[2025] UGHCFD 11

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA (FAMILY DIVISION)** 5 **CIVIL SUIT NO. 0264 OF 2022**

## **1. SARAH NATTEMBO MUKASA**

**2. HAWA NAKAGWA JUMA ( Administrator of the state of the late Juma Mukasa =============================== PLAINTIFFS**

### **VERSUS**

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

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

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

#### **JUDGMENT**

#### **Introduction**

This Judgment is in respect of Civil Suit No. No. 0264 of 2022. The Plaintiffs sued

20 the Defendants seeking the following orders:

- (a) An Order directing the Defendants jointly and severally to distribute the proceeds of the lease and sale of the land comprised in Kyadondo Block 234 Plot 5161 land at Kirinya, Bweyogerere in Wakiso District (herein after referred to as "**the suit property**") to the Plaintiffs, among others; - 25 (b)General Damages; and - (c) Costs of the suit.


## **Representation**

At the hearing, the Plaintiffs were represented by Counsel Elias Matovu of Ms. Baale, Lubega & Co. Advocates & and Counsel Hamidu Lugoloobi of M/S Lugoloobi Associated Advocates. The Defendants on the other hand were 5 represented by Counsel Mulindwa Hamisi and Counsel Higenyi Badru of M/S Balyejjusa & Co. Advocates.

### **Background of the case**

On 20th June 2022, the Plaintiffs filed this suit against China Machines (U) Ltd (as the 1st Defendant), Camaco Investments Ltd (as the 2 10 nd Defendant), Haji Amisi Kirumba Mukasa (as the 3rd Defendant), Mugenyi Peter (as the 4th Defendant) and Commissioner Land Registration (as the 5th Defendant). The gist of their complaint was that the 3 rd and 4 th Defendants, being the Administrators of the estate of the late Haji Nasibu Mukasa, fraudulently leased and or sold out the suit property to the 1 st and 2 15 nd Defendants to the detriment of the beneficial owners of the suit property, the Plaintiffs. They sought a nullification of the lease and cancellation of the Certificate of Title, among other reliefs.

When the matter came up for scheduling conference on 17th April 2024, Counsel for 20 the Plaintiffs informed the Court that the Plaintiffs had entered into a consent with the 1 st and 2 nd Defendants in which the Plaintiffs opted to withdraw the case against the 1 st and 2 nd Defendants. The case against the 1 st and 2 nd Defendants was withdrawn after confirming with the Plaintiffs that they had voluntarily and willingly opted to withdraw the case against them. The Plaintiffs then formally sought the leave of the 25 Court to amend the Plaint and the same was granted. The Plaint was amended and

leaving out the 1 st , 2 nd and the 5 th Defendants, hence this suit.

# **Facts**

The 1 st Plaintiff and the 1 st Defendant are biological children of the late Hajji Nasibu Mukasa (**deceased**) while the 2 nd Plaintiff is the daughter-in-law of the deceased, being a wife of the late Juma Mukasa. She is also the Administrator of the estate of

- the late Juma Mukasa. The 2 5 nd Defendant is a cousin of the deceased. The deceased died testate and the Will in the vernacular version and its English translation were admitted and marked PEX 2 (a) and (b) respectively. Upon the deceased's death, the Defendants applied for and obtained a Grant of Probate on 10th May 2004 (PEX 3). The Plaintiffs claim that upon acquiring the Probate, the Defendants refused and or - 10 failed to distribute the proceeds of the lease and sale of the property comprised in Kyadondo Block 234 Plot 5161 land at Kirinya, Bweyogerere in Wakiso District (suit property). It is the Plaintiffs' case that the suit land was bequeathed to them, the 1 st Defendant and another in specified proportions in the Will but when the property was leased and sold out, the Defefendants refused to distribute to the - 15 beneficiaries their beneficial share hence this suit.


On the contrary, the Defendants contend that the suit land was curved out of Block 234 Plot 252 which was mentioned in the Will. That before the deceased's death, the Government compulsorily acquired part of this property during the construction of 20 the northern by-pass but compensation came to the beneficiaries after the death of the deceased. It is also the contention of the Defendants that when Uganda National Roads Authority (UNRA) compensated the estate, the proceeds of the compensation were distributed amongst the benficiaries in accordance with the ratios/ proportions as contained in the Will and everyone was satisfied. It is what remained after UNRA

25 took part of the property that translated into in Kyadondo Block 234 Plot 5161 (suit property).

