[2025] UGHCFD 5

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) MISCELLANEOUS APPLICATION NO. 2597 OF 2024** 5 **(ARISING FROM CIVIL SUIT NO. 0244 OF 2022)**

**ANNETTE C. N. L NTULUME ………………................................ APPLICANT**

# **VERSUS**

| 10 | 1. | SSEKISAKA<br>ARON | |----|----|---------------------| | | 2. | ELEANOR MARY KIWUKA |

**3. JACK MAJWEGA …………………………………… RESPONDENTS**

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

# 15 **RULING**

# **Introduction**

This is a Ruling in respect of an Application by Notice of Motion for Orders that:

- 1. The Respondents are subjected to a scientific DNA test to prove their kinship as beneficiaries of the Estate of the late Solomon Kalulwe Ntulume; and - 20 2. Costs of this Application are in the cause.

# **Representation**

When the Application came up for hearing, the Applicant was represented by Mr. Sebyazi Habib, the 1 st and 3rd Respondents were represented by Mr. Kakande

25 Kenneth Paul, Mr. Kyamanywa Edward Cooper and Ms. Nakyejwe Lydia while the 2 nd Respondent was represented by Ms. Nabunya Jemimah.

## **The Application**

The Application is supported by the Affidavit of Annette C. N. L Ntulume, the Applicant while the Affidavits in Reply are deponed by Ssekisaka Aron for the 1st and 3rd Respondents and Eleanor M. K. Ntulume for the 2nd Respondent.

The facts of this Application can be summarized as follows:

It is the Applicant's case that she is the widow of the late Solomon Kalulwe Ntulume (hereinafter referred to as **the deceased**). That the last Will of the deceased mentioned only Jack Majwega (3rd Respondent), Eleanor Mary Kiwuka (2nd Respondent) and Ethel Zigyana as his children leaving out Ssekisaka Aron (1st 10 Respondent) which shows that the deceased was very uncertain of his relation with the 1st Respondent. That the 1st Respondent was also not listed among the children of the deceased when Sarah Mbowa, David Mbowa, Mary Nansubuga and Edward Nsubuga (herein after collectively referred to as **the Executors**) applied for Probate

- in 1998. That the 1 st and 3rd 15 Respondents filed a case in this Court vide Civil Suit No. 0224 of 2022 (hereinafter referred to as **the main suit**) where it is claimed that the 1st Respondent is the child of the deceased and also declared the Applicant as deceased in a bid to take advantage of the deceased's estate without her knowledge. - 20 The Applicant also claims that one of the issues raised in the main suit from which this Application arises is to ascertain the rightful beneficiaries of the estate of the deceased and this can only be achieved by subjecting all the children of the deceased to a DNA test at the same time to ascertain their relationship. That the deceased has no stored DNA sample in any medical facility but a control sample can be collected 25 from one of the close relatives of the deceased. That the Application is brought in good faith without any malicious intentions against the Respondents but it is only

intended for the psychological comfort of the Respondents and the family at large and for the ends of justice to be reached.

**In Reply, Ssekisaka Aron** while opposing the Application, contended that the 5 remedy of determining kinship is unprecedented and not envisaged under the laws governing children issues or succession in Uganda; that the Applicant is relying on the Will of the deceased, a document which is being contested, to determine their paternity; that the Grant to the estate of the deceased is partly contested because the eexecutors did not involve the deceased's family and the said Will and Grant cannot be used to determine paternity; that the Applicant found the 1st and 3rd 10 Respondents being raised and provided for by the deceased at the time she started having relations with him and cannot therefore start alleging that the deceased was not their father; that the Applicant does not show them who their fathers are against whom DNA tests should be carried out to prove that they are not the deceased's children; that it 15 was an error to describe the Applicant as deceased and the same has since been corrected; that that there is no preserved sample of the deceased upon which a DNA test can be carried out; that the issue for determination is not whether the Respondents have a relationship with the deceased but rather whether the Respondents are the children of the deceased; that all the known brothers and sisters 20 of the deceased are also deceased and there is no guarantee that the unnamed person the Applicant intends to parade is even a blood relative of the deceased; that the kinship test cannot be used to determine whether the Respondents are the children of the deceased and yet they would never think of exhuming the deceased after his several years of peaceful rest in his grave just for a DNA test; that the Applicant brought this Application in bad faith because she has never wanted the 1st and 3rd 25 Respondents to benefit from the Estate of their deceased father; that the Applicant wants to have the estate property to herself and this Application is meant to

