Judgment Stewart Gawaya Tegule V Kcca & Mulindwa
Judgment Stewart Gawaya Tegule V Kcca & Mulindwa
Judgment Stewart Gawaya Tegule V Kcca & Mulindwa
VERSUS
2. ANTHONY MULINDWA:::::::::::::::::::::::::::::::::::::::::::::DEFENDANTS
JUDGMENT
The 2nd defendant and other adjacent neighbors of the plaintiff raised
1. Whether the demolition of the plaintiff’s structure by the 1st defendant was
unlawful?
2. Whether there is a lawful access road through the plaintiff’s land to the
defendant’s land.
while the 1st defendant was represented Dennis Byaruhanga and the 2nd
unlawful?
2007. The 1st defendant did not communicate to the plaintiff for 2 years to
ascertain whether his plans were approved or rejected. And as per the law,
committee shall be deemed to have been duly given. The fact that he did
not get his response after the 60 days, he commenced his building after 1
That the said development plans were endorsed on by a one Bashir who
was working with the 1st defendant. Proof of his submission were the
The 1st defendant’s counsel submitted that the enforcement and physical
visited the site to make first hand assessments and it was established that
the plaintiff was carrying out developments on his land without approved
The plaintiff was issued a notice to remove the illegal developments and
when the plaintiff ignored the notice issued to him, he further failed to
comply with the said notice and his structures blocking the access to the
The plaintiff neither in his witness statement nor in his trial bundle
Counsel further cited the laws on Public Health (Building) Rules SI 281-1,
works to give notice to the local authority, in this case KCCA planning
neighbors, the plaintiff failed to produce any in court that he did not have
agent who prepared and submitted his alleged building plans to the 1 st
Counsel for the plaintiff raised Regulation 6 of the Town and Country
not apply to the plaintiff who merely alleges that he submitted his building
plan to the 1st defendant’s planning committee, it only applies to any
developer who duly submitted building plans for approval and has
The plaintiff during the hearing told court that he based on the alleged
knowledge of this court that the planning committee is the only legally
not anywhere proved to this court who a one Bashir is, since the plaintiff
this matter.
Analysis
Section 101-103 Evidence Act, Cap 06, provides that the burden of proof
lies on the person who alleges. In this case the plaintiff alleged that the
demolition of his structure was unlawful since he had building plans for
the structure.
The plaintiff relies on exhibit P3 and P4 as the receipt P8 as the basis for the
the structure.
It should be noted that the 2nd defendant and other residents in the area
complained about the illegal construction being carried out by the plaintiff.
Indeed the 2nd defendant visited the site and confirmed that the plaintiff
did not have any approved building plans by April 2007. The plaintiff does
not dispute this fact that at the time he was carrying out construction in
April 2007 he never had any plans or approved plans for the said building
It would appear that the plaintiff made efforts of legitimizing the process
by presenting building plans and proceeded even to pay for the same on 8th
Even at trial the plaintiff did not attach any such building plan that was
The plaintiff as a developer had duty to retain a copy of the building plan
produce any copy of the building plan leaves this court in doubt whether
the plaintiff was lawfully carrying out the construction. It is not enough to
present the receipt of payment for the building plan as proof of having a
This court will not base its decision on assumptions and conjecture to infer
existence of the building plan that was never exhibited in this court. The
plaintiff argued that the 1st defendant never led any evidence to rebut the
plaintiff’s case. I wish to note as stated earlier that it is the duty of the
proceeds exparte. The evidential burden does not shift to the defendant
the issue. See Musisi Dirisa & others v Sietco (U) Ltd SCCA No. 24 of 1993
[1993] IV KALR 67
The court cannot assume that the facts are undisputed, but rather it must
plaintiff has proved their case or not. Where the evidence exists and the
The 1st defendant is allowed under the law to demolish any unauthorised
as a warning for the citizens not to indulge in such activities in future. The
written on PE 3 & PE4 could not form the basis of continuing to carry on
the circumstances of the case and the evidence adduced before this court.
The 1st defendant was carrying out a statutory function. The development
control function vested in the 1st defendant is to protect against many evils
Whether there is a lawful access road through the plaintiff’s land to the
defendant’s land.
The plaintiff in his testimony stated that he never illegally blocked any
access since none existed on his land and the 2 nd defendant and the
The 1st defendant testified that he acquired his land in 1996 and his
certificate of title clearly shows the dotted line as an access road. The said
The plaintiff’s counsel submitted that there was no evidence that the said
already in court as the basis for the failed negotiations over the access road.
