THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA
MISCELLANEOUS APPLICATION NO 001 OF 2025
(ARISING FROM CIVIL SUIT NO. 42 OF 2025)
JOHN
MAGOBA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
:::APPLICANT
VERSUS
FESTO
KYOHEIRWE:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
::RESPONDENT
AFFIDAVIT IN REPLY
I, FESTO KYOHEIRWE, of C/O M/S Firm B6 & Co. Advocates, P.O.
Box 3762 Lira, do hereby solemnly swear and state that:
1. I am an adult male Ugandan of sound mind, the Respondent in
this matter, and I swear this affidavit in that capacity, well
conversant with the facts herein.
2. I have read and understood the contents of the Applicant’s
affidavit in support of a Chamber Summons for a temporary
injunction, and I wish to reply thereto.
3. I lawfully acquired the suit property comprised in Kyadondo
Block 178 Plot 539, land at Manyangwa, for valuable
consideration of UGX 55,000,000 (fifty five million only) from
the registered proprietor, Paul Francis Sebwana on the 19th day
of September 2008, and a duly executed sale agreement is in
my possession. (A copy of the memorandum of sale of
land is hereto attached and marked as annexure “A1”
respectively.)
4. Before making the purchase, I conducted thorough due
diligence at the Ministry of Lands and confirmed that the land
was unencumbered, with no caveats or notices of claim
registered thereon. (A copy of the Survey report is hereto
attached and marked as annexure “A2” respectively.)
5. I was not privy to any sale agreement or transaction between
the Applicant and the alleged vendor, Paul Francis Sebwana,
and I first learnt of the Applicant’s claims after taking
possession of the suit land.
6. At the time of my purchase, the suit land was largely
unoccupied, undeveloped, and not under any visible cultivation,
save for a few scattered cassava stalks, none of which
indicated exclusive possession by the Applicant. (A copy of
which is hereto attached and marked annexure
‘’A3’’respectively.)
7. I took possession peacefully, fenced off the land, and
commenced preparatory construction activities in accordance
with my proprietary rights as a registered owner. (A copy of
which is hereto attached and marked annexure
‘’A4’’respectively.)
8. The Applicant's actions, including alleged attempts to survey
the land or summons before the LC1 Committee, were unknown
to me. Any conflict with Paul Francis Sebwana does not bind
me, as I purchased the land in good faith and for value.
9. The Applicant’s allegations of destruction of crops and
frustration of the survey are malicious, unfounded, and
intended to mislead this Honourable Court and frustrate my
legitimate use of land I lawfully own.
10.The balance of convenience lies in my favour as the registered
proprietor, and I stand to suffer greater injustice if restrained
from enjoying rights accruing from a title issued by the lawful
authority. (A copy of which is hereto attached as
annexure ‘’A5’’ respectively.)
11.The Applicant’s claim, if any, lies in damages against the
vendor and does not warrant the issuance of a temporary
injunction against a bona fide purchaser for value without
notice.
12.I am advised by my lawyers, whose advice I verily believe to
be true, that the Applicant has not demonstrated a prima facie
case with a probability of success or irreparable injury justifying
the grant of an injunction.
13.I swear this affidavit in opposition to the Applicant’s application
for a temporary injunction and pray that the same be dismissed
with costs.
14.Whatever is stated herein is true and correct to the best of my
knowledge and belief.
SWORN at Lira this 8th day of April 2025
cgmugewfdgg
DEPONENT
BEFORE ME
Ivan
COMMISSIONER FOR OATHS
DRAFTED AND FILED BY;
M/S Firm B6 Co. Advocates,
P.O. Box 3762 Lira.
A1
A5
UGANDA
REGISTRATION OF TITLES ACT
Certificate of Title
DISTRICT…. KAMPALA…… COUNTY….
KYADONDO ……
BLOCK….178……………. PLOT….1466
…………
Office of Titles
….. KAMPALA ….
District Plot
: 1466Kyad
Kampal ondo
a
UGANDA Block 178
COUNTY: Kyadondo. THE LAND
REGISTER 2.5 Area in
acres Hectares
SUB-COUNTY: Kyadondo East
NAME OF DESCRIPTION: KAMPALA
ALL THAT piece of FREEHOLD land situate and
described above which is indicate on the registry plan by the
Block and Plot numbers written hereon.
