THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO 1708 OF 2019
(ARISING FROM MISCELLANEOUS CAUSE NO 40 OF 2018)
- JAMES KAYIMBYE SEBINENE MUSAJJALUMBWA
- COMMISSIONER OF LAND REGISTRATION:::::::::::RESPONDENTS
BEFORE: HON. MR. JUSTICE HENRY I. KAWESA
This application was brought by notice of motion under Article 139(1) of the Constitution of the Republic of Uganda, 1995, Section 14(1) of the Judicature Act Cap 13, Section 98 of the Civil Procedure Act Cap 71, Section 167, 70 and 71 of the Registration of Titles Act Cap 230, Order 52 Rules 1 and 2 of the Civil Procedure Rules SI 71-1 seeking for orders that;
- A vesting order be granted in favour of the Applicant in respect of land at Nalumunye comprised in Busiro Block 347, Plot 364 (hereinafter the suit land),
- The 2nd Respondent enters the Applicant’s name in the Register Book in respect of the suit land;
- The 2nd Respondent issues a special certificate of title in respect of the suit land in the name of the Applicant;
- The costs of this matter be borne by the 1st Respondent.
The application rises from a previous application of which this Court declined to grant because the Applicant had not first applied to the 2nd Respondent as required by Section 167 of the Registration of Titles Act Cap 230.
In dismissing that application, the Court made an order that the Applicant applies to the 2nd Respondent within 60 days of the order and if she declined to vest the land in him, then he was at liberty to re-apply to this Court which would be pleased to automatically vest the suitland in him upon proof of the necessary conditions.
The Applicant did as directed by Court and there is evidence on record to effect. That said, the 2nd Respondent filed an affidavit in reply, through its officer who revealed that the records show that the suit land is registered in the names of William Mayombwe, Nakiboneka Robinah and Charles Luzinda as Administrators of the estate of the late Mika Mayombwe since 4th January, 2005. Now this averment poses a grave challenge to the application. This is because the Applicant’s evidence is that he purchased the suit land from the 1st Respondent.
In view of this evidence, it cannot be said that the Applicant has proved all the crucial conditions for grant of this application, looking at Section 167 of the Registration of Titles Act. Particularly the condition; “……………that land under this Act has been sold by the proprietor………”.
In this case, as per the 2nd Respondent’s averment, the proprietor is different from the person the Applicant acquired the suit land. As such, this Court declines to vest the suitland in the Applicant. This matter calls for a fully-fledged inquiry by Court. It cannot be conclusively determined by a mere application for a vesting order as the averments of the Respondent tend to point to fraud.
It is pertinent that the Applicant files a suit against the Respondents and leads evidence to prove that he is entitled to the land.
This application is not granted for the above reason.
Each party to bear their own costs.
I so order.
Henry I. Kawesa
Kiryowa Jonathan for Applicant.
Ruling communicated to the parties.
Henry I. Kawesa