Rwomushana v Kampala Capital City Authority (Civil Appeal 231 of 2016) [2019] UGCA 2110 (30 October 2019)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CIVIL APPEAL NO.231 OF 2016

(Coram: Alfonse Owiny-Dollo, DCJ, Cheborion Barishaki, JA and Hellen Obura, JA)

MARGRET RWOMUSHANA::::::::::::::::::::::::::::::::::: 10

## **VERSUS**

KAMPALA CAPITAL CITY AUTHORITY:::::::::::::::::::::::::::::::::::: (Appeal from the decision of the High Court of Uganda before Hon. Justice Stephen Musota dated 15/6/2016)

JUDGMENT OF HON. MR. JUSTICE CHEBORION BARISHAKI, JA 15

This is an appeal arising from the decision of Stephen Musota, J, delivered on the 15th day of June 2016 in which he dismissed the appellant's suit with no order as to costs.

The facts giving rise to the appeal as can be gathered from the Record of Appeal are that the plaintiff (now appellant) was the owner of a kibanja at 5th/6th Street 20 Industrial Area which she had utilized and occupied since 2004 having purchased the same from its previous owners. The appellant, with the permission of the respondent and the Rift Valley Railway (U) Ltd utilized the land

$\mathsf{S}$

5 for agriculture, residential purposes and animal rearing. She built a kraal, a house ald several structures thereon for that purpose.

On the 13th day of October 2009, the respondent's officials impounded the appellant's animals from her kraal and later sold the same at the city abattoir on 3rd November, 2009. The appellant's structures on the land were also demolished and her property including building materials, equipment and worktools were retained by the respondent.

In its Written Statement of Defence, the respondent contended that the appellant was illegally occupying and utilizing a road reserve for her activities and was grazing livestock in Kampala City without a valid permit. The respondent further contended that the livestock was impounded and later disposed offin accordance with the law. Judgment was given in favor of the respondent on 1Sth June, 2016. Being dissatisfied with the judgment, the appellant appealed to this Court on the following grounds;

- 1. That the learned tial Judge ened in law and in fact when he held tlnt the appellant did not lwue permission to use the land from the requisite authoities. - 2. Tlnt the learned trial Judge ened in laut and in fact uhen he held that the land raas a road reserue, u.thereas not.

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- 5 3. Tlwt the learned tiol Judge erred in laut and foct uhen he upheld the respondent's act of demolishing the appellant's structures on the land and of impounding her propertg and liuestock tlerefrom, as lauful. - 4. That the learned tial Judge ened in latu and fact tuhen he failed to eualuate the euidence on Court record. - 5. Tlwt the learned trial Judge erred in lau and fact uhen he hetd ttnt the appellant's structures on the land were erected uithout penntssion and in contrauention of the laut.

At the hearing of the appeal, Mr. Mutyaba Bernard appeared for the appellant while the respondent was represented by Mr. Denis Byaruhanga.

Court instructed both counsel to file written submissions and counsel for the appellant proposed to argue ground 2 first followed by ground 1 then grounds 3 and 5 jointly and lastly ground 4. 15

On ground 2 ofthe appeal, the learned trial Judge is faulted for holding that the land was a road reserve whereas not. Counsel submitted that the learned Judge held as he did based on the application made to Senior Principal Assistant Town Clerk, Kampala Central Division for construction of a temporary structure on a road reserve. Counsel added that the trial Judge ought to have satisfied himself that the area where the appellant was grazing animals and had constructed temporary structures was indeed a road reserve and the respondent ought to have availed Court with an official report from the relevant Government 20

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Department mandated with land management, titling and administration. Counsel added that in the absence of a final report from any of the Government Departments and Boards conl-rrming that the land was a road reserve, it was an error for the trial Judge to find that it was a road reserve. 5

Counsel further submitted that the appellant had a kibanja over the suit land and she explained how she acquired the same from her brother and she bought other surrounding plots in order to enlarge her kibanja. 10

On ground I of the appeal, counsel submitted that the appellant had proprietary rights to use her land as provided for under the law and by rearing cattle on the land, the appellant was lawfully exercising her user rights over the said land. Counsel further submitted that the learned trial Judge relied on section 6(a) of the Local Government (Kampala City Council) (Livestock and Companion) Animals Ordinance, 2006 in error because the said lald was not a road reserve and therefore rearing cattle was not illegal under the foregoing law.

