MAILO TENURE

HISTORICAL PERSPECTIVE
• It was a semi-freehold tenure system confined
to Buganda Kingdom and part of Bunyoro
mainly in Kibaale.
• It was established under the terms of 1900
Buganda Agreement between the Kabaka of
Buganda and the British Government.
• The agreement was intended to achieve the
following:
 Cont’d
1. To maintain political order in the kingdom of
Buganda
2. To shore up the position of the Kabaka
3. To allow the peaceful imposition of colonial rule.
• Under this agreement about half of the land
in the kingdom of Buganda was allocated to
the Kabaka, the royal family and several
thousand to Baganda chiefs and notables.
 Cont’d
• The rest of land was allocated to the
Protectorate as crown land.
• The land allocations were expressed in
multiples or fractions of square miles hence the
term mailo.
• Initially only a few priviledged people owned
mailo land. Gradually through donation and
inheritance the land was sub-divided and
fragmented.
 Cont’d
• By 1962 there were several thousands mailo
owners mainly owning small parcels.
• The parcels were registered and certificates
were issued to the owners under the RTA.
 Cont’d
• The land was granted without any conditions
of tenure but subsequently mailo owners
were prohibited from transferring or leasing
their land to a non-citizen or a religious
organisation without prior authority of the
Lukiiko( Buganda council) and the governor.
 Cont’d
• Allocation of the original mailo holdings was
made without regard to pre-existing rights of
occupancy and ignored the presence of
peasant cultivators whose tenancy rights were
recognised under the customary system of
land tenure.
• This created difficulties to mailo system.
 Cont’d
• Kibanja holders/ peasants who had settled on
the land as tenants with the consent of the
mailo owner paid busuulu (land rents) and
envujjo (commodity rents to the mailo owner)
 Cont’d
• In the early 1920s chiefs and landowners
increased busuulu and envujjo to
unreasonable levels.
• This undue burden on peasant tenants led to
an alliance of the peasant with
Bataka( traditional clan leaders)
• The Bataka’s land rights had not been
addressed by the Buganda Agreement,1900
 Cont’d
• In their alliance with the peasants whose
labour and revenue had been excessively
exploited by the new landlords, both parties
staged a struggle of the Bataka movement in
the 1920’s.
• In response to the above, the British forced
the Lukiiko to pass the Busuulu and Envujjo
Law of 1928 to regulate the rights and
obligations of a kibanja holder or mailo owner.
 Cont’d
• Under this law, If a mailo owner allowed a person to
settle on his or her land as a kibanja holder, the
kibanja holder was deemed to enjoy an inheritable
permanent right of occupancy subject to payment of
a fixed annual rent.
• The law set a limit on the fee to be paid to the
landowner.
• Busuulu was fixed at 10 shillings or one months
labour plus a merely nominal envujjo of 4 shillings
per acre of coffee or cotton.
 Cont’d
• Further a mailo owner could not evict a
kibanja holder except where the land was
required for a public purpose or for other
good and sufficient cause, or if the holder left
the land unattended for more than six
months.
• In all cases the eviction had to be sanctioned
by a court.
 Cont’d
• The kibanja holder could sell, pledge or even
mortgage the land at will subject only to the
condition that he or she had to introduce any
new tenant to the mailo owner to whom he or
she owed a duty to pay busuulu.
 Cont’d
• The Busuulu and Envujjo law was largely
instrumental in preventing the development
of a landless, peasant class.
• Over the years, the position of the peasant
tenant became even more secure as the
customary fees remain unchanged and as
courts became increasingly reluctant to permit
evictions.
 Cont’d
• The World Bank Mission to Uganda(1960)
believed that the creation of the concept of
private ownership of land in Buganda had
aided that province in its development.
 Cont’d
• Security of tenure has facilitated investment
particularly in coffee and the creation of a
land market has discouraged the use of
valuable land for subsistence purposes.
• The right to own land and the conversion of
land into a negotiable asset has assisted the
emergence of groups of producers who are
commercially oriented and are beginning to
specialise in production for the market.
 Cont’d
• Another investigation concluded that the
introduction of mailo was a blessing in disguise
for Buganda because it put most of the best
land in the province into private ownership,
thereby breaking the grip of tribal custom and
laying the foundation of sound land policy.
• This explains the relatively advanced economic
stage of that region vis-a-vis other regions of
Uganda.
 The Land Reform Decree, 1975
• It empowered mailo owners to evict bibanja
holders from their land for economic
development.
• Bibanja holders or squatters who were in
occupation of mailo land were at a risk of
possible eviction by landowners i.e they were
“tenants at suffrance.”
 The Constitution, 1995
• During the deliberations that led to the
promulgation of the 1995 Constitution, many
representatives in the Constituent Assembly
were apprehensive that land owners might
evict these people en masse and this might
lead to social unrest.
 Cont’d
• To forestall the problem, article 237 (8) of the
constitution provides that all persons in
‘lawful’ or ‘bonafide’ occupation of mailo land
shall enjoy security of tenure until parliament
enacted an appropriate legislation regulating
the relationship between such occupants and
the registered proprietors.
 The Land Act, 1998
