High Court Voids the Sale of Joseph Gabunga’s Kibanja for Lack of Buganda Land Board Consent, Rules That a Landlord’s Death Does Not End a Tenant’s Rights, and Awards Shepherds Grammar School UGX 20M
- Byaruhanga Joshua Morris
- 4 days ago
- 16 min read
JOHN BWANIKA T/A SHEPHERDS GRAMMAR SCHOOL v. GLADYS NALUMANSI GABUNGA & 6 OTHERS
Civil Suit No. 0918 of 2019, High Court of Uganda at Kampala (Land Division)
Snapshot
The High Court of Uganda at Kampala (Land Division) has delivered an important decision concerning the protection of tenancy interests, the effect of a landlord's death on an existing tenancy, the distinction between a contractual tenant and a tenant by occupancy, and the legal requirements governing the sale of a kibanja.
In John Bwanika T/A Shepherds Grammar School v Gladys Nalumansi Gabunga & 6 Others, the Court held that the death of a landlord does not, by itself, terminate an existing tenancy. The contractual and proprietary obligations arising from the tenancy devolve upon the deceased's personal representatives.
The Court further held that although a tenant who entered land under a tenancy agreement may qualify as a lawful occupant, this does not automatically make such tenant a tenant by occupancy entitled to the statutory right of first option to purchase under section 36(3) of the Land Act.
Significantly, the Court also held that where a kibanja is held under the reversionary interest of the Kabaka of Buganda, the consent required for a transaction involving the kibanja must be obtained from the landowner through the Buganda Land Board, and not merely from the local Omutongole wa Kabaka.
The Court consequently declared the sale of the suit property illegal for want of the requisite landowner's consent, while nevertheless finding that the purchaser was a bona fide purchaser because he had no notice of fraud and had taken steps to address the Plaintiff's existing interest.
Facts
The Plaintiff, John Bwanika, trading as Shepherds Grammar School, was a tenant on a parcel of land measuring approximately 25 decimals situated at Kibuye 1 Parish, Wasswa Zone, Makindye West Division, Kampala.
The Plaintiff's case was that in 1999, he entered into a tenancy agreement with the late Joseph Gabunga, who was the kibanja holder of the suit property. Following the tenancy, the Plaintiff established and operated Shepherds Grammar School on the land.
It was further submitted that the Plaintiff and the late Joseph Gabunga developed a close working relationship under which the Plaintiff was permitted to construct permanent structures on the land. According to the Plaintiff, there was an understanding that the parties would eventually obtain a leasehold interest from the Buganda Land Board and that the Plaintiff would have the first right to purchase the land if Joseph Gabunga ever decided to sell it.
Joseph Gabunga died in 2014, before those arrangements could be implemented. His estate was subsequently administered by the 1st to 5th Defendants.
The Plaintiff stated that, notwithstanding Joseph Gabunga's death, he continued paying rent to the deceased's widow and sister.
In 2017, the Plaintiff received his first eviction notice. Subsequently, the administrators of the estate instituted proceedings in the High Court Family Division. Those proceedings were resolved by a consent judgment permitting the administrators to sell the suit property and distribute the proceeds amongst the beneficiaries of the estate.
In 2019, the Plaintiff was served with another notice to vacate. Upon attempting to negotiate his continued occupation, he was informed that the property had already been sold to the 6th Defendant, Kiyimba Wasswa Ali.
The Plaintiff consequently challenged the transaction, alleging, among other things, that his tenancy and interests in the land had not been properly considered, that the purchaser had failed to undertake proper due diligence, and that the transaction had been conducted without the requisite consent of the Buganda Land Board.
The Plaintiff also claimed that the dispute surrounding the land had negatively affected his school business and caused an alleged loss of more than UGX 70 million.
Earlier in the proceedings, the Plaintiff had obtained temporary injunctive orders preserving the status quo. In 2020, he also obtained an order for contempt against the Defendants for allegedly altering the status quo in breach of the interim orders.