It is also the contention of the Defendants that the Plaintiffs were the ones who negotiated the lease/ sale with the Chinese Company and the Defendants only came in to effect the transaction by virtue of their office as Administrators and accordingly effected the transfers. The Defendants also received Uganda Shillings Six Hundred

5 Million only (UGX 600,000,000) and when they wanted to give the Plaintiffs their beneficial share in accordance with the ratios as per the Will, the Plaintiffs declined arguing that they were entitled to much more than the ratios because the portion that was taken up by the northern bypass for which UNRA made a compensation is mainly what belonged to the 1 st Defendant ( Haji Amisi Kirumba Mukasa) which 10 would entitle the Plaintiffs to more portion of land and resultantly more money from the proceeds of the lease/sale to the Chinese Company, hence this suit.

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

- 15 1. Whether the Defendantsrefused to distribute the proceeds of the sale and lease of the suit property; - 2. How much are the Plaintiffs and the 1 st Defendant entitled to from the proceeds of the sale and lease of the suit property; and - 3. What remedies are available to the parties?

### **Resolution of the issues**

# **Issues 1:** *Whether the Defendants refused to distribute the proceeds of the sale and lease of the suit property.*

The Plaintiffs' Counsel submitted that after the compensation by UNRA, the 25 Plaintiffs requested the Defendants to distribute the residue without strictly following the Will but putting into consideration the effect of the compulsory acquisition of part of the land but the Defendants refused. Thereafter, when the


residue (suit property) was sold, the Defendants still refused to distribute the proceeds of the sale.

The above was strongly refuted by Counsel for the Defendants in his submission and 5 he insisted that the Defendants neither refused to distribute the residue nor the proceeds from the sale but the dispute had always arisen on how to distribute, equally or by following the proportions as contained in the Will. Whereas the Plaintiffs argued that the distribution should be equal amongst the four beneficiaries of the suit land, the Defendants insisted they had to follow the Will, hence the stalemate.

# **Court's determination**

From the adduced evidence, the Plaintiffs were unclear of what they wanted. As already observed, they first sued the Administrators and the buyers (the Chinese Companies) alleging that the Administrators sold the suit property without the 15 consent of the beneficiaries. Along the way, they entered into a consent with the Chinese Companies withdrawing the case against them. The inference that the Court would make from this conduct is that from the beginning, the Plaintiffs were involved in the sale. During the testimony of Sarah Nattembo (PW1), she informed the Court that the Defendants refused to give her, her share of the proceeds of sale 20 even when it was put to her during cross examination as to why she refused Uganda Shillings One Hundred Seven Million (UGX 107,000,000), she denied that. However, when the Court asked her whether she had ever asked the Defendants for her share, she stated that she had not.

On the contrary, the 1 25 st Defendant testified that he received Uganda Shillings Six Hundred Million only (UGX 600,000,000) from the sale of the suit land and he was willing to distribute it in accordance to the Will but the Plaintiffs declined insisting

they were entitled to much more. Even during the trial, he stated that he was willing to give the beneficiaries their entitlements as per the Will.

The Defendants further adduced evidence of a letter authored by the Chairman of

- 5 Katuba Zone LC1 to the Resident District Commissioner (RDC) indicating that there was a dispute on how the proceeds were to be distributed and not that the Defendants had refused to distribute. The letter requested the RDC to intervene in the matter. The RDC also wrote back to the Chairman calling for a meeting (DEX 2 and DEX 3 respectively). This confirms that what is in dispute is not a refusal to distribute the - 10 proceeds of sale/ lease but how much each of the beneficiary should have.

In light of the above, it is my finding that the Defendants did not refuse to distribute the proceeds of the sale of the suit land. What was in contention is how much the beneficiaries are entitled to. The 1 st issue is therefore, answered in the negative.

#### **Issue 2:** *How much are the Plaintiffs and the 1 st Defendant entitled to from the proceeds of the sale and lease of the suit property*.

