[2025] UGHCFD 10

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

# **(FAMILY DIVISION)**

# **CONSOLIDATED SUITS**

#### 5 **CIVIL SUIT NO. 190 OF 2018**

- **1. ABDU KIWUNDA MUKASA** - **2. NASSER LUPA MUGENYI** - **3. MEDI KIBUUKA MUKASA** - **4. HAJJI JUMA K. S MUKASA** - 10 **5. HABIBU MUKASA =========================== PLAINTIFFS** - **6. HASIFA NAKIRYA MUKASA** - **7. AISHA NASSANGO** - **8. SARAH NATTEMBO MUKASA** - **9. HARIMA BAYIGA MUKASA** - 15 **10. HAJATI GOLDA SANIA**

#### **VERSUS**

#### **1. HAJJI AMIS KIRUMBA MUKASA**

**2. PETER MUGENYI (Administrators of the Estate of the late Hajji Nasibu Mukasa) ================================== DEFENDANTS**

#### 20 **AND**

**CIVIL SUIT NO. 209 OF 2022**

# **1. MUHAMMED KIBUUKA MUKASA**

**2. SARAH NATTEMBO===========================PLAINTIFFS**

**VERSUS**

#### **1. HAJJI AMIS KIRUMBA MUKASA**

# **2. PETER MUGENYI (Administrators of the Estate of the late Haji Nasibu Mukasa) ================================== DEFENDANTS**

# 5 **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA JUDGMENT**

#### **Introduction**

This Judgment is in respect of Civil Suits No. 0190 of 2018 and No. 0209 of 2022, which were consolidated because they related to the same subject matter and sought

- 10 the same reliefs. The Plaintiffs sued the Defendants seeking the following orders: - (a) The Probate granted to the Defendants in the estate of the late Hajji Nasibu Mukasa on 10th day of May 2004 vide Probate and Administration Cause No. 252 of 2004 is revoked; - (b)An Order compelling the Defendants to surrender to this Court the Probate 15 granted in the said estate of the deceased, the late Hajji Nasibu Mukasa; - (c) An Order that the Defendants render a comprehensive and exhibit a true and up to date inventory and accountability of all properties, rent collected from rentals and or money and or proceeds of any sale or lease of any land that form part of the estate of the late Hajji Nasibu Mukasa; - 20 (d)An Order of refund of the proceeds of every rent or sale of land or leases which was collected or paid to or received by the Defendants and be shared by the rightful beneficiaries; - (e) The Defendants compensate the estate of the late Hajji Nasibu Mukasa for the loss and or damage negligently and willingly occasioned by the Defendants 25 to the estate;

- (f) A permanent injunction issued restraining the Defendants, their agents or workmen from dealing, selling and or in any other way administering the estate of the late Hajji Nasibu Mukasa; - (g)In the alternative, upon failure by the Defendants to refund, compensate, 5 exhibit a true or correct account subject to approval by this Court, then this Court orders that the 1st Defendant is deemed to have benefitted from the estate beyond his share and therefore, shall not be entitled to any more share in the remaining properties or proceeds from any sale or distribution or lease of any property of the estate; - 10 (h)Letters of Administration for the estate of the late Hajji Nasibu Mukasa be granted to the Plaintiffs; - (i) An Order that all the remaining properties and or land that forms part of the estate of the late Hajji Nasibu Mukasa be distributed, and or sold and or disposed of and the proceeds shared equally amongst all the rightful beneficiaries excluding the 1 15 st Defendant; - (j) General damages; - (k)Costs of the suit; - (l) Any further reliefs as court may deem fit.


- 20 The Defendants on the other hand filed a counter claim in which they sought the following reliefs: - (i) A declaration that the Plaintiffs' actions of collecting rent from the estate property in the presence of the Administrators and interfering with the roles of the Administrators amounts to intermeddling with the estate of the late Hajji 25 Nasibu Mukasa;

- (ii)A permanent injunction to issue against the Plaintiffs restraining them, their agents, servants and all persons acting on their behalf from further intermeddling with the estate of the late Hajji Nasibu Mukasa; - (iii) An order for accountability and refund of all monies collected by the 5 Plaintiffs from the estate of the late Hajji Nasibu Mukasa; - (iv) General damages; - (v)Costs of the Counter Claim; - (vi) Any other relief court deems fit.