A locus visit was eventually conducted on 24 October 2025. During the locus visit, Court observed that the suit land was occupied by Shepherds Grammar School, that the Plaintiff owned the school, that the land contained both permanent and temporary structures, and that the Plaintiff remained in physical control and possession of the property.
Court also noted that rent was being paid through the Chief Magistrates Court at Makindye and that the 6th Defendant was not in physical possession of the land.
Legal Representation
For the Plaintiff
Ms. Nyachio Mary of M/s Anguria & Co. Advocates.
For the 1st to 6th Defendants
Ms. Nalubega Shamim of M/s Musoke Suleman & Co. Advocates.
Submissions of the Parties
The Plaintiff's Submissions
Counsel for the Plaintiff submitted that a subsisting tenancy existed under Section 9(1) of the Contracts Act, Cap 284, since the death of Gabunga and after his death, the administrators, continued to receive rent, citing Pardan Jwarj v Whelpade (1920-29) 3 ULR 193, as approved in Wamulugwa v Bugisu Cooperative Union (HCT-04-CV-CA-62 of 2016), for the proposition that payment and acceptance of rent evidences a landlord-tenant relationship.
Counsel argued the Plaintiff held an equitable interest entitling him to first option to purchase, arising from developments made with the kibanja holder's knowledge and consent, relying on Kampala District Land Board & Chemical Distributors v National Housing and Construction Corporation, SC Civil Appeal No.2 of 2004, and Olango Joseph v Tooron Richard, Civil Appeal No.39 of 2019.
Counsel further submitted that the sale was invalid for lack of participation by all co-administrators, particularly Gladys Nalumansi, citing Byaruhanga v Ruvugwaho & Anor, Civil Appeal No.09 of 2014 [2020] UGSC 2088, and for lack of consent from the landlord, required under section 29 of the Land Act, Cap 236, noting that the Defendants relied only on clearance from the local 'Omutongole' rather than the Buganda Land Board.
The Defendants' Submissions
Counsel for the 1st to 6th Defendants argued the tenancy agreement expired in 2010, as admitted by the Plaintiff in cross-examination, and that continued rent payments after 2019 were made to the 6th Defendant, not the administrators.
Counsel argued the Plaintiff's interpretation of Olango Joseph v Tooron Richard was misapplied, since that case concerned bibanja holders and not tenants of buildings, and submitted the Defendants were free to sell to anyone once the Plaintiff's purchase offer proved inadequate.
Counsel submitted the sale was valid because it was authorised by the High Court Family Division, that the 6th Defendant was a bona fide purchaser who conducted due diligence and obtained clearance from the area Local Council Chairperson and the Kabaka's representative, and that if Gladys Nalumansi or the Buganda Land Board disputed the sale, they should have filed a suit to challenge it.
Court's findings
A tenancy is more than a mere personal contract
The Court's first major finding was that a tenancy creates not only contractual obligations but also a legally recognised proprietary interest in favour of the tenant.
The Court observed:
“It is trite that a tenancy is not merely a contract regulating the reciprocal rights and obligations of a landlord and tenant. It is also a proprietary relationship which confers upon the tenant a legally recognised interest in land for the duration of the tenancy.”
The Court explained that once possession has been granted, the tenant acquires an interest in the premises which the law protects against unlawful interference.
It was therefore held that the proprietary character of a tenancy means that the rights of the tenant do not depend upon the continued personal existence of the landlord.
On the issue concerning the death of a landlord does not automatically terminate a tenancy
The Court considered section 33(2) of the Contracts Act, Cap. 284, which provides:
“A promise binds the representative of a promisor, in case of the death of the promisor before performance, unless a contrary intention appears from the contract.”
Applying this provision, Court held that contractual obligations generally survive the death of a contracting party unless the contract expressly provides otherwise or the nature of the contract requires personal performance by the deceased.
