A CRITICAL ANALYSIS OF THE LEGAL REGIME REGARDING THE RIGHTS

OF TENANTS ON LAND IN UGANDA. A CASE STUDY OF W AKISO DISTRICT.

BY

NAMPURIRA EDSON

1153-01024-01272

A RESEARCH PAPER SUBMITTED TO THE SCHOOL OF LAW IN PARTIAL

FULFILLMENT FOR THE REQUIREMENTS FOR THE AWARD OF THE DEGREE
OF BACHELOR OF LAWS OF KAMPALA INTERNATIONAL UNIVERSITY.

JULY 2019.
 DECLARATION
I hereby declare that the work reported in this research report is my original work and
it has never been submitted for award of any certificate, diploma or degree in this or
any other University or institution.

STUDENT

NAMPURIRA EDSON

SIGNATURE

... ~~ ..................
DATE

..... P.l }.~%.1 ~ !.1.................

 APPROVAL
[ have approved the mentioned final year report to be presented as a partial requirement for
the acq uisition of Bachelor of Laws at Kampala International University

(SUPERVlSOR)

Mrs. Kanoel Rose Mary

SIGNAT~
.~0.......................... .

ii
 DEDICATION
I dedicate this work primarily to the almighty God for his guidance and mercy throughout my
studies. I also dedicate this work to my Dad Mr. Tugume Justus and Mum Mrs Tumuhimbise
Justus and the entire family for the support, love and care they have given me throughout my
studies.

iii
 ACKNOWLEDGEMENT

I wish to thank the almighty God for giving me the strength and courage to pursue this
project. Let me also acknowledge the immense support and assistance rendered by my
supervisor Mrs. Kanoel Rose Mary who was available at all times to guide me throughout the
project.

I also wish to express my sincere gratitude to my family members more especially my dad
Mr. Tugume Justus and Mum Mrs. Tumuhimbise Justus for the moral and financial support
rendered towards the completion of this project.

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 TABLE OF CONTENTS
DECLARATION ... ................... ................... ........................... ....... ........ ......... ... .................................. i

APPROVAL ............. ........... ... ......... ...... .... ................. ....... ........................................... ....... ............... ii

DEDICATION ...... .. ......................................................... .......................... ........ .. ........................... .. . iii

TABLE OF CONTENTS ........ .... ...... .. .................. ......... .................................... .. .................. .. ...... ..... v

ABSTRACT ...... .................................. .. .............................. .. .... .. ... .. ......... ................................. .... . viii

CHAPTER ONE ........... ............ ......................... ... .... .... ... ......... ... ... .................................. .. ... ........... .. 1

1.0 BACKGROUND TO THE STUDY ........................ .. ......... .... ...................................... .. ......... ..... . 1

1.1 Problem Statement ...... ...... .. ....... .... .... .. .... ............. ....................................... ......... ...... ...... ......... 5

1.2 Objectives ........ ......... ..... ..... ... ... ............................................................. ..... .............................. 6

1.2.1 Main objective .. .... .. ... ........ ............. .... .......... ......... .. ..... ...................... ...... ... ........ ................... 6

1.2.2 Specific objectives ...... ...... ............................................ ..... ........... ............ .. ............................ 6

1.3 Research Questions .............................. ...... ...... .... ....... ....... ....................................................... 6

1.4 Significance of the study . ......................... ..... ...... ................................... ................................... 6

1.4 Scope ofthe study ..................................... ............ .............. ....... .. ........................................ .... .7
1.4. 1 Geographical scope . ............................................. .... ............ ......... ......... .......... .......... ..... .. .... . 7

1.4.2 Content Scope ........ .. ......................... ............................................. .. ........ ....... ...... .. ............... 7
1.4.3 Time scope . ... .... ................................................................................. ............. .. ........... .......... 7

1.5 Research Methodo logy . .................................. .... ....... ....... ..... .... .. ..... ................................ ......... 7

I. 7 Literature Review .. .. .......................................... .. .. .......... ..................................... ..... ..... .. ..... .... 8

1.8 Chapterisation ... ........ .. .. .. ...... .... ... ....................................................... .. .......... ... ....... .... .......... 11

CHAPTER TWO ......................................................................... ........ ... .......... ................................ 12

THE LEGAL AND INSITUTIONAL FRAMEWORK FOR THE PROTCTION OF TENANTS ON

LAND IN UGANDA ............................................ .......................... ............................................. .... . 12

2.0 Introduction .. .. ....... .. .. ...... .... ........... ....... ............................................. ......... .. .... ..... .. ........ .. ..... 12

2.1 .1 Uganda's Constitution ..................................... .. ........... ..... .... ..... ......................................... . 12

2.1.2 The Land Act Cap 227 ..................................................................................... .. ................... 13
2. 1.3 The Land Act and customary law ............................................................... ........................... 16

2. 1.4 The Registration of Titles Act Cap 230 ........................ .... ................... .. ........ .. ..... ................. 19

2. 1. 5 The National Environment Act cap 153 .. ......... .. ....... ....... ........ ... ........ ............................. ..... 25

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 Use of Criminal law ....................... .. ........ .. ..................................... ... ........... ... .......... ................... 27

2.2 Institutional framework ..................... ........ .... ......... ... ........ ................................................... ... 28

2.2. 1 Uganda Land Commission (ULC) .............................................. ... ................ ..... .... .... ........... 28

2.2.2 Ministry of Lands Housing and Urban Development (MLHUD) ........................................ .. . 29

2.2.3 District Land Boards and Land Committees ..... .... ......... ... .................................... .. ....... ........ 30

2.2.4 Buganda Land Board ...... .......... ............. ....... .. ... ......... .... ......... ............... ............................ .. 33
2.3 Conclusion ......... ..... ..... ....... ..... ................................................. .......... ........ ..... ........ ..... .......... 34

CHAPTER THREE ... ... ............. ......................... .. ......... .. .... ... .... ... ................................................... 35

AN ANALYSIS OF THE RIGHTS OF THE TENANTS ON LAND fN UGANDA .... .... .................. 35

3.0 lntroduction ... ........ ... ........... .. ........... ... ........ ... ......................... ............................................. ... 35
3. 1 Types of land tenure in Uganda .... .. .......................................................... ........... ... .......... ....... 35

3.1.1 Freehold Tenure ............................................... .............. ......... ............................................. 35

3.1.2 Customary Tenure ............. .... ... .. .. .... ...... .............. ................ ... ... .. .... ..................... ............... 36

3.1.3 Leasehold Tenure .... .......................................... .. .. ...... ... ........... .... ........................... ............ 3 7
3. 1.4 Mai lo Tenure ........ ........... ......... .. ........ ..... ....... ...................................... .......... .......... ........ .... 38

3.2 Protection of tenants: The relationsh ip of landlords and tenants on registered land ................... 39

3.2.1 Payment of nominal ground rent and termination of tenancy ............... ................................. .40
3.3 Compulsory Land Acqu isition and Compensation and its effect on tenants .............................. 44

3.4 Rights and Duties of Tenants by Occupancy and Kibanja Holders .......................... ............. ..... 45
3.5 Conclussion ............................................................................... .............. ........ ......... ......... ...... 46
CHAPTER FOUR ..... ............. .. ........... ... ................ .......... .... ........... .................................................. 47

THE NATURE OF THE RELATIONSH IP BETWEEN THE LAND LORD AND T HE TENANT .. 47

4.0 Introduction .................................................... ................ ............ ......... ........ ... ........ .. ............... 47

4. l The Relationship of Landlord and Tenant .. .................................................. .. ......... .. ......... .... .. 48

4.2 Challenges that exist between Land lord and Tenants .............................. .. .......... ....... ... ......... .. 52

4.3 Factors Affecting the Landlord Tenant Relationship ............................................................... . 55

4.4 The cause of evictions and the problems of the current law ............................................. .. ....... 60
4.5 Conclusion .......................... .................................... ...................... .. ......... ......... ........... .. ......... 63

CHAPTER FIVE ............. .................................. ................. ..... ....... .. ......... ....................................... 64

FfNGINGS, RECOMMENDATIONS AND CONCLUSS ION .......................................................... 64

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 5.0 Introduction ....................................................................................... ...................................... 64
5.1 FINDINGS .......................................................................... .................................................... 64
5.2 Conclusions ..................................................................... ..................... ................................... 66
5.3 Recommendations ................................................................................................................... 66
5.3. 1 Amend the Land Act to remove internal conflict.. ................................................................. 66
5.3.2 Designing an effective and sound land registration and titling system .................................... 67
5.3.3 Introduction of land taxation, fines and penalties ................................................................... 67
5.3.4 Transforming land ownership arrangements from communal to private land ownership ........ 67
5.3.5 Curbing land conflicts ........................................................................................................... 68
5.3.6 Fair enforcement of existing law for both tenants and landlords ............................................ 68
5.3.7 Surveyors ............................................................................................................................. 69
5.3.8 Improvement on communication skill ....................... ............................................................69
REFERENCES ................................................................................................................................. 71

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 ABSTRACT
This paper was to analyse the legal regime regarding the rights of tenants on land in Uganda: a
case study of Wakiso district. The researcher used a doctrinal methodology of research to
analyze the relationship between the tenants and landlords in Uganda and to also analyse the
legal and institutional framework governing the rights of tenants in Uganda today. In attaining
the aim of the study, data was obtained from primary and secondary sources included
journals, textbook, unpublished past projects, and internet.

It was recommended that complaints should be dealt with internally or at a local level
wherever possible and there should be set procedures for monitoring and reviewing
shortcomings in service provision so that landlord-tenant relationship could aid investors in
harnessing investments in real estates.

viii
 CHAPTER ONE

1.0 BACKGROUND TO THE STUDY.

According to S. l of Registration of Titles Act 1 Land is defined to include Messuages,
tenements and hereditaments corporeal or incorporeal, and in every certificate of tittle,
transfer and lease issued or made under the Act. "Land" also includes all easements and
appurtenances appertaining to the land described there in or reputed to be part of that land or
appurtenant to it.

It is also important to note that a tenant on land refers to any person who holds or possesses
land or tenements by any kind of right or title. 2 The same position is also stressed by the land
Act3 .

The existence of multiple and overlapping interests in the same piece of (mailo) land is of
historical and contemporary significance, having been pioneered by the introduction of
individualized private property claims to land by the British; first in Buganda, Ankole and
Toro. 4 For Buganda, land was, prior to the coming of the British for most parts communally
owned, under the guidance of clan leaders or chiefs, on the basis of agency of the people and
the king as and ultimate landlord- Ssabataka. 5 On the basis of the 1900 Agreement, the king,
chief and some notables were given exclusive claims to land as individual property- by title. 6
This removed land from the commons and destroyed the agency of the people; indirectly, the
greater community lost claims to the intrinsic ownership of land. They became tenants of the
new landlord with title. To Batungi, "the chiefs were not aware that the land reform had
replaced the kiganda concept of landlordism, in terms of which the chiefs 'owned' the people

1
Act Capt 23
'This is also reflected in the Black's law dictionary 8" Edition Page 1506.
3
s. 29
4
See, the Buganda Agreement of 1900,available at, http://www.buganda.com/bugal900.htm (accessed April 20,
20 19) and the Ankore Agreement of 1901, available at https://affiendofankole.wordpress. Com/20 11/l 0/20/the-
ankole-agreement-190 1/ (accessed April 21 51 20 19) and Toro Agreements of 1900, available at
http ://nointervention.com/archi vel Africa/U ganda/8 ritish Protectorate/taro agreement _1900 .htm (accessed April
21st 2019).
5 Disani Batungi, land reform in Uganda: towards a harmonized tenure system, fountain series in law and
business studies, Fountain Publishers Kampala (2008) at61.
6 !d., at 59-60.

1
living on their estates, w ith the English concept of landlordi sm where the land lords owned the
land itself." 7

The tenants retained some rights to continue using their land. These were simultaneou sly
enj oyable with rights of the landlord on the same piece of land, although the landowners'
rights arising from the above agreements a re greater in status compared to those of the
tenants. Since the prototype of distribution unde r the 1900 Agreement followed royalty, and
class among others, the resu lting ownership of la nd followed classified identities in favo r of
the royals and ru ling class and elites; thereby g ivi ng power over the tenants. 8

The asymmetrical power patterns led to exploitation of tenants by their landlords, leading to a
need to streamline landlord and tenant relationship. Indeed, the land law legislative
framework of the 1920s such the Busulu and Envujjo Laws of 1928 carried an agenda of
stream lining relati onships between the tenants and land lords; evictio n was o nly possible for
non-payment of the stipulated rent often shillings by the tenant to the land lord. 9 however that
merely streamlining the parallel claims to land a t that time did not solve the underlyin g
tenuria l inadequacies and ne ither cou ld it de liver contentmen t on the part of both tenant and
landlord ; the outbreak of the Bataka moveme nt is a classical illu stration of the above. 10 T he
problem o f para llel interests and conflicts exists to-date since the land is still claimed by
successors in title of the 1900 landlords and tenants o n their land. Rugadya has argued that the
adoption of a similar language of ' streamlining ' in restoratio n of the pre 1920s position, in the
contemporary legal framework, in the context where la nd has increased in value, does not
solve the mega underlying problematic issues that a re as a result of overlapping and perpetual
claims to land. 11 Since the laws seem un favo rable to the land lords, they by-pass them, sa le

7
ld ., at 65.
8
See, Mafeje, A, Agrarian Revol uti on and the Land Question in Buganda( No. 32), Institute of Social Sludies
(ISS) Occas io nal Papers, The Hague ( 1973).
9
See, Th e Bus ulu and Envujjo Law of 1928.
10 Okuku. J.A,The Land Act ( 1998) and Land Tenure Reform in Uganda, Africa Development , Vo l. XXX I, 2006

pp 1-26 at 8.
11
Margaret Rugadya, Escalating land conflicts in Uganda: A review of evidence from recent studies and
surveys, June 2009 (for the International Republican fnstitule-IRJ) 7-8.

2
their land to persons that have leverage politically, militarily or financially to carry out
evictions. 12
During the Idd Amin's reg1me, they e nacted the Land Reform Decree of 1975, which
converted all land into leases including the mailo and freeho ld estates. The effect of thi s law
was that it which essentially sought to overha ul the country's land tenure system. Under the
Decree a ll land in Uganda was declared to be public land. Land owned in freehold was
converted to leases he ld from the government subject to development conditions. With
respect to customary la nd tenure, the Decree removed the protection customary
landowne rs had previously enjoyed under the Public Lands Act 1969 . The Decree
empowered the government to lease any land occupied by customary tenants to any person
(including the occupants) witho ut the consent of the occupants. The government's on ly legal
obligation was to pay compe nsation for the improvements. It is the NRM Government,
wh ich, unde r the 1998 Land Act, reinstated the security of te nure of bibanja holding and the
freehold and mail o land inte rests.

T he constitution vests land in the c itizens of Uganda 13 With the exception of Buganda (centra l
region) a nd urban areas, most la nd in Uganda is held under customary ten ure. As may be
recalled , hitherto customary landowners were legally 'tenants at will ' on government land.
Under the Land Act 1998) customary tenure, like freehold tenure, enta ils ownership of land in
perpetuity. 14

From the above some rights of tenants are a result of the overla pping and hierarchically
diffe rent inte rests in land that have origins in Uganda's hi story. The landlords have perpetual
ownership of the la nd, yet these are encumbe red by the ri ghts of tena nts by occupancy, whic h
too are of a perpetual nature and are protected in law. 15 The contestation is therefore about
who has better leverage to contro l access and use of land. T he Land Act Cap. 227 (as

12 id
13 Owned in freehold, mailo (quasi- freehold), lease hold and customary tenure Artilce 237 (1)& (3) 1995
Constitution of th e Republic of Uganda
14
Section 4(1)(h) and 4(2).
1s La nd Act Cap 227, Section 3 I (I).

