[2024] UGHCFD 80

### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA [FAMILY DIVISION] CIVIL SUIT NO.156 OF 2023**

#### **1. NAMATOVU HALIMA**

### **2. BUKENYA REHEMA :::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS 3. LUBEGA MOHAMMED**

#### **VERSUS**

# **1. KHADIJA NABUKERA 2. BUKENYA TWAHA :::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

### **JUDGMENT BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

#### **1.0 Introduction.**

- 1.1 The Plaintiffs Namatovu Halima, Bukenya Rehema and Lubega Mohammed instituted this suit against Khadija Nabukera and Bukenya Twaha seeking orders that; - **i. A permanent injunction restraining the 1st and 2nd defendants from intermeddling with the estate of the late Bukenya Zaccharia Kassa Sajjabi until the final determination of this suit and/or until completion of the grant of the Letters of Administration.** - **ii. A declaration that the defendants are intermeddling with the estate of the late Bukenya Zaccharia Kassa Sajjabi.** - **iii. Removal of the perimeter wall being constructed behind the deceased's home** - **iv. General damages** - **v. Interest at 28% per month in (iv) and (vi) from the date of cause of action until payment in full.** - **vi. Costs of the suit.**


- 1.2 The defendants in their Written Statement of Defence denied the Plaintiffs claim in the Plaint. They prayed for the suit to be dismissed with costs. The Plaintiffs/ Counter defendants filed a reply to the Written Statement of Defense & Defence to the Counterclaim on 19th July, 2023. The defendants filed a Counter Claim on 7th June, 2023, as counter claimants they claimed against the Counter defendants the following orders that; - i. An order to account by the counter defendants proceeds out of the sale of the estate property comprised in the Kyadondo Block 195 Plot 2512 and Plot 3006 at Kyanja formerly Plot 165. - ii. A declaration that the counter-defendants actions were illegal and amounted to intermeddling with the estate of Bukenya Zaccariah. - iii. A Declaration that the counter-defendants fraudulently dealt in the estate land comprised in Kyadondo Block 195 Plots 2512 and Plot 3006 at Kyanja. - iv. General damages - v. Costs of the suit. - **2.0 Representation and Hearing of the suit.** - 2.1 The Plaintiffs were represented by Dennis Khauka of Kiira & Co. Advocates and the Defendants/Counter Claimants were represented by Kateregga Hassan of Matovu, Kateregga & Co. Advocates. The 1st Plaintiff and 2nd Defendant/Counter Claimants among others filed sworn witness statements.

# **3.0 Background of the Suit.**

3.1 The Plaintiffs and the 2nd Defendant are biological children of the late Zaccariah Bukenya who died testate on 13th April, 2019. The late Zaccariah Bukenya a former resident of Kyanja, was survived by six (6) children including the 1st defendant/Counter claimant and a one Rashida Nalubega.


- 3.2 The deceased left behind properties among others including Land comprised in Kyadondo Block 195 Plot 2513 at Kyanja. In 2016, the late Zaccariah Bukenya entrusted custody of his land to Kasule Abdul Bagenda the 4th Counter defendant until the children would jointly be granted Letters of Administration in the event of his demise. - 3.3 Prior to his death, the Late Zaccariah Bukenya developed some mental incapacity with dementia and later Alzheimer disease following which he was pronounced a person of unsound mind by the Honorable Court though without the consent of the defendants, Kasule Abdul Bagenda was appointed his legal manager in 2009. - 3.4 The Plaintiffs and the 4th Counter Claimant with the knowledge of the late Bukenya's mental capacity caused transfer sub divisions of the estate suit property comprised in Kyadondo Block 195 Plot 165 into several Plots which were consolidated into Plot 3006 without the defendants' consent and knowledge.

