[2024] UGHCFD 42

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA (FAMILY DIVISION)** 5 **CIVIL SUIT NO. 0297 OF 2022**

#### **(ARISING OUT OF ADMINSTRATION CAUSE NO. 0426 OF 2022)**

#### **1. SEMATIMBA RACHEL TERUTA ================ PLAINTIFF**

#### 10 **VERSUS**

#### **1. DUNCAN KIZITO SEMATIMBA**

#### **2. COMMISSIONER LAND REGISTRATION ===== DEFENDANTS**

## **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA** 15 **JUDGMENT**

## **Introduction**

The Plaintiff sued the Defendants for the following Orders and declarations:

- a) An Order vacating the caveat placed on the grant of Letters of Administration to the Plaintiff; - 20 b) An Order granting Letters of Administration to the Plaintiff in respect of the estate of the late HENRY NUWA SEMATIMBA; - c) A declaration that the Defendant's conduct constitutes intermeddling in the estate of the late HENRY NUWA SEMATIMBA; - d) An Order for an account or inventory be issued against the Defendant in 25 respect of the estate of the late HENRY NUWA SEMATIMBA for the years 2016- 2022 or till the date of resolution of this suit;

- e) An Order for the refund of money received out of intermeddling by the Defendant to the estate of the late HENRY NUWA SEMATIMBA; - f) An Order for compensation to the beneficiaries of the estate of the late HENRY NUWA SEMATIMBA for damages arising out of the intermeddling; - 5 g) A permanent injunction against the Defendant prohibiting him and his agents, representatives or employees from intermeddling in the estate of the late HENRY NUWA SEMATIMBA; - h) General damages and costs of the suit; and - i) As against the 2nd Defendant, for a consequential Order to reverse all 10 transactions on estate property entered on the Register after the death of late Rebecca Kakungulu or adjudged to have been concluded fraudulently by the 1 st Defendant.


#### **Representation**

15 At the hearing, the Plaintiff was represented by Mr. Robert Kirunda and later Ms. Diana Kasabiti and Mr. Moses Muziki all of Kirunda & Co. Advocates while the Defendant was represented by Mr. Peter Allan Musoke and Mr. Yusuf Betunda both of M/S Musoke &Marzuq Advocates. The 2nd Defendant did not file a defence and later Counsel for the Plaintiffs dropped the 2nd Defendant.

#### **Background of the case**

I have found it prudent to provide a detailed background of this suit. On 20th December 2021, the Defendant filed a suit by way of Originating Summons against the Administrator General vide OS No. 015 of 2021(DEX3). The Defendant required

25 the Court to determine questions relating to the construction of the Will of the late Henry Nuwa Sematimba (hereinafter referred to as "**the deceased**" and the bequest

made to his son and heir the late Mika Timuseewo Nkolo Sematimba (hereinafter referred to as "**Nkolo**") under his Will.

Before the suit could be heard, Ms. Rachel Teruta Sematimba (now **Plaintiff**) as a 5 beneficiary of the estate of the deceased and who then had been issued with a Certificate of No Objection to obtain Letters of Administration by the Administrator General filed an Application to be joined as a party. I allowed the Application and joined the Plaintiff as a party. She also filed her Application and also framed different questions for determination by the Court.

After studying the entire Application, I formed a mind that Originating Summons was not the right procedure for the matter. In my Ruling, I observed that:

"*Upon reading of all pleadings, I note that different parties have even raised different questions to be determined in this suit. This confirms that it would*

15 *require a host of witnesses and evidence to resolve the issues between the parties. Originating Summons are meant to handle matters that are less contentious with a view of granting immediate reliefs of which this case before me is not. The issues can be best handled by way of an ordinary suit. In light of the above, therefore, this suit is dismissed under Order 37 Rule 11 of the Civil Procedure Rules*" (**See** 20 **DEX4).**

The Ruling was delivered on 12/04/2022 and the Defendant being dissatisfied with the decision of the Court appealed to the Court of Appeal and the Appeal is still pending.

