[2025] UGHCFD 36

#### 5 **THE REPUBLIC OF UGANDA**

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

#### **(LAND DIVISION)**

#### **CIVIL SUIT NO. 0007 of 2020**

**NAMUTEBI PENINAH ::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

#### **VERSUS**

# **1. JAMES KIBOMBO**

**2. KIKAMBI GERALD**

#### **3. COMMISSIONER LAND REGISTRATION :::::::::::::::: DEFENDANTS**

#### *Before: Hon. Lady Justice Immaculate Busingye Byaruhanga*

#### *JUDGMENT*

The plaintiff brought this suit against the defendants jointly and severally seeking a 20 declaration that the suit land was unlawfully alienated from the estate of the late Katalina S. Nakimbugwe in favour of the 1st defendant, an order to cancel the 2 nd defendants' names from the title of the suit land, an order for reversal of all transactions on the title to the suit land and that it is vested in the plaintiff, a declaration that the 1st and 2nd defendants fraudulently got registered on the title of 25 the suit land, an eviction order for the defendants to give vacant possession of the land to the plaintiff, a permanent injunction, mesne profits with interest at a rate of 25% compounded per annum from January 2005 until payment in full, general damages and costs of the suit.

In the facts constituting the cause of action, the plaintiff contended that the late 30 Katalina S Nakimbugwe was the registered proprietor of the suit land comprised in Block 216 plot 667 measuring approximately 0.06 hectares and located at Bukenya Zone Kampala and was registered as such on the 31st day of October 1991 **(PExh.1)**. It was further contended that sometime in July 2016, the 1 st defendant, a local trader


5 and resident of Buye, Ntinda somehow conspired to procure registration of the suit property into his names.

The plaintiff also contended that the 1 st defendant did not have any claim or interest to the suit land and that he procured the transfer to his names by fraud and unlawful means. That the plaintiff was bequeathed the suit land by the late Katalina S. Nakimbugwe on 9 10 th November 2004 and the plaintiff lodged a caveat on the title of

the suit land on 2nd August 2017**(DExh.18)**, however, the same was removed without the plaintiff's knowledge.

The plaintiff further contended that she discovered that the 1 st defendant through a flawed process obtained letters of administration to the estate of the Katalina S 15 Nakimbugwe and had got the suit property transferred to him in 2016. The plaintiff

also contended that the 1 st defendant became the registered proprietor in his capacity as administrator of the estate of the late Katalina S Nakimbugwe.

On the other hand, the defendants individually denied the plaintiff's claims and contended as follows;

- 1. The 1st 20 defendant contended that the late Katalina S Kimbugwe owned land comprised at Kyadondo Block 216 Plot 667 measuring 0.06 hectares land at Buye Ntinda. - 2. That before her death, the late Katalina S Kimbugwe bequeathed the suit land to the 1st defendant **(PExh.3)**. - 25 3. That the Late Katalina S Kimbugwe in support of her gift inter vivos signed transfer forms on the 16th day of June 2006. - 4. That the 1st defendant processed letters of administration to the said estate which led to the grant of letters of administration to the defendant on 6th February 2015 **(PExh.4 & 5)**.


- 5. That by virtue of the said grant, the 1st 5 defendant was registered on the suit land and has been in possession of the suit land for more than 25 years even during the lifetime of the late Katalina S. Kimbugwe. - 6. That the plaintiff is neither a beneficiary to the estate of the late Katalina S. Nakimbugwe nor has she any claim of right to the suit land. - 7. That the 1st 10 defendant followed all lawful steps in attaining the grant of letters of administration to the estate in issue. - 8. That the application for the special certificate of title was legally attained by the 1st defendant as a legal representative of the late Katalina S Kimbugwe (**PExh.2)**. - 9. That the 1st 15 defendant by virtue of the late Katalina S Kimbugwe's consent to stay on and develop the suit land, built structures thereon. - 10. That the plaintiff has no claim of right on the suit land and her claims are not in good faith. - 11. The 1st defendant contended that he sold the suit land to the 2nd defendant in 20 food faith.

