[2023] UGHCLD 47

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

# [LAND DIVISION]

# HCCS. NO. 039 OF 2021

- 1. YIGA FRANCIS - 2. ZIZINGA GEOFREY - SSESANGA GODFREY - 4. NAKIMERA ROSE - 5. NOELINE NAMUBIRU - 6. KOMUHANGI ELIZABETH - SEMUYABA SAMUEL - NANTEZA HANIFA

#### **PLAINTIFFS**

#### $\vee$

## KAMPALA CAPITAL CITY AUTHORITY (KCCA)

DEFENDANT

## BEFORE: HON. LADY JUSTICE P. BASAZA - WASSWA

#### **JUDGMENT**

#### Representation:

Ms. Nakitto Fatuma and Mr. Mwasa Kassim Ahmed for the Plaintiffs.

Ms. Namutebi Dorothy and Mr. Kwikiriza Benson for the Defendant.

#### Introduction:

The Plaintiffs; Mr. Yiga and seven (7) others, brought the present suit by ordinary $[1]$ plaint, against the Defendant; KCCA, by which they seek inter alia, for an order of compensation for their alleged tenancies by occupancy (bibanja) on land comprised in Kyadondo Block 198 Plot 128 at Lubaata – Kiteezi in Wakiso district.

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(Hereinafter referred to as 'the suit land'). They also seek for general damages, interest and costs of the suit.

- $[2]$ In their suit, the Plaintiffs contend that in 2016, KCCA set up a land fill for waste disposal near their residences on the suit land. That as a result, whenever it rained, all the dirt and waste that emanated from the site could directly flow into their residences and cause damage not only to their properties, but would also put their health in danger. That the land fill also brought with it very unpleasant smell, making their residences practically uninhabitable. - They (Plaintiffs) claim that when they complained, KCCA compensated them for $[3]$ only their damaged household properties, and advised them to relocate, and get temporary residences for rent. That KCCA covered their rent for only four (4) months promising to make full compensation for the suit land, but neglected and or refused to compensate them. - In answer, in its written statement of defence, particularly in paragraphs 5 (a), $[4]$ (b), (g) & (h), KCCA acknowledged that the Plaintiffs were bibanja holders on the suit land, and that indeed in 2016 the Plaintiffs were affected by KCCA's plant that caused damage to their properties and made their houses uninhabitable, and that the Plaintiffs are all entitled to compensation.

### Background:

Before the scheduling / hearing of this suit, Judgment on admission was entered $[5]$ for the Plaintiffs on May 23, 2022 pursuant to the provisions of Order 13 Rule 6

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of the Civil Procedure Rules¹, and sections 33 of the Judicature Act² and 98 of **the Civil Procedure Act³.** Judgment was entered on the basis of the admissions made by KCCA in its pleadings, and on the basis of the statements made to court by its Counsel,

- In the Judgment, this Court made a Declaration that the acts of KCCA of setting [6] up the land fill at the suit land near the Plaintiffs' residences caused them to suffer a private nuisance that denied them quiet enjoyment thereof, and that the Plaintiffs are entitled to compensation from KCCA. The suit was subsequently set down for hearing to determine only the question of quantum of the compensation and any other pertinent aspect. - Between the date of that Judgment and today, the suit has been set down for $[7]$ To wit; on $21/06/2022$ , $06/07/2022$ , scheduling / hearing five $(5)$ times. 26/08/2022, 20/09/2022 & on 02/03/2023. On all of which dates, KCCA sought for time to allow it avail to the Plaintiffs and their Counsel a valuation report from the chief Government valuer, and to negotiate a settlement with the Plaintiffs on the issue of quantum. KCCA availed to court a tentative valuation report and said it was only pending confirmation of the amounts therein, by the Chief Government valuer.

Today, almost a year later, KCCA and the Plaintiffs still seek for adjournment(s); [8] purportedly to finalize on a consent judgment on the remaining question of Acch Namm 3/2

> $1$ S. I 71-1 $2$ Cap. 13 $3$ Cap. 71

quantum. Learned Counsel for KCCA, Mr. Kwikiriza even handed over to court three (3) documents to demonstrate what he called the progress so far made. He gave court two internal memos of KCCA⁴ and the KCCA valuation report that he had submitted to court earlier, this time round, approved by the Chief Government valuer.

- I declined to grant the adjournment (s) that I found would be superfluous and $[9]$ simply a waste of Court's time. I then gave the Plaintiffs' Counsel Ms. Nakitto an opportunity to proceed with the Plaintiffs' case if she so desired. Ms. Nakitto only opted to agree with, and rely on KCCA's position on the valuation report. She did not call any witness, and only prayed for damages at the Court's discretion. - In view of the foregoing, and in view that the quantum of the compensation due [10] to the Plaintiffs is no longer under contestation, to wit; the compensation due to the Plaintiffs is well laid out in the agreed KCCA valuation report, I find it expedient and appropriate to proceed to determine this suit immediately. Order 17 Rule 4 of the Civil Procedure Rules, applied.

#### Decision of this Court:

In the result, a final Judgment is entered for the Plaintiffs in the following terms; $[11]$ $MGMMmm^2$

^&lt;sup>4</sup> A memo dated November 3, 2022 from the Ag. Director legal affairs to & the Ag. Head land management and another dated January 30, 2023 from the Ag. Director legal affairs to the Executive Director.

- 1. A Declaration is made that the acts of Kampala Capital City Authority (KCCA), of setting up a land fill for waste disposal at the suit land comprised in Kyadondo Block 198 Plot 128 at Lubaata – Kiteezi in Wakiso district, near the Plaintiffs' residences, caused the Plaintiffs to suffer a private nuisance that has denied them quiet enjoyment of their tenancies by occupancy (bibanja) on the suit land. - 2. The Plaintiffs are entitled to Compensation by KCCA for their respective bibanja portions as set out in the valuation report by Kampala Capital City Authority dated August, 2022. - 3. For the avoidance of any doubt, the Plaintiffs' total entitlements reflected in the said valuation report, are respectively as follows;

| | i) <b>Yiga Francis:</b><br>$\mathbf{v} = \mathbf{v}$ | UGX. $72,714,200/=$ | |---------------------|------------------------------------------------------|----------------------| | | ii) Zizinga Geofrey | UGX. 43,825,925/ $=$ | | | iii) Ssesanga Godfrey | UGX. $41,542,150/=$ | | | iv) Nakimera Rose | UGX. $44.972.850/=$ | | | v) Noeline Namubiru | UGX. 59,475,975/ $=$ | | | vi) Komuhangi Elizabeth | UGX. 77,909,000/ $=$ | | | vii) Semuyaba Samuel | UGX. $40,462,500/=$ | | viii)Nanteza Hanifa | | UGX. $11,147,500/=$ |

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4. The Compensation amounts specified in clause 3 above shall be paid to the Plaintiffs within thirty (30) days from the date of this Judgment.

$\mathsf{S}$

- 5. No damages are awarded since a disturbance allowance has been included in the agreed sums stated in the valuation report. - 6. The Defendant (KCCA) shall pay interest to the Plaintiffs on the sums in clause 3 above, at the rate of 17% per annum, from the date of this Judgment until the date payment is made in full. - 7. The Defendant (KCCA) shall pay the costs of this suit to the Plaintiffs.

I so Order,

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P. BASAZA - WASSWA **JUDGE**

March 3, 2023

Judgment delivered electronically on the Judiciary ECCMIS portal and via email to the parties.