delay/prevent determination of the suit by diverting Court from the real issues of the suit to the benefit of the Applicant but that this has made the determination of the main suit expensive in terms of facilitation to legal Counsel and journeys to Court on the part of the 1st Respondent; and that Court should order the Applicant to pay 5 the costs of this Application.

Also, **in reply, Eleanor M. K Ntulume** as one of the 3 named children in the deceased's Will and the surviving child sired between the Applicant and the deceased during their marriage agreed with the Application; that the DNA would finally resolve the question of kinship with the 1st 10 Respondent and was willing to undergo a DNA test to determine the sibling relationship between her and the 1st and 3 rd Respondents.

**In Rejoinder**, the Applicant while reiterating all that she stated in her Affidavit in 15 Support to the Application stated that with the advice of her lawyers and in consultation with several doctors, she was reliably informed that Judgments have been delivered ordering the undertaking of kinship tests as opposed to exhumation of the body of a deceased's body and a kinship test can be undertaken on all the children where the paternity of one child is in doubt. That declaring the Applicant as deceased was intentional on the part of the 1st and 3rd 20 Respondents and their Counsel and that, that situation was only rectified after Court allowed the 2nd Respondent and her to be joined as parties to the main suit after they discovered their intended fraud through a close relative. That it is essential to undertake the DNA test to establish the kinship of the Respondents and ascertain whether the Respondents are sired by 25 the same father. That it is her prayer that Court grants this Application and if considered necessary, Court should order that a relative of the deceased provides a control sample for purposes of completing the test and the deceased should be left

to rest as there are alternative means of establishing their kinship in order to save the deceased's estate from being put to further waste.

# **Issues**

- 5 The issues for Court's determination are: - 1. Whether the Respondents should be subjected to a scientific DNA test; and - 2. What is the most appropriate procedure for carrying out the DNA test?

#### **Resolution of Issues**

# 10 **Issue 1:** *Whether the Respondents should be subjected to a scientific DNA test.*

Counsel for the Applicant while relying on the cases of *MW versus KC Miscellaneous Application No.0105 of 2004; Mukwaya Badru versus Ssentamu Moses & Others, Civil Appeal No. 0019 of 2021; Mpumwire Magambo versus* 15 *Amanda Magambo, Miscellaneous Application No. 0293 of 2023; Tendo Sunitah*

*(through next friend, Kiconco Janet) versus Annet Tumwebaze Mugasha, Miscellaneous Application No. 0957 of 2023;* and *Sserunjogi Charles & Anor versus Tony Nkuubi, Originating Summons No. 0007 of 2019* submitted that in matters regarding Orders for DNA tests, Courts consider three grounds, that is, that 20 the Application must be made in good faith; that there were good grounds for making the Application; and that the Application was not actuated by malice or designed to economically exploit or embarrass or otherwise abuse the Court process.

Concerning whether there were good grounds for making the Application, Counsel for the Applicant submitted that the 1st 25 Respondent was not expressly mentioned in the Will of the deceased, which warrants an investigation to ascertain whether the omission of the 1st Respondent from the Will was by error or it was intended by the

deceased; that the 1st and 3rd Respondents acted fraudulently trying to benefit from the estate of the deceased at the expense of the others when they filed the main suit and pleaded that the Applicant was deceased and concealed the said suit from the Applicant; and that in order to finally resolve the questions of the beneficiaries, all

5 the purported children of the deceased should be subjected to a DNA test at the same time to ascertain their relationship/kinship since the deceased has no stored DNA sample in any place in Uganda.

Counsel for the Applicant on the ground of whether the Application was made in 10 good faith submitted that the intention of the DNA test was to: finally resolve the question of the beneficiaries of the estate of the deceased; bring psychological comfort for all the Respondents and the family at large; and for the Respondents to ascertain and be sure of their generic heritage given the discrepancies in their paternity and the relation to the deceased. That it was important for all of them to 15 know who their rightful parent is and siblings.