In further response, the 2nd defendant contended as follows;

- 1. That the plaintiff lacks locus standi to institute this suit against the 2nd defendant and that the plaint discloses no cause of action in favour of the plaintiff to warrant the grant of the plaintiff's reliefs sought. - 2. That the 2nd 25 defendant who deals in real estate business was approached in 2017 by a broker who informed him that the suit land was for sale by the 1st defendant. - 3. That the 2nd defendant was introduced by the broker to the 1st defendant, James Kikombo who informed him that he was the registered proprietor of the suit 30 land.

- 4. That the 1st 5 defendant was in possession of the certificate of title and upon conducting an informal search at the land office, it was confirmed that the 1st defendant was the registered proprietor as an administrator of the estate of the Late Katalina Nakimbugwe and there were no encumbrances on the land save for the owner's caveat lodged by the 1st defendant. - 5. That in company of the 1st defendant, the 2nd 10 defendant physically visited the land which was developed with residential tenant's units which were all occupied and the tenants confirmed that they paid rent to the 1st defendant who was their land lord. - 6. That all due diligence revealed that the land was unencumbered and was in possession of the registered proprietor hence the 2nd 15 defendant made the decision to purchase. - 7. That the 2nd defendant executed a sale agreement with the 1st defendant and paid the full consideration for the suit land after which he was given signed transfer forms and all incidental documents to enable him transfer the land 20 into his names. - 8. That the 2nd defendant was introduced to the tenants as their new landlord and none of them raised any query or suggested there being any other landlord that they were aware of and since then the 2nd defendant has since then to date, been collecting rent from the tenants as their landlord. - 9. That the 2nd defendandant acquired the suit land bonafidely from the 1st 25 defendant who was the then registered proprietor after conducting thorough due diligence and confirming that there was no encumbrance on the suit land. That there was no caveat lodged by the plaintiff at the time of the end defendant's purchase, who was unknown to the 2nd defendant until he was 30 added to the suit.


10. That the 2nd 5 defendant denies the rest of the contents of the amended plaint and avers that he has never connived with the 1st or 3rd defendants to fraudulently acquire the suit land.

In further response, the 3rd defendant contended as follows;

- 1. That the plaint is vexatious/ frivolous and an abuse of court process and the same ought to be dismissed with costs to the 3rd 10 defendant. - 2. That the 3rd defendant has been sued for purposes of implementing court orders which it can implement even when it's not a party to the suit and hence would make a prayer to be struck off as a party to the suit. - 3. That the plaintiff has no reasonable cause of action against the office of the 15 Commissioner Land Registration. - 4. That the 3rd defendant has never connived with any party to illegally remove the plaintiff's caveat. - 5. That the office of the 3rd defendant legally followed the procedure required under the law before removing the plaintiff's caveat. - 6. That the office of the 3rd 20 defendant carried out all the transactions relating to the suit land on the basis of the documents that were presented and presumed to be genuine and authentic.

### **Counsel legal representation**

The plaintiff was represented by **Counsel Kayondo Jackson** while the 1st defendant was represented by **Counsel Semakula Charles Muganwa,** 2 nd 25 defendant was represented by **Counsel Kyazze Joseph and Counsel Natunkunda Antonia** while the 3rd defendant was represented by **Counsel Arinaitwe Sharon.**

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In the Joint Scheduling Memorandum filed on 16 5 th November 2023, the parties and their respective counsel agreed upon facts and formulated issues for determination as follows:

### **Agreed upon facts included the following:**

- 1. That the suit land was formerly owned by the Late Katalina S. Nakimbugwe. - 2. That the suit land is currently registered in the names of the 2nd 10 defendant.

### **Issues for determination**

- 1. Whether the plaintiff has locus standi. - 2. Whether the plaintiff has a cause of action against all the defendants. - 3. Whether the suit land was unlawfully alienated from the Estate of Katalina S 15 Nakimbugwe. - 4. Whether the 1st, 2nd and 3rd defendants committed acts of fraud in respect of the suit land. - 5. Whether the 2nd defendant is a bonafide purchaser for value. - 6. What remedies are available to the parties.