Easements rights etc. appurtenant to the land:
MANYANGWA
KYADONDO
REGISTRAR OF
TITES
SEAL OF OFFICE
PART II- OWNERHIP
Date of Instrum Proprietor’s Father’s Clan Registra
time of ent No. name and name rs
(if
registrat address signatur
(if applica
ion e
applicabl ble)
e)
19/1/199 KYA- PAUL FRANCIS Andrew
8 2022467 SEBWANA Otto
Ogwetta
AT
9:00AM …rttt....
1st KYA- FESTO Andrew
/01/2017 211622 KYOHEIRWE Otto
Ogwetta
AT P.O.BOX 99,
10:31AM KAMPALA
….rttt…
PART III-INCUMBRANCES
Date and Instrument Name and Address of Partic Signatur
Time of Number Service of Mortgagee, ulars e of
Registrat Creditor, Caveator etc Registrar
ion
A2
SURVEYOR'S SEARCH REPORT
Ref No: SR/04/2025
Date: 7th April 2025
1. Surveyor's Details
Name: Eng. John M. Lwanga
License No: SURV/UG/2487
Address: Plot 15 Nkrumah Road, Kampala
Contact: +256 776 123456 / [email protected]
2. Client’s Details
Name: Mr. Festo Kyoheirwe
Address: P.O. Box 25360, Kampala
Contact: +256 772 987654
3. Subject Land Details
Location: Mayangwa, Gayaza, Wakiso District
Land Reference: Kyadondo Block 178, Plot 539 (portion thereof)
Area: Approximately 2.5 Acres (subdivided from the parent title)
Land Tenure: Mailo
Previous Registered Proprietor: Paul Francis Sebwana
Nature of Ownership: Purchase completed; subdivision and transfer
in process to Festo Kyoheirwe
4. Purpose of Survey/Search
This search and inspection were undertaken on the instructions of
Mr. Festo Kyoheirwe for purposes of verifying and confirming
ownership, boundaries, and subdivision viability of approximately
2.5 acres of land recently acquired from Mr. Paul Francis Sebwana.
The findings herein are intended to support the ongoing survey and
titling process.
5. Methodology
The following steps were taken in carrying out the search:
Inspection of the parent title and records at the Ministry of Lands,
Zonal Office—Kampala
Review of the Cadastral Sheet and Registry Index Map (RIM) for
Block 178
Site visit and physical inspection conducted on 1 st Jan 2015
GPS-aided field measurements and identification of boundary
indicators
Engagement with neighbouring landowners and the area Local
Council leadership (LC1)
6. Observations
The land is physically identifiable and matches the description under
Kyadondo Block 178 Plot 539.
The parent title is registered in the name of Paul Francis Sebwana,
who has executed a sale agreement in favour of Festo Kyoheirwe for
a 2.5-acre portion.
The area purchased is demarcated on the ground, though some
boundary marks are temporary.
The land is currently undeveloped and free of any ongoing
occupation or disputes.
No caveats or encumbrances are registered on the parent title at the
time of the search.
The subdivision process is underway, pending survey approval and
titling.
7. Conclusion and Recommendations
The land forming part of Kyadondo Block 178 Plot 539 has been
positively identified, and the area measuring 2.5 acres as sold to Mr.
Festo Kyoheirwe has been confirmed on the ground. It is advisable
that:
A full subdivision survey and mutation form be completed and
lodged with the Ministry of Lands
Permanent boundary markers be planted following final approval
A transfer and registration of the subdivided portion into the names
of Mr. Festo Kyoheirwe be promptly initiated
A valuation and title deed issuance follow upon successful
processing of the subdivision
8. Declaration
I, the undersigned, being a duly licensed surveyor in Uganda,
confirm that this report accurately reflects the findings of my
inspection and registry verification of the subject land.
Signed: ________John______________
Name: Eng. John M. Lwanga
Licensed Surveyor No.: SURV/UG/2487
Stamp & Seal:
Date: 1st Jan 2015
A3
A4
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA
MISCELLANEOUS APPLICATION NO 001 OF 2025
(ARISING FROM CIVIL SUIT NO. 42 OF 2025)
JOHN
MAGOBA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
:::APPLICANT
VERSUS
FESTO
KYOHEIRWE:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
::RESPONDENT
RESPONDENT’S SUBMISSION
Background of the Application.
