Ntambi v Nakayenga and 3 Others (Civil Suit No. 358 of 2014) [2022] UGHCLD 134 (7 July 2022)

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DIVISION)

#### CIVIL SUIT NO. 358 of 2014

JOSEPH SSOZI NTAMBI....................................

#### **VERSUS**

#### 1. ESTHER NAKAYENGA

- 2. DAVID KIRABIRA - 3. MALCOM INVESTMENTS LTD - <table>

4. HASSAN KAWEESA..................................

#### Before: Lady Justice Alexandra Nkonge Rugadya

#### **JUDGMENT**

#### Introduction:

#### The plaintiff is the registered owner of land comprised in Kyadondo plot 305 at 15 Kirinya, Bweyogerere at Wakiso, measuring 2.13 hectares (suit land). Through his duly lawful attorney Ms. Eva Konde, he filed this suit seeking:

1) a declaration that all the land comprised in the suit land belongs exclusively to him as the registered owner ;

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- *2) A declaration that the defendants are trespassers on the suit land;* - <pre>3) Vacant possession ;</pre>

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- 4) A permanent injunction against the defendant restraining them, their agents/servants and any others deriving title from the defendants from entering dealing, transacting or otherwise dealing with the land; and - 5) General damages.

#### Fdcts of th,e ca.se:

The facts in brief arc that the plaintiff is a grandson of the latc Jacob Ssozi Kyaligamba, claimed to havc becn thc original proprictor of thc land compriscd in Kyad.ondo Block 234, Plot 3O5, Klringa, sincc 1972.

5 The plaintiff claims that thc latc Kyaligamba purchascd thc suit land mcasuring approximately lO acrcs from thc latc Paul Kibi upon which t'}aul Kibi had givcn up all his interests in the said land to thc latc Kyaligamba.

Upon acquiring thc land hc had cntrustcd it to the latc Ilyomcrc . Joscph, thc son of the late Paul Kibi and that ISyomcrc Joscph ncver uscd thc land as his own; and nevcr sold thc suit land.

10 The 1"r and 2nd dcfcndants who arc childrcn of thc late Byomere and grandsons of the late Paul Kibi, without authority of the plaintiff held out as owners of the suit land and sold Part of the land as bibanja to the 3.,r and 4rh defcndants who also in turn sold to other unsuspecting members of thc public.

The l"r arrd 2nd dcfcndants in their dcfcncc howcver refuted thc claims by thc plaintiff, claiming 15 that thcir grandfathcr l,aul Kibi owncd thc suit land as a cuslomary tcnant. That they had inhedted it from him and that sincc 1960s Kyaligamba had rccognized I'aul Kibi as owner ofthat Iand. Thcy furthcr claimcd that thcy wcrc born on that land and livcd thereon throughout their lives.

#### Issues;

- 20 The parties came up with scparatc issucs which I chose to condense, and frame as follows:. - 7) Whether the deJendants havc protectqble lnterests on the s'ult lq d; - 2) whether the deJendants u)ere tresPassers there on. - 3) whethet the sult utas tltne barredl - 4) Rernedles.

# 25 Rep"esentg4q]E;

The plaintiff was rcprcscntcd by M/s Ssebung(r & Turyogenda Co. Advocates. The suit was originally filcd against scvcn defcndants. Ilowevcr on 23"1 Junc 2016, the names of three defcndants: Kasirye l"rancis, Nanziri limirina, and Mugumba nbbey had been withdrawn by conscnt in thc prcscncc of rcspcctive counscl and cndorscd by court, thus leaving only four 30 dcfcndants.

Only thc lsr and 2Nr dcfcndants howcvcr filcd thcir dcfcncc. 1'hey wcrc rcpresented by M/s LUKA ADVOCATDS, jointly with M/s LrJ,stDc,ta- Igbqnd.a & Co. Aduocates.