### **4.0 Scheduling Conference.**

- 4.1 According to the joint scheduling memorandum filed in court on 4th April, 2024, the parties agreed to the fact that the late Zaccariah Bukenya died testate. The disputed facts were that, the Plaintiffs and a one Kasule Abdul fraudulently dealt in the estate property at Kayanya. The defendants are intermeddling in the estate of the Late Zaccariah Bukenya and Kasule Abdul Bagenda's appointment as a legal manager was without authority and consent of the defendants and a one Nalubega Rashida. - 4.2 In the same Joint Scheduling Memorandum, the parties agreed to the following issues for determination by this Court. - 1. Whether the defendants have intermeddled with the estate of the late Bukenya Zaccariah formerly comprised in Kyadondo Block 195 Plot 2513 at Kyanja?


- 2. Whether the Plaintiffs have intermeddled with the estate of the late Bukenya Zaccariah formerly comprised in Kyadondo Block 195 Plot 165 at Kyanja? - 3. Who are the rightful beneficiaries to the estate of the late Bukenya Zaccariah? - 4. What remedies are available?

# **5.0 Submissions by Counsel.**

5.1 Both counsel for the parties filed in court their respective written submissions though way late out of the set time schedules given by court. I have considered in determination of this suit all pleadings and submissions on record before reaching this decision.

# **6.0 Burden of proof and standard of proof.**

- 6.1 In principle, a party has the obligation of proving facts which he or she needs to establish for success in his/ her case. When the issue of fact has to be proved in Courts of law, it is first necessary to consider the burden borne by the parties. **See Colin Tapper, Cross & Tapper on evidence, OUP Oxford 11th Ed. 129.** - 6.1.1. The general rule is that he or she who asserts must prove. **See Section 101 of the Evidence Act, Cap. 8.** Certain issues are essential to the case of a party in Civil Proceedings in a sense that issues must be proved by that party if he or she is to succeed in the action. - 6.1.2. The burden of proof in civil cases, therefore, lies on the person who would fail if no evidence at all was given on either side. *See Section 102 of the Evidence Act (supra).* The burden of proving a particular fact therefore lies on that person who wishes the Court to believe in its existence unless the law provides that the proof of that fact shall lie on any particular person. *See Section 103 of the Evidence Act (supra).*


6.1.3. The standard of proof required to be met by either party seeking to discharge the legal burden of proof is on a balance of probabilities. This in ordinary English means that the claimant must prove that it is more likely than not that his or her version of the facts is right. In the case of **Dr. Vincent Karuhanga T/A Friends Polyclinic –VS- National Insurance Corporation and Uganda Revenue Authority [2008] HCB 151.** It was held that;

*"In law a fact is said to be proved when Court is satisfied as to its truth. The evidence by which that result is produced is called the proof. The general rule is that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. When the party adduces evidence sufficient to raise a presumption that what he or she asserts is true he or she is said to shift the burden of proof, that is his or her allegation is presumed to be true unless his or her opponent adduces evidence to rebut the presumption. The standard of proof is on a balance of probabilities."*

6.1.4. The parties presented their witnesses in trying to prove their case, the Plaintiffs presented two (2) witnesses being the 4th Counter defendant (Kasule Abdul Bagenda) PW1 and the 1st Plaintiff (Namatovu Halima) as PW2, whereas the defendants/Counter claimants presented three (3) witnesses being the 2nd Defendant (Bukenya Twaha) as DW1, Daudi Sajjabi Kamya as DW2 and Nalubega Rashida as DW3 in defending and or arguing their case.

