Kato & 4 Others v Kampala Capital City Authority & 2 Others (Civil Suit 1253 of 2021) [2025] UGHCLD 4 (16 January 2025)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL SUIT NO.1253 OF 2021 (FORMELY CIVIL SUIT NO.146 OF 2017)

- 1. KATO ABUDALLAH - 2. TUMWESIGYE DANIEL - 3. MADINA BUKENYA ::::::::::::::::::::::::::::::::::::: PLAINTIFFS - 4. WASWA LUTAKOOME - 5. SEKIWUNGA ROBERT & 423 ORS

VERSUS

- 1. KAMPALA CAPITAL CITY AUTHORITY - 2. JENNIFER MUSISI (EXECUTIVE DIRECTOR KCCA) - 3. ATWINE K. MOSES (AG DIRECTOR, PHYSICAL PLANNING,KCCA :::::::::::::::::::::::::::::::::::: DEFENDANTS

BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING ON A PRELIMINARY OBJECTION.

*Introduction;*

1. This is a ruling in respect of preliminary objections that were raised by counsel for the defendants during mention of the case. The objections are based on claims that the plaintiff's suit is barred by the law on limitation and incompetent against the 2nd

and 3rd defendants. Both parties were directed to file submissions regarding the preliminary objections and the same was complied with.

*Background;*

- 2. The plaintiffs filed Civil Suit No.1253 of 2021 against the defendants for orders for compensation for the property lost during the illegal demolition of the market structures, general damages for inconveniences, mental anguish, suffering, unlawful, eviction, illegal demolition, destruction of property and costs of the suit. - 3. The plaintiffs' claim against the defendants is that they were lawful tenants on the suit land which was rented to them by the Uganda Railways Corporation and they operated on the said land legally, however the defendants unlawfully evicted them, demolished their houses occasioning them financial loss.

*Representation;*

4. The plaintiffs were represented by Counsel Mutumba Collins of M/S Omongole & Co. Advocates whereas the defendants were

represented by Counsel Jackline Hellen Atugonza from the directorate of legal affairs KCCA.

*Issues for determination;*

- *i) Whether the plaintiff's suit is barred by the law on limitation?* - *ii) Whether the suit is incompetent against the 2nd and 3rd defendants?*

*Resolution and determination of the issues;*

Issue 1 and 2 to be resolved together.

- 5. Counsel for the defendants submitted that the objection on limitation was never raised in the defendant's written statement of defence however the law is that points of law can be raised at any stage regardless of whether they were pleaded in the initial pleadings or not. - 6. Counsel for the defendants submitted that the plaintiffs' suit is barred by the law on limitation by virtue of the civil procedure and limitation (miscellaneous provisions act cap 283. The plaintiffs'' claim is one founded on tort and arises from alleged

unlawful demolition of their structures done by the 1st defendant on the instructions and directions of the 2nd and 3rd defendants on the 27th July 2014 and the instant suit was filed on the 3rd April 2017 which is three years after the demolitions.

- 7. Section 3(1) of the civil procedure and limitation miscellaneous provisions act provides that no action founded on tort shall be brought against the government or local authority or a scheduled corporation after the expiration of two years after the cause of action arose. - 8. Counsel for the defendants further submitted that the plaintiffs have not shown this honorable court that they enjoy any exemptions from the law of limitation as required under order 7 rule 6 of the civil procedure rules. - 9. In reply counsel for the plaintiffs submitted that the point of law raised by counsel for the defendants was never pleaded in the written stament of defence and relied on law stated under order 6 rule 6 of the civil procedure rules and the decision of court in YAYA FARAJALLAH VS OBIR RONALD and 3 ors CA No. 081 of 2018 where Justice Stephen Mubiru stated that a defendant - wishing to rely on points of law as a preliminary issue is

required to set out such points of law in the written statement of defence before the preliminary issue is regarded as properly raised.

- 10. Counsel for the plaintiffs submitted that it is clearly evident that limitation was not pleaded in the defendant's written statement of defence nor was it raised during scheduling but rather it's an afterthought meant to frustrate the plaintiffs' case. - 11. It is the submission of counsel for the plaintiffs that the cause of action in the instant suit is not one of tort as claimed by the defendants but rather one based on unlawful eviction from the suit land. The present suit was first filed in the Civil Division vide Civil Suit No. 146 of 2017 and later transferred to the Land Division and accorded a new suit number, this was because the Civil Division found out that the matter was not civil in nature but a land dispute. - 12. Section 5 of the Limitation Act is to the effect that no action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her. Under the same act section 6(1)

states that where the person bringing the action to recover land or some person through who or she claims has been in possession of the land and has while entitled to it be disposed or discontinued his or her possession, the right of action shall be deemed to have accrued on the date of dispossession.