3
amended) is shrouded in ambivalence in its protection of either the landlord or tenant. 16 It
consequently becomes important to determine the efficacy of this dual protecting legal regime
to promote the rights of tenants and at the same time balance them with those of landlords, in
order to take benefit from the law as is.
Presently, the rights of tenants in Uganda seem to be at stake and this cannot be ignored hence
the need to look at this point from a global perspective. 17 • They are partly fueled by the
increasing demand for land for a number of reasons: The World Bank notes that there is need
to boost agricultural production by 70% to cater for the increasing population which is
estimated to shoot up by two billion by the year 2050; 18 More so, international investors have
a high demand for land in order to respond to and also reap from the steady increasing food
prices and demand for biofuels; 19 third, the desires of governments to fast track development
of their countries by encouraging foreign investment as opposed to small scale farming. With
this, governments give away land to the investors.20 Lastly, greed and increasing speculation
about land in Uganda and the weak land governance structures on the land and evictions are
some of the reasons why rights of tenants continue to be at stake. 21

In Uganda, there have been a number of cases cited, in which tenant have lost their rights over
their land in development related projects, and these have been studied and documentedY
What is remarkable about some of these cases are: the disregard for land rights of landowners
that are displaced 23 ; a failure to heed to international standards that require stake holder
inclusion and full disclosure of information about the deals; and lastly the weak land
governance within which they take place. 24

16
See the Land (amendment) Act, 2010.
17
Rose Nakayi
18 The World Bank, Washington, Apr 8 20l3 (IPS) available at: http://www.ipsnews.net/2013/04/worldbank-to-
strengthen-focus-on-land-rights/(accessed on 6'h May 20 19)
19 id
20 id
21
See, Rose Nakayi, The Legal And Policy Framework On Emerging Trends of Large Scale Land Acquisition
and Implications for Women's Land Rights in Uganda, Center for Basic Research, November 2015
22 National Association of professional environmentalists & Friends of the Earth, Land, Life and Justice:

How Land Grabbing is affecting the Environment, Livelihoods and Food Sovereignty of Communities.,
at 9 -l4April 20 l2, Available at https://www.foeeurope.org/sites/default/files/news/foei_Iand_
grabbing_in_uganda_230412.pdf(accessed June yd 20 19).
23
ibid
24
ibid

4
The paper makes the argument that even though there is a legal and policy framework in
place, not all its content would have an effect o f promoting a nd protecting the rights and
interests of tenants. The law and policy is ambivalent in its content; creating wide space for
the continued dual carriage of rights to land for both landl ord s and tenants in circumstances
that leave the tenant a t risk of eviction. Amidst high levels of limited implementati on of some
of the relatively progressive provisions for the tenants that are in fragmented laws and
policies, their protection remains a me re perception embedded in the law, with limited
practical relevance.

l.lProblem Statement
Uganda has a robust legal regime and relatively progress ive policy frameworks o n land rights
protection. These include the 1995 Constitution, the Land Act Cap 227 , (as amended) a nd
Regu lations made thereunder, the Mortgage Act No. 08/2009 the Land Acquisition Act Cap.
226 and the National Land Policy 20 13. Inte resting ly however these legal documents seem to
be rarely in force as to protecting those they intend to protect. Tena nts have a number of rights
which include, right to occupy land under the laws of Uganda, the rig ht to ente r transactions
with respect to the land they occupy with the consent of the registered land owner, wh ich
sho uld not be denied on unreason able grounds. 25 The requirement unto tenants by occupancy
to give the land owne r first option where they wish to se ll their interest and vice versa where a
la nd owner wants to sell the land. Th is must be on a will ing buyer willing seller basis26 the
effect of this is that they must also be g ive n the right of first o ption to buy the land if the land
owner wants to se ll the land 27 , A person who buys registered land w hich has tenants by
occupancy must respect and observe the ir rights that is to say he or she must not evict them
except if he or she obtains a court orde r of evic tion for non-payment of the a nnual nom inal
ground rent. 28

25
Section 34 of the Land Act
26
Section 35 of the Land Act
27
Marko Matovu & Others v. Mohammed Sseviiri & Others Court of Appeal Civil Appeal No.7 of 1978 and
Kampala District Land Board & Another Vs. Venansio Babweyaka and Others Supreme Court Civil Appeal
No.2 of 2007.
28
Section 32A of the Land Act as amended in 2010

5
Realities on the ground however show increasing cases of land rights violations as a result of
a number of factors including evictions from land and weak land governance. Uganda's legal
and policy frameworks have to a great extent remained on paper, and not been translated into
reality to benefit potential victims and actual victims of evictions. Official rhetoric is usually
to the effect that implementation is in its infancy, even after over fifteen years after the
passing of the Land Act, 1998. This paper therefore seeks to analyze the rights of tenants on
Land in Uganda and assess the effectiveness of the current legal regime in protecting these
rights.

1.2 Objectives

1.2.1 Main objective

The main objective of the stud y is to critically assess the current legal regime and its
effectiveness in protecting the rights of tenants in Wakiso District.

1.2.2 Specific objectives

To exam ine the rights of the tenants on Land in Uganda.

To examine the legal and institutional framework on rights of tenants in Uganda.

To discuss the remedies avai lab le to both tenants and land lords in Uganda.

1.3 Research Questions

What is legal and institutional framework protecting rights of tenants on land in Uganda?
What are the challenges affecting the landlord- tenant relationsh ip in Uganda?
What are the possible strategies on legal regime add ressing the rights of tenants in Uganda?

1.4 Significance of the s tudy.

The study will be sign ifi cant in the fo llowing ways.
The study wi ll be significant in analyzing the challenges faced by the tenants in the process of
exercis ing their rights and the legal procedures taken by the current legal regime to help
tenants solve these problems.

6
The research findings to a large extent improve on the researcher's knowledge and enable on
practical approach in solving issues of tenants in Uganda.

1.4 Scope of the study.

1.4.1 Geographical scope.

The study will take a specific approach and will look at categorized cases of enjoyment of
rights of tenants in Uganda by balancing the same with the landlords. [twill specifically cover
Wakiso district which is located in central part of Uganda alongside Kampala district, and
then zero down to a specific case of evictions of tenants by occupancy within the central
region; using examples from field research findings in Wakiso district which is rural urban
that allows comparison in the nature of cases and legal needs of the victims. As the literature
shows; evictions have been widely studied.

1.4.2 Content Scope

The study will cover the relationship between tenants and landlords to their rights in Uganda
and shall be restricted to identifying the legal regime and remedies of both the tenants and the
landlords not necessarily to offer a detailed report of fashioned account on tenants in Uganda.
Where necessary, reference will be made to global trends for purposes of showing how the
local plays out in the context of rights of tenants and vice versa.

1.4.3 Time scope.

The study will consider a period of pre-colonial, during, and post-independence. As for
purposes of compilation of data and computation of the same, the researcher hopes to do this
in a period of four months.

1.5 Research Methodology.

This section covers in detail the research methodology that the research will use in collecting
and computing the data up to when a final research paper will be written. The researcher will
use doctrinal method of research.
The researcher will collect data from both Primary and secondary sources, Primary sources
include statues e.g. the 1995 constitution of the Republic of Uganda, land Act Cap. 227,

7
Registration of Land Titles Act Cap 12, etc. as sources of Primary information and the
Secondary information will be extracted from newspapers, journals, textbooks plus the
already existing work on internet and magazines and other sources.

1.7 Literature Review

The subject of this study has been commented on by several scholars and writers, whose
opinions are reviewed under the sub headings below. The lite rature reveals a gap that this
study intends to fill. There seems to be a general belief that Uganda has good land laws and
implementation is the problem. This study does not dispute the loopho le created as a result of
the paucity of effective implementation of the law, but goes ahead to engender an argument
that the existing legal and policy framework is not the kind that would deliver strong
protection to the tenants by occupancy from eviction, even if it was fully implemented. This is
more so due to the ambivalence in its approach towards the protection of either landlord or
tenant and/or both. The situation leaves the status quo of the dual carriage of rights/claims to
land by land lord and tenant intact, making evictions em inent.
There is a great deal of evidence from a number of studies to the effect that land rights of
tenants are disrespected. 29 These also indicate the drivers of evictions or the justifications that
have been put across for acqu isition of land in Africa, in some instances leading to evictions.
A number of reasons advanced in justifications of large scale land acquisitions include the
imperative to boost agricultural investment for development and increased food production.JO
[n pursuit of the foregoing among others, roughly over 227 million hectares of land in sub-
Saharan Africa have either been sold or leased to international investors and multinational
companies. 31
Uganda' s land tenure system has since history allowed for overlapp ing interests in and
simultaneous claims to the same piece of la nd , thereby increasing propensity to land

29 ld.
30
See, Lorenzo Cotulaet a l, Land Grab or Development opportunity? Agricu ltural investment and international
land deals in Africa, IlED and [f AC, 2009 at 5 & 8,avai lable at http://pubs.iied.org/ pdfs/l256LIIED.pdf,
(accessed November 23, 20 15).
31
Oxfam, supra note 20, at 2.

8
conflicts. 32 Land conflicts, coupled with draconian land law reforms such as the Land Reform
Decree of 1975 explain the tenure insecurity that characterized the pre-1 995 era in Uganda. 33
The Land Reform Decree made all land in Uganda public land, controlled by the Uganda
Land Commission, and converted all mailo land into leases of 99 years, thereby annihilating
individual/perpetual private property rights to land in Uganda. 34 This was to promote capitalist
uses of land. 35 The Post 1995 Land law reforms are therefore considered trail blazers in
changing the status quo. The Constitution of Uganda Article 237 (l) and (2) makes provision
for Ugandans to own land, under any of the recognized land tenure systems such as mailo,
customary, etc. It is argued among others that the constitutional and legal regime aims at
improving security of tenure; by returning land from being a public good held by the
government to a commodity that individuals can own. 36 [n addition, Rugadya argues that they
should be seen as strides in the right d irection at streaml ining the relationship between land
owners and their tenants; a relationship that has historically been fraught with friction and
contestation. 37 Indeed, there is a causal relationship between such contestations and evictions
from land, and therefore efforts at addressing them may have an effect on reducing evictions.
[n addition to the above, a number of scholars and commentators have praised the robust
decentralized institutional framework anchored in the Constitution 1995, and fully laid out in
the Land Act 1998 (now Cap. 227), as among the grand initiatives at resolving the land related
conflicts (leading to evictions) in Uganda. 38

Rugadya has given a highli ght of the challenges that may impair success of the institutional
framework to include: the large numbers of in stitutions requires proper coordination which

32 Klaus Deininger, et at, lncidence and lmpact of Land Conflict in Uganda, World Bank Policy Research
Working Paper 3248, March 2004 at 5.
33 id
34 See The Land Reform Decree, of 1975 , long title.
35
Elliott D. Green, Ethnicity and the politics of Land Tenure Reform in Central Uganda, Com monwealth and
Comparat ive Politics, Vol. 44, No.3 , 370-388 (November 2006) at 375
36
Margaret Rugadya, Land Reform; The Uganda Experience, Uganda Land Alliance, Paper at the Workshop on
Land Use and Villagisation in Rwanda, by RlSD (Rwanda Initiati ve for Sustainable Development) in partnership
with Oxfam GB, Hotel des Mille Collines, Kigali , Rwanda. Available at http://webcache.google userconte nt.
com/search?q caRugandh e: i3jcqgPnuwiJ :risdrwanda.org/spip.php%3Farticle32+1and
+reforrn+the+ugandan +experience+%28+%22rugadya%22&cd= I &hl =en&ct=clnk(accessed May 17, 20 19).
37
id
38 Rugadya, supra note 40, and Deiningere/ a/, supra note 35.

9
has not been achieved; the lower institutions in the decentralized stru ctures are not well
empowered to dispense w ith their mandate, a nd also limited publi c awareness of the content
o f the legal regime and how to seek to benefit from it. 39
Connected to the above, Kisekka has attributed the occurre nces of evictions from land in
Uganda to the governme nt' s failure to empower institutions that have mandate to intervene in
land matters.40 Such institutions include: Sub-county, urba n and district land tribunals; and in
his opinion if these were facilitated, they would settle disputes on land in the ir areas.4 1
Unfortunately, not all these institutions a re still of releva nce today. Land Tribu nals no longer
lega lly e xist. After the expiration of thei r statutory ma ndate, Magistrates courts were given
mandate to take over what the Tribuna ls used to handle. T his was fo llowing a Practice
Direction No.I o f 2006 which provided that following the expiry o f contracts of chairpersons
and members of the District Land Tribuna ls, Magistrates' courts pres ided over by a
Magistrate Grade I and above sha ll continue to have jurisdictio n in land matters in accord ance
with section 9 5(7) of the Land Act. Thi s Practice Directio n was made to e nable Magistrates'
Courts to exercise j urisdiction in land matters until new chairpersons a nd membe rs of District
La nd T ribunals are appointed or otherwise. Sarah Nakku vs. Commissioner f or Land
Registration. 42 These have not been ap po inted yet a nd manda te is with the Magistrates Courts.
T here a re procedura l sho rtfalls in the operatio n o f Mag istrate Courts, which furthe r entrenc h
land conflicts instead of reso lving them. Kisekka gives a n example of Magistrate Courts
which dete rmine cases witho ut co nsultatio ns with the local leaders; do not visit the la nd in
questio n before makin g a decision as required by law and a lso instances whe re unscrupulo us
land dealers co nnive with magistrates to conceal co urt summons from biba nja ho lders to
portray the latter as having defied co urt-thus ruling in favo r of the plaintiffs.43 T he result is
une nding litigation, desp ite the fact that a c lear institutional framework is laid out in the law.
This dile mma can be attributed to the fact tha t some of the in stitutions are operating with
d iffi c ulty and othe rs are not yet on the gro und.

39
Rugadya, supra note 39.
40
Moham med K isekkaBantubalam u Land Evictions S how A Failed Land Po li cy, the Observer Newspaper, 29th
march , 20 13, at.23
41 ld
42 HCCA No. 064/ 20 I 0
43
ibid

10
1.8 Chapterisation
The study is divided into five chapters. Chapter One the Research Proposal, which Sets out
the background of the study, the focus and objectives of the study, the significance of the
study especially to Uganda, the hypothesis, the methodology of the research and the literature
review.
Chapter Two will explore into the legal and institutional frame work of land administration in
Uganda. The different land laws like the 1995 Constitution of the Republic of Uganda, Land
Act, the Registration of Titles Act will be Explored and their effectiveness examined in this
chapter.
Chapter Three will examine tenure system and the types of land tenure recognized by the
existing legal regime on land administration in Uganda, the chapter also discusses the legal
protection of tenants especially the relationship between landlords and the tenants,
Compulsory Acquisition of land and the rights of tenants on land.
Chapter Four examines the challenges facing tenants on land and the possible remedies to the
tenants in regards to enjoyment of land.
Chapter Five examines the reforms and recommendations to modernization of land
administration and the position of tenants.

11
 CHAPTER TWO

THE LEGAL AND INSITUTIONAL FRAMEWORK FOR THE PROTCTION OF

TENANTS ON LAND IN UGANDA

2.0 Introduction
This chapter discusses the laws regulating land registration m Ugand a and discusses the
position and protection of tenants under the existing legal regime for example the constitution,
the land Act and the registration of Titles Act. The chapter also discusses the role mandated
institutions in admini stering land in Uganda.

2.1.1 Uganda's Constitution

The Constituti on contains a Chapter devoted to land and the environment. 44 This states that:
'Land in Uganda belongs to the citizens of Uganda and shall vest in them in accordance with
the land tenure systems provided for in this Constitution.' 45 Non-citizens are onl y permitted to
lease land. The Constitution also provides for a Uganda Land Commissio n, District Land
Boards and Land Tribunals, whose functions are described in more detail be low.

The Constitution sets out some quite detailed provis ions in relation to land rights, while
leaving other provis ions to be determined by subsequent legislation. [t permits the
Government, or a local government body, to acquire land in the public interest, subject to the
provis ions of Article 26 of the Constitution, which protects people from being arbitrarily
deprived of their property rights. 46 It states that the conditions governing s uch acquis iti on
shall be as prescribed by Parliament. The Constitution also states that: ' the Government or a
local government as determined by Parliament by law, shall hold in trust for the people and
protect, natural lakes, rivers, wetlands, forest reserves, game reserves, national parks and any
land to be reserved for ecological and touristic purposes for the common good of all
citizens' 47 'Parl iament shall make laws to e nab le urban authorities to e nforce and to

" Chapter 15, Articles 237-245.

'' Article 237.
6
' Article 237 (2Xa).
" Art icle 237 (2Xb).

12
 implement planning and development.' 48 Any lease which was granted to a Ugandan citizen
out of public land, including statutory leases to urban authorities, may be converted into
freehold in accordance with a law which shall be made by Parliament. 49

The Constitution restores the four land tenure systems that existed before the Land Reform
Decree 1975, namely: (a) customary; (b) freehold; (c) mailo; and (d) leasehold. 5° It also states
that: 'On the coming into force of this Constitution (a) all Ugandan citizens owning land
under customary tenure may acquire certificates of ownership in a manner prescribed by
Parliament; and (b) land under customary tenure may be converted to freehold land ownership
by registration.' 51 The Constitution guarantees that 'the lawful or bona fide occupants of
mailo land, freehold or leasehold land shall enjoy security of occupancy on the land' 52 until
Parliament enacts an appropriate law regulating the relationship between the lawful or bona
fide occupants of land 53 and the registered owners of that land. Such a law should be enacted
'within two years after the first sitting of Parliament elected under this Constitution. ' 54

2.1.2 The Land Act Cap 227

The Land Act came into force in 1998, following five years of vigorous and controversial
debate. 55 Most of its provisions had been previously signalled in the Constitution and the law
was intended to give them practical effect. The two most important issues covered by the
Land Act are ownership and tenure rights and land administration, which are described below.

While the previous Land Reform Decree 1975 had sought to increase control over the land by
central government and make tenure conditional on the land's development, the Land Act is
part of a very different policy. lt expressly limits government owned land to that which was
being used by the Government when the Constitution of 1995 came into force. 56 It stipulates
that if the Government requires additional land it must purchase this, either from a willing
seller or through compulsory acquisition in accordance with the rights to private property

~s Article 237 (7)

w Article 237 (5) and (6).
50
Article 237 (3).
; 1 Article237(4).
52 Article 237 (8),

;; Article 237 (9}.

H ibid
')John T Mugambwa, Principles of Land Law in Uganda. Fountain Publishers. 2006, p.8.
;~, 22 September 1995.

13
contained in the Constitution. 57 An underlying assumption of the Act is that allowing a system
of private individual ownership of land to develop in Uganda will boost the country's
economic and social development. The Act also recognises customary ownership rights, while
providing a mechanism to transform such land into freehold title. This has been criticised by
some as providing a 'back-door' means for weakening the system of customary tenure, 5 8 but
this debate remains largely theoretical due to the lack of implementation of many of the Act's
proVISIOnS.