On grounds 3 and 5 of the appeal, counsel for the appellant submitted that the learned trial Judge erred in relying on section 6(1) of the Town and Country Planning Act, Cap 246 because the suit land did not fall within the meaning of a planning area under the first schedule of the Act and further, the structures in question did not amount to a building under section I of the same Act. Counsel added that the appellant's structures on the land were temporary stables that were used as a kraal and a shade for her tools. These did not amount to buildings 20

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5 but instead were deemed as mere use of land under section 1(2) of the Town and Country Planning Act, Cap 246.

Counsel further submitted that the learned trial Judge misapplied the Public Health (Building) Rules S.l 281-1 because the permits and permission to erect buildings under the mles, although couched in mandatory terms generally apply to permanent buildings and not temporary structures. Counsel opined that in light of the cited laws, it was not a mandatory requirement for the appellant to have a permit to erect the structures and therefore the respondent's acts of demolishing the appellant's structures for not having permission to erect them were illegal and unlawful.

On ground 4 of the appeal, counsel submitted that it was undisputed evidence that the appellant's materials including 5 eucalyptus poles, 1 wheel barrow, iron sheets and animals including 10 cows, 8 goats and 3 sheep were impounded on 13th October, 2O09 and auctioned by M/S Smart Auctioneers on 3rd November, 2OO9 and sold at a price of UGX |,79O,OOO /=(Uganda Shillings One Million Seven Hundred Ninety Thousand only). Counsel further argued that the trial Judge acknowledged the fact that the appellant's animals were sold because she did not show any willingness to pay the prescribed Iine under section 7(21 of t}:,e Local Government (Kampa-la City Council) (Livestock and Companion) Animals Ordinance, 2006. However, in counsel's view, section 7(2) (supra) does not provide for a fine as condition for release of the impounded animals but rather payment of a fee of half currency point per day for which the animals were kept 15 a 20 25

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5 by the owner who claims them. Further that the Local Government (Kampala City Council) (Livestock and Companion) Animals Ordinance, 2006 is limited to stray livestock as opposed to the appellant's animals that were kept in a temporary kraal.

Counsel contended that the reasons advanced by the respondent for impounding the appellant's animals in the Witness Statement of one Vincent Katungi dated 30th July, 2015 were not the same as those that the trial Judge based on while dismissing the appellant's claim. Counsel further submitted that the trial Judge faulted the appellant for rearing animals in a road reserve yet there was no supporting evidence from the respondent that the appellant was required to have a permit for such activities. 10 15

It was the appellant's contention that according to the Witness Statement of Vincent Muhangi, he stated that the appellant's properties and animals were impounded and destroyed following the complaint from the Deputy RDC, Kampala Centra-I. He further stated in his Witness Statement that he investigated the complaint and satisfied himself that the appellant had erected illegal structures in a channel reserve and was keeping animals that would occassionally escape from the confines and cause menace in the neighbourhood. According to counsel, the trial Judge stated the reason for impounding the anima.ls was lack of a permit to rear animals in a road reserve which was contrary to what was in the Witness Statement of Vincent Muhangi. a 20 25

5 counsel further submitted that the court did not consider the appellant's evidence that the destruction of her property and impounding of her livestock and the sale of the same at UGX 1,790,O00/=(Uganda Shillings One Million seven Hundred Ninety Thousand only) was a deliberate loss to her. He added that court ought to have sought a valuation report from the respondent justifying the sale of the 10 cows, 3 sheep, 8 goats, eucalyptus poles and other items at ucx 1,790,000/=(Uganda shillings one Million Seven Hundred Ninety Thousand only). 10

counsel for the respondent opposed the appeal and supported the findings of the trial Judge.