Your Worship, this application arises from a dispute over ownership
and possession of land comprised in Kyadondo Block 178 Plot 539,
situate at Manyangwa. The Respondent, a bona fide purchaser
for value without notice, lawfully acquired the said land from the
registered proprietor, Paul Francis Sebwana, after undertaking all
necessary due diligence, including a search at the Ministry of Lands
which revealed no encumbrances or adverse claims. Upon
completion of the transaction, the Respondent was issued a
certificate of title and took vacant possession in accordance with the
law, thereby enjoying the indefeasibility of title under Section
59 of the Registration of Titles Act. (TO APPEAR IN THE
ELEMENTS AND ARGUMENTS)
The Applicant now seeks injunctive relief on the basis of an
unregistered interest allegedly acquired through a contested sale
agreement. His claim, while emotionally charged, falls short of the
legal threshold required for the grant of a temporary injunction.
Not only has the Applicant failed to establish a prima facie case
with a likelihood of success, but the balance of convenience
also tilts in favour of the Respondent, who holds a registered
interest and risks suffering irreparable prejudice if restrained from
exercising his proprietary rights. The application, therefore,
amounts to an abuse of court process intended to delay and
defeat the Respondent's lawful enjoyment of his land.
(WE DON’T DEAL WITH THE MERITS OF THE CASE BUT THE
STATUSQUO)
The Law on Temporary Injunctions.
The law governing the grant of temporary injunctions is well settled
and was eloquently articulated in the seminal case of Kiyimba
Kagwa v Haji Katende [1985] HCB 43. In that decision, the court
laid down the trinity of principles that must guide the exercise of
judicial discretion:
I. a prima facie case with a likelihood of success;
II. that he stands to suffer irreparable injury which cannot be
adequately compensated by an award of damages;
III. and where court is in doubt, it should decide the matter on the
balance of convenience.
These principles are not to be considered in isolation but must be
weighed judiciously in light of the facts and circumstances of each
case.
In the present matter, the Applicant fails the test on all three limbs.
He has no registrable interest and does not demonstrate a legally
protectable right that outweighs the Respondent’s title, which enjoys
statutory protection under the Registration of Titles Act. The alleged
harm, if any, is quantifiable and compensable in damages,
particularly as the dispute is rooted in a contractual disagreement
with a third party, not the Respondent. Indeed, the balance of
convenience overwhelmingly favours the Respondent, whose
proprietary rights are being unjustly restrained at the instance of a
party without title. To grant the injunction would be to fetter the
rights of a lawful proprietor based on speculative and unproven
claims —an outcome the law, as enunciated in Kiyimba Kagwa, was
never intended to sanction.
I. Whether the Applicant has a Prima Facie Case with a
Likelihood of Success
Your Worship, the Applicant’s claim limps into this courtroom clothed
not in law but in sentiment, waving an unregistered land sale
agreement like a magic wand, as if to imagine ownership out of thin
air. Unfortunately, the law is not swayed by emotions or historical
nostalgia, it is anchored in legal reality. In that reality, a mere
agreement to purchase land, no matter how heartfelt, does not
confer legal title. The Applicant, for all his lamentations, is not the
registered proprietor of the suit land and cannot, by any stretch of
the legal imagination, claim a prima facie case.
On the contrary, the Respondent is the registered proprietor of land
comprised in Kyadondo Block 178 Plot 539, a fact beyond
dispute and firmly rooted in paragraphs 4, 5 and 6 of the
Respondent’s affidavit in reply. The certificate of title held by the
Respondent is not a decorative piece, it is conclusive proof of
ownership under Section 59 of the Registration of Titles Act.
That title, Your Worship, is not a suggestion of ownership; it is
indefeasible and cannot be set aside merely because someone
claims to have once walked the land or planted cassava on it.
And even if we were to entertain the Applicant’s tale, we find a plot
riddled with inconsistencies. The Applicant admits he paid a mere
portion of the purchase price and never completed the transaction ,
the Applicant failed to fulfil his end of the bargain, he neither
completed payment nor oversaw the survey of the land as required.
In the world of equity, one who comes to court must come with
clean hands. This Applicant comes instead with soiled palms and an
incomplete transaction, seeking to oust a lawful titleholder from a
property he no longer owns, if he ever did.
Therefore, your worship, the only prima facie case revealed by these
facts is that of the Respondent, whose title is valid, whose interest is
protected by statute, and whose possession is justified by the law.