The Land Act cap 227 defines 'freehold tenure' as a tenure that derives its legality from the
Constitution and the written law. Freehold tenure may involve either a grant of land in
perpetuity, or for a lesser specified time period. The Act specifies that the holder of land in
freehold has full power of ownership of it. This means that he or she may use it for any lawful
purpose and sell, rent, lease, dispose of it by will or transact it in any other way as he or she
sees fit. No development conditions are imposed on the freeholder as the framers of the Land
Act cap 227 believed that the previous attempts to stimulate development through coercion
were misguided. It is instead hoped that the 'psychological sense of responsibility arising
from ownership' will be a more effective incentive for people to develop their land while
market forces will prove sufficient to deal with those who prove unable or unwilling to do
so. 59 Only citizens of Uganda are entitled to own land under freehold tenure. Non-citizens
may leasen it for a period up to 99 years6°

Leasehold tenure is a form of tenure whereby one party grants to another the right to exclusive
possession of land for a specified period, usually in exchange for the payment of rent. Any
owner of land in Uganda- whether through freehold, mailo or customary tenure may grant a
lease to another person. The Land Act 1998 does not specify any development conditions on
the leasing of land nor that it is used in any particular way. It is left to the two parties to
determine the conditions of the lease and, subject to these, the leaseholder is entitled to use the
land as he or she sees fit. In practice, much of the land that is leased was previously owned by

57
Land Act 1998, section 43.
'3 Adoko, 1997 Wildlife Authority. See also Judy Adoko and Ian Levine, Land Matters in Displacement: The Importance of Land Rights in
Acholiland and What Threatens Them, CSOPNU, 2004.
59 John T Mugambwa, Principles of Land Law in Uganda, Fountain Publishers, 2006. p.8.
60
LandAct 1998,section41(3).

14
 government bodies, particularly the Land Commission and the District Land Boards, and
these tend to impose some development conditions on the land's subsequent use.61

Where the land was previously held by public authorities, the Land Act Cap 227 enables
leaseholders to convert to freeholders subject to certain conditions. The leaseholder must be a
citizen of Uganda. The original lease must have been granted lawfully under the terms of the
Act and the leaseholder must have comp lied with all the conditions of the original lease. The
leaseholder must be able to satisfy a District Land Board that there were no customary tenants
on the land at the time when the lease was granted. If there were such tenants the board must
satisfy itself that these were duly compensated as required by law. On ly land -ho ldings of
under 100 hectares may be converted from leaseho ld to freehold unless the board is satisfied
that such a conversion is in the public interest. 62 Where a conversion involving land over !00
hectares is approved by the board the applicant must pay the market value of the land as
determined by the Ch ief Government Valuer. The conversion is completed by appropriate
registration under the Registration of Titles Act 1924.

The Land Act Cap 227 treats mailo tenure almost identicall y to freehold tenure. Registered
land can be held in perpetu ity and a mailo owner is entitled to enjoy all the powers of a
freehold owner. The only significant difference is that mailo owners shou ld not use these
powers against the interests of customary tenants, bona fid e or lawfu l occupants. 63 Th is
provis ion was introduced due to concern at the possible mass eviction of tho usands of peop le
who were occupying mailo land, as customary tenants or squatters, at the time when the Act
was passed. A similar concern had led the framers of the 1995 Constitutio n to pass
responsibility for determining who were ' lawfu l' and ' bona fide' occupants of land to the
legislature.

The Land Act Cap 227 sets out a procedure whereby people who were not ' lawful' or 'bona
fide' occupants of land at the time when the 1995 Constitution came in to force can regularise
their occupancy. Med iators can be appo inted by the authorities to help the two sides reach

61
Mugambwa, 2006, p.9.
62
Land Acl 1998, seer ion 29(2).
6l Ibid.

15
agreement, 64 although there is nothing to compel a land owner to allow such occupants to
remain on his or her land. These provisions do not apply to people who have occupied land
without the permission of the owner after the date on which the 1995 Constitution came into
force. Such people can be evicted at any time without notice, subject to some of the provisions
of the constitution.

The Land Act cap 227 deems a bona fide or lawful occupant of land that is registered in
someone else's name to be a 'tenant by occupancy'. Such a person is required to pay an
annual rent to the owner, but this is deliberately set at a nominal level, which does not reflect
the economic value of the land. So long as a tenant by occupancy continues to pay this sum,
continues to occupy the land and complies with the other terms and conditions relating to it,
he or she enjoys secure tenure. A tenant may also apply for a 'certificate of occupancy', which
provides documentary evidence that the named person has a right of occupancy over the
subject land.

The Act gives both the tenant and the landowner the right of 'first refusal' to purchase one
another's interest. This means that if either is considering a transaction involving the land,
they must offer it to one another first. This enables a tenant to convert his or her right of
occupancy to a mailo, freehold, leasehold or sub-lease, so long as the registered owner of the
land consents.

If the landowner sells or leases the land to someone else the tenant by occupancy retains his or
her existing rights, irrespective of whether a cetiificate of occupancy has in fact been issued.
This means that the new proprietor's title is subject to these rights, and this overrides the
principle of 'indefeasibility'. It is the purchaser's responsibility to discover whether such
tenant's exist even when this has not been officially recorded on the certificate of title.

2.1.3 The Land Act and customary law

One of the most innovative aspects of the Land Act Cap 227 is in the recognition it gives to
those who hold their land under customary tenure. With the exception of land in Buganda
(which is mainly held under mailo) and urban areas (where it is held under freehold, or

M Land Act 1998, section 90.

16
leasehold) most land in Uganda is held under customary tenure. The 1995 Constitution
restored recognition of the rights of those who held such land and the Land Act explicitly
recognised that customary law should regulate this form of land tenure.

The Government had previously enacted a law creating Local Council (LC) courts, which
replaced the lower level Magistrate courts and had the authority to deal with land rights
issues. The LC courts were intended to be less formal and more accessible than the Magistrate
courts and to enable local leaders to deliver justice to their own communities by drawing both
on formal legal principles and customary law.65

There are a number of different types of customary land tenure in different parts of Uganda. In
some places the land is held communally, in some it belongs to a particular clan while in
others it is held by individuals.

The Land Act cap 227 states that customary land tenure shall be governed by rules generally
accepted as binding by the particular community.66 Anyone who acquires land in that
community shall also be bound by the same rules. 67 The exceptions to this are that no custom
is permitted which is ' repugnant to natural justice, equity and good conscience, or being
incompatible either directly or indirectly with any written law' .68 Customary law is also,
obviously, subordinate to Uganda's constitutional provisions described above. The Land Act
1998 also specifically renders void any provision of customary rule or practice that denies
women, children or disabled persons access to ownership or use of land.

Uganda' s 1995 Constitution provides all holders of customary land with the right to obtain a
Certificate of Customary Ownership (CC0) 69 and the Land Act cap 227 specifies the
procedure for how such certificates should be issued. 70 The Act provides for the issuing of
individual, family and communal certificates and these will subsequently be taken as

65 Guidelines fo r Local Council Courts in the Resolution of land disputes, Ministry of Water, Lands and Environment, June 2005. This
prov ides a Guide to the Resistance Committee (Judicial Powe rs) Statute 1988 , which created the LC courts.
66
section 4 of the Land Act
67
ibid
68
Judicature Statute 1996, section 17( I).
69
Constitution of the Republic of Uganda 1995, Article 237(4Xa).
70
Land Act 1998, section 5.

17
 conclusive evidence of the customary rights and interests endorsed on the certificate.?' It does
not, however, change the nature of the land tenure system govern ing the land in question,
wh ich continues to be regu lated by customary law.72

The issuing of Certificates of Customary Ownership was, however, intended to introduce

more certainty into customary land tenure relations. Holders of such certificates cou ld use
them when carrying out transactions. The Act requires financial institutions to accept
Certificates of Customary Ownership as proof of title, which would enable holders to obtain
credit on security of their land and use the title as collateral when borrowing money to invest.
A ll transaction would need to be officially recorded and so it would become much easier to
build up official records relating to a particular piece of land. [f, for example, someone wished
to purchase a plot, or borrow money against its value, it would be easier to conduct such
transactions with certainty.

[n order to apply for a Certificate of Customary Ownership an app licant must first submit his
or her appl ication form, together with the req uired fee, to the District Land Comm ittee in the
local parish where the land is situated. The Land Committee is then supposed to survey the
land in question a nd confi rm its boundaries. The committee should also post a notice, in a
prescribed form , in a prominent public place in the parish in which the land is situated. The
notice should invite all concerned persons to a meeting, not less than two weeks from the date
on which it was posted, to consider the claim. 73

C laims of any other person affected by the land, for examp le, through rights of way, must also
be heard and the Land Committee can adjourn its proceedings if necessary to carry o ut more
detailed investigations. lf a dispute arises the land committee is not bound to fo llow court
room procedures, regarding the admissibility of evidence or examination for example, but it
must observe rules of natural justice to ensure that both sides' cases are fairly dealt with. 74

11
Ibid., section 5 and 9.
12
Land Act 1998, section 2 7
13 Ibid ., section 6.

" ibid

18
In conclusion of its hearing the Land Committee is required to write a report setting out its
findings with respect to the claim and its own conclusions and recommendations regarding the
application. This report should be submitted to the relevant land board together with the
original application. The Land Committee could recommend acceptance, rejection or
conditional acceptance of this application. 75

On receipt of thi s report the District Land Board can then decide whether or not to issue a
CCO. 76The board is not bound to follow the committee's recommendation and it can also
return the report to the committee to obtain further information. Once the board has made a
decision it must communicate this to the Recorder. Where the board recommends that a
certificate be issued the Recorder should do this, subject to any qualifications or restrictions
required by the board. 77

The Act also makes provision for customary owners of land to convert their tenure to
leasehold. It is not necessary to first obtain a Certificate of Customary Ownership in order to
do this, but the procedure required is very similar to the one described above.

The Land Act Cap 227 also provides for the formation of Communal Land Associations for
the purposes of ownership and management of land under customary law or other law.78 A
Communal Land Association may own land under a Certificate of Customary Ownership
leasehold or a freehold. Members of the association can also hold some or all of the land
within it in an individual capacity79 while other parts are set asid e for common use. 80

2.1.4 The Registration of Titles Act Cap 230

The most important issue in the Act is the establishment of the registrar under section 3 ofthe
R.T.A and the functions of therein. Section 3(1) of the R.T.A provides that the regi strar is in
charge of the office title and exercise the powers and duties that the Act bestows on him/herY

J; ibid
76
Ibid. section 8.
77
ibid
78
Ibid., sections 16 - 17.
79
Ibid. section 23.
80
Ibid. sections 25- 26.
81 Section 3(1) of the R.T.A

19
The maj or obli gation o f the registrar is to issue a certificate which is conclusive evidence of
title as provided fo r in section 59 of the R.T.A. The Act introduces the o f Torrens system of
Land registration thus the R.T.A of Uganda has two essential features thus the Title by
registration and Indefeasibility of title which make it distinct from other la nd recording
systems. Through those systems, that is the way how the torrens syste m of S ir Robert Torre ns
is applicable in Uganda.

Tti le by registration as a feature, is where the interests in land a re created or transferred by

registration under the R.T .A Act. 82 This provided for in section 54 of the R.T.A that no
instrument shall be effectual to pass any interest or interest in land unless it is has been
registered according to the section. 83 There fo re, the interests a nd estates are not transferred by
the execution o f docume nts under the commo n law doctrine. In Uganda today one to transfe r
an interest or an estate, the fo rmer and the latter must be registe red by the registrar who issues
a certificate of title. T hat certificate and the particulars of the ce rtificate a re the n entered into
the register book; a nd it sha ll be conclusive evidence that the person na med in the certificate
is the proprietor thus having the power to dispose off the land as prescribed by the Act. 84 In
Ndigejjerawa v Kizito a nd Kubulwamwana 85 , Kizito w ho was a registered proprietor of a
certain piece o f land agreed to sell it to Kubulwamwana a second respo ndent under a written
co ntract. After fo ur days, Kizito purpo rtedly sold the same land to N digejjerawa who was the
ap pe lla nt. T he appellan t went to the registrar of titles with the documents to transfer title in his
names. Late r, the second respo ndent also went to the registrar of titles to with the document to
transfer the same piece o f la nd in his na me. However, no ne o f the purported buyers got title
because a ll the docume nts presented were not in a registrable state. Ainley.J gave his
judgment that " ... No document or instrument can be registered unless it fit/fils the
requirements, and no instrument (ho·wever perfectly it fulfils the statutaty requirements) is
effectual to transfer any interest in land unless it has been registered ... " He based on the
Registratio n of T itles Ordinance which is equi valent to sectio n 54 o f the R.T .A. T herefo re, it
was he ld that none of the buyers got title since no ne o f their docume nts relied upon the

S! Source Book of Uganda's Land Law: John. T. Mugambwa. Page 142

83 section 54 of the R.T.A
8
' Section 59 of the R.T.A
85 ( 1953)7ULR 3 1

20
statutory require ment of the ordinance thus they were only entitled to damages or one entitled
to specific performance a remedy.

The applicability in general is that currently in Uganda no one can transfer an estate or interest
unless it is reg istered as required in the R.T.A by the registrar. Another app licabi lity is that
title does not pass by mere execution of titles. In Ndigejjerawa v Kizito and
Kubulwamwana 86, both the buyers executed documents but none o f them got the title. Even
the maxim of Equity that where equities are equal , first in time prevails did not ap ply. The
system is a lso applicable in the way that customary land tenure is not registrable under the
R.T.A. Therefore, the system started to register a ll the customary land thus issuing certificates
of ownership. This is evident in our section 68(2) of the Land Act 1998. However, the system
deals with the registered instruments such as mailo land, free ho ld land, lease ho ld and the
registered customary la nd. Under section 38 of the R.T.A thi s will be co ncluded by the
registrar issuing duplicate certificate, recording the proprieto r in the Register Book and
retaining a copy in his/ her file. Practically, this has led to the registration of land in Uganda.
Although the law is very clear that no instrument shall be effectual to transfer any
interest/estate in land unless it has been registered per section 54 of the R.T.A, the law does
not d eny unregistered instruments any legal efficacy. 87 In the actual sen se the statement
contradicts sectio n 54 of the R. T.A however this protects the unreg istered interests/estates. In
my view I see the doctrine of Equity being at play. Thi s is well illustrated in Souza
Figueiredo and Co. Ltd v Moorings Hotel Co. Ltd.88 The respondent by contract leased the
s uit of properties to the appellant for a period excess of three months. The lease was however
not registered. Before the time elapsed, the appellant vacated the premises in arrears. T he
respondent sued but the a ppe llant based on section 54 of the R.T.A arguing that the lease was
not effectual thus he was not liable to pay rent. The respondent argued that there was an
equitable remedy however the appellant said that equity could not overrid e the provisions of
the R.T.A. Sir Kenneth O'Connor said that although section 54 cou ld render instruments
ineffectual when they are not registered however, "[T} here is nothing in the ... [ACT} which

86
ibid
87
Source Book of Uganda' s Land Law: John. T. Mugambwa. Page 147
88
[1 960] E.A 926 (U)

21
renders such instrument as ineffectual as contracts between parties to them, there is nothing
in the ... [ACT} to say that unregistered instrument document purporting to be a lease of or an
agreement to lease land which is subject to the operation of the [ACT} for than three years is
void. In my view it can operate as a contract inter parts and can confer on the party in
position of intending leases a right to enforce the contract specifically and to obtain from the
intending lessor a registrable lease. " Therefore, it was held that the respondent was entitled
to the rent fro m the appellant since the latter had taken possession as a tenant at will.

As [said that there is an element of Equity being at play, this he lps the proprietors who cannot
register the instruments because they do not have mo ney to register to the registrar as per
section 3 of the R.T.A, if there is delay on the proprietors' part to register the instrument and
also if there is existence of fraud . [n Uganda, most of the instruments are not registered thus
the courts look into the matter and the doctrines of Equity be put in place. [n Katarikawe v
Katwiremu and another,89 Ssekandi.J. held that though in a contract of sale of land an
unregistered instrument of transfer is not effective to transfer title, the purchaser acquires an
equitable interest in the land, which is enforceab le against the vendor. Therefore, the law does
not totally undermine unregistered instruments if there is a reasonable defense submitted o r
the doctrine of Equity bein g at play.

[ndefeasibi lity of title as the second feature means that once a person is registered as the
proprietor of an estate or interest in land, the government guarantees that his/her title cannot
be divested or attacked by rival cla ims to the land. 90 Th is principle is not provided for in the
R.T.A however, it was developed by Professor Whalam. He described it as a " mosaic of
sections."Today, his princ iple can be evidenced our R.T.A cap 230 in form of sectio ns for
example section 59 provides that certificates offered by the registrar as the provisions provide
that they shall be received in all courts as evidence and shall be conclusive ev idence that the
person named in the certificate is the pro prietor. Thi s mean s that no one can come and eject
the person in possession of the land as lo ng as he has the certificate. Practically in Uganda,
there were many land proprietors who had certificates of title and they used them as

•N (1977) HCB 187 (unreported)

90
John T Mugambwa, Principles of Land Law in Uganda, Fountain Publis hers, 2006, p.73

22
 conclusive evidence thu s evicting other occupants on the land. This was main ly do ne m
Mubende district.

However, the law protects the occupant for example in new Land Bill that was passed on 27th
November 2009. This can also be illustrated in section 64 which provides the proprietor of
land or any interest sha ll except of fraud, hold the same subj ect to such incumbrances as
notified o n the fo lium of the register book constituted by the certificate of title. Briefly as
stated, the section says that the proprietor of land or interest shall not evict the settlers unless
he compensates them as per section 178 of the R .T.A since they w ill be violating section
29(2) of the Land Act cap277 if the occupants are bona tide and if it is the Govern ment
evicting, it wi ll also compensate the occupant(s) as per section 29(3)(a) ibid. T hus, the law
protects the settlers from such evictions.

