UWIDUHAYE ET.AL. v HAKIZIMANA ET. AL.

# UWIDUHAYE ET.AL. v HAKIZIMANA ET. AL.

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2023-07-14 - Case/document no.: RS/INJUST/RC 00004/2022/SC - Collection: Supreme Court

## Text

## Page 1

UWIDUHAYE ET.AL. v HAKIZIMANA ET. AL. [Rwanda SUPREME COURT - RS/INJUST/RC 00004/2022/SC (Mukamurisa, J.P, Cyanzayire, Hitiyaremye, J.) July 14, 2023] Law governing the civil cases – Family – Succession – Irrevocability of succession carried out and completed among the rightful heirs – The fact that a heir is later identified and confirmed by the court after the execution of the succession does not invalidate the succession carried out among the rightful heirs prior to filing the claim for paternity. The newly recognized heir shall only inherit the portion of the property that had not been distributed as of the time the court declared as the descendant from the deceased. Law governing the civil cases – Family – Status of persons – Declaration of paternity out of wedlock – Declaration of paternity out of wedlock is done through voluntary recognition, unless a claim for paternity is instituted. Law governing the civil cases – Family – Status of persons – Declaration of paternity out of wedlock –– A child with a known status – The fact that a child is born out of wedlock and already has a known status, only serves as evidence in a claim for paternity, however, it cannot by itself form the basis for declaring paternity without a case to declare that a given man is the father and that the child should inherit from him. Facts: On November 10, 2006, Uwiduhaye and Uwineza were declared by the Intermediate Court of Nyarugenge as the children of Kayitsinga, who was killed during the 1994 Genocide against the Tutsi, along with his legally married wife and their children. After being declared as Kayitsinga’s children, they filed a claim before the Primary Court of Nyarugenge seeking for administration of the properties left by their father, their claim was upheld. Iraguha (the mother of Kayitsinga) filed a third party opposition, and her claim was upheld. The court quashed the challenged judgment because Uwiduhaye and Uwineza requested to administer the property that had already been inherited on 17/12/2000. During the process, a succession family council composed of survivors of the Genocide against the Tutsi from both Kayitsinga’s and Mukandekezi’s families greed that the heirs on Kayitsinga’s side would inherit ½ of the property which was later inherited by Iraguha and the other ½ would be inherited by the heirs on Mukandekezi’s side. Uwiduhaye and Uwineza filed another case before the Intermediate Court of Nyarugenge, suing Iraguha and Hakizimana (Kayitsinga’s sibling) for having taken possession of their father’s property. They argued that the succession had not followed the legal procedures, since it was conducted while they were recognized as Kayitsinga’s children and therefore should have been the rightful heirs. The court ordered that all of property of Kayitsinga should be returned to his children for them to manage until the opening of the succession process takes place. Hakizimana and Iraguha appealed against this decision before the High Court, and their appeal was upheld with the judgment nº RCA 0637/13/HC/KIG rendered on May 13, 2014. Uwiduhaye and Uwineza were not satisfied with that judgment and applied for the review of the judgment on grounds of injustice. The case was referred to the Supreme Court to examine the key

## Page 2

issue of whether the succession conducted over the property left by Kayitsinga on December 17, 2000, should be annulled, given that Uwiduhaye and Uwineza who were recognized by the court as his children on November 10, 2006, and therefore should be the ones to succeed him. The claimants argued that they were the rightful heirs because their status was known as Kayitsinga’s children, born out of wedlock, and were living with their grandmother, Iraguha, in 1996, publicly known as Kayitsinga’s children. They contended that they should have inherited from him because, when both parents die and leave children, the entire property is inherited by the children, who may then assist their grandparents. Hakizimana and Iraguha, in their defense, explained that Kayitsinga, his lawful wife, and their two children were killed during the genocide against the Tutsi, and died without leaving any other children. The succession of their property took place in the year 2000, whereas the court only declared the claimants as Kayitsinga’s descendants in 2006. They further argued that the rights of children born to Kayitsinga counted from the date the court declared that he was their father, which is June 30, 2006. This means that the only property they may have a right to is that one which is not distributed from the time the judgment recognizing them was rendered. Held: 1. The fact that a heir was later recognized by a court after the succession had already taken place cannot invalidate the succession that was completed among those who had the legal right to inherit at the time. Instead, the newly recognized heir may only inherit from the portion of the property that remained undistributed as of the date the court recognised their descendant from the deceased; 2. The fact that a child is born out of wedlock and already has a known status, only serves as evidence in a claim for parternity, however, it cannot by itself, form the basis for declaring paternity without a case to declare that a given man is the father and that the child should inherit from him. The case has some merit Statutes and statutory referred to: Law N° 22/99 of 12/11/1999 to supplement book one of the civil code and to institute part five regarding matrimonial regimes, liberalities and successions articles 50, 307, 308, 318, 324, 328, 329. No case refferred to. Legal writings referred to: CDPF -Centre de Droit Privé Fondamental, 2011, p.4, consulté le 12/ 06/ 2023; Yves - Henri LELEU, Droit des personnes et des familles, Bruxelles, 4 ème édit., Larcier, 2020, p. 637, No 675; M. T. Meulders-Klein, L'établissement et les effets personnels de la filiation selon la loi belge du 31 mars 1987, annales de droit de Louvain, dans Revue Trimestrielle de Droit Belge, Tome XLVII 3-4/1987, p. 48, No 85.

## Page 3

Judgment I. BACKGROUND OF THE CASE

This case orginates from the dispute that arose during the succession of the property left by Kayitsinga Emmanuel, killed during the 1994 Genocide against the Tutsi, along with his lawful wife, Mukandekezi Emeriane, and their children. On December 17, 2000, a family meeting was held, bringing together survivors of the Genocide against the Tutsi from both Kayitsinga Emmanuel’s family and Mukandekezi Emeriane’s family. Those present in the meeting agreed that a half (½) of the property would be inherited by Kayitsinga Emmanuel’s heirs and the other half (½) by Mukandekezi Emeriane’s heirs, in accordance with the legal provisions.