Counsel for the Applicant on whether this Application was actuated by malice or designed to economically exploit or embarrass or was otherwise an abuse of Court process further submitted that the main suit filed against the Administrators of the deceased mentions the 1st 20 Respondent as one of the beneficiaries to the deceased's estate contrary to the deceased's Will; that the issue of a DNA test was one of the issues raised for resolution of the Court before the distribution of the estate of the deceased; that a share in the deceased's estate to a person who is not the deceased's child is void; and that the intention of this Application is to assist the Court to ensure

25 that the estate of the deceased is only distributed to the rightful children of the deceased and other rightful beneficiaries and that it is not intended in any way to abuse the Court process or malice any person.

**In response** Counsel for the 1 st and 3rd Respondents while relying on the cases of *Elivaida Ndyabahika versus Adyeri Hope Florence, Miscellaneous Application No. 0069 of 2019; Makokha Benrox versus Blessing Brenda Namatovu, Civil*

- 5 *Revision No. 0009 of 2022* which cited the cases of *Sserunjogi Charles Musoke & Katamba John Ssemakula versus Tonny Nkuubi, Originating Summons No. 0007 of 2019;* and *MW versus KC Kamega, High Court Miscellaneous Application No. 0105 of 2004* contended that the only effective means to determine the paternity of the Respondents is by testing them against the DNA sample of the deceased who is - 10 said to be their father to determine whether they are his children. That the kinship test cannot be used to determine the paternity of the Respondents since none of the Respondents' paternity has ever been confirmed through a DNA test with the DNA sample of the deceased. - Counsel for the 1st and 3rd 15 Respondents also argued that the disputed Will of the deceased cannot be used to determine paternity. That the Applicant bases on the Will of the deceased to contest the paternity of the 1st Respondent and yet its validity is contested and Court has to determine whether the deceased died testate. That other than referring to the disputed Will, the Applicant does not elaborate why she maintains that the 1st 20 Respondent is not a son of the deceased in her pleadings.

Counsel for the 1st and 3rd Respondents further submitted that the Applicant did not bring this Application in good faith as she has been using the estate property to benefit only her and her children in disregard of the 1st and 3 rd Respondents for more 25 than 25 years. That the Applicant quietly enjoyed the estate property and did not care

that the Administrators did not perform their duties and that it is in the interest of the Applicant to delay the distribution of the estate. That from the very moment the main

suit was instituted, the Applicant has done her best to delay/frustrate its hearing and determination. That the parties submitted to mediation hearing where terms of settlement were reached only for the Applicant to decline to confirm it so that a consent Judgment could be entered by Court. That as long as the main suit is not

determined, the Applicant will continue enjoying the estate property with the 2nd 5 Respondent (her daughter). That this Honourable Court can determine the issue of the beneficiaries to the estate of the deceased without necessarily granting this Application which is brought relying on a Will whose validity is disputed.

### 10 **Court's determination**

Having considered the submissions of the parties in this case and the case of *Sserunjogi Charles Musoke & Katamba John Ssemakula versus Tony Nkuubi, Originating Summons No. 0007 of 2019* where the case of *MW versus KC Kakamega High Court Misc. Application No. 105 of 2004* was cited, I will use the 15 principles stated therein to resolve this issue. Hon. Lady Justice Ketrah Kitariisibwa Katunguka (as she then was) in the above case 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 not actuated or designed to economically exploit or embarrass or is otherwise an abuse of the process of Court". [Emphasis*

20 *Mine]*

From the pleadings and submissions filed in this Court, I find that there are no good grounds for making this Application. As such, it is also not made in good faith because of the following reasons:

Firstly, the Applicant's ground for making this Application is that the 1st Respondent was not mentioned in the deceased's alleged Will and that when the Administrators

of the deceased were applying for a Grant of Probate, they did not include him which makes his paternity questionable. I would like to note that the authenticity/validity of the said Will is under contestation in the main suit (Civil Suit No. 0244 of 2022) which has not yet been determined by this Court. Therefore, it would be wrong for

5 this Court to use the contents of a contested Will to determine this Application.

