An interest in land can not be extinguished by legislation without compensation. Nampewo & Another v Attorney General (Constitutional Petition No. 10 of 2020) was wrongly decided by the Constitutional Court of Uganda

by Admin · Published June 13, 2026 · Updated June 16, 2026

In the state of nature man’s life was short, brutal and chaotic. To protect his property and improve his life man decided to enter a social contract to form society. By forming society man did not give up either his life or his property and therefore they form two of the most fundermantal and inalienable rights. No law can purport to deprive man of his right to life and property except the reasonable limitations such as death penalty and statute of limitations that he accepted when he formed and subjected himself to the collective will of society.

In line with this social contract, article 26 of the Constitution of Uganda provides that the state shall not takeover the property of any person whether in public interest or not without adequate compensation. Taking of property by government action takes two forms:

Expropriation without compensation or per se takings. This refers to take over of ownership rights such as use or occupation or the right to transact such that the owner is stripped of the benefits or antecedents of ownership.
Regulatory takings. This refers to limitations to the ownership of property that don’t amount to physical takeover of land and don’t render ownership illusionary or worthless.

Section 35 (1)(a) of the Land Act provides that a tenant by occupancy who transacts with his or her kibanja interest in land without giving the landlord notice and the first option to purchase shall lose his or her interest in the land. However, the tenant by occupancy can pass the interest under a will without the permission of the Landlord. In Nampewo & Another v Attorney General (Constitutional Petition No. 10 of 2020), it was argued that it was unconstitutional for the tenant by occupancy to lose his or her when he or she violates this section. The Constitutional Court of Uganda disagreed and upheld the constitutionality of Section 35 (1)(a) of the Land Act.

The Court ruled that tenants by occupancy (bibanja holders) lose their interest in land and forfeit their tenancy if they attempt to sell or assign their tenancy rights without first offering the landlord the first option to buy.
The Court ruled that criminalizing tenants who assign or sell their tenancy without the landlord’s consent is a legitimate limitation on property rights and does not violate the Constitution. The provisions were deemed a valid legislative framework meant to regulate the balance between landlords and tenants.
The Court clarified that upon breach of this statutory requirement, the registered owner has no obligation to compensate the tenant for taking back the land.

It is widely accepted that limitations to the right to property including taxation must be reasonable and proportionate as decided by Court in Okiya Omtatah Okoiti v Commissioner General, Kenya Revenue Authority and 2 others as follows:

Tax inherently infringes the right to property, being an expropriation of one’s hard-earned money. It follows that for the tax to be lawful, the law introducing it must not only be lawful but it must meet the Article 24 analysis test in that it must be reasonable and justifiable in a open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

Okiya Omtatah Okoiti v Commissioner General, Kenya Revenue Authority and 2 others (2018) eKLR

Article 26 of the Constitution forbids the state from taking over the property of individuals without adequate compensation. The Supreme Court of Uganda has ruled that the state must pay the compensation before taking over the property. See, Uganda National Roads Authority v Irumba & Anor, SC Constitutional Appeal, No. 2 of 2014. The courts in Uganda have not addressed the constitutionality of laws that burden the use of property rather than amounting to a physical use or possession of the property of an individual by the state.

For example, Can KCCA deny planning permission to all unregistered land owners thus rending their land unusable without violating the law? Furthermore, can government outlaw the growing of maize by Ugandans without violating the right to property and the prohibition against state taking of property without adequate compensation? In the US, Current law distinguishes between per se takings, which involve unusually severe intrusions on private property and are treated with particular skepticism by courts, and milder intrusions on property rights that fall under the broader umbrella of “regulatory” takings. Under existing precedents, a law doesn’t count as a per se taking unless it deprives a property owner of “all economically beneficial or productive use” of their property, or subjects the property owner to a “permanent physical occupation” of their property. Court precedent emphasizes that a taking may more readily be found in circumstances where the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.”