Analysis
else’s land for a specific purpose. It allows another to use and or enter into
property of another without possessing it e.g a land owner may enjoy the
The plaintiff claimed that the 2nd defendant has an alternative access road
which he can use and that there is no justification for trespassing on this
land. The court visited the locus in order to establish the alternative road or
route which the defendant and other neighbours are supposed to use.
It was the established and found that there is no existing alternative access
road that the 2nd defendant can use to access their homes together with
other persons after the 2nd respondent’s home. It was further established
that the other persons property have been developed on approved plans
that clearly show an existing access road through plot 775 belonging to the
plaintiff.
The circumstances of this case clearly show that there has existed an access
road even before the plaintiff acquired his interest in the said land in 2005.
The plaintiff does not dispute this fact except that he is trying to rely on his
certificate of title which does not indicate an access road with dotted lines.
During cross examination, the plaintiff confirmed that the access road
existed.
The said access road has been in existence before the plaintiff acquired this
land and this is a question of fact and the fact that the same had never been
on the certificate of title buttresses the fact that the access road was indeed
in existence. It could be true that the same was never marked-dotted on the
plaintiff’s certificate of title that does not mean it was illegally created to
amount to trespass. It would be unfair to try and block this access road to
the neighbourhood and yet the same has been in existence for over 30
years. The court would imply an easement premised on the intention of the
original parties and how they intended the same to be used. It is possible to
before. The court will assume that the original owners intended to create it
as an easement but forgot to have the same noted on the title deed.
The plaintiff never challenged the existence of the road when he first filed a
suit in 2011. The challenge for the alleged trespass on the plaintiff’s land
through an access road first arose in January 2018 when the amended
locus, the plaintiff failed to show court while at locus the access route he
claimed. To the contrary the 2nd defendant showed court that there is only
one access to his property and the neighbors and it is the access that the
plaintiff attempted to block forcing them to protest and petition the 1st
defendant to intervene.
In the case of Paddy Musoke v. John Agard and 2 others Civil Appeal No.
46 of 2016 and Civil Appeal No. 134 of 2017, Justice Elizabeth Musoke
noted that the common law developed principles to the effect that a land
owner had the right to use a road passing through an adjoining piece of
easement.
According to Meggary and Wade’s text book titled “The law of real
property” 8th Ed page 1245, it stated that “common law recognized a limited
number of rights which one landowner could acquire over the land of another, and
these rights were called easements and profits, examples of easements are right of
way, right of lights and right of water.
Four requirements must be satisfied before there can be an easement. First, there
must be a dominant tenement and a serviette tenement. Secondly, the easement
must confer a benefit on (or accommodate) the dominant tenement. Thirdly, the
dominant and serviette tenements must not be owned and occupied by the same
person. Fourthly, the easement must be capable of forming the subject-matter of a
grant.”
Civil Appeal No. 46 of 2016 and Civil Appeal No. 134 of 2017 further
notes that one may enjoy an easement by virtue of the access to Roads Act
Cap 350 or as a common law right as discussed above. But the Access to
Roads Act, in the judge’s view concerns situations where there has never
(1) Where the owner of any land is unable through negotiations to obtain
public highway, he/she may apply to the land tribunal for leave to
construct a road of access over any lands lying between his/her land
high way through a road, albeit going through another’s piece of land, the
above provision would not apply because then the need to construct a road
of access does not arise. What is required is to give effect to the common
law principles as to easements requiring the person on whose land the road
passes to recognize that the road is an easement for the benefit of those
Therefore in my view, the defendant could only access his home using a
road going across the plaintiff’s land, which road the 2nd defendant enjoyed
even before the plaintiff purchased the said land, which entitles him to
have access. Therefore, in the present case it was wrong to call the 2nd
defendant a trespasser on the said land while using the available access
road since the same is a lawful access road through the plaintiff’s land. The
access road). In order for such easement to exist it must be shown that; both
dominant tenement.
The scrutiny of the evidence or the documents clearly shows that the said
the other person’s title clearly indicated an access road and the subsequent
neighbouring land uses the same access road. The failure to indicate or
mark the access road on the plaintiff’s certificate of title would not mean
that there is no lawful access road through the plaintiff’s land since it
access road when it was made specifically for court purposes without the
involvement of the 2nd defendant and other adjacent plot owners who use
the same access road. When the court visited the locus it was obvious it
was used by many more people and it was not used by the 2 nd defendant
alone.
It is the finding of this court that there is a lawful access road through the
suit would not have been necessary, if the same had been properly dotted
on the plaintiff’s title as it was done on the 2 nd defendant and the other
SSEKAANA MUSA
JUDGE
21ST JUNE 2021