# 20 **Witness evidence**

The parties also agreed to adduce evidence from witnesses. The plaintiff adduced evidence from two witnesses Namutebi Peninah **(Pw1)** and Nankya Christine **(Pw2)**, while the defendants adduced evidence from three witnessesJames Kibombo **(Dw1),** Kikambi Gerald (**Dw2)** and Ssekabira Moses **(Dw3).**

# 25 **Documentary evidence**

The parties also relied on documentary evidence which was marked and exhibited. The plaintiff relied on the following documents;

*1. Certificate of title for Block 216 Plot 667 marked PExh.1*

Page **6** of **21**

- 5 *2. Special Certificate of Title for Block 216 Plot 667marked PExh.2* - *3. Document dated 9th November 2004 marked PExh.3* - *4. Letters of Administration for the Estate of the Late Katalina Nakimbugwe marked PExh.4* - *5. Petition for letters of Administration by James Kibombo, Statutory* - 10 *Declaration, Notice of Application, Identification notes, Certificate of No Objection, Death certificate of Nakimbugwe Katalina all jointly marked PExh.5 (a-f)* - *6. Search Statement dated 26th April 2021 addressed to Kayongo Jackson & Co. Advocates marked PExh.6* - 15 *7. Family meeting minutes before Administrator General marked PExh.7*

On the other hand, the defendants relied on the following documents:

- *1. Uganda Gazette dated 28th September 2015 marked DExh.1* - *2. Letter dated 17th September 2015 marked DExh.2* - *3. Withdrawal of caveat, bank payment advice form, KCC receipts, URA* 20 *receipt all jointly marked marked DExh.3 (a-e)* - *4. Letter from Muganwa, Nantenza & Co. Advocates dated 1st July 2010 marked DExh.4* - *5. Application for issuance of a special certificate of title dated 22nd July 2009 and statutory declaration sworn by 1st defendant jointly marked DExh.5(a-b)* - *6. Photocopy of the observer newspaper dated 10th* 25 *November 2014 marked DExh.6* - *7. Uganda Gazette volume CII No.3 dated 28th August 2009 and Letter from Ministry of Lands addressed to the Managing Partner of Uganda Printing and Publishing Corporation dated 25th August 2009 jointly marked* - 30 *DExh.7(a & b)* - *8. Caveat for land comprised in Block 216 folio 667 situate at Buye Kyadondo marked DExh.8* - *9. Transfer forms marked DExh.9* - *10. Bequest marked DExh.10 (a-b)* - 35 *11. Photographs jointly marked 11(a-f)* - *12. Police form No. 18 Release on bond marked DExh.12* - *13. Invitation to police to assist in investigations marked DExh. 13* - *14. Land sale agreement dated 17th October 2017 marked DExh.14* - *15. Acknowledgment of receipt of Ush. 200,000,000 marked DExh.15* - 40 *16. Certified copy certificate of title of Kyadondo Block 216 Plot 667 marked DExh.16*

 *17. Certified letter from Muganwa, Nanteza & Co Advocates dated 2nd* 5 *December 2015 marked DExh.17 18. Caveat lodged by Namutebi Peninah marked DExh.18 19. Application to vacate caveat on land comprised in Block 216 Plot 667 at Ntinda Buye marked DExh. 19* 10 *20. Notice of Caveator of application to remove caveats marked DExh.20 21. Withdrawal and release of caveat marked DExh.21 22. Transfer forms marked DExh.22*

*23. Posta Uganda service receipt marked DExh.23*

### **Burden and Standard of proof**

## 15 **Section 101(1) and (2) of the Evidence Act Cap.8 (Revised) Laws of Uganda**,

"*Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he or she asserts must prove that those facts exist".*

When a person is bound to prove the existence of any fact, it is said that the burden

20 of proof lies on that person. **Section 102 of the Evidence Act** goes on to provide that;

*"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side and Section 103 provides that "the burden of proof as to any particular fact lies on* 25 *that person who wishes the court to believe in its existence unless it is provided by any law that proof of that fact shall lie on any particular person".*

These principles have been reiterated in so many judicial precedents where it has been decided that in civil matters just like the instant case, the burden of proof rests

30 on whoever asserts a fact and the standard of proof is on a balance of probabilities.