However, court has often upheld substantial regulation of an owner’s use of his own property where it is deemed necessary to promote the public interest. The functional basis for permitting the government, by regulation, to affect property values without compensation is that “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law,” Government regulation by definition involves the adjustment of rights for the public good. Often this adjustment curtails some potential for negative implication for the use or economic exploitation of private property. To require compensation in all such circumstances would effectively compel the government to regulate by purchase. “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922). However, court precedent is clear that this does not apply to the relatively rare situations where the government has deprived a landowner of all economically beneficial uses.

In Andrus v. Allard, 444, artifact owner possessed artifacts composed of feathers of currently protected birds, but the artifacts existed before the statutory protections of the Eagle Protection Act (Eagle Act), came into force. The appellee was prosecuted for violations of the Eagle Act and the appellee brought suit and alleged that the statutes did not forbid the sale of appellee’s artifacts insofar as the constituent birds’ parts were obtained prior to the effective dates of the statutes. The district court agreed. The Supreme Court held that:

The regulations challenged here do not compel the surrender of the artifacts, and there is no physical invasion or restraint upon them. Rather, a significant restriction has been imposed on one means of disposing of the artifacts. But the denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full “bundle” of property rights, the destruction of one “strand” of the bundle is not a taking, because the aggregate must be viewed in its entirety. We hold that the simple prohibition of the sale of lawfully acquired property in this case does not effect a taking in violation of the Fifth Amendment.

Andrus v. Allard, 444.

Given that Parliament can impose substantial regulation on a land owner’s use of his own property where deemed necessary to promote the public interest and it can lawfully affect property values without compensation for every such change in the general law, it means that not every restriction to the property rights constitutes a taking under Article 26(2) of the Constitution. The Supreme Court of Uganda was clear in Dimanche Sharon and 2 Others v Makerere University, Supreme Court Constitutional Appeal No. 2 of 2004 that parliament may impose such limits on the enjoyment of constitutional rights as a reasonably necessary to protect the public interest provided that they are narrowly tailored and do not unduly burden the enjoyment of individual rights. The nature of land ownership is that various individuals can own the same or different interests in the same land at the same time. Land has an extensive bundle of rights associated with land ownership including possession, use, transactional rights and very many other rights.

To constitute expropriation without compensation or per se taking a regulation of land ownership must deprive the property owner of all economically beneficial uses. This means that forbidding the growing of maize or any other crop where it serves a legitimate state interest and is a reasonable way of achieving the state interest is not expropriation of the land since it can be used to grow a substantial number of other crops. The Constitutional Court in Nampewo & Another v Attorney General confused the right of government to regulate land ownership to the point of criminalizing certain transactions with its ability to completely deprive the landowner of his land without compensation. In this case court allowed a tenant by occupancy who transacts with his interest in the land without permission to lose his or her interest in land.

The government has power to impose limitations on the rights of the land owner and can even criminalize the transactions but it can not extinguish or takeover or give away the property of the offender except as compensation or as part of the punishment. The safeguard is that compensation and punishment cannot be excessive and lead to the unjustified enrichment of either the state or the victim. Two cardinal principles here are.

Parliament can not imposed mandatory or excessive sentences that a bridge the discretion of court to consider both mitigating and aggravating factors. See, Attorney-General v Susan Kigula & 417 Others Constitutional Appeal No. 03 of 2006
Compensation must remedy the effect or loss incurred and no more. It can not be used as a cover or excuse to unjustly enrich the victim.

Yes the government has a legitimate interest in giving land owners the right to the first option to purchase and it is within the government’s power to criminalize breach of this requirement but requiring that the tenant by occupancy lose his or her interest in land is excessive and disproportionate. The government interest in protecting landowners is not strong enough to justify making the landowner lose his or her interest in land. The punishment is disproportionate to the crime especially where the lose of the right is mandatory rather than discretionary. Under Section 35 (1)(a) of the Land Act, the tenants by occupancy lose their interest whether their failure to give notice and the first option to purchase was justified or not.

