[2023] UGHC 437

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT RUKUNGIRI CIVIL SUIT NO.019/2022 (FORMERLY CIVIL SUIT NO.001/2022-KABALE HIGH COURT)

## 1. EDREDA KASEETA

# 2. KAMUSIIME EMMANUEL (ADMINISTRATOR OF THE ESTATE OF LATE KASEETA KELLEN KOBUSINGYE::::::::::::::::::::::::::::::::::::

### **VERSUS**

- 1. SAM TUMWESIGIRE KASEETA - 2. JANAN MUGARURA - 3. BEN ATUHEIRE - 4. KARENGYE MICHEAL

# 5. DANIEL KANAMARA:::::::::::::::::::::::::::::::::

# BEFORE: HON. JUSTICE TOM CHEMUTAI, JUDGE. **RULING**

This ruling arises from preliminary objections raised by the 1^st, $2^{nd}$ , $4^{th}$ and $5^{th}$ Defendants through their counsel on 27^th April, 2023 when the matter came up for directions. It was argued for the Defendant that the instant suit is barred by limitation and should be dismissed with costs. It was submitted for the Plaintiffs that the instant suit is not barred by limitation and as such the preliminary objection should be overruled with costs. Both parties were directed to file written submissions and they complied, hence this ruling.

The background of this case is that the 1st Plaintiff is a daughter to the late Isiraheli Kaseeta while the $2^{\scriptscriptstyle \sf nd}$ plaintiff is a son and administrator of the estate of late

Kaseeta Kellen Kobusingye and a grand-son to late Isiraheli Kaseeta. The 1^st defendant is a son of late Isiraheli Kaseeta and the $2^{\rm nd}$ , $3^{\rm rd}$ , $4^{\rm th}$ and $5^{\rm th}$ defendants are the grand-children of late Isiraheli Kaseeta and sons of late Byarugaba Daudi.

The Plaintiffs' cases against the defendants are that the Defendants have frustrated the administration of the estate of late Isiraheli Kaseeta who died intestate on 26^th April 1984. It is their case that the Defendants have intermeddled with the said estate. The plaintiffs prayed among others that the late Isiraheli Kaseeta died intestate, an order that a will dated 11^th September 1983 purportedly that of late

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Isiraheli Kaseeta be declared null and void, declaration of registered and unregistered suit properties form part of the estate of late Isiraheli Kaseeta, declaration of all contracts, dealings and undertakings of the Defendants and third parties in respect of estate properties be declared null and void, an order of vacant possession against the defendants, demolition orders, permanent injunction, general damages and costs.

The $1^{st}$ , $2^{nd}$ , $4^{th}$ and $5^{th}$ Defendants on the other hand in their Joint Amended Written Statement of Defence refuted the Plaintiffs' claims and contended that the late Isiraheli Kaseeta died testate as he left a will dated 25^th September, 1983, appointing the 1st defendant and Byarugaba Daudi (now deceased) and father of the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ Defendants as executors of the said will. It is the Defendants' case that the will was read and all the estate property was distributed among the beneficiaries.

The $1^{st}$ , $2^{nd}$ , $4^{th}$ and $5^{th}$ Defendants raised a preliminary objection to the effect that the Plaintiffs' suit is barred by limitation and should be dismissed with costs.

It should be noted that the 3^rd Defendant did not file his written statement of defence and as such the matter proceeded against him under Order 9 Rule 10 of the Civil Procedure Rules.

#### Representation

During the hearing of the preliminary objection, the Plaintiffs were represented by M/S Leadman Advocates and the 1^st, 2^nd, 4^th and 5^th Defendants by M/S Mujurizi, Alinaitwe & Byamukama (MAB) Advocates. The 3^rd defendant never filed any defence and wasn't represented.

The issues for court to determine are whether the instant suit is barred by limitation and if so what remedies are available to the parties.

Order 15 Rule 2 of the Civil Procedure Rules, (Amendment) S. I-71-1 enjoins Court with powers to determine points of law, if in its opinion it has the effect of disposing of part of or the whole suit. The instant preliminary point of objection is on limitation of an action and as such court shall determine the same as

Section 5 of the Limitation Act, provides: -


"No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him/her or, if it first accrued to some person whom he or she claims, to that person."

Section 19(1) of the Limitation Act, provides: -

"No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action—

(a) In respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or

(b) to recover from the trustee trust property or the proceeds of the trust property in the possession of the trustee, or previously received by the trustee and converted to his or her use."

Section 20 Limitation Act, provides: -

"Subject to section 19(1), no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of twelve years from the date when the right to receive the share or interest accrued, and no action to recover arrears of interest in respect of any legacy or damages in respect of those arrears shall be brought after the expiration of six years from the date on which the interest became due."

