Rehema Turyakira Omar v Administrator of the Estate of the Late Byoleko Epaphroditus and Others (Civil Suit No. 883 of 2016) [2025] UGHCLD 53 (6 May 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL SUIT NO. 883 OF 2016**

# **REHEMA TURYAKIRA OMAR :::::::::::::::::::::::::::::: PLAINTIFF VERSUS**

- **1. THE ADMINISTRATOR OF THE ESTATE OF THE LATE BYOLEKO EPAPHRODITUS :::::::::::::::::::::::::::: DEFENDANTS** - **2. KAMPALA CAPITAL CITY AUTHORITY** - **3. COMMISSIONER LAND REGISTRATION**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA JUDGMENT**

# *Introduction;*

- 1. Rehema Turyakira Omar hereinafter referred to as the plaintiff brought this suit against Byoleko Epaphroditus (now deceased), Kampala Capital City Authority and the Commissioner Land Registration hereinafter referred to as the defendants for orders that; - i) A declaration and order that the first defendant be ordered to give an access road to be created out of Plot 32A Ntinda II Road.

- ii) A declaration that the report and the recommendations of the 2nd and 3rd defendants granting the plaintiff an access to be created out of Plot 32A Ntinda II Road. - iii) In the alternative but without prejudice to the foregoing, declaration that the plaintiff is entitled to access her land as she has a right of easement in respect of Plot 32A Ntinda II Road. - iv) A permanent injunction restraining the first defendant from blocking and obstructing the access to the plaintiff's suit property and an order for removal or demolition of any structure that denies access of the plaintiff to her suit property. - v) In the alternative but without prejudice to the foregoing, the contract between the plaintiff and the 1st defendant in respect of the sale of part of Plot 32 Ntinda II be rescinded and the first defendant pays the plaintiff the contractual sum with interest thereon plus damages. - 2. On the 27th day of September, the plaintiff withdrew her case against Kampala Capital City Authority and the Commissioner Land Registration pursuant to a Notice of withdrawal.

After the death of Byoleko Epaphoditus, he is now represented by the Administrators of his Estate.

#### *Background;*

- 3. The plaintiff is the registered proprietor of a lease on land comprised in Plot 2E Commercial Lane, Naguru Registered as LRV KCCA 181 Folio 8. The plaintiff purchased the said land which formed part of Plot 32 Ntinda II Road LRV 4443 Folio 8 from Byoleko Epaphroditus. - 4. Plot 32 Ntinda II Road LRV 4443 Folio 8 was sub-divided to parcel out the plaintiff's land she had bought and resulted in the creation of Plot 2E. A certificate of title was issued for Plot 2E Commercial Lane Naguru, LRV KCCA 181 Folio 8 and the residue Plot 32A Ntinda II Road. An access road for Plot 2E was indicated on the Certificate of title to be on Commercial Lane. - 5. The plaintiff received resistance from the owner of the Plots 2A and 2B adjacent to Plot 2E that the access Road for Plot 32 from which Plot 2E was parceled was on the Ntinda main Road. It is against this background that the plaintiff filed this suit against the defendants.

#### *Plaintiff's case.*

- 6. The plaintiff is the registered owner of a lease on land comprised in Plot 2E Commercial Land, Naguru Registered as LRV KCCA 181 Folio 8 which she purchased from a one Byoleko Epaphroditus. - 7. That upon sub-division of the land she purchased from the defendant, she believed her access road was on commercial lane as indicated on the Certificate of title. On taking possession of the land, the plaintiff began to use the said access road on commercial lane but was denied access by the owner of the adjacent land on Plot 2A and 2B. She was told that access to plot 32 is on Ntinda II Road and not Commercial Lane. - 8. In the circumstances, Plot 2E ended up being without a proper access road. The official of the Kampala Capital City Authority made a report with recommendations that the plaintiff could only access her property from Plot 32A Ntinda II Road.

#### **Defendant's case**

9. The defendant acknowledges that the plaintiff indeed is the registered owner of land comprised in Plot 2E Commercial Land, Naguru Registered as LRV KCCA 181 Folio 8 which she purchased from the Late Byoleko Epaphroditus. However, that at the time the plaintiff purchased the land, there was neither Plot 2E, Commercial Lane nor Plot 32 Ntinda II Road registered as LRV 4443 Folio 8.

10. That the 1st defendant has no control over the land and neither is he a member or employee of any of the controlling authorities. At the time the 1st defendant sold the land to the plaintiff, the access road was not only available on the ground but was also documented on the Certificate of title and it is the plaintiff who pursued the sub-division and got the title with the access in place and therefore misdirecting her frustration to the wrong person.

