High Court of Kabale Rules That Land Under Development or Not Used as the Matrimonial Home Is Not Family Land Requiring Spousal Consent, and Affirms Validity of Sale and Bona Fide Purchaser Protection

Waboga David
Dec 6, 2025
6 min read

FACTS

In November 2006, the Plaintiff (Mary Martin) obtained an urgent loan of UGX 9,500,000 from the 1st Defendant (Kakuru Moses), allegedly to facilitate her sick husband's airlift to the United States. The repayable sum was UGX 15,000,000 inclusive of interest. The Plaintiff pledged Plot 2 Johnston Road, Kabale (the "suit property") as security.

The Plaintiff claimed she made several payments totaling UGX 11,282,000 through the 2nd Defendant (Ndyabanawe Johnson) for transmission to the 1st Defendant. In January 2009, the 1st Defendant transferred the property title to the 3rd Defendant (Kyampeire Rosette).

The Plaintiff alleged the transfer was fraudulent, citing:

Absence of spousal consent
Obtaining a lease from the District Land Board without her knowledge
Transfer without valuable consideration paid to her

The Plaintiff sought recovery of the land, special damages of UGX 500,000,000 (comprising UGX 350,000,000 for the plot value and UGX 150,000,000 for structures erected), general and punitive damages, permanent injunction, eviction orders, and costs.

Key Evidence included

A sale agreement dated December 6, 2006, was signed between the Plaintiff and 1st Defendant, witnessed by multiple parties including the Plaintiff's husband. Transfer forms were signed on May 7, 2007. The Plaintiff initially denied signing the transfer forms but later admitted doing so, claiming duress—though she never reported this to police.

ISSUES

The Court framed three main issues for determination:

Whether there was a valid sale agreement of the suit property between the Plaintiff and the 1st Defendant
Whether the sale agreement required spousal consent, absent which the sale agreement was void
What remedies are available to the parties

SUBMISSIONS

Plaintiff's Position

The Plaintiff argued the transaction was a loan arrangement, not a sale, and that the transfer was fraudulent. She claimed to have made substantial repayments and alleged the transfer occurred without proper spousal consent and under duress.

Defendants' Position

The Defendants maintained there was a valid sale agreement for UGX 15,000,000. The 1st Defendant testified he was introduced to the Plaintiff through the 2nd Defendant because she had land for sale. He denied being a moneylender and asserted all documents were properly executed. The transfer forms were signed in the presence of an Advocate (Mr. Felix Bakanyabonera) on May 7, 2007.

LEGAL REPRESENTATION

For the Plaintiff:

Mr. Masereka Godwin of M/S Elgon and Co. Advocates
M/S Skaar Advocates
JB Byamukama and Co. Advocates

For the Defendants:

Mr. Timothy Nahabwe for M/S Twikirize and Co. Advocates

COURT'S FINDINGS

Preliminary Matters

The Court struck out all claims against the 3rd Defendant under Order VII Rule 18 of the Civil Procedure Rules, noting:

"In the suit, no specific allegation of wrongdoing or malfeasance is made against the third defendant. The third defendant is entitled to protection of the doctrine of bona fide purchaser for value."

The Court found no evidence that the 3rd Defendant had actual or constructive notice of the Plaintiff's claim when purchasing the property.

Issue 1 on the Validity of the Sale Agreement

The Court found there was a valid sale agreement between the Plaintiff and 1st Defendant. The sale agreement dated December 6, 2006 (admitted as PEX1) was signed by both parties and witnessed by multiple individuals including the Plaintiff's husband. The Plaintiff identified all signatures on the agreement Consent to transfer forms were signed by the Plaintiff on May 7, 2007

The Court applied the parole evidence rule, citing Section 92 of the Evidence Act:

"When the terms of any such contract, grant or other disposition of property... have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument... for the purpose of contradicting, varying, adding to or subtracting from its terms..."

The Court referenced Ben Kavuya and 2 others v Wakayira David (Supreme Court Civil Appeal No. 31, 2021), which upheld the primacy of written contract terms over oral testimony.