### **7.0. Determination by the Court.**

**Whether the defendants have intermeddled with the estate of the late Bukenya Zaccariah formerly comprised in Kyadondo Block 195 Plot 2513 at Kyanja?**


### **7.1. Plaintiffs' Submission.**

- 7.1.1. The Plaintiffs relied on the case of **Annet Namirimu Ndaula v. Reverend Aloni Mulondo & 2 Others, HCCS No. 27 of 2011,** where an "intermeddler" was defined as someone who assumes the role of an executor without lawful authority, thereby becoming an executor *de son tort.* - 7.1.2. The Plaintiffs contended that the Defendants unlawfully removed the existing chain-link fence on the suit property and replaced it with a wall fence. They alleged that the Defendants had not only erected this wall fence but had also taken possession of a portion of the land in Kyadondo Block 195 Plot 2513, located in Kyanja, where the wall was constructed. - 7.1.3. The Plaintiffs further submitted that the Defendants' actions are not disputed, as the Defendants, in their witness statements, openly admit to constructing a wall fence around the suit property. They pointed out that during cross-examination, DW1 conceded to planning the erection of a perimeter wall. Additionally, the Plaintiffs highlighted that DW3, under cross-examination, confirmed that DW1 had carved out and fenced the property in a manner that allowed them to share it with the 2nd Defendant. - 7.1.4. The Plaintiffs argue that these admissions should be treated as such under **Order 13 Rule 6 of the Civil Procedure Rules SI 71-1 and Section 16 of the Evidence Act, Cap. 8**. They assert that DW1 explicitly acknowledged, both in his witness statement and during crossexamination, involvement in activities that constitute intermeddling with the estate of the deceased. - 7.1.5. The Plaintiffs also submitted that Letters of Administration were only obtained on January 25, 2024, long after the Defendants had constructed the perimeter wall and after portions of the property had been carved off.


This, they argue, underscores the Defendants' premature and unauthorized actions in handling the estate property.

7.1.6. The Plaintiffs also contend that no emergency or necessity justified the Defendants' actions purportedly taken to preserve the property. They argue that the Defendants' construction and partitioning efforts were neither authorized nor required for the benefit of the estate, as no imminent risk to the property's preservation had been established.

### **7.2. Defendants' Submissions**

- 7.2.1. The Defendants argued that constructing the perimeter wall on the suit property was intended solely to safeguard the estate's land. They explained that portions of this estate land had already been sold by the Plaintiffs to third parties, thereby necessitating measures to prevent further unauthorized access or encroachment. The Defendants further emphasized that the land in question, specifically Kyadondo Block 195 Plot 2513, remains fully intact and under the same registration. - 7.2.2. The Defendants contend that they cannot be deemed intermeddlers in the estate without conclusive proof. They assert that the land is still legally registered in the Plaintiffs' names and, as such, their actions have been limited to measures of protection and preservation. They categorically deny any intermeddling in the deceased's estate, arguing that all efforts, including the construction of the wall, have been undertaken solely to uphold the integrity and security of the estate.

### **8.0. Determination by Court.**

8.1. The definition of an intermeddler is established in **Section 265 of the Succession Act, Cap. 268.** A person is taken 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 whom probate or letters of administration have been granted to by court.

- a) takes possession or disposes of the property of a deceased person; or - b) does any other act which belongs to the office of the executor or executrix, or administrator or administratrix. - 8.1.1. **Subsection 3 (a) of Section 265** provides that notwithstanding **subsection (1)** a person may before grant of letters of administration or probate, take possession of the property of the deceased person for the purpose of preserving the estate of a deceased person. - 8.1.2. Possession is defined in the **Black's Law Dictionary Eighth Edition** as the detention and control, or the manual or ideal custody, of anything which may be the subject of property, for ones use and enjoyment, either as owner as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. - 8.1.3. Intermeddling in the estate of a deceased person involves the assumption of the role of an administrator/executor of a deceased's estate without the requisite authority. It often involves actions that result in the transfer or permanent alteration of ownership or control over the property. For an act to qualify as intermeddling, it must generally lead to a tangible and lasting change in the estate, such as transferring the property into another person's name or depleting its assets, thus interfering with the rights of legitimate heirs or administrators. - 8.1.4. In this case, while the Plaintiffs argue that the Defendants constructed a perimeter wall on the suit property and took possession of a part of it, there is no evidence that the Defendants attempted to transfer or alter the legal ownership of the property. The Defendants have not registered any portion of the land in their names or in the names of third parties, nor have they taken any actions to permanently affect the legal status of

the estate. The property remains registered under the names of the Plaintiffs, and the actions taken by the Defendants were confined to erecting a wall which they claim was intended to safeguard the estate land from further encroachment by third parties. The perimeter must have added security, demarcations and beautification to the suit land than the chain link fence initially there. The court also considers the fact that as beneficiaries in the estate of the deceased, they may take actions to safeguard their interests and preserve the estate.