25 The Plaintiff then petitioned for Letters of Administration for the estate of the deceased (PEX 19) and the Defendant lodged a caveat prohibiting the Grant, hence this suit.

#### **Facts**

The Plaintiff is the only surviving child of the deceased. The deceased died testate on 12th May 1985 at Kisozi. The Will was admitted and marked as PEX 1. As per the Will, the deceased had four children namely: Mulyankolo- Nkolo, Lebeka Grace

5 Namubiru, Juliya Elizabeth Nakutanwa, Nakangu, and Teruta Nakayiwa (Plaintiff). He also was survived by a widow Victoria Sematimba. In his Will, he had named Rebecca Kakungulu (daughter and one referred to as Rebecca Grace Namubiru) and his brother Drummond Sematimba as executors. Drummond Sematimba is the biological father of the defendant. On 10th February 1987, the two executors were 10 granted Letters of Probate (PEX3).

In the deceased's Will, he named his only biological son Nkolo as the heir and bequeathed to him several properties including the properties that were not distributed to any other person (residue). In the same Will, the deceased had 15 indicated that if Nkolo died intestate and childless, his bequests would revert to and vest in the daughters of the deceased and they would also select the heir and decide what to give the heir out of the property.

Nkolo died intestate and childless in August 1991. The Plaintiff and her other sisters 20 selected and appointed the Defendant as the heir of Nkolo. The Defendant went ahead and obtained Letters of Administration for the estate of the late Nkolo.

The executors of the estate of the deceased namely: Rebecca Kakungulu and Drummond Sematimba died before fully distributing the deceased's estate to the 25 beneficiaries as mentioned in the Will. The rest of the children of the deceased have also since died and the Plaintiff is the only surviving biological child of the deceased. The Plaintiff applied for Letters of Administration of the deceased's estate. The Defendant then filed a Caveat on the Petition on grounds that as heir and administrator of the estate of the late Nkolo who had the biggest bequests as per the deceased's Will is the rightful person to administer the estate of the deceased. It is against this background that the Plaintiff filed this suit.

#### **Issues**

During scheduling, the following issues were agreed on for determination by this Court:

- 1. Whether the Plaintiff is the rightful person to obtain Letters of Administration - 10 over the estate of the late Henry Nuwa Mubiru Sematimba; - 2. Whether the Defendant intermeddled in the estate of the late Henry Nuwa Mubiru Sematimba and if so, whether he is liable to account; - 3. Who according to the Will of the late Henry Nuwa Mubiru Sematimba is the residuary legatee to his estate; - 15 4. Who according to the Will and the law on legatee is the appropriate person to administer the estate of the late Henry Nuwa Mubiru Sematimba; - 5. Whether the bequests that were made to Mulyankolo-Nkolo under the Will of the late Henry Nuwa Mubiru Sematimba vested in him; and - 6. What remedies are available to the parties?


Counsel for the Defendant argued that Counsel for the Plaintiff in her submissions deviated from the issues that were agreed to during the scheduling conference. I have considered the issues as stipulated by Counsel for the Plaintiff and I note that they are the same issues as agreed to during the scheduling conference but she changed 25 the order. She also changed the wording of issue three to read as follows; "*Whether the Plaintiff is the residuary legatee of the late Nuwa Mubiru Sematimba"* instead of "*Who according to the Will and the law on legatee is the appropriate person to*

*administer the estate of the late Henry Nuwa Mubiru Sematimba*". I find that this disparity is minor and the resolution of one would answer the other. Court shall maintain the issue as agreed to during the scheduling conference.

5 I also note that Counsel for both parties followed different orders in their argument. I will resolve the issues in the following order: Issues 5, 3, then 1 and 4 together, followed by issue 2 and lastly issue 6.