# (See **Jovelyn Barugahare versus Attorney General SCCA No. 28 of 1993)**

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#### 5 **RESOLUTION OF ISSUES**

# **Issue no.1: Whether the plaintiff has locus standi & Issue No.2: Whether the plaintiff has a cause of action against all the defendants.**

Counsel for the plaintiff submitted that locus standi is the status which the law requires of a person to enable him to invoke the jurisdiction of the courts in order to 10 be granted a desired remedy. Counsel further submitted that standing refers to the relationship which must exist between the plaintiff and the cause of action is to enable the plaintiff to move to court. Counsel argued that in civil matters, a person must be aggrieved before he can have locus to appear in court and in the instant case the plaintiff is adversely affected by the defendants' impugned conduct which includes the 1st defendant's illegal sale of the suit land to the 2nd 15 defendant.

In addition, counsel for the plaintiff further submitted that disputes between third parties and beneficiaries of an intestate should not be side stepped by clinging to a narrow technical view of locus standi and neither should their rights in the estate remain in abeyance.

- On the other hand, it is counsel for the 2nd 20 defendant's submission that the plaintiff must plead the material facts on which they rely to sustain their claim and documents must be attached upon which their claim is founded so as to prove locus standi. Counsel further submitted that the plaintiff must demonstrate that at the time the 2nd defendant acquired his interest in the suit land, the plaintiff must have had an interest - 25 in the suit land.

Counsel argued that the plaintiff admitted that she has never been in possession of the suit land, neither is she a daughter, not the customary heir or even a close relative of the former registered proprietor of the suit land and neither is the plaintiff claiming any beneficial interest in the suit land.


5 Counsel submitted that the position of the law is that an action for recovery of land under **Section 176 of the Registration of Titles Act** can only be maintained against the current registered proprietor by a person who has been deprived of an interest in the land hence the plaintiff's claim would only be maintained if the plaintiff was suing as an administrator or a beneficiary of the estate of the deceased. In support of 10 this averment, counsel cited the cases of **Dima Domnic Poro v. Inyani & Anor Civil Appeal 2016/17 [2017], Ndimwibo & 3 ors v. Ampaire Civil Appeal No. 65**

# **of 2011, Faridah Nantale & Anor v. Mary Zawedde Mulira & ors HCMA No. 375 of 2022.**

- Secondly, counsel for the 2nd defendant disputed the plaintiff's claim of having 15 acquired the suit land as a gift inter vivos from the Late Katalina S Nakimbugwe during her lifetime. Counsel averred that Order 7 rule 14 (1) of the Civil Procedure Rules makes it a mandatory requirement that where the plaintiff's claim or cause of action is founded on a document, the same must be annexed to the plaint which was admitted as PExh.3(a). Counsel submitted that during cross-examination, the 20 plaintiff conceded that the said exhibit was self-generated and that she is the one who wrote the deceased's name on the said document hence proof that there is no evidence that PExh.3(a) was ever signed by the Late Katalina S Nakimbugwe hence, no interest could have passed in the suit land from this document to the plaintiff. In this regard, counsel cited the case of **Imelda Getrude Basudde v. Tereeza** - 25 **Mwewwuliza HCMA No. 42 of 2003.**

In conclusion, counsel submitted that upon the demise of the Katalina S. Nakimbugwe, her estate devolved to her duly appointed administrator being the 1st defendant pursuant to **Sections 180, 191 and 192 of the Succession Act.** Counsel further argued that one of the rights of the administrators is the power to dispose or


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5 sell the property of the deceased in a manner they may think fit as stipulated in **Section 270 of the Succession Act.**

Counsel argued that without first cancelling the letters of administration, the plaintiff does not have any locus to challenge any transactions concluded by the administrator. Counsel averred that at the time the 2nd defendant acquired the suit land, the 1st 10 defendant was the duly appointed administrator of the estate of the late Katalina S. Nakimbugwe. To support his submission, counsel cited the case of **Fakrudin Kapasi & Anor v. KDLB HCCS N0. 570 of 2015.**

**In regards to issue 2**, it is Counsel for the plaintiff's submission that the plaintiff was given the suit land by the former owner, the late Katalina Nakimbugwe Samanya on 9 15 th November 2004 to look after the same including the original certificate of title of the suit land. Counsel further submitted that the 1st defendant fraudulently processed letters of administration of the late Katalina Nakimbugwe Samanya and processed a special certificate of the suit land, yet the authority to look after the same was given to the plaintiff which compelled the plaintiff to lodge a caveat on the title

20 of the suit land.