Secondly, the Applicant has not brought any other evidence apart from the alleged Will to show that the paternity especially of the 1st Respondent is disputed. As already stated, the said Will is being contested and cannot be relied on by this Court 10 to prove any of the deceased's alleged children's paternity. The Applicant too does not indicate that the deceased left any other written document or ever intimated to her or any of his close relatives that any of the alleged children were not his. Even the purported Will that the Applicant seeks to rely on does not expressly mention anything that can be attributed to the deceased disowning any child. What the 15 Applicant seeks to rely on is implied and that is why the alleged Will's authenticity is being disputed.

As the Judge handling the main suit, I have had the privilege of reading the said Will and whereas it does not mention the 1st Respondent's name among the children, it 20 also does not state that he is not the deceased's child. Instead the disputed Will states that the deceased has two (2) other children whose names are not stated. Could it be that the one of the unnamed children is the 1st Respondent? That notwithstanding, I believe the naming and not naming of children in the disputed Will is the reason why the said Will is disputed.

Thirdly, in agreement with the 1st and 3rd Respondents' Counsel's argument in his submission, the Applicant does not bring evidence or indicate any other family to which the Respondents and in particular the 1st Respondent belong, in her pleadings. The Applicant equally does not state in her pleadings that any man has ever claimed the 1st Respondent in particular as his son. I believe that if there was any other known family of the Respondents, it would be better to conduct a scientific DNA test with

for example the 1st 5 Respondent's alleged other father than conduct a kinship test as the Applicant is suggesting in her Application since its results would be 100% accurate.

Other than malice, why would the Applicant dispute the paternity of the 1st 10 Respondent whom she found as a child living and being taken care of by the deceased at the time she got married to the deceased; and till the deceased's demise, he had never mentioned it to her that the 1st Respondent is not his child? I find that the Applicant is only using the phrase, "subject all the Respondents to a kinship test" as a cover-up for her ill intentions towards the 1st Respondent. The 2nd Respondent 15 is the Applicant's biological child; does she also dispute her paternity?

It would be understandable if the Respondents were the ones requesting this Court for an Order to carry out a DNA to prove their parentage because I believe that it is the right of every child to know their belonging. In this case and assuming that the Will was not under dispute, it would make more sense if the 1st 20 Respondent was the one making such an Application to prove his paternity probably because he wants to know why his alleged father did not include his name among his children.

Children and not any other person should be the ones interested in establishing their 25 paternity in cases where their father is deceased. Where a child is comfortable that the deceased was their father when alive and where the deceased father during his lifetime did not deny his paternity to the said children, I find no reason as to why any other person that is not a child to the deceased should contest the children's paternity.

I find that the Applicant is using the 2nd and 3rd Respondents to cover up her malicious intentions against the 1st 5 Respondent and that, this Application is a direct attack against the 1st Respondent. It should be noted that there is a prior Application (Miscellaneous Application No. 1289 of 2024) that was seeking that the 1st Respondent be subjected to a DNA on similar grounds as this one but the same was dismissed because the then Applicant, Kiberu Ssebaduka Emanuel David was found 10 to have no locus to institute such an Application. I also find that these numerous Applications are just delaying the hearing of the main suit which would have helped to put in order the estate of the deceased.

Fourthly, I find that the Applicant's claim that the purpose of this Application is to 15 provide psychological comfort to the Respondents and the family is not tenable. As a trial Judge in the main case, I have observed that there is acrimony between the Applicant and the 1st Respondent. Carrying out such a test will highly likely escalate the rift between the parties instead of uniting the late Ntulume's family.

- 20 Fifthly, I also find that the issue of paternity as sought for in this Application is not the center of dispute which affects the deceased's estate but rather, in agreement with Counsel for the 1st and 3rd Respondents, the authenticity or validity of the deceased's disputed Will. I believe that knowing whether or not the disputed Will is authentic or valid will resolve the issue of who are the rightful beneficiaries of the - 25 deceased's estate. For example, if Court determines that the alleged Will is valid, the people mentioned in the same will be the rightful beneficiaries of the deceased's estate. If the Court determines that the Will is not valid, then the deceased will be

presumed to have died intestate and his estate shall be subjected to distribution as per the provisions of the Succession Act, Cap. 268 Laws of Uganda.