On November 18, 2005, Uwiduhaye Maurice and Uwineza Marie la Douce, represented by their mother Mukantaganzwa Léonille, filed a claim before the Primary Court of Nyarugenge, requesting the court to declare that they were children of Kayitsinga Emmanuel. In the judgment n0 RC 0526/05/TD/NGY, decided on June 30, 2006, the court heldthat they lost their case due to lack of evidence. They appealed the decision, and the Intermediate Court of Nyarugenge, in case n0 RCA 0059/06/TGI/NYGE decided on November 10, 2006, ruled that Uwiduhaye Maurice and Uwineza Marie la Douce were indeed the children of Kayitsinga Emmanuel and that they are entitled to the legal rights that come with that status. In this case, Iraguha Spéciose, the mother of Kayitsinga Emmanuel, and his brother Hakizimana Vincent were forced intervened. The latter appealed to the High Court in case n0 RCAA 0654/06/HC/KIG, which was decided on November 30, 2007, and the court declared that his appeal lacks merit.

After the court declared them the children of Kayitsinga Emmanuel, Uwiduhaye Maurice and Uwineza Marie la Douce filed a case before the Primary Court of Nyarugenge, represented by their mother Mukantaganzwa Léonille, requesting to administer the property left by their late father. The case was registered under n⸰ RC 0222/08/TB/Nyg and was decided on July 18, 2008, with the court declared their claim founded. Iraguha Spéçiose filed a third party opposition, a case was registered under nº RC 0309/08/TB/Nyg, which was decided on October 31, 2008. The court declared her third party opposition founded and overturned the initial judgment since Uwiduhaye Maurice and Uwineza Marie la Douce had requested to administer property that had already been inherited.

Uwiduhaye Maurice and Uwineza Marie la Douce represented by Mukantaganzwa Léonille, lodged an appeal before the Intermediate Court of Nyarugenge, stating that they were appealing against the judgment nº RC 0222/08/TB/Nyge decided on 31/08/2008. Their appeal was registered under nº RCA 0149/08/TGI/Nyge, and the judgment was rendered on 17/04/2009. The Court declared their appeal inadmissible because they filed it against Iraguha Spéçiose, who had not been a party to case nº RC 0222/08/TB/Nyge additionally, the appeal was filed out of time, since the judgment they claimed to be appealing was decideded on 18/07/2008, whereas they filed the appeal on 17/11/20081.

1 Upon examination, it appears that Mukantaganzwa Léonille, who lodged the appeal on behalf of Uwiduhaye and Uwineza, wrote down the wrong case number for the judgment she intended to appeal against. Instead of writing Case nº RC 0309/08/TB/Nyg, which challenged Case nº RC 0222/08/TB/Nyg, she mistakenly wrote the latter case that had been challenged

## Page 4

Uwiduhaye Maurice and Uwineza Marie la Douce represented by Mukantaganzwa Léonille, filed another case before the Intermediate Court of Nyarugenge, claiming that the property of their father, Kayitsinga Emmanuel, had been taken over by Iraguha Spéçiose and Hakizimana Vincent, arguing that the succession was unlawful. They also requested various damages. The case was registered under nº RC 0408/09/TGI/Nyge, and the judgment was decided on 08/07/2011. The Court ordered that the case be removed from the list of cases due to its expiration and lack of follow-up.

Uwiduhaye Maurice reintroduced the case under nº RC 0758/11/TGI/Nyge, but he made an error by stating that the judgment in the case he was re-introducing had been pronounced on 31/08/2011 which made the claim inadmissible as it had been filed in a manner that was contrary to the law.

Uwiduhaye Maurice, together with Uwineza Marie la Douce, again filed an application for reintroduction of a case nº RC 0408/09/TGI/Nyge and was registered under nº RC 0162/13/TGI/Nyge, and the judgment was decided on 25/10/2013. The Court declared it admissible and well-founded, ordered that all the properties belonging to Kayitsinga Emmanuel be returned to his property until succession takes place. The Court ordered that the property be handed over to his children, who shall manage it until the succession takes place. The Court ordered Hakizimana Vincent and Iraguha Spéçiose to jointly pay damages of 5,580,000 Frw to the children of Kayitsinga Emmanuel.

The Court explained that the succession had been conducted unlawfully and that all actions were fraudulently made, as Uwiduhaye Maurice had been living with his father before his death. After the Genocide against the Tutsi, he was taken and raised by Iraguha Spéçiose, and it was known that he was the child of Kayitsinga Emmanuel, even though it was not yet declared by the Court.

Hakizimana Vincent and Iraguha Spéçiose appealed against the judgment befre the High Court, the appeal was registered under nº RCA 0637/13/HC/KIG, and the judgment was rendered on 13/05/2014. The Court declared their appeal well-founded, that Uwiduhaye Maurice and Uwineza Marie la Douce lost the case, and overturned the previous judgment. The Court explained that: a. Based on article 49, paragraph 22, of Law nº 22/99 of 12/11/1999 supplementing the civil code book three and establishing part 5 relating to matrimonial regimes, liberalties and succession, the Court found that at the time the succession was initiated, those who were present had to lawfully inherit Kayitsinga Emmanuel namely, his parents and siblings because he had not left behind any child. b. On 17/12/2000, the family members of Kayitsinga Emmanuel and his wife convened and shared the property they had left behind, in accordance with the provisions of Law nº 22/99 of 12/11/1999 mentioned above, which had just come into force. They agreed that each side would take a half (½) of the property subject to succession, and this was recorded.

