[2024] UGHC 636


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF MBARARA AT MBARARA HIGH COURT CIVIL APPEAL 25 OF 2023** 5 **(ARISING FROM MBR-00-CV-CS-29-2016)**

| MUHANGI STEPHEN ----------------------------------------------------<br>APPELLANT | | |-----------------------------------------------------------------------------------|------------------| | VERSUS | | | -------------------------------------------------<br>RESPONDENT | NUWAGIRA WYCLIFF |

**BEFORE:** Hon. Justice Nshimye Allan Paul M.

#### **JUDGMENT**

## **REPRESENTATION**

15 The Appellant was represented by Advocate Namara Joshua from M/s Kahungu-Tibayeita & Co. Advocates, while the Respondent was represented by Advocate Suwaya Matovu from M/s Matovu Suwaya & Co. Advocates.

#### **BACKGROUND**

- 20 The facts as established from the court record are that the Respondent herein instituted Magistrates Court Civil Suit No.29 of 2016 against the Appellant herein for recovery of land developed with a forest planation *(See paragraph 4 of the plaint in Magistrates civil suit 29 of 2016)*. The orders sought in the plaint in the Magistrates Court were; a declaration that he owns the suit land, a declaration - 25 that the Appellant herein is a trespasser on the suit land, a permanent injunction restraining the Appellant herein from interfering with the enjoyment of the land by the respondent herein, compensation for economic loss, special and general damages and costs of the suit with interest. - 30 In the plaint, in the Magistrates civil suit 29 of 2016 case, the respondent herein averred that he purchased the suit land premised at Kikurungu Cell, Kibingo Parish, Bugamba Sub County, Rwampara County, Mbarara District from his mother Georgina Kimpenda, where after he took possession, fenced it, and

planted eucalyptus trees on the same. That without his knowledge and authorisation, the Appellant entered onto the suit land, cut down the barbed wire fence and eucalyptus trees and cultivated on the same.

- 5 In his defence, the Appellant herein denied the allegations and contended that he is not aware of any transaction between the respondent herein and their mother. The Appellant added that there was an informal sharing of part of their deceased father's estate (the late Eliphaz Kimpenda), where after he fenced off his share and cultivated thereon. - 10

The issues for determination in the Magistrates Court were;

- 1. Whether the Plaintiff (now Respondent) owns the suit land? - 2. Whether the Defendant is a trespasser on the suit land? - 3. What remedies are available to the parties? - 15

In a judgment delivered on 1st February 2023, the learned trial Magistrate held that the Respondent herein owns the suit land, and that the Appellant herein is a trespasser and awarded the Respondent herein general damages worth UGX8,000,000/= only. Being dissatisfied with that decision, the Appellant herein 20 lodged this appeal.

## **GROUNDS OF APPEAL**

The grounds of appeal as stated in the memorandum of appeal are;

- 1. That the learned trial Magistrate erred both in law and fact when he failed to 25 properly evaluate the evidence on record hence came to a wrong conclusion that the Plaintiff is the rightful owner of the suit land. - 2. That the learned trial Magistrate erred both in law and fact in holding that the late Kimpenda died intestate. - 3. That the learned trial Magistrate erred both in law and fact in applying the 30 principle of equity in toto in disregard of statutory law governing the administration of the estate of a deceased person. - 4. That the learned trial Magistrate erred both in law and fact in awarding the Plaintiff/Respondent general damages of UGX8,000,000/=. - 5. That the learned trial Magistrate erred both in law and fact in awarding the 35 costs of the suit to the Plaintiff/Respondent.

Page **2** of **13**

The Appellant therefore prays for the following orders;

- i. The appeal be allowed with costs. - ii. The judgment of the lower Court be set aside. - 5 iii. That judgement be entered in favour of the Appellant.

## **SUBMISSIONS**

The parties proceeded by filing written submissions. The Appellant's submissions in support of the appeal were filed on 9 th January 2024, the Respondent's submissions in reply were filed on 6th 10 February 2024, and the Appellant's submissions in rejoinder were filed on 19th February, 2024.