#### **Locus Visit.**

- 11. This court visited the locus on the 20th day of February 2025 in the presence of Counsel for the plaintiff, Counsel for the defendant, the plaintiff and the defendant where court made the following observations; - i) Plot 2E is an enclosed piece of land which neighbors Plot 32, Plot 2A and Plot 2B. - ii) Plot 32 belongs to the defendant. - 5

- iii) The available access belongs to the owners of Plot 2A and 2B. - iv) The said available access is not available on the plaintiff's certificate of title.

### *Representation;*

12. At the hearing, the plaintiffs were represented by M/S Ismael Wandera Advocates & Legal Consultants whereas the 1st defendant was represented by M/S S. K. Kiiza & Co Advocates. Parties filed written submissions which I have considered in the determination of this matter.

### *Issues for determination;*

- i) Whether the plaintiff is entitled to an access from the defendant? - ii) What are the remedies available to the parties?

# *Resolution and Determination of the issues;*

Issue 1: Whether the plaintiff is entitled to an access road from the defendant?

- 13. Counsel for the plaintiff submitted that it is not in contention that the access road indicated on the title deed, PEX1 was provided by the late Byoleko. That on the deed print it indicated the width of the access road as 14.1 meters. - 14. He added that the access road was removed and reversed with guidance of the Manager Land Surveying KCCA and relied on PEX 6 containing comments that the access road along commercial lane on the basis on which Plot 2E was created is not open to public circulation of vehicles because of the existing storm water drain and other developments. - 15. Counsel for the plaintiff further submitted that following the guidance, the access road was removed and all dealings and or transactions regarding Plot 32A Ntinda were restricted on the Land Information System by the then Commissioner Land Registration. - 16. That the 1st defendant did not want to give access to the plaintiff that is why he took 2 years and months to purportedly provide one, and when he did, the purported access road was on land owned by the neighbors to wit Plot 2A and 2B which had a longstanding dispute.

- 17. That the 1st defendants failed to show court the access road on the certificate of title but kept on pointing to one on the deed print which was long removed by the authorities. - 18. Counsel for the plaintiff concluded that the existing access road is by law the property of Plot 2A and Plot 2B and that the purported access road on commercial lane onto Plot 2E was removed from the deed print. - 19. Counsel for the 1st defendant in reply submitted that when court visited locus, it was physically established that actually the Access-road exists on ground. That the title presented by the plaintiff indicates there is an access road on the suit land and to such constitutes conclusive evidence of the contents therein. Counsel relied on Section 60 and 61 of the Registration of titles Act. - 20. Counsel added that there is a consent judgment which is binding on the plaintiff. That the submission by the plaintiff that the consent judgment between the plaintiff and the proprietors of Plot 2A and 2B is illegal is absurd because the plaintiff failed to set aside the said consent judgment. - 21. That the Certificate of title shows the plaintiff has an access road and that the consent judgment was found by court to have been fully implemented and the plaintiff built a perimeter wall to secure the access road to Plot 2E. - **22.** Counsel also submitted on the legality of the claim, especially on the procedure adopted by the plaintiff in presenting her claim before court. By claiming an access road, the claim falls within the ambit of the Access to Roads Act (the law applicable at the time). That the claim does not comply with the requirements in Section 2 of the Access to Roads Act and as such it is bound to fail. Counsel relied on the case of **Munyagwa Edward & 6 others v Henry Lukonge Matovu Birungi HCCS No 0073 of 2019.**

#### *Analysis of court;*

- 23. I take note of the submissions and authorities referred to by both counsel. - *24.* Among the rights one land owner enjoys over another person's land is the right to an easement. An easement as defined in the book of John T mugambwa's Principles of Land law in Uganda is as follows; *An easement is a right which attaches a particular*

# *piece of land and which allows the owner of that land to use the land of another person in a particular way or restrict its use by that other person to a certain extent.*

- 25. In the instant case, this court conducted a locus visit and made the following observations, the plaintiff's Plot that's plot 2E is an enclosed plot, Plot 32 where the plaintiff's derived her interest is under the control of the defendant and the same belonged to the late Byoleko who sold to the plaintiff Plot 2E. further the access road counsel for the defendant alleges to belong to the plaintiff best suits the neighbors of Plot 2A and 2B but not the plaintiff because the plaintiff clearly stated how it was not available for use to her and she always faced resistance from the owners of Plot 2A and 2B. During trial, evidence was not led to this court as to the existence of the access on the said access on the certificate of title apart from referring to the findings of the consent judgement. - 26. It was the plaintiff's case that the late Byoleko upon selling the land to the plaintiff made provision for an access road that did not exist on ground. Evidence was adduced in this court in particular the testimony of Babu Hakim a Registrar from the office of the commissioner Land Registration to demonstrate that Plot 2E was

an island and did not have an access road on its own. The access road that was used by the plaintiff belonged to Plot 2A and 2B and for that case the plaintiff desired to pursue her right to an easement. As it stands, Plot 2E is without an access.