on ground 2 of the appeal, he submitted that there was unchallenged evidence on court record that the appellant was in occupation of a road reserve and had erected thereon a house and a kraal by virtue of her own testimony on page 75 of the record of appeal. counsel further submitted that the appellant applied to the Regional civil Engineer, Rift valley Railway and to the then senior Principal Assistant Town clerk for permission to construct temporary structures on the road and railway reserve near Uganda Telecom (uTL) offices along 5th street close to industrial area. counsel invited court to look at the letter written by the then Principal Assistant Town Clerk to the senior city Law Enforcment oflicer, dated 29th April, 2009, which was a response to the applicant's application in which the then Principal Assistant Town clerk responded that the area being 15 a 20 25

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5 applied for by the appellant was part of the railway line reserve and a channel reserve

Counsel further submitted that the appellant under paragraph 4 of her plaint admitted that she had erected a house and a kraal without obtaining permission from the committee to erect the same and she had applied but had not been granted permission yet. Counsel added that the appellant contravened section 5 of the Town and Country Planning Act, section 4(a), section 6(1) and 13 of the Public Health (Building) Rules because there was no evidence on record that the appellant had approved building plans from the then Kampala City Council and neither did she own a permit allowing her to rear and graz\* cattle in Kampala City.

Counsel further submitted that there was unchallenged evidence on record that the appellant was rearing livestock within Kampala City without a valid permit issued by the respondent. Counsel invited Court to look at page 67 of the record of appeal where the appellant stated that she did not have permission from the respondent to rear and graze cattle in Kampala City because there was no law against it. He relied on section 4, 5 and 6 of the Local Government (Kampala City Council) (Livestock and Cornpaliun) Ordinance, 2006.

On ground 4, counsel for the respondent invited Court to study the appellant's exhibits and evidence on record. He submitted that there was no evidence on record of the appellant having obtained approved building plans from the respondent nor did she produce a permit allowing her to rear and graze cattle in

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5 Kampala City. Counsel contended that the trial Judge properly evaluated the evidence on record. He prayed that the appeal be dismissed with costs'

I have studied the Record of Appeal and the judgment of the lower court' I have a-lso considered the submissions of counsel for both party's in their respective conferencing notes and the authorities that were availed to Court for which I am

grateful. 10

This being a first Appeal, our duty as the first appellate Court is to reappraise the evidence and come up with our own conclusions. Rule 30 of the Judicature (Court of Appeal Rules) Directions gives this Court power to reappraise evidence and to take additional evidence.

## In Kifamunte Henry v Uganda, SCCA l{O. 1O of 1997, it was held that: 15

'The first appellate court has a dutg to reuieu the euidence of the case and to reconsider the mateiols before the tial judge. The appellate Court must then make up its oun mind not disregarding the judgment appealed from but carefullg uteighing and consideing it."

I shall bear the above principles in mind as I resolve the grounds of appeal in the same order they were argued by counsel for the appellant. 20

On ground 2 of the appeal, the learned trial Judge was faulted for holding that the suit land was a road reserve whereas not. Counsel for the appellant submitted that the learned trial Judge held as he did based on the application made to Senior Principal Assistant Town Clerk, Kampala Central Division for construction of a temporary structure on a road reserve. According to counsel, the trial Judge ought to have certified himself that the area where the appellant was grazing animals and had constructed temporary structures was indeed a road reserve and the respondent ought to have availed Court with an offrcial report from the relevant Government Departments mandated with land management, titling and administration. 10

While dealing with this issue, the learned trial Judge stated that;

"It is on record that the plaintiff made an application to the Senior Principal Assisfant Toun Clerk Kampala Central Diuision. (See Annerture "B1" to the plaint) for a temporary structure on a road reserue. Ste also made an application to tte Regional Ciuil Engineer Rifi Valleg Railutags Uganda Limited. See also onnexture "B Il'. There is no euidence of such application hauing been granted and this Court cannot make assumptions that the same utas granted in absence of proof.