2 S'l,,t

The 3<sup>rd</sup> and 4<sup>th</sup> defendant were initially represented by *M/s Kasumba Kugonza & Co.* Advocates. However on 26th June, 2019 they wrote to M/s Ssebunya and Turyagyenda **Advocates,** the firm representing the plaintiff, pointing out their frustration with the 3<sup>rd</sup> and 4<sup>th</sup> defendant's failure to appear in their chambers as promised to give their written statements concerning their defence. A copy of that communication was filed in court by the firm on the same day, together with a notice to withdraw instructions.

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### Issues No. 1 and No. 2:

# Issue No. 1: Whether the defendants have protectable interests on the suit land;

## $\pmb{And}$

#### Issue No. 2: Whether the defendants were trespassers on the suit land. 10

Having carefully looked at the pleadings and considered all the points raised by counsel in their respective submissions I will not reproduce each argument in this judgment.

I will also deal with issues No. 1 and No. 2 jointly since they are interrelated.

#### Analysis of the evidence:

Section 101 of the Evidence Act provides that whoever desires any court to give judgment as 15 to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist and the burden of proof lies on that person.

**Section 103** further stipulates that:

# 20

# "The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence."

The burden of proof therefore lies upon the person who alleges and question the burden of proof lies squarely on the plaintiff. (Sebuliba versus Co-operative Bank Ltd [1982] HCB 129).

In Sheik Muhammed Lubowa versus Kitara Enterprises Ltd C. A No.4 of 1987, the East African Court of Appeal noted that in order to prove the alleged trespass, it was incumbent on the party to prove that the disputed land belonged to him; that the defendant had entered upon 25 that land; and that the entry was unlawful in that it was made without his permission; or that the defendant had no claim or right or interest in the land. (Ref also: H. C. C. S No. 118 of 2012, Tayebwa Geoffrey and Anor Vs Kagimu Ngudde Mustafa; Justine E. M. N. Lutaaya Vs Sterling Civil Engineering Co, SCCA No. 11 of 2002).

The plaintiff, Mr. Joseph Ssozi Ntambi testified as Pw1. Pw2 John Expedito Kyaligamba, his 30 paternal uncle was his second witness.

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His point was that at all matcrial timcs hc was and still is thc rcgistered proprietor of the suit land mcasuring 2. 13 acrcs out of a total arca of 1 O acrcs which wcrc purchased by the late Jacob ssozi Kyaligamba, his grandfathcr. Upon his dcath in 1966, Kyaligamba's son, Iidward Galabuzi, the father of thc plaintiff had bccn installcd as his hcir.

- 5 That somctimc in 1995 during thc distribution of thc cstatc of his latc father the Administrator Gencral had given him thc suit land as part of his fathcr's share in the cstatc of his grandfather. At the timc ofthc handovcr ofthc suit land, therc was only onc old house belonging to his father, Galabuzi which thc dcfcndants'fathcr llyomerc Joscph was occupying and continued to occupy till his dcath. According to thc plaintiff, thcre wcrc no bibanja owners at the time' - The plaintiff had cntrustcd thc said land in liyomcrc's carc sincc he had had been his father's friend and also bcdriddcn at thc time. Ilowcvcr that whcn he passcd on, the defendants who werc in occupation at thc time rcfuscd to vacatc thc old housc on the suit land' 10

Thc plaintiff claimcd that Kyaligamba had bought thc land from Paul Kibi in 1959, for <sup>a</sup> consideration of Ugx 52OO/= and according to him, Kibi had givcn up dl his interest in the land to Jacob Ssozi Kyaligamba.