#### 10 **Representation**

At the hearing, the Plaintiffs were represented by Counsel Elias Matovu of M/S Baale, Lubega & Co. Advocates & and Counsel Hamidu Lugoloobi of M/S Lugoloobi Associated Advocates. The Defendants on the other hand were represented by Counsel Mulindwa Amisi and Counsel Higenyi Badru of M/S 15 Balyejjusa & Co. Advocates.

During the trial, both Defendants were present but only four Plaintiffs were present, namely: Sarah Nattembo Mukasa (8th Plaintiff), Muhammed Kibuka Mukasa (1st Plaintiff), Halima Bayiga (9th Plaintiff), Hasifa Nakirya (6th Plaintiff) (represented 20 by her lawful attorney Halima Bayiga) and Hawa Nakagwa (the Administrator of the estate of the late Hajji Juma. K. S. Mukasa (4th Plaintiff). The rest of the Plaintiffs who were said to reside abroad did not appear in the Court.

At the commencement of the trial, the Court was informed that two of the Plaintiffs had since died, namely: Hajati Juma K. S Mukasa (4th 25 Plaintiff) and Hajati Golda Sania (10th Plaintiff). Counsel for the Plaintiffs prayed to the Court to substitute Hajji Juma K. S Mukasa (4th Plaintiff) with his widow, Hawa Nakagwa who is also the Administrator of his estate and strike out the 10^th Plaintiff and the same was accordingly done.

# $$

- The $1^{st}$ $9^{th}$ Plaintiffs and the $1^{st}$ Defendant are biological children of the late Hajji $\mathsf{S}$ Nasibu Mukasa (deceased) while the 10^th Plaintiff is the widow of the deceased. The $2^nd$ Defendant is a cousin of the deceased. The deceased died testate and upon his death, the Defendants applied for and obtained Letters of Probate on 10^th May 2004 which were marked as PEX1(a) and (b). The Plaintiffs claim that upon acquiring the - Probate, the Defendants refused and or failed to distribute the properties to the $10$ rightful beneficiaries and instead personalized the estate to the Plaintiffs' detriment. The Plaintiffs further claim that the Defendants did not file an inventory as required by the law and what they purported to file much later out of time was full of falsehoods.

On the contrary, the Defendants contend that they administered the estate as per the Will but the Plaintiffs intermeddled in the estate of the deceased by collecting rent from some of the estate property and sharing it amongst themselves without any authorization from the Administrators, hence the counterclaim.

$20$

During the Scheduling Conference, Counsel for the parties agreed on the following issues for determination by this Court:

- 1. Whether the Plaintiffs have a cause of action against the Defendants; - 2. Whether the Defendants have distributed the estate of the late Hajji Nasibu - Mukasa in accordance with his last Will; $25$

- 3. Whether there is a just cause for revocation of Probate granted to the Defendants in Administration Cause No. 0252 of 2004; - 4. Whether the Plaintiffs have intermeddled in the estate of the late Hajji Nasibu Mukasa; and - 5 5. What remedies are available to the parties?

## **Resolution of the Issues**

Counsel for the Plaintiffs argued issues No.1 and 2 together. I will also resolve them jointly.

# 10 **Issues 1 and 2:** *Whether the Plaintiffs have a cause of action against the Defendants and whether the Defendants have distributed the estate of the late Hajji Nasibu Mukasa in accordance with his last Will.*

Counsel for the Plaintiffs, while relying on the Court decision in the case of *Phillip Dumba and Anor versus David Arthur Bagambe SCCA No. 09 of 2022*, submitted

- 15 that the duty of the Administrators/ Executors is to distribute the estate to the rightful beneficiaries. Counsel argued that from the time the Defendants obtained Probate, they have refused and or failed to distribute the property (two bibanja at Bugulo). It was also their argument that the Defendants have also failed to distribute properties comprised in Kyadondo Block 236 Plots 112 and 252 among the beneficiaries but - 20 instead subdivided and distributed land comprised in Kyadondo Block 236 Plot 57 which formed part of the home of the deceased and the burial ground which was not supposed to be subdivided as per the Will.