What happens where the landlord makes it impossible for the tenant to serve the notice and give the first option to purchase?
What happens where the landlord is not known?
What happens where the sale is contingent on obtaining the permission?
What happens where the landlord frustrates the tenant’s attempt to give notice and the first option to purchase?
What happens where there are contested landlords? Who is the right landlord to give notice and the first option to purchase?
What happens where the landlord can not be found?
What happens where the sale is a matter of life and death?
What happens to the buyer who purchases the interest and loses his or her life savings? What is his or her relief?

By legislation the government has extinguished the property interest of the tenant by occupancy without compensation. If government cannot take over private land for use in public interest without paying adequate compensation why should it be able to take over land to benefit a third party? Does this mean that government can legitimately take over land of all criminals not being illicitly acquired gain connected to the offense or reasonable compensation by legislative action? Can government legislate that where anyone murders another, the beneficiaries of the murdered person become entitled to all the property of the Murder? If we simplify Section 35 (1)(a) of the Land Act, it states that if a tenant doesn’t give notice or a first option to purchase, the victim whose right was violated becomes the sole owner of the land which was previously owned by both the landlord and the tenant by occupancy.

Punishment whether civil or penal cannot be excessive or disproportionate. The punishment must fit the crime or default and the circumstances in which it occurred. In State Vs Makwangane 1995 (3) SA 391, the South African Constitutional Court explained the position as follows;

“Mitigating and aggravating circumstances must be identified by court, bearing in mind that the onus is on the state to prove beyond reasonable
doubt the existence of aggravating factors, and to negate beyond reasonable doubt the presence of any mitigating factors relied on by the
accused. Due regard must be paid to the personal circumstances and subjective factors that might have influenced the accused person’s conduct and these factors must then be weighed with the main objectives of punishment, which have been held to be; deterrence, prevention, reformation and rehabilitation. In this process any relevant considerations should receive the most scrupulous care and reasoned
attention…….”

See, Muto V Uganda (Criminal Appeal 400 Of 2016) [2023] UGCA 121

Even where the conduct is not criminal in nature, the punishment must not be excessive. Equitable remedies require that it must be fair and just in the circumstances of the case to grant the remedy. The law as to damages is that they are compensatory in nature and aimed at returning the aggrieved party to the position he or she would have been in but for the actions or default of the guilty party. See, Uganda Commercial Bank v. Kigozi (2002)1 I EA 305.

Is the extinguishing of the interest of the tenancy by occupancy a reasonable limitation of the right to property.

The Constitution allows Parliament to limit or restrict the enjoyment of Constitutional rights. It doesn’t allow Parliament to violate or erode the exercise of constitutional rights. This means that Parliament has no power to completely take away the property of anyone without compensation but can merely restrict the enjoyment of property rights.

The starting point is that parliament may under Article 43 of the Constitution of Uganda limit the enjoyment of Constitutional rights in public interest. Parliament can limit the enjoyment of constitutional rights to serve a legitimate government interest provided that the limitation does not unduly burden the constitutional right in issue, is a reasonable way of achieving the state interest and is the least restrictive means of achieving the state interest. Per the Supreme Court in Sharon Dimaniche and Another v Makerere University, Uganda applies the proportionality test in determining whether limitations to constitutional rights are consistent with the Constitution.

The principle of proportionality applies a three part test as proposed in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 by Lord Clyde. In determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself;

Whether the legislative objective is sufficiently important to justify limiting a fundamental right;
The measures designed to meet the legislative objective are rationally connected to it; and
The means used to impair the right or freedom are no more than is necessary to accomplish the objective.