Ile rclied on a transfcr form datcd I9rr, Septcmbcr, 1959 which was attached to PExh I, his certificatc of titlc for thc suit land which had bccn registcrcd in his names on 22^d March, 1996. The form indicatcd l,aul Kibi as the vendor and Kyaligonza as the purchaser. under that transaction, I,aul Kibi had sold lO acrcs of his land in Kirinnya. The details of the plot number

at that timc wcrc howcver not providcd. 2. O

He refcrred to a lcttcr datcd 6th April, 1999 by his counscl then, llqs Mugerua & Matoott Advocates, (PExh 3C), addrcsscd to thc rclativcs of thc latc llyomcrc. That desPite his written warning as statcd in that lcttcr, thc family had procccdcd to bury Ilyomerc on the suil land.

ln a bid to dcfcat his intercsts howcvcr thc defcndants had also bcgun partitioning the land selling parts to thc 3"r and 4rh dcfendants; renting out Part to third partics carrying out brick making, an activity that rcsultcd in dcgrading thc land value, all donc without his consent/ authority. 25

This had frustratcd his cfforts to dcvclop thc land and derivc income from or gain possession thereof since 1995. Thc plaintiff dcnicd having givcn authority to the defendants to deal with the land and denied having cver sold that land.

PurI, Mr. John Ilxperito Kyaligamba, aged 9O ycars a brothcr to ltdward Galabuzi, the plaintiffs father also confirmcd that thc plaintiff had acquircd the land from Kyaligamba which had transfcrrcd into his (Kyaligamba's) names in 1972: vld,e Instrument No. IILA 67376.

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PurI had reccivcd 0.80 acrcs as his sharc from his fathcr Kyaligamba, which he had disposed of. That upon the dcath of Kibi, his hcir ljyomcrc took posscssion of the house on the suit land, taking advantagc of Galabuzi's disappcarancc. Thc witncss dcnied thc dcfcndants' claim that Kyaliganza his fathcr cvcr rcccivcd busuulu c>r any rcnt paymcnt from l)aul Kibi or his family.

5 Thc 2nd dcfcndant, Mr. I)avid Kirabira howcvcr tcstifying as Du2, rcfutcd thc above claims. I{e told court that l)aul Kibi his latc grandfathcr who was recognizcd as a customary tenant on the land had dicd tcstatc. Undcr his will hc had bcqueathed thc kibanja with thc rcsidential and commercial buildings thcrcon, to his.loscph Ilyomere who was thc dcccased's son.

DExh 7 was a copy of that will datcd 25'r' .ranuary, 1 969 which indicatcd that thc latc Kibi had left 2l childrcn and among whom was thcir fathcr llyomcrc whom he had appointed as his heir. Kibi bcqucathed all his houses togcthcr with thc land describcd as kibanja at KiinVa parislt Kireku Kgadondo to thc hcir. Thc said will, thc authcnticity of which was never challenged, was attested by thrcc (3) pcoplc, nonc of whom howcvcr was produccd a witncss at the trial. 10

Dus2 refcrrcd to a lettcr datcd 20rh April, 1964, DE'xh 2, whcrc thc plaintiffs grandfather Kyaligamba had thrcatcncd to evict Kibi. That owing to thc fact that no eviction cver took place till the time of his dcath on 5th Octobcr, 1969, that implicd that his intcrest had been recognized by Kyaligamba. 15

Byomerc their fathcr had dicd in 1999 having livcd on thc kibanja for 78 ycars and that he lies buried on thc samc land which they inhcrited as customary tcnants/ tenants by occupancy and have continucd to livc on that land to datc sincc it had bccn bcqucathcd to him.

Dut2 claimcd. that hc had no knowlcdgc that thc Administrator Gcncral ever gave away the kibanja sincc thc officc had ncvcr intcrfcrcd with thcir posscssion and rights over the land. That thc childrcn of thc latc l3yomcrc including himself havc since built other commercial and rcsidcntial prcmiscs which thcy have occupied for over 20 years, without encountering any interruption from thc plaintiff or thc cstatc of his father.

Kibi and Iiyomcrc thcir latc fathcr wcrc b<lth buricd on the suit kibcnTa which court noted at thc locu.s visil also had othcr gravcs. 1'hat by thc timc thc plaintiff acquired that land it was subject to thcir cxisting rights and intcrcsts. I Iis praycr \$,as to havc thc suit thereforc dismissed.

