Court name
HC: Land Division (Uganda)
Judgment date
24 January 2013

Gahiji v Saava Kikonyogo & Anor (Miscellaneous Application-2012/802) [2013] UGHCLD 4 (24 January 2013);

Cite this case
[2013] UGHCLD 4

I

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

LAND DIVISION

MISCELLANEOUS APPLICATION NO. 802 OF 2012

ARISING FROM CIVIL SUIT NO. 440 OF 2012

GAHIJI JOSEPH………………………………………………….……...............APPLICANT

VERSUS

  1.  STEVEN SAAVA KIKONYOGO
  2. KIGAALA JOSEPH……..……...….………………..…………………RESPONDENTS

BRIEF FACTS

The background to the application is that the applicant claims to have interest in 2 acres and 30 decimals of land based on agreements he entered into with the 1st respondent but also endorsed by the 2nd respondent. The said land was to be surveyed or delineated from Block 265 plot 1243 land at Bunamwaya, Kyadondo measuring approximately 23 acres and belonging to the respondents as administrators of the late Nnalinya Kasalina Nkizi. The respondents are alleged to have transferred most of the land to third parties and the only land still registered in the respondents’ names is Block 265 plots 8257, 8255 & 8249 land at Bunamwaya (suit land). The applicant/plaintiff filed civil suit no 440 of 2012 against the respondents/defendants for orders that the defendants sign mutation forms transferring to him the plaintiff’s interest in the land, general damages, a permanent injunction against the defendants, and costs of the suit. The application is to deter the respondents from disposing off the suit land before the main suit is heard and disposed of.

ISSUES

Whether there is a status quo to be preserved

Whether the suit establishes a prima facie case with probability of success,

LAND LAW-APPLICANT SEEK FOR TEMPRARY INJUCTION BE GRANTED RESTRIANING DISPOSING OFF, SUBDIVIDING, TRANSFER OF PLOT

CASE LAW

The gist of a temporary injunction is the preservation of the suit property pending disposal of the main suit. In addressing this, courts have set out conditions to be fulfilled before the discretion of granting the temporary injunction is exercised. These are that the applicant must show that there is a prima facie case with probability of success; and that the applicant might otherwise suffer irreparable damage which would not easily be compensated in damages. If court is in doubt, it,

  • The status quo is not about who owns the suit property but the actual state of affairs on the suit premises prior to the filing of the main suit. The subject matter of a temporary injunction is the protection of legal rights pending litigation. Court’s duty is only to protect the interests of parties pending the disposal of the substantive suit. In exercising this duty, court does not determine the legal rights to property but merely preserves it in its actual condition until legal title or ownership can be established or declared. See Commodity Trading Industries V Uganda Maize Industries & Anor [2001 – 2005] HCB 118; Sekitoleko V Mutabaazi & Ors [2001 – 2005] HCB 79.

 Order 41 of the CPR requires the existence of a pending suit. It provides that where it is proved to court that in a suit the property in dispute is in danger of being wasted, damaged or alienated by any party to a suit, the court may grant a temporary injunction to restrain, stay, and prevent the wasting, damaging and alienation of the property. See Kiyimba Kaggwa V Haji Katende [1985] HCB 43.

As to court that there is merit in the case, it does not mean that one should succeed. It means the existence of a triable issue or a serious question to be tried, that is, an issue which raises a prima facie case for adjudication. See Kiyimba Kaggwa, supra.

It would be futile for this court to issue an injunction to restrain the administrators of the estate from transferring the land to its rightful beneficiaries who may be third parties not before court. See Solome Tibarirane V NHCC [2007] HCB 109

HOLDING

This would render the order for temporary injunction superfluous. In my opinion, granting a temporary injunction under the given circumstances would be of no practical effect since there is a caveat in place.

In the premises, for reasons given above, I dismiss this application with costs.

 

 

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