- 8.1.5. The Succession Act under Subsection 3 (a) of Section 265 provides that a person may before grant of letters of administration or probate, take possession of the property of the deceased **person for the purpose of preserving the estate of a deceased person.** - 8.1.6. The Plaintiffs have not demonstrated that the Defendants' actions led to any permanent or irreversible changes in the ownership or title of the property, which would constitute an exercise of ownership rights reserved for an executor or administrator. - 8.1.7. The Defendants' actions do not amount to a wrongful appropriation or an unauthorized exercise of executor powers. Without proof of intent to usurp the estate or transfer its ownership, the Defendants' actions do not meet the threshold of intermeddling as defined under the law. - 7.1.8. Accordingly, I find that the Defendants' actions, while unauthorized, do not constitute intermeddling in the estate. The Plaintiffs' claim on this ground fails and is therefore dismissed.

**Issue No. 2: Whether the Plaintiffs have intermeddled with the estate of the late Bukenya Zaccariah formerly comprised in Kyadondo Block 195 Plot 165 at Kyanja?**

## **8.2. Counter claimants'/defendants' submissions.**

- 8.2.1. In regard to Kyadondo Block 195 Plot 165, the Counter claimants assert that despite knowledge of the deceased's mental illness, the counterdefendants jointly and illegally caused the illegal subdivision of the suit property and dealt with the estate of the deceased selling it to third parties. - 8.2.2. The counter-claimants assert that the counter-defendant's knowingly and willingly used forged signatures of Zachariah Bukenya a person of unsound mind at the time to transfer the estate property formerly Plot 165 into Plots 2506, 2507, 2508, 2509, 2510, 2511 and Plot 2512 to Augustine Lule, Alice M. Nalweyiso which were consolidated into Plot 3006 and transferred to a one Livingstone Lubwama and 2513 as the residue estate suit Plot. This was done to the detriment of other beneficiaries.

## **8.3. Counter Defendant's submissions.**

The plaintiffs' resolved this issue in regard to Block 195 Plot 2513 and not Block 195 Plot 165 as agreed by the parties in the Joint Scheduling Memorandum.

There was never land comprised in Block 195 Plot 165 at Kyanja as declared property of the deceased instead the land was comprised in Block 195 Plot 2513 land at Kyanja.

## **8.4. Determination by Court.**

8.4.1. In reviewing the counterclaim, it is essential to clarify the scope and application of intermeddling. Intermeddling specifically concerns interference with the estate of a deceased person and pertains to actions taken posthumously without lawful authority. **See Section 265 of the Succession Act Cap 268.** The doctrine does not extend to actions


occurring during the lifetime of a person, even if that person is of unsound mind.