The dcfcndants also rclicd on DExh 3, a copy of thc plaint HCCS 5O7 ol 7999. In that suit thc plaintiff had sucd thc 1s' and 2nd dcfcndant jointly with l,aul Kibi claiming that his late father had givcn Joseph lJyomcrc tcmporary and cxclusivc liccnsc to stay on thc suit land. that since he was ailing aftcr his fathcr's demisc, the plaintiff gavc him temporary permission to exclusively stay thereon until dcath. 30

That thc dcfendants in that action for trcspass, dcspitc sevcral noticcs issued to them refused to vacate his land thcrcforc dcpriving him of owncrship and use of his land. I.le further contended that tiyomere ncvcr bccame a tenant by occupancy as the conditions and duration of his interest on thc said land wcre clcarly stipulatcd.

5 tlis praycr in that suit which was similar to the instant suit was for a declaration that he was rightful owncr of suit land; cviction of thc dcfcndants and gcncral damages for trespass. The plaintiff howcvcr abandoncd this suit arld lllcd thc prcscnt suit somc 15 ycars later.

Ms l.lsthcr Nakayr:nga, thc 1'r dcfcndant and a sistcr to lrur2, tcstificd as DurI in su pport of Dur2. Shc mainlained that the kibqnj@ bt-'longcd to hcr and named a numbcr of relatives including graldchildren who wcrc currcntly in occupation of thc land, also indicating that some of her relativcs had bccn buricd on lhal kibanja, as indccd confirmcd during thc locus visit.

DExh 4 wcrc thc rcceipts for busuulu in l)aulo Kibi's namcs which indicated dates as early as 1943 implying Kibi had a kibanja dating as far back as 1943 scvcral years before Kyaligamba acquired thc land.

According to Irrrl whosc cvidencc tallicd with that of her brother, Dto2, Kyaligamba was a money lender who had kcpt on dodging thcir grandfather until hc fraudulently took away the land. The truthfulncss of hcr claim on that point howcvcr could not bc vcrificd sincc thc witncss was a minor at that timc and court found nothing to back up that claim. 15

Thc only documcnt supplicd to court by thc dcfcndants to that cffect was DExh 3 which indicated that Kyafigamba had callcd Kibi in his officc at onc point ovcr tF,e kibanja. This was an eviction notice datcd 2oth April, 1964. 'lhc dcfendants thcrcforc rclicd on this documcnt to givc weight to their claim that Kibi was known and rccognizcd by Kyaligamba as the kibanja owner. 20

Information is scanty on whatcvcr could have taken placc in respect to that land between Kyaligamba and Kibi prior to Kyaligamba's death in 1966 and later on between Galabuzi and Kibi, prior to Kibi's dcath in the latc 60s.

What is clcar is that thc intcndcd cviction against Kibi was never cxecutcd by Kyaligamba. It was nevcr followed up by Gaiabuzi's whcn hc was still alive. The 1cr and 2nd defendants presented a will to provc that Kibi had dicd tcstatc.

Ilc had bcqucathcd thc land which hc dcscribcd in his will as land localed in Kiinga I'arish Kireku Klladondo (translatcd vcrsion) to his hcir, Joscph llyomcrc, thc father of the l and 2nd dcfendants. Ncithcr was thc will provcd in court but nor was it cvcr challcnged. 30

C-'&t This court also notcd from paragraph 9 of the plaintiffs witncss statement that his gandfather Kyaligamba had passcd on in 1966. In the ccrtificatc oftitlc PErh f, the deceased however got registercd on thc suit land on 1\*r Novembcr, 1972. This was six ycars following his death.

Itqually strangc to court, on 22"d March, 1996 dccades aftcr thc dcath ofboth his father and grandfathcr, the plaintiff somehow acquircd rcgistration on that land. According to him, the Administrator General had givcn him the 2. 13 acres as his share from his father's estate.

Court nolcd that ncithcr thc lcttcrs of administration evcr bccn issued to any person in respect of either of thosc estates nor was the Administrator Gcncral's reprcsentative invited to testify . in court.