Counsel averred that as a general rule, whenever, the court is called upon to evaluate and determine whether the plaint discloses a cause of action, the court looks at the plaint and its annexture and court is not obligated to peruse any other annexture in order to answer the question. Counsel cited the case of **Serugo Ismael v. Kampala**

25 **City Council & Anor Constitutional Appeal No. 2 of 1998.**

Counsel submitted that the plaintiff had a right to protect the suit land from anyone having received authority to do the same from the deceased, which authority was violated by the 1st defendant and thereafter sold the suit land to the 2nd defendant hence proof that the plaintiff has a valid cause of action.

- On the other hand, counsel for the 2nd 5 defendant refuted the aforementioned submissions and submitted that the plaintiff does not having a valid cause of action as has already been established that the plaintiff is neither a child or relative of the deceased and neither was there a will bequeathing the suit land to the plaintiff. - Counsel argued that having established that the plaintiff does not have locus standi, 10 the plaintiff falls far short of the required threshold for the reason that she has failed to prove that she enjoyed any right in the suit land and thus cannot maintain any action to recover the suit land from the 2nd defendant who is the current registered proprietor of the same.

#### *Resolution*

15 It should be noted that locus standi and cause of action are interconnected in civil procedure, and I shall resolve two issues 1 and 2 concurrently (simultaneously). At the commencement, it is important to understand what constitutes locus standi.

According to the **Black's Law Dictionary 8th Edition, 2004,** locus standi is defined as the right to bring an action or to be heard in a given forum. Similarly, the term

- 20 *'locus standi'* was defined in *Njau & ors v. City Council of Nairobi (1976-1985)1 RA a 397 at 407 as cited in Dima Domnic Poro v. Inyani Godfrey & Anor HCCA No. 17 of 2016,* as a place of standing. Court went ahead to state that it means a right to appear in court, and conversely to say that a person has locus standi means that he has a right to appear or be heard in a specified proceeding. - 25 In the case of **Mukisa Biscuit v. West End Distributors (1969) EA 696,** *the term locus standi was defined as a place of standing which means a right to appear in court and conversely to say that a person has no locus standi means that he has no right to appear or be heard in a specified proceeding.*


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- 5 Similarly, in the matter of **Bank of Uganda & Anor v. Kaweesi Sulaiman & Ors High Court Commercial Division Miscellaneous Application No. 1047 of 2022,** while resolving an issue on locus standi, Hon. Justice Stephen Mubiru stated inter alia that; - *"To say that a person has no* **locus standi** *means the person cannot be heard,* 10 *even on whether or not he has a case worth listening to. In Uganda's judicial system, any person who suffers some damage or injury from the act of a private individual or of the state can approach the court. … To have a locus standi, a claimant must have sufficient interest in the matter to which the claim relates. What constitutes "sufficient interest" will essentially depend on* 15 *the co-relation between the matter brought before the Court and the person who is bringing it. Important to the exercise of the Court's jurisdiction are the questions whether the party seeking relief is directly affected by the act or omission in question or whether the party has a real stake in the validity of such act or omission. One must justify such right by showing that one has a* 20 *direct and substantial interest in the outcome of the litigation. Such an interest is legal in the subject-matter of the action which could be prejudicially affected by the judgment of the court. A party must have a direct financial or legal interest in the outcome of the suit".*