- 8.4.2. The Counterclaimants argue that the Counter Defendants engaged in unauthorized transactions with respect to Kyadondo Block 195 Plot 165 by allegedly forging signatures of Zachariah Bukenya, a person of unsound mind at the time, to subdivide and transfer the property into multiple plots. However, since these alleged actions occurred during Mr. Bukenya's lifetime, they fall outside the scope of intermeddling. - 8.4.3. Consequently, the Counterclaimants' focus on intermeddling is misplaced as far as Plot 165 is concerned. Intermeddling cannot be found in relation to actions taken during the deceased's lifetime. - 8.4.4. However, on further study and perusal of the record of court the Certificate of Title for land comprised in Block 195 lot 2513 of land situate at Kyanja measuring approximately 0.558 Hectares registered on 28th February, 2024 Instrument No. KCCA00115728 in the names of Bukenya Muhammed Lubega, Namatovu Halima and Bukenya Muganga Rehema (Administrators of the Late Zakaria Bukenya Administration Cause No. 919 of 2023) as Registered Proprietor which land had apparently been caveated by 1st Plaintiff on 6th June, 2019 vide Instrument No. KCCA 00061907, it is pleaded that the land is currently registered in the names of administrators in their individual capacity. - 8.4.5. I also noted that the transfer form is dated 29th February, 2024 and the transfer was effected on 28th February, 2024. - 8.4.6. According to the Petition for Letters of Administration it included among the properties of the deceased Land at Kyanja Block 195 Plot 2513 and in the said Petition the Plaintiffs together with the defendants and Rashida Nalubega were mentioned as children for the deceased Zakaria Bukenya.


- 8.4.7. DW1 testified that the suit property without seeking his consent and the other beneficiaries had been transferred and registered vide Instrument No. KCCA 00013787 in the names of the 1st through 3rd Plaintiffs of P. O. Box 30787 Kampala as their personal individual property and they never appointed trustees of the estate of the Late Zaccariah Bukenya, which amounts to disposing of the estate suit property hence intermeddling. The 1st, 2nd and 3rd Plaintiffs never conveyed any meeting as administrators and beneficiaries to discuss and resolve the distribution of the estate amongst fellow beneficiaries instead they went ahead in the absence of any meeting to resolve what the beneficiaries were entitled to and obtained their share of the estate without consideration of the other beneficiaries. - 8.4.8. The said transactions therefore amount to intermeddling by the 1st through 3rd plaintiffs and any subsequent transaction from the Administrators of the Estate of the Late Zaccharia Bukenya without consent of the beneficiaries was void. - **8.5. Who are the rightful beneficiaries to the estate of the late Bukenya Zaccariah?** - 8.5.1. The plaintiffs submitted that they are biological children of the late Bukenya Zakaria. They agreed that the 2nd Defendant is their biological brother but dispute the paternity of the 1st Defendant and a one Nalubega Rashida. The plaintiffs contend that they underwent tests to prove their relationship. - 8.5.2. The plaintiffs relied on the case of **Mumbere William and 3 others Versus Masika Joy Civil Suit No. 53 of 2022** where court held that the issue of paternity can be determined by conducting a DNA Test. They prayed that all the beneficiaries of the deceased should be subjected to a DNA Test.


8.5.3. The defendants submitted that the plaintiffs have not proved nor adduced any man claiming paternity of Rashida and Khadija during and after the lifetime of the deceased. They asserted that they were both named in the Will of the deceased.

## **8.6. Determination.**

During the trial, DW1 testified that his late father was married to Rashida Nalubega's mother who passed away and thereafter he married the 1st defendant's mother.

**Section 112 of the Evidence Act, Cap. 8** provides for **Birth during marriage conclusive proof of legitimacy.** It states as follows; *"The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."*

- 8.6.1. Where someone leaves a will, it might be thought that the issue is straightforward given that a person is directing what should happen upon his/her death. - 8.6.2. Children of the deceased have a moral entitlement to share in their parents' estate. The Moral obligation of the deceased was to mention his offspring in his will which he rightly did by mentioning his children in his last testament. - 8.6.3. The Plaintiffs seem to be interested in proving the paternity of Nalubega Rashida and Nabukera Khadija. In their plaint under paragraph 5 (ii) it is stated therein that; "on the 13th day of March *(which was corrected during scheduling to April)* 2019, the plaintiffs father, Bukenya Zaccharia Kassa Sajabi died testate leaving 6 (children) including the defendants.


In her testimony during cross-examination, PW2 Halima Namatovu testified that in 2022 she tested her paternity using the deceased toothbrush and his clothes. When asked how she identified the deceased's toothbrush and yet she was out of the country at the time, not leaving with him she said she could identify it since she asked that his belongings ought to be kept and she tested and found herself as a child to the deceased.