• S.3(4) of the Land Act describes Mailo tenure as
a form of tenure which derives its legality from
the constitution and its incidents from written
law.
• It involves holding registered land in perpetuity.
• It permits separation of ownership of land
from ownership of developments on land
made by a lawful or bonafide occupant.
 Cont’d
• S. 29(1) of the Land Act defines who a “lawful
occupant” and “bonafide occupant” are ( Refer to
the Act).
• The Land Act deems a bonafide or lawful occupant
of land to be a tenant by occupancy of the
registered owner of the land.
• The Land (Amendment) Act, 2004 and the Land
(Amendment) Act 2010 do enhance the security of
tenure of tenants by occupancy on registered land.
 Cont’d
• Kampala District Land Board and Chemical
Distributor v National Housing Construction
Corporation Civil Appeal No.2 of 2004
• Court held that a person who has been in
occupation or possession of the suit land for
more than 12 years at the time of the coming in
force of the 1995 Constitution and utilized the
land without any challenge from the registered
proprietor can claim bonafide occupancy
 Cont’d
• In Kampala District Land Board & anor v
Venansio Babweyaka and others court
concluded that the respondents who had
purchased the suit land in 1998 from persons
who had occupied and utilised the land since
1970 were deemed to be bonafide occupants
pursuant to S.29(5)
• Kyepaka Francis & Anor v George Rwakarongo
& Others Civil Suit No. 289 0f 2007
 Cont’d
• Kampala District Land Board and Chemical
Distributors v National Housing and
Construction Civil Appeal No. 2 of 2004
• HELD: The respondent had not only been in
occupation or possession of the suit land for
more than 12 years at the time of coming into
force of the 1995 Constitution without any
challenge.
 Cont’d
• Micheal Mulyanti & Others v Jackline
Bataringaya 7 Others Civil Suit No. 434 of 2008
• HELD; The moment the suit land was sold the
late Bataringaya the Mulyanti family lost all their
legal interest and those who remained in the
premises became mere licencees
• S. 29 (4) - A person on land on the basis of a
licence from the registered owner shall not be
taken to be a lawful or bonafide occupant
 Cont’d
• Nalongo Nalwoga Nakazi v Salongo Kesi
Bagalaaliwo Civil Appeal No.084 of 2012
court held that the respondent was
undoubtedly a bonafide occupant having
occupied, developed and utilised his kibanja
continuously and unchallenged since 1960
 The Rights and Obligations of a Tenant by
Occupancy
• Under the Amendment Act of 2010, s. 31(3e) the
tenant by occupancy is required to pay to the
registered owner of land an annual nominal ground
rent.
• The Amendment Act of 2004 provides that nominal
ground rent payable by tenants by occupancy shall
mean reasonable ground rent taking into
consideration the circumstances of each case and
the rent shall be of a non-commercial nature. ( s. 31
as amended).
 Cont’d
• S.32 A (2010 Amendment) is to the effect that
a tenant by occupancy shall not be evicted
from registered land except upon an order of
eviction issued by a court and only for non-
payment of the annual nominal ground rent.
• A court shall before making an order of
eviction take into consideration the matters
specified in section 32(1).
 Cont’d
• Under S.32(2) c when making an order for
eviction of a tenant by occupancy, the court
has to state in the order, the date, being not
less than six months after the date of the
order by which the person to be evicted shall
vacate the land.
• The court may also grant any other order as to
expenses, damages, compensation or any
other matter as it thinks fit.
 Cont’d
• The Act also makes it an offence for a person
to attempt to evict or participate in the
eviction of a lawful or bonafide occupant
from registered land without an order of
court.
• The liability for the above offence on
conviction is imprisonment for a period not
exceeding seven years.
 Certificate of occupancy and Registrable
interest
• S. 33(1) empowers a tenant by occupancy to apply
to the registered owner for and be issued with a
certificate of occupancy in the prescribed form in
respect of the land which he or she occupies.
• The certificate is issued at the sub-county after a
thorough investigation and verification of the
claim and boundaries of the land occupied.
• The process requires the involvement of both the
registered land owner and the tenant.
 Cont’d
• The registered land owner has to give his/her
consent and such consent shall not be
unreasonably withheld except for good reasons.
• The tenant has a right to appeal to the court
upon refusal of such consent.
• A tenant by occupancy is only entitled to be
issued with a certificate of occupancy after the
payment of ground rent for the land and has no
arrears.
 Cont’d
• Upon issuing the certificate, the recorder
must notify Registrar of the issue and an
encumbrance to that effect has to be
endorsed on the certificate of title.
Effect of endorsing a certificate of occupancy
on the landowner’s title
• The tenant’s interest in the land would bind any
person who purchases or deals in that land.
• Land right on the holder of C.O.O would
constitute an exception to the principle of
indefeasibility of title under the RTA.
• In Lukwago v Bawa Singh & Another[1959] EA
282 court held that a title of a registered
proprietor of mailo land was subject to the
interest of any tenants.
 Cont’d
• Provides documentary evidence that the
named person has a right of occupancy over
the subject land. This in turn facilitates land
transactions with respect to rights of
occupancy.
Transactions with the Tenant by Occupancy