Regarding the Plaintiff's fraud allegations, the Court stated:

"The allegations of fraud, intimidation, illegality were feebly prosecuted. The testimony of DW1, went unchallenged on cross examination."

The Court found the Plaintiff's testimony unreliable, noting she:

Initially denied signing transfer forms, then admitted doing so
Claimed duress but made no police report
Failed to provide credible evidence to support her allegations

Issue 2 on Spousal Consent Requirement

The Court held that spousal consent was NOT required because the property did not qualify as "family land" under the Land Act.

The Court examined Sections 39 and 40 of the Land Act, Cap 236, which require spousal consent for transactions affecting family land. Section 39(4)(a) defines family land as:

"in the case of land on which is situated the ordinary residence of a family; (b) on which is situated the ordinary residence of the family and on from which the family derives sustenance."

All parties testified that the construction on the property was only at slab level at the time of the sale. The Court concluded:

"This land may have become family in the future but it wasn't family land at the time the sale agreement was entered into."

Therefore, the spousal consent provisions of the Land Act did not apply to this transaction.

Issue 3 on the Available Remedies

The Court found no basis for the Plaintiff's caveat on the suit land and directed its immediate removal:

"I also find there is no basis for the caveat by the plaintiff on the suit land. She sold an unregistered interest, a lease offer to the 1st plaintiff... I direct the Commissioner of Land Registration to immediately vacate the plaintiff's caveat."

The Court emphasized the importance of contractual freedom:

"Courts must respect to freedom to contract, especially where terms are reduced in writing. Courts may vary terms like interest where they are harsh and unconscionable, but the first step is acknowledging there is a contract prior to seeking relief from the courts."

HOLDING

The Court dismissed the Plaintiff's entire claim against all three Defendants with the following orders:

Validity of Transaction: There was a valid sale agreement between the Plaintiff and 1st Defendant
Ownership: The 3rd Defendant is the lawful owner of the suit land
Caveat Removal: The Commissioner of Land Registration is directed to remove the Plaintiff's caveat on the suit land
Costs
Taxed costs awarded to the Defendants, apportioned as follows:
- 1st Defendant: 40%
- 2nd Defendant: 10%
- 3rd Defendant: 50%

KEY TAKEAWAYS

1. Sanctity of Written Contracts

Courts will uphold the terms of written agreements and will not allow oral evidence to contradict, vary, or add to those terms unless specific exceptions apply (fraud, duress, illegality, etc.). The burden is on the party alleging invalidity to prove their claim with credible evidence.

2. Parole Evidence Rule is Strictly Applied

The parol evidence rule prevents parties from introducing extrinsic evidence to alter the terms of a complete written agreement. Exceptions are narrow and must be clearly established with credible proof.

3. Family Land Protections Have Specific Requirements

Not all land owned by married persons qualifies as "family land" requiring spousal consent under the Land Act. The property must serve as the ordinary residence of the family or provide sustenance. Land under development may not meet this threshold.

4. Bona Fide Purchaser Protection

Third-party purchasers who acquire property without notice of competing claims are protected by law. Plaintiffs must demonstrate that subsequent purchasers had actual or constructive knowledge of their claims.

5. Credibility Matters

Inconsistent testimony significantly undermines a party's case. The Plaintiff's initial denial of signing transfer forms, followed by admission under duress claims without corroborating evidence (such as police reports), proved fatal to her case.

6. Burden of Proof

Under Sections 101-103 of the Evidence Act, the party making allegations bears the burden of proving them. Mere assertions without credible supporting evidence will not satisfy this burden.

7. Procedural Compliance is Critical

Failure to comply with court directives (such as filing written submissions) can result in the case being decided on existing evidence, potentially disadvantaging the non-compliant party.

8. Caveats Require Valid Legal Basis

A caveat cannot be maintained on property where the caveator has already disposed of their interest through a valid sale. Courts will order the removal of improperly lodged caveats.

9. Duration of Litigation

The Court noted the case had persisted for too long in the court system (from 2017 to 2025), emphasizing the need for expeditious disposal of matters where facts are clear.

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