The principle of indefeasibility is also app lied in section 176 of the R.T.A, it provides for the
protection of the registered proprietor against ej ectment exce pt in certain cases. Thus since
one has the title, it is conclusive evidence and ejectment w ill be vio lation of Article 26( 1),
(2) 9 1which provides for the protection from deprivation of property. This has however come
with exception such as mortgagee as against a mortgage in default; a lessor against a lessee in
default; where a person is a bona fide purchaser for value. 92 Artic le 26(2).

T he case of Lwanga v R.T.A93 the principle is clearly brought out. Briefly, the appl icant's
late father bought and but it was not registered into the deceased' s name. After his death, one
Katamba fraudently caused the land to be registered in his name. He later sold the same piece
of land to Salongo who became a bo na tide purchaser for valu e. In court of first instance, the
Magistrate convicted Katamba of forgery and o rdered the suit to be transferred to the
applicant. However, the registrar refused to transfer the suit to the appl icant. The app licant
appealed to the High Court. Odoki. AG.J upheld the registra r' s gro unds. He he ld that Sa longo
was a bona fide purchaser for value thus under our current sectio n 176 of the R.T.A his title
could not be impeached or cancelled notwithstanding that he acq uired hi title from a forge r.

91
The Constitution of the Republic o f Uganda
92
Registration ofTitles Act. Section 176
93
Miscellaneous Cause No. 7A of 1977;( 1980) HC B 24 (unre prted)

23
 Therefore, the case portrays the applicability of the principle of indefeasibility in the way that
a certificate is conclusive evide nce of the title. Thus there was no way the applicant would
challenge Salongo who was a bona fide purchaser for value and was not he was not the
fraudster.

The principle of indefeasibility however ids subjected to certain exceptions. These exceptions
are both created by statutes and others created by overrid ing statues. Courts a lso do exercise
their inherent jurisdiction. Thus, the certification of title will not be conclusive evidence when
any of the exception is be ing brought up. Therefore, through the exceptions, the torrens
system is applicable in Uganda. Exceptions within the R.T.A include fraud. Fraud is the
knowing misrepresentation of the truth or concealment of a material fact to induce another to
act to his or her detriment. 94 Section 178 of the R.T.A provides that a registered proprietor is
indefeasibility except in case of fraud. Thus the person whose title may be impeached must
prove the fraud. In Lusweswe v Kasule and Coulbally95 the exception of fraud was
established where a plaintiffs land was taken by the respondents whe n he was detained in
prison alleging that the latter had sold them the land. T he plaintiff sought an order of
cancellation of the title of the second defendant since his land was taken through fraud. The
judge held that there was suffic ient circumstantial evidence to establi sh fraud thus the plaintiff
got back his land. Public rights of way and easements under section 64 of the R.T.A is also an
exception. This is where a way is benefiting the whole public thus it is needed hence one' s
title w ill not be indefeasible. Where there is adverse position; the defendant being a bona fide
occupant under sectio n 29(2) of the Land Act, the title will also not be indefeasible. If a lease,
lice nse or other authority granted by the minister, 96the title also ceases to be indefeasib le. An
example is when there was construction of Entebbe road. The road was extended wh ile
construction thus the proprietors' titles were indefeasible by then. The title wi ll also not be
indefeasible when the land included was by wrong description. 97

9
' Black' s law dic tionary 8th edition: Bryan A. Gamer. Page 685
9
; C.S No. IOI0/83
%John T Mugambwa, Principles of Land Law in Uganda, Fountain Publishers, 2006, p.8
91
Registration ofT itles Act. Section 64

24
Overriding statutory provision is also an exception to indefeasibility of title. This is
enforceable against the registered proprietors however, this matter of statutory
interpretation. 98 An example is section 8 of the Access to roads Act Cap 350 which provides
for the right of way. Through caveats, the title will also cease to be indefeasible. In
Katarikawe v katwiremu and Anorther supra Ssekandi.J. held that taking possession of title
deeds by a purchaser is insufficient to protect an interest unless a caveat is lodged. This can
also be portrayed in section 187(2) of the R. T.A.

2.1.5 The National Environment Act cap 153

This Act establishes the National Environment Management Authority (NEMA) as the overall
body and principal agency responsible for coordinating, supervising and monitoring all
aspects of environmental management in Uganda. 99

NEMA is empowered, in consu ltation with the lead agencies, to issue guidelines and prescribe
measures and standards for the management and conservation of natural resources and the
environment. NEMA is mandated to-

• integrate environmental considerations into socio-economic development policies and

programmes;
• develop standards, guidelines, laws and other measures in environmental management;
and
• coordinate government policies, liaise with lead agencies and international
organizations in environmental management At the apex of NEMA is the Policy
Committee on the Environment, composed of l 0 ministers charged w ith various
sectors of environment. The Policy Committee is responsible for theformulation and
implementation of po licy guideli nes, and coordinating environmental policies of
various government 100 agencies.

The Act establishes the Board of Directors, who are appointed by the Minister, with approval
of the Policy Committee on the Environment. The members of the Board are appointed by
98 John T Mugambwa, Principles of La nd Law in Uganda, Fountain Publishe rs , 2006, p.88
99
s.4 of the Environment Act(1995) .
100
see s.7(2) of the Environment Act (1995)

25
virtue of their knowledge and experience in environment management. The principal role of
the Board is to oversee the operation, policy and to review the performance of Management of
NEMA and to establ ish procedures for the management of staff. They have basically an
administrative function.

The Board is given the mandate to appoint technical advisory committees, including those on-
soil Conservation; licensing of Pollution;biodiversity, and environmental Impact Assessment.

The Act also enables local administrations to be involved in the management of the
environment. The Act creates District Environment Committees, charged with the
management of environmental issues at the District level. Environment Committees are
created at the lowest levels of the local governmenl slructures to enable public participation in
environmental decision-making at those levels. 10 1

This kind of institutional framework ensures that natural resources are controlled and
managed by communities for their own benefit on sustainable basis. Sustainable Development
Measures under the Act

(a) Collaboration with local authorities

The Act requires that the Government to collaborate with the local governments in the
management of the following areas: 102 lakes and rivers; lakeshores and riverbanks ; wetlands;
hilltops, hill-sides, and mountainous areas; conservation of biological resources; forests;
planting of woodlots; and range lands, land use planning.

These environment management areas are spec ifically selected because of their immediate
relevance to community use and hence, the need to involve local communities. T he key
emphasis is to permit the use of resources within their capacity to regenerate.

(b) Enforcement of the Law

10 1 See sections 14, 15 and 16)

102
see part vii of the Act.

26
The Act provides for a variety of mechanisms to ensure that the law will be enforced, that go
beyond the traditional command and sanction approach of criminal law. The following are
some of the mechanisms:

Environmental easements

Under the Act, a person may apply for an easement to protect the environment. In view of the
Constitutional provision relating to rights to a clean and healthy environment and the capacity
of any person to enforce that right notwithstanding that his specific rights have been affected,
this easement differs from the common law easement.

It may be enforced by anybody who finds it necessary to protect a segment of the

environment, or view even where a person may not own property in the proximity of the
property subject to the easement. 103

Licensing and registration of activities and substances

There are other activities, which require specific permits. These include the import,
manufacture, and disposal of hazardous chemicals, wastes and substances. In order to control
the environmental effects of these substances, the law requires their classification and
labeling.

The use of economic and social incentives

The Act clearly provides that management measures should be carried out in conjunction with
the application of social and economic incentives including taxation measures and
environmental performance bonds. 104

Use of Criminal law

Criminal law remains a veritable instrument for the control of behavior, because of the natural
tendency of human beings to fear the infliction of pain, isolation or economic loss. Therefore,
the Act provides for serious penalties against infraction of its provisions. Criminal law,

10 3
See sections 72-76.
104
see part vii

27
however, cannot be the mainstay for the enforcement of environmental law, but is a necessary
supplementary measure to the approaches outlined above. 105

2.2 Institutional framework

The Land Act, ( 1998) especially sections, 47, 57, 65 and 75 stipulates the different land
management institutions and processes. Different land tenure systems have different
administrative institutions some under the central government and others decentralised.

2.2.1 Uganda Land Commission (ULC)

The Public Lands Act (1969), made provision for the vesting, control and management of
public land to the ULC. This was land vested in the British crown prior to
independence. 106 ULC was charged with the responsibility to hold and manage any land vested
in it by the constitution or any other law or acquired in Uganda by Government. Therefore,
prior to the enactment of the Land Act Cap 227, 107 ULC was responsible for granting leases
on all public land. Some of these responsibilities were however withdrawn when the Land Act
decentralised management of public land to District Land Boards. The commission cutTently
manages government estates and all government land throughout the country. Section 47(2) of
the Land Act stipulates that the commission shall be a body corporate with perpetual
succession and a common seal, and may sue or be sued in its corporate name. 108 It has a
Chairman, a Secretary and at least four members appointed by the President with approval
from Parliament. The ULC is mandated to administer the Land Fund. The original objective
of setting up a Land Fund was to fund the buying out of 'absentee' mailo landowners in the
former 'lost counties' now Kibaale district. However, restricting the fund to one area in the
country became so controversial that parliament decided that it should be used countrywide to
assist disadvantaged people to acquire land. Despite this change to accommodate interests
from other parts of the country, the 'lost counties' in Kibaale district remain the priority areas
for the implementation of the Land Fund.

105
see part xiii
100 Nuwagaba. A ( 1998). Land Management Regime as an Instrument for Poverty Alleviation: The Case of Uganda. Makererc University,
Kampala Uganda.
107
ibid
108 Section 4 7(2) of the Land Act

28
2.2.2 Ministry of Lands Housing and Urban Development (MLHUD)
The MLHUD is the line ministry in charge of all land matters in the country. The ministry has
a Directorate of Lands to deliver land services. Under the Directorate of Lands you have the
departments of Land Registration, Land Administration, Surveys and Mapping Department,
Physical Planning Department and the ULC, which has been discussed above, as a 'parastatal'
within the same ministry. The directorate is headed by the Director of Lands whereas each
Department is headed by a Commissioner.

The Physical Planning department is responsible for ensunng progressive and orderly
development in the country. [n addition it is responsible for initiating, developing, and
reviewing national land use policies and plans; formulation of national urbanisation policies;
monitoring the use of land by ministries and organisations to ensure compliance with national
policies, standards and plans; and designing, developing and maintaining a national land use
information base. The activities of the department are carried out at a single centralised office
although local authorities, such as Kampala City Council (KCC), have set up their own urban
planning departments to undertake within their jurisdiction the work hitherto done by the
central department. This means that the phys ical planning function has been largely
decentralised. The central department mainly does monitoring, co-ordination and provides
technical support to the districts.

The Surveys and Mapping Department comprises three divisions: the surveys division, the
Mapping division and the Lands Inspectorate division. The latter division was created to
inspect and monitor the Land Act institutions, once they are formed. It was a department
originally but was reduced to a division on realising that land administration would be a
function of local governments under the decentralisation policy. Surveys and mapping have
also been decentralised to a large extent. For instance all surveys and mapping on mailo land
is handled by district land offices. Only the initial/preliminary stages for Surveys on
leaseholds and freeholds are handled at the districts. The final issuance of deed plans is done
at the head office of the Department of Surveys and Mapping located at Entebbe.

29
The Department of Land Registration handles registration of title deeds once the surveys and
mapping are complete. Sti ll in line with the decentralisation policy, each district is supposed
to have a land registry headed by a registrar of titles. Titles on mailo land are registered and
issued at the district offices whereas the central department registers and issues land titles for
leaseholds and freeholds.

Although the MLHUD maintains policy responsibility over land matters, its success m
implementing land tenure reforms provided in the Land Act, Cap 227 require major
contributions from other key institutions located in other ministries. The most important of
these are the ministry of Local Government, ministry of Water and Environment and the
ministry of Justice. The Land Act makes major demands on local governments, particularly at
District and Sub-County levels such as in the formation and facilitation of Land Boards and
area land committees. The Act also expects the districts to maintain a very substantial
professional resource in the District Land Office, comprising registration, surveying, valuation
and physical planning functions. There has been bitter rivalry between proponents of the
multi-stakeholder approach to implementation of the Land Act and the technocrats in
MLHUD who feel they are the legitimate authority over land matters and should therefore
have full control over the process (Bosworth, 2002).

2.2.3 District Land Boards and Land Committees

The Land Act was enacted just one year after the Local Government Act, in 1997 that sought
to consolidate the government's policy of decentralisation, in wh ich the d istrict and the sub-
county were positioned as the main local government units. [n the same spirit the Land Act
so ught to decentra lise land administration to districts. At the district leve l you have a District
Land Board whereas at the sub-county level there is an area land committee.

Section 57( I) of the Land Act provides for the establishment of a District Land Board (DLB)
for each district. "Subject to a minimum membership of five, the Board shall consist of a
Chairperson, one member re presenting urban councils in the d istrict and o ne member from
each of its constituent counties". 109At least one third of the board members should be women

109
(Section 58( I), Land Act).

30
and at least one of the members of the board should have qualifications and experience in
matters relating to land. The main functi on of the DLB is to hold a nd allocate any land w ithin
the d istrict, which is not owned by any person or authority. The act also vests the reversionary
interest in any leaseho ld granted by a form er government authority in the DLB. Furthermore,
DLBs are responsible for approving appli cations fo r the grant of certifi cates of customary
ownership, certificates of occupancy and fo r conversio n of custo mary ownership to freeho ld
or conversion of leaseho ld to freeho ld. [tis the fun ction of the DLB to compile and maintain a
list of rates of compensatio n payab le in respect of crops, bui ldings o f a non-permanent nature
and any other thing that should be compensated for in case an individual o r a group lose their
land .

The Land ame ndment Act provides fo r creatio n of area land committees at sub-co unty level to
be a ppo inted by the district council on recommendation by the sub-county council. The
committee should have a Chairperso n and three other members at least one of w ho m should
be a woman. At least one of the members should have knowledge and experience in land
matters. Befo re the amendment, the committees were supposed to be formed at parish level.
However the Land Act Imp lementatio n Study (LA lS) fo und the costs of implementing such
provisions amo ng o thers quite eno rmous that it reco mmended a sub-county to be the lowest
unit of land administration. The main functi on of the land committee is to undertake
adjudication, demarcatio n and marking of boundaries of customary land that is subject to an
appli cation for a certificate o f customary ownership and to recommend to the DLB as to
whether the certificate sho uld be granted or not. T he land committees are a lso mandated by
the Act to perfo rm the same functi ons w ith respect to certificates o f occupancy, o n both mailo
land and o ther registered land that is encumbered by bonafid e or lawful occupants. Land
co mmittees are further requ ired to advise DLBs o n matters of customary law app licable in
their areas of jurisdictio n. They (comm ittees) are supposed to be guardians of the interests of
minors w ith respect to transactions affecting fa mily land .

A ltho ugh most districts in the country have o perational DLBs, land committees have no t been
operatio nal. Some di stricts have not appo inted the commi ttees yet hence creating a vacuum in
the land manageme nt process. T he main reason has been lack of funds and amb iguity of the

31
law. Whereas DLBs receive funding from the poverty alleviation fund of central government,
land committees are supposed to be facilitated by district councils. Most district councils
either lack the funds to run land committees or simply do not consider the committees as a
funding priority given the meagre resources. This gap has caused unnecessary delays in the
land delivery process hence frustrating economic and social land infrastructure development.
The main function of the land committee is to undertake adjudication, demarcation and
marking of boundaries of customary land that is subject to an application for a certificate of
customary ownership and to recommend to the DLB as to whether the certificate should be
granted or not. The land committees are also mandated by the Act to perform the same
functions with respect to certificates of occupancy, on both mailo land and other registered
land that is encumbered by bonafide or lawful occupants. Land committees are further
required to advise DLBs on matters of customary law applicable in their areas of jurisdiction.
They (committees) are supposed to be guardians of the interests of minors with respect to
transactions affecting family land.

Although most districts in the country have operational DLBs, land committees have not been
operational. Some districts have not appointed the committees yet hence creating a vacuum in
the land management process. The main reason has been lack of funds and ambiguity of the
law. Whereas DLBs receive funding from the poverty alleviation fund of central government,
land committees are supposed to be facilitated by district councils. Most district councils
either lack the funds to run land committees or simply do not consider the committees as a
funding priority given the meagre resources. This gap has caused unnecessary delays in the
land delivery process hence frustrating economic and social land infrastructure development.

Most districts are in the process of establishing the land offices but the resource implications,
both in terms of equipment and personnel , are enormous. Even where the regional offices
existed they are in a very sorry state, with hardly any equipment and storage facilities. Some
of the records and equipment were destroyed by the wars of 1970s and early l980s. Although
government, under the Land Tenure Reform Project, has bought some equipment and storage
facilities, they are still inadequate given the fact that the number of districts has also
increased. Again the LAlS found the provision of a fully-fledged land office in each district

32
difficult to implement. Basing on the recommendations of LAIS, an amendment was made to
this provision to allow districts without the required personnel to borrow services from
nei ghbouring districts, which may have the personnel.

