High Court at Kabale Clarifies When Spousal Consent Applies and Distinguishes Family Land from Matrimonial Property, and Temporary Gifts

Waboga David
4 days ago
7 min read

FACTS

The respondent, Biyingiro Mauda, sued the appellant, Nyirabagenzi Judith, in Civil Suit No. 037 of 2018 at the Chief Magistrates Court of Kisoro, claiming ownership of the suit land located in Kidakama village.

The respondent asserted that she purchased the land from the appellant's late husband, Bigirimana Anthony (also referred to as Bigirimana Antel or Dusabimana Antel Bigirimana), on February 28, 2014, for UGX 6,000,000.

The sale was purportedly authorized by the husband's mother, Tereza Nyirabusanani (the appellant's mother-in-law), who claimed ownership and had given the land to her son for "temporary use" in 2008, as evidenced by a gift deed (admitted as PEX3).

Key factual elements included:

The appellant and her husband were married in 1996 and resided in their matrimonial home in Gakware village, separate from the suit land.

The appellant had been using the suit land for cultivation since around 2002 and had mortgaged it to a village savings group (Dukore Muramba SACCO) for a loan of UGX 1,500,000, which she failed to repay. The group threatened to sell the land cheaply, prompting the mother-in-law to authorize her son to sell it to the respondent to settle the debt.

A prior domestic dispute between the appellant and her husband in 2013 led to criminal charges (KAB-01-CR-384/2013) against him for allegedly stealing land agreements, but this involved different properties (lands at Matasa village, Mugakoro village, Byasemerwe, Kamyana, and Kidandari trading center) and ended in reconciliation via a consent agreement (admitted as DEX2). The suit land was not part of that dispute.

The appellant's husband died after the sale (noted during trial), and the mother-in-law also passed away subsequently.

The respondent sought a declaration of ownership, a permanent injunction against the appellant, an eviction order, general damages, costs, and 20% interest per annum. The appellant countered that the land was a marriage gift to both her and her husband, constituting family land sold without her consent.

At trial, evidence included witness testimonies (e.g., PW2 Munyarujero Christian and PW3 Susan Nyiraguhwa confirming the loan and mortgage; DW1 Mugisha Brian, the appellant's son, claiming it was family land; DW3 Nzabonimpa Francis, the LC3 Chairperson, noting the appellant's possession but lacking knowledge of the sale). A locus visit on October 2, 2024, confirmed no residential structures on the suit land.

The Magistrate Grade I ruled for the respondent on December 11, 2024, declaring the land belonged to the mother-in-law, was not family land or a marriage gift, and granted the respondent ownership, an injunction, and eviction.

The appellant appealed on eight grounds, primarily alleging improper evaluation of evidence leading to erroneous findings

ISSUES

The High Court reframed and condensed the issues as follows:

Whether the trial magistrate erred in finding that the suit land was not family land or matrimonial property.
Whether the appellant proved ownership or possessory entitlement.
Whether the magistrate improperly ignored defence evidence from DW1 and DW3.
Whether the magistrate erred in interpreting documentary evidence (DEX2 and PEX1).
Whether the finding that the appellant used the land merely as a licensee was erroneous.

SUBMISSIONS

Appellant argued that

The lower court failed to properly evaluate evidence, leading to erroneous conclusions.

Key points included: the suit land was a marriage gift in 1996 or 2008, constituting family land from which the family derived sustenance; contradictions in the respondent's case (e.g., varying years for the gift); DEX2 was a consent judgment covering the suit land; the husband sold as an agent without authority; witnesses DW1 (appellant's son) and DW3 (LC3 Chairperson) were ignored; and the appellant was not a mere licensee but a rightful possessor. Sought to set aside the lower judgment, declare the appellant owner, and award costs.

Respondent argued that

The lower court's evaluation, asserting the land belonged to the mother-in-law and was given temporarily to the husband in 2008; it was not family land as it lacked residential structures and no family agreement existed; the sale settled the appellant's loan debt (benefiting her); DEX2 related to different lands; and contradictions were in the appellant's case (e.g., DW1's claim of a stolen gift deed unsupported). Urged dismissal of the appeal with costs.

LEGAL REPRESENTATION

Appellant, M/S Skaar Advocates
Respondent, Ms. Rebekah Ayesiga, M/S Beitwenda & Co. Advocates

COURT’S FINDINGS

Hon. Justice Karoli Lwanga Ssemogerere re-evaluated the entire record as required on a first appeal and dismissed all eight grounds. His findings are set out below.

1. Whether the Suit Land Was Family Land

The Court applied Section 39(4) of the Land Act, which defines the categories of family land, including the ordinary residence of the family, land where the family ordinarily carries out sustenance, and land agreed upon by the spouses to be treated as family land.

Ordinary Residence

The Court endorsed the trial magistrate’s on-site findings:

“When Court visited locus … it observed that the suit land never had any residential building for any of the parties.”

The uncontroverted evidence showed that the couple lived in Gakware Village, not on the suit land in Kidakama Village. The land therefore did not meet the test under Section 39(4)(a)–(b).

Agreement to Treat the Land as Family Land

The Court further held that there was no evidence of a voluntary agreement between the spouses under Section 39(4)(c) to designate the land as family land.

Source of Sustenance

Although the appellant occasionally cultivated crops there, the Court found that such use did not transform it into land for the family’s “ordinary sustenance” as envisaged under the statute.