- 13. Counsel for the plaintiffs further submitted that the content of the plaint clearly indicate how this is a suit for recovery on land which is supposed to be brought within 12 years and relied on the decision in Tibawaasa Edresa vs Rawabuheesi Micheal CA 056 OF 2023. - 14. As to whether the suit is incompetent against the 2nd and 3rd defendants? - 15. Counsel for the defendants submitted that the said persons are protected under section 81 of the KCCA Act because all what they did was under their course of employment and done in good faith. - 16. In reply counsel for the plaintiffs submitted that the protection under section 81 of the KCCA Act is not absolute and order 1 rule 3 of the civil procedure rules is to the effect that all persons may be joined as defendants against whom any right to

relief in respect of a transaction or series of acts is alleged to exist whether jointly or severally. Counsel further submitted that all what the 2nd and 3rd defendants did were in bad faith.

Analysis by court;

- 17. The statute of Limitations is a legal principle that sets a specific time period within which legal action can be taken for a particular claim. Once this time period expires, the right to bring an action is generally lost. - 18. The purpose of the statute of limitations is to ensure that legal actions are initiated within a reasonable time frame, promoting fairness, efficiency and the finality of legal proceedings. - 19. It is an established principle of law that before determining whether a claim is time barred, it is important to identify the time when the cause of action accrued to enable the computation of time. *(See; Kiwanuka Fredrick Kakumutwe v Kibirige Edward CACA No 272 of 2017).*

- 20. I have carefully perused the pleadings of the parties, submissions made by counsel and the authorities relied upon by them. - 21. This court shall proceed to examine the nature of the preliminary objections raised by counsel for the defendants. - 22. In the instant case, the crux of the matter is whether the instant suit is premised on an action in tort or it's an action for recovery of land? And if it is an action of tort or recovery of land, when can the same be said to have occurred and whether the main suit is competent against the 2nd and 3rd defendants? - 23. Referring to the plaint under paragraph 5, the plaintiffs' claim against the defendants is for compensation for the property lost by the plaintiffs, during illegal demolitions, general damages for the unlawful, eviction and destruction of property. Under paragraph 7 the plaintiffs aver that they were lawful tenants on the suit land which was rented to them by the Uganda railways corporation and operated on the said land legally until when the defendants decided to unlawfully evict them from the said premises.

- 24. The reading of the prayers in the plaint under paragraph 16, the plaintiffs pray for a compensation for the property lost during the illegal demolition of the market structures, general damages for the inconveniences caused to the plaintiffs and costs of the suit. - 25. The second preliminary objection raised by counsel for the defendants is that the suit is incompetent against the 2nd and 3rd defendants. - 26. A preliminary objection by nature should aim to save the time of the Court and of the parties by not going into the merits of a suit because there is a point of law that will dispose of the matter summarily and it should raise a point of law based on ascertained facts and not evidence. - 27. In situations where it is necessary to hear some or the entire evidence to enable court to decide whether a cause of action is disclosed or not, a ruling on the preliminary objection based on the cause of action may be deferred until the hearing of the suit*. (See; Bank of Uganda and Anor vs Kaweesi Sulaiman and 26 others MA 1047 of 2022 before Justice Stephen Mubiru)*

- 28. In the instant case, the facts pleaded to amount to the cause of action in the plaint are ones that require analysis beyond just looking at pleadings only of the parties and the said facts are ones that are not clearly ascertained as to whether the suit is premised on an action of recovery of land or tort. - 29. Determining whether the pleadings speak to an action of tort or recovery of land or as to whether the suit is maintainable against the 2nd and 3rd defendants will be dragging this court to the merits of the case yet it is trite that preliminary objections should draw a distinction between merits of the suit and the subject matter of the objection. - 30. Further, the facts surrounding the two preliminary objections are disputed by both the plaintiffs and the defendants in the instant suit this is evidenced through the averments made by the parties where the plaintiffs state that the suit is one premised on an action for recovery of land and that the 2nd and 3rd defendants are liable for the actions they committed whereas the defendants state that the suit is one premised on an action of tort and that the 2nd and 3rd defendants are protected under the KCCA Act.

- 31. A preliminary objection based on points of law should be one based on ascertained and undisputed facts where a reasonable inference can be drawn by court. - 32. Where the preliminary objection is linked to facts that are disputed or have to be proved during trial, then it goes to the merits of the suit and the same should be joined to the merits of the case. - 33. In the instant case, I am of the view that the questions as to whether the cause of action is based on tort or recovery of land and whether the suit is competent against the 2nd and 3rd defendants or not are ones which can be best determined under the merits of the case and can be framed as issues for determination in the joint scheduling memorandum. - 34. Therefore, this court is of the finding that the preliminary objections are ones that root to the merits of the case and cannot be determined by a mere look at the pleadings of the parties and the same are hereby overruled by this court with no orders as to costs.

I SO ORDER.


NALUZZE AISHA BATALA

Ag. JUDGE

16/01/2025

Delivered Electronically via ECCMIS on the 16th -day of January

2025.