Il is also counsel's submission that the land uas not a road reserue since it lwd indiuidual owners. ?his js not true. Annexture "BI" and "BII' sag otherwise. The plaintiff utas well anaare th.at the land was a road reserue and that is ulhg she uent ahead to seek permission from the defendant before carrging out business on the land."

Sectlon 1 of the Roads Act CAP 358 defines a road reserve to mear an area declared to be a road reserve under section 2.

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5 sectlon 2 of the Roads Act (supra) provides that the Minister may by statutory instrument declare an area bounded by imaginary lines parallel to and distant not more than fifty feet from the centre line of any road to be a road reserve'

I agree with counsel for the appeliant's submission that the respondent did not adduce any evidence to show that the suit IaId was a road reserve. However, upon analysis of annexture "Ell" dated lOth August 20O8, addressed to the Senior Principal Assistant Town Clerk aI1d annexture "El2" dated lst October, 2007, addressed to the Regional Civil Engineer, Rift Valley Railway (U) Ltd which were applications for a temporary structure on a road reserve by the appellant, it leaves no doubt in my mind that the suit land was a road reserve and that the the appellant was fully aware of it.

I therefore agree with the learned trial Judge that annexture "B1" and "BII" indicate that the suit land was a road reserve and that is why the appellant went ahead to seek permission from the respondent before carrying out business on it.

20 Ground 2 of the aPPeal fails.

]

on ground 1 of the appeal, the learned trial Judge was faulted for holding that the appellant did not have permission to use the land from the requisite authorities. counsel submitted that the appellant had proprietary rights to use her land as provided for under the law and by rearing cattle on the land, the appellant was lawfully exercising her user rights over the said land. He added that the learned trial Judge relied on section 6(a) of the Local Government

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s (Kampala City Council) (Livestock and Companion) Animals Ordinance, 2006 in error because the said land was not a road reserve and therefore rearing cattle was not illegal under the foregoing law.

reserve The trial Judge held that it was evident that the appellant was indeed rearing and grazing cattle in a road reserve. Further that the appellant admitted to the 10 facts that she did not have a building plan fom KCC to construct the structure within the vicinity of the city and she had no permit to rear animals in the road

I note that during cross examination, the appellant stated that she did not have approved building plans from KCC for the structures she had put up but she later applied to the Senior Principal Assistant Town Clerk to be given permission to set up temporary structures on the suit land. She testified that the structures on the land were already in existence by the time she made her application and she never sought permission from KCC before keeping these animals in Kampala because according to her, there was no law against it.

Section 6(a) oJ the Local Goaernm,ents (Kannpala C'ltg CounclQ (Llaestock and Colmpanlon) Anlmals Ordlnance,2OO6 states as follows; a 20

> "A person shall not, except with the express uritten permission of the Council, graze anq animal or cause or permit any animal to be grazed in the follouing areas-

(a) A road reserue uithin the meaning of the Roads Act;"

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5 Further Rule 36 of the Publlc Health (Butldtngl Rules s. I 281-1 provides that the local authority may grant permits for temporary buildings.

I have looked at the Record of Appeal, there is no evidence that the appellant ever obtained permission from the respondent to construct structures or rear animals on the said suit land. All the appellant adduced were annextures "81" and "B2", a letter to the Senior Principal Assistant Town Clerk and a letter to the Regional Civil Engineer, Rift Va1ley Railways (U) Ltd seeking to set up a temporary structure on the railway reserve near UTL Offices along sth street close range industrial area.

There is no evidence that the said letters were ever responded to and as found by the Learned trial Judge, mere application for a permit does not confer upon the appellant a permit. I cannot fault the trial Judge. 15

Ground L of the appeal faiis.