On the contrary, Counsel for the Defendants contended that the Plaintiffs have no 25 cause of action against the Defendants because evidence was adduced by both parties to the effect that after the Defendants obtained Probate, they distributed the

properties to the respective beneficiaries as per the Will of the late Hajji Nasibu Mukasa. They insisted that the only property that has not been distributed are the two bibanja in Bugulo which the Will directed that the same should be distributed among the beneficiaries as per the Sharia. It was their argument that Hajji Rajab 5 Kakooza and Kassim Nakibinge who were supposed to facilitate the distribution of the property according to the Sharia have not done it. It was also the contention of Counsel for the Defendants that the Will expressly prohibited the distribution of property comprised in Kyadondo Block 236 Plots 112 and 252 which has rental houses which generate income for the beneficiaries and *Wakufu* (Trust) which was

10 meant for the mosque and other charity activities.

## **Court's Determination**

Order 7 Rule (1) (e) of the Civil Procedure Rules (CPR) provides that the Plaint shall contain facts constituting a cause of action and when it arose. In the case of *Uganda*

- 15 *Telecom Ltd versus ZTE Corporation, Supreme Court Civil Appeal No. 3 of 2017*, Court held that in order to determine whether or not a Plaint discloses a cause of action, the Court must look only at the Plaint and its annexures if any and nowhere else. Further, that for a Plaintiff to establish a cause of action, he or she must show that they enjoyed a right, that the right has been violated and that the Defendant is - 20 liable.


In the instant case, the adduced evidence from both the Plaintiffs and the Defendants' cases reveals that the deceased died testate and bequeathed all his properties in the Will. There are some properties that were bequeathed to individual beneficiaries 25 exclusively while others were to be distributed /shared amongst all the beneficiaries and yet others were meant to generate income which would be shared amongst the beneficiaries. It is the undisputed evidence that all the Plaintiffs received their individual shares as per the Will, save for the *bibanja* in Bugulo which were to be distributed to all the beneficiaries in accordance with the Sharia Law. The Will provided thus:

*"My two customary/ Bibanja land I use for farming at Bugulo Kyagwe to be shared* 5 *among my children according to Sharia Law."*

Another contest relates to property comprised in Block 236 Plots 112 and 252. In respect of the above property, the Will Provided thus:

*"My land at Bweyogerere comprised in Block 236 Plot 112 measuring* 10 *approximately 0.50 acres and Plot 252 measuring approximately 0.91 acres which land has the following thereon:*

- *a) A Petrol Station* - *b) A house behind the Petrol Station for tenants with six apartments* - *c) A two-storeyed house with two shops* - 15 *d) A house behind the two storeyed with nine (9) apartments.*

*All the above mentioned, I have given them to all my lawful beneficiaries to my estate and only to get rent from them and not to sell them.*

*All the beneficiaries' shares in the above property are to devolve to all my sons' grandchildren and not including those of my daughters. My daughters'*

20 *grandchildren to go to their respective clans."*


Whereas the Plaintiffs insist that there is need to distribute the above mentioned property among all the beneficiaries and or sell and share the proceeds, it is the finding of this Court and in agreement with Counsel for the Defendants that, that

25 would be going contrary to the wishes of the deceased as expressed in his Will. The Will expressly prohibited the sale of the property but sharing the rental income from the property. It is my considered view that the deceased intended to keep the property as his legacy. It is therefore, not true that the Defendants have refused and or failed to distribute property comprised in Block 236 Plots 112 and 252.

- 5 Regarding the bibanja at Bugulo Kyagwe, I agree with the Plaintiffs that the Defendants who obtained Probate on 10th May 2004 have not, to date, distributed the property to the Plaintiffs. I have considered the Defendants' defence that the same was to be distributed according to Sharia Law but Sheikh Rajab Kakooza and Hajji Kassim Nakibinge who were to facilitate the distribution as per the Sharia Law - 10 have not been able to do that. I find that defence untenable because as Administrators of the estate of the deceased, it was their sole responsibility to ensure that the Will was executed as per the wishes of the deceased. No evidence was adduced by the Defendants to show any efforts made by them towards having the properties distributed. In fact, it was also a shocking and disturbing revelation during the 15 hearing that none of the parties seemed to know the exact location of the said pieces of land. I find this to be carelessness and lack of diligence on the part of the

In light of the above therefore, it is the finding of this Court that the Plaintiffs have 20 a cause of action against the Defendants because they have been denied to enjoy their beneficial share in the two pieces of land at Bugulo due to the inaction of the Defendants. Issues 1 and 2 have therefore been answered in the affirmative.

Defendants.