Counsel for the Plaintiffs submitted that upon the compulsory acquisition of a portion of land by the Government and the subsequent compensation by UNRA,

- 20 there was a family meeting convened by Sheikh Rajab Kakooza between the beneficiaries and it was agreed that the suit land should be sold out and the proceeds shared equally among the beneficiaries. They therefore, argued that since the suit land was disposed of at Uganda Shillings Six Hundred Million (UGX 600,000,000), each of the four (4) beneficiaries was entitled to Uganda Shillings One Hundred and - 25 Fifty Million only (UGX 150,000,000). They further argued that one of the beneficiaries on the suit Property under the Will, Abdu Kiwunda (PW3) had received Uganda Shillings One Hundred and Ten Million Shillings only (UGX 110,000,000) and he was demanding a balance of Uganda Shillings Forty Million (UGX 40,000,000).

Counsel for the Defendants on the other hand insisted that the Will PEX 2(a) and (b)

5 provided for the ratios to guide the distribution of the suit property to the four (4) beneficiaries and the same has to be followed. They heavily contested the proposal of equal sharing of the proceeds.


### **Court's determination**

- 10 In respect to the suit property, the Will in paragraph 3 provided thus: " *And also Amiisi Kirumba to get 0.50 acres from Plot 252 Kirinya and to demarcate off the same starting from the timber factory going downwards. On the same plot No. 252, where my son Muhammed Kibuuka has his business, I have given him 0.50 acres thereof.* - 15 *My daughet Sarah Nattendo from the same plot No. 252 I have given her 0.50 acres thereof.*

*My son Juma Mukasa Kiwanuka to get 0.50 acres from Plot No. 252.*

*The remaining 1.00 acres in plot 252 kirinya where the factory is situate to be taken together with the factory by my child who will be elected as chairman.*

- 20 *All the land comprised in plot No. 252 when being shared, to be shared as hereunder to avoid misunderstandings:* - *a) 1 acre where the factory is situate to be taken off first.* - *b) To be followed by that of Amiisi Kirumba Mukasa going downwards.* - *c) Followed by that of Sarah Nattendo.* - 25 *d) Then that of Muhammed Kibuka* - *e) And lastly, that of Juma Mukasa Kiwanuka"*

I need to observe that whereas the English translation of the Will that was presented by the Plaintiffs (PEX 2 (b)) which is the same as what the Defendants also produced in the trial bundle, the portion bequeathed to Juma Mukasa Kiwanuka is indicated as 0.50 acres, the vernacular version (PEX 2(a)) reads thus, " *JUMA KIWANUKA*

5 *MUKASA muwadde disimolo asatu (0.30).*" . It is also important to note that throughout the trial, the evidence that both parties adduced was that Juma Mukasa Kiwanuka was bequeathed thirty decimals (0.30 acres) and not 0.50 acres. Therefore, the 0.50 acres reflected on the English translation is inaccurate and this Court will treat it as such.

Evidence was also adduced to the fact that Muhammed Kibuuka who was beqeathed 0.50 acres on the suit property exchanged with his brother Mukasa Kiwunda Abdul for another property and therefore has no claim over this property but Mukasa Kiwunda Abdul.

From the reading of the Will, it is clear as to what is the entitlement of each of the beneficiaries of the suit property and it would therefore, not pause a challenge as to what each should receive out of the Uganda Shillings Six Million (UGX 600,000,000) and this is the position of the Defendants.

However, the Plaintiffs insist that the portion of land that the Government acquired and later compensated by UNRA was mainly for the 1 st Defendant and that explains why he took much more money from the UNRA compensation than the rest of the beneficiaries. Sarah Nattembo (PW1) for example, testified that she only received

25 Uganda Shillings Fifteen Million Two Hundred and Forty Three Eight Hundred and Seventeen only (UGX 15,243,817) from the 1 st Defendant. Though she did not know how much money UNRA compensated the estate, she knew that the land that the Government compulsorily acquired was approximately 1.994 acres. The argument of the Plaintiffs is that what remained after the Government's acquisition of the portion of the estate mainly consisted of their bequest as opposed to that of the 1 st Defendant.