27. Where a landowner grants part of his land to another person, the courts will readily imply an intention to grant that other person all "quasi-easements" pertaining to such land. A quasi-easement is a continuous and apparent easement which is necessary to the reasonable enjoyment of the land (originally occupied by the grantor) and is at the time of the grant used by the land owner for the benefit of that land. *(See; Shah Champshi Tejshi and Others*

#### *v The Attorney General of Kenya (1959) EA 630 at 638)*

- 28. From the evidence adduced in this court, the inference drawn is that the plaintiff has no access to her plot of land, the only available access as the defendant alleges belongs to the neighboring plots which is Plot 2A and 2B not the plaintiff's Plot 2E. - 29. For the plaintiff to ably access her plot of land that was sold to her by the late Byoleko, an easement has to be created for her by the grantor the Late Byoleko.

30. Therefore, this court is of the finding that all the transactions leading to the creation of Plot 2E be reversed and a proper survey be conducted, upon the said survey an access to the suit land (now Plot 2E) should be created for the plaintiff.

#### *Whether there are any remedies available?*

31. I find that the plaintiff is entitled to a declaratory order that she is entitled to an access road from the defendant.

#### *A permanent injunction;*

32. I decline to order a permanent injunction because the access road is only going to be created through a re-survey and to that end, I find the order superfluous.

#### *General damages;*

*33.* General damages are awarded at the discretion of the court and the purpose is to restore the aggrieved person to the position they would have been in had the breach or wrong not occurred. **(***See;*

#### *Hadley v Baxendale (1894) 9 Exch 341)*

*34.* In the assessment of general damages, the court should be guided by the value of the subject matter, the economic inconvenience that plaintiff may have been put through and the

nature and extent of such injury suffered. *(See; Uganda Commercial Bank v Kigozi (2002) 1 EA 305.*

- *35.* General damages are implied in every infringement of a given right and breach of contract. In the instant case the plaintiff has demonstrated that she has been inconvenienced by the absence of an access road on her land as promised by the defendant. - *36.* Taking all the above factors into consideration, I am satisfied that the plaintiff is entitled to general damages to the tune of UGX 8,000,000/=

#### *Interest*

*37.* Interest is awarded at the discretion of court under Section 26 of the Civil Procedure Act. The basis for an award of interest is that the defendant has kept the plaintiff out of her land and the defendant has had the use of it himself and ought to compensate the plaintiff accordingly. *(See; Premchandra Shenoi and Anor v*

### *Maximov Oleg Petrovich SCCA No.9 of 2003)*

*38.* In determining a just and reasonable rate of interest, court takes into account the ever rising inflation and drastic

depreciation of the currency. A plaintiff is entitled to such rate of interest as would not neglect the prevailing economic value of money, but at the same time one which would insulate him or her against any further economic vagaries and the inflation and depreciation of the currency in the event that the money awarded is not promptly paid when it falls due. *(See; Kinyera v The Management Committee of Laroo Building Primary School HCCS 099/2013.)*

*39.* I therefore award an interest on general damages at the rate of 10% per annum.

#### *Costs*

- 40. I find the plaintiff is also entitled to costs of the suit in line with Section 27 of the Civil Procedure Act and the same are awarded to her. - 41. In the premises, judgment is entered for the plaintiff with the following orders; - i) A declaration that the plaintiff is entitled to an access road from the 1st defendant.

- ii) The Commissioner Land Registration is hereby directed to carry out a resurvey of Plot 32 Ntinda II Road to create Plots 32A and 32B Ntinda II Road since the survey that created Plot 2E was reversed. - iii)An access road to the plaintiff from Ntinda II Road earmarked on the title for the land that was sold to her by the 1st defendant. iv) General damages of UX 10,000,000/= and interest of 10% p.a. - v) Costs of the suit awarded to the plaintiff.

**I SO ORDER**.

## **NALUZZE AISHA BATALA Ag. JUDGE. 6 th /05/2025**

#### **Delivered electronically via ECCMIS on the 6 th day of May 2025.**