2.2.4 Buganda Land Board

In 1993, Kabaka's land that had been withdrawn to central government on abolition of
kingdoms in 1967 and the subsequent Land Reform Decree of 1975 was returned to the
Buganda government. This followed the resto ration of traditional institutions in Uganda and
consequent restitution of properties and assets to traditional rulers. By this time, there were
both legal and illega l tenants on Kabaka's land. 11 0 In 1994, the Buganda Land Board (BLB)
was put in place and charged w ith the responsibility of managing Kabaka's land and
properties. 111 T he occupants of this land were to regularise their settlement by obtaining
leases. Although many of the occupants would be willing to obtai n leases from BLB, the
enactment of the Land Act in 1998 made them reluctant to do so. 11 2 The Act had secured their
user rights under section 30 concerning lawful and bonafide occupants. 113 The occupants are
entitled to compensation in case Buganda government wanted to develop the land. T his
creates a land impasse as reiterated elsewhere due to titleholders (Buganda Kingdom) who
may not use the land amidst occupants who do not own the land . T he Act therefore seems to
enco urage informal userships on land especially when it allows separation of ownership of
developments on land from land ownership. The other problem faced by BLB is the
indulgence of Local Council officials in the 'grabbing' and se lling of Kabaka's land since they
play a significant role by presiding over the sig nin g of 'bibanja' sale agreements. 11 4 Despite
recent efforts by BLB to sensiti se and convince occupants of Kabaka's land to acquire leases,
the response rema ins very low. In fact most tenants would prefer to pay annual rent as bona
fide occupants which the Buganda government is re luctant to accept because the rent
stipulated in the Act is discourag ing ly low. This sentiment was echoed in an interview with
the Secretary, BLB. He argued that the admini strative costs of collecting such a fee on

11°Kaggwa, J. ( 1994 ). Land Te nure and Land Use in Kampala District. Ka mpala: Cente r for Basic Research .
Il l ibid
11 2
ibid
11 3
Section 30 of the land Act
1" Nuwagaba, A ( 1998). Land Manageme nt Regime as an Instrument for Poverty A llevia tion: The Case of Uganda. Make rere Univers ity,

Kampala Uganda.

33
 Kabaka's Land far outweighed the income from such collections. It is for this reason that they
have not bothered collecting the fee at all, but are instead encouraging occupants to obtain
leases on such land.

2.3 Conclusion
In conclusion, Article 237 115 provides that all land belongs to the citizens of Uganda and shall
vest in them in accordance with the land tenure systems provided for in the Constitution.
However, there has been an extra mile taken to register land in order to avoid land disputes
which mainly lead to death. The ton·en system being one of the systems of land recording, it is
applicable as discussed above and is more advantageous since the system is simple to operate,
fair and does not require a lot of documentation like private land conveyancing. Therefore,
having a certificate of title is very important since it acts as evidence to the piece of land.
Though there are exceptions, the law provides remedies like ejectment, damages and
compensation.

11 ; The Constitution oft he Republic of Uganda

34
 CHAPTER THREE

AN ANALYSIS OF THE RIGHTS OF THE TENANTS ON LAND IN UGANDA.

3.0 Introduction
This chapter exam ines the types of tenure recorgnised under the laws of Uganda for example
the mailo, freehold, leasehold and the customary tenures of land ownership, the protection of
tenants' rights and the relationship between tenants and land lords are discussed in this
chapter.

3.1 Types of land tenure in Uganda

The Constitution and the Land Act recognise four systems of tenure, namely customary,
mailo, freehold and leasehold. Further they both guarantee security of occupancy of so-called
bona fide and lawful tenants living on registered mailo, freeho ld or leasehold land 116

3.1.1 Freehold Tenure

According to section 4(2) of the Land Act, ll7 'Freehold tenure' as a tenure that derives its
legality from the constitution and incidents from written law. It invo lves holding of registered
land in perpetuity and enab les the ho lder to exercise, subject to the law, full powers of
ownership of land . The apparent objective of the Land Act is for the citizens of Uganda to
own land as freehold or mailo tenure. The Act makes provis ion for conversion of other
tenures i.e. leasehold and customary land into freehold. In fact, government has made
deliberate efforts to encourage people on customary land (Bibanja owners) to apply for
freeholds. The campaign has only been slowed down by lack of operational area land
comm ittees in most districts. These area land committees are responsible for recommending
bibanja owners to acquire freeholds. The provision to convert leases and customary land may
however have significant implications for urban authorities because they stand to lose the
income they have been co llecting on leases. Secondly the nature of freehold is likely to
comp licate development contro l since it provides for full and perpetual ownership.

116
Article 237 (8) and (9) Constitution and Section 31 ( 1) Land Act.
117
Land Act Cap 227

35
3.1.2 Customary Tenure
Customary land tenure is a system of land ownership governed and regulated by customary
principles and usually sanctioned by customary authority as per section 4 of Land Act 1998.
According to Obol-Ochola , customary land tenure refers to traditional landholding rights,
which are a result of the relationship between indigenous people and the land. These land
rights are controlled and managed by customary law, which in most cases is oral and not
written. 118 Morris and Read , argue that, the specific nature of tenure varies according to
ethnic group and region of the country. 119 Some commun ities hold their land under a
communal or tribal land tenure system where ownership is vested in the ruler either as owner
or as trustee, while others hold their land under clan land tenure system where the leaders and
elders are admin istrators of clan land. The nomadic communities prefer to vest the grazing
rights in the entire members of the tribe with no specific rights vested in the individual. But
generally there is a steady evolutionary change towards individual ownership. This trend is
more pronounced in the densely populated districts in the southern and eastern parts of
Uganda and less so in the northern and north-eastern parts. 120 One main feature of the tenure
is that the land is owned in perpetuity. Most land in Uganda is owned under customary land
tenure.

The application of customary rules, however, is subject to such rules not being repugnant to
natural justice, equity and good conscience, or being incompatible, directly or indirectly, w ith
any written law. In addition section 28 of the Land Act 121 renders void any customary rule or
practice that denies women, children and disabled persons access to ownership, use or
occupation of land. The biggest prob lem with this type of tenure is that the land is not
surveyed and the interests of the landholders are not registered anywhere. Although section 5
of the Land Act provides that "any person, family or community holding land under
customary tenure on former public land may acquire a certificate of customary ownership in

118 Oboi-Ochola, J {1969). Land Law Reform in East Africa. Kampala: Milton Obote Foundation.
119 Morris, H. F and Read, J. S {1966). Uganda: The Development of its Laws and Constitution. London: Stevens
and Sons.
120 Oboi-Ochola, J {1971). Customary Land Law and Development of Uganda. Unpublished LLM Dissertation,

University of Dar-es-Salaam, Dar-es-Salaam, Tanzania

121 Section 28 of the Land Act 1998

36
respect of that landoi 22 , government has been slow at implementing the provision. The
ministry of Lands Housing and Urban Development is in the process of piloting systematic
demarcation which will pave way for issuing certificates of customary ownership at sub-
counties. Nonetheless, it remains a fact that to date no individual or group occupying
customary land has been issued with a certificate of customary ownership. There is a
provision, under section I 0 of the Land Act, to convert customary tenure to freehold tenure. 123

3.1.3 Leasehold Tenure

Leasehold tenure is a form of tenure where one party (the lessor) grants another (the lessee) a
right to exclusive possession of land for a specified period, usually though not necessarily, in
return for a periodic payment called rent. A lease can be granted for any duration except in
case of a lease to a non-Ugandan citizen. Section 41(3) of the Land Act limits the maximum
period for which a lease can be granted to non-citizens of Uganda to 99 years. 124 An owner of
customary, mailo or freehold land may grant a lease to another person out of his or her land.
The Uganda Land Commission (ULC) and the District Land Boards (DLBs) also have power
to grant leases out of the land vested in them. This is mainly government land and free
unoccupied land respectively. Traditionally, leases in Uganda were granted subject to
development conditions and other covenants, which imposed obligations on the lessee to use
the land in a particular way. Indeed, this was one of the main reasons for the conversion of
mailo and freehold land into leases under the Land Reform Decree. However the Land Act,
1998 does not impose any covenants or conditions on leases. It is up to the parties involved to
determine the terms of their lease. In practice, it is unlikely that a landowner, especially ULC
or DLBs, would grant a lease without imposing development conditions or some other land
use covenants. Subject to the terms of the lease, a lessee is entitled to exercise all the powers
of the landowner as are appropriate to the type of lease. Under this tenure, the rights and
interests of the lessee are registered using provisions of the Registration of Titles Act, !965
and the lessee issued with a title deed.

122
section 5 of the Land Act
123
section 10 of the Land Act
124
Section 41(3) of the Land Act

37
Also section 29 of the Land Act provides for conversion of leaseho ld into freehold subject to a
number of conditions. 125 One of the cond itions is that the lease must have been granted to a
Ugandan citizen and had been current when the Land Act came into effect. Secondly the
applicant must satisfy the DLB that the lease was validly granted and that there were no
customary tenants at the time the lease was granted. If there were such tenants, the board must
be satisfied that they were duly compensated as required by the law. In addition, the DLB
must be satisfied that the lessee has complied with all development conditions and other
conditions upon which the lease was granted. There is a size limit of l 00 Hectares on the
leasehold to be converted to freehold. The DLB can only convert a lease exceeding 100
Hectares to freehold if it is satisfied that it is in public interest. Section 29(2) of the Land Act
provides that where a DLB approves a conversion of a lease exceeding lOO Hectares, the
conversion shall not be effective until the applicant pays the market value of the 'excess
acreage' as determined by the Chief Government Valuer. 126 [t is interesting to note, however,
that although freehold is considered a better tenure than leasehold, very few people have
bothered to app ly for the conversion .

3.1.4 Mailo Tenure

According to section 4(4) of the Land Act, 'Mailo tenure' as a form of tenure derives its
legality from the constitution and its incidents in written law. 127 From a legal perspective,
mailo tenure is virtually freehold tenure, as both entai l holding land in perpetuity. Section
4(4)(c) provides that subject to the customary and statutory rights of 'lawfu l' or 'bonafide'
occupants of land, a mailo owner is entitled to enjoy a ll powers of ownership of a freeho ld
owner. 128 The only legally significant difference being that mailo is subject to customary and
statutory rights of lawful and bonafide occupants. [t also permits the separation of ownersh ip
of land from ownership of the developments made on the land by the lawfu l or bonafide
occupant.

125 section 29 of the Land Act

126
Section 29(2) of the Land Act
127
section 4(4) of the Land Act
128
Section 4(4)(c)

38
 3.2 Protection of tenants: The relationship of landlords and tenants on registered land.
A number of constitutional provisions and sections of the Land Act Cap. 227 are geared
towards streamlining the relationship of landlords and tenants, and ultimately stop/prevent
evictions of the tenants by landlords. The question that sti ll looms is how far as the above
been achieved. The Constitution article 237(8) makes a general provision that guarantees
security of occupancy for lawful or bonafide occupants on mailo land, freehold , leasehold.
The Land Act Cap. 227 is a product of the requirement of Article 237 (9), which called upon
Parl iament to pass a law regulating the re lationship between the land lord and the lawful and
bonafide occupants on land, and also processes through which the occupants could acquire
registrable interests in land.

De limitation of who is a lawful and a bonafide occupant is an important initial step to

determine who is entitled to the protection. The Land Act section 29( L) defines them as a
" lawfu l occupant" means-
a) a person occupying land by virtue of the repealed
1. Busuulu and Envujjo Law of L928,
11. Toro Landlord and Tenant Law of 1937,
111. Ankole Landlord and Tenant Law of L937; 129
b) a person who entered the Land with the consent of the registered owner, and includes
a purchaser; .. . (etc.) According to Section 29 (2) of the land Act 'Bonafide occupant' means a
person who before the coming into force of the Constitution.
a) had occupied and util ized or developed any land unchallenged by the registered owner
or agent of the registered owner for twe lve years or more; or
b) Had been settled on land by the Government or an agent of the Government, which
may include a local authority. 130
The security of tenure of a tenant by occupancy is guaranteed under section 3 L (I) of the Land
Act. Although the law recognizes the tenant as a tenant of the registered owner of Land
(section 3 L (2) of the Land Act); their landlord tenant relationship cannot be regu lated o utside
of the Land Act. lt is subject to sti pulations in the Act as discussed below:

129
Section 29(1) of the land Act
130 Section 29 (2) of the land Act

39
3.2.1 Payment of nominal ground rent and termination of tenancy.
First the Land Act Cap 227 recognized the need for the tenant to pay some sort of
consideration to the landlord in return for using the land. Section 3 L (3) provided for the
payment of nominal ground rent. 131 Under the Land (Amendment) Act of 2004 section 14 (3c)
"nominal ground rent shall mean reasonable ground rent- (i) taking into consideration the
132
circumstances of each case; and (ii) in any case, of a non-commercial nature." This
provision does not cast the ground rent in stone, but leaves it fluid such that differently
situated tenants do not end up having obligations to pay a uniform rent that might unfairly
burden the poor tenant. [t allows for different rates of ground rent in accordance with the
location of the land (peri urban or rural area) and size.

It should further be noted that the Land Act Cap 227 section 31 (3) put the responsibility to
determine the rent on the Land Board. 133 To avoid leaving issues about nominal ground rent to
the Board, the Land (Amendment) Act 2004, section L4 substitutes the above provision with
another that introduces the requirement for the minister to approve the rent determined by the
Board, and according to the new section 31 (3a), within sixty days. The minister's silence or
failure to approve the rent in the stipulated period is interpreted to mean approval of the rent
that was presented to him/her by the Land Board. 134
In 20 L0, the Land Act cap 227 was subjected to yet another amendment. Section 31 (3d) was
introduced requiring the Minister to set the rent if the Board does not do so within six months
from the commencement of the Act. 135 The new section 31 (3e) stipulates that rent; either
stipu lated by the Board and approved by the minister or set by the minister shall be payable
within one year of its stipulation.
The Land Act, Cap 227, section 31 (4) provides for the tenant's right to appeal the decision of
the Board to the Land Tribunal, incase s/he feels aggrieved . The Tribunal in this case may

131
Section 31 (3) of the land Act
132
section 14 (3c) of the land Act
133
section 31 (3) of the land Act
134
See the Land (Amendment) Act , 2004.
135
The commencement date of the Land (Amendment) Act 20 LOis February 12, 2010.

40
"con firm , reverse, vary or modify the decision or make such other orders as it is empowered
to make in this Act."
Despite the fact that the rent is "nomina l", the Land Act envisages a situation where the tenant
might fai l to pay. [t provides under section 3 1(6) and also under the Land (Amendment)Act
2004, that the land owner may give the tenant notice in a prescribed form; " .. . to show cause
why the tenancy should not be terminated for nonpayment of rent..." if the rent is o utstanding
for a period exceeding one year (formerly two years). 136 The presumption here is that if the
tenant does not give valid justifiable cause, then the tenancy can be term inated for
nonpayment of rent; following due process of law before the land tribunal (Chief
magistrate/Grade 1) 137 as stipulated in the Land Act section 32 (l) and (2).
[n the law of property, landlord and tenant relationships are normally (and at common law)
regulated either by contract or statutory law. 138 The nature of relationship between the tenants
by occupancy and their landlords on registered land in Uganda is atypical, entrenched in
hi storical developments in Uganda, and greatly regulated by statute for political and other
reasons. Statutory law (the Land Act in particular) attempts to exc lude any other reasons upon
which a tenancy may be terminated; in order to protect the tenant from eviction o n those
grounds. The Land (Amendment) Act of20 !0, introduces a new section 32A (1)- (4) under
wh ich it is stipulated that a tenant by occupancy can on ly be evicted on grounds of failure to
pay the annual nominal ground rent and on order of court. The court that finds the tenant
liable for eviction has to give him/her not less than six months to leave the land. Masalu
Musene has argued that even though it is said that the Land (Amendment) Act of 20 l 0 is
intended to prevent evictions, it does not go beyond the prov isions of the Land Act Cap 227
and the 2004 amendment.1 39

136
See, the Land (Amendment) Act 20 LO, Section I (b), amending 3 l (6).
137
See, the Land (Amendment) Act 20 10, Section 32A (4).
138
See, Land lord and Tenant Law, http://www.hg.o rg/landlord.html (accessed November 20, 20 15) or the
Restatement of the Law , 2nd ed ition.
139
See, Masalu Musene Wilson, The effectiveness of the courts ofjudicature in promoting security of occupancy
of lawful and bonaaflde occupants on registered land in Uganda, (Un published LL.M dissertation, School of
Law Makerere University 20 14)at 36-37.

41
He further observes and rightly so that in executing its role under article 237 (9), parliament
diluted the security of tenure that the constitution envisaged. 140 They did thi s by making it
contingent upon payment of rent; however nomina1. 141
A plain reading of the Land Act Cap 227 and both the 2004 and 2010 amendment indicates a
desperate (although unrealistic) desire to ; through legislation protect the tenant by occupancy
on registered land. The law in some instances ends up being unrealistic. [f the tenant is only to
pay nominal ground rent, what is the incentive for the landlord to waste his time in court
against such a tenant, to first of all; as section 31(6) show cause wh y s/he shou ld not be
ev icted, send it/refer the matter to the Co mmittee, and then obtain an order from court prior to
eviction?
This procedure seems to be more cumbersome than the reward that the land owner may get at
the end of it. Opting o ut of the landl ord te nant relationship (according to our fi ndings) is
considered by some as a cheaper option. Indeed, the law does not stop the title ho lder from
selling hi s interest:
Subject to this section, a change of ownership of title effected by the owner by sale, grant and
success ion o r otherwise shall not in any way affect the ex isting lawfu l interests or bonafide
occupant and the new owner shall be ob liged to respect existing interests. 142 Although the
owner is by law autho rized to sell, the land is considered encumbered and finding purchasers
for it can be cumbersome. In addition, land law jurisprudence in cases such as Uganda Post
and Telecommunications v. A.K.M Lutaaya 143 holds to the effect that purchasers of such
land are considered to have constructive notice of the tenants o n the land, and therefore take it
subject to their interests. So purchasers wou ld inherit all the huddles that the landlord had o n
the land, regarding interlocking simultaneous rig hts to it. Even thoug h the above makes the
land un attractive, there is evidence from our findings that powerful and fearless purchases
normally go ahead to purchase it, and act contrary to requirements of the law by either
evicting tenants, or unfavorably treating them or cheating them in negotiations, as our findin gs

140 id.
141
See, Land Act, Cap. 227 section 3 1 and the Land(amendment) Act 2004, Section 3 1 (3)
142
Land (A mendm ent)Act 20 10, Section 35 (8).
143 Supreme Court Civil Appea l No. 36 of 1996.