## **Appellant's submissions in support of the appeal**

- Counsel argued grounds 1 and 2 together. It was argued that the late Eliphaz 15 Kimpenda died testate leaving a will. That Georgina Kyamiha Kimpenda did not have capacity to sell the suit land. Counsel contended that even if the said will was not exhibited in Court, mistake of counsel should not be visited on the litigant and prayed that this Court orders for an equal distribution of the suit land between the Appellant and Respondent. It was further argued that the suit land - 20 forms part of the estate of the late Kimpenda Eliphaz who died testate and therefore Georgina Kyamiha Kimpenda, a co-administrator of that estate had no capacity to sell it off.

On ground 3, it was submitted that that the learned trial Magistrate erred in 25 finding that Mrs Georgina Kyamiha Kimpenda sold the suit land to the Respondent, because in estates where there is more than one administrator, all administrators must act jointly for the benefit of all rightful beneficiaries **(see: SILVER BYARUHANGA VS FATHER EMMANUEL RUVUGWAHO AND ANOTHER SCCA No.09 of 2014)**. It was thenceforth prayed that the sale transaction 30 between the Respondent and Mrs Georgina Kyamiha Kimpenda be nullified. Counsel contended that by upholding that transaction Court will be sanctioning an illegality.

For ground 4, counsel contended that the award of UGX8,000,000/= as general 35 damages was harsh, exorbitant and unsubstantiated in evidence, when the actual value of the suit land is UGX1,500,000/= only. In regard to ground 5, it was prayed that since this is a family matter, for purposes of reconciliation and unity, that costs be set aside.

#### 5 **Respondent's submissions in reply**

Counsel argued grounds 1 and 2 together. Counsel submitted that the trial Court was right in holding that Eliphazi Kimpenda died intestate because there was no will exhibited in Court, nor annexed to the letters of administration and prayed that Court ignores the Appellant's prayer to equally distribute the deceased's 10 estate. He added that the testimonies of PW1, PW2 and PW3 proved that the suit land belonged to Mrs Georgina Kyamiha Kimpenda who freely sold the same to the Respondent and that the trial Magistrate appropriately evaluated the evidence in that regard.

- 15 On ground 3, counsel contended that Section 272 of the Succession Act does not apply to this situation where Mrs Georgina Kyamiha Kimpenda sold her shares as a beneficiary to the estate of her husband and thus the Respondent lawfully owns the suit land. She prayed that this ground fails. For ground 4, counsel contended that the award was justified because the Appellant has unlawfully - 20 benefited from the suit land for 8 years. Lastly on ground 5, counsel argued that costs follow the event as per Section 27 of the Civil Procedure Act and thus the learned trial Magistrate was justified in awarding them to the Appellant.

#### **Appellant's submissions in rejoinder**

25 Counsel for the Appellant reiterated his earlier submissions in support of the appeal.

## **DUTY OF APPELLANT COURT**

The duty of a first appellate court was laid out in the case of **FR. NARSENSIO BEGUMISA AND 3 ORS V. ERIC KIBEBAGA SCCA NO. 17 OF 2002** that;

*"The legal obligation of the 1st appellate court to reappraise the evidence is founded in the common law rather than rules of procedure. It is a well settled principle that on a 1st appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law.* *Although in case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses."*

The above principles will guide this court in the determination of the grounds of 5 appeal that will be determined as here below stated.

#### **DETERMINATION**

I will first determine ground 2, followed by 1 & 3 collectively, then ground 4 and lastly ground 5.

It is trite law that the party that alleges has duty to prove the same as stipulated in section 101 – 103 of the Evidence Act and was held in **KARAMIRA V KIGGUNDU. HIGH COURT CIVIL APPEAL 93 OF 2018.** It is also the law that an admission may operate as an estopel (See Section 16, 28 and 114 of the Evidence 15 Act).

The evidence on court record shows that the parties herein agree to some facts.

- 1. That the appellant and respondent are siblings, both are biological children of Georgina Kimpenda and the Late Eliphazi Kimpenda. - 20 2. That Georgina Kimpenda, Nuwagira Wycliff (respondent) and Stephen Muhangi (appellant) are the administrators of the estate of the late Eliphazi Kimpenda vide HCT-05-CV-AC-0043-2009 (*A copy of the Letters of Administration issued on 13 May 2015 by Hon Justice David Matovu is on court record*). - 25 3. That the property of the late Eliphazi Kimpenda was divided and their mother (Georgina Kimpenda) got the suit property. **(***see PEX2 family meeting minutes of 20/06/2015, signed by both parties refers to Kimpenda Georgina as widow of late Elifazi Kimpenda and shows a distribution map of the property to all including Kimpenda Georgina. DW1(Muhangi* 30 *Stephen) testified at page 17 line 7 of the record of proceedings that "the map on PEX2 shows how we shared the land after the death of our father. The land marked XXXX on this map is the one which we gave our mother at the time of sharing***")**