On grounds 3 and 5 of the appeal, counsel for the appellant faulted the learned trial Judge for relying on section 6(1) of the Town and Country Planning Act because the suit land did not fall within the meaning of a planning area under the first schedule of the Act and further, the structures in question did not a-rnount to a building under section 1 of the same Act.

Section 6 ofthe Town and Country Plannlng Act, CAP 246 provides that in ary area which is a planning area within the meaning of this Act and in respect

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5 of which no outline scheme is in force, no person shall erect any building or caJry out any development of land without the permission of the Committee.

Section 5 of the Town and Country Plannlng Act , CAP 246 further states that the towns set out in the first schedule to this Act are declared to be planning areas and this Act shall apply to those areas in all respects as if the areas had been declared to be planning areas under subsection (2).

The frrst Schedule of the Town and Country Planning Act lists Gulu, Kabale, Kamuli, Lira, Soroti, Port Bell, Tororo and Iganga as the areas of towns declared to be planning areas.

According to annexture "B1", the application for setting up a temporary structure, the suit land was located near the UTL Offices along 5th street close to industrial area. I find that there was no proper description of the said land because there was no evidence of land title but just mere letters written by the appellant decribing the location of the land. 15

Counsel added that the appellant's structures on the land were temporary stables that were used as a kraa-l and a shade for her tools. These did not amount to buildings but were deemed as mere use of land under section 1(2) of the Tov/n and Country Planning Act. 20

Section 1 of the Town and Country Plannlng Act, CAP 246 defines a building to mean any building, erection or any other structure erected on or made on, in

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5 or under any lands and includes the land on, in or under which the building is situate.

Under section 1(2) of the Town and Country Planning Act, CAP 246, the placing or keeping on any land of any shed, tent, caravan or other object whether fixed or movable or collapsible, which is not a building, shall be deemed to be a use of that land.

In paragraph 4 of her Witness Statement, the appellant stated that using her personal savings from her other businesses, she constructed a kraal and a keeper's house on the land both of which cost her a total of UGX 18;5OO'OOO/= (Uganda Shillings Eighteen Millton Five Hundred Thousand only). This evidence was corroborated by Kezironi Kiyimba who constructed the appellant's structures. He stated under paragraphs 4,5 and 6 of his Witness Statement that he was the one who constructed the kraal and the houses that were demolished by the KCC officials when they impounded the appellant's livestock. Further, that he constructed the kraal using eucallptus trees (kalitunsi), timber, nails and iron sheets which were about 58 in number. He further stated that the house was made of bricks and also had iron sheets, 2 big metallic doors and was yet to be plastered. 15 20

I find that the above description of the structures on the land falls within the meaning of a building under Section 1 of the Town and Country Planning Act,

CAP 246. I therefore, do not accept counsel for the appellant's submission that 25

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5 the appellant's structures on the land were temporary stables that were used as a kraal and a shade for her tools.

Counsel further submitted that the learned trial Judge misapplied th.e hz.bllc Health (Butldtng) Rules S. I 287-l because the permits and permission to erect buildings under the rules, although couched in mandatory terms generally apply to permanent buildings and not temporary structures. Counsel argued that in light of the cited laws, it was not a mandatory requirement for the appellant to have a permit to erect the structures and therefore the respondent's acts of demolishing the appellant's structures for not having permission to erect them were illegal and unlawful.

I have already found that what the appellant constructed were permanent structures not temporary structures as counsel for the appellant wanted this Court to believe. As such, the requirement for the appellant to have a permit to erect the structures thereon was mandatory. Section 6(7) oJ the Pubt4c Health (Butldlng) Rules Sf 28I-I requires every person who intends to erect or make any alteration to a building to which thcsc rules relate to give to the local authority notice in writing of his or her intention. 15 20

The appellant testified during cross-examination that she did not have approved building plans from KCC for the structures she had put up. In the premises, I cannot fault the trial Judge for holding that the appellant required permission to erect the structures on the suit land.

