Wekomba v Hon. Justice Kiryabwire and 5 Others (Civil Suit No. 3 of 2020) [2021] UGHCCD 177 (1 December 2021)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MASINDI

CIVIL SUIT NO. 003 OF 2020

WEKOMBA STEPHEN :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

VERSUS

- 1. THE HON. JUSTICE GEOFFREY KIRYABWIRE - 2. MRS. MARY KIRYABWIRE Administrators of the

3. MRS. SARAH KIRYABWIRE NASWAALI estate of the late Prof.

4. MRS. ANGELA KIRYABWIRE KAYIMA J. M. Kiryabwire

5. KIRYANDONGO DISTRICT LOCAL GOV'T ::::::::::::::::::: DEFENDANTS

ORDER

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

- [1] It is an undisputed fact this suit No.3/2020 is based on the consent decree vide C. S No.114/08 wherein the Administrators of the estate of Prof. J. M. Kiryabwire had sued the Attorney General & 2 Others who included Mr. Steven Wekomba, the plaintiff in the instant suit. - [2] By way of a brief background, by virtue of C. S No.114/2008, the 1st defendant was compensated by Government and relinquished 962 ha of land on Ranch 13, LRV No.1129, Folio 18 at Kiryandongo and a portion of the relinquished land was allocated to the plaintiff and other beneficiaries who had been squatters on the land. In this suit, it is the plaintiff's complaint that the 1st defendant's agents have encroached on his portion of land claiming it to belong to the 1st defendant yet by the decree in C. S No.114/2008, the 1st defendant was compensated for the said land as was accordingly paid. - [3] In the suit C. S No.114/2008, the consent decree was for the relevant parts, inter alia to this effect;

- *1. The plaintiff shall give up claim for 962 hectares of land (approximately 2,377.10 acres) on Ranch 13 LRV 1129, Folio 18 at Kiryandongo, Masindi, in exchange for Shs.1, 307,350,000/ payable to the plaintiffs by the 1st defendant.* - *2. Upon completion, the plaintiffs shall hand over the certificate of title for subdivision /re-survey by a joint team of 2 surveyors each appointed by both sides.* - *3. The plaintiffs shall execute a deed of surrender in respect of land measuring 962 hectares (2, 377.10) acres to the 2nd defendant.* - [4] All the parties, i.e the Administrators of the estate of Prof. J. M. Kiryabwire (plaintiff) and the 3 defendants; A. G, Masindi (now Kiryandongo) District Land Board and Mr. Wekomba Steven signed the consent decree and they are therefore, all bound by its terms. - [5] According to the Attorney General as per the submissions of today on record, in implementation of the consent decree in C. S No.114/2008, a re-survey was carried out by the Chief Government surveyor and the report is available. The counsel for the plaintiff Mr. Nyote and the representative of the 5th defendant have a contrary view. The re-survey and the re-opening of the boundaries in compliance with consent decree in C. S No.114/2008 has never taken place. He is aggrieved by the 1st defendant's failure to comply with and or fulfill the terms of

the consent decree duly endorsed by all the parties and therefore binding upon them. - [6] Upon perusal of the record, I do find no evidence that the re-survey or re-opening of the boundaries in compliance with consent decree vide C. S. No. 114/2008 ever took place. It is actually, the failure by the parties to commission a joint team of the required 2 surveyors appointed by both sides to resurvey the land and curve off the 962

hectares of land of the suit land surrendered to the Government for allocation to and/or benefit of the 3rd defendant/plaintiff and others that prompted the present plaintiff to file the instant suit as he felt that the 1st defendant's agents were encroaching on his portion of land.

- [7] In the instant suit, the plaintiff claims for a declaration that the defendants and or their agents are encroaching on the plaintiff's land described as a Ranch measuring 340 acres at Kiryandongo, described as situate on Ranch 13 B. The claim is based on the fact that the plaintiff was sued under Suit No.114 of 2008 together with others by the 1st defendant and the suit ended up in consent decree. That people have entered the plaintiff's portion of land claiming it belongs to the estate of the late Prof. J. M. Kiryabwire, the 1st defendant, implying that by implementing the consent decree in C. S No.114/2008, the claims of the plaintiff would be settled since the opening of the boundaries/resurveying of the suit land under the consent decree in C. S No.114/2008, would identify the remaining interests of the 1st defendant and the plaintiff and others who were to benefit from or benefitted from the Government portion, the 1st defendant surrendered. - [8] It is also not in dispute that the Attorney General fulfilled its part of the bargain under the consent decree in C. S No.114/2008 and paid the 1st defendant the compensation for the 962 hectares of land on the suit land. What is now at stake is the ascertainment of the 962 ha of land that Government compensated the 1st defendant for the benefit of Wekomba Stephen's (the plaintiff) and others who were squatters on the suit land for their allocation. It appears to be the view of all the parties present that this could only be done by re-

surveying the suit land under the guidance of the consent decree in C. S No. 114/08.

- [9] For the Attorney General, the resurveying was done but for the rest of the parties, it has never been done. As I have already observed, I find no evidence that the re-survey by a joint team of 2 surveyors, each appointed by both sides was ever done. If at all it was done, it was unilateral and secondly, there should be a report on record. - [10] In view of the totality of the above, I do order that the consent decree vide C. S No.114/2008 be complied with and be implemented accordingly whereby the plaintiffs/1st defendant's family, of the late Prof. J. M. Kiryabwire shall hand over the certificate of title of Ranch 13 LRV 1129, Folio 18 at Kiryandongo, Masindi for sub-division/resurvey by a joint team of two surveyors, each appointed by both sides or by a Chief Government surveyor but witnessed by each party's representative surveyors. - [11] It is my firm view that this order shall not prejudice any of the parties because in the 1st instance, the 1st defendant, having been compensated by Government for the 962 ha, is interested in the outcome of the survey so as to be able to enjoy the residue of his title without any interruption, the Attorney General having paid compensation to the plaintiff for the 962 ha for the benefit of the plaintiff and others, is interested in the final conclusion of the matter while the plaintiff is interested in enjoying his portion of land since he claims in this suit that part of his land forms part and parcel of the 962 ha for which the plaintiff was compensated and lastly, the 5 th defendant consented to the subdivision as per the record of 2nd December, 2020..

- [12] It is further ordered that the appointed surveyors and/or Government surveyor conclude the re-survey/opening of the boundaries within 60 days from to date. - [13] There are various claims and correspondences on record about the chaos and violence reigning at the suit land, thus referring to the situation as volatile due to this conflict. This is therefore}}}}} to urge the parties concerned to refrain from any acts of violence and express patience as we await the surveyors' report. The surveyors have to be accorded the opportunity and conducive conditions/atmosphere to do the work.

Order accordingly.

Dated at Masindi this 1st day of December, 2021

Byaruhanga Jesse Rugyema JUDGE