Accordingly the Court observed that:

The suit land was not the ordinary residence of the couple.
The couple did not freely or voluntarily agree to treat it as family land.
The land was not their principal source of sustenance.

Therefore, spousal consent under Section 40 of the Land Act did not apply.

Whether the Land Was Matrimonial Property

The Court relied on Ambayo Joseph Waigo v Aserua Jackline, Kintu v Kintu, and Mary Martin v Kakuru Moses, reiterating that property acquired or gifted during marriage is presumed matrimonial property unless evidence rebuts that presumption.

Nature of the Gift

The Court held:

“A marriage gift by law would be to both parties and form part of the matrimonial estate. However, the evidence shows the land was gifted temporarily to the husband alone.”

PEX3 demonstrated that the mother-in-law gave the land to her son for temporary use only, rebutting the presumption of matrimonial property.

Effect of Death

The Court emphasized that matrimonial property rights end upon death:

“Any claim by the appellant to the land as a spouse of the deceased… could only be established in an administration cause and by grant of letters of administration.”

Thus, the appellant’s claim lay under the Succession Act, not through a land dispute.

Conclusion on Matrimonial Property

The land was not matrimonial property and did not form part of the marital estate.

Ownership of the Suit Land

The Court emphasized that:

“A finding of ownership does not rely on mere allegations but on proof of ownership based on evidence.”

Relying on Kemitare v Kanyaruju (CA No. 26 of 2013), the Court held that:

PEX1 (Sale Agreement) and
PEX3 (Temporary Gift/Authority)

provided clear evidence that the land belonged to the mother-in-law, who authorized her son to sell it.

Thus, the respondent lawfully acquired ownership.

Whether the Appellant Was a Licensee

The Court adopted the holding in Okidi v Odwong (CA No. 233 of 2015):

“A mere licence does not create any estate or interest in property… it only makes lawful an act which would otherwise be unlawful.”

The appellant’s use was permissive, she was allowed to cultivate but acquired no proprietary rights. Her claim to occupation could not defeat the rights of the lawful owner.

Evaluation of DW1 and DW3’s Testimony

The Court found DW3’s evidence unhelpful:

“His status as a political leader alone did not confer on him any special knowledge of the transaction.”

DW1’s testimony, while supportive of the appellant, could not override documentary evidence (PEX1, PEX3) or statutory definitions under the Land Act. The Court therefore rejected ground 2.

Documentary Evidence (DEX2, PEX1, PEX3)

DEX2

The Court held that:

DEX2 related to other parcels of land, not the suit land.
It was a reconciliation agreement covering lands in Matasa, Mugakoro, Byasemerwe, Kamyana, and Kidandari trading centre.

Thus, it had no bearing on ownership of the suit land.

PEX1 and PEX3

PEX1 showed the deceased sold:

“the land my mother had given to me for temporary use.”

PEX3 (the mother-in-law’s written confirmation) validated this and confirmed authorization for sale.

The Court concluded:

“The contents of these documents are self-explanatory and dispose of Grounds 7 and 8.”

Contradictions in the Appellant’s Case

The Court noted that contradictions existed within the appellant’s own evidence:

Gift year inconsistencies (1996 vs. 2008)
Alleged stolen gift deed unsupported by any witness or document
Assertions contradicted by DEX2 and PEX3

Thus, the Court found no merit in the allegations of non-consideration of contradictions.

Overall Conclusion and Holding

After a fresh evaluation of the entire record, the High Court held:

The suit land was not family land under Section 39(4).
The land was not matrimonial property; the presumption was rebutted.
Any claim through marriage had to be pursued under the Succession Act.
The appellant was a mere licensee, with no proprietary rights.
The respondent was the lawful owner, having purchased the land through an authorized transaction.
All eight grounds of appeal were without merit.

The Court commented:

“This appeal is misconceived… it highlights the importance of settling property rights first and the need for a statutory definition of ‘matrimonial property’ in light of Article 31(4) of the Constitution.”

Final Orders

The entire appeal was dismissed.
The judgment and orders of the lower court were affirmed.
Costs were awarded to the respondent.

KEY TAKEAWAYS FOR PRACTITIONERS

1. Not all land used by a spouse qualifies as “family land.”

Actual ordinary residence or proven joint agreement is required under Section 39(4) of the Land Act.

The definition of "family land" under Section 39(4) of the Land Act is strictly applied. Land used only for cultivation/sustenance, but not as the ordinary residence, will not qualify as family land unless there is clear, voluntary agreement by the family to treat it as such.

2. Temporary gifts from relatives do not create matrimonial property.

A temporary gift to one spouse cannot be claimed by the other without succession proceedings.

3. Spousal consent only applies where land qualifies as family land.

If land is not family land, Section 40 of the Land Act does not apply.

4. Documentary evidence from the landowner is decisive.

Gift deeds, sale agreements, and written confirmations from the true owner carry more legal weight than oral testimony.

5. Use of land does not create ownership.

A licensee has no proprietary interest, even after long use.

6. Matrimonial property claims after the death of a spouse must be pursued through the Succession Act, not civil litigation.

7. Appellate courts will not disturb factual findings supported by evidence.

Unless there is misdirection on a point of law, appellate intervention is limited.

Necessity of Agreement

Where land is not the ordinary family residence, spouses must have freely and voluntarily agreed that the land should be treated as family land for the spousal consent requirement to apply to its disposal.

Read the full case