.**

**3. The name of the 1st Defendant is to be cancelled from the certificate of title to the land comprised in Buddu Block 368, Plot 164.**

**4. The caveat lodged by the 1st Defendant on the land is hereby vacated.**

**5. An eviction order is hereby issued against the Defendants on the portion of land belonging to the Plaintiffs.**

**6. A permanent injunction is hereby issued against the Defendants or their agents from interfering or dealing with the Plaintiffs land.**

**7. The Defendants shall jointly pay general damages of Ugx twenty million.**

**8. Costs of the suit are awarded to the Plaintiffs.**

I so order.

Dated and delivered electronically this 30th day of May 2023.

## **VICTORIA NAKINTU NKWANGA KATAMBA JUDGE**