[2025] UGHC 356

# 5 **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KABALE**

# **CIVIL APPEAL NO. 0037 OF 2019**

10 **(Arising from Civil Suit No. KAB-00-LD-CIVIL SUIT 0068 of 2017 of Chief Magistrates Court of Kabale at Kabale)**

# **KYAMPAIRE PENNINAH**::::::::::::::::::::::::::::::::::::::::::::::::::**APPELLANT**

# **VERSUS**

# 15 **1. TURINAWE EMMANUEL**

**2. NSIMARUHANGA HANINGTON**::::::::::::::::::::::::::::::::::**RESPONDENTS BEFORE: HON. JUSTICE SAMUEL EMOKOR**

# **JUDGMENT**

This is an appeal against the Judgment and Orders of the Chief Magistrate at 20 Kabale Chief Magistrates Court (herein after referred to as the "*trial Court"* delivered on the 17/09/2019 in Civil Suit No. 0068 of 2017.

The Plaintiff in the trial Court (herein after referred to as the "Appellant") sued the Defendants (herein after referred to as the "Respondents") seeking Orders for cancellation of the sale transaction of the Suit property to the 2nd Defendant, a

25 declaration to the effect that the Plaintiff is the legal owner of the Suit property, an eviction of Defendants from the Suit property, a permanent injunction against the Defendants, special damages, general damages and costs of the Suit.

The trial Court found in favour of the Defendants declaring the sale of the Suitland to the second Defendant by the first Defendant as valid and the Defendants were 30 awarded the costs of the Suit.

- 5 Dissatisfied with the Judgment and Orders, the Appellant filed this appeal and advanced the following four grounds: - **1. The learned trial Chief Magistrate erred in law and fact in holding in favour of the Respondents contrary to the evidence on Court record regarding ownership of the Suitland.** - 10 **2. The learned trial Chief Magistrate erred in law and fact when he did not properly evaluate the evidence on record and held that the Suitland belongs to the Respondent.** - **3. The learned trial Chief Magistrate erred in law and fact by not properly applying the law pertaining to joint and family property between the** 15 **spouses.** - **4. The learned trial Chief Magistrate erred in law by awarding costs to the Respondent considering the relationship of the parties.**

**Brief facts.**

It is the claim of the Appellant that she got customarily married to the 1st 20 Respondent in 1986 and begot five issues and that in 1997 the two of them bought part of the Suitland and in 1998 when the 1st Respondent left and joined the army the Appellant started to construct a house and in 2000 the Appellant went ahead and bought a neighbouring piece of land to add to what they already had.

That in 2003 after the return of the 1st Respondent the two got misunderstandings which led to their separation and they have lived apart until 2017 when the 2nd 25 Respondent was found demolishing the Plaintiff's house on the premise that he had purchased it from the 1st Respondent. As a result, the Appellant sued the

Respondent seeking orders interalia for cancellation of the sale between the 1st 5 and 2nd Respondent.

The Respondents in their joint written statement of defence denied the claims of the Appellant and aver that the 1st Respondent on 08/08/1998 and December 1997 purchased part of the Suitland and exchanged the remaining part of it respectively

10 with Kigabwire Giradina thereby consolidating the two pieces of land and took possession of the same before selling it to the 2nd Respondent. The 1st Respondent also admits separation with the Appellant but denies the rest of her averments.

The trial Court found the sale of the Suitland by the 1st Respondent to the 2nd Respondent to be valid and in the course of doing so found that there was no

marriage in existence between the Appellant and the 1st 15 Respondent therefore the Suitland could not be deemed to be family property so as to accord the Appellant rights over it.

Being dissatisfied with the Judgement and Orders of the trial Court the Appellant filed this Appeal.

20 The Appellant was represented by Messrs Beitwenda & Co. Advocates while Messrs Mujurizi, Arinaitwe and Byamukama (MAB) Advocates appeared for the Respondents.

Counsel in this matter proceeded by way of written submissions.

I have perused the submissions of Counsel and studied the authorities made 25 reference to by Counsel.

- 5 It is the duty of this Court as the first appellate Court to subject the evidence to a fresh and exhaustive scrutiny, weighing the conflicting evidence and drawing its own inferences and conclusion from it. In doing so however the Court has to bear in mind that it has neither seen nor heard the witnesses and should therefore make allowance in that respect. - 10 **See: Selle versus Associated Motor Board Co. [1968] EA 123; and Kifamunte Henri versus Uganda S,C. Crim. Appeal No. 0010 of 1992**.

The Appellants Counsel argued grounds 1,2 and 3 jointly while the 4th ground was argued separately.

**Grounds 1, 2 and 3.**

- 15 **1. The learned trial Chief Magistrate erred in law and fact in holding in favour of the Respondent contrary to the evidence on Court record regarding ownership of the Suitland.** - **2. The learned trial Chief Magistrate erred in law and fact when he did not properly evaluate the evidence on record and held that the Suitland** 20 **belongs to the Respondent.** - **3. The learned Chief Magistrate erred in law and fact by not properly applying the law pertaining to joint and family property between the spouses.**

It must be noted that the parties at the trial Court were self-represented. The trial 25 Court in determining the matter before it raised the following 3 issues:

**1) Whether the Suitland was purchased jointly by the Plaintiff and the 1st Defendant.**

**2) Whether the 1st and 2nd** 5 **Defendants are trespassers on the Suitland. 3) Remedies available.**

The trial Chief Magistrate in his Judgment while resolving the above issues did take into consideration the evidence of the Plaintiff/Appellant that she presented a purchase agreement dated 08/01/2000 wherein the seller was indicated as 10 Kigabwire Geradina and the same was admitted as PX1 and that this was in respect of the 2nd portion of land acquired from Kigabwire. The trial Chief Magistrate observed that Geradina Kigabwire testified as DW3 and stated that she sold her land to the 1st Defendant/1st Respondent and did not mention selling land to the Plaintiff/Appellant who presented two purchase agreements dated 15 08/08/1996 received as DX2 and an agreement of exchange of land dated 30/12/1997 received as DX1. The trial Chief Magistrate noted that the seller in DX 1 and DX 2 was indicated as Kigabwire Geradina and that there was no reflection that there was a joint purchase of the Suitland by the Plaintiff/Appellant and the 1 st Defendant/1 st Respondent.