- 8.6.4. At common law, there are circumstances in which fatherhood is presumed and ordinarily these include; if a married woman gives birth it is presumed that her husband is the father of the child. This presumption is sometimes known as *pater est quem nuptial demonstrant* (or *pater est* for short). It does not apply to unmarried cohabitants. If the birth takes place during the marriage but conception took place before the marriage the *pater est* presumption still applies. The presumption also applies if it is clear that the conception took place during a marriage, even if death or divorce has ended that marriage by the time the birth occurs. - 8.6.5. The will left behind by the deceased listed all his children and it included the Defendants including Nalubega Rashida. During trial, no witness testified that any man had claimed that he was the father of the two children and nor did the clan leaders complain about their paternity, the alleged assertions by the Plaintiffs are only intended to embarrass their siblings. - Page **14** of **21** 8.6.6. During cross examination DW2 Dauda Sajjabi Kamya, testified that the deceased left six (6) children, he knew the mothers of all the children including Khadijja Nabukera the last born. He presented the Will of the deceased during burial after inquiring from other people if any of them would have had a Will. He testified that Khadijja Nabukera and others took part in looking after the deceased. Rashida and the nurse looked after the deceased. This was corroborated by DW3 Nalubega Rashida's testimony wherein she testified that she used to stay with her father, she had never been given away to any other clan than the Ngabi clan. She stated that before the demise of his father, he had introduced to her the plaintiffs and the Defendants as her siblings. This evidence was not rebutted. Lastly she stated that she did not know whether she would like to go for a DNA.

Page **15** of **21** 8.6.7. In the case of **Jalia Mundawarara (Co-Administrator of the late Samuel Ngude Odaka) & 3 Others Versus Harriet Nabwire (Administrator of the Estate of the late Samuel Ngude Odaka) Miscellaneous Application No. 0254 of 2022** *Hon. Lady Justice Ketrah Kitariisibwa Katunguka* relying on the case of **Nansubuga Cissy & Ors vs Sande Nabwana; Civil Suit No. 09 of 2016 (Arising from Administration Cause No.247 Of 2015);** which position has not been overturned, and stated; *'While DNA tests help court to determine paternity (see the case of Margaret Tumwine Tumushabe & 4 Ors v Brian Asiimwe, Consolidated MA 125 and 132 of 2014, Arising from Civil Suit No. 15 of 2013 where it was held that DNA results are scientific proof of paternity and the court was more inclined to believe the DNA report about the respondent's paternity because it is scientific and not based on mere information; they should be ordered with caution as the result even if it is positive and claims paternity will still create emotional rifts in the family. Indeed Courts have held that in exercising its discretionary power to grant or not to grant the relief (DNA testing), court should be convinced that the application is in good faith, and that it is not actuated or designed to economically exploit or embarrass or is otherwise an abuse of the process of court. (See MW v KC Kakamega High Court Misc. Application No. 105 of 2004). In the Kenyan case of MMM v ENW M. A No. 7 of 2016, the court cited with approval the Indian case of BPs v CS Civil Appeal No. 6222 – 6223 of 2010 to the effect that ". . . the court must*

*exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed . . . DNA should not be directed by court as a matter of course or in a routine manner, whenever, such request is made, whether it is not possible for the court to reach the truth without use of such test. . ."*