42
from Wakiso show. 144 This is also in contravention of the spirit of the UNLP which makes the
new landlord a mere replacement of the old one, taking on rights and obligations of the old
landlo rd. 145

Another section in the Land Act that offers a certain level of protection is section 36 (l) wh ich
is to the effect that a registered owner and a tenant by occupancy may mutually agree that the
land in which a tenant by occupancy has an interest be subdivided in such portions as the
parties may agree with each party having exclusive occupancy or ownership of such portions
as may be agreed or that the parties become joint proprietors ofthe land either as joint tenants
or as tenants in common and where they agree to be tenants in common, the shares of each in
the land o n such terms and conditions as they may agree.(emphasis added by author)
From the above provision (italici zed options), it cannot be concluded that the result of the
mutual agreement for the tenant would be absolute "ownership" o f land. It is mere excl usive
occupancy with the right to exclude the title ho lder and not perpetual ownership for the tenant
by occupancy. In that case, the dual and overla pping ri ghts on the land with all it complexities
remain on foot. The mutual agreement leading to each party abso lutely owning a po rtio n of
the land individually, or accepting to be joint tenants or tenants in common would grant the
tenant better protectio n. In case of subdivis ion and ownership of portions of land and in the
case of joint tenancies or tenancies in common, under the Land Act sectio n 36 (2) (a) and (b)
the tenant would be entitled to a certificate of title . The strength of the tenant's protection in
this case would arise from the recognized indefeasib ility of title under section 59 of the
Registration of titles Act, cap 230. This has furth er been endorsed in a wealth of land cases
such as Kristopher Zimbe versus Tokana Kamanza 146 that ho lds that such a certificate is
indefeasible and can o nly be defeated in the case of fraud. The case of Kampala Bottlers Ltd.
v. Damanico (U) Ltd147 Wabuzi C.J as he then was held among others that fraud may be
"attributable either directly o r by necessary impli cation ... [t]he transferee must be gui lty of
some fraudulent act or must have known of such act by some body e lse and taken advantage of

144
Rose Nakayi The Perceived Protection of Tenants .... at page22.
145
UNLP- 2013, supra note 1S, strategy 46 (v).
146
(1954) ULR 68.
147
Civil Appeal No. 22 of 1992.

43
such act." As much as the above are good provisions, the tenant mostly in rural areas are not
aware of them, and do not have the bargaining power to push for better deals. In the end, there
is a gap between the law and practice. All in all, there is a minimum level of protection of the
tenants by occupancy which includes; secured occupancy on payment of rent, option to
purchase the landlord's reversion, mutual agreement to subdivide such that the landlord and
tenant each acquires exclusive rights, becoming joint tenants or tenants in common. Lack of
knowledge of all these, limited bargaining power and a feeling of "we are being helped" keeps
the tenants mostly in the rural areas away from benefiting from the provisions. 148

3.3 Compulsory Land Acquisition and Compensation and its effect on tenants.
The 1995 Constitution of Uganda under Article 26(2) empowers the Central Government or a
Local Government to acquire land in the public interest provided the acquisition is necessary
for public use or is in the interest of defense, public safety, public order, public morality or
public health. The taking of such property has to be subject to prompt payment of a fair and
adequate compensation; before the taking of possession or acquisition of the property. To
guide this acquisition process, the Land Acquisition Act, Cap. 226 was enacted, and according
to its long title, the Act is meant to make provision for the compulsory acquisition of land for
public purposes and any other matters that are incidental to and connected therewith. Section
3 of the Act empowers the Minister to declare that any land is needed for a public purpose
while Section 2 empowers a person authorized by a minister to enter upon and examine any
land.

After confirmation that the land assessed has to be taken, an award of compensation is
provided for under section 6 of the Land Acquisition Act. Any person affected by such
acquisition can challenge the amount of compensation awarded in the courts of law. 149

The Land Acquisition Act, Cap. 227, is generally intended to facilitate acquisition of land by
government; by implication reduce any glitches that could delay such processes. Also, having
existed before the 1995 Constitution, it does not provide for or emphasize compensation
148
See Nakayi Page 25 lnteJViews conducted in Wakiso, July Stt., 2915.
149
Section 6 (5) and 13, Land Acquisition Act, Cap. 226.

44
before compulsory acquisition of the land. It rather bestows entitlement to the relevant
authorities to compulsorily acquire land, without first paying adequate compensation to the
owner. This does not auger well with the post 1995 Constitution period and has been cleared
by the Constitutional Court. [n the case of Advocates for Natural Resources & 2 Others Vs.
AG Constitutional Petition No. 40/2013; it was held a lthough the Land Acquisition Act
existed before the 1995 Constitution, its provisions have to be read in the context of Article
274 and 26 (2) of the Constitution, in which case it is subjected to necessary modifications
and qualifications in order to afford land owners prior compensation before their land is
compulsorily acquired. This is the spirit of the 1995 Constitution.

The legal framework on compulsory land acquisition and compensation in Uganda is

relatively weak and does not adequately uphold the rights of persons that may be adversely
affected by compulsory taking by government. What amounts to public purpose or interest as
the rationale for the taking is not so clear. It therefore becomes a fluid notion whose definition
can be couched in subjectivities to justify taking for any purpose disguised as "for the public".
The absence of clear guidelines on compensation and unguided valuation practices may lead
to unconscionable out comes arrived at through corrupt tendencies. Examp les include: the
all eged compensation of ghost claimants in the acquisition of land for the Kaiso-Tonya
Road; 150 a compensation award of 4.1 billion shillings for land in a government forest reserve
(for constructing of the Entebbe express highway) to three men claiming to have inherited the
land from their grandparents, yet the three are not at all related. 151 Monies for compensation
are released from the government coffers for that purpose. 152

3.4 Rights and Duties of Tenants by Occupancy and Kibanja Holders

Tenants by occupancy have a right to occupy land under the laws of Uganda.

150
See., How UNRA, MAPCON cheated Residents in Hoima Tanya Road Compensation, available at http://
thehookug.comlhow-unra-mapcon-cheated-residents-in-hoima-tonya-road-compensationl
151
See video, UNRA Prove: DNA proves compensation claimants not related to owners of land, available at
https://www.youtube.com/watch?v=TiqQ6rllyEg, accessed June 28, 2019.
152 Joel Owing, Government resumes compensation of property owners, The New vision August 6, 2014,

available at http://www.newvision.co .ug/news/658435-gov-t-resumes-compensation-of-propertyowners.

html

45
They have the right to enter transactions with respect to the land they occupy with the consent
of the registered land owner, which should not be denied on unreason able grounds. 153

The law strictly requires tenants by occupancy to give the land owner first option where they
wish to sell their interest and vice versa where a land owner wants to sell the land.
This must be on a willing buyer willing seller basis. 154
These rights and duties extend to Kibanja holders who must also obtain the consent of the
registered owner before selling of their Kibanja. They must also be given the right of first
option to buy the land if the land owner wants to sell the land. 155

Where a tenant by occupancy or Kibanja holder sells their interest without giving the land
owner first option, he or she commits an offence and loses the right to occupy the land. 156
A person who buys registered land which has tenants by occupancy must respect and observe
their rights. He or she must not evict them except if he or she obtains a court order of eviction
for non-payment of the annual nominal ground rent. 157
Similarly, any person who buys registered land in Buganda must observe the rights of Kibanja
holders on the land. l58
Tenants by occupancy and Kibanja holders can also register a caveat at the Registry of Lands
where they have reason to suspect that the registered land owner intends to enter a land
transaction which will affect their rights and interests. 159

3.5 Conclussion
Tenants are protected under the laws of Uganda and accorded rights and obligation therein to
be observed besides the protection, tenants are facing evictions on land every day in Uganda

153
(Section 34 of the Land Act).
154
(Section 35 of the Land Act).
155
Marko Matovu & Others v. Mohammed Sseviiri & Others Court of Appeal Civil Appeal No.7 of 1978 and
Kampala District Land Board & Another Vs. Venansio Babweyaka and Others Supreme Court Civil Appeal
No.2 of 2007.
156
(Land (Amendment) Act 2010)
157 (Section 32A of the Land Act as amended in 2010).

158 UPTC v Abraham Lutaaya Supreme Court Civil Appeal No. 36 of 1995 cited in Prof. Wavamunno v Sekyanzi

High Court Land Division Civil Appeal No. 27 of 2010

159
(Section 139 of the Registration ofTitles Act).

46
due to many challenges that range from political social and economical and these will be
discussed in the next chapter.

CHAPTER FOUR

THE NATURE OF THE RELATIONSHIP BETWEEN THE LAND LORD AND THE
TENANT.

4.0 Introduction
Landlord can be defines as a person or organization that owns property that is rented to
tenants and a Tenant on the other hand is Somebody who rents a building, house, apartment,
plot of land, or piece of propetiy for a fixed period of time. There exists a legal relationship
between tenants and landlords commonly known as the Landlord-Tenant relationship that
confers rights and duties to both parties. This chapter will therefore examine the nature of

47
such relationship and assess the rights and obligations that exist under such relationship and
also examine the challenges and causes of tenant eviction in Uganda

4.1 The Relationship of Landlord and Tenant

The first decision in a rental relationship requires that both the landlord and the tenant choose
each other. The wisdom of this decision will probably affect each party's satisfaction until the
tenant moves out or the landlord turns over the property to someone else, and that cou ld take a
long time be fore this is accomplished. A problem tenant or landlord usually does not improve
over time, and they are expected to do all they can to make sure of a good match. 160

According to Thorncroft, men entered partnership of landlord and tenant since the dawn of
civi lization where land was leased or hired out; in the early cultures of the Indus, Ni le, Tigris
and Euphrates valleys. 161 A further definition of a leaseho ld system was given as a flowering
of capitalism with its heart in the rights and duties that spring from contracts. The relationship
between landlord and tenant created by the lease agreement had its origin in the feudal system
of land tenure, under wh ich all freehold lands, including fees, were held by a superior lord and
all landho ldings formed a chain of vassal ships with ownership descending from the monarch
through an overlord to a vassal. This practice, known as sub-infeudation, was abolished in
England by the Statute Quia Emptores ( 1290). West's Encyclopedia of American Law
described landlord tenant relationship as an association between two individuals arising from
an agreement by which one individual occupies the other's real property with permission,
subject to a rental fee. 162 [t referred to the term landlord as a person who owns property and
allows another person to use it for a fee, the person using the property is called a tenant and
the agreement between a landlord and a tenant is called a lease or rental agreement. [t traced
the root of land lord and tenant relationship to feudalism , a system of land use and ownership
that flourished in Europe between the tenth and thirteenth centuries. Under feudalism land
was owned and controlled by a military or political sovereign ruler. This ruler gave portions
of land he or she owned to another person, called a lord. The lord, in turn, could allow another

160
The U.S. Department of Housing and Urban Development (USHUD) (2010): What is Known About the Effects
of Rent Controls: Consulting Report. US Department of Housing and Urban Development, September 1990.
161
Thorn croft, ( 1976): Principles of Estate Management. London: The Estate Gazette Limited
16 2
West's Encyclopaedia of American Law, (2005): Landlord and Tenant; Encyclopedia.com.

48
person, called a vassal, to use smaller portions of the lord's land. The vassal pledged
allegiance and military or other service to the lord in exchange for the right to live and work
on the land.

[n the opinion of Forester and Stitzel, the relationship between landlord and tenant should be
strictly a business one. Landlords must abide by a variety of federa l, state, and local laws
designed to protect tenants. 163 Breaking a law, even unintentionally, can spell big trouble to a
landlord. He continued that rental property is too valuable to allow tenants to occupy it
without the full protection of a legally binding agreement. lt is therefore a mistake to let
property without a proper rental agreement or lease, to do so opens a landlord to a great deal
of risk, possible financial loss, and even litigation.

Smith stated that the relationship between landlord and tenant usually arise when the owner of
an estate in land grants, by means of a contract between the parties, the right to the exclusive
possession of his land or part of it to another person to hold under the grantor for a term of
years. In such cases the grant is called a lease, demise or tenancy, and the grantor called the
land lord or lessor, whi le the grantee is the tenant and lessee. The period granted is called a
term o f years and the interest which the landlord retains including the right of possession at
the end of the term granted to the tenant is called a reversion. 164

West's Encycloped ia of American Law described the land lord and tenant re lationship as a
living arrangement, and stated in this respect that land lord and tenant law differs from the law
regarding leases. In a landlord and te nant re lationship, the parties are often referred to as
lessor (landlord) and lessee (tenant). Indeed, a lease is a contract that creates the same
relationship as exists between a land lord and tenant: the lessor owns property and allows the
lessee to use it for a fee. 165 However, the law of leases does not necessarily concern itself with

163
Forester, J., and Stitzel, D. (1989): Beyond Neutrality: The Possibilities of Activist Mediation in Public Sector
Conflicts. Negotiation Journal (1989): 2S1-59.
164
Smith, I. 0. (1995): the Law of Real Property in Nigeria. Lagos: The law Centre Lagos State
Un iversity.ISBN978-33148-1-5
165
West's Encyclopaedia of American Law, (2005): Landlord and Tenant

49
 living arrangements. A lease agreement may, for example, relate to the use of a good or
service. Because living arrangements are vital to human existence, landlord and tenant
relationships are treated differently from lease contracts.

Generally, a landlord and tenant relationship exists if: the property owner consents to
occupancy of the premises; the tenant acknowledges that the owner has title to the property
and a future interest in the property; the owner actually has title to the property; the tenant
receives a limited right to use the premises; the owner transfers possession and control of the
premises to the tenant; and a contract to rent exists between the parties. A leasehold contract is
the agreement of the parties on the terms and conditions that will govern their relationship. It
is also the formal arrangement reduced into writing between a landlord-lessor and tenant-
lessee where the former consents to the latter's occupation in consideration for a fixed rental.
In an environment characterized by strong competition for leased acreage, superior
relationships provide tenants with a potential source of sustainable competitive advantage. 166

Idaho Legal Aid Services opined that whether there is written contract or not, there is a
presumption that a contract exists between the tenant and the landlord. [f there is a written
contract, the contract will govern how the landlord and tenant should act during the tenancy,
unless the contract is contrary to the law or public policy. 167 Furthermore, if the landlord or
tenant has questions regarding their rights and duties, they should first look to the lease or
rental agreement for the answer, then contact an attorney if they have question.

Rabin in studying the history of leasehold in north-east of Ireland, observed that the tenants
are worse off than in recent times. 168 If a landlord decides to increase rents, there would be
very little the tenants could do about it; especially in view of penalties usually imposed for
failure to pay the rent. When one considers the immense power of the landlords, the wide

166
Moss, l, Erven .B (2001): Managing landlord-Tenant Relationships: A Strategic Perspective, Extension Fact
Sheet. Ohio: Ohio State University, FR-0004-01,
157
Idaho legal Aid Services (2010): landlord and tenant: rights and responsibilities. Idaho: Aid Services.
168
Rabin H.E (1983): the Revolution in Residential landlord-Tenant law: Causes and consequences. Prepared
for: Uberty Fund, Inc., seminar on the common law History of landlord-tenant law, held at: Law and Economics
Centre, Emory University, Atlanta, Georgia on March 11, 1983, (39).

50
economic-gulf between them and the tenants, and the fact that they are sometimes separated
along religious and tribal sentiments, it is therefore easy to see the potential for conflict
between parties to a lease. 169

According to Hirsch, a lease is a contract that gives the exclusive right of possession and use
of landlord's property for a fixed or determinable period. 170 The interest which an estate
owner may grant in this way must be less than the one he holds so as to create " landlord and
tenant relationship"; 171 while Kyle opined that Landlord-tenants' interests are not mutually
exclusive and the two do not need to be in constant conflict where the landlord- tenant
relationship is founded on clear understanding of the rules and regulations. 172

Hirsch and Joel concluded that landlord-tenant relationships are generally a matter of State
and local laws which vary from one place to another. 173 Such relationship, in the opinion of
Bierlen and Parsch, can be enhanced if parties improve their communication skills, make
communication goal-oriented, approach communication with positive and creative attitude,
and work to reduce barriers. 174

According to Lack, property is the primary source of emotion for the landlord especially if he
is not in it for the business end and this home had been a personal res idence before renting it
out. A home is considered a very sacred place by many religions, people can become much
attached to their homes and find it hard when someone else is living there, they take it
personally when the tenant does not treat the property Iike they hoped they would, but in the

169 i bid
170
Hirsch, z. W. (1981): Landlord- Tenant Relations Law in the Economic Approach Law. London: Butterworths.
171
ibid
172
Kyle, R. C. (2005): Property management-7th ed. Dearborn Financial Publishing, Inc: ISBN 0-7931-9175-0
173
Hirsch L. and, Joel. G. {1983): The Changing landlord-Tenant Relationship in carlifornia: An Economic
Analysis of the Swinging Pedulum, Southwestern university law Review.
1 74
Bierlen, .R., Parsch, L. D. (1996): Tenant Satisfaction with Land Leases. Review of Agricultural Economics. 18
(1996): 505513.