It was noted that the obligations of a landlord under a tenancy agreement, such as permitting quiet enjoyment, respecting lawful possession and receiving rent, do not depend on the personal abilities or qualities of the original landlord.
The Court therefore concluded;
“Accordingly, the death of the landlord does not discharge the obligations arising under the tenancy.”
The Court further held that the contractual obligations of the deceased landlord devolved upon the personal representatives unless the tenancy agreement expressly provided otherwise.
On the issue of whether administrators step into the shoes of the deceased
The Court rejected the Defendants' argument that they could not be bound by the tenancy because they had not personally executed it.
The Court held that;
“The administrators are not bound because they personally executed the tenancy agreement. They are bound because the law transfers to them the contractual obligations of the deceased.”
It was emphasised that administrators do not acquire a new and independent estate with rights greater than those possessed by the deceased.
Rather, they step into the deceased's legal position for purposes of administering the estate.
The Court stated that;
“The administrator does not acquire a new estate independent of that of the deceased nor does he/she obtain greater proprietary or contractual rights than those enjoyed by the deceased immediately before death.”
Consequently, where the deceased landlord held property subject to an existing tenancy, the administrators likewise held that property subject to the same tenancy.
On the issue concerning the tenancy agreement itself expressly bound successors
The Court also examined the actual tenancy agreement executed in 2010.
The agreement defined the term landlord to include the deceased's successors in title. The Court reproduced the relevant wording:
“This Agreement is made this 1st day of January 2010, Between Mr. Joseph Gabunga ... (hereinafter called the ‘The Landlord’) which expression shall where context so admits include his successors in title...”
The agreement further provided that it would automatically renew unless either party gave one year's notice to vacate before expiry.
Court observed:
“It is evident that it was intended for the tenancy agreement to survive even after Joseph Gabunga’s death.”
Accordingly, Court found that the tenancy continued after Joseph Gabunga's death and that the 1st to 5th Defendants, as administrators, were bound by it.
Issue (i) was therefore answered in the affirmative.
The Court made an important distinction between a lawful occupant, a tenant by occupancy, and an ordinary contractual tenant. It was observed that section 36(3) of the Land Act establishes the right of first option to purchase in favour of a tenant by occupancy.
The Court accepted that the Plaintiff had entered the land with the consent of the kibanja holder and could therefore fall within the broader definition of a lawful occupant.
However, the Court held that this did not automatically make him a tenant by occupancy.
The Court explained that a tenant by occupancy under the Land Act pays annual nominal ground rent.
In the present case, the Plaintiff's tenancy involved monthly rent and subsequently rent payable per term.
The Court therefore held:
“From such payment terms, the Plaintiff does not qualify as a tenant by occupancy entitled to the right of first option to purchase.”
The Court consequently distinguished the tenant contemplated under the Land Act from the tenant contemplated under the Landlord and Tenant Act.
It held:
“The tenant envisaged under the right of the first option to purchase is one under the Land Act, Cap 236 and not the one under the Landlord & Tenant Act, Cap 238.”
Accordingly, Issue (ii) was answered in the negative.
THE PLAINTIFF WAS NOT STATUTORILY ENTITLED TO THE FIRST OPTION TO PURCHASE
Although the Plaintiff was not legally entitled to the statutory first option to purchase, Court noted that the Defendants had nevertheless given him an opportunity to purchase the property.
The Court observed that the Defendants had sought an offer from the Plaintiff, but his offer had been rejected as too low.
Court consequently found that:
“The Defendants were prudent and considerate of the Plaintiff’s interest in the suit property.”
This finding is significant because it demonstrates that the Court distinguished between a statutory right of first option, and an opportunity voluntarily extended by a landowner or seller to a tenant. The former must arise from statute; the latter does not necessarily create a legal entitlement.
ON WHETHER THE CONSENT OF THE BUGANDA LAND BOARD WAS MANDATORY
The Court then considered the validity of the sale between the administrators and the 6th Defendant.
