[2023] UGHC 445

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT RUKUNGIRI

## CIVIL SUIT NO.012 OF 2022

## (FORMERLY CIVIL SUIT NO.20 OF 2021)

## KESHAHA PEACE ::::::::::::::::::::::::::::::::::: (As Administrator of the Estate of the late Erisa Kabateraine)

#### **VERSUS**

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AMPEIRE SYLVIA ::::::::::::::::::::::::::::::::::::

## BEFORE: HON. JUSTICE TOM CHEMUTAI, JUDGE. **JUDGMENT**

The Plaintiff filed this suit against the Defendant seeking for recovery of land, an eviction order against the Defendant, a declaration that the Defendant is a trespasser, a declaration that the Defendant is not a beneficiary under the Estate of the late Erisa Kabateraine, a permanent injunction against the Defendant or her agents or servants or anybody claiming on her behalf from ever using/claiming or occupying the suit land which is located at Rwakabengo Cell measuring 0. 95 hectares, general damages, interest thereon and costs of the suit.

The Defendant filed a Written Statement of Defence with a Counter Claim against the Plaintiff. The Defendant denied allegations of the Plaintiff in the Plaint. In the Counter Claim she prayed for a declaration that the suit land was part and partial of the Estate of the Late Erisa Kabateraine's Estate, a declaration that the transfer of the suit Land into the Plaintiff's names was

meant for Legal Administration and Distribution purposes but not as personal owner of the suit property, a declaration that the Mortgaging of the suit Land by the Defendant by Counter Claim to Pearl Microfinance Limited upon a forged LC 1 Chairperson letter instead of transferring the same to the Plaintiff by Counter Claim was fraudulent and illegal, a declaration that the plaintiff by Counter Claim being a Grand Daughter of the said Late Erisa Kabateraine Daughter of the Late Turyamureeba Michael (Late) who was a son of the said Late Erisa Kabateraine was a beneficiary and was entitled to a share in respect of the Estate of the said Late Erisa Kabateraine which would be the share of her said father and it is the suit Land, an order directing the Defendant by Counter Claim to transfer the suit land comprising in and/ or described as Rujumbura Block 5, Plot 2063 to the Plaintiff by Counter Claim, an order for a permanent injunction restraining the Defendant by Counter Claim from evicting and interfering with the Plaintiff by Counter Claim's quiet possession of the Suit Land, General Damages and finally the Costs of the suit.

The brief facts of the case are that the suit land comprised in Block 5 Plot 2063, Ruzhumbura County, Kigezi District currently located at Rwakabengo Cell, Kagunga, Southern Division, Rukungiri District measuring 0.95 hectares originally belonged to late Erisa Kabateraine. Upon his demise, the Plaintiff obtained Letters of Administration for the estate of the late Erisa Kabateraine under Administration Cause No.0185 of 2005 and the Plaintiff was registered on the suit land as an Administrator of the estate of the late Erisa Kabateraine.

The late Erisa Kabateraine left behind six children namely; Erika Katsigazi, Jespa Natukunda, Turyamureeba Michael (the alleged father of the

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Defendant), Kembabazi Irene, Tumwesigye Eric and Keshaha Peace (the Plaintiff).

The Plaintiff claims that she is the registered proprietor (as Administrator of the Estate of the late Erisa Kabateraine vide Administration Cause No. 185 of 2005) of the suit land, having acquired the same from her late father Erisa Kabateraine. That she gave the suit land in 2010 to the Defendant to caretaker of it. That the Defendant has been encroaching on the suit land claiming to be beneficiary of the estate of the late Erisa Kabateraine. The plaintiff also alleged that the Defendant had been selling off part of the suit land without her consent.

On the other hand, the Defendant alleged that the Plaintiff was registered the Certificate of Title as an Administrator of the estate of the late Erisa Kabateraine, not as a registered proprietor. She further stated that the estate of the late Erisa Kabateraine was wholly distributed and divided among the beneficiaries of the late Erisa Kabateraine on 21st October, 2006 during the family meeting held at Rwakabengo. She contended that both the Plaintiff and Defendant participated in the said meeting and both were given a portion of the estate of the late Erisa Kabateraine. The Defendant also averred that she was the daughter of the Turyamureeba Michael, the son of the late Erisa Kabateraine and she was accepted as a family member and a beneficially of the estate of the late Erisa Kabateraine.

## Representation

During the hearing of this matter, the Plaintiff was represented by counsel Allan Tumwesigye from M/s Lubega & Co. Advocates, and the Defendant was represented by counsel Owomugisha Patricia.

The following issues were framed at trial;

- 1. Whether the Defendant is beneficiary of the estate of the late Erisa Kabateraine. - 2. Whether the defendant has a valid Counter Claim - 3. Remedies.

### Plaintiff's submissions.

Counsel for the Plaintiff submitted that it was not disputed that the late Erisa Kabateraine left six (6) children and the Plaintiff was the Administrator. He noted that there was a family meeting held on 21^st October, 2006, where the estate of late Erisa Kabateraine was distributed among five (5) beneficiaries who were present. He contended that the portion belonging to the late Turyamureeba was given to the Defendant and her mother (Ms. Bendente Margaret) to use for cultivation and not to sell.

Counsel contended the Defendant was not the daughter of Turyamureeba Michael and added that her baptism card No.368 issued by All Saint Church, Rukungiri which showed the late Turyamureeba as her father, was disowned by the Naturinda Elizabeth. He alleged that the Defendant was baptized on 28^th March, 1986 under serial No.368 and her parents were Margaret Bendette and Barugahare as a father. He contended that the Defendant tried to clarify

that Barugahare was her uncle (a brother to her mother) which counsel contended was contradicting the document already on the record.