Therefore grounds 3 and 5 ofthe appeal fail. lSlPaBe

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5 On ground 4 of the appeal, counsel for the appellant faulted the learned trial Judge for failing to evaluate the evidence on Court record. First, that there was an undisputed evidence that the appellant's materials including 5 eucalyptus poles, 1 wheel barrow, iron sheets and animals including 10 cows, 8 goats and 3 sheep were impounded on 13th October, 2OO9 and auctioned by M/S Smart Auctioneers on 3rd November, 20O9 and sold at a price of l,79O,OOO/=. Counsel submitted that the trial Judge acknowledged the fact that the appellant's animals were sold because she did not show any willingness to pay the prescribed fine under sectlon 7(2) oJ the Local Goaernment (Kampala C:ttg CounclS (Lh:r,stock and CompanTon) Anlm.als Ordlnance, 2O06. However, in counsel's view, section 7(2) supra does not provide for a fine as condition for release of the impounded animals but rather payment by the owner who claims them of a fee of half currency point per day for which the council keeps the 10 15

animals. Further, that the Local Goaerament (Kannpala Cttg Councll) (Lloestock and Companlon) Anlmals Ordlnance, 2O06 is limited to stray livestock as opposed to the appellant's animals that were kept in temporary kraal. 20

Sectlon 5 oJ the Local Gorxrnm.ents (Kannpala Cltg CounclQ (Liuestock and Companlon Anlnals) Ordlnance, 20O6 provides as follows:

" 1. A person shall not keep on anA premises a domestic animal other than a companion animal, ulithout a ualid permit issued bg tlrc Council in the prescribed form or a ualid urban agicultural permit issued under paragraph

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5 4 of the Local Gouemments (Kampala Citg Council) (Urban Agriculture) Ordinance.

> 2. A permit granted under the prouisions of this Ordinance shall specifu the premises, the number and kinds of domestic animals and the duration of the period in respect of which the permit is ualid."

## Sectlon 6(a) oJ the Local Govenrments (Kannpala Cltg Councll) (Lluestock and Companlon) Anlmals Ordinance provides that; 10

"A person shall not, except uith the express uritten permission of the council, graze anA animal or cause or permit ang animal to be grazed in the follouting areas-

15 (a) A road reserue within the meaning of the Roads Act"

The learned trial Judge found as follows;

"It is euident that the plaintiff uas indeed rearing and gra.zing cattle in a road reserue. The plaintiff admitted to the facts that she did not haue a builtding plan from KCC to constntct the structure within the uicinitg of the citA, she had no permit to rear animals in the road reserue. Counsel for the plaintiffs submission that the Act applies to straV animals is misleading as the long title of the ordinance prouides for An ordinance to prouide for the control, regalation, registration and licensing of the keeping and companion animals and to prouide for other connected matters."

t - I have already noted under ground 1 ofthe appeal that during cross examination, the appellant stated that she did not have approved building plans from KCC for the structures she had put up. However, she later applied to the Senior Principal Assistant Town Clerk to be given permission to set up temporary structures on the suit land. She stated that the structures on the land were already in existence by the time she made her application and she never sought permission from KCC 10 - before keeping these animals in Kampala because according to her, there was no iaw against it.

I therefore find that the appellant's actions of grazing cattle in a road reserve and setting up structures without a permit issued by the Council contravened secflons 5 and 6(a) ol the Loco'l Ciotarnments (Kanpala C'lty CounclQ

### (Llwstock and Companlon Anlmals) Ordlnance' 2O06.

The trial Judge further found that there was no evidence that the appellant visited the respondent's offices and was chased away by him. He added that annexture "C", 'D" and "E" to the plaint all showed that the appellant was moving from one office to another without showing that she was willing to pay the prescribed fee under sectlon 12) oI the Local Gouernments (Kampala C:tty CounclQ (Llaestock and Companlon Anlmals Ordlnance, 2OO6.