2 The succession starts at the death of the cujus, at his/her domicile or residence.

## Page 5

c. There is no evidence that the succession conducted on December 17, 2000, was done fraudulently with the intent to deprive the children of Kayitsinga Emmanuel of the property, because the deceased passed away without leaving behind any recognized children. Uwiduhaye Maurice and Uwineza Marie la Douce were acknowledged only after the family members had already shared the disputed property among themselves. d. The grounds relied upon by the Intermediate Court that members of Kayitsinga Emmanuel’s family knew the children and had even visited their home could not be considered as evidence of status of persons that would justify the court to declare them children of Kayitsinga Emmanuel with the right to inherit from him but instead, their inheritance rights only began once the court officially recognized them, meaning they are entitled only to the portion of the property that had not yet been distributed as of the date the judgment recognizing them was decided on November 10, 2006. e. It is also stated that Mwiseneza is a heir of Kayitsinga Emmanuel, not a child born to him and Mukandekezi Emeriane as claimed in the appeal case, because his birth certificate indicates that he was born to Mukangarambe. There is no evidence that at the time the property was being distributed they knew of his existence or that he was recognized as a heir. f. The fact that the succession of the property was based on a law enacted after the death of Kayitsinga Emmanuel does not invalidate it, as no one who had the right to inherit from him in 1994 was disadvantaged.

On June 30, 2014, Uwiduhaye Maurice wrote to the Office of the Ombudsman requesting a review of case n⸰ RCA 0637/13/HC/KIG, which was decided on May 13, 2014, on grounds of injustice. On August 27, 2015, the Chief Ombudsman responded to him stating that there was no injustice in the case. Uwiduhaye Maurice again wrote to the Office of the Ombudsman on July 27, 2017, requesting that his injustice should be examined again. On August 23, 2018, the Office of the Ombudsman wrote to the President of the Supreme Court requesting that case n⸰ RCA 0637/13/HC/KIG be reviewed on grounds of injustice.

On April 1, 2022, the President of the Supreme Court approved that the case n⸰ RCA 0637/13/HC/KIG should be reheard, the case was registered under n⸰ RS/INJUST/RC 00004/2022/SC. The hearing was scheduled for September 19, 2022. On that date, the hearing was held in public, with Uwiduhaye Maurice and Uwineza Marie la Douce represented by Counsel Nsabayezu Evariste together with Counsel Nsabimana Jean Baptiste, and Iraguha Spéciose and Hakizimana Vincent represented by Counsel Nduwamungu Jean Vianney.

Before the case proceeded to the merits, Counsel Nduwamungu Jean Vianney raised an inadmissibility objection stating that, the claim filed by Uwiduhaye Maurice should not have been admitted because the Office of the Ombudsman had contradicted itself. Initially, the Office of the Ombudsman stated that there was no injustice in the case, but later asserted that there was. In a decision handed down on the bench, the Court declared the objection unfounded, stating that position on that matter had already been set in case nº RS/INJUST/RC 00008/2019/SC involving Mukarushakiro Gloriose, Bagenzi Théogene, Higiro James and Gahire Athanase.

Counsel Nduwamungu Jean Vianney raised another inadmissibility objection, arguing that the claim filed by Uwiduhaye Maurice should not have been admitted because he failed to present

## Page 6

clear evidence that had been ignored in the case he sought to have reviewed on grounds of injustice. In response, Counsel Nsabayezu Evariste and Counsel Nsabimana Jean Baptiste, representing the claimants, explained that what counsel Nduwamungu Jean Vianney referred to as an objection was not valid, as those were the very elements forming the basis upon which the case was approved for review on grounds of injustice.

After deliberation, the Court declared the objection raised by Counsel Nduwamungu Jean Vianney unfounded, stating that matters relating to the admissibility of a case for review on grounds of injustice fall under the responsibility of the President of the Supreme Court and is not subject to the bench hearing the case on its merits unless a error of public order is demonstrated, such as a mistake regarding the time limits for filing the claim, the legal positions on this matter have been set in various cases3.

The hearing proceeded, and the parties added arguments to their submissions however, the case was not concluded because the Court found that additional steps were necessary before a final judgment could be rendered. It is in that context that Counsel Nduwamungu Jean Vianney, representing the defendants, was requested to produce all documents related to the plot measuring 100m x 44m, those concerning the plot measuring 38m x 28m, as well as documents related to the purchase of both plots. He was also requested to present new ownership land titles registered under Iraguha Spéçiose and Hakizimana Vincent, and to comment on a document submitted by the plaintiffs via the IECMS after the pre-trial conference, which indicates that there are other individuals registered as owners of the said properties. The hearing was adjourned to 16/11/2022.

In the document submitted via the IECMS, Counsel Nduwamungu Jean Vianney provided the following explanations: a. During succession of 17/12/2000, there were two plots of land: one measuring m100 x m 44, and another measuring m 38 x m 28. The land measuring m 38 x m 28 was inherited by Iraguha Spéçiose, while the one measuring m100 x m 44 was inherited by Munyagihe Eliabu. During the land registration process, the land inherited by Iraguha Spéçiose was registered under UPI: 1/03/10/01/1208, and the land inherited by Munyagihe Eliabu was registered under UPI: 1/03/10/01/1383. b. On 14/02/2012, Iraguha Spéçiose sold the land registered under UPI: 1/03/10/01/1208 to an individual named Gasana Callixte. He later subdivided the land into two plots, which were registered under UPI: 1/03/10/01/4923 and UPI: 1/03/10/01/4924. c. The land inherited by Munyagihe Eliabu was sold to Hakizimana Vincent. After selling it, he subdivided it into four plots with the following UPI: 1/03/10/01/4074, 1/03/10/01/4075, 1/03/10/01/4076, and 1/03/10/01/4077. Among these four plots, Hakizimana Vincent remained the one registered under UPI: 1/03/10/01/4076 and sold the other plots.

3 Case nº RS/INJUST/RC 00022/2018/SC decided by Supreme Court on 28/06/2019, BUSORO Gervais v. MUGUNGA. Others; Case nº RS/INJUST/CIV 00011/2019/CS decided on 12/02/2021, MUKAMUSONI Petronille v. NKUNDIMANA Edison.

## Page 7

On November 16, 2022, the hearing was held in public, with the parties assisted or represented in accordance with the law. The court first examined the request by Munyagihe Eliabu to voluntarily intervene in the case. In a written submission presented to the Court’s Registry, Counsel SONGA Jean Claude, who was representing him, explained that his client had an interest in the case because, if the disputed succession was to be annulled as requested by the plaintiffs, it would negatively affect his right to inherit from his daughter.

