[2025] UGHCFD 53

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **FAMILY DIVISION** DIVORCE CAUSE NO. 62 OF 2024

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ANDREW KANANURA:::::::::::::::::::::::::::::::::

#### **VERSUS**

SHIELA TARATIBU::::::::::::::::::::::::::::::::::::

### BEFORE: HON. JUSTICE JOHN EUDES KEITIRIMA

#### JUDGMENT

1]. The parties in this petition entered a partial consent judgment upon the petitioner/cross respondent admitting the ground of cruelty.

In the said partial consent judgment, it was agreed inter alia:

- That the marriage between the petitioner/cross respondent and $\mathbf{L}$ respondent/cross petitioner that was solemnized on 30^th December 2014 at All Saints Cathedral Nakasero, Kampala be dissolved. - It was agreed that the petitioner/cross respondent pays the school fees and $\mathbf{H}$ scholastic requirements for their three children namely Amara Joselyne Bridges Kananura, Amaani Estella Hills Kananura and Aine Titian Andrews Kananura. - It was further agreed that the petitioner/cross respondent shall cater for $\mathsf{III}$ . the medical care of all the said named children of their marriage. - Each party was to bear their own costs. IV.

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The court was left to determine the issue of custody of the children.

## Petitioner/cross respondent's evidence

2]. The petitioner/cross respondent stated that he last saw his children nine months ago from the day he was testifying in this court. The petitioner claimed that the children were picked from school early morning and were currently staying in Munyonyo at Joviah Saleh's residence. The petitioner stated that he got a message from the respondent/cross petitioner that she had taken the children and that he should wait to hear from her lawyers.

3]. The petitioner/cross respondent stated that he had always lived with his children without any threat and that he loved his children. The petitioner contended that he had never abused his children nor abandoned them and they were living with him comfortably. The petitioner further contended that he provided everything for his children and had never failed to look after them.

4]. The petitioner/cross respondent further stated that he had no addictions and had never taken narcotics or alcohol. He further stated that he had never alienated his children from the respondent who is their mother. The petitioner /cross respondent stated that the respondent /cross petitioner left him for two and a half months.

5]. The petitioner/ cross respondent further stated that he has no criminal record. That he has rental properties and is a businessman. He stated that he imports cars and aircraft. The petitioner/cross respondent tendered in tenancy agreements to prove that he was being paid rent from some of his properties.

6]. The petitioner/cross respondent further stated that he has never tried to change the religion of his children and has always been a Christian. The petitioner further stated that his children were American citizens and were in Uganda under a dependency pass and are deemed to be his dependents. The petitioner/cross respondent stated that he was fully involved in his children lives and has been paying for their fees to-date.

7]. The petitioner prayed that he be allowed to have his children visit and stay with him for at least four days per month. On cross examination the petitioner/cross respondent stated that he had relatives like his mother and sister who could assist him to look after the children. The petitioner also stated that he

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knew a one Badru Kateregga for whom he was charged for murder but was acquitted.

8]. The petitioner/cross respondent further stated that he has never beaten the respondent and that he was not addicted to opium. The petitioner/respondent denied having an AK 47 rifle and that he had never stormed Acacia mall with an AK 47 rifle. He contended that he had only been to Acacia with a firearm which he was licensed to have. That he went to the said mall armed because his son had called him crying. He contended that he did not want supervised visits and only wanted four days in a month to have his children.

## Respondent's/cross petitioner's evidence

9]. The respondent/cross petitioner stated that she was seeking for sole custody of the children. She stated that the said children go to British School of Kampala in Mengo, an international school. She stated that she takes them to school every morning and picks them in the evening.

10]. The respondent stated that on 14^th May 2024 she received a call and was told that her maternal uncle had died. She then informed the petitioner who allowed her to go and attend the burial. That on the 18^th May 2024 the petitioner informed her that she was no longer going for the burial. She insisted that she had to go and he told her that if she went for the burial their marriage would be over.

11]. The respondent /cross petitioner stated that despite the threat she still went for the burial. That while she was on a vigil, she received a call from the petitioner and the children were wailing and crying and when she asked what the matter was, they informed her that the petitioner had told them that the marriage between him and her was over. That she calmed them and told them they would have a discussion with the elders. That she then heard the petitioner tell them that he had no time for elders.

12]. The respondent /cross petitioner further stated that the petitioner then cut communication from her and their children. She returned in June after a month away and waited for the kids to get their holidays. That during their last day on 27^th June, she went and picked them and reported the matter to the welfare officer. She informed the welfare officer that she was not comfortable with their children going back to the petitioner.