The Applicant’s case, in contrast, is not just weak, it is legally non-
existent.This was also set clear, In the case of Imelda Getrude
Basudde v Tereza mwewulize & Anor Misc App No 402/2003,
where it was stated that a prima facie case means that the evidence
placed before court by way of an affidavit/otherwise must show that
there exists a genuine triable issue in the main suit. The court must
be satisfied that the dispute in the main suit is not a sham and that
the applicant has probabilities of succeeding in the main suit
however in the instant facts the main suit doesn’t raise a genuine
triable issue and hence an applicant’s application for a temporary
injunction is liable to fail.
Whether the applicant will experience irreparable harm
Your Worship, the Applicant would have this Honourable Court
believe that he stands on the brink of irreparable harm, yet the harm
he fears is neither irreparable nor, indeed, remarkable. He claims
that crops may be destroyed and that his continued stay on the suit
land may be disrupted. But let us not mistake sentiment for
substance. Crops, as a matter of law and logic, are perishable and
seasonal; they do not constitute permanent or unquantifiable loss.
This Court is not unfamiliar with the principles governing irreparable
harm and surely, your worship, the temporary discomfort of losing a
vegetable patch does not rise to the sacred threshold.
Indeed, the Applicant's own affidavit betrays his claims. In
paragraph 3, he admits his presence on the land stems from partial
payment under a rudimentary agreement. No certificate of title, no
concluded transaction, just a handshake and a dream. The crops he
so dearly clings to are not permanent developments but transient
products of unlawful occupation. And more damning still, the
Respondent’s affidavit in paragraphs 8 and 11 dismantles this
emotional appeal by asserting, rightly so, that any loss occasioned is
quantifiable and, if proven, compensable in damages.
Your Worship, the law is clear: where damages can offer relief, equity
does not stretch itself to grant an injunction. This is not a matter of
preventing irreparable harm, it is a classic case of trying to shield a
trespasser under the veil of sympathy. And equity, though merciful,
is never blind.
Balance of Convenience
Your Worship, when the legal dust settles and equity prepares to tip
her scales, it is the party with the stronger legal footing who must be
favoured. In the instant case, that is unequivocally the Respondent.
He stands tall not on speculation or sentiment, but on a certificate of
title, the very cornerstone of the Torrens system. As shown in
paragraph 13 of his affidavit in reply, the Respondent is not only
the registered proprietor but is in active possession, having lawfully
commenced construction and invested substantial sums into the
development of the suit land. To now tie his hands with an injunction
would be to punish lawfulness and reward indolence masquerading
as equity.
Conversely, the Applicant brings nothing to the balance but a vague
agreement and unfulfilled obligations. He has no registrable interest,
no title, and no legal justification for his continued presence on the
land. Indeed, to grant this injunction would be to arm a trespasser
with a court order, allowing him to obstruct a rightful owner’s
development while standing on ground he never legally acquired. If
convenience is to be balanced and not butchered, it must favour the
Respondent, whose claim is rooted in both law and fact, unlike the
Applicant’s leafy but legally withered assertions.
In light of the foregoing, your Worship, it is abundantly clear that the
Applicant has failed to establish any of the conditions warranting the
grant of a temporary injunction. He lacks a prima facie case, stands
to suffer no irreparable harm, and the balance of convenience tilts
sharply in favour of the Respondent, the undisputed registered
proprietor lawfully developing his land. To grant the injunction would
be to undermine the sanctity of title, frustrate lawful possession, and
set a dangerous precedent where unregistered claims eclipse
registered rights. We respectfully pray that this application be
dismissed with costs.
Dated at Lira this ___ day of ____________ 2025
______________________
M/S Firm B6 Co. Advocates
Counsel for the Respondent
DRAFTED AND FILED BY;
M/S Firm B6 Co. Advocates,
P.O. Box 3762 Lira.
Any other comments
1. RECONCILE Para 25 of the counter claim, para 6 of the
plaint, J Henry Kawesa MA 1013 OF 2015 Zam Nambi VS
Bugingo & 2 OTHERS
2. Authority on the registered proipietor J Karokora David
Bakrirahakye vs AG & 7 ors HC 14 of 1990 CITED WITH
APPROVAL OF J KIZZA in MA 390 of 2001 Greenwatch &
Anor vs Golf Course Holdings ltd (Balance of
convenience)
3. Before application for a temporary injunction, there
must be a prayer of a permanent injunction in the main
suit
