[2025] UGHCLD 72

### **THE REPUBLIC OF UGANDA**

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

### **LAND DIVISION**

### **MISCELLENEAOUS CAUSE NO. 021 OF 2025**

### **1. MUKASA DAVID**

**2. KAFEERO JOYCE DORCAS**

# **3. NAGAWA EVALINE KAFEERO :::::::::::::::::::::::: APPLICANTS VERSUS**

**1. KAKEMBO NTAMBI BEATRICE**

### **2. COMMISSIONER LAND REGISTRATION ::::::::: RESPONDENTS**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA**

# **RULING**

# *Introduction.*

- 1. The applicants brought this application by way of notice of motion under Section 33(now section 37 of the revised laws) of the Judicature Act, Section 98 of the Civil Procedure Act and Order 52 rules 1,2 and 3 of the civil procedure rules for orders that; - i) An order doth issue against the 2nd respondent for removal of a caveat registered by the 1st respondent on property comprised in Block 34 Plot 581 land at Mutundwe Kampala.

ii) Costs of the application be provided for.

## *Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by Mukasa David which briefly states as follows; - i) That I am one of the three administrators of the estate of the late Mbazira Kafeero Ssekaya. - ii) That during the process of acquiring the letters of administration the 1st respondent completely declined taking part of the identification both at the administrator general's office and that before the registrar at the family division court. - iii) That upon failure to appear, the registrar and the learned Judge granted the letters of administration to Mukasa David, Kafeero Joyce Dorcas and Nagawa Evaline Kafeero on the 26th of September 2024. - iv) That on the 3rd of October 2024, me together with other applicants through our lawyer addressed a letter to the 1st respondent requesting her to surrender the duplicate

certificates of title for Mutundwe and Mityana vide Block 34 Plot 581 Kibuga and Block Plot 78 Singo.

- v) That through a court process server, the 1st respondent received the letter but never surrendered the two titles. - vi) That on the 16th of October 2024, me together with other applicants reported a case of missing land title in the name of Kafeero Ssekaaya Mbaziira Erison at Mutundwe police station. - vii) That on the 16th of October 2024, we the administrators applied to the registrar of titles for a special certificate. - viii) That the efforts to have the applicants registered on the certificate of title as administrators have been rendered futile because of the 1st respondent's caveat.

# *1st respondent's evidence;*

- 3. The application is responded to by an affidavit in reply deponed by the 1st respondent which briefly states as follows; - i) That I am a daughter of the late Erison Ssekaaya Kafeero Mbaziira and the caveator on the land comprised in Kibuga Mengo Block 34 Plot 581 land at Mutundwe.

- ii) That my late father Erison Senkaaya Kafeero Mbazira died on the 17th of January 2012 and was survived by 10 children namely; - 1. David Kimera Mukasa - 2. Margaret Ngalonsa Namwangu - 3. Joyce Nabayiga - 4. Disan Duncan Tabaliro - 5. Kakembo Ntambi Beatrice Balitenda - 6. Kaggwa Fred - 7. Sentongo William Kitooke - 8. Kafeero Harriet Nazziwa - 9. Naluwagga Sarah Gwoyeza - 10. Kafeero Augustine - iii) That my late father's estate comprised a residential property at Kibuga Block 34 Plot 581, Land at Mutundwe. After his death, it became my late mother Norah Kafeero Mbaziira's residence. - iv) That following the death of my father, my brother and cultural heir to my late father (Dr. Duncan Senkaaya Tabaliro Kafero) directed me to lodge a caveat on the land.

- v) That the 1st applicant is my elder brother aged 82 years and the father of the 3rd applicant. - vi) That the 2nd applicant is my 80-year-old sister a resident of Georgia in USA and she has never travelled to Uganda to sign any documentation related to the suit land. - vii) That the administrators must act jointly however the signature of the 2nd applicant appears to be forged. - viii) That I do not possess the certificates of title nor am I aware of their location. - ix) That on the 21st October 2024, the 3rd applicant and her brother purportedly sold the estate land Block 34 Plot 581 land at Mutundwe to Nkuruziza Emmanuel. - x) That the 3rd applicant and Tamale David purportedly acting as representatives of the beneficiaries sold 0.319 hectares that are part of the estate of the late and received a partial payment of Ugx 130,000,000. - xi) That I was contacted by the purchaser, Nkuruziza Emmanuel who demanded for the certificate of the estate land to enable him mutate and transfer the portion he purchased from the 3rd applicant and Tamale David.

- xii) That it is the joint administrators who are supposed to deal with the estate property and not the 3rd applicant or Tamale David. - xiii) That the purpose of the instant application is to pave way for the 3rd applicant and Tamale David to perfect and complete the illegal sale of the estate property comprised in Kibuga Block 34 Plot 581 land at Mutundwe.

# *Rejoinder;*

- i) That I was gifted 25 decimals at Kibuga Block 34 Plot 581 land at Mutundwe by my father Mbazira Kafeero when he was still alive where I constructed a residential home. - ii) That on the 17th February 2013, the 1st respondent together with other beneficiaries executed a consent and signed a document showing that 25 decimals off 78 decimals of the said land showing that it belonged to me. - iii) That meanwhile the late Norah Kafeero Mbazira and other beneficiaries including the 1st respondent conducted a sub division and sold part of the land without obtaining necessary letters of administration.