- 8.6.8. I find that if indeed the Plaintiffs were truthful since the passing on of their late father on 13th April 2019 they would have conducted the DNA examination by collecting samples of the deceased early enough before the application for the Certificate of No Objection and eventually petitioning for Letters of Administration, but not at this time. - 8.6.9. The Plaintiffs and their legal representatives proceeded to the Administrator General and on 16th December, 2020 before the Administrator General's office they introduced themselves each stating the relationship with the deceased and stated that the deceased left a Will however it did not mention an executor. They continued to state that the deceased was survived by 6 adult children. Following that, then the issue at hand were the names of Nakawanwagi Bukenya Muganga and Rehema Nakawanwagi Bukenya which was to be clarified by a statutory declaration and this was eventually presented on 23rd May, 2021. There was nothing like only the plaintiffs and the 2nd Defendant being the surviving children of the deceased. - 8.6.10. Against that background the family appointed four (4) beneficiaries to be issued with a Certificate of No Objection (CONO) namely the Plaintiffs and the 2nd Defendant. The CONO was issued on 8th December, 2021. - 8.6.11. **Section 98 of the Civil Procedure Act, Cap. 282 and Section 37 of the Judicature Act, Cap.16** provides this court with unlimited powers but these inherent powers should not be used as an abuse to the court process. The court must exercise its discretion only after balancing the


interests of the parties and on due consideration whether for a just decision in the matter, a DNA is eminently needed.

- 8.6.12. The court finds that the declared number of 6 children before the Administrator General together with the deceased's document "DEX2" in which he names Rashida Nalubega and Khadija Nabukera as his children is sufficient proof that they are children of the deceased. - 8.6.13. The court therefore considers the beneficiaries of the deceased shall be those named in exhibit "DEX2" dated 13th September, 2004, namely the 1st, 2nd and 3rd Plaintiffs together with the 1st and 2nd Defendants plus Rashida Nalubega.

## **8.7. What Remedies are available to the parties?**

## **Revocation of Letters of Administration.**

- 8.7.1. The persons nominated to obtain Letters of Administration at a family meeting held at the Administrator General's office were the plaintiffs along with the 2nd Defendant. However, despite this nomination, the plaintiffs obtained Letters of Administration on 25th January, 2024 excluding the 2nd Defendant. - 8.7.2. There was a citation of Letters of Administration 22nd April, 2024 vide Miscellaneous Application No. 497 of 2024 to wit the 2nd Defendant filed an application to set aside Miscellaneous Application No. 70 of 2023. - 8.7.3. In Miscellaneous Application No. 497 of 2024 court made the following orders; - i. Miscellaneous Application No. 70 of 2024 arising from Administration Cause No. 919 of 2023 is set aside and the orders therein vacated. - ii. A citation against the Respondents directing them to surrender and deliver to this Court the Letters of Administration together


with all the certified copies granted to them on 25th January 2024 vide Administration Cause No. 919 of 2023 **In the Matter of the Estate of the Late Zakaria Bukenya** within 2 days from the date of this Ruling.

- iii. The Commissioner Land Registration is hereby directed to cancel all entries in respect of properties comprised in Kyadondo Block 197 Plots 174, 175 and 868 land at Kitetika entered on behalf of the Respondents as Administrators of the Estate of the Late Zakaria Bukenya vide Administration Cause No. 919 of 2023 and all entries of any third parties arising out to the said Administration Cause. - iv. The Commissioner Land Registration is hereby directed to cancel all entries on any registered land by the Administrators of the Estate of the Late Zakaria Bukenya Vide Administration Cause No. 919 of 2023. - v. The Applicant is awarded Costs. - 8.7.8 **Section 230 of the Succession Act, Cap. 268** provides for Revocation or annulment for just cause. It provides that (1) the grant of probate or letters of administration may be revoked or annulled for just cause. - (2) "Just Cause" means - a) That the proceedings to obtain the grant were defective in substance; - b) that the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case; - c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though the allegation was made in ignorance or inadvertently; that the grant has become useless and inoperative through circumstances;