• A tenant by occupancy is inheritable.(s.34(2))

• A tenant by occupancy may with the consent
of the registered owner assign, sub-let or sub-
divide the tenancy. ( s.34(1) )
• Prior to undertaking the above transaction,
the tenant must submit an application to the
registered owner seeking for his or her
consent. ( See procedure under s. 34)
 Cont’d
• No transaction effected by the tenant by occupancy
can be valid and effective to pass any interest in
land if it is undertaken without a consent. ( s.34(9))
• A tenant who wishes to assign the tenancy must
give the first option of taking the assignment of the
tenancy to the owner of the land. ( s.35)
• The owner of the land who wishes to sell the
reversionary interest must give the first option of
buying that interest to the tenant by occupancy.
 Cont’d
• The Land (Amendment) Act, 2010 makes it an
offence if the tenant does not give the first
option to the registered owner of the land.
• Conversely, a transaction for the sale of the
interest in land by the owner made without
giving the first option of buying the interest to
the tenant by occupancy is invalid and the
commissioner does not make any entry on the
certificate of title in respect of the transaction.
Abandonment or Termination of Occupancy

• Where a tenant by occupancy voluntarily

abandons his or her occupancy, the right of
occupancy elapses. ( s.37)
• In such a case the occupant may remove any
structures, buildings and other things placed on
the land but not dams or trees.
• Voluntary abandonment occurs when an
occupant gives notice to the registered owner of
his or her intention to abandon the occupancy.
 Cont’d
• It also occurs where the occupant leaves the
whole land unattended to by himself or
herself or a member of his or her family or his
or her authorized agent for three years or
more.
• Where the occupant proves that he or she was
under a disability during any part of the
period, the period of three years is extended.
 Cont’d

• Buganda Land Board.