## **Issue 3:** *Whether there is a just cause for revocation of Probate granted to the Defendants in Administration Cause No. 0252 of 2004.*

Counsel for the Plaintiffs argued that the Defendants did not file an inventory within the time prescribed by the law and when they purported to file one, way out of time,

5 they did it without the leave of the Court and it contained a lot of falsehoods. One of the falsehoods pointed out by Counsel for the Plaintiffs was in respect of the beneficial share of Hasifa Nakirya Mukasa (6th Plaintiff) where the inventory indicated that the Defendants had given her, her share and yet the evidence of the Plaintiffs reveals that the Defendants sold the beneficial share of Hasifa Nakirya 10 Mukasa but did not remit the proceeds of sale to her.

It was also a complaint of the Plaintiffs that the 2nd Defendant unlawfully allocated himself 50 decimals (0.5 acres) out of the deceased's estate to the detriment of the Plaintiffs, the rightful beneficiaries.

## **Court's Determination**


Section 230 of the Succession Act, Cap. 268 provides that Letters of Administration can be annulled or revoked for just cause which includes defects in proceedings to obtain them, fraudulently obtaining them or concealing information from the Court 20 and failure to exhibit an inventory.

Under Section 273 (1) of the Succession Act, an Executor or Administrator should exhibit an inventory to the Court within six (6) months. [**See:** *Paulo Kauma versus Moses Sekajja (1995) KALR 18*] where it was held that the duty to file an inventory 25 is mandatory, a breach of which is a ground for revocation of the grant. In the case of *Michael Oscar Kayemba versus James Mulwana and 3 Others (1999) KALR* *738*, it was held that an Executor has a duty to file an inventory within six (6) months and is excusable only if there is an Application for an extension of the filing.

In the instant case, whereas the Defendants obtained the Probate on 10th May 2004, no inventory was filed until 15 5 th May 2018 and this was done without the leave of the Court for an extension of time within which to file an inventory out time. There is, therefore, just cause warranting revocation of the Probate obtained by the Defendants on 10th May 2004 vide Administration Cause No. 252 of 2004.

- 10 Regarding the alleged falsehoods in the inventory, one of the Plaintiffs' allegation is that the inventory which was filed out of time indicated that the Defendants had given Hasifa Nakirya Mukasa her beneficial share and yet the evidence of the Plaintiffs reveal that the Defendants sold her beneficial share but did not remit the proceeds of sale to her. The other complaint is that the 2nd Defendant who is not a - 15 beneficiary of the deceased's estate was given 0.5 acres and the same is indicated in the inventory.

In respect of the beneficial share of Hasifa Nakirya Mukasa (6th Plaintiff) who was being represented by Halima Bayiga Mukasa (9th Plaintiff) by a Power of Attorney, 20 I have looked at the inventory (PEX3) and the said Hasifa Nakirya Mukasa is only mentioned in respect of property comprised in Kyadondo Block 234 Plot 64, which was two (2) acres. The same is said to have been distributed amongst Nasser Mugenyi (0.5 acres), Halima Bayiga (0.5 acres), Hasifa Nakirya (0.5 acres), and Juma Mukasa Kiwanuka (0.5 acres). This is contained in the inventory (PEX3) on

25 page 4, paragraph 9. The Plaintiffs did not adduce any evidence to the satisfaction of the Court to the effect that Hasifa Nakirya did not receive her beneficial share on this property. I am therefore unable to make a finding that the information about her share in the inventory was false.

However, the Plaintiffs testified that the Defendants sold a piece of land that 5 belonged to Hasifa Nakirya but did not remit the money to her. They adduced a Memorandum of sale that was marked as PEX 4 (b) which revealed that on 3rd January 2014, there was a transaction of sale of land comprised in Block 236 Plot 3098 between the Administrators of the estate (Defendants) on one part and Mr. Sulaiman Mafabi, on the other part for a consideration of Seventy Million Shillings 10 (UGX 70,000,000). In the said Memorandum of sale, it was indicated that the property being sold was a beneficial share of Hasifa Mukasa, who resides in Sweden,

and the same was being sold with her consent in the presence of her brother Miiro Yusufu and the Chairman LCI of Ntebetebe Zone, Mr. Mpanga Farouk.

