On 3rd July 2026, the Commercial Division of the High Court refused a temporary injunction over prime industrial land in Kampala, in Bachu Lois Lillian Anita (Executrix of the Estate of the late Harris Bachu) v. Fontana Auto Parts (U) Limited, I & M Bank (U) Limited & Feroz Kassam, Miscellaneous Application No. 2220 of 2025, arising from Civil Suit No. 1051 of 2025. The ruling of HW Racheal Nakyazze, Deputy Registrar, is a statement of where the estate of a deceased mortgagor stands once the property has been sold, and of how much harder the ground becomes when a third party purchaser is already in possession.

Brief Facts: The late Harris Bachu was the registered proprietor of land at LRV 314, Folio 14, Plot 223/225, 6th Street, Industrial Area, Kampala. The property was mortgaged to secure facilities advanced to the first respondent, Fontana Auto Parts, USD 3,800,000 in 2015 and a further USD 588,888 in 2016, with I & M Bank as mortgage.

The applicant, executrix of the deceased’s estate, brought Civil Suit No. 1051 of 2025 alleging that the mortgages were tainted by manipulation, incapacity, fraud and illegality. Central to her account was a private arrangement, UGX 600,000,000 said to have been due to her late father for allowing his title to be used as security and never paid.

Default followed. The property was advertised, sold at public auction, and bought by the third respondent for USD 800,000. He took possession, received the duplicate certificate of title, the release of mortgage and the transfer documents, and now rents the premises back to the first respondent. Separately, the applicant’s brother lodged a
caveat, which remains registered and has held up the transfer.

Pending trial, the executrix sought an injunction restraining all three respondents from selling, transferring, subdividing, letting, developing, mortgaging or otherwise dealing with the land.

The preliminary objections: The applicant challenged the third respondent’s affidavit in reply on two grounds: that it was filed out of time under Order 12 Rule 3, and that the jurat recorded Kampala while the stamp was that of a Notary Public and Commissioner for Oaths in Dar es Salaam. Both were overruled. On timing, the court held that an affidavit is evidence rather than a pleading in the strict sense; where it is filed before the hearing and the opposing party has had the chance to respond, as the applicant had, by filing a rejoinder, it should not be excluded for lateness absent demonstrated prejudice. The court treated the error in the place of commissioning as a defect of form rather than substance, the affidavit otherwise showing it was sworn before a competent officer, referencing Suggan v. Roadmaster Cycles, Paul Mwiru v. Igeme Nathan Samson Nabeeta and Article 126(2)(e).

Judgement: Against the first respondent, the court thought the stronger triable question lay, the alleged private arrangement and the unpaid UGX 600,000,000. Against the bank, the applicant raised questions on validity and enforceability, but the material before the court showed registered mortgage instruments and a mortgagee sale conducted after a default not seriously disputed. Against the purchaser, no clear particulars of fraud or collusion were shown at all. Fraud must be specifically pleaded and strictly proved, and a purchaser at a mortgage sale is not lightly restrained or displaced without credible evidence of wrongdoing.

The applicant pleaded with the property’s significance to her family. The court acknowledged the attachment but placed it against the character of the asset and the claim, commercial property in the Industrial Area, a dispute arising from a commercial mortgage, and a plaint seeking UGX 600,000,000, together with general aggravated and punitive damages.

The governing principle states that where land has been deliberately pledged as security for a loan, the mortgagor must be taken to have contemplated the risk of sale on default, absent exceptional circumstances, the sale of mortgaged commercial property does not automatically amount to irreparable injury.

Balance of convenience: The purpose of an injunction is to preserve the status quo, and the status quo was not possession by the applicant. It was possession by a purchaser who had paid, taken title documents, and let the premises out.

The court also noted that the estate’s interest was not unprotected, the brother’s caveat remains registered and has delayed transfer. An order in the terms sought would not have preserved anything, it would have displaced a party in occupation under a completed sale. The greater risk of injustice lay in granting the injunction. The application was dismissed, costs to abide by the outcome of the main suit.

What this means in practice

The judgment turns on a simple sequencing point: an injunction protects a status quo, and once a mortgagee sale has completed, price paid, title documents handed over, possession taken,  the status quo is no longer the mortgagors. Courts will not use an injunction to reverse a transaction; they will only use it to hold a position that still exists.

That has three practical consequences.

1. A lender whose enforcement file shows a clean sequence, registered instruments, an undisputed default, an advertised auction, and a documented transfer is in a strong position to resist any later attempt to freeze or unwind the sale. A purchaser who has paid and taken possession is not lightly displaced either: contested allegations about how the mortgage arose are not enough on their own, and a party seeking to disturb the sale must plead and strictly prove fraud or collusion against the purchaser specifically, not just against the lender.
2. For an estate or claimant considering this route, the lesson cuts the other way. Once possession has changed hands, an injunction has largely lost its purpose, and what remains is usually a monetary claim against whoever benefited.
3. The court was also unmoved by the property’s sentimental value to the family, holding that commercial land, mortgaged deliberately as security, does not become irreplaceable simply because the claim describes it that way,  particularly where, as here, a registered caveat is already protecting the estate’s interest and delaying the transfer.

Congratulations to our banking team, Mr. William Kasozi (Partner), Mr. Jeffrey Kaddu (Associate) and Ms. Norah Luyigga (Junior Associate), who acted for I & M Bank (U) Limited.

Authored by by Norah Luyigga (Junior Associate)