Counsel submitted that the Defendant was not a beneficiary of the estate of the late Erisa Kabateraine. That the Defendant and her mother were family friends of the Plaintiff who were brought by the widow of the late Erisa

Counsel contended that Defendant did not prove that that she was a beneficiary of the estate of late Erisa Kabateraine and hence she was not entitled to any of remedies prayed for in the Counter Claim.

## Court's determination

The Plaintiff in her testimony confirmed to the Court that she was the Administrator of estate of the late Erisa Kabateraine and acknowledged that she called for a family meeting to distribute and open boundaries of the estate of the late Erisa Kabateraine, which was done by a surveyor called Remmy Mugyenyi. Accordingly, the estate's land was divided into six portions among the beneficiaries who were children of late Erisa Kabateraine (both the dead and those alive). The Plaintiff informed the Court that the minutes of the family meeting were taken and she tendered in the Court, the said minutes and were marked as PE1. She stated that the portion for the late Turyamureeba Michael was given to the Defendant and her mother as caretakers.

The Defendant stated that she knew the Plaintiff as her paternal Aunt. That her father was called Turyamureeba Michael (deceased) and her mother is Bendete Magaret is still alive. That the late Erisa Kabateraine was her

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grandfather, paternal. She stated that there was a family meeting convened to distribute the estate of the late Erisa Kabateraine, which she contended that she attended alongside other family members and a surveyor. She contended that during the said meeting, she was given the suit land at Rwakabengo, which was the share given to her late father Turyamureeba Michael measuring about 1.3 acres. That she has been living on that suit land since then. That most of the beneficiaries sold off their portion and it was only Katsigazi and her still on the land.

DW2, Margaret Bendete, Defendant's mother stated that the Defendant was her daughter born in 1984 and her father was called the late Turyamureeba Michael, the brother to the Plaintiff. That the said Turyamureeba Michael was a son of the late Erisa Kabateraine. She stated she attended the family meeting where the estate of her father-in-law was distributed and the Defendant (Defendant) was given the share of her father.

DW3, Canon Sabiti Mahirane, stated that he knew Plaintiff as her nephew. That he was a clan brother to his late father Erisa Kabateraine. That the Defendant's father, Turyamureeba Michael, died a long time ago. That there was a family meeting and the properties of the late Erisa Kabateraine were distributed among the children in 2006 and each child got a share. That the said family meeting was attended by both the Plaintiff and Defendant.

It is worth noting that there was a family meeting concerning the sharing of the estate of the late Erisa Kabateraine held on 21st October, 2006. It is admitted fact by all parties that the said meeting took place, it was attended

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by all of the parties and the minutes of the said meeting were tendered in this

From the minutes of the family, the estate of the late Erisa Kateraine which about was 8.2 acres was divided among six beneficiaries as follows;

- 1. Katsigazi 1.4 acres - 2. Ampaire (Turyamureeba Michael) 1.3 acres. (Defendnat) - 3. Sock 1.2 acres (Elias Akandwanaho son of Sock) - 4. Keshaha 0.9 acres = later recollected to 1.0 acres - 5. Kembabazi 0.9 acres $=1.0$ acres - 6. Mugisha 0.6 acres = $0.4$ acres

It is clearly shown in the family minutes, that there was great discussion about the children of the Turyamureeba and that Ampeire (Defendant) was unanimously accepted as a family member since the majority of the family members knew her as their daughter.

Further from the family minutes it was agreed upon that land for share of the late Turyamureeba be given to Ampeire Sylvia (Defendant).

It is crystal clear from the family meeting for estate of late Erisa Kabateraine the Defendant was recognized as the daughter of the late Turyamureeba Michael, the son of the late Kabateraine and she was accordingly allocated the suit land as share of her late father. The Defendant indicated that she was daughter of the late Turyamureeba Michael, which was confirmed by her mother (DW2) and DW3.

There was an issue on the two baptism card, one produced by the Defendant which showed the Turyamureeba Michael as father and another produced by Plaintiff which showed Barugahare as father of the Defendant. On which $\Theta$ the later the Defendant explained that the said Barugahare was a brother to her mother and not her father.

As have shown above, I have no doubt in my mind that the Defendant is the daughter of the Turyamureeba Michael as per by the evidence above and I find the allegation of the Plaintiff an afterthought aimed at excluding the Defendant from sharing the estate of late Erisa Kabateraine.

Therefore, I find that the Defendant is the daughter of the late Turyamureeba Michael, hence a beneficiary under the estate of the late Erisa Kabateraine.

Accordingly, I find the Defendant has a valid counterclaim against the Plaintiff. Henceforth I make the following orders and declarations.

- 1. The Plaintiff's Civil Suit No.12 of 2022 is dismissed for lack of merits. - 2. A Declaration that the suit land was part and partial of the Estate of the late Erisa Kabateraine's Estate. - 3. A declaration that the defendant being the daughter of the Late the Turyamureeba Michael is a beneficiary and entitled to a share in respect of the Estate of the said Late Erisa Kabateraine. - 4. I order, the Commissioner for lands should effect the transfer the suit land, which was a share for Late the Turyamureeba Michael, comprising in Rujumbura, Block 5, Plot 2063 to Defendant from the Plaintiff. - 5. A permanent injunction restraining the Plaintiff from evicting and interfering with the Defendant's quiet possession of the suit Land.

6. Since the parties are family members, each party to bear its own costs. Delivered at Rukungiri this....................................

**TOM CHEMUTAI JUDGE**