THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DTVTSTON)

MISCELLANEOUS CAUSENo. 164 of2O2L

SUZANNE MUSHERURE I{AINEMBABAZI = ===== = APPLICANT

(Suing as Administrator of the Estate of the Late Timothy
Musherure)
VERSUS

1. ABBEY MWANJE SEBOWA

2.TIjIE COMMISSIONER LAND REGISTRATION
RESPONDENTS

BEFORE: HON. JUSTICE FLAVIA NASSUNA MATOVU

RULING

1. This wasan application for vesting order to land comprised

in LRV 2243 Folio 14 Plot 23 , Mpanga close, Bugolobi,
Nakawa Division. It was brought under several provisions of
the law but specifically under S. 167 of the Registration of
Titles Act and O. 52 1& 2 of the Civil Procedure Rules.
2. It was seeking for orders that;
a. A vesting order be granted in favour of the Applicant in
respect of the land at LRV 2243 Folio 1 1 Plot 23 at Mpanga
Close, Bugolobi, Nakawa Division, Kampala.
b. The 2"d Respondent enters the Applicant's name in the
Register Book in respect of the suit land;
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 c. Costs of this application be provided for.
3. The application was brought by notice of motion which was
supported by an a-ffidavit sworn by the applicant. The
grounds of the application were laid in the notice of motion
and affidavit in support. Briefly the grounds were that;
a) the suit land is registered under the provisions of the Registration of
Titles Act, Cap. 230.
b) the Applicant is the holder of Letters of Administration of the Estate
of the late Timothy Musherure.

c) the late Timothy Musherure purchased the whole of the land from
the 1"t Respondent and he paid the whole purchase price to the l"t
Respondent.
d) the Applicant learnt of the land recently while tracing the properties
of the deceased.
e) the deceased never sold the said land to anyone and the Applicant
was in possession of the duplicate Certificate of title of the said land
f) entry into possession of the land would not be difficult.
g) all efforts to trace the l"t Respondent had so far been futile.
h) the transfer of the land had not been effected because the Applicant
had not been able to find the l"t Respondent to sign a transfer
instrument in her favour.

4. The second Respondent filed an affidavit in reply which was

sworn by one Ssekabira Moses who stated that;
a) perusal of the Register, showed that the said land was
registered in the name of Abbey Mwanje Sebowa vide
Instrument No. 263455 of 2"d June, 1994 at 9:45am and
it had no incumbrance.

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 b) the applicant applied for a vesting order from the office ot
the Commissioner Land Registration, however, the same
was not considered by the Ag. Commissioner Land
Registration.
c) the applicant did not explain why the registered proprietor
(the vendor) did not sign transfer forms.
d) in the event that the order is granted by this Honourable
Court, the applicant should be compelled to pay stamp
duty.
5. The l"t Respondent did not file any affidavit in reply to this
application and it is not clear whether any efforts were made
to serve him with the same.
6. Counsel for the Applicant filed written submissions which I
have carefully studied. Briefly he submitted that the
applicant had complied with the conditions stipulated under
section 167 of the Registration of Titles Act, under which the
application was brought and therefore a vesting order should
be issued in her favour. She cited several authorities in
support of her case which I have carefully studied.

7. The issueto be decided is whether court should grant

vesting order in respect of land comprised in LIiY 2243
Folio 11 Plot 23 land at Mpanga Close, Bugolobi, Nakawa
Division.

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 8. Decision of Court

S.167 of the Registration of titles Act under which this application

was partly brought provides;
"If it is proaed to thc satisJaction the registrar that
oJ
land under this Act ho.s been sold bg the proprietor qnd
the uthole of the purchase nurneg paid, and thqt tlu
purchaser has or those claim:ing under the purchaser
haue entered and taken possession under tlte purchase,
and thqt entry and possession haue been acquiesced in
bg the uendor or his or her representatiues, bttt that a
transfer has neaer been exectrted. bg the rrendor qnd
crrnnot be obtained bg reason that the uendor is dead or
residing out of the jurisdiction or cc;nn,ot be Jound, the
registrar mag rnake a uesting order in tle premises and
mag include in the order a directionfor the pagnent oJ
such an ad.ditionalJee in respect of assurance of title as
he or she tnag think ftt, and the registrar upon the
pagment oJ that additionql Jee, it ang, shall elfect the
registration directed to be rnade bg section 766 in the
case of the uesting orders tnentioned there, and. the
elfecting or the omission to elfectthat registration shall
be qttended bg the sante results ds declared bg sectiott
766 in respect oJthe aesting orders tnentioned there."
Therefore before a vesting order is issued the applicant must show
that;

a) The land is registered under the Registration of titles Act;

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 b) There was a sa-le of the said land and the purchaser paid the
entire purchase price to the vendor.
c) That the purchaser or those claiming under him/her have
taken possession of the purchased land and the entry has
been acquiesced in by the vendor or his/her representatives.
d) That the transfer of the property has not been effected
because the vendor is dead or is residing out of the
jurisdiction or cannot be found.

Ideally this kind of application should be made to the Registrar of

titles and the court can only intervene where the Registrar has
failed to act and for no clear reason.

In the instant case, it is true that the applicant applied for vesting
order to Registrar of titles but the sarne was declined. In the
affidavit in reply , the Registrar stated that the Applicant did not
explain why the vendor did not sign transfer forms. Unfortunately,
the Applicant did not make any response to this particular concern
and it still remains unclear why the vendor did not sign transfer
forms if indeed the transaction was completed as claimed.

Perusal of the record shows that the purchaser allegedly bought

the suit land in 1994 and died in 2O2O as indicated in the
certificate of death attached to this application. It is not clear why
for a period of close to 26 years, the purchaser neither took
possession of the land nor bothered to have the land transferred
to his names.

Whereas the Applicant claimed that efforts to trace the vendor had
been futile, she did not elaborate what exact efforts had been taken
to trace for him. In my view it is not enough for an applicant to
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merely depone that efforts have been futile. He or she must further
elaborate on the exact efforts taken. Suffice to say that even no
effort was taken to serve the instant application on the Vendor at
least by way of substituted service.

The Applicant further states that she is in possession of the

duplicate certificate of title and entry into possession will not be
difficult. With all due respect, 5.167 clearly states that the
Applicant should be in possession of the suit land and the said
possession should be acquiesced by the vendor or his or her
representatives.

In the instant case since the Applicant is not in possession of the

land, the court cannot grant a vesting order in her favour.

Before I take leave, I must also note that at the time of the alleged
sale, the vendor only had a leasehold interest in the land for a
period of only 5 years. It is trite law that leasehold interests only
last for a fixed period of time and a person can only give what they
possess. In the case of Were Fred v. Kaga Ltd; H.C.C.S 53O of
2OO4 it was held that a transferor cannot give a better title to
property than he or she possesses. This therefore implies that at
the time of sale (7994), the vendor could only pass on the 5 years
interest he had in the land. Certainly, this lease ought to have
expired in 1999 and there is nothing to show that it was
subsequently renewed or extended.

The application fails to meet the criteria set under Section 167 of
the RTA and the same cannot be granted. I have not found any
special circumstances that would warrant court to go outside the

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specific provisions of S.167 and invoke its inherent powers under
the other laws cited in this application.

For all the reasons advanced above this application hereby fails
and the same is dismissed with costs to the 2"d Respondent.

Dated at Kampala this day of -=fr.,---l 2023.

FLAVIA NASS A MATOVTI

Judge.