25 His Lordship further noted that;

*In order to determine whether or not the claimant has locus standi, the Court starts by separating the claimant's legal conclusions (legally operative factual conclusions) from its factual allegations (supporting facts). The* 30 *Court then assumes the factual allegations are true (even if doubtful in fact), and asks whether those factual allegations state a valid legal claim. To establish a cause of action, a plaint must allege facts suggestive of illegal or wrongful conduct and also demonstrate a plausible entitlement to relief above the speculative level. Conclusory allegations, with no factual support, are* 35 *insufficient to state a claim. In the instant case the material factual allegations are that the 1st applicant consolidated the assets of the seventeen companies with those of the 2nd applicant and disposed of them. The conclusory allegation is that the sale was at an undervalue, while the claimed basis of entitlement to relief is that the consolidation and sales were to the* 40 *detriment of the respondents as shareholders in the respective companies".*


- 5 A party's locus standi is manifested in their ability to disclose a cause of action in their pleadings. **Order 7 rule 1 (e) of the Civil Procedure Rules** requires that a plaint must contain facts constituting the cause of action. Furthermore, the same Order under **rule 11** states that a plaint which does not disclose a cause of action must be rejected. According to the Black's law Dictionary, 8th Edition (2004) at page - 10 664, the phrase, "*cause of action"* is defined as a group of operative facts giving rise to one or more bases for suing a factual situation that entitles one person to obtain a remedy in court from another person. In the case of **Uganda Aluminuim Ltd versus Restetuta Twinomugisha C. A. C. A No.22 of 2000,** cause of action was defined as every fact which is material to be proved to enable the plaintiff succeed or every fact 15 which if denied, the plaintiff must prove in order to obtain judgment. - In the case of **Attorney General v. Oluoch (1972) EA 392,** it was held that the question of whether a plaint discloses a cause of action is determined upon perusal of the plaint and attachments thereto with an assumption that the facts pleaded or implied therein are true. Similarly, in the matter of **Ismail Serugo v. KCC & Anor** - 20 **Constitutional Appeal No. 2 of 1998, at page 3** of Wambuzi CJ (as he then was) held at page 3 of his Judgment that *in determining whether a plaint discloses a cause of action under Order 7 rule 11 of the Civil Procedure Rules or a reasonable cause of action under Order 6 rule 30 of the same rules, only the plaint must be perused*. It was further decided that *where a plaint does not disclose a cause of action, it is* 25 *mandatory for a court to strike it out under Order 7 rule 11 (a)*". - A cause of action is disclosed when it is shown that the plaintiff had a right and the right was violated resulting into damages and the defendant is liable. In the decision of **Tororo Cement Co. Ltd v. Frokina International Ltd S. C. Civil Appeal No. 2 of 2001,** Justice Oder (JSC) stated that,

 5 *"A cause of action means every fact hold that which is material to be proved to enable the plaintiff to succeed or every fact which, if denied, the plaintiff must prove in order to obtain judgment. The Hon. Justice went ahead to say that …. "what is important in considering whether a cause of action is revealed by the pleadings are the questions* 10 *whether a right exists and whether it has been violated. The guidelines were stated by the Court of Appeal for East Africa in Auto Garage v. Motokov no.3 1971 EA 514. They are;*

- *a. The plaint must show that the plaintiff enjoyed a right.* - *b. That right has been violated; and* - 15 *c. That the defendant is liable".*

Justice Oder went ahead to suggest that if all three elements are present, then cause of action is disclosed and any defect or omission can be put right by amendment.

Owing to the above authorities, in order to determine whether the plaintiff has any cause of action against the defendants, I shall consider the plaint and any annextures

20 thereto as well as the evidence on record as a whole since this is an issue for final determination.

In the instant case, the plaintiff's claim against the defendants is for recovery of land on account of the fact that the 1st defendant unlawfully usurped her authority over the suit land, when he purportedly illegally acquired letters of administration to 25 administer the estate of the late Katalina S. Nakimbugwe and subsequently sold the suit land forming part of the said estate, to the 2nd defendant whose registration on the certificate of title was affected by the 3rd defendant and fraud.

According to **paragraph 6 (d) of the amended plaint,** the plaintiff contends that she was bequeathed the suit land by the late Katalina S Nakimbugwe, the former 30 registered proprietor of the suit land. It is not a disputed fact that the late Katalina S Nakimbugwe was the former registered proprietor of the suit land. On the other hand, the 1st defendant contend that the plaintiff lacks locus standi because she is neither a beneficiary nor an administrator to the estate of the deceased. The plaintiff further


5 attached the purported gift deed as annexture "C" to the plaint which was exhibited and marked **PExh.3**.