- iv) That the 2nd applicant executed the documents prior to her departure for Atlanta, George USA and her consent and signature were subsequently confirmed via zoom court proceedings and the 1st respondent shall be put to strict proof. - v) That the removal of the caveat will help the applicants process a special certificate of title to protect the interest of all the beneficiaries.

## *Representation;*

- 4. The applicants were represented by M/S Ssentongo & partners' Advocates whereas the 1st respondent was represented by Kalenge, Bwanika, Kisubi & Co Advocates. - 5. Both the applicants and the 1st respondent filed written submissions which I have considered in the determination of this application.

## *Issues for determination;*

*Whether the 1st respondent can show cause why the caveat on land measuring approximately 78 decimals land at Kibuga Block 34 Plot 581 should not be removed?*

*Whether the caveat filed by the 1st respondent can be removed from the 78 decimals land at Kibuga Block 34 Plot 581 land at Mutundwe?*

*What remedies are available to the parties?*

#### *Resolution and determination of the issues;*

- 6. Counsel for the applicants submitted that the applicants were appointed as administrators of the estate of the late and ownership of property of the deceased vests in the appointed administrators upon grant of letters. - 7. That in the present case the ownership of 53 decimals off the now 78 decimals land at Mutundwe vests in the administrators on behalf of the beneficiaries and have the right to apply for the removal of the caveat. - 8. Counsel relied on the provisions of the registration of titles act and the decision in **Enja Singh vs Isher Singh (1957) EA 654** where it was held that a person claiming any interest may summon the caveator to attend court and show cause why the caveat should not be removed.

- 9. Counsel for the applicants further submitted that a caveat is merely to give a caveator temporary protection and the caveator will not be allowed to seat back and twiddle their fingers for undetermined future to the detriment of the 3rd applicant and her 3 siblings together with the interest of the remaining beneficiaries. - 10. In reply, counsel for the 1st respondent submitted that the position of the law is that a caveator should have a legal or equitable interest in the land or any other caveat able interest they seek to protect, otherwise, the caveat becomes invalid as stated in Reagan Kimbugwe John vs Sajjalyabane Rhoda Kawuki Misc. Cause No. 349 of 2023. - 11. That the 1st respondent as stated in her affidavit in reply is the daughter of the late Mbazira Kafeero Erison, the current registered proprietor of the land, she is also a sister to the 1st and 2nd applicants and a paternal aunt to the 3rd applicant and at the time of lodging the said caveat she was protecting her beneficiary interest. - 12. Counsel for the 1st respondent further submitted that the dealings by some of the administrators over the suit land justify the maintaining of the 1st respondent's caveat and that the instant

application is not merely about the removal of a caveat but it seeks to legitimize the unauthorized sale of estate property.

- 13. It's trite that for a caveat to be valid, the caveat must have a caveatable interest, legal or equitable in the land. A caveatable interest is a claim of a proprietary or quasi proprietary nature in a particular piece of land. *(See; JT Mugambwa in Principles of Land Law in Uganda at Page 84).* - 14. The primary objective of a caveat is to give the caveator temporary protection. It is not the intention of the law that the caveator should relax and sit back for eternity without taking steps to handle the controversy so as to determine the thoughts of the parties affected by its existence*. (See; Boynes Vs Gather (1969)*

#### *EA 385)*

- 15. In handling applications for removal of a caveat, the trial court is very much concerned with the interests of justice of each case before it. *(See; Eng Mee Young and Others V Letchumanan s/o Velayutham [1980] A. C 331)* - 16. In the instant case, the 1st respondent alleges that she is among the beneficiaries of the late and also related to some of the

applicants who are the administrators of the estate, justifying as to why she lodged the said caveat.

- 17. A beneficiary caveat is one that does not elapse and among the ways the said caveat can be vacated is by order of court, something this application seeks. - 18. A caveat by nature is a temporary remedy and a caveator is not supposed to sit back without justifying as to why he or she lodged the same. In the instant case the applicants allege to be administrators of the estate of the late and their efforts to have them registered on the certificate of title to the suit land have been rendered futile due to the caveat lodged by the 1st respondent. - 19. The 1st respondent in her evidence states that the caveat she lodged protects her beneficiary interest and that some of the administrators are transacting over the estate property in an illegal manner and she adduced a sales agreement to that effect. - 20. I am of the considered opinion that the instant application is one that raises contentious issues and facts that relate to the rights and interests of all parties in the suit property that cannot be determined in a suit of this nature.

- 21. I advise the applicants to institute an ordinary suit where all the issues regarding the suit land and the rights of all the parties shall be determined. - 22. In the premises, the instant application is hereby dismissed by this court with no orders as to costs.

**I SO ORDER**.

## **NALUZZE AISHA BATALA**

## **Ag. JUDGE**

## **30th/05/2025**

# **Delivered electronically via ECCMIS on the 30th day of May**

#### **2025.**