It is important to note that no survey Report was adduced in the Court so as to get a clear picture of the suit property in relation to what UNRA compensated for and in comparison to the Will. However, the 1 st Defendant in his evidence admitted having taken more money from the compensation from UNRA because it was his portion

- 10 that was taken away which even included his developments. This therefore, confirms to the Court that the argument of the Plaintiffs is true. - The Plaintiffs also adduced evidence to the fact that after UNRA compensated the estate, they requested the Defendants to distribute the residue amongst the 15 beneficiaries putting into consideration how the proportions had been affected by the compulsory acquisition by the Government but he refused. The Plaintiffs then sought the intervention of Sheikh Hussein Rajab Kakooza who called a family meeting of the beneficiaries. The meeting discussed a number of issues pertaining the estate but specifically to the suit property, it was resolved that it should be 20 disposed of and the proceeds shared equally amongst the beneficiaries under that bequest, to which the 1 st Defendant agreed. The Plaintiffs adduced the minutes of the meeting in the vernacular version and the English translation as PEX 8(a) and (b) respectively. The relevant portion of the minutes is contained in paragraph 8 (c) and it reads thus: - 25 "*Hajji Amisi Mukasa says that the proceeds from the Bypass land were equally distributed. All the children want to sell the place and share the money. The meeting*

*decided the sales price to be 750 million and share it thereafter. Hajji Amisi Mukasa agreed to (equal distribution) of the money from the sale.*"

It is also important to note that the Peter Mugenyi (2 nd Defendant) was the minutes' 5 secretary of this meeting. When he was cross examined about the meeting and the minutes, he was very evasive but he later confirmed that the meeting took place and he was the minutes' secretary.

In light of the above, it is my finding that the Plaintiffs have produced evidence to the satsifaction of the Court that the 1 10 st Defendant received much more money than the rest of the beneficiaries when UNRA compensated the estate and during the meeting, he agreed to distribute the proceeds of sale from the residue (suit property) equally. He therefore, cannot be seen to turn around and insist that the distribution must follow the ratios as contained in the Will. I find this to be inconsiderate of his 15 siblings and a sign of greed. It is also important to note that the resolutions of the family meeting chaired by Sheikh Rajab Kakooza would be binding to all the beneficiaries of the estate of the deceased because they submitted themselves to his authority. It is therefore, the finding of this Court that each of the four beneficiaries of the suit property is entitled to an equal share from the proceeds of the lease/sale 20 thereof.

#### **Issue 4:** *What remedies are available to the parties?*

The Plaintiffs prayed for general damages and costs of the suit.

25 Whereas they would be entitled to the same, in the spirit of restoring the relationship beween the parties, I decline to award the costs and damages.

I recently delivered Judgment in consolidated Civil Suits No. 0190 of 2018 and 0209 of 2022 involving the same parties and other beneficiaries of the same estate in which I discharged the 2 nd Defendant from being an Administrator of the estate and directed that the Plaintiffs, Muhammed Kibuuka Mukasa (PW2), the 1 st Defendant

5 and another should be the new Administrators of the estate to work together and reorganize it and properly execute their father's Will. Awarding damages and costs would, therefore, defeat the efforts aimed at reconciliation in this family.

Resultantly, therefore, I decline to award damages and also Order that each party

10 bears its own costs.

### **Conclusion**

Consequently, therefore, this suit partly succeeds on the following Orders:

- (a) Each of the four beneficiaries of the suit property is entitled to an equal share 15 of the proceeds of the lease/ sale of the suit property; - (b) The 1 st Defendant shall pay Uganda Shillings One Hundred and Fifty Thousand (UGX 150,000,000) to Sarah Nattembo, Hawa Nakagwa Juma (the Administrator of the estate of the late Juma Mukasa) and Uganda Shillings Forty Million only (UGX 40,000,000) to Abdu Kiwunda, being the balance 20 after he received Uganda Shillings One Hundred and Ten Million (UGX 110,000,000). The 1st Defendant shall also retain Uganda Shillings One Hundred and Fifty Million (UGX 150,000,000), being his share; - (c) The payment shall be made immediately and in any case not later than the 24th day of April 2025; - (d)The above Orders exclude the 2 25 nd Defendant because throughout the hearing, it transpired that he was just a dormant Administrator and he was only being used to sign documents on account of his office as an Administrator;



- (e) No orders to damages; and - (f) Each party shall bear its own costs.

## **Dated at Kampala this 24th day of March 2025.**


Alice Komuhangi Khaukha

# **JUDGE**

10 24/03/2025