I am convinced that once the issue of the disputed Will is resolved, the issue of 5 paternity can easily be resolved too and it is at that stage that an Order to carry out a scientific DNA test can be sought for by the right persons. I find that the matter at its current stage is still pre-mature if the question of whether the deceased died testate or intestate has not been resolved.


- 10 Furthermore, the Applicant in her pleadings stated that after consulting several doctors, she was of the view that a kinship test should be conducted on all the Respondents to ascertain whether they are related. The Applicant averred that a control sample could be got from one of the living relatives of the deceased. In agreement with Counsel for the 1st and 3rd Respondents and as the trial Judge in the - 15 main suit and the Applications that have arisen therefrom, I find that what is in contestation at the moment is the paternity of the 1st Respondent and not the kinship of the Respondents. The issue of paternity can only be resolved by carrying out a paternity test. In the case of *Tendo Sunitah versus Annet Tumwebaze Mugasha, Miscellaneous Application No. 0957 of 2023*, the Court noted, *inter alia*, that, - 20 *"… the only way of establishing 100% accuracy of one's paternity is from the father who is the primary source… the other alternative of testing relatives/siblings are not 100% accurate because one cannot be 100% sure that the said siblings are children of the father they claim to be."* **[Emphasis Mine]** - 25 Also, a kinship test ought to be sought by the children of the deceased and not any other person. In the case *of Mpumwire Magambo versus Amanda Magambo, Miscellaneous Application No. 0293 of 2023*, the Court held among others that,

## *"The Courts of law ought to prioritize sibling kinship tests if the answer the children require is to confirm if they are siblings."* **[Emphasis Mine]**

In the said Application, the alleged children of the deceased are all Respondents and 5 none of them is seeking to know whether they are actually siblings. As a matter of fact, the 1st and 3rd Respondents in their pleadings and submissions state that they do not dispute that they are brothers and that the 2nd Respondent is their younger sister. However, from the evidence I have so far gathered from the hearings of the main suit and its Applications, it is an agreed fact that all the Respondents have different mothers. Even the 2nd 10 Respondent who agrees with the Applicant's Application does not expressly seek for a kinship test as such. Agreeing with the Applicant's Application does not make her the Applicant.

More so, the control sample for a sibling kinship test should be the children 15 themselves and not just a relative as the Applicant seems to suggest. In the *Magambo case* cited above, the Court further held that,

*"Science tells us that children get a chromosome from their father, so the male Applicants DNA can be compared against that of the other male children… this is because the male lineal descendants of the deceased each have the XY chromosome, meaning that they share a Y*

- 20 *chromosome from a common donor, who in this case would be their late father. This would confirm the boys as brothers. On the other hand, female children have the XX chromosome, with a significant X chromosome from a common donner, who is father, this despite being born from different mothers. It would mean that testing the female children alone would confirm that they are sibling sisters, if they are found to carry the common significant X chromosome from* - 25 *their father… A sibling kinship test of the males alone and the females alone would remove the need for exhumation of the deceased…"* **[Emphasis Mine]**


Whereas a kinship test can be carried out between the 1st and 3rd Respondents, it would be impossible to carry out the same on the 2nd Respondent who is female and has no sister from whom DNA samples could be compared as per the Court decision in the above case, which in turn makes the kinship test ineffective in resolving the 5 issue at hand. The Applicant seems to suggest that a control sample could be obtained from a relative of the deceased but as stated earlier, that sample would not give the accurate results that are needed in this case as one cannot be 100% sure that the said person is related to the deceased having established through the pleadings of the 1st and 3rd Respondents that the deceased's known biological siblings are all 10 deceased. This would even make this entire process more complicated.