4. That Georgina Kimpenda sold the suit property to Nuwagira Wycliff 35 (Respondent*)(see PEX1 land sale agreement dated 8/2/2011 Kimpenda*

*Georgina selling to Nuwagira Wycliff. PW1 (Nuwagira Wycliff) also states in his testimony at page 6 line 12 – 15 of the record of proceedings, that he purchased land from his mother Georgina Kimpenda. This is also stated by DW1 (Muhangi Stephen) in his testimony at page 17 line 15 – 16 of the* 5 *record of proceedings.)*

5. That Muhangi Stephen entered into and is occupying the suit property. (*PW1, Nuwagira Wycliff's testimony at page 6 line 22 of the record of proceedings is that he took possession of the suit land after purchasing it from his mother, then the defendant trespassed on the suit land. DW1,* 10 *Muhangi Stephen in his testimony at page 17 line 11 of the record of proceedings stated that "I am using part of the land that was given to our mother, it is the one in dispute.")*

I note that despite all the facts of convergency above, that amount to 15 admissions, the main thrust of the appellant's argument in the Magistrates court and in this appeal is;

- A. That their father Eliphazi Kimpenda did not die intestate. - B. That although their mother received the suit land in the sharing she was not supposed to sell, but just use it and upon her death it will be shared 20 by the boys. - C. That the sale agreement between his mother, Georgina Kimpenda and Nuwagira Wycliff (respondent) is not in accordance with the law since it was not done by the administrators of the estate, who in this case are Georgina Kimpenda (their mother), Nuwagira Wycliff (respondent) and 25 Stephen Muhangi (appellant).

#### **Issue 2**

## **That the learned trial Magistrate erred both in law and fact in holding that the late Kimpenda died intestate**.

In principle a document must be proved by primary evidence as is stipulated in the law in **section 60 of the Evidence Act**. This entails the production of the document itself for inspection by court as is stated in **section 61 of the Evidence Act**, save where the exceptions in **section 64 of the Evidence Act** are applied.

The evidence on court record shows that the appellant and respondent herein, while in the Magistrates court as defendant and plaintiff respectively never produced the last will of their father, Eliphazi Kimpenda.

5 I have noted that the parties herein are co-administrators of the estate of the late Eliphazi Kimpenda vide HCT-05-CV-AC-0043-2009 (*A copy of the Letters of Administration issued on 13 May 2015 by Hon Justice David Matovu is on court record*). The letters of administration do not mention that they are granted with a will annexed, in that regard it is my finding that the evidence on record 10 supports the finding that the late Eliphazi Kipenda died intestate.

The Trial Magistrate, HW Lwanga Nsibambi in her judgement, states in the last paragraph at page 10, that "*it was the defendant case that their father left a will but throughout the trial no will was tended………. I will consider that the late*

15 *kimpenda died intestate".*

This finding of the Trial Magistrate tallies with the finding I reached after doing my own evaluation, I therefore cannot fault Trial Magistrate, HW Lwanga Nsibambi on her finding. Therefore grounds 2 fails.

#### **Issue 1 & 3**

**That the learned trial Magistrate erred both in law and fact when he failed to properly evaluate the evidence on record hence came to a wrong conclusion that the Plaintiff is the rightful owner of the suit land.**

25 **That the learned trial Magistrate erred both in law and fact in applying the principle of equity in toto in disregard of statutory law governing the administration of the estate of a deceased person.**

It is trite that a duly court appointed administrator of the estate of a deceased 30 person is the legal representative of that deceased person for all purposes and property of the estate vests in that administrator as is stated in **SECTION 180 OF THE SUCCESSION ACT.**

The evidence on court record shows that the appellant, respondent and their 35 mother called Georgina Kimpenda are co administrators of the estate of the late Eliphazi Kimpenda vide HCT-05-CV-AC-0043-2009. The Letters of Administration were granted on 13 May 2015 by Hon Justice David Matovu. A month after the grant of the letters of Administration the parties to this appeal and their mother (co-administrators) along with other people, signed a document exhibited as

5 PEX2, which constitutes minutes of a family meeting on 20/06/2015, that shows a distribution map of the estate property to the beneficiaries. In PEX2 the suit land was allocated to Kimpenda Georgina (mother of the parties herein).