In 1996, whcn hc got rcgistcrcd onto thc titlc, Kibi who was a kibania owncr had already passed on but membcrs of his family werc alrcady in occupatit>n, and to datc, rcmain in occupation of the old housc PExh2, which housc from thc unchallcngcd cvidcncc by DurI belongcd to Kibi. 10

Therc is no documcntcd cvidcncc that the plaintiffs father Galabuzi cver acquired interest in the suit land or occupicd thc old housc at any timc during his lifc time; arld none whatsoever that

he ever occupicd it as its rightful owncr. I')qually, I find no cvidcnce to provc that the house at arry onc timc was acquircd by or belonged to Kyaligamba. 15

The plaintiffs claim was that his latc fathcr Galabuzi had allowed Byomere to remain in thehouse since thc two had bcen friends and Ilyomcrc was ailing at thc time. Irurthermore that the plaintiff lcft the said Ilyomcrc in his fathcr's housc for thc samc rcasons but that this was only <sup>a</sup> temporary arrangcmcnt. Acr:ording to him thcrcforc, llyomcre bcing a mcrc liccnsce has no intcrest in thc suit propcrty and thcrcforc had nothing to pass on to thc dcfcndants.

Sectton 29(4) of the land Act, Cap,227 stipulatcs that a pcrson who is the land on the basis of a liccnsc from thc rcgistcrcd owncr shall not bc takcn to bc a lawful or bonafrde occupan|

The purported undcrtaking bctwccn Galabuzi and llyomcrc on thc onc hand and the plaintiff and l3yomere on thc othor hand suggcsting thal llyomcrc could only rcmain in the old house temporarily was ncvcr rcduccd into writing. 1'hc plaintiff whose burden it was to present other evidencc to provc that asscrtion failcd to avail any such evidencc in court.

The plaintiff also failcd to provc that Kyaligamba upon acquiring thc l0 acrcs had subdivided that land giving it to his family, lcaving 2.13 acrcs to him. Thcre was no area schedule in the

first place to provc that such subdivisions wcrc cvcr madc. I Ic rclicd on PExh4, a survey rePort which cvidcncc was not found to bc hclpful to his casc. 30

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Thc circumstanccs thcrcforc undcr which thc plaintiff had acquired the suit land as his inheritancc and lcgal owncrship aftcr his grandfathcr's dcath raiscd serious questions of authenticity.

The plaintiff was ablc to show that his grandfathcr had intcrcst in the suit land but failed to show how hc himsclf had acquircd thc same as an inhcritance and how he got rcgistered on the titlc after his dcmisc.

Thc officc of thc Administrator Gcncral was not in court to cxplain thc circumstanccs under which the land had bccn allocatcd to the plaintiff as his fathcr's inhcritance since there were no such evidcncc from that officc and no lctters of administration issucd by court to that offrce.

In thc cvcnt that such distribution was cvcr carricd out, thcre was nothing to prove how and whcn it had been donc and which othcr pcrsons had bcnefittcd from it. 10

Counsel for thc plaintifl's submission that Kyaligamba's estate had bccn distributed by the Administrator Gcncral among thc bcncficiarics and onc ofthc bcncficiarics was Galabuzi Edward was therefore not supportcd by any such cvidcncc. All in all, thcrc was no proof adduccd by the

plaintiff indicating that this was his land, cxclusivc to thc rcst of thc mcmbers of Galabuzi family. 15

Kyaligamba according to thc plaintiffdicd in 1966. This was scven (7) ycars aftcr he had acquired thc land from Kibi. Thc plaintiff failcd to adducc cvidence that his grandfather had evicted Kibi or replaccd him, or that Galabuzi who took ovcr from him challenged his continued stay on that land.