51
end, the landlord needs to establish clear rules before allowing a tenant to move into the
property.l75

4.2 Challenges that exist between Land lord and Tenants

Dewandeler elucidated the problems between landlords and tenants as fairly predictable,
landlords complain about tenants' disregard for the premises, their tardy payment of rental
fees, their unruly behaviour and in general, their refusal to understand that rising costs of
living affect the provision of utilities, maintenance and repairs. 176

On the other hand, tenants complain about poor maintenance, unfair fees for utilities,
unannounced rent rises, threats of eviction and failure to return deposits, they accuse landlords
of randomness and exploitation, and turning hostile when rents are in arrears.
Relationships are important, sometimes unappreciated and a source of risk to tenants and
landlords; for the landlord, effective relationship management strategy ensures that returns or
other goals for investment in a propetiy are achieved; and for the tenant, effective
management strategy is fundamentally important to his security of tenure. In respect of both
parties, it prevents or mitigates the costs of conflict and disagreement. 177

As stated by Callo, leasehold relation is a juridical tie which arises between a lessor (landlord)
and a lessee (tenant) and it is limited to the person who furnishes the holding, either as owner,
civil law lessee, legal possessor and the person who occupies the same. 178
The relations according to Dewandeler are often better when landlords live in the same
premises, to prospective tenants; resident landlords are reassuring with regard to the level of
services and social infrastructure available in the neighbourhood. 179 But also, owner- occupied
housing has the reputation of being better serviced and maintained, hereby giving less cause

175
Lack, K. (2009): When a Landlord Tenant Relationship Goes South' in ezine article,
http://EzineArticles.com/?expert=Ben_Lack,
176
DeWandeler, K. (2006): the Quick Guide on Rental Housing. Nairobi: UNESCAP/UN-Habitat, <www.iut.org>
177
Moss, L, Erven .B (2001): Managing Landlord-Tenant Relationships: A Strategic Perspective, Extension Fact
Sheet. Ohio: Ohio State University, FR-0004-01,
178
Calla, P. (2006): What the Experts Say About Making Sense of Leasehold Property. United kingdom: Lawpack
Publishing Limited, ISBN: 1-904053-12-2, ISBN: 978-1-904053-12-5,
179
DeWandeler, K. (2006): the Quick Guide on Rental Housing. Nairobi: UNESCAP/UN-Habitat, <www.iut.org>

52
for tension. Moreover, when land lord and tenants have shared the same residential experience
for a while, they get to know one another and may develop a bond of friendship and mutual
dependence. He went on to state that the personal nature of rental agreements and the fact that
so many agreements a re concluded o utside the state's regulatory framework, defies the
authority of any legal system. The lack of firm legal grounds makes litigation highly
impractical and slows down a judicial system that in most countries already is
overburdened. 180

[n the opinion of Dillahunt, Mankoff and Paulos much of the research on landlord/tenant
relationships emphasizes the power that landlords have over their tenants. Based on one-year
ethnography of a low-income, multi-unit dwelling, 181 Vaughan argued that low-income
tenants are relatively powerless in the landlord/tenant relationship. He observed that tenants
lack trust in land lords and feared exploitation, a nd in sp ite of tenants' fear of exploitation,
they agreed to join others in organized attempt to improve their units and/or lower their
rents. 182 However, local volunteers/organizers within the community reported difficulty in
mobilizing the community to take action.

On the other hand, in a legal analysis of the relationship between landlords and tenants, Keller
concluded that landlords hold the upper hand in the land lord/tenant relationship and explained
factors affecting the land lord/tenant relationship to include the status of the housing market,
socio-economic status, and existing laws. 183 He argued that those who are paying less may
have difficu lty moving if they are unhappy with their current housing. A lso, landlords renting
in low income markets may not have too many problems fi lli ng vacancies, thus giving
land lords more power in this relationship. Furthermore, in some markets, landlords can pick
and c hoose the best or most suitab le tenants from those that are willi ng to pay, and give them

180
ibid
181 Dillahunt, .T, Mankoff J, Paulos, E. {2009): Understanding Conflict between Landlords and Tenants:
Implications for Energy Sensing and Feedback. Pittsburgh: Proc Ubicomp '09, 255-264.
18 2 Vaughan. w. E. (1994): Landlords and Tenants in Mid-Victorian Ireland. Oxford: Clarendon Press, ISBN 978-0-

19-820356-8
183 Keller, S. (1988): Does The Roof Have To Cave In? The Landlord/Tenant Power Relationship and the

Intentional Infliction of Emotional Distress, Cardozo Law. Rev.9:1663-1698.

53
slight power advantage over the tenants. A landlord may also be able to affect a tenant's life
more than the other way around, as in the case of a landlord withholding heat having greater
impact than a tenant w ithho ld in g the rent.

A tenant may legally withho ld rent or use it to pay for fixing major problems on a property,
whi le the landlord may assert that the tenant is late w ith rent and attempt an eviction. Because
of this, withholding rent is therefore a risk for tenants more so than landlords. This indicates
that laws may empower both land lords and tenants but the existence of pro-tenant laws may
not have much impact o n the overall balance of power. A lthough collective action such as
tenant and rent strikes may aid tenants in gaining power through strength in numbers, when
land lords maintain personal relationships w ith tenants, they may render it more difficult for
tenants to collectively take action against them. 184

Vaughan opined that though confl icts may exist between landlords and tenants, the latter
usually bear no hostility toward the former and often land lord may likely suffer from tenants'
efforts to create change. 185 Dillahunt, Mankoff and Paulos alternatively argued that the
structure of the relatio nship between tenants and landlo rd 's gives landlords power over
tenants. This power is also influenced by personal relations hips, knowledge, and other factors
affecting the power of indi vidua ls. 186 By virtue of its nature, a conflict of interests ex ists in the
Landlord-tenant relationship and various strategies usually initiated primarily by the landlords
minimi ze overt conflict. The relationship tends to be marked by impersonality and consequent
d isinterest in the housing situation, in the case w here landlord is not dependent on the tenant.
A lso, personalization of the relationship occasions noneconomic reliance of the tenant upon
the landlord, especially when owners are less independent of the tenants. In attempting to

184 Popplestone, G. (1972): Collective Action among Private Tenants. British Journal of Social Wo rk, 2(3):369-

386.
185 Vaughan. T. (1968): The landlord-tenant relation in a low-income area. Social

Problems, 16(2):208-218.Vol. 16, No.2 (Autumn, 1968), pp. 208-218

186 Dillahunt, .T, Mankoff J, Paulos, E. (2009): Understanding Conflict between Landlords and Tenants:

Impl ications for Energy Sensing and Feedback. Pittsburgh: Proc Ubicomp '09, 2SS-264.

54
prevent or minimize conflict, the conditions that underlie conflict of interests are not relieved
and such efforts tend to contribute to the situation that they find problematic. 187

4.3 Factors Affecting the Landlord Tenant Relationship

According to Cobb many landlords believe that a thorough, well-written and lawyer-approved
lease should contain all the rules and regulations that a tenant needs to follow, whereas there
is a difference between the terms of a lease and everyday policies that tenants are expected to
follow. 188 As a rule, leases are where the officially authorized matters live, the description of
the property, names of the parties involved, the landlord's legal recourse when terms are not
followed as well as other legal expressions. The house rules are generally more relaxed in
language, are more flexible and are simply intended to help everyone get along better and live
in harmony. They are generally not legally-enforceable documents.

From the study, the major causes of disputes between landlord and tenant include: (i)
Noise: consideration for other tenants is required, noises that disrupt others' quiet enjoyment
are not allowed and form one of the major causes of disputes between landlord and tenant on
one hand and even co tenants on the other. (ii) Parking: This is another major cause of dispute.
Some of the issues that usually arise are; where tenants are allowed to park, how many
vehicles each unit is allowed to keep onsite, where not to park, and whether or not non-
running vehicles are allowed. (iii) Another issue relates to common areas: this determines
whether tenants are allowed to leave property in common areas like hallways, sidewalks and
patios, and whose is responsibility it is to clear dirt from walkways.

Apart from the aforementioned, another source of dispute is rent increment and level of
communication. According to Salloum the problem areas are often of interpersonal

187 Vaughan. T. (1968): The landlord-tenant relation in a low-income area. Social

Problems, 16(2):208-218.Vol. 16, No.2 (Autumn, 1968), pp. 208-218
188
Cobb .S. (1994): A Narrative Perspective on Mediation: Toward the Materialization of the 'Storytelling'
Metaphor. In New Directions in Mediation: Communication Research, 48-63. Thousand Oaks, CA: Sage, 1994.

55
relationships between tenants a nd land lords/managers. 189 Though a number of different issues
arise in the midst of rental agreements, majority result fromor are exacerbated by poor
communication, wh ich itself can be solved with proper commun ication. Communication
marks the fine line that divides rent's inte rpersonal and profess ional interaction, and the
manner in whic h it either exists or not truly impacts tenant-landlord dealings from inception.
The study identified a number of comp laints from tenants wh ich include: work orders;
privacy; lack of assistance with inquiries; rudeness from landlord; nearby tenants; and deposit
reimburseme nt. These are indications of how una nswered work order could displease a tenant
and it is typically a result of an unorganized landlord or manager. It was identified that
noncommunication as to when a person would enter renters dwelling is a common source of
hostility, and it is expected that a landlord must confirm that a tenant has been notified 24
hours ahead of time. As the issue of privacy begins, the drift from professional to personal
interaction a nd quality of the interpersonal relationship are highlighted when focussing on
tenant inquiries that are not part of land lord's contracted duties.

Tenants sometimes break fewer rules, seeking to improve the quality of the community when
they bear reverence for the landlord s/managers. T here is never a need for land lords to flex
mu scles of superiority over tenants; this is always rude and w ill a lways disintegrate healthy
relationsh ips. On a simila r note, generati ng a sense of respect between tenants will serve to
ease the tenant-tenant tension, as occupants wi ll consider their neighbours before turning up
the volume or throwing garbage for all to see. A way to fac ilitate friendly interaction between
tenants is to offer community gatherings for a ll to savour and inte ract; moreover, suc h an act
earns points for the la ndlord. Outgo ing tenants are fantastic sources of re ferral, and so
managers should endeavour to avoid leavi ng a bitter taste in their mouths by handling
proceed ings with security deposits in a simple, equitable, item ized way, and to avoid fri volous
overcharging for adjustments to recently vacated apartment.

189
Salloum, T. {2010): Communicat ion: The Key to a Thriving Land lord-Tenant Relationship. London: The Rent
Lobster.

56
 In the opinion of Vaughan landlord-tenant disputes are extreme ly common and can cause
stress, frustration, and even violence in extreme situations and involvement in a landlord-
tenant dispute may disrupt peaceful enjoyment of a property and raise worries about poor
190
reviews or references in the future. There are many ways to resolve landlord-tenant
disputes in a rational , fair, and safe manner. One of the most important ways to resolve a
dispute about landlord-tenant issues is to have a thorough knowledge of the law. Most regions
have very clearly delineated rights and responsibilities for both tenants and landlords, though
these may vary by jurisdiction, and having a clear understanding of the law might help
determine the difference between a rude or impolite action and an unlawful offense. Both
situations may require resolutions and it is important to know whether a disagreement is
simply a personal issue or grounds for a legal action.

According to Cobb, many landlord-tenant problems anse due to money-related issues

although there are other factors that should be considered. Such issues are: unfair rent
increases, abnormal restrictions, tenants fixing a problem on their own against the
agreement. 191 [n the study on ways to resolve tenant-landlord problems and to eliminate
housing discrimination, Laurent discovered some of the most common problems in landlord
tenant relationships, namely, noise, maintenance, landlord-tenant responsibilities, tenant
selection and security deposit. 192 Noise, is described as probably the most difficult problem in
the tenant-landlord relationship. It arises when a tenant complains to a landlord about another
tenant, usually about the other tenant making too much noise. Th is leads to the questions on
what the land lord may do, if the landlord must do anything, what are the rights of a tenant,
whether if the landlord refuses to help, can the tenant break the lease without
penalty?.Another is the issue of security deposit: many tenants want to know the rules about
security deposits, whether it can be withheld by the landlord and what justifies a charge

19 0
Vaughan. T. (1968): The landlord-tenant relation in a low-income area. Social Problems, 16(2):208-218.Vol.
16, No. 2 (Autumn, 1968), pp. 208-218
191
Cobb .S. (1994): A Narrative Perspective on Mediation: Toward the Materialization of the 'Storytelling'
Metaphor. In New Directions in Mediation: Communication Research, 48-63. Thousand Oaks, CA: Sage, 1994.
192
Laurent, G. B. (1993): Leases. Baltimore: Baltimore Neighborhoods Inc. (BNI), 1993.

57
against the security deposit. If a tenant gives the landlord a deposit and then decides not to
rent, is the landlord justified to keep the deposit. 193

In respect of the questions relating to lease, issues of concern are: what the landlord's
responsibility is. Furthermore, in terms of maintenance, what should be done when a landlord
has promised to renovate an apartment for a tenant to move into and the work is not done or
when the landlord has promised repairs for months but fails to do so. Tenant selection is also
impmiant and concerns a decision whether a landlord should accept the first person who
answers an advert, or if he should choose among several applicants, on what grounds a
landlord may reject a tenant; what steps landlords can take to protect themselves from renting
to undesirable tenants, What tenants can do to protect themselves from becoming involved
with a bad landlord, and how tenants can confirm a landlord.

According to Forester landlord-tenant disputes usually arise when either a tenant or a landlord
does not live up to a tenancy agreement. 194 When either party flouts the rules, disputes may
arise, if the tenanJ does not deliver up possession of the rental unit in the same condition as it
was when he occupied it, the landlord may sue him for damages. If the landlord invades the
privacy of the tenant by visiting the rental unit at unlawful hours and without prior notice, the
tenant may complain and if a landlord forces a tenant out by shutting off utilities, interrupting
services, changing the locks or denying access to the tenant by any other means. Others
include the landlord tore moving external windows, roof and doors in order to force the tenant
out of the premises. These indicate that there are many causes of disputes to which the law has
answers and solutions. Nevertheless, disputes may be minimized by having written lease
agreement and by strictly adhering to the terms and conditions of such agreement. 195

In the opinion of Hirsch, misunderstandings among landlords and tenants are very common,
may cause a strain in their relationship, and lead to early termination of lease, or worse,

193
ibid
194
Forester, J. (1994): Activist Mediation and Public Disputes. In When Talk Works: Profiles of Mediators, edited
by Deborah M. Kolb and Associates. San Francisco: Jessey Bass, 1994.
195
ibid

58
lawsuits. The study recommended that in order to avoid incurring additional damages and
finances in the future, it would be best for both the property owner and the renter to know
their expectations, obligations, and rights. 196 All of these are expected to be clearly stated in
the lease form and it is imperative that these forms are properly written, read, and understood.
Furthermore, a list of things expected to be in a lease agreement was given without which
there may be dispute in the future. This includes an explanation of the person whose
responsibility it is to settle water, electricity and utility bills. If the property owner settles the
utility bills, how much the tenant will pay as part of the rent must be clearly stated.

Leaf explained that disputes between landlord and tenant occurs when one patty fails to
comply with duties that it owes to other or violate any provisions listed in the rent agreement
or lease. 197 If parties are able to resolve the matter among themselves, it will eliminate the
need to seek expensive legal redress. The study listed a few of the common disputes between
landlord and tenant as: non-payment of rent, order of eviction, violation of lease, health and
safety issues. It was stated that a landlord holds every right to receive rent on time and expects
that a tenant will not create nuisance over the rent issue since most of eviction actions are
usually based on non-payment of rent and other lease charges. 198 On the issue of violation of
lease, the lease or rent agreement is a legal contract between the landlord and the tenant and
violation of terms and conditions of a lease by either party is an issue that empowers the
landlord to re-enter the premises and take possession. The landlord can also access a monetary
penalty against the tenant for violating any of the terms and conditions of the lease. The
landlord must provide tenant with written notice, referring to the lease clause being violated
followed by giving the person considerable amount of grace period to resolve the issue. In
respect of health and safety issues, if a tenant damages a rented premise or creates a health
hazard, the landlord might seek to evict him, although the tenant may resolve the matter by

196
Hirsch, Z. W. (1983): Landlord-Tenant Laws and Indigent Black Tenants: Paper Prepared for the Annual
Meeting of The American Economic Association, UCLA Working Paper #322, held at: San Francisco, California,
university of California, December 28, 1983
197
Leaf, M. (1993): Urban Housing in Third World Economies: An Overview of the Literature. Vancouver: Centre
for Human Settlements, School of Community and Regional Planning, the University of British Columbia.
198 ibid

59
repairing the damage. Tenants should avoid disturbing others in neighbourhood and bring
regular upkeep and major repair situations to the landlord's attention. 199

4.4 The cause of evictions and the problems of the current law
The cause of current eviction is not the lack of laws protecting occupants but rather these laws
themselves, which create conflicting rights over land, as well as the lack of a functioning
registration system and a coherent land policy that could guide land administration.