Section 8 of the Local Gornnt'lnents (Kampald CiA Councll) (Lluestock ond Companlon Antmals) Ordlnance, 2OO6 states that:

"subject to the special prouisions in this ordinance in respect of liuestock, the council may arrange for the sale or disposal of ang stray liuestock, ruhich

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5 remains unclaimed after houing been impounded for a peiod of not less than seuen consecutiue dags."

Sectlon 9 (supra) states that the owner of any livestock, which has been seized and detained or impounded, may remove the livestock at any time on the payment of the fees prescribed under paragraph 7(21.

10 Section 7(2) (supra) states that a fee of half a currency point per day for which the council keeps an impounded animal shall be levied upon the owner of the impounded animal.

According to paragraph a@) of the plaint, the appellant's animals were impounded on 13th october 2009 and later sold in the Kampala Abbatoir on the

- 15 3rd day of November, 2009. This was more thal seven days after and the respondent was therefore justified to sell the animals within the ambit of section g of the Local Governments (Kampala city council) (Livestock and compzutio Animals) ordinance. The appella l had the option of paying a fee of ha.lf a currerrcy pui[t per day for which the council kcpt hcr impounded anima-ls within - 20 seven days as pcr section 7(2) of the Local Govamrnents (Kampala cltg councll) (Liuestock and cornpanion Anim;als) ordinance, 2006 bwt instead opted to seek help from different individuals as shown in annextures "C', "D' and "E". I am therefore, satislied that the appellant was given enough time to redeem her animals but squandered the opportunity to do so. we also lind the 25 actions of the respondent in selling the impounded alimals after the lapse of seven days lawful.

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5 counsel for the appellant contended that section 7(2) (supra) does not provide for a fine as condition for release of the impounded animals but rather payment of a fee of half currency point per day by the owner who claims them for which the animal were kept. He further argued that the Local Gorrcntnent (Kampalo Citg Councll) (Ltuestock and Col,lrlpanlon) Anlmo.ls Ordlnance, 20O6 is limited to stray livestock as opposed to the appellant's animals that were kept in temporary kraal. 10

I do not accept counsel for the appellant's submission above because sectlon 9 o! the Local Gorx;ntments (Ko;mpa,la C'ltg Counc'll) (Lhxstock and' companlon Anlnals) ordlnance 20o6 states that the owner of any livestock, which has been seized and detained or impounded, may remove the livestock at any time on the payment of the fees prescribed under paragraph 7(2). Further as rightly stated by the learned trial Judge, counsel for the plaintiffs submission that the Act applies to stray animals is misleading as the long title of the ordinance provides for an ordinance to provide for the control, regulation, registration and licensing of the keeping and companion animals and to provide for other connected matters. 15 20

Counsel further submitted that the Court did not consider the appellant's evidence that the destruction of her property and impounding of her livestock and the sale of the same at \,79O,OOO/= was a deliberate loss to her. He added that court ought to have sought a valuation report from the respondent

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e..

5 justifying the sale of the 10 cows, 3 sheep, 8 goats, eucalyptus poles and other items at l,79O,OOO/=.

The trial Judge stated tha!

"In the pleadings the plaintiff claims for shs 1O6,8OO,OOO/= as special damages for the liuestock and mateiols for the house structure and kraal tttat uere demolished and the materials and tle tools that were sold off. The plaintiff presented undated receipts which uere neither in h.er names. These were not admitted. I therefore find that the plaintiff hos not proued the claim for special damages as theg did not odduce ang euidence to proue them as required bg law."

During cross examination, the appellant indicated that she had spent alot of money which was not reflected on the receipts for example while buying bricks and cement. Court objected the exhibits on grounds that they were not dated and further they were not in the plaintiffs names. 15

The appellant had the burden to prove on a balance of probabilities that her animals were sold at under value but she failed to do so by adducing evidence to that effect. 20

Section 7O oJ the Locdl Goterz.ments (Kampald C'lty Counclfl (Lluestock and Companlon Antnals) Ordlnance,2OO6 states that no compensation shall be payabte to any person in connection with the lawful seizure, detention, impounding, sale or disposal of any livestock under this ordinance.