It is the defendants' contention that the plaintiff cannot sustain her cause of action because she is neither a beneficiary or an administrator in the estate of the deceased and neither has the former applied to revoke the letters of administration of the said

estate. Pw2 (Nankya Christine) sated during cross examination by counsel for the 1st 10 defendant that the deceased was her elder sister and the plaintiff was their younger sister who was given the suit land by the late Katalina Nakimbugwe.

In the instant case, I have perused all the annextures to the plaint, including the petition for the grant of letters of administration for the estate of the late Katalina

- 15 **(PExh.5)** and it was discovered that the deceased was not survived by any children and according to the certified minutes of the family meeting from the office of the Administrator General (**PExh.7)**, the plaintiff was not included among the deceased's closest relatives and the plaintiff did not dispute any of these facts. If the plaintiff and Pw2 were related to the deceased, then they should have been included - 20 among the deceased's closest relatives in the minutes of the certified family meeting held by the Administrator General, this causes me to question Pw2's evidence in court.

Furthermore, I have studied the plaintiff's documents annexed to her plaint particularly **PExh.3 (a) and (b)** upon which the plaintiff hinges her claim as a gift 25 deed from the late Katalina. This document reads as follows;

> *"I Katalina Nakimbugwe Samanya of Buye, I have handed over to Mrs. Namutebi Penina authority to look after my things and my land stated above.*


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5 *Even the land title, I have handed over, when am still alive and of sound mind and no one has forced me. No on should ever disturb her even when I leave this world".* **(emphasis on the highlighted)**

This document calls for this court to determine the validity of the purported gift deed. Furthermore, let's examine the tenets of a valid gift inter vivos. The **Blacks' Law**

- **Dictionary (8th** 10 **Edition) page 2058,** defines a gift inter vivos as a *gratuitous as an act done or performed without obligation to do so, given without consideration in the circumstances that do not otherwise impose a duty.* Following this definition, it is my understanding that a gift inter vivos must be given unconditionally without any requirement of any consideration. - 15 In the case of **Arthur Ssajjabi v. Catherine Namutebi Muyizzi & Anor Court of Appeal Civil Appeal No. 25 of 2017, Hon. Justice Christopher Madrama Izama (JA) as he then was,** conclusively discussed the meaning of a gift inter vivos and stated as follows;

**"***The term inter vivos is defined by the Blacks' Law Dictionary to* 20 *mean in latin "between the living" of or relating to property conveyed not by will or in contemplation of an imminent death, but during the conveyor's lifetime.*

*The Oxford Dictionary of law further defines a gift to mean: A gratuitous transfer or grant of property. A legally valid gift must* 25 *normally be effected by deed, by physical delivery in the case of chattels or by donation mortis causa; the donor must intend ownership to pass a gift. However, an imperfect gift (i.e. one for which the legal formalities have not been observed) may be treated as valid in equity in certain circumstances. A gift by will takes effect only on* 30 *the death of the testator".*

In determining whether the deceased created a *gift inter vivos* in respect of the disputed land, court has to ascertain the intention of the donor, and then examine whether the formal requirements of the method of disposition which he attempted to

5 make have been satisfied. Mellows in *The Law of Succession 5th Edition, Butterworth 1977* pages 9 to 10 states as follows; regarding gifts *inter vivos:-*

> *"Various formalities are necessary for gifts inter vivos. Thus, a gift of land must be by deed; a gift of land where the title is registered, a deed of transfer must be executed".*