The current provisions which allow the owner to only charge a non-commercial rent and to
only evict tenants for non-payment of this rent leave the registered owners with practically no
authority over "their" land. This might be understandable and apt for land which is occupied
by tenants who are heirs of bibanja holders who already had been on the plot with
authorisation of the Busuulu and Envujjo Law of 1928 or the Toro or Ankole Landlord and
Tenant Law. It is however problematic for so called bona fide occupants who are given
security of occupancy by the mere fact that they have been occupying land unchallenged by
the owner for 12 years before the coming into force of the 1995 Constitution (i.e. since
October 8, l 983). 200 At first glance, it appears that by providing security of tenure for such
occupants, the Land Act only replicates the position that already exists under the Limitations
Act. According to this Act, no action for recovery of land shall be brought before a court after
the expiration of 12 years from the time such rights arose. However, under the Limitations
Act, the period of 12 years does not apply where the person having right of action was under
legal disability. This means it would not apply to landlords who, due to exile, displacement or
being minor, were unable to enforce their rights. However, the Land Act makes no provision
for such instances. Since many owners cannot be blamed for not claiming their rights during
the years of unrest in the seventies and beginning of the eighties, it appears unjust to deprive
them of all their authority over their land.

199
ibid
200
The Uganda Land Alliance, The Land (Amendment) Bill: Transforming Power Relations on Land Equivocally,
(March 2008), p. 6.

60
The situation is further complicated by the fact that most landlords are not identical with, or
heirs of those to whom land was assigned by the 1900 Agreement. Rather, they bought their
land from somebody, and thus expect authority over their land as return for their investment.
The restriction of rights is also problematic in cases where landlords have allowed people to
settle on their land without special licence or leasehold contract for less than 12 years. These
occupants, even if allowed to only settle temporarily, qualify as " lawful occupants" under the
Land Act and cannot be evicted if the owner wants to use his land differently. This is hard to
understand given that it was solely the consent of the owner to temporarily settle on the land
which made them lawful occupants. Where consent is given only for a limited time, after that
time, it should be possible to end the occupancy and use that land otherwise.
Correspondingly, it is often hard to understand for registered owners why they should have no
authority over their land . Meanwhile, there is a great demand for land, especially in the central
region, which stead ily increases in commercial value. As a consequence, land owners have
tried to circumvent the restrictions imposed by the law by se lling of the land titles to people
who have either the money to compensate the occupants or the army muscle to evict them
forcefully. 201 The major cause of the evictions taking place is thus not non -payment of rent,
but the conflict of rights of registered owners and occupants. This conflict of rights also
explains why surveys have found that disputes over mailo plots are sign ificantly hi gher than
for plots under e.g. customary law. 202

In some cases, evictions are also simply caused by flawed judgements of courts or because
local authorities lease or se ll land to investors even though it is occupied by tenants or
customary owners. For example, according to newspaper reports, 400 residents of Bugonga,
Entebbe were threatened with evictions in February 2007 after Wakiso Land Board gave out a
six acre chunk of land to some investors 203 . According to a lawyer's report, registrars and

201
"Land: 87.8% are potential evictees", The New Vision, Special Report, February 23, 2008 and "Sudanese
refugees back Mengo on Land Bill", Daily Monitor, March 12, 2008.
202 Deininger, Legal knowledge and economic development: The case of land rights in Uganda (2006),

203 "Previous evictions", Daily Monitor, February S, 2008.

61
magistrates have been giving eviction orders without visiting the land in question to establish
what is on the ground or without even hearing the evidence from the person to be evicted. 204
Since the current law already is clear as to the procedure to be followed, 205 this ignorance of
the law will not be redressed by simply restating it in an amendment or by transferring power
to the Minister to determine land, but only by better training of the competent persons and
establishment of an overview mechanisms which insures better compliance.

Another reason for land conflicts and unlawful evictions is the fact that there is no functioning
land titling system. The then chairman of the Surveyors' Registration Board, Mr John
Musungu, estimates that 99 % of all land conflicts are caused by unregistered occupants. 206
This might be overestimated but points into the right direction. A survey carried by the World
Bank in cooperation with the Economic Policy Research Council in 2001 showed that
boundary conflicts and tenant-landlord conflicts account for the majority of disputes. 207 This
together with the fact that over 90% of households have no formal documentation208 indicates
that proper titling especially in mailo and urban areas could significantly reduce conflicts. 209

Land Boards are lacking Registrars and, as the "Daily Monitor" reports43, as of 2005 the
country had only two registrars at the central Land Registry in Kampala to handle all
nationwide applications for land titles. Except for customary land titling which selected
District Boards are mandated to carry out, all other land holdings can currently only be
formalised through the city-based Land Registry. This arrangement and the scarce staffing of
the central Land Registry caused an enormous backlog of unprocessed land title applications.
204 Courts are to blame for the illegal evictions", The New Vision, April1, 2008.
205
the Practice Direction No. 1 of 2007 of the Chief Justice (legal Notice No. 11 of 2007 published in the Gazette
on August 5, 2007) on orders relating to registered land which impact on the tenants by occupancy. This notice
emphasises the need to visit the locus in quo and to hear all interested parties and their witnesses. It
applies to proceedings before registrars, judges and all courts subordinate to the High Court, including the Land
Tribunals and the local council courts.
206
"Sort out land survey mess", Daily Monitor, March 25, 2008.
207
Deininger/Castagnini, Journal of Economic Behavior & Organization 60 (3) (2006), pp. 321-45
208
See Deininger et al., Legal knowledge and economic development: The case of land rights in Uganda (2006),
p. 12.
209
ln contrast, in rural areas governed by customary law formal surveying of rights is likely to yield rather
limited benefits, given the costs incurred cf. Fitzpatrick, Development and Change (2005) 36 (3), pp. 449-75
(453).

62
As a result, certain crucial document verification steps were skipped and the system of filing
back land titles/certificates to ensure orderly record keeping has collapsed. 210
This vacuum has been used by criminals to forge titles. Officials at the Ministry of Lands
estimate that about 300 forged land titles are in circu lation in Kampala. 211

Even the titles registered by the Land Registry under due procedure are often inaccurate since
so-called beacons were destroyed in the 1970s and 1980s. Beacons are points of known
latitude, longitude and height values used as control references during land surveys. As a
consequence of the destruction of these land marks the field data feeding into the national
Land Registry has been inaccurate for years thus adding to the mess of the registration system.
212This lack of proper record keeping and persistent inaccuracies in the registry have
also severely contributed to tenure insecurity, especially in urban areas and areas under mailo
tenure, thus making evictions easier. 21 3

4.5 Conclusion
As seen above the landlord-tenant relationship comes with a lot of challenges that are faced by
both sides and these challenges and misunderstanding can be solved by sticking on the terms
of the agreements that exist betWeen the tenant and their land lords. Alternative methods of
solving disputes are encouraged for example using mediation for it is cheap and encourages
reconciliation among parties which is important in the landlord-tenant relationship.

210
ibid
211
Much of the forgery happens as people obtain a photocopy of the original land title held at the Land
Registry. This is possible because by law individuals who lose their land titles can require the Land Registry to
issue a registrar's file copy if they pay Shs 10,000,
212
ibid
213
For this assessment see also Ministry of Lands, Housing and Urban Development, Drafting the National Land
Policy, Working Draft 3 (January 2007), 7.1., 132.

63
 CHAPTER FIVE

FINGINGS, RECOMMENDATIONS AND CONCLUSSION

5.0 Introduction
This chapter discusses the findings, conclusion and recommendations

5.1 FPHJI
The following are the major findings established in the analysis carried out in this study:

I) A number of contexts were developed to explain relationship that exists between landlords
and tenants. From the study, it was discovered that landlords are not only after their rents, they
can be cooperative every now and then. Estate Surveyors alleged that landlords have a
characteristically business minded and ambitious nature, evident by the manner in which they
hound after rent and other money related issues. In addition to this, responses portrayed
tenants as being characteristically co-operative besides being at the mercies of landlords. This
paints the picture of tenants as susceptible and subject to the demands of landlords.

Conclusively, information from the study disclosed that despite the fact that landlords are self-
styled to be purely business men and tenants at the mercies of the landlords, the nature of
landlord-tenant relationship is still very much viewed as cordial and subsequently that of a
mutual participation.

Moreover, the study exposed a general consideration that the responsibility of maintaining and
developing a good working relationship between landlords and tenants lies bulkily in the
hands of the Estate Surveyor.

Alluding from the characteristics and responses of the respondent tenants in the study area, the
study revealed that low-income earners are the most troublesome of tenants, up and above
high-income tenants. Thereby leaving medium-income tenants as the least troublesome of all
the three classes of tenants, as evident by the relative importance index analysis carried out.

2. The study showed that tenants' are most sensitive and responsive to issues on payment of
rent and rent revision. Categorically, tenants are least responsive to issues relating to payment

64
of charges such as electricity and water bills. On the other hand, combined ratings of
respondent residents and surveyors responses show that landlords respond quicker to issues
pertaining to rent, and quite enjoyment of tenants in the premises.

3. [t is experiential that most landlords deem that the main problem of tenants in the lease is
default in the payment of rent, thus attributing their s low response to tenants' maintenance and
other requests to this. Meanwhile, tenants blame their slow response to payment of rent on the
slow response of landlords to repairs and maintenance. Contrary to their opinion, results as
evident by analysis of variance (AN OVA) between payment of rent by tenant and response to
responsibilities by land lords showed that payment of rent by tenants is insignificant to
land lords' response to tenants' request. The results showed that services provided by the
landlords neither improves nor decrease, regardless of whether tenants pay rent or not and
vice versa.

4. In a bid to decipher if disputes arise between landlords and tenants, it was discovered that
while almost a ll respondent Surveyors had encountered disputes in the course of property
management, there is a lmost an equal ratio of those landlords and tenants that have
encountered disputes and those that have never stumbled upon such disputes in the course of
the ir lease. This somewhat counteracts the general judgment that no lease can occur without
any resulting disputes whatsoever.

On another note, it is safe to voice that medium income tenants often default in the payment
of rent and bills hardly constitute a nuisance let alone damage landlord 's fittings and fixture;
and by a hair's breadth quarrel w ith co-tenants. Furthermore, it has been established that
landlords consider disputes between themselves and tenants as sign ificantly accumu lated from
mainstream problems such as default in rent payment and nuisance on the tenants' part. On
the other hand, Estate Surveyors and tenants mutually think of land lords as most problematic
when issues on refusal to repair and maintain property and demanding for rent in advance
transpire.

As a result, the study illuminated the major causes of consequential problems, wh ich soon
after result to dispute to be for the most part; rent, repairs/maintenance and payment of bills

65
with personal differences amongst parties at the bottom of the list, in other of importance. At
last, the reason for lack of trust between parties is prearranged as a result of gap caused by
estate managers, who serve as middle men between landlords and tenants, closely followed by
lack of communication between landlords and tenants.

5. In addition, it was revealed that the best most recurrent approach adopted by landlords,
tenants and the Estate Surveyors and Valuers' to resolve landlord-tenant disputes is arranging
a general meeting between the parties under debate. This is evident by in-house resolution
being the uppermost choice in the path of dispute resolution options from existent property
management practice, com ing before mediation , leaving arbitration and litigation as a last
resort.

5.2 Conclusions
Irrefutably, relationships are important, underappreciated and a source of risk for landlords
and their tenants. For the landlord, an effective relationship management strategy ensures that
investment or other goals for the property are achieved. For the tenant, effective management
strategy is fundamenta lly important to his security of tenure, while in respect of both parties, it
prevents or mitigates the costs of conflict and disagreement.

5.3 Recommendations

5.3.1 Amend the Land Act to remove internal conflict

As discussed in this paper, the Land Act intends to secure tenancy for the tenant by occupancy
on payment of rent (Busuulu), but at the same time reserves the landlord 's right to sell if he
"wishes." Exercise of the right to sell the land is not necessarily dependent on whether there is
default on Busulu; it is a recognized proprietary right of a land owner to exercise a right to
sell. [n essence, the Land Act preserves two conflicting agendas that do not auger well with
the tenant by occupancy. Respondents suggested that the law shou ld be amended to protect
those that pay their rent regularly. The law should restrain the landlord from se lling the land
just because the Busulu is meagre. Only then can the goal of protecting the tenants by
occupancy be achieved. A lthough this makes logica l sense, the fact that the Land Act does not
necessarily stipulate that exercise of the full range of proprietary rights is subject to the
continued existence of a tenant by occupancy mean that this would vitiate the recognized

66
rights of the land owner. The law does not intend to achieve this, but to regulate the
relationship between landlord and tenant, and the landlord remains the perpetual "owner" of
the land.

5.3.2 Designing an effective a nd sound land registration and titling system

This should be a ble to capture all informal land rights as well as land rights which are
recognized by law so that these are ma pped together as they exist side by side. This will in the
long run help the local a uthorities to incrementally develop a la nd information system that is
useful not on ly in terms of physical planning bu t also in terms of land taxation which will
generate revenue to be used to acquire land in public interest as well as to compensate people
who have been affected by la nd use plans in a timely manner in a w in-wi n situation. The land
registration system should be complemented w ith a Geograp hic Information System (GIS) as
a planning tool.

5.3.3 Introduction of la nd taxation, fines and penalties

It is also recommended that a fair a nd efficient land taxation system be designed so that land
owners are encouraged to use their land for economic deve lopment instead of keeping it idle.
Land taxation should be coupled w ith fines and penalti es to those who hold unto undeveloped
land and those who develop centrall y to approved plans. T hi s measure will compel those with
land which they cannot use to se ll it off or lease it to those who are able to use it. This will
lead to formalizing the land market and c heck the ever growing club of land speculators who
are taking advantage of the conditions provided by the info rmal land delivery system in
Kampala.

5.3.4 Transforming land owners hip arrangements from communal to private land
ownership
In order to promote efficient and equitable land tra nsactions, deliberate policies should be
designed to transform land ownership arrangements from communal to private land
ownership. Such policies should inc lude measures such as the extension of infrastructure e.g.,
roads to the remote communities so as to enhance accessib ility which promotes the
commercialization a nd transformation of agriculture from the extensive-traditional to the
intensive-modern farming that, in tum, ind uces the demand for private land rights. Indeed, [

67
found that there is a higher incidence of private land ownership in communities that are
connected to district capital by the tarmac road than communities connected by season-dirt
road. In addition, policies that ease rural-to-rural migration may facilitate the privatization of
land ownership. This w ill improve the performance of land markets wh ich will in turn
increase production efficiency, boost agriculture performance, and reduce poverty in the rural
areas. Nonetheless, they should be implemented with caution so that they do not cause land
disputes and conflicts among residents because land conflicts reduce the agricultural
productivity.

5.3.5 Curbing land conflicts

The study also suggests that policies should aim at improving land tenure security through
curbing land conflicts. Efforts shou ld be particularly geared toward reducing eviction related
conflicts which were found to be more hazardous to tenants. In additions, the researcher found
out that more boundary conflict in immigrant communities which might be caused by poor
boundary demarcation. Indeed, I found that landholders use live plants to demarcate land and
to mark land boundaries in more than 80% of the communities. Live plants can be uprooted
and replanted in a different position which, if detected, may lead to land conflicts. Adoption
of better land demarcation mechanisms like use of survey stones may be a key to reducing
boundary conflicts.

5.3.6 Fair enforcement of existing law for both tenants and landlords
The law in place is relatively progressive. Yet, during its reign, the tenants are losing rights to
their land. The findings show that these have not been able to seek the benefits of the law. The
landlords have many times been in position to cite the law or use it for their benefit. In this
situation, the law only helps those that have capacity for agency for themselves; something
lacking among many tenants. The outcomes of imbalanced app lication of the law therefore
present cruel capriciousness for the tenant and their rights to land. Instead of leaving it to-
whom-it- may- concern, there is need for establishment of agency for the government through
established decentralized authorities to ensure that that there is heed to the law in all dealings
between landlords and tenants by occupancy. Fair enforcement of the law for both landlords

68
and tenants by occupancy requires establishment of all the land management and
administration institutions and equipping them to execute their mandate.

5.3.7 Surveyors
The tenants by occupancy need to be protected against the losses resulting from the insidious
practices of surveyors who are hired by the landlords. Emphasis should be put on both
landlord and tenant agreeing on of government surveyors at the District. [t was highlighted
that among the ways th is could be achieved is by lobbying the government to ensure that there
is always a pool of surveyors from whom both the landlord and tenant would pick a surveyor,
to avoid situations where surveyors are single handedly identified and hired by the landlord.
In such cases, they act in the best interest of the landlord and not that of the landlord and the
tenant by occupancy.
In addition to the above, to cure the wrongs of the surveyors who may have made fraudulent
measurements of the land, criminal prosecutions shou ld be instituted or disciplinary action
before their professional body (the Institution of Surveyors of Uganda). Neglect of the above
may only promote the ethical dilemma brought about by the unethical conduct of such
surveyors.
Obligation of the estate surveying and valuation profession is to serve as healers of human
conflict and in a bid to fulfil the traditional obligation, mechanisms should be provided to
produce an acceptable result in the shortest possible time, at the least possible expense and
minimal stress on the disputants.

5.3.8 Improvement on communication skill

Parties in Landlord-tenant relationship shou ld improve their communication skill, approach
communication with positive and creative attitude and work to reduce barriers in dispute
resolution. A forum between tenant and landlords of the lease should be organized, defining
what they find acceptable or offensive in order to sustain the a llegedly cordial relationship.
More so, day to day practices should be further attuned to support laid down laws of landlord-
tenant relations in order to avoid problems which if not attended to perpetually result in
disputes.

69
Covenants in tenancy agreements could provide a vehicle for conflict resolution between
landlords and tenants, but this is not significant. Although many local authorities have clauses
to deal with conflict reso lution, it is very much a mixed picture, and it is suggested that
confidence in the agreement to deal with disputes should be enhanced if one or more of the
clauses are used and agreed in advance of any disputes arising.

70
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