- 15 Though evidence was not properly adduced by either of the parties, I was able to deduce that out of the four (4) acres of land where the home of the deceased is situated, some piece of land was curved off (1.5 acres) and the same divided amongst the eleven (11) children of the deceased, despite the Will having prohibited the sale of this or any part of this land. I believe that is what is contained in paragraph 3 of - 20 the inventory (PEX3) where it is indicated that: *"KYADONDO BLOCK 236 PLOT 57 4.00 ACRES.*


*The widow Hajat Sania Nakamanyisa is still alive and lives in this home. This land was subdivided into 1.5 acres and the same was shared among 11 children..."*

During cross examination, the 1 25 st Defendant denied selling land meant for Hasifa. However, the Memorandum of Sale [PEX 4(b)] was admitted during the Scheduling Conference without any objection from the Defence. This therefore, meant that this evidence is uncontested.

In light of the adduced evidence, it is my finding that whereas the Defendants gave 5 Hasifa Mukasa her beneficial share of 0.5 acres out of Block 234 Plot 64 which was specifically bequeathed to her, her beneficial share that arose from the 1.5 acres which was curved off the home of the deceased, was sold off by the Administrators. The Plaintiffs testified that upon the sale, the proceeds were never remitted to the beneficiary. In the absence of any evidence to controvert this claim from the 10 Defendants, it is my finding that the Defendants received money on behalf of Hasifa Mukasa and refused and or failed to remit it to her. Since there is evidence that her beneficial share was sold at Uganda Shillings Seventy Million (UGX 70,000,000), the Defendants are hereby directed to refund that money to Hasifa Nakirya Mukasa immediately and in any case not later than the 30th April 2025.

Regarding the land that the Plaintiffs claim to have been fraudulently transferred to the 2nd Defendant (0.5 acres), the 2nd Defendant testified that the deceased, who was his cousin gave him 0.5 acres of land in 1995 on which he constructed his residential house. He further testified that it was not until 29th April 2002, that the deceased 20 reduced that in writing and the Luganda version of the document with its English translation were admitted as DEX 19 (a) and 19 (b) respectively. Though the Plaintiffs claim that the transfer was fraudulent, they did not adduce any evidence to rebut the evidence of the 2nd Defendant to the effect that he was residing on that disputed land even when the deceased was still alive. It is also important to note that

25 DEX 9 (a) and (b) was admitted during the Scheduling Conference without any contestation from Plaintiffs. In the absence of any evidence to the contrary, it is the finding of this Court that the 0.5 acres on which the 2nd Defendant built his residential house was given to him by the deceased in his life time. He should therefore, continue in occupation of the same uninterrupted.

In light of the above, issue No. 3 is partly answered in the affirmative in as far as 5 late filing of the inventory without the leave of the Court. Consequently, the Probate granted to the defendants on 10th May 2004 are hereby revoked for failure to file an inventory.

## **Issue 4:** *Whether the Plaintiffs have intermeddled in the estate of the late Hajji* 10 *Nasibu Mukasa.*

Counsel for the Defendants submitted that the Plaintiffs have intermeddled in the estate of the deceased because, Sarah Nattembo, without any authorization from the Administrators, started collecting rental income from the property comprised in Block 236 Plots 112 and 252 from 2018 to date while sharing and distributing it 15 amongst the other Plaintiffs. Counsel for the Defendants further argued that the

Plaintiffs have prohibited some of the tenants on the property from paying rent to the administrators.

On the other hand, Counsel for the Plaintiffs did not deny that Sarah Nattembo was 20 the one collecting the rental income but contended that she did that with the authorization of the Defendants because it was a unanimous decision of all the beneficiaries including the 1st Defendant that Sarah Nattembo should collect rent on behalf of all of them and distribute the same accordingly.

## 25 **Court's Determination**

Section 265 (2) of the Succession Act, Cap. 268 provides that: *"A person is said to intermeddle with the estate of a deceased person where that person, while not being the Administrator General, an agent of the Administrator General or a person to who probate or letters of administration have been granted by Court-*

5 *(a)takes possession or disposes of the property of the deceased person; or* (b)*does any other act which belongs to the office of the executor or executrix, or administrator or administratrix."*

From the adduced evidence from both parties, it is not in dispute that Sarah Nattembo (8th Plaintiff in Civil Suit No. 190 of 2018 and 1st 10 Plaintiff in Civil Suit No. 209 of 2022), though not the Administrator of the estate of the deceased, is the one collecting rental income from the biggest portion of the estate property comprised in Kyadondo 236 Plots 112 and 252 from 2018 to date. What is disputed is whether Sarah Nattembo is performing the duty with authorization of the administrators.