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13]. The respondent further stated that Amara told her that she was not given food but was only given to her siblings. That the cause of that was because Amara resembled her. That Amara also informed her that she had been kicked in the back by the petitioner. That the children also informed her that the petitioner abused them verbally all the time and made them spies on each other.

14]. The respondent further stated that the children now live in Munyonyo at her sister's house and she had been paying for their school fees since September 2024. She contended that the petitioner has not been paying for the children's needs.

15]. The respondent further stated that she gets rent from properties she coowns with her siblings. She also stated that they had a farm in Mubende and it was family land where her and her siblings work from. That they cultivate bananas there and also raise cattle from there. She stated that she earns some income from the farm. The respondent further stated that she owns several properties from which she gets rent from.

16]. The respondent/cross petitioner further contended that their children are of tender age and her daughters were in adolescent stages and hence she was the most suitable to have their custody. She contended that the petitioner does not do any homework or school activities with the children. That when he used to stay with the children, the petitioner would only pay school fees for them.

17]. The respondent/cross petitioner further stated that during the time she was staying with the petitioner it was a very traumatizing period for her and their children as the petitioner/cross respondent would beat her and would yell at their children. She further stated that their marriage was crowded as they used to live with her mother in law and sister in law. That they would report the children to the petitioner about their misbehavior.

18]. That the petitioner would make the children kneel and threaten them that he brought them on earth and he could take them out of earth. That her sister in law once threatened her by telling her that if anything was to happen to the petitioner/cross respondent she would see. The respondent contended that the environment at their home was unsafe for the children. She further stated that her mother in law and sister in law do not like her and allege many things against her. That there is tension between her and the petitioner's relatives.

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19]. The respondent contended that there was constant fear as the petitioner took drugs and injects himself with morphine and when he does that he becomes insecure. The respondent/cross petitioner further stated that there were security cameras all over their home and they also listen in which reveals everything she has done.

20]. The respondent stated that the passports of the children are with the petitioner and she did not feel comfortable with the children going to visit the petitioner because if he got hold of them he would take them to the United Kingdom where his mother lives and she would not be able to see them again. That she would only be comfortable if the petitioner submits the passports to court. She further contended that she would not encourage sleep overs of her children at the petitioner's residence and they could meet at restaurants but not at his home.

21]. The respondent contended that she wanted sole custody of the children. On cross examination the respondent stated that she and their children were on the dependency pass of the petitioner. She stated that the petitioner should continue to pay for the children dues though she doubted his capacity to pay. The respondent also stated that she had not provided the petitioner with pay slips of the school the children are attending.

22]. The respondent further stated that the petitioner has never called her to talk to the children. The respondent conceded on cross examination that the petitioner had the right to discipline the children. She further stated that she had taken the children to her sister's place for security reasons. She further stated that she wanted their children to stay in Uganda.

23]. The respondent further stated that she intended to stay with the children in one of the apartments.

The parties filed written submissions the details of which I have considered in determining this petition.

The issue to determine now is who should be granted custody of the children?

24]. Article 34(1) of the Constitution provides that "Subject to the law enacted in their best interest, children shall have the right to know and be cared for by their parents or those entitled by law to bring them up.".

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Article 31 (5) of the Constitution provides that "Children may not be separated from their families or the persons entitled to bring them up against the will of their families or of those persons, except in accordance with the law."

25]. Section 3(1) of the Children Act Cap 62 provides that – "The welfare of the child shall be of paramount consideration whenever the State, a court, a tribunal, a local authority or any person determines any question in respect to the upbringing of a child, the administration of property of a child, or the application of any income arising from that administration."

26]. Section 2 of the Children Act Cap 62 defines a child as a person below the age of eighteen years. All the children arising out of the marriage between the parties in this case are still children as they are all still below the age of eighteen years.

Section 4 (1) (a) of the Children Act Cap 62 provides that "Every Child shall have the right to -live with his or her parent or guardian."

27]. It was held in the case of Otto Methodius Pacific versus Edyline Sabrina Pacific-C. A. C. A No. 88 of 2013 citing the case of Rwabuhemba Tim Musinguzi versus Harriet Kamakume-Court of Appeal Civil Application No. 142 of 2009 that "Parents have a fundamental right to care and bring up their children. This is a constitutional right. Of course it is not considered in isolation. The welfare of the child is a consideration to be taken into account, and at times may be the paramount consideration. A parent can only be denied the right to care for and raise her children when it is clear and has been determined by a competent authority, in accordance with law, that it is in the best interest of the child that the child be separated from the parent... both parents have similar and equal rights with regard to their child."