After hearing each party’s arguments regarding Munyagihe Eliabu’s request, the Court ruled in bench that the request should not be admitted for examination, as he does not have personal and direct interest in the case.

The Court found it necessary, before proceeding with the hearing, to first request information from the National Land Authority regarding the transfer history of the plots registered under UPI: 1/03/10/01/1208 and UPI: 1/03/10/01/1383. The Court also requested the Authority to suspend any further transactions involving those plots.

The National Land Authority provided the requested information, showing that the land mentioned in the previous paragraph was transferred as follows: a. The land registered under UPI: 1/03/10/01/1208 was transferred from the name of Succ Kayitsinga Emmanuel to Iraguha Spéciose, who then sold it to Gasana Callixte. He subdivided it into two plots, selling one to GANZA PEACE COMPANY Ltd and the other to Kwizera Fabrice and BIRARO Christine. b. The land registered under UPI: 1/03/10/01/1383 was transferred from the name of Succ Kayitsinga Emmanuel to Hakizimana Vincent and Izabiriza Tamari. They subdivided it into four plots, kept one for themselves, and sold the remaining plots to Mukamana Edisa, Mwesigye John and Mukakayumba Immaculée, Kankindi Nina and Habimana Augustin. c. Mwesigye John and Mukakayumba Immaculée also sold to Sibomana Alphonse and Mukarugwiza Florentine.

The case was rescheduled for a hearing on February 24, 2023, but was postponed to allow the individuals mentioned in the previous paragraph who purchased the disputed land to be forced to intervene in the case. The Court also ordered that the persons appearing in the succession record of 17/12/2000, be summoned to the case as informants. These individuals are Mukagahame Domithille, Munyagihe Eliabu, Mukeshimana Marie Claire, Mukamwezi Evelyne, Nyiridandi Vénuste, Ngaboyisonga Emmanuel, Mavubi James, Kandiko Tharcisse, Kabirigi Simon, and Uwimpundu Eugénie.

The case was called on May 22, 2023, with all the parties present, represented, or assisted in accordance with the law. The forced intervened parties also appeared, represented by Counsel Murigande Jean Claude, except for GANZA PEACE COMPANY Ltd, which was represented by its Manager, Ndizeye Jean Bosco who stated that he could not afford to pay for a lawyer and cannot benefit from a certificate of indigence because he did not qualify as a person in need. The Court handed down the decision from the bench that the hearing would continue in absentia, since he failed to appear despite being duly summoned and given the opportunity to seek legal

## Page 8

representation but did not do so and he cannot plead without legal assistance. Some of informants who had been summoned also appeared.

Counsel Murigande Jean Claude, representing the parties forced to intervene in the case, raised the admissibility objection, stating that the application for review of the judgment on grounds of injustice filed by Uwiduhaye Maurice would not have been admitted because it was filed after the time limit. He explained that the application was initially filed in 2015 but was dismissed for lack of evident injustice in the case, and that a second application was submitted in 2017 and responded again in 2018. The Court handed down the judgment from the bench that this objection lacks merit and ordered the hearing to proceed with the testimony of the summoned informants and the parties forced to intervene.

Among the informants summoned by the Court, Mukagahame Domithille, a member of Kayitsinga Emmanuel’s family, Mukeshimana Marie Claire and Mukamwezi Evelyne, members of Mukandekezi Emeriane’s family, appeared before the court and were virtually heard as they reside abroad. Also present were Kandiko Tharcisse, Ngaboyisonga Emmanuel, identified as witnesses in a document, and Uwimpundu Eugénie, who was the minutes taker of the family council meeting and also the daughter of Iraguha Spéçiose. All agreed that the succession of 17/12/2000, occurred and that they were present. Most of the informants also agreed that in sharing the inherited property, consented that Iraguha Spéçiose took a small piece of land, which she added to the land that Kayitsinga Emmanuel owned at the birthplace

In this case at hand, the main issue examined was whether the succession conducted on 17/12/2000, should be annulled so that Uwiduhaye Maurice and Uwineza Marie la Douce could be the ones to inherit the property left by Kayitsinga Emmanuel. The Court also examined the issue concerning the damages claimed by the parties. II. ANALYSIS OF LEGAL ISSUES A. Whether the succession conducted on 17/12/2000, should be annulled so that Uwiduhaye Maurice and Uwineza Marie la Douce could be the ones to inherit the property left by Kayitsinga Emmanuel.

Counsel Nsabayezu Evariste and Counsel Nsabimana Jean Baptiste, representing Uwiduhaye Maurice and Uwineza Marie la Douce, argued that the succession on which the High Court relied on, should not have been considered based on the following reasons: a. The fact that the succession should not have complied with article 49, paragraph 2, of Law n⸰ 22/99 of 12/11/1999, which supplements the civil code book three and establishing the fifth part relating to matrimonial regimes, liberalties and successions, despite the fact that Kayitsinga Emmanuel's children were present. They stated that Uwiduhaye Maurice and Uwineza Marie la Douce had been legally recognized as the children of Kayitsinga Emmanuel in the case n0 RCA 0059/06/TGI/NYGE decided on 10/11/2006, and that they already had a known status as his children, as stated by witnesses. b. The succession was supposed to comply with the provisions of article 70, paragraph 2, of Law n0 22/99 of 12/11/1999 mentioned above, which provided that: “when both

## Page 9

spouses are survived by children, the latter shall succeed to the entire patrimony, but must also assist their grandfathers and grandmothers ….” c. The court ignored a document dated August 4, 2008 approved by Kamashashi Cell authorities, which indicates that this local authority, together with the heirs of Kayitsinga Emmanuel’s patrimony, presented the children who had been recognized as his rightful heirs to inherit the propert he left, leading to the registration of the property in their names. Iraguha Spéciose and Hakizimana Vincent did not object, while they were present. d. Uwiduhaye Maurice and Uwineza Marie la Douce were living with their grandmother in 1996, which indicates that they already had the status of children of Kayitsinga Emmanuel. e. The content of the document referred to as the succession record of December 17, 2000, did not happen because there is no evidence that what was discussed in that meeting is what was actually recorded. f. The succession conducted by Iraguha Spéciose and Hakizimana Vincent was carried out n breach of the law, because according to article 2 of Law nº 32/2016 of 28/08/2016 governing persons and family, it is worth wondering how Hakizimana Vincent was included among the heirs. g. All informants state that the succession took place, but the distribution of the property never occurred. It also appears that other decisions unrelated to the succession were made, which renders it invalid. h. The information provided by Ngaboyisonga Emmanuel that Hakizimana Vincent was already living on the property and that, no formal handover of the distributed property ever took place differs from what other informants stated. This indicates that the contents of the document of 17/12/2000, did not occur, which means that the succession itself never took place. i. In the succession document, it is written that each party inherited, yet the informants state that it was Munyagihe Eliabu and Iraguha Spéciose who inherited.