#### **Resolution of issues**

10 **Issue 5:** *Whether the bequests that were made to Mulyankolo-Nkolo under the Will of the late Henry Nuwa Sematimba vested in him.*

Counsel for the Plaintiff submitted that what was bequeathed by the deceased to his son Nkolo did not vest in him because it had a condition attached to it as per the Will. According to her, the Will stated that if Nkolo who was also named as the heir

15 of the deceased died childless and intestate, his bequest would revert to the daughters and the daughters would also select an heir within the clan. She argued that the late Nkolo died intestate and childless thereby vesting his bequests to the daughters.

On the other hand, Counsel for the Defendant contended that the bequests made to 20 Nkolo vested in him upon the death of his late father Henry Nuwa Mubiru Sematimba. He argued that when the Will of the testator was proved in Court, the property bequeathed to Nkolo vested in him pending registration into his name which the executors did not do.

# 25 **Court's Consideration**

The probated Will of the deceased dated 1st November 1953 was produced in the Court and marked as PEX1. In the Will, the testator listed his children as:

Malyankolo- Nkolo, Lebeka Grace Namubiru, Julia Elizabeth Nakutanwa, Nakungu and Teruta Nakayiwa. All the children of the testator and other people were bequeathed property in the Will. In order to resolve this issue, I will reproduce the relevant parts of the Will especially what relates to Nkolo. It reads thus:

5 *"I have distributed it as follows:*

### *Nkolo is my heir and I bequeath to him the following;*

- *(a)2 Miles at Kisozi Budo (Two)* - *(b) 5 Acres at Lubaga Lungujja (five)* - *(c) The Island at Mpuga Buvuma;* - 10 *(d)………….* - *(e) …………..* - *(f) ……………* - *(g) The rest of the property save as I have otherwise indicated shall vest in the heir.*

15 *(h)……*

*(i) ……………………" (Emphasis is mine)*

Towards the conclusion of the Will, the testator stated thus:

"*If this my heir dies without a child or intestate, it will be up to the daughters to choose an heir from our lineage and all the property shall vest in the daughters, it* 20 *will be up to them to see what to give to the heir*" (Emphasis is mine).

In a later amendment to the Will, the deceased repeated, "… *all the things I have given to the heir, if the heir dies without a child, it will be up to the daughters to choose an heir..."*

The vesting of legacies in general terms is provided for under Section 87 of the Succession Act Cap. 268, Revised Edition, 2023. It provides that:

*"If a legacy is given in general terms, without specifying the time when it is to be paid, the legatee has the vested interest in it from the day of the death of the testator or testatrix, and if he or she dies without having received it, it shall pass to his or her representatives".*

5 Section 114 (1) thereof provides for the vesting of conditional bequests and it provides that:

"*A bequest may be made to any person with a condition superadded that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event does not happen, the thing bequeathed shall go over to another*

10 *person*." (Emphasis is mine)

In the instant case, the contents of the Will are not contested by either party including the condition that was attached to the bequests made to the heir Nkolo. It is also not in dispute that the Will was probated and proved in Court with no dispute. It is further

- 15 not in dispute that the heir Nkolo died intestate and childless. Considering the wishes of the deceased as evidenced by the wording of the Will, it is my finding that the bequests as made to the heir did not vest in him. It is my further finding that the intentions of the testator are very clear and ascertainable. From the reading of the Will, the testator intended the properties to vest in the heir as long as he was alive 20 and as long as he had a child or made a Will. However, if he died intestate and - childless, the bequests would then vest to the daughters.

Counsel for the Defendant has contended that such a bequest is invalid because the testator purported to control what he had already given out when he was already 25 dead. Counsel for the Defendant further argued that the bequests made to Nkolo had

vested in him because even before his death, he had already sold some of the property though not yet registered in his name. Counsel prayed that the part of the

Will that put a condition on what was bequeathed to Nkolo should be redacted from the Will.