- 20 To this effect the trial Chief Magistrate makes the finding that the assertions and evidence of the Plaintiff/Appellant on the matter had been clearly rebutted by the evidence of Kigabwire (DW3) and that 1st Defendant/1st Respondent and resolved that the Suit property was not joint property but was solely purchased by the 1st Defendant/1st Respondent. - 25 I have carefully analyzed PX1 presented by the Appellant as her sales agreement with Kigabwire Geradina (DW3) against DX1 and DX2 presented by the 1st Respondent.

5 The trial Chief Magistrate rightly observes that Kigabwire (DW3) did not make mention of selling her piece of land to the Appellant.

It must be observed that the Appellant under cross examination of Kigabwire did not put any questions in this regard to the witness (DW3). The testimony of Kigabwire (DW3) that she sold the Suit property to the 1st Respondent was 10 therefore entirely unchallenged while this Court observes that neither DX1 nor DX2 were put to Kigabwire (DW3) to identify though she did admit to placing a thumb print to the sale agreement when selling the property to the 1st Respondent.

Counsel for the Appellant in his written submissions raised the argument that the 15 Suit property is family land/matrimonial property or joint property. The Appellant in her evidence before the trial Court testified that she together with the 1st Respondent acquired a piece of land in 1996 and on her own effort purchased another piece of land and added it to the first one. It is this second purchase that is supported by PX1. However as already highlighted the evidence presented by the 1st 20 Respondent sufficiently rebuts that contained in PX1. The Appellant failed to rebut the assertions of the 1st Respondent that she was merely his girlfriend and that no marriage existed between the two. There is no law as to presumption of marriage and as such marriage must be strictly proved under the laws of this country. The Appellant did not even in cross examination of the 1 st 25 Respondent put it to him that a marriage existed between them.

The trial Chief Magistrate cannot therefore be faulted for his finding that the Appellant did not prove that she was married to the 1st Defendant.

The case of **Julius Rwabinumi versus Hope Bahimbisomwe SCCA No. oo10 of** citing the decision in **Kagga versus Kagga HC Divorce Cause No. 0011** of describes matrimonial property to include property that the parties call home and or to whose acquisition both contributed.

There is no demonstration on record by the Appellant of how and what 10 contribution that she made towards the purchase of the Suit property.

The Suitland also does not fall under the category of family land under **Section 38A** of the **Land Act** as there is no evidence that the family treated the Suitland as family property.

Accordingly, it is my finding that grounds 1, 2 and 3 fail.

15 **Ground 4.**

**The learned trial Chief Magistrate erred in law by awarding costs to the Respondent considering the relationship of the parties**.

It is the submission of Counsel for the Appellant that costs are governed and guided by **Section 27** of the **Civil Procedure Act** which confers upon a Judge the

20 discretion and full power to determine to whom and out of what property and to what extent costs incident to all Suits are paid and to give all necessary directions for that purpose.

Counsel admits that as a general rule in contested proceedings, the successful party is entitled to an award of costs but that this is in the absence of special 25 circumstances.

5 It is the contention of Counsel that the relationship between the Appellant and the 1st Respondent suffices as a special circumstance that warranted departure from the ordinary rule that costs follow the event. It is the argument of Counsel that the Appellant and 1st Respondent have 3 children together and awarding costs against the Appellant would cause her unwarranted inconvenience as the children 10 are still under her care and therefore that it is in the interest of justice that she is absolved of the liability to pay costs to the Respondents.

Counsel for the Respondents in his submissions in reply contends that costs follow the event and that it was the trial Chief Magistrate's finding that there was no marriage between the Appellant and 1st Respondent and that the two produced

15 children who are staying with the Appellant in Kyegegwa and as such there is no special relationship that exist between the parties for Court to waive costs to the Suit.

I would agree with both Counsel that the award of costs under **Section 27** of the **Civil Procedure Act** is discretionary and that as a general rule in contested 20 proceedings the successful party is entitled to an award of costs.

The facts of this case however demand that this Court takes into full consideration the conduct of the parties and their individual roles in bringing this matter to Court. I cannot fault the Appellant for seeking to challenge the actions of the 1st Respondent who sold the Suit property to which she claimed to have a vested

25 interest but failed ultimately to prove the same. Nonetheless it is not contested that the Appellant lived with the first Respondent and together they have 5 issues who the Appellant is looking after. In my considered opinion condemning the

5 Appellant to costs is adding insult to injury. Besides there is need to promote harmony between the Appellant and 1st Respondent as parents.

It is in the interest of equity and justice that this ground succeeds.

The Order of costs by the trial Chief Magistrate is hereby set aside.

In the final result the instant appeal fails on grounds 1, 2 and 3 succeeds on ground 10 4.

The parties shall bear their own costs in this appeal and the lower Court. It is so ordered.

Before me,

15 …………………………….......

**Samuel Emokor Judge 10/04/2025. `**