The plaintiff did not cxplain why Kibi had bccn buried on land which hc no longer owned. No cxplanation as to why his widow and Kibi's rclativcs as cstablished from the locus visit still lived on that land. 20

During thc visit court noted that thc family utilizcd thc suit land by cultivation, brick laying and rentals for small commcrcial cntcrpriscs, which wcrc activities carried out over the years Kibi and thc 1"t and 2nd dcfcndants had bcen in occupation.

In thc Suprcm(: court docision Lutalo Moses (Ad,7.lnlstrator oJ the estqte ol the late Lrltalo Phoebe vs OJed.e Abdalla Bln Conq. (Adml^lstro'tor of the estate of the lo'te Cona Bln ol Gulur SCCA 15 oJ 2019), thc conccpt of advcrsc posscssion which I found applicablc to this casc was discusscd.'l'hc court providcs prcconditions that must bc satisfied before court can considcr onc to bc an advcrsr: posscssor.

Thcsc arc:

2.:

o\*r

| 1) Factual possession of the land. There must be physical control of the land in issue. | |-----------------------------------------------------------------------------------------| | The person in occupation must be dealing with the land as owner might be expected | | to, and no one must be doing the same; |

- 2) The possession must be a continuous period of at least 12 years uninterrupted. - 3) Animus possidendi; an intention to possess the land to the exclusion of all others, including the legal owner. - 4) The possession must be adverse, ie without legal entitlement or without the owner's consent; - 5) The possession must be peaceful, exclusive, open and notorious so as to put the owner of the land on notice of the possessor's intention;

# 15

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#### 6) The possession must start with a wrongful disposition of the rightful owner.

The title of adverse possessor rests on the infirmity/failure of the right of others to eject him. The owner is therefore under duty to protect his interest in the land; not just look on when his rights are either infringed or threatened by third parties such as squatters and trespassers occupying

20 his or her land.

> Failure to do so would mean that the owner of the land has abandoned the property to the adverse possessor or has acquiesced to the hostile acts and claims of the person in possession.

Section 35 (8) of the Land Act, Cap.227 in any case clearly states that a change of ownership of title effected by the owner by sale, grant and succession or otherwise shall not in any way affect the existing lawful interests or *bonafide* occupant; and the new owner shall be obliged to 25 respect the existing interest.

A *bonafide* occupant is defined under **section 29(2)** of the same Act as a person who before the coming into force of the Constitution had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner.

By virtue of section 29(5), any person who has purchased or otherwise acquired the interest of 30 a person qualified to be a bona fide occupant is also taken to be a bonafide occupant and therefore equally derives protectable interest under the Act. This section applied to the 1<sup>st</sup> and $2<sup>nd</sup>$ defendants.

After 1972 when the land was registered under Registration of Titles Act, Cap. 230 (RTA) in 35 the names of Kyaligamba, neither Kyaligamba nor his predecessors in title including the plaintiff ever challenged the use and occupation of the land by Kibi. Not until 1999 some 27 years later, when the plaintiff filed this suit against him, only to abandon it later.

He filed the present suit in 2014, some 15 years later.

Uskorg

The implication of section 35 (8) of the Land Act, Cap.227 as cited earlier is that the party holding legal interest was obliged to respect the *existing* equitable interest found on land. From the findings above the plaintiff's attempt to disguise this action for recovery of land as an act in trespass failed dismally since at the time he entered on land in 1996 Kibi and his family were already in occupation; and acknowledged by the plaintiff's predecessor in title as bona fide occupants.

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In those circumstances, the issue of statute limitation as raised by the defendants therefore becomes pertinent.

Section 5 of Limitation Act (supra) which governs the limitation period for recovery of land provides as follows;

### "No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person."(emphasis added).

A cause of action is established where pleadings disclose that there is a right, a right is violated and that the defendant is liable. A reasonable cause of action is one which in light of the pleadings 15 has some chance of success. (H. C. M. A No. 111 of 2013: Harriet Fowler & Anor vs Arthur Busingye).