28]. In the said case citing the case of CX versus CY [2006] 4 LRC it was held that "Custody as a general concept is divided into two smaller packages, i.e 'care and control' and residual custody. In this context residual custody is no longer the same concept as our general understanding of custody. Instead residual custody is the package of residual rights that remains after the grant of a care and control order that dictates which parent shall be the daily caregiver of the child and with whom the child shall live. To put it simplistically, 'care and control' concerns the day to day decision making for the welfare of the child ... At

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$\mathbf{6}$ common law, care and control concerns the right to take care of a child and to make day to day, short term decisions concerning the child's upbringing and *welfare custody without care and control (that is custody in its narrow sense)* concerns the right to make the more important, longer term decisions concerning the upbringing and welfare of a child."

29]. The United Nations Convention on the Rights of the Child 1989, Article 18(1) imposes a duty on state parties to use the best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. It is in the best interests of the child to have both parents involved in a child's life.

30]. It was further held in the case of Otto Methodius Pacific versus Edyline Pacific (supra) that in custody proceedings, it is crucial that the courts recognize and promote joint parenting so that both parents can continue to have a direct involvement in the child's life. Parental responsibility is for life that courts should endorse the concept of joint custody, and should not assume the sole custody orders simply because parents display animosity towards each other.

31]. It was further held in the said decision citing the case of *Chan Teck Hock* David versus Leong Mei Chuan [2002] 1 SLR 177 where it was stated that "It is our opinion that the interest of the child demands that both parents should be involved in determining what is the best for them in that regard. While as between parties there is bitterness, it does not necessarily follow that this would spill over in determining the educational needs of the children. The court should not decree an arrangement which gives an impression to a child that either the father or the mother does not care about his or her welfare. As we have no doubt that both parents have and will continue to have the children's interests at heart. We do not think that there would be any insurmountable difficulties. In the unlikely event that an impasse should arise, the assistance of court could always be sought."

32]. It was further observed in the said case that sole custody should be exceptional and should only be granted where for example physical, sexual or emotional abuse by one parent is established.

33]. The respondent's contention for seeking for sole custody is that two of the children are adolescent girls and that the petitioner stated that he relies on his

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sister and mother for assistance. That the evidence shows that both reside in the United Kingdom and only occasionally visit. It was also the respondent's contention that the petitioner's residence is rented property and not the children's primary home.

34]. The respondent further contended that the petitioner is a night club owner and a busy businessman and is frequently absent. That the risk of leaving children especially adolescent girls in such environment surrounded by strangers including the petitioner's male employees is not only undesirable but potentially unsafe. That by contrast the respondent is a full time and available caregiver and ready to care for the children all the time.

35]. The respondent contended that she has financial stability and capacity and was able to prove that by exhibiting land titles and a deed of donation, tenancy agreements and certified bank statements establishing a steady flow of rental income.

36]. The respondent contended that the petitioner had not provided any credible evidence of ownership of property or consistent income. That the lease agreement the petitioner had exhibited was in the names of a company called Stallion Group of companies ltd of which he failed to prove any connection to. That the petitioner admitted that he is financially dependent on his mother who has historically paid for the children school fees.

37]. That with regard to the youngest Child, Aine Kananura, the law presumes that a child of tender years is best placed in the custody of the mother unless compelling evidence suggests otherwise. It was further the respondent's contention that granting custody would not be in the children best interest as the evidence had established a history of violence on the petitioner's part. That the petitioner admitted under cross examination that he has physically disciplined the children.

38]. The respondent contended that corporal punishment is now widely recognized as cruel, inhuman and degrading treatment contrary to Article 24 of the Constitution of Uganda and that corporal punishment has been outlawed in Uganda. That the petitioner has been involved in an alarming episode in which he allegedly brandished a firearm in public during an altercation involving the youngest child Aine at Acacia mall.

39]. The respondent further contended that evidence had been adduced which included a criminal case involving the death of a one Badru Kateregga a matter in which the petitioner was acquitted but which still casts doubt on his suitability as a custodian of minor children.

40]. The respondent contended that joint custody under these circumstances would subject the children to emotional instability by moving between two conflicting households. That the children have been exposed to negative portrayals of their mother including repeated use of the ethnically derogative term "munyarwanda". That this forms a parental alienation.

41]. The respondent further contended that the children's residency with the respondent for over ten uninterrupted months despite their passes being within the petitioner's custody is further proof that the said passes have no bearing on the children's welfare. That the two children are approaching the age of majority after which they may independently pursue dual citizenship.