Regarding the 500,000 Frw mentioned in the claim, the claimants and their representatives state that there were three plots of land, but Hakizimana Vincent Hakizimana Vincent sold the third one was sold to someone named Kayonga Jean Marie Vianney. The proceeds were deposited at the Nyarugunga Sector Office at the request of Mukantaganzwa, the claimants' mother.

Counsel Nduwamungu Jean Vianney, the counsel for Iraguha Spéciose and Hakizimana Vincent, provided the following explanations: a. Kayitsinga Emmanuel and his legally wife, along with their two children, were killed during the Genocide against the Tutsi. They died without leaving any other child or no legal recognition of a child born out of the wedlock. At the time the succession was carried out on 17/12/2000, there were no known children of Kayitsinga Emmanuel or Mukandekezi Emeriane, and It was only later, on June 30, 2006, 6 years after the

## Page 10

succession took place that the Court declared Uwiduhaye Maurice and Uwineza Marie la Douce children of Kayitsinga Emmanuel. b. Although Uwiduhaye Maurice denies that the succession of 17/12/2000, took place, there is a document that was drawn up in accordance with legal procedures, and it is a private deed as defined by article 14 of Law n⸰ 15/2004 relating to evidence and its production. Article 15 of that law provides that a private deed “serves as proof until it is contradicted by other evidence provided by law”. c. The statements that Uwiduhaye Maurice serves as evidence that he was recognized as a child of Kayitsinga Emmanuel, including what he calls a certificate indicating that he was studying at ESA Nyarugunga living with his grandmother Iraguha Spéciose, has no merit because if it was true, the grandmother would not have filed a third party opposition against the Case n⸰ RC 0059/06/TGI/NYGE denying that those children are descendants of Kayitsinga Emmanuel. d. Those whom Uwiduhaye Maurice refers to as witnesses testified in case n⸰ RCA 0059/06/TGI/NYGE are among the individuals who were accused of unlawfully possession of the property of Kayitsinga Emmanuel. They later agreed that if they testified before the court, he would compensate them by exempting from the payment for that property. e. The document alleged by the claimants to have been’ was drawn by the local authorities to show them their father's property is a document of 21/04/2008, which executed the decision of the Case n⸰ RCA 0059/06/TGI/NYGE of 10/11/2006 decided by the Intermediate Court of Nyarugenge, declaring that they were born to Kayitsinga Emmanuel. This document was also drawn up eight years after the succession took place and therefore does not serve as evidence that, at the time of the succession in 2000, Uwiduhaye Maurice and Uwineza Marie la Douce were recognized as children of Kayitsinga Emmanuel. f. The fact that Uwiduhaye Maurice stated that they had the titles of disputed property and they are registered under that property, does not serve as evidence that they were recognized as children of Kayitsinga Emmanuel, since they registered them on June 7, 2010, 10 years later the succession took place, and got the property in 2011. g. Regarding the witnesses questioned by the Court, testified that they saw Mukantaganzwa Léonille bringing the children to Iraguha Spéciose’s home. One of them was asked the first time s/he saw those children and replied that it was in 2001, after the succession had taken place (in 2000). This means that at the time the succession was conducted, those children were not recognized as the children of Kayitsinga Emmanuel. h. The rights of the children born to Kayitsinga Emmanuel start from the time the court recognized him as their father, that is, from June 30, 2006. This means that any property to which they are entitled to is the one which is yet undivided (indivision) since the judgments recognizing them were rendered.

Regarding the statement of the informants, Counsel Nduwamungu Jean Vianney states that they all agreed the succession took place, and they all concur that the heirs did not share the property equally, as Munyagihe Eliabu took the largest portion; this proves that the succession deed is valid.

## Page 11

Counsel Murigande Jean Claude, assisting Mukamana Edisa, Mwisigye John, Mukakayumba Immaculée, Habimana Augustin, Kankindi Nina, Gasana Callixte, Sibomana Alphonse, Mukarugwiza Florentine, Kwizera Fabrice, and Biraro Christine, states that the disputed property, consisting of land, has been lawfully transferred and sold by the heirs. He also states that after reviewing the content of the complaint filed by Uwiduhaye Maurice and Uwineza Marie la Douce, he finds that their claims have no basis, since at the time when the succession took place, they were not yet recognized as children of Kayitsinga Emmanuel.

He states that among the land that has been transferred, Kwizera Fabrice and Biraro Christine own house on it; Mukamana Edisa, Sibomana Alphonse, Mukarugwiza Florentine, Habimana Augustin, and Kankindi Nina also own house there.

Regarding the statements of the informants, Counsel Murigande Jean Claude states that it clearly confirms the truth because they acknowledge that the succession took place and affirm that each party was represented.