I have considered the amended plaint and annexures thereto, the written statement of defence in respect of the $1^{st},\ 2^{nd},\ 4^{th}$ and $5^{th}$ Defendants and annexures thereon. I have also taken note of submissions of both Counsel for and against the preliminary objection and the authorities cited and $\mathsf I$ do not wish to

The law on limitation in actions for recovery of land is provided for in Section 5 while that governing actions by beneficiaries of estates in respect of a share or interest therein are brought under Section 19 (1) and 20 of the Limitation Act. In effect, claims for recovery of land or share or beneficiary interest in an estate of a deceased person cannot be brought after the expiry of 12 years from the time when the cause of action accrued. The only exceptions are where the claims are

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brought under disability in actions for recovery of land or where fraud or breach of trust has been pleaded and these exceptions must be clearly particularized in

To arrive at when a cause of action accrued depends on facts of the case under

the following circumstances: -

- a) In an action for recovery of land, a cause of action is deemed to have accrued upon knowledge of trespass or adverse claims in respect of the

b) In respect of claims for a share or beneficiary interest in an estate property whether under testacy or intestacy, the cause of action arises;

- Upon death of the estate testate/intestate or In cases of intermeddling, when the beneficiary first learnt of the $ii)$ intermeddling, - in cases of denial of a share or claims arising from excessive or iii) inadequate distribution of an estate, when the denial of the share or - the impugned distribution took place or In cases where there is an interference of an estate property by a $iv)$ - third party, when the said acts or omissions took place or Where an administrator (s) fail to act or act contrary to their powers, $v)$

when the said acts or omissions took place.

In the instant suit, it is not disputed that both parties are children and grandchildren of late Isiraheli Kaseeta. It is also not disputed that late Isiraheli Kaseeta died on 26^th April 1984. It is contended for the plaintiffs that the late Isiraheli Kaseeta died intestate and the defendants on the other hand contend that

It is trite that when court is to determine the preliminary objection, for instance on limitation period as in the instant matter, it looks at the pleadings of the parties and looks no further.

The Plaintiffs in Paragraph $5$ (g) of the amended plaint state that ever since 26/04/1984 when late Isiraheli Kaseeta died, the 1st Defendant has been intermeddling with state property in many ways. It continues in Paragraph 5 (h) of the amended plaint that in 2000 the $1^{\ensuremath{\text{s}}\ensuremath{\text{t}}}$ Defendant sold 10 acres of the estate

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DEPUTY REGISTRAR

HIGH COURT

COPY

**RUKUNGI**

land and in 2007, the $1^{\ensuremath{\textsc{st}}}$ defendant authorized one Tusingwire Victor to construct

The original plaint was filed in court on 20/01/2022 and the written statement of defence was filed on 29/03/2022 and thereafter the amended plaint and amended written statement of defence on 01/02/2023 and 09/03/2023 respectively.

I have looked at the plaint and the written statement of defence and the annextures attached thereon, I observed that the Plaintiffs' case is for recovery of land in view of the remedies sought, for instance orders for vacant possession, demolition and declarations among others, though disguised as one brought for a

The cause of action arose in 1984 when the late Isiraheli Kaseeta died that is when the plaintiffs claim that the $1^{\ensuremath{\text{s}}\ensuremath{\text{t}}}$ Defendant started intermeddling with the estate property. The said actions continued in the year 2000, when it was alleged by the plaintiffs that the 1st Defendant sold about 10 acres of the estate property and the same further continued in the year 2007, when the Plaintiffs alleged that the $1^{\ensuremath{\mathrm{st}}}$ defendant authorized one Tusingwire Victor to construct structures on the estate property. The plaint was filed on $20^{\text{th}}$ January, 2022, about 38 years later, which was obviously outside the limitation period of 12 years.

The Plaintiffs didn't state any grounds for exemption from the limitation period as required by Order 7 Rule 6 of the Civil Procedure Rules and the consequence is rejection of the plaint under Order 7 Rule 11(d) of the Civil Procedure Rules. The plaint is accordingly rejected and the suit is dismissed with costs to the $1^{\rm st},\,2^{\rm nd},\,4^{\rm th}$ and $5^{th}$ Defendants. The $3^{rd}$ defendant is denied costs since he didn't file his

Before taking leave of this matter, I noted that the Plaintiffs challenged the will dated 25^th September, 1983, relied upon by the Defendants. I have looked at the said will and the forensic report dated 13/06/2022, which is to the effect that the handwriting on the will didn't belong to Isiraheli Kaseeta. However, it is my finding that the allegations of forgery are matters of evidence, which particulars must be clearly provided and proved. Court at this stage shall not make any finding in respect of the same as it touches the merits of the case.


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- In the final result, I find merit in the preliminary objection and order that: 1. Civil suit No. 019/2022 (formerly Civil Suit No.01/2022) be and is hereby - 2. the plaint is rejected under Order 7 rule 6 $\&$ 11 (d) of the CPR and the - 3. Costs of the suit awarded to the 1^st, $2^{nd}$ , $4^{th}$ and $5^{th}$ Defendants.

It is so ordered.<br>Ruling read and delivered at Rukungiri this....................................

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TOM CHEMUTAI JUDGE .

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**DEPUTY REGISTRAR** HIGH $\bigstar$