Court dismisses Olive Kigongo’s bid to sell Kololo property
Despite rejecting the objections relating to the injunction and res judicata, the judge found that the proposed sale would affect the pending appeal.
Court dismisses Olive Kigongo’s bid to sell Kololo property
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Court has dismissed an application by Olive Kigongo seeking an order to sell a property on Kololo Hill Drive in Kampala, which she jointly owns with National Resistance Movement national vice chairperson Haji Musa Kigongo, following disagreements over its management and maintenance.
In her ruling, Justice Elizabeth Jane Alividza of the High Court's Land Division held that selling the property would terminate the tenancy in common between the two parties and affect the determination of a pending appeal before the Court of Appeal.
Olive had asked the court to order that the property, registered as Plot 29 Kololo Hill Drive under Leasehold Register Volume 2175 Folio 13, be sold through a competitive open bidding process, with the proceeds shared equally between the co-owners.
Through her lawyers, M/S KBW Advocates, she argued that irreconcilable differences between her and Haji Kigongo had made it impossible for them to communicate and cooperate in managing, using and maintaining the property.
She told the court that the disagreements had put the property at risk of deterioration, to the detriment of both parties, and that a sale would resolve the impasse.
However, Haji Kigongo represented by M/S Mwema and Company Advocates, opposed the application, arguing that a permanent injunction issued in Civil Suit Number 295 of 2015 restrained him from selling, mortgaging, leasing or otherwise dealing with the property in a manner that interfered with Olive's interest.
He also argued that the application was barred by the doctrines of res judicata, judicial estoppel and issue estoppel.
He further contended that the court was functus officio and could not entertain what he described as an attempt to review an earlier judgement.
Haji Kigongo also told the court that the ownership dispute was still pending before the Court of Appeal in Civil Appeal Number 145 of 2019 and that ordering a sale would prejudice the appeal and render it nugatory.
Following their separation, Haji Kigongo left the home and filed Civil Suit Number 295 of 2015, seeking, among other orders, Olive’s eviction.
Olive filed a defence and counterclaim, seeking protection of her interest in the property and an order directing that her name be registered on the certificate of title as a co-owner.
On April 27, 2017, the High Court dismissed Haji Kigongo’s suit for lack of merit and entered judgement in Olive’s favour on her counterclaim.
The court directed the Commissioner for Land Registration to register Olive as a co-owner.
It also issued a permanent injunction restraining Haji Kigongo, personally or through his agents, from evicting her, selling, mortgaging or leasing the property, or otherwise interfering with her interest and quiet enjoyment of the land.
According to Justice Alividza, the property was subsequently registered in the names of Olive Kigongo and Haji Musa Kigongo as tenants in common on June 2, 2023, under registration reference KCCA 00105571. They, therefore, held equal shares.
On the injunction, the judge found that its purpose was to protect Olive’s interest in the property and that this had been achieved when she was registered as a co-owner.
Justice Alividza explained that the injunction did not prevent the parties from jointly dealing with the property as tenants in common.
The judge also rejected Haji Kigongo’s argument that the application was barred by res judicata under Section 7 of the Civil Procedure Act.
However, the current application concerned severing the tenancy in common created by the earlier judgement, an issue that had not been raised in the previous proceedings.
Justice Alividza cited the Court of Appeal decisions in Ponsiano Semakula versus Susane Mawala and 25 Others (1993) KALR and Lt David Kabareebe versus Maj Prossy Nalweyiso, Civil Appeal Number 034 of 2003, on the application of the doctrine of res judicata.
Despite rejecting the objections relating to the injunction and res judicata, the judge found that the proposed sale would affect the pending appeal.
She noted that the earlier court had found that the property was not matrimonial property, but that Olive had acquired an interest in it under the doctrine of proprietary estoppel.
The judge further observed that Haji Kigongo was still challenging Olive’s ownership in the Court of Appeal, while Olive had filed a cross-appeal on April 16, 2025.
Justice Alividza said she had checked the Electronic Court Case Management Information System, which confirmed that both proceedings were pending.
She also referred to Section 59 of the Registration of Titles Act, which provides that a certificate of title is conclusive evidence of ownership of land, and Section 98 of the Civil Procedure Act, which gives courts inherent powers to make orders necessary for the ends of justice.
The judge explained that tenancy in common can be terminated through the sale or partition of the common property.
However, she found that selling the property would terminate the existing co-ownership and affect the determination of the pending appeal concerning the parties' respective interests in the land.
Consequently, Justice Alividza dismissed Olive’s application.