Counsel Murigande Jean Claude also states that in case the Court finds that the succession had not taken place, although initially he believes it had, those who sold among themselves refund each other, or the buyers should be reimbursed the equivalent. He adds that they currently do not know the actual value of the plots at time and requests the Court to conduct valuation of each property if necessary. DETERMINATION OF THE COURT

In addressing the issue of whether the succession carried out on 17/12/2000 should be annulled so that Uwiduhaye Maurice and Uwineza Marie la Douce may inherit as the rightful heirs to the patrimony left by Kayitsinga Emmanuel, it must first examine whether that succession took place, as the plaintiffs claim it did not. In case it is found that it had occured, the next issue examined was whether, at the time of its occurrence, Uwiduhaye Maurice and Uwineza Marie la Douce were recognized as heirs of Kayitsinga Emmanuel in such a way that the individuals who inherited on 17/12/2000 should have done so intending to exclude them from their parent’s patrimony.  Regarding whether the succession of 17/12/2000 actually took place

Among the documents containing the case file, there is one document titled “Council of succession between the family of Kayitsinga Emmanuel and that of Mukandekezi Emeriane of 17/12/2000”. This document indicates that a family council was held, attended by members from both families, representatives from both sides, the local leader of Nyarugunga and the council’s secretary. The document indicates that land measuring 100 meters by 44 meters and another parcel measuring 38 meters by 28 meters was divided equally, with a half going to the successors of Kayitsinga Emmanuel and the other half to those of Mukandekezi Emeriane. It also states that the family meeting granted Hakizimana Vincent the power to administer the property of Munyagihe Eliabu.

The court summoned the individuals mentioned in this document who were not parties to the case, as indicated in paragraph 24 of the case. All of them confirmed that the meeting of

## Page 12

succession of 17/12/2000 took place and they attended the meeting, and that the contents of the document accurately reflect what were discussed during the meeting.

Regarding the fact that Munyagihe Eliabu took a plot of land measuring 100 meters by 44 meters, which is larger than the one taken by Iraguha Spéçiose measuring 38 meters by 28 meters, despite the succession document stating that they should share equally, all the informants except Mukagahame Domithille confirmed that, at the time of the succession, the heirs had agreed that Munyagihe Eliabu would take the larger plot while Iraguha Spéçiose would take the smaller one, with the understanding that she would receive additional land from Kayitsinga Emmanuel’s property located in her birthplace in Huye. The court finds that the agreement between both parties was not prohibited by law and does not deny the fact that the succession meeting took place or invalidate it.

Based on the aforementioned, the Court finds that the succession of 17/12/2000 took place.  Whether, at the time of the succession, Uwiduhaye Maurice and Uwineza Marie la Douce were recognized as heirs of Kayitsinga Emmanuel in such a way that the individuals who inherited on 17/12/2000 should have done so intending to exclude them from their parent’s patrimony

Article 50 of Law n⸰ 22/99 of 12/11/1999, which supplements the first civil book one and instituting the part five regarding matrimonial regimes, liberalties and succession which was in force at the time of the succession on 17/12/2000 provided that all legitimate children of the de cujus, in accordance with civil laws, inherit in equal parts without any discrimination between male and female children.

Regarding the determination of children whom civil laws recognize them as the descendants of the decujus, Law n° 42/1988 of October 27, 1988, establishing the Preliminary Title and the Civil code Book One, categorises the evidence required to establish descent from legally married parents and that required to establish descent from children born out of wedlock.

With regard to individuals born of legally married parents, article 307 of Law n0 42/1988 of 27/10/1988 mentioned above, provides that in order for a person to be recognized as a child of married parents, this must be evidenced by a birth record in the civil status registers. Article 308 of the same law provides that, when a birth record is missing, the fact that a person is generally known as the child born of married parents is sufficient to declare the filiation.

Regarding children born out of wedlock, to establish their filiation, the child may be legitimized as if born of married parents (legitimation), which requires the legal recognition of both the father and the mother either before marriage, during the marriage, or after (article 318 of Law n0 42/1988 of 27/10/1988 mentioned above). The child may also be recognized through an authentic deed (article 324 of the aforementioned law). Additionally, there may be a claim for paternity or maternity.

According to the provisions of article 329 of Law n⸰ 42/1988 of 27/10/1988 mentioned above, a claim for maternity is accepted when the child has a known status. Regarding a claim for paternity, article 328 of the same Law n⸰ 42/1988 of 27/10/1988 provides that such a claim is especially accepted in the following circumstances:

## Page 13

a. When the child’s mother was abducted by force, when she was held in confinement or raped; b. When the child’s mother was raped under fraud, coercion, or by being falsely promising marriage or engagement; c. When the child’s mother lived with a man without being legally married to him; d. When there is a written document or an undisputed statement confirming that the man is raising the child; e. When the man agreed to take good care of the child, raised the child, and allocated to the child his personal belongings as if he was the father.

Among the grounds provided by the law for a claim for paternity being admissible, the fact that the child has a known status is not explicitly mentioned, which means it is not sufficient evidence, unlike in the case of a claim for maternity.

The articles of Law n0 42/1988 of 27/10/1988 mentioned in the previous paragraphs highlight the following key points: a. For a person to be recognized as descending from legally married parents, this must be evidenced by a record from the civil status registers. When such a record is missing, being generally known as a child born of legally married parents is sufficient to declare the filiation; b. Regarding the declaration of the child born out of wedlock: i. The law provides for three procedures: - The procedure for legitimizing a child as if born out of married parents, when the parents were not married at the time of the child’s birth but later got married. - The procedure for legal recognition of a child of a child through an authentic deed. - When both of those procedures were not used, the law provides for the option of a claim for paternity or maternity. ii. The fact that a child has a known status does not by itself, declare that the child descends from a particular parent when the parents were not married but instead, it serves as evidence in a claim for paternity or maternity. It is a sufficient evidence for the admissibility of a claim for maternity, but only supportive yet insufficient evidence for the admissibility of a claim for paternity.

The provisions of Law n0 42/1988 of 27/10/1988 regarding the recognition of a child born out of wedlock mentioned above is not unique to Rwanda. In Belgium, declaring a paternity for a child born out of wedlock is done through a procedure known as recognition. Unless, the matter is resolved through legal proceedings. In that country, the fact that a child born out of wedlock has a known status does not by itself, prove that s/he is a biological child of the father4.

4 La filiation paternelle hors mariage peut être établie par une reconnaissance volontaire de l’enfant par son père naturel. A défaut, elle peut être établie par un jugement déclaratif, rendu par le tribunal de première instance. En revanche, en droit belge, la possession d’état d’enfant naturel n’est pas un mode autonome d’établissement de la

## Page 14

In that regard, legal scholar Yves-Henri LELEU states that when a child has a known status, it serves as evidence in a claim for paternity; if such evidence is not available, other forms of evidence should be used5.