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- 5 I have already found that the appellant was given enough time to redeem her animals but instead opted to seek help from different individuals as shown in arnextures 'C', "D" and "E" as opposed to paying the prescribed sum as per sectlon 7(2) oJ the Loca'l Gove.rn, nelnts (Kannpala Cttg Councll) (Llrrstock and Companion Anlnrls) Ordlnance, 20O6, - The appellant herself stated during cross examination that she could not remember when her animals were impounded but they were sold after 21 days yet sectlon 8 of the Local Ctoventnents (Kannpd,l(l Cltg Councll) (Ltuestock and ComapnTon Anlmals) Ordlnance, 2O06 reqtires the Council to arrange for the sale or disposal of livestock which remains unclaimed after having been impounded for a period ofnot less than seven consecutive days. 10 15

Annexture "D1", a letter dated 29th October, 2009 and addressed to M/S Smart Auctioneers from the Town clerk reads in part that the purpose of this letter therefore is to request you to arrange for the sale of the above livestock and submit all the proceeds to Kampala city council and they shall be paid 10oln of the proceeds as their administrative costs'

According to the evidence of Vincent Katungi, the then acting Principal Law Enforcement Officer, Kampala City Council, the rest of the materials impounded from the appellant were still at the respondent's stores on 6th Street Public Health Department Depot al]d only that the appellant had never bothered to pick them.

Therefore ground 4 of the appeal fails. 23lPa ge

In conclusion, the appeal has no merit and is dismissed. I am unable to interfere with the judgment of the trial Court and the same is upheld. I also uphold the orders of the trial Judge that each party meets its own costs given the social status of the appellant.

#### I so order

$30^{\text{th}}$ $\ldots 2019$ Dated at Kampala this ........

**Cheborion Barishaki**

JUSTICE OF APPEAL

$10$

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL AT KAMPALA CORAM: OWINY - DOLLO DCJ, CHEBORION AND OBURA JJA.

### CIVIL APPEAL NO 231 OF 2016

(Appeal from the judgment of Musota Stephen, J; in High Court (Civil Division) Civil Suit No. 66 of 2010)

...................................... **MARGRATE RWOMUSHANA ..........**

**VERSUS**

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KAMPALA CAPITAL CITY AUTHORITY....................................

## JUDGMENT OF OWINY - DOLLO; DCJ

I have had the benefit of reading the judgment of my learned brother Cheborion, JA; in draft. I agree with his findings; and the conclusion that this appeal has no merit and should be dismissed with each party bearing her/its costs for reasons he has given in the Judgment.

Since Obura JA also agrees, orders are hereby issued in the terms proposed by Cheborion JA in his judgment.

2019 Dated, and signed at Kampala this- $\bigcup$ of ....

Alfonse C. Owiny - Dollo

**Deputy Chief Justice**

### THE REPUBLIC OF UGANDA

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

(Coram: Owiny-Dollo, DCJ, Cheborion & Obura, JJA)

#### CIVIL APPEAL NO. 231 OF 2016

#### MARGARET RWOMUSHANA APPELLANT

#### VERSUS

#### KAMPALA CAPITAL CITY AUTHORITY RESPONDENT

(Appeal fron the decision of the High Coul of Uganda before His Lordship Hon. Justice Stephen Musota dated 15/M016)

#### JUDGMENT OF HELLEN OBURA, JA

I have read in draft the judgment prepared by my brother Barishaki Cheborion, JA and I concur with his conclusion that the appeal be dlsmissed for lack of merit and each party bears her/its own costs.

Itr-- Dated at Kampala this.. ay of C 2019.

Hellen Obura

JUSTICE OF APPEAL