It was noted that the late Joseph Gabunga was a kibanja holder while the reversionary interest in the land was held by the Kabaka of Buganda.
The Court held that because the transaction involved the assignment or sale of a kibanja interest, the landlord's consent was required.
The Court stated:
“The effect of this relationship is that for any transaction to be done on this land, there needed to be consent from Buganda Land Board allowing the 1st-5th Defendants to sell their interest to the 6th Defendant.”
The Defendants argued that consent had been obtained from the Omutongole wa Kabaka.
The Court rejected that argument.
It observed:
“The law is clear that the consent should come from the land owner.”
The Court further reasoned that although an Omutongole may be an agent of the Kabaka in the locality, the management of the Kabaka's land in this context was exercised through the Buganda Land Board.
The Court therefore held:
“Only their consent would validate the sale of the suit property.”
FAILURE TO CHALLENGE AN ILLEGAL TRANSACTION DOES NOT VALIDATE IT
The Defendants had argued that if the Buganda Land Board disputed the transaction, it ought to have instituted proceedings to challenge it.
The Court rejected this argument in strong terms.
It held:
“Choosing not to institute a suit does not rectify or validate a legal wrong; it is still an illegality whether or not the Buganda Land Board went to court.”
The Court further stated that whenever such illegality is brought to its attention, it is the duty of the Court to declare it.
This is an important proposition for transactions involving land where statutory consent is mandatory; the absence of an immediate challenge by the person entitled to give consent does not, by itself, cure the illegality.
A COURT ORDER TO SELL PROPERTY DOES NOT DISPENSE WITH STATUTORY REQUIREMENTS
The Defendants also argued that the sale was valid because it had been authorised by the High Court Family Division.
The Court acknowledged that the Family Division had indeed authorised the sale.
However, it held that a court order permitting a sale does not exempt parties from complying with applicable statutory requirements.
The Court stated:
“The powers and orders of court are still exercised in conformity with the existing law.”
It further explained:
“The role of the Judiciary as an arm of Government is not to change the law but to interpret it in light of the circumstances of each case.”
Accordingly, the Court concluded that the Family Division's order to sell the estate property did not confer immunity from statutory requirements.
The sale had to be undertaken in accordance with the law governing kibanja transactions.
The Court therefore held:
“The sale to the 6th Defendant is an illegality for lack of requisite consent from the land owner.”
SALE BY ONE CO-ADMINISTRATOR DID NOT INVALIDATE THE 2019 TRANSACTION
The Plaintiff had also challenged the sale on the ground that one of the administrators, the 1st Defendant, did not participate in the transaction.
Court considered the subsequent amendments to the Succession Act requiring co-administrators to participate jointly in transactions involving estate land.
However, the Court noted that the sale occurred in 2019, when the earlier succession regime was applicable.
The revised Succession Act, which introduced the mandatory requirement for all co-administrators to participate, did not operate retrospectively.
The Court therefore held that the absence of the 1st Defendant from the 2019 transaction did not, by itself, invalidate the sale.
This part of the decision is particularly important in determining the applicable legal regime based on the date of the transaction.
THE 6TH DEFENDANT WAS A BONA FIDE PURCHASER, BUT THE SALE WAS STILL INVALID
The Court separately considered the 6th Defendant's defence of bona fide purchaser for value.
The Court referred to the principles established in Katende v Haridar & Company Ltd [2008] 2 EA 173.
It was noted that, in the present case, the land was untitled and therefore not all traditional requirements relating to a certificate of title could apply.
Nevertheless, the Court held that the central question was whether the purchaser knew or ought to have known of competing interests and, if so, whether reasonable steps were taken to address them.
The Court found that the 6th Defendant had actually seen the Plaintiff during the physical inspection of the property.
It therefore followed that the purchaser had notice of the Plaintiff's occupation and interest.
The Court stated:
“The burden of ascertaining and settling these interests lies on the purchaser at all times, for they are the ones that risk suffering loss in case their purchase is contested.”