#### 1005123 14055123670589

Muhangi Stephen), who testified as DW1 in the Magistrates court, stating at page 17 line 7 of the record of proceedings that **"the map on PEX2 shows how we shared the land after the death of our father. The land marked XXXX on this map is the one which we gave our mother at the time of sharing".**

I note that the distribution of the land to beneficiaries of the late Eliphazi Kimpenda was confirmed on 20/06/2015 in PEX2. This PEX2 document was done with the input of all the administrators of the estate who had been dully appointed a month earlier on 13/05/2015. I therefore find that the distribution 165 of the suit land to Georgina Kimpenda was done in line with the law in section 180 of the Succession Act.

The Administrators of an estate of a deceased person have a duty to distribute the estate property to the beneficiaries in accordance with the law. In my 170 opinion when the land/property that is distributed is not titled, it means that the distribution effectively transfers the said untitled property from the estate to the beneficiary. If the land/ property is titled, then the administrators will follow up the distribution with a signed transfer form of the titled land/property in favour of the beneficiary.

I need to address that argument by the appellant, when he gave evidence in the Magistrates court as DW1, stating that

1. Our mother got a share …. , but it was **not hers she was just taking care** 180 **of it** (see page 17 line 3-6 of the record of proceedings)

- 2. The land was distributed by the clan elders, **my mother took the disputed land.** She was care taking it with no authority to sell it…. **Upon her death, it was to revert to boys** (see page 18 line 6-10 of the record of proceedings). - 5

The testimony of the appellant quoted above basically means that in his view their mother cannot own land and was only to keep it with no rights to deal in it until her death. This reasoning is contrary to **ARTICLE 32(2) OF THE UGANDAN CONSTITUTION** that provides that customs, cultures, and traditions that 10 undermine the dignity or interest of women are prohibited by the Constitution.

It is therefore inconceivable that a lady that was at her husband's side while they accumulated property, can be told by her biological child after the death of her husband, that she has no right to outrightly own part of her husband's property, 15 but rather it is the sons who can own it. The views of the appellant in his testimony as Dw1, that the mother Georgina Kimpenda does not own the land that was distributed to her is unconstitutional.

I will now address the argument fronted by the appellant in his submissions that 20 for Georgina Kyamiha Kimpenda to sale the suit land all the administrators must act jointly he then made reference to the case of **SILVER BYARUHANGA VS FATHER EMMANUEL RUVUGWAHO AND ANOTHER SCCA No.09 of 2014** in support of his argument.

- 25 In my view there is need to separate between dealing in property that is part of the estate and dealing in property that is no longer part of the estate. the guidance from case law is as follows; - n **JOHN KIHIKA & KAIDOLI WILLIAM VS ABSOLOM TINKAMANYIRE,** 30 **COURT OF APPEAL CIVIL APPEAL 86 OF 2014**, The Court held that "without a grant of letters of administration, no person has any right whatsoever to sell or otherwise deal with property of a deceased Person".

This implies that as a general rule property that is still part of the estate of 35 a deceased that dies intestate requires the appointment of administrators, who then are vested with the property and have authority to deal with it subject to the law. In my view the dealing by administrators may be by distribution to the beneficiaries or selling to a third party with consent of the beneficiaries.

- **B.** An administrator of an estate holds legal interest to the estate property while the equitable interest in the estate property is held by the beneficiaries in whose trust the administrator holds the estate property as was held in **DR DIANA KANZIRA VS HERBERT NATUKUNDA** 10 **RWANCHWENDE AND ANOTHER COURT OF APPEAL CIVIL APPEAL 81 OF 2020** - **C.** A beneficiary has legal capacity to validly dispose of his/her beneficial interest without the notice or prior consent or authorisation by the holder 15 of letters of administration if the beneficiary's interest is ascertainable and he/she is in exclusive possession of the same as was held in **DR DIANA KANZIRA VS HERBERT NATUKUNDA RWANCHWENDE AND ANOTHER COURT OF APPEAL CIVIL APPEAL 81 OF 2020** - 20 The facts in this appeal, relate to a scenario which in my view is slightly different from the facts that led to the Court of Appeal decisions above, because in this appeal the estate property is untitled land / Kibanja, which was distributed with the input of the administrators to the estate. Secondly the parties in this appeal are co-administrators that have sued each other. - 25

The question that has to be asked is that at what stage does property in the untitled land pass from the estate to the beneficiary?