Whereas she insisted that she was collecting rent with the authorization of the Defendants on behalf of all the beneficiaries and whereas she adduced evidence to confirm that the respective beneficiaries were receiving their entitlement whenever rent was collected (PEX 6), the Defendants insisted that they did not authorize Sarah Nattembo to collect rent but she forcefully took up the responsibility. The 1 st 20 Defendant contended that from 2004 till 2018, the rental income was being received on the Estate Account and in 2018, there arose a misunderstanding after the death of one of the signatories of the account and since then, the Plaintiffs, through Sarah Nattembo started collecting rent.

During the locus visit, I confirmed that the property fits the description as contained in the deceased's Will. It is a storeyed commercial building with two floors, the

ground and the first floor. I also confirmed from all the parties that the Plaintiffs collect rent from the biggest portion of the commercial property. There are also very many rental rooms behind the storeyed building and the Plaintiffs collect all the rent to the exclusion of the 1st Defendant. The Plaintiffs also built kiosks around the 5 property and they are the ones collecting rent in addition to providing a parking for vehicles from which they also earn an income.

I was however, bothered by the fact that whereas all the parties collect rent from the property, none has made any effort to renovate it. It is poorly maintained and yet the 10 parties claimed that some of the rental income goes towards maintenance of the property. Though it is very prime property in the Bweyogerere Township on the

main Jinja Road, it looks dilapidated and no longer matching the other properties in

- its neighborhood. - 15 In light of the fact that the Defendants insist that they did not authorize the Plaintiffs to collect rent from the disputed property and in the absence of any documentation authorizing the Plaintiffs, it is the finding of this Court that the Plaintiffs are acting without authority and therefore, intermeddling in the estate of the deceased. Even if the Defendants had authorized Sarah Nattembo as the Plaintiffs claim, when a 20 misunderstanding between them arose and the Defendants withdrew the authorization as seems to be the case for the Plaintiffs, any continued collecting of rental income after the withdrawal of the authorization is intermeddling in the deceased's property. This is despite the fact that all the beneficiaries are sharing in the property. - 25

I also need to observe that during the locus visit at the residence of the deceased which is located at Ntebetebe Zone, Bweyogerere Division, Kira Municipality, Wakiso District, I established that there is a mosque within the courtyard of the home, a school and some other houses under construction. As per the deceased's Will, some of the money from the commercial houses in Bweyogerere was to be used as *WAKUFU* (trust). All the parties save for the 2nd Defendant are Muslims and

- 5 they all agreed that *WAKUFU* means giving out money for purposes of taking care of the mosques and other people in need. It was also the evidence of the parties that *WAKUFU* should constitute one third of the total collections. During the locus, the Court interviewed Mr. Jamil Mugalu, the Sheikh of the mosque that is in the courtyard of the residence of the deceased. He informed the Court that the six houses - under construction are being constructed by Hajji Amisi (1 10 st Defendant) and the Committee of the mosque. He stated that it is Hajji Amisi who provides the money for the construction and the mosque also contributes through its collections. He further testified that before the conflict between the 1st Defendant and the Plaintiffs arose, even the Plaintiffs were making contributions but after the conflict they 15 stopped.

In light of the above, it is the finding of this Court that evidence has been adduced to the satisfaction of the Court that whereas the 1st Defendant is adhering to the Will by making contributions towards *WAKUFU* from the rent collected, the Plaintiffs

20 are not, though they are also collecting rent.


It also transpired from the evidence of the Plaintiffs especially Bayiga Halima Mukasa (PW2) and Sarah Nattembo (PW3) that they were dissatisfied with their father's Will because it was unfair to them as the daughters. It provided, in respect 25 of the Bweyogerere commercial property that the daughters would benefit from the rent but upon their death, the same would not devolve to their children because they

17 | P a g e

have their inheritance in their respective clans. They stated that it was unfair because it was discriminatory on grounds of gender and prayed to the Court to make orders to that effect.

- 5 Whereas it is true that the Will treated the children differently on the basis of their gender, the daughters never at anyone contested the Will from 2004 when the deceased died and when the Defendants obtained the Probate. I also find that, that was the wish of the deceased and his reason was that the grandchildren of the daughters have inheritance in their respective clans. It is my considered opinion that, - 10 that was his wish and this Court would not in any way attempt to disrespect it and vary the Will.