- 8.8. DW1 testified that the Certificate of No Objection was issued in 4 names including himself and the Plaintiffs. It was the testimony of PW2 that the reason why she had DW1 stuck off the Letters of Administration was because of his abusive behaviour, refusing to produce the death certificate, and demolishing the perimeter wall and therefore she could administer the estate with DW1. While applying for letters of administration the plaintiffs obtained a signature that did not belong to the 2nd Defendant, during cross examination PW2 stated that she could only account for her signature any other question in regard to the signature of the 2nd Defendant should be addressed to the lawyer who assisted them to apply for the Letters of Administration. This was in reference to the Petition for Letters of Administration filed on 8th September, 2023. DW1 testified that he did not instruct anyone to sign on his behalf. - 8.8.1. The plaintiffs' lawyer Mr. Denis Khauka, explained to this court that he discovered the need to file an application to remove the 2nd Defendant and he did so. This was while filing documents and during proceedings of the Petition. That this particular file presented extra ordinary circumstances such as the property at stake at Watuba, he thought the applicants sought leave of court because of their work/jobs were at stake and then filed Misc. Application No. 70 of 2024. - 8.8.2. The court therefore finds just cause for Revocation of the Letters of Administration granted to the 1st, 2nd and 3rd Plaintiffs on 25th January, 2024 for the grounds as listed above under Section 230 2(a) (b) and (c) of the Succession Act, Cap. 268.


## **9.0**. **Contempt of Court**

- 9.1. I find the Plaintiffs in contempt of court orders vide Miscellaneous Application No. 497 of 2024 issued on 22nd April 2024. The Orders have been spelt out in 8.7.3 above. Briefly, the Plaintiffs are fully aware of the existence of a lawful order for they were parties to the said application, the Plaintiffs have knowledge of the order, and as contemnors they had the ability to comply, in this case nothing stopped the Plaintiffs from delivering to this court Letters of Administration together with all the certified copies granted to them on 25th January, 2024 vide Administration Cause No. 919 of 2023 In the Matter of the Estate of the Late Zakaria Bukenya within 2 days from the date of the Ruling. The Plaintiffs who are the potential contemnors failed to comply with the orders of court. - 9.2. "The power of the court to punish for contempt is inherent in a system of administration of justice and that power is held by every judge." **STEWART** ROBERTSON VS HER MAJESTY'S ADVOCATE, 2007 HCAC63, Lord Justice Clerk. - 9.3. A Court order is about preserving and safeguarding the rule of law. It is about assuring a party who walks through the justice door with a court order in his hands that the order will be obeyed by those to whom it is directed. - 9.4. The Plaintiffs seem to have been adamant in their refusal to adhere to the court order. For the foregoing reasons, I find that the Plaintiffs are in contempt of the court order issued on 22nd April, 2024 and they are therefore punishable. The Plaintiffs are hereby committed to civil prison for a period of two (2) months immediately. - 9.5. General damages were not sufficiently proved and are therefore not awarded.


## **10.0. Conclusion.**

- 10.1. In the final result, the court determines as follows. - 1. The Letters of Administration granted to the 1st, 2nd and 3rd Plaintiffs on 25th January, 2024 vide Administration Cause No. 919 of 2023 are hereby revoked. - 2. The Beneficiaries are shall petition for a fresh grant following the due process of Petitioning for Letters of Administration for the Estate of the Late Bukenya Zacharia Kassa Sajjabi. - 3. There is no need for a DNA examination for the 1st Defendant and Rashida Nalubega. They were declared as children on the late Zaccharia Kassa Sajjabi Bukenya on 13th September, 2004. - 4. The Plaintiffs are in contempt of a Court order issued on 22nd April, 2024 vide Miscellaneous Application No. 497of 2024. - 5. The Plaintiffs are committed to civil prison for 2 months for their contemptuous actions. - 6. The Registrar of Titles is hereby directed to cancel any transfers made into the 1st, 2nd and 3rd plaintiff's names in their capacity as Administrators of the estate of the deceased. - 7. The constructed perimeter wall behind the deceased's home should not be demolished at any one time. - 8. No award to General damages. - 9. The Defendants are awarded costs of this suit.

*It is so ordered.*

*Dated, Signed and Delivered electronically this 14th day of November, 2024.*