• Kibaale question
 Challenges faced in streamlining the
landlord - tenant relationship

• Overlapping interests in land

- It is historical and of contemporary
significance
- The laws seem unfavourable to the landlords
who by- pass the tenants and sell their land to
persons that have leverage politically,
millitarily or financially to carry out evictions.
 Cont’d
• The landlords enjoy perpetual ownership of
land yet these are encumbered by the rights
of tenants by occupancy which too are
perpetual in nature and are protected in law.
• The challenge therefore is who has better
leverage to control, access and use of land.
 Uganda’s Legal, policy and Institutional framework

• This has not fully benefited victims of evictions

• The lower institutions in the decentralized
structures are not well empowered to dispense
with their mandate e.g sub-county, urban and
District Land Tribunal.
• The traditional institutions have been relegated to
the periphery yet they are faster in dealing with
land disputes compared to formal institutions.
 Cont’d
• Limited public awareness of the content of
the legal regime and how to seek to benefit
from them.
• Following Practice Direction No. 1 of 2006
magistrate courts took over the mandate of
the tribunals to handle land matters.
 Capitalism
• Capitalism has led to intensification of
investment that requires huge chunks of land
• Movement from small scale subsistence
agriculture to large scale commercial
agriculture has in some instances led to the
use of underhand methods of land acquisition
aimed at benefiting the large scale commercial
farmer at the expense of the local subsistence
farmer.
 Cont’d
• The consequence of this is the eviction of the
subsistence user and take over of his or her
land by the investor, in default of set standards
of fairness to these subsistence user.
 Certificates of title/Occupancy
• Certification has greatly hinged on increasing the
value of land rights as collateral for loans for
financial institutions.
• Since the land owner and the tenant by occupancy
may have certificates ( though of varying classes
and strength) with the ability to use them as
collateral, a failure to fulfil the conditions for the
loan may result into eviction of the other with
substantive valid rights to the land.
 Selling option
• The L.A under S.35 empowers both the landlord
and the tenant by occupancy to sell his /her
interest in the land to the other giving each
other the first option.
• The sale is on a willing buyer willing seller basis
as per s.35(3)
• The erroneous presumption is that there is
equality of arms between the landlord and the
tenant for a balanced /fair negotiations.
 Cont’d
• Albeit the law protects the rights of both
parties, these are unequal in reality.
• Landlords have better leverage to buy out the
tenant than the tenant can to sell out the
landlord.
• The tenants are usually intimidated to accept
any deals due to feelings of being under the
mercy of the landlord
 Cont’d
• Without a third party designated by the
government or such deals being checked by a
designated institution the tenant by
occupancy is left helpless.
 Cont’d
• Although the owner is by law authorized to sell,
the land is considered encumbered and finding
purchasers for it may be difficult because the land
is unattractive.
• In Uganda Posts and Telecommunication v A.K.M
Lutaaya SCCA No. 36/1996, court held that
purchasers of such land are considered to have
constructive notice of the tenants on the land and
therefore take it subject to their interests.
 Literacy Levels
• Low levels of literacy and the feelings of
powerlessness on the part of tenants keeps
them away from invoking the provisions for
their benefit.
 Penalty for non-compliance
• The penalty for non-compliance in section 35 is
harsher for the tenant than the landlord.
• The Land ( Amendment) Act 2010 introduces s.
35(1a) which makes it an offence for the tenant
to sell without giving the first option to the
landlord and is liable to imprisonment for four
years or a fine of 90 currency points or both.
• The said sale is also invalidated and the landlord
has a right to take the reversionary interest.
 Cont’d
• Conversely ,the Land Amendment Act of 2010
introduces s.35(8) and allows the landlord to
pass on a title to a new purchaser without
committing a crime.
 Mutual Agreements to share or become
joint proprietors
• S.36 (1) L.A gives room for both parties to
mutually agree to share or become joint
proprietors on that land which a tenant by
occupancy has an interest either as joint
tenants or tenants in common.
• This arrangement does not give the tenant
absolute ownership of land.
• It is mere exclusive occupancy and not
perpetual ownership.
 Cont’d
• The dual and overlapping rights on the land
with its complexities still remain on foot.
• Incase of sub-divisions and ownership of
portions of land and in the case of joint
tenancies or tenancies in common the tenant
would be entitled to a certificate of title.
 Cont’d
• The strength of the tenant’s protection would
arise from the indefeasibility principle where
his title would be protected from rival claims.
• In Kristopher Zimbe v Tokana Kamanza(1954)
ULR 68 court held that such a certificate is
indefeasible and can only be defeated in the
case of fraud.
 Conclusion
• Much as these are good provisions meant to
offer the tenant protection, there is a
knowledge gap and the same tenants do not
have the bargaining power to push for better
deals therefore unable to benefit from the
provisions.
 Cont’d
• The Land Act preserves two conflicting agendas.
The Act intends to secure tenancy for the tenant
by occupancy on payment of rent but at the same
time reserves the landlord’s right to sell if he so
wishes.
• Exercise to sell land is not necessarily dependant
on default in paying rent but it is a recognized
proprietary right of a land owner.
• There is a gap between law and practice.
 KIBAALE LAND QUESTION
• With the 1900 Uganda Agreement the British
Government granted the elite in Buganda
Kingdom large tracts of titled land in parts of
Bunyoro Kingdom.
• This area, including the present Kibaale
District, is commonly referred to as the "Lost
Counties".
 Cont’d
• In 1918 a group of young Banyoro founded the
Mubende Banyoro Committee (MBC) as an
ethnic protest movement for all Banyoro in the
“Lost Counties”.
• During the colonial period Bunyoro Kingdom
and the MBC tried to regain what was lost with
the 1900 Uganda Agreement, but the British
postponed the contentious “Lost Counties”
issue until after independence.
 Cont’d
• In 1964 after a referendum, the local Banyoro
voted for a return of political and
administrative powers . These powers were
transferred from Baganda to Banyoro
authorities in the counties of Buyaga and
Bugangaizi (present Kibaale).
 Cont’d
• The referendum brought back the counties,
the chiefs were removed, the people stopped
paying the Buganda-imposed taxes.
• However , in all the “Lost Counties” mailo land
arrangements remained unchanged.
 Cont’d
• This left most of the arable land in the present
Kibaale District, around 60 percent, in the legal
possession of Baganda absentee landlords.
• The land titles to mailo land in the “Lost
Counties” were neither transferred from the
Baganda landlords to Bunyoro Kingdom nor to
the people living in the counties leaving them
as squatters.
 Cont’d
• Many natives of Bunyoro saw the return of the
lost counties as a sigh of relief, though the
same kicked in land injustice that has dragged
on for decades.
• This meant that the referendum did not
address the issue of land ownership as it was
expected then.
 Cont’d
• In the 2002/3 Financial Year, the Uganda Land
Commission under the ministry of Lands
enacted the Land Fund to kick-start the
process of compensating the absentee
landlords willing to relinquish interests in land
which was occupied by millions of tenants.
 Cont’d
• Government, using the Land Fund, has since
2002, purchased 200,000 acres of mailo land
from absentee landlords in Bunyoro, Tooro,
Buganda and Ankole sub-regions.
• This has been done in a bid to redress the past
colonial mistakes and correct the land
injustices meted against Banyoro by
colonialists and their collaborators.
 Cont’d
• President Museveni recently commissioned a
land office in Kibaale by giving 254 land titles
to tenants in Buyaga and Bugangaizi.
• To many natives; this was liberation of their
land after more than 100 years of living as
squatters on their motherland.
 KYAPA MUNGALO
• This was a campaign meant to secure title for
bibanja holders.
• Persons occupying kabaka’s land were to get
49 year leases renewable at subsidized
charges in place of kibanja interests
• The advantage advanced for a lease is the
ability to use the land as collateral to borrow
money and protect one’s interest.
 Analysis of “Kyapa mu Ngalo”
• The offer has been seen as a ploy to deny
tenants their rights to the land they occupy as
tenants.
• The value that comes from holding title to
land cannot be underestimated.
• The Kibanja interest is perpetual in nature and
offers continuous security of tenure in return
for the payment of non- commercial rent.
 Cont’d
• The fees for the acquisition of leasehold title
though subsidized are still relatively high for
the average kibanja holder.