Case Brief: Deo Mutazindwa & ORS v. Mushana

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Date of Judgement: 31 May, 2024

Court: High Court (Land Division)

Case Number: Civil Suit 78 of 2019 [2024] [Download Link]

Judge: Lady Justice Naluzze Aisha Batala

Main Topic (s): Kibanja Land holding

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Summary Facts of the Case

The plaintiffs, Deo Mutazindwa and 3 others sued the defendant, Mushana Julius alleging trespass on their land.

The defendant had acquired portions of the said land from several bibanja holders under the mailo land system and was using the land to do the business of a washing bay and parking yard.

However, the defendant in buying these pieces of land had not sought and obtained consent from the registered owner of the land (predecessor in title), who eventually, transferred her registered title to the plaintiffs.

The plaintiffs contended that the defendant’s kibanja holding was null and void because he had not sought consent from their predecessor in title or them.

On the other hand, the defendant argued that the consent of the registered owner (landlord) was optional when buying or selling a Kibanja.

Legal Issues Before the Court

  • Whether or not the defendant was a trespasser on the plaintiffs’ land and therefore entitling them to the remedies sought namely; general damages, a permanent injunction and vacant possession of the land?

Decision of the Court

High Court Judge Naluzze Aisha Batala ruled in favor of the plaintiffs.

Although the defendant adduced evidence of purchasing the portions of land, the learned Judge found that sale and purchase agreements in respect of Bibanja is not evidence of lawful kibanja land holding.

The Judge reasoned that the consent of the registered owner of a piece of land is mandatory per Section 34 (9) of the Land Act before a kibanja land owner can undertake any transaction in respect of his or her kibanja.

The learned Justice rejected the defendant’s argument that consent was only limited to assigning, subletting, pledging and creating third-party rights but not buying and selling per Section 34 (1) of the Land Act.

Consequently, the Judge found that the plaintiffs were not bound by the defendant’s kibanja interest because none was ever created.

She ordered vacant possession against the defendant, a permanent injunction, and general damages of 40M at an annual interest rate of 10% against him.

Key Quote: “The defendant invoked the provisions of Section 35(8) of the Land Act as Amended 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 occupants or bonafide occupant and the new owner shall be obliged to respect the existing interests. While it is true that a transferee is bound by the earlier interests in the land prior to the purchase, such interests must be genuine interests and not illegitimate.” – Justice Naluzze Aisha Batala.

Law Applied By Court

  • Section 34 of the Land Act: Transactions of tenants by occupancy
  • Muluta Joseph v Katama Sylvano S.C (Civil Appeal No 11 of 1999): an agreement purporting to sell and transfer a Kibanja holding is not sufficient proof of acquisition of a lawful Kibanja holding
  • Tifu Lukwago v Samwiri Mudde Kizza and Another, SC (Civil Appeal No. 13 of 1996): a person does not acquire interest as a Kibanja holder merely because he or she has been referred to as such in isolation of the provisions of the law.
  • Ponsiano Katamba v Cotilda Nakirijja (Civil Appeal No 169 of 2017): Consent also required for sale of Kibanja land

Counsel on Record

Plaintiff: Represented by Nuwagaba Gilbert of KGN Advocates.

Defendant: Kakande Edward of F. Aogon & Co Advocates.

Conclusion

This decision underscores the importance of a Kibanja buyer being vigilant and diligent in obtaining consent as part of the transaction from the current registered owner of the land where the Kibanja is located.

He or she must not assume that the agreement with the person selling Kibanja (among other legal requirements) is enough to create a Kibanja interest in the land.

Key Quote: ” It was submitted that the law calls for consent when the tenant by occupancy wants to assign, sublet, or sub-divide the tenancy and not when he or she wants to sell his Kibanja. In my opinion and with due respect to Counsel for the defendant, I don’t find merit in the argument that the provisions of Section 34 of the Land Act do not apply to a sale. I believe an assignment could involve the transfer of ownership or control of property which could amount to a sale.” – Justice Naluzze Aisha Batala.



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