Legal scholar M.T. Meulders-Klein states that the only way to establish the paternity of a child born out of wedlock are through voluntary recognition of the child or by filing a claim for paternity6. He explains that regarding the fact that a child has a known status was included in the Civil Code under the part concerning claims for filiation, because it cannot be considered as evidence of filiation in the absence of legal proceedings, instead, it serves as evidence in a claim for maternity or paternity....7. He states that the fact that having a known status was removed from the category of evidence proving filiation without legal proceedings is explained by the fact that it is a type of evidence that requires time to exist and, therefore, is not considered conclusive 8.

What is understood from the above-mentioned legal provisions, together with the interpretations provided by legal scholars, is that: a. The children recognized by civil law as belong to the decujus are the ones who inherit from the decujus ; b. Declaring a paternity of a child born out of wedlock is done through voluntary recognition unless, a claim for paternity should be instituted. c. The fact that a child born out of wedlock has a known status, only serves as evidence in a claim for paternity, but on its own, cannot be the basis for declaring the paternity without a court ruling.

Regarding this instant case, Uwiduhaye Maurice and Uwineza Marie la Douce were declared as the children of Kayitsinga Emmanuel in the case n⸰ RCA 0059/06/TGI/NYGE, decided by the Intermediate Court of Nyarugenge on 10/11/2006. However, they state that prior to the succession of 17/12/2000, they already had a known status as his children

paternité naturelle; Article publié par le CDPF -Centre de Droit Privé Fondamental, 2011, p.4, consulté le 12/ 06/ 2023. Lorsque le père naturel n’a pas reconnu l’enfant, une action peut être exercée contre lui devant le tribunal de première instance aux fins d’établir la filiation à son égard. Si la paternité est prouvée, elle est établie par un jugement déclaratif; la possession d’état de l’enfant peut servir de preuve de la paternité (art.324 du code civil); Ibidem, p. 5. 5 Action en recherche de paternité. La possession d'état de l’enfant à l’égard du père prétendu prouve la paternité (art. 324, al.1er). A défaut de possession d’état, la preuve de la paternité est rapportée par toutes voies de droit; Yves- Henri LELEU, Droit des personnes et des familles, Bruxelles, 4 ème édit., Larcier, 2020, p. 637, No 675. 6 Les seuls modes d'établissement de la paternité hors mariage restent, avant comme après la réforme: la reconnaissance volontaire, l'action en recherche de paternité, M. T. Meulders-Klein, L'établissement et les effets personnels de la filiation selon la loi belge du 31 mars 1987, annales de droit de Louvain, dans Revue Trimestrielle de Droit Belge, Tome XLVII 3-4/1987, p. 48, No 85. 7 La définition de la possession d'état et de ses éléments constitutifs se trouve reléguée à l'article 331nonies du Code civil, c'est-à-dire au chapitre consacré aux actions relatives à la filiation, parce que celle-ci a cessé d'être un mode de preuve extra-judiciaire de la filiation pour n'être qu'un élément de preuve judiciaire tant de la maternité (art. 314, al. 4, C. civ.) que de la paternité (art. 324, al. 1, C. civ.) …….; Ibidem, p.68, No 129. 8 L'éviction de la possession d'état comme mode de preuve extra-judiciaire de la filiation se justifiait sans doute par le caractère peu commode de cette preuve qui demande en outre du temps pour se constituer et demeure relativement incertaine; Ibidem, p. 24, No 38.

## Page 15

Without the need to determine whether, at the time the succession took place on 17/12/2000, already had a known status as descendants of Kayitsinga Emmanuel, the Court finds that, based on the explanations provided above, having a known status could not by itself, prove that they were the children of Kayitsinga Emmanuel without a court ruling. The Court finds, rather, that it could only serve as evidence in the judgment which declared them the children of Kayitsinga Emmanuel.

The Court finds that since the case n⸰ RCA 0059/06/TGI/NYGE, mentioned above decided on 10/11/2006, Uwiduhaye Maurice and Uwineza Marie la Douce were officially declared as the children of Kayitsinga Emmanuel, which vested them with the right to succeed him. Therefore, at the time of the succession of 17/12/2000, they were not recognized as the heirs of Kayitsinga Emmanuel, and thus the Court has no basis to decide that those who inherited did so fraudulently to deprive them of their rightful share of their parent’s property.

In the following considerations, the Court examines when the inheritance rights of only what remained from the time they were declared by the Court, or whether they can also request that the portions shared should be returned to the property so that they can have a share of it.  Whether Uwiduhaye Maurice and Uwineza Marie la Douce have the right to inherit only the property that existed at the time they were recognized as descendants of Kayitsinga Emmanuel on 10/11/2006, or whether they can also request that the shares distributed on 17/12/2000 should be returned to their parent’s property so they can inherit them.

There is no provision of Law n⸰ 22/99 of 12/11/1999, which supplements the Civil Code book one and establishes the book five relating to matrimonial regimes, liberalties and succession that addresses this issue.

Article 9 of Law n0 22/2018 of 29/04/2018 relating to the civil, commercial, labour, and administrative procedure provides that a judge adjudicates a case on the basis of relevant rules of law. In the absence of such rules, the judge adjudicates according to the rules that he/she would establish if he/she had to act as legislator, relying on precedents, customs, general principles of law and doctrine.

The Court of Cassation in France, in the case decided on 11/04/2018, decided that the fact that an heir has been recognised by the court after the execution of the succession cannot invalidate a succession that was completed among those who had inheritance rights before a claim for paternity being initiated9 (in that case, the deceased father died on 27/04/1996, the succession of his property was carried out on 28/10/1996 among those recognized as heirs at that time, and later, on 10/11/2005, there has been a judgment declared that the deceased was the father of the claimant, who subsequently filed a claim on 10/08/2010 requesting to inherit the property of the deceased).