I am of the conviction that a beneficiary that has received his or her untitled land 30 pursuant to a distribution by the administrators of the estate enjoys the right to property in that untitled land as provided in Article 26 of the Ugandan constitution and as such does not need the administrator's involvement or authorisation to sell the untitled land because after the distribution it ceases to be part of the estate of the deceased.

I therefore find that Georgina Kimpenda was allocated the suit land as shown in PEX2, with the input of the administrators of the estate of the late Eliphaz Kimpendi. She therefore had any right to deal with it as she wished, so considering that the evidence on court record¹ shows that she sold the suit land

5 to the respondent, it therefore follows that the property in the suit land moved to the respondent herein.

The Trial Magistrate, HW Lwanga Nsibambi in her judgement, states in the last paragraph at page 12, that "*I find that the suit land forms part of the land that* 10 *was allocated to Georgina Kimpenda".* This finding of the Trial Magistrate tallies with the finding I reached after doing my own evaluation, I therefore cannot fault Trial Magistrate, HW Lwanga Nsibambi on her finding in her judgement. Therefore Grounds 1 & 3 fail.

#### 15 **Ground 4**

# **That the learned trial Magistrate erred both in law and fact in awarding the Plaintiff/Respondent general damages of UGX8,000,000/=.**

In principle an appellate court will not interfere with the award of damages by a 20 trial court unless the trial court acted upon wrong principle of law or the amount awarded is so high or so low as to make it an entirely erroneous estimate of the damages as was held by the Supreme Court in **CROWN BEVERAGES LTD V SENDU EDWARDS SCCA APPEAL NO. 01 OF 2005.** It should be remembered that damages are awarded to compensate the aggrieved, fairly for the 25 inconveniences accrued because of the actions of the defendant as was held in **VICTORIA CANDLES LTD V ATTORNEY GENERAL AND OTHERS HCCS 367 OF 2019.**

The Trial Magistrate, HW Lwanga Nsibambi in her judgement at page 13 & 14 30 found that the appellant herein trespassed on the land and awarded damages to the appellant herein of shillings 8,000,000 for having denied him use of the land for 8 years.

1

page 9 line 16 – 20 of the record of proceedings)

This court has already agreed in its evaluation above that the suit land was allocated to Georgina Kimpenda, it then ceased to be part of the estate of the late Eliphazi Kimpenda, she then sold it to the respondent who is the owner of the suit land.

The evidence on court record shows that the respondent herein while testifying as PW1, stated that *"I took possession of the land and fenced it , then the defendant trespassed on the land"* (see page 6 line 22 of the record of proceedings), While the appellant herein while testifying as Dw1 stated that *"I* 10 *am using part of the land that was given to our mother, it is the one in dispute"* (see page 17 line 11of the record of proceedings)

In my evaluation of the evidence on court record as shown above confirms that the appellant herein trespassed on the Suitland that belongs to the respondent 15 herein. I find that the award of damages made by the Trial Magistrate for the period of the continued trespass she stated is in line with the principle that the trespasser pays compensation for the trespass. I therefore see no reason to

interfere with the damages awarded by the trial court. Ground 4 fails.

### 20 **Ground 5**

# **That the learned trial Magistrate erred both in law and fact in awarding the costs of the suit to the Plaintiff/Respondent.**

It is trite that costs follow the event, and the successful party is entitled to 25 costs.

Section 27 of the Civil Procedure Act states;

*"Provided that the costs of any action, cause or other matter shall follow the event unless the court or the judge shall for good reason otherwise* 30 *order".*

The respondent herein was the successful party in the lower court, which means he is entitled to the costs of the suit. I find that the Trial Magistrate rightly awarded costs. Therefore ground 5 fails.

In conclusion, I make orders that

- The appeal is dismissed $1.$ - The appellant shall pay the costs of this appeal to the respondent. $\overline{2}$ .

$t = t$ ...........

**NSHIMYE ALLAN PAUL M. JUDGE** 05-07-2024