For court to satisfy that there is a cause of action, three essential elements must be satisfied: that the plaintiff enjoyed a right; the right was violated and that the defendant was liable. (Ref:

#### Auto Garage Vs Motokov (1971) E. A 519). 20

Section 6 of the Limitation Act (supra) of the same Act provides;

## "The right of action shall be deemed to have accrued on the date of the dispossession."

The direct import of **section 5 and 6** is, first, that a person dispossessed of land cannot bring an action to recover land after the expiration of twelve years from the date on which the right of 25 action accrued, which is the date of dispossession.

In the case of F. X Miramago v. Attorney General [1979] HCB 24, it was held that the period of limitation begins to run as against a plaintiff from the time the cause of action accrued until when the suit is actually filed.

Once a cause of action has accrued, for as long as there is capacity to sue, time begins to run as 30 against the plaintiff. If by reason of disability, fraud or mistake the operative facts were not discovered immediately.

Abborge<br>10

It is the established law that a suit which is barred by statute where the plaintiff has not pleaded grounds of exemption from limitation in accordance with Order 7 r.6 Civil Procedure Rules S. I **71-1** must be rejected because in such a suit the court is barred from granting a relief or remedy. See: Vincent Rule Opio v. Attorney General [1990 – 1992] KALR 68; Onesiforo Bamuwayira & 2 Others v. Attorney General (1973) HCB 87; John Oitamong v. Mohammed Olinga [1985] HCB 86.

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The object of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand, and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time. It is not to extinguish claims. See Dhanesvar V. Mehta v. Manilal M Shah [1965] EA 321; Rawal v. Rawal [1990] KLR 275, and Iga v. Makerere University [1972] EA 65.

Time limits set by statutes were matters of substantive law and should be strictly complied with. Furthermore, statutes of limitation are in their nature strict and inflexible enactments. Their overriding purpose is interet republicae ut sit finis litum, meaning that litigation shall be automatically stifled after a fixed length of time, irrespective of the merits of the particular case.

Thus once the axe falls it falls, and the defendant who is fortunate enough to have acquired the benefit of the statute of limitation is entitled of course to insist on his strict rights: (Muhammad B Kasasa vs Jaspher Bayongo Sirasi Bwogi, Civil Appeal No. 42 of 2008; Hilton vs Sulton Steam Laundry (1946) 1 KB 61, at page 81.)

The law is basically a defence, a shield but not a sword. It simply means the extinction of stated 20 claims and rights of actions are limited in periods of time and once not pursued, they are lost since delay defeats equity. It is only the vigilant whom the equity helps to enforce their rights not the indolent, as proved in this instant case.

As argued by the defence counsel, Kyaligamba himself died before filing a suit against Kibi. His right to recover the land accrued in 1972 when he got registered on the title. Within the spirit of 25 section 5 of the Act, as cited, the right of action first accrued to the plaintiff through Kyaligamba as early as 1972.

From the plaintiff's evidence he had in any case already passed on in 1966. So one wonders how he could have obtained registration without letters of administration. The administrators of his

30 estate or that of Galabuzi, his son, (if they did exist) never followed up with any action against Kibi who had been buried on that land upon his demise.

What of

The plaintiff who claims to havc acquired thc land as his inhcritance filed this suit in 2014 yet had already obtaincd thc titlc to thc land in 1996, cightccn ycars carlier. Ile filed a suit in 1999 but abandoncd it. As thc rcgistcred proprictor of thc suit land, hc sat on his rights and was therefore barrcd undcr thc statutc from bringing an action for rccovery of land.

<sup>5</sup> In the premiscs, thc action in trcspass must fail sincc thc dcfendants clearly acquired interest as bonafide occupants and thcir occupation and posscssion on thc registered land remained unintcrru ptcd for dccadcs.

Accordingly this suit is dismisscd with costs, to thc 1s and 2"d defendants.

<sup>10</sup> Alexandrc A,\$oN(f n9e Rugadg@

Judge

Vh Julg, 2022.

dtJ \*. C,L XrI\* 0"FB <sup>15</sup> ,,t\!ot? '