- 10 In the case of **Joy Mukobe v. Wambuwu HCCA No. 55 of 2005,** court laid down the salient features of a gift inter vivos; - *a) A donor must intend to give a gift* - *b) The donor must deliver the property* - *c) The donee must accept the gift.* - 15 A gift made between living persons (*inter vivos*) is a transfer of property from one person to another gratuitously while the donor is alive and not in the expectation of death. In this case, property is voluntarily transferred from the true owner in possession to another person with the full intention that the property shall not return to the donor. (See **Kalimba v. The Registrar of Titles & Anor HCCS No. 20 of** - 20 **2024)** It has been said that there must be an intention on the part of the recipient to retain the property entirely as his own without restoring it to the giver. But it is sufficient for the done to take the property, keeps it and knowing he has done so. (See **Halsbury's Laws of England, Vol. 52, 5th Edition at Page 1**.) Making a gift *inter vivos* may take three basic forms; - 25 *a) By executing a deed or other instrument in writing* - *b) By deliver of the subject to the gift (more applicable to moveable property)*

*c) By declaration of a trust, which in essence is the equitable equivalent of a gift.*

30 It is my understanding that an estate in land must be granted by deed or other written instrument which makes the parties' intentions clear. I am persuaded by the findings of the court in the case of **Kalimba v. The Registrar of Titles & Anor (supra),** where it was noted that if the gift of land relates to registered land, the gift must be

5 followed by a registered transfer. If the transfer does not take place after reasonable time, the gift is not effectual, it reverts to the donor who would then hold it on trust for the done.

I have observed that this purported gift deed was neither signed by the deceased nor by the plaintiff. In addition, owing to the guidance from **Kalimba's case,** the 10 plaintiff did not adduce any cogent evidence of a transfer instrument executed in her favour to prove the deceased's intention to bequeath the suit land to her. In comparison, the 1st defendant adduced evidence of his own gift deed wherein the deceased bequeathed the suit land to him on 16 June 2006 (**DExh.10 (a) and (b)** which was accompanied by a transfer instrument signed by the late Katalina 15 Samanya Nakimbugwe **(DExh.9).**

Going by the wording of **PExh.3**, the same clearly stipulates that the plaintiff was merely authorized to mind or take care of the deceased' property but the same did not pass any proprietary interest in the suit land as a gift inter vivos to the plaintiff as claimed by the latter. In addition, during trial and cross examination by counsel

- for the 2nd 20 defendant, the plaintiff admitted that she authored **PExh.3** because the deceased was no longer able to write or read. This document was witnessed by a one Wajja Mawazi, however, this person was not presented in court as a witness to prove the authenticity of **PExh.3**. - Furthermore, during trial, the plaintiff sated that the 1st defendant illegally acquired 25 letters administration to administer the estate of the deceased, however, from my evaluation of the evidence on record, I have established that the said grant has never been revoked. This means that the plaintiff is neither a beneficiary, nor an administrator nor a holder of a gift inter vivos hence she has no lawful interest in the late Katalina Samanya Nakimbugwe's estate.

5 In the premises, I am not satisfied that the Late Katalina Samanya Nakimbugwe bequeathed the suit land to the plaintiff and for that matter, I am convinced that the plaintiff does not have locus standi before this court and neither does she have a valid cause of action against the defendant since she does not have any valid interest in the suit land. The plaintiff never challenged the letters of administration which were acquired by the 1st 10 defendant. According to section 176 of the Succession Act an administrator of an estate is the legal representative of the deceased for all purposes, and all the property of the deceased person vests in the administrator as such.

In addition, section 118 of the Registration of Titles Act Cap 240 Laws of Uganda,

- 15 makes the administrator of an estate who has been registered on the title the absolute proprietor thereof. That is why section 188 of the Succession Act provides that letters of administration entitle the administrator to all rights to the intestate as effectually as if the administration has been granted at the moment after his or her death. Therefore, since the 1st defendant dealt with the deceased's land as an administrator - 20 whose letters of administration have never been revoked and the plaintiff does not have letters of administration, the plaintiff dos not have locus standi to bring a suit in respect of the estate of the deceased and she equally dos not have a cause of action against the defendants.

Therefore, the plaintiff's suit is dismissed for lack of locus standi and failure to 25 disclose a cause of action against the defendants. The plaintiff shall pay the costs of the suit under section 27 of the Civil Procedure Act. Since I have held that the plaintiff does not have locus standi and cause of action, there is no need to resolve the other issues.

I so order

Delivered via ECCMIS this 26 th 5 day of June 2025.

Immaculate Busingye Byaruhanga

Judge