Last but not least, a proper initiative to resolve the issue of paternity must be proactive and not reactive. Considering the evidence as a whole, I find that the Applicant is simply reacting to having especially the paternity of the 1st Respondent 15 put in question because he is demanding for his share of the deceased's estate and pointing out the executors' redundancy in performing their duties from 1998 when they got the Grant of Probate. One wonders why the issue of paternity or kinship is only arising at this point (nearly 27 years since the issuance of the Grant of Probate). It seems to be an afterthought from the Applicant. Had the Applicant been proactive, 20 she would have found out from the deceased the truth about the children she found him raising and taking care of at the time she got married to him instead of using a Will to conclude on the paternity of the said children.

In light of the above, Issue 1 is resolved in the negative for the reasons stated above. 25 The Respondents should not be subjected to a scientific DNA test.


**Issue 2:** *What is the most appropriate procedure for carrying out the DNA test?* Counsel for the Applicant relying on the cases of *Mukwaya Badru versus Ssentamu Moses & Others, Civil Appeal No. 0019 of 2021* which cited the cases of *Komakech Walter versus Dr. Okot Christopher and Doughterty versus Mercantile Safe*

- 5 *Deposit and Trust Company, 387 A.2d 244, 246-47 (Md. 1978);* and *Mpumwire Magambo versus Amanda Magambo, Miscellaneous Application No. 0293 of 2023* submitted that the deceased had no stored DNA sample in any medical facility in Uganda but the Applicant was advised that it was possible to compare the DNA of all the children with one of the close relatives of the deceased. That the Applicant 10 seeks that the DNA test is done among all the three Respondents who are all - purportedly children of the deceased to test their kinship relation to one another to ascertain the rightful beneficiaries of the deceased. Counsel for the Applicant prayed that the Application be allowed with costs to be in the cause. - **In response**, Counsel for the 1st and 3rd 15 Respondents while citing the case of *Mpumwire Magambo versus Amanda Magambo, Miscellaneous Application No. 0293 of 2023* argued that this instant Application is misconceived since the paternity of the 2nd Respondent cannot be determined through a kinship test without another female against whom she should be tested. That the sibling kinship test cannot be 20 carried out against the opposite sex; the male is tested against the male sibling and the female is tested against the female sibling. That in this matter, it is impossible to determine the kinship of the 2nd Respondent because there is no corresponding female sibling with whom she can be tested yet she cannot be tested against a male due to the complexity of the female chromosomes. That the 1st and 3rd Respondents do not doubt that they are brothers and that the 2nd 25 Respondent is their younger sister.


Counsel for the 1 st and 3 rd Respondents, even after citing the **Magambo case,** *supra*, still maintained the opinion that the paternity of the Respondents cannot be determined by using the kinship test since none of the Respondents has ever carried out a DNA with the deceased to confirm his or her paternity. Counsel prayed that 5 this Application is dismissed with costs.

**Court's determination**

Considering the submissions of the parties and having resolved the preceding issue that the most accurate way of establishing one's paternity is from the father who is

10 the primary source, I find that the most appropriate procedure for carrying out the DNA test would be by comparing the DNA of the deceased with all his alleged children.


However, the Applicant in her pleadings and submissions stated that the deceased 15 left no known DNA samples in any medical facility that can be used for the said DNA test. Also, I have already pointed out in Issue 1 above, the limitations that would come with carrying out a kinship test, particularly in this matter.

The only alternative left in this case would be to order for the exhumation of the 20 deceased so that a sample can be taken from the deceased that can be used to carry out the DNA test if the results were to be accurate. However, none of the parties want the deceased to be exhumed as per the submissions of their Counsel.

Another question I have grappled with as I write this Judgment is, "*If the kinship* 25 *DNA analysis was indeed done and the Respondents were found not to be related, who would qualify to be the deceased's child and who would not, in light of the fact* *that both parties oppose the exhumation of the deceased?"* Indeed this would cause more confusion and complicate this case more.

In the premises, I find that there is no other known procedure for carrying out a

5 paternity DNA test among the Respondents other than exhuming the deceased which is heavily opposed by both parties. As such, Issue 2 has been rendered redundant.

## **Conclusion**

This Application is dismissed wholly and its costs shall be borne by the Applicant.

**Dated at Kampala this 24th day of February 2025.**

............................................

Alice Komuhangi Khaukha

15 **JUDGE**

24/02/2025