However, the Court also found that the 6th Defendant had not acted fraudulently and had taken steps to resolve the Plaintiff's interest, including seeking the intervention of the court regarding possession and rent.
Court therefore held:
“Therefore, the 6th Defendant qualifies as bonafide purchaser for they had no notice of fraud and there was no outright act by the 6th Defendant to deprive the Plaintiff of his interest.”
The Court consequently made an important distinction: being a bona fide purchaser did not cure the absence of the landowner's statutory consent.
The transaction remained invalid because of the missing consent.
THE EVICTION NOTICE WAS A BREACH OF THE TENANCY
Having found that the tenancy continued, Court considered the eviction notice issued to the Plaintiff in April 2019.
It was not disputed that the 2010 tenancy agreement provided for a ten-year term and automatic renewal, subject to the contractual notice requirement.
The Court held:
“Therefore, in the absence of a variation or addendum to the 2010 tenancy agreement, the tenancy on the suit property is deemed to be existent.”
The Court consequently found that the April 2019 eviction notice breached the tenancy agreement because the agreement required at least one year's notice.
SPECIFIC PERFORMANCE WAS NOT GRANTED
Although Court found that the eviction notice amounted to a breach, it declined to grant specific performance.
The reason was that the Plaintiff had never actually been evicted and remained in possession of the property.
Court observed that the Plaintiff's interests had therefore continued to be protected in practice.
The Court concluded that:
“Accordingly, the 1st-5th Defendant’s apparent breach in 2019 did not affect the Plaintiff’s interests in the suit property for he is still in its possession.”
The prayer for specific performance was consequently denied.
PERMANENT INJUNCTION WAS ALSO DENIED
The Court considered the principles governing permanent injunctions and noted that such an injunction is ordinarily intended to prevent continuing or future infringement of an established right.
The Court found that the Plaintiff had not suffered an infringement warranting a permanent injunction because the threatened eviction had not actually been carried out.
It therefore held:
“The Plaintiff did not suffer any violations warranting a permanent injunction.”
The prayer for a permanent injunction was accordingly denied.
SPECIAL DAMAGES WERE NOT PROVED
The Plaintiff had claimed compensation for property allegedly destroyed by the Defendants.
However, Court found that the Plaintiff had failed to establish that the Defendants or their agents had actually caused the alleged destruction.
Although a valuation report had been produced, Court held that the report, by itself, was insufficient.
The Court emphasised:
“A valuation report as evidence of the damage needs to be backed by sufficient evidence that the damage was caused by the party against which the remedy is sought.”
Consequently, the special damages claim failed for want of strict proof.
GENERAL DAMAGES OF UGX 20 MILLION WERE AWARDED
The position was different regarding general damages.
Court found that the sale of the property while the Plaintiff's tenancy was still subsisting caused considerable inconvenience.
The Court noted that the suit property was being used as a school and that the dispute concerning the land generated anxiety among parents and the surrounding community, consequently affecting the Plaintiff's business.
The Court therefore awarded the Plaintiff:
UGX 20,000,000/= IN GENERAL DAMAGES.
EXEMPLARY DAMAGES WERE DENIED
The Court declined to award exemplary damages.
Although the transaction was found to be illegal for want of the landowner's consent, Court did not find sufficient evidence of oppression, malice or high-handed conduct.
It was particularly noted that the Defendants had offered the Plaintiff an opportunity to purchase the land and that the 6th Defendant had not proceeded to evict him.
The Court therefore held that the conduct did not reach the threshold warranting exemplary damages.
NO INTEREST WAS AWARDED
The Plaintiff had also sought interest.
Court rejected the argument that the Defendants had improperly taken and benefited from the Plaintiff's money.
It was held that the money received constituted rent and was not unlawfully obtained or unjustifiably retained.
The claim for interest was therefore denied.
COSTS FOLLOWED THE EVENT
Although the Plaintiff did not succeed on all the reliefs sought, the Court found that the suit had been partly decided in his favour.