9 “Mais attendu qu'après avoir énoncé que l'article 887 ancien du code civil ne prévoit la rescision du partage que pour cause de violence et de dol ou lorsqu'un des héritiers établit à son préjudice une lésion de plus du quart, la cour d'appel a exactement retenu que l'erreur, par omission d'un héritier tardivement révélé, ne pouvait entraîner la nullité du partage, intervenu de façon définitive entre toutes les personnes ayant la qualité d'héritier avant l'introduction de l'action en recherche de paternité ; que le moyen n'est pas fondé”;

## Page 16

The Court finds that the matters examined in the previously mentioned case are consistent with those examined in this case at hand, in which Uwiduhaye Maurice and Uwineza Marie la Douce accuse the heirs of Kayitsinga Emmanuel prior to the Court’s recognition that they are his children, and the Court agrees with the decision taken thereon. Indeed, at the time the succession of the property left by Kayitsinga Emmanuel took place in 2000, Uwiduhaye Maurice and Uwineza Marie la Douce had not yet been recognized as his descendants, meaning that they were not recognized as his heirs.

The Court therefore finds that Uwiduhaye Maurice and Uwineza Marie la Douce should not request that the assets distributed on 17/12/2000 should be returned to the property of Kayitsinga Emmanuel for them to inherit it. Instead, they have the right to inherit only the property that existed from the time they were recognized as descendants of Kayitsinga Emmanuel on 10/11/2006.

The Court finds that the parties agree that no immovable property of Kayitsinga Emmanuel remained undistributed as of 17/12/2000. However, the Court finds that there is an amount of 500,000 Frw alleged by the claimants that it is the proceeds of the third plot they claimed which Hakizimana Vincent had sold to a person named Kayonga10. They explain that their parent caveated it at Nyarugunga Sector Office, where they are still kept; the defendants did not contest this.

The Court finds that amount of 500,000 or the plot from which it originates is not mentioned in the succession document of 17/12/2000, which means that it was never inherited and therefore should be given to Uwiduhaye Maurice and Uwineza Marie la Douce. General conclusion

Based on the legal provisions mentioned and all the explanations provided, the Court finds that the succession carried out on 17/12/2000 should not be invalidated so that Uwiduhaye Maurice and Uwineza Marie La Douce may inherit the property left by Kayitsinga Emmanuel. The Court finds that they are only entitled to 500,000 Frw, which was caveated from Nyarugunga Sector Office, as it does not appear among the inherited property. B. Regarding the damages claimed in this case at hand

Counsel NSABAYEZU Evariste and Counsel NSABIMANA Jean Baptiste, representing the claimants, state that if the Court finds that the claims of Uwiduhaye Maurice and Uwineza Marie la Douce are valid, it should order Iraguha Spéçiose and Hakizimana Vincent to repay the amount of 2,000,000 Frw paid for advocate fee, and 500,000 Frw for procedural fees. These amounts should be in addition to those already paid in case n⸰ RC 0162/13/TGI/NYGE, for which they claim to upheld its ruling.

10 In the Case no RC 0162/13/TGI/NYGE decided by the Intermediate Court of Nyarugenge on 25/10/2013, the claimants argued that the money originated from the plot of land that Hakizimana Vincent had disputed with Kayonga Jean Marie Vianney, who had previously encroached the plot of land of Kayitsinga (see paragraph 5).

## Page 17

Counsel Nduwamungu Jean Vianney, representing Iraguha Spéçiose and Hakizimana Vincent, state that the damages claimed by the claimants which include advocate fee and procedural fees, are not founded.

According to the records in IECMS, Gasana Callixte, who was forced to intervene in the case, filed a counterclaim alleging that because the claimants continue to involve the parties forced to intervene in unnecessary lawsuits, they request that each person should be awarded 2,000,000 Frw for the time lost and for being dragged into unnecessary lawsuits, in addition to 500,000 Frw for advocate fee to be refunded to each of them. DETERMINATION OF THE COURT

The Court finds that the procedural fees and the advocate fee claimed by Uwiduhaye Maurice and Uwineza Marie la Douce to be paid to them by Iraguha Spéçiose and Hakizimana Vincent, should not be awarded to them because each partially won in the case.

The Court finds that 2,000,000 Frw claimed by Gasana Callixte for waste of time and being dragged into unnecessary lawsuits, as part of his counterclaim, should not be awarded, because he was forced to intervene with no intention of wasting his time and dragging him into unnecessary lawsuits as he claims, but instead to protect his interests in the case.

The Court however, finds that 500,000 Frw claimed by Gasana Callixte as advocate fee should be awarded to him, because it was necessary to hire a lawyer to represent him in the case, and the amount claimed is reasonable. The Court finds that both parties to the case should share the responsibility of paying him since each partially lost the case. This means that Uwiduhaye Maurice and Uwineza Marie la Douce will jointly pay him 250,000Frw, and Iraguha Spéçiose and Hakizimana Vincent will also jointly pay him 250,000Frw.

Regarding the other parties forced to intervene in the case in which Gasana Callixte claims the advocate fee, the Court finds that they are not entitled to such fees because he failed to prove that they had given him any mandate to file a claim on their behalf. III. DECISION OF THE COURT

Declares that the claim filed by Uwiduhaye Maurice and Uwineza Marie la Douce for review on grounds of injustice, of the judgment n⸰ RCA 0637/13/HC/KIG, rendered by the High Court on 13 May 2014, has some merit;

Declares that the judgment n⸰ RCA 0637/13/HC/KIG, rendered by the High Court on 13 May 2014, is hereby partially modified;

Declares that the succession carried out on 17 December 2000 remained valid.

Declares that Uwiduhaye Maurice and Uwineza Marie la Douce are not entitled to the property inherited on 17 December 2000;

## Page 18

Orders that 500,0000 Frw which was caveated from Nyarugunga Sector Office be distributed to Uwiduhaye Maurice and Uwineza Marie la Douce;

Orders that Uwiduhaye Maurice and Uwineza Marie la Douce jointly pay Gasana Callixte 250,000Frw as advocate fee;

Orders that Iraguha Spéçiose and Hakizimana Vincent jointly pay Gasana Callixte 250,000Frw as advocate fee.