## **Issue 5:** *What remedies are available to the parties?*

Both parties prayed for a number of reliefs in the Claim and the Counter Claim. 15 However, some of the reliefs sought are untenable in light of the findings made above. The following are the remedies are available to the parties:

- 1. The Probate granted to the Defendants on 10th May 2004 is hereby revoked for failure to file an inventory within the prescribed time; - 20 2. The Probate/ Letters of Administration (With Will Annexed) shall be granted to Muhammed Kibuuka Mukasa, Sarah Nattembo, Hajji Amisi Kirumba Mukasa Bayiga Halima Mukasa and Hawa Nakagwa. I am mindful of the fact that there are other beneficiaries who are the Plaintiffs in this matter but they are said to be residing abroad and all through the proceedings, they never 25 appeared. On the contrary, Muhammed Kibuuka Mukasa, Sarah Nattembo, Bayiga Halima Mukasa and Hawa Nakagwa were not only very actively

18 | P a g e

involved in the case but they are also actively involved in the management of the estate.

I have also deemed it necessary to retain Hajji Amisi Kirumba Mukasa so that 5 he is not disadvantaged by the other beneficiaries. I am also of the considered view that all of them will work together to organize the estate and ensure that it is not wasted. I am convinced that they will be able to work together, because during the locus visit, the Court was informed that when the sons of Hajji Amisi Kirumba Mukasa and Muhammed Kibuuka Mukasa returned from 10 Mecca, a joint welcome function was conducted at the residence of the deceased in which all of them attended. To me, this was an indication that these siblings are still capable of working together and organize their father's estate. By this Judgment, they are encouraged to work together and ensure that they properly maintain the property from which they collect rent which is

15 currently in a very bad state.


- 3. The 2 nd Defendant is discharged from the administration of the estate. This is because the adduced evidence revealed that whereas he appeared on the Grant as an Administrator, he knew nothing pertaining to the estate. Everything was being done by the 1 20 st Defendant; - 4. I have not made any Orders requiring the parties to account. This is because both the Plaintiffs and the Defendants have been receiving money for their benefit and making such Orders would cause more acrimony and confusion 25 and yet this Court would like to guide the warring parties to re-organize themselves and work together as it was in the beginning;

- 5. On the issue of the proceeds from the sale of the beneficial share of Hasifa Nakirya Mukasa that was never remitted to her, the Defendants shall refund Uganda Shillings Seventy Million only (UGX 70,000,000) to Hasifa Nakirya Mukasa immediately and in any case not later than the 30th day of April 2025; - 6. Concerning the property which the Plaintiffs claimed was wrongly taken by the 2nd Defendant (Mr. Peter Mugenyi), I have already made a finding that the 2 nd Defendant adduced evidence to the satisfaction of the Court that the same was given to him as a gift by the deceased in his lifetime and he should remain - 10 in occupation uninterrupted.

## **Conclusion**


Consequently, both the Suit and the Counter Claim partly succeed on the following Orders:

- (a) The Probate granted to the Defendants on 10 15 th May 2004 is hereby revoked for failure to file an inventory within the prescribed time; - (b)The Probate/Letters of Administration (With Will Annexed) shall be granted to Muhammed Kibuuka Mukasa, Sarah Nattembo, Hajji Amisi Kirumba Mukasa, Bayiga Halima Mukasa and Hawa Nakagwa; - 20 (c) The Defendants shall refund Uganda Shillings Seventy Million only (UGX 70,000,000) to Hasifa Nakirya Mukasa, being proceeds from the sale of her beneficial share immediately and in any case not later than the 30th day of April 2025;

(d)The 2 nd Defendant is discharged from the administration of the estate;

(e) The 2 25 nd Defendant shall remain in occupation of the piece of land given to him by the deceased uninterrupted;

- (f) The new Administrators shall adhere to the Will of the deceased and execute it accordingly; - (g)The new administrators shall ensure that the two *bibanjas* in Bugulo are distributed to the beneficiaries in accordance with the Will; - 5 (h)No orders have been made to either of the parties to account for what they have been receiving because all beneficiaries have been receiving money from the rental income; and - (i) Each party shall bear is own costs. - **Dated at Kampala this 17 th** 10 **day of March 2025.**

………………………………..

Alice Komuhangi Khaukha

## **JUDGE**

15 17/03/2025