Relying on the principle that costs follow the event, the Court awarded the Plaintiff the costs of the suit.
HOLDING
The Court made the following orders;
There was an existing landlord-tenant relationship between the Plaintiff and the 1st to 5th Defendants in respect of the suit property.
The sale transaction between the 1st to 5th Defendants and the 6th Defendant was illegal because the requisite consent of the landowner had not been obtained.
Ownership of the suit property reverted to the 1st to 5th Defendants, as administrators of the estate of the late Joseph Gabunga.
The April 2019 eviction notice constituted a breach of the tenancy agreement.
The prayers for permanent injunction, specific performance, exemplary damages and interest were denied.
The Plaintiff was awarded UGX 20,000,000/= in general damages.
The Plaintiff was awarded the costs of the suit.
KEY TAKEAWAYS
1. Death of a landlord does not automatically terminate a tenancy
A tenancy creates both contractual and proprietary interests. The death of the landlord does not extinguish those interests merely because the original contracting party has died. Under section 33(2) of the Contracts Act, contractual obligations ordinarily devolve upon the deceased's representatives unless the contract provides otherwise.
2. Administrators step into the shoes of the deceased
Personal representatives cannot rely on the death of a landlord to obtain rights which the deceased himself did not possess. Where the deceased held land subject to an existing tenancy, the administrators inherit the property subject to that tenancy.
3. The terms of the tenancy agreement are paramount.
In this case, the agreement expressly included successors in the definition of the landlord and contained an automatic renewal clause.
The Court therefore gave effect to the parties' contractual intention.
4. Not every tenant is a tenant by occupancy
A person may be a lawful occupant without necessarily being a tenant by occupancy entitled to the statutory right of first option to purchase.
The Court drew a distinction between a contractual tenant under the Landlord and Tenant Act and a tenant by occupancy contemplated under the Land Act.
The right of first option to purchase depends on the statutory status of the occupant
The Court held that the statutory first option under section 36(3) of the Land Act belongs to a tenant by occupancy.
The mere fact that a person occupies land with the owner's consent does not, without more, confer that statutory right.
Due diligence must go beyond checking documents
The case demonstrates the importance of physical inspection and investigation of occupation.
A purchaser who finds another person in possession cannot simply ignore that person's interest.
The Court emphasised that the purchaser bears the burden of ascertaining and settling competing interests.
Being a bona fide purchaser does not cure every illegality
The 6th Defendant was found to be a bona fide purchaser because there was no evidence of fraud or an outright attempt to deprive the Plaintiff of his interest.
However, the Court nevertheless invalidated the sale because the mandatory consent of the landowner had not been obtained.
Good faith therefore does not cure a transaction undertaken contrary to a mandatory statutory requirement.
Kibanja transactions require the appropriate landowner's consent
Where the reversionary interest is held by the Kabaka of Buganda and managed through the Buganda Land Board, the necessary consent must be obtained through the legally recognised institutional mechanism.
The Court rejected reliance solely on consent from a local Omutongole wa Kabaka.
A court order authorising a sale does not override statutory requirements
Even where a court orders or authorises the sale of estate property, administrators must still comply with the applicable land laws and statutory consent requirements.
As the Court observed, judicial orders are exercised “in conformity with the existing law.”
New statutory requirements may not apply retrospectively
The Court held that the revised Succession Act's requirement for all co-administrators to participate jointly in land transactions could not retrospectively invalidate a transaction concluded in 2019 under the previous legal regime.
Practitioners must therefore determine the law applicable at the time the transaction occurred.
Special damages must be strictly proved
A valuation report alone will not necessarily establish liability for property damage.
The claimant must also establish that the defendant caused the loss for which compensation is sought.
General damages may arise from disruption and inconvenience
Although the Plaintiff failed to prove the claimed special damages, Court found that the land dispute caused considerable inconvenience and anxiety affecting the operation of the school.
The Court consequently awarded UGX 20 million in general damages.
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