I respectfully disagree with Counsel for the Defendant because the above kind of 5 condition is allowed under Section 114 (1) of the Succession Act (supra). It is my considered view that the testator knew what he exactly wanted to happen to his property. I have read the entire Will and I note that the testator had a lot of property and he bequeathed some to his nuclear family and some to other relatives of which the Defendant who was his nephew is not among. He bequeathed most of his 10 properties to his heir Nkolo but put a condition to that bequest. It is very clear from the Will that the deceased desired that what he had bequeathed to the heir remains within his nuclear family and that is why he "ordered" that if the heir died without a Will and without a child, the properties should vest in the daughters. If he intended otherwise, he would have stated it because, from the wording of the entire Will, he 15 was clear-minded of how he wanted his estate to be managed upon his demise.

I have also considered the prayer by Counsel for the Defendant to the effect that the provision of the Will that reverts the bequests of the heir to the daughters should be redacted. However, the undisputed evidence is that the Defendant already benefited 20 from that provision. The provision gave the daughters the power to appoint the heir of Nkolo upon his death and also give whatever property they wished to the heir. The daughters who included the Plaintiff appointed the Defendant and also gave him some property. Counsel for the Plaintiff has argued that by the Defendant's demand to redact that the provision of the Will, he is blowing hot and cold or approbating 25 and reprobating and I entirely agree with her. After the Defendant was made heir and given some property by the daughters in compliance with the Will and obtaining Letters of Administration of the late Nkolo with the support of the daughters, he cannot be seen to want to expunge or redact the very provision from which he derived a benefit.

This Court has no power to expunge a provision of the Will which is neither illegal 5 nor void, nor ambiguous. Section 71 of the Succession Act, Cap. 268 provides that the intention of the testator/ testatrix is not to be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible.

In light of the above, it is my finding from the reading of the Will that the testator 10 intended that the bequests made to the heir Nkolo would vest at two intervals, it would vest to the heir (Nkolo) as long as he was alive but it would vest to the daughters (who include the Plaintiff) if the heir (Nkolo) died intestate and childless. As long as the heir (Nkolo) was alive, his bequests vested in him and that is why he could dispose of some of the properties uninterrupted. If he made a Will or got a 15 child, the property would still remain vested in him but because he died intestate and childless, what had vested in him, automatically vested in the daughters of which the Plaintiff is the only one still surviving. To me, this intention of the testator is so clear and free from ambiguity and this Court cannot be seen to tamper with it in anyway.

20 Consequently, therefore, issue No. 5 is answered partly in the affirmative and partly in the negative as explained above.

## **Issue 3:** *Who according to the Will of the late Henry Nuwa Mubiru Sematimba is the residuary legatee to his estate?*

Counsel for the Plaintiff submitted that the Will of the deceased created two possible legatees, namely: the heir, Nkolo and the daughters of whom the Plaintiff is the only surviving daughter.

5 On the other hand, Counsel for the Defendant contended that the heir Nkolo was given the residue of the deceased's property and because the Defendant is the Administrator of his estate, he is the residuary legatee.

### **Court's Consideration**

10 Residuary legatee is provided for under Section 85 of the Succession Act, Cap. 286 which provides that:

"*A residuary legatee may be constituted by any words that show an intention on the part of the testator or testatrix that the person designated shall take the surplus or residue of his or her property.*"

Section 86 thereof provides that:

"*Under a residuary bequest, the legatee is entitled to all property belonging to the testator or testatrix at the time of his or her death of which he or she has not made any other testamentary disposition which is capable of taking effect*."

As already observed while discussing the preceding issue, it is an agreed fact that the Will bequeathed the residue of the deceased's property to the heir Nkolo. However, it is also an undisputed fact that the same Will vested all the property bequeathed to the heir including the residue, to the daughters if the heir died childless 25 and intestate. As previously noted while discussing the preceding issue and in agreement with Counsel for the Plaintiff, the Will created two possible residuary legatees, the heir as long as he was alive and either had a child or made a Will; and in the absence of either of those, the residue of the estate reverted to or vested in the daughters and the Plaintiff is the only surviving daughter.

In light of the above therefore and according to the Will of the deceased, the Plaintiff, 5 as the surviving daughter is the residuary legatee of the estate of