42]. Custody of children entails the day to day care and residence of the child and the authority to make important decisions about the child's life such as education, health care and welfare. Where sole custody is granted, it entails one parent having exclusive physical and or legal custody of the child. In that arrangement visitation rights may be allowed to the other spouse. In joint custody the parents share the physical and or legal custody of the child.

43]. The court's primary consideration is the best interests of the child and also the court considers each parent's ability to provide a stable and nurturing environment. The court may also consider the child's wishes depending on their age and maturity level.

44]. The Petitioner is the holder of the children's and respondent 's dependant passes. He therefore has a duty of care and support to the children and the respondent. The respondent during cross examination admitted that the petitioner used to provide for the children before she took them away.

45]. Regulation 2 of The Uganda Citizenship and Immigration Regulations-2004 defines a dependant as a person who by reason of age, disability or other incapacity, is unable to maintain himself or herself and depends upon another person for his or her maintenance and includes a spouse.

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46]. Regulation 4 of the said regulations provides that:

(1) Any person who is lawfully residing in Uganda or who intends to enter Uganda by virtue of any entry permit, certificate of residence or pass issued to him or her under the Act or these Regulations may apply to the Commissioner for a dependant's pass in respect of any of his or her dependants.

(2) The Commissioner may issue a dependant's pass in respect of any person if he or she is satisfied that-

(a) that the person is dependant of the applicant;

(b) the applicant is able to provide adequate accommodation for the dependant and has income which is sufficient to maintain the dependant."

47]. The evidence that was adduced reveals that the children to the parties are American citizens who are dependant of the Petitioner. The Respondent is equally a dependant on the Petitioner. This evidence was admitted by the respondent. The respondent even stated that she didn't want the children's dependency pass cancelled and stated that the Petitioner should continue paying for their children's necessities. This was actually agreed upon in the partial consent judgment.

48]. The respondent also stated during cross examination that the Petitioner had the capacity to cater for their children and that he had never sexually molested them nor abandoned them in the past. The respondent also stated that the Petitioner had no mental issues although he took drugs. The respondent also acknowledged that the Petitioner used to provide for her and the children before they left him.

49]. In his evidence the Petitioner prayed that the children should be allowed to stay with him at least four days a month. The evidence on record does not reveal to the satisfaction of this court that the Petitioner's conduct could be harmful to the children. In my view if the Petitioner is expected to provide for the children as required by the law, he should also be allowed access to the children and bond with them as their father.

50]. Parental responsibility involves making important decisions about a child's life on issues like his or her education, healthcare and welfare. It ensures that the

child's physical, emotional and psychological wellbeing are catered for. It is about parents making informed decisions about the child's life. This will inevitably entail discussing with the child and being physically involved in their lives. As already observed in the cases cited, it is critical that courts recognize and promote joint parenting so that both parents can continue to have a direct involvement in the child's life. Parental responsibility is for life. Sole custody orders should not be made simply because the parents display animosity towards each other.

51]. It was held in the case of Otto Methodius Pacific versus Edyline Sabrina Pacific (supra) that where a parent has care and control over a child, and the other parent has access to the child, and is also obliged to pay or contribute towards his or her maintenance, it is appropriate for the child be placed in their joint custody. It is only when it is evident that joint custody will not work that an alternative order should be made.

52]. The interests of the children demand that both parents should be involved in determining what is best for them. I am sure that the parties herein wish the best for their children despite their differences. There was no evidence adduced to the satisfaction of this court that when the children were still staying with the petitioner, his conduct affected them emotionally or even physically.

It is therefore basing on the above reasons that I will grant joint custody to the Petitioner and Respondent of their children with the following orders:

- The respondent/cross petitioner is to take care and control of the $\mathbf{I}$ . children during weekdays especially when they are going to school. - The Petitioner/cross respondent is granted access to the children either $\mathbf{H}$ . on a Saturday or a Sunday each weekend depending on his convenience and that of the children. - The children should spend at least one week of the school holiday with $\mathbf{III}$ . the Petitioner/cross respondent. - The Petitioner/cross respondent and the Respondent/cross petitioner IV. are to continue to have direct involvement in the children's lives and to

make long term decisions affecting the children's upbringing and welfare in consultation with each other taking into account the welfare of the children as the paramount consideration.

- The Petitioner/cross respondent or Respondent/cross petitioner are not v. supposed to unilaterally take the children outside the country without a written consent of the other. - No order will be made as to costs. VI.

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Hon. Justice John Eudes Keitirima 27/06/2025