As pointed out earlier, the power granted by Article 43 of the Constitution is to limit or restrict. Article 43 does not give the right to violate or erode the exercise of Constitutional rights. This means that any legislation that purports to take away a constitutional right is presumably unconstitutional. In this case, section 35 of the Land Act purports to take away or extinguish the property interest of the tenant by occupancy where he or she transacts with the interest without notice to the landlord or first giving the landlord the first option to purchase. The Constitutional Court treated the provision as a limit on the right to property but how can this provision be a limitation where it provides that you lose the interest in land. The right to property is abridged by taking over private property without paying adequate compensation.See, Uganda National Roads Authority v Irumba & Anor, SC Constitutional Appeal, No. 2 of 2014. So how does completely losing your interest in land become a limitation on the right to property. The literal meaning of section 35(1) of the Land Act is that the tenant by occupancy as a result of his default loses his right to occupy, use or otherwise own the land that he has sold without first giving the landlord a first option to purchase. Being unable to lawfully pass an interest to a third party without first giving the landlord a first option to purchase is a limitation to the right to own property because it restricts a property owner’s right to transact with the property as he or she sees fit. Even providing that the tenant commits a criminal offense by failing to give a first option to purchase is also a limitation of the right of a property owner to transact with his or her land as he or she sees fit. However providing that as a result of the default, the interest in the land passes to the landlord, is a taking or expropriation of the property of the tenant. The tenant no longer has the right to use or occupancy or transact with the land in issue. Essentially his land has been takeover by the government by legislative action and given to a third party. Does the fact that the government is not itself occupying or using the land absolve the government of its duty to respect the tenant’s right to property.

Even if we treat section 35 of the land Act as a limitation on the right to property, it is excessive and disproportionate. As pointed out earlier, the default by the tenant can be for many justifiable reasons including some attributable to the landlord. By imposing a mandatory punishment that court has no power to vary for good cause parliament exceeded its power to impose reasonable limitations to the right to property. We already know that Parliament has no power to impose mandatory punishments that do not consider the circumstances in which the offense was committed. Such punishments are sometimes excessive and they interfere with the discretion of the courts to impose appropriate penalities. See, Attorney General v Susan Kigula & 417 Others Constitutional Appeal No. 03 of 2006.

How is Section 35 (1)(a) of the Land Act different from Section 5 of the Limitations Act?

Under the common law principle of adverse possession as codified under the Limitations Act where a person enters land without the permission of the land owner and uses it openly to the exclusion of the land owner for 12 years, the trespasser after 12 years emerges as the new owner of the land. The public policy behind adverse possession is that the land owner has slept on his or her right to remove the trespasser for 12 years such that it has become inequitable or unconscionable to remove the trespasser. Firstly, the landowner can remove the trespasser from the land at anytime before the lapse of the twelve years and the time stops running against the landowner when the trespasser leaves the land or when the landowner sues for recovery or eviction. Secondly in line with the General power of government to regulate land ownership ship, the protection of the trespasser serves a legitimate interest and is a reasonable way of addressing the failure of the landowner to remove the trespasser who has been openly occupying and utilizing the land. It can not be compared with a failure by a tenant to give the landowner notice or a first option to purchase. The twelve year timeline is very long and it gives the landowner sufficient time to assert his or ownership of the land. After twelve years it’s reasonable to assume that the landowner has lost interest in the land and allowed the occupant to take it over. A tenant who doesn’t give notice or first option to purchase to the landlord could have been frustrated by the absence of the landlord or the landlord’s failure to respond to the offer or lack of knowledge of who is the landlord or urgency of his or her personal needs. By failing to give notice, the tenant can not be said to have conducted himself as to be taken to have lost interest in the land. It’s not the actions of the tenant leading to the loss of the interest but operation of the law. The result or consequence of the default by the tenant is too severe and disproportionate. It is not a fair or reasonable limitation on the inalienable property interest of the tenant.

For the above reasons, the majority in Nampewo & Another v Attorney General (Constitutional Petition No. 10 of 2020) is wrong. I respectfully dissent.

An interest in land can not be extinguished by legislation without compensation. Nampewo & Another v Attorney General (Constitutional Petition No. 10 of 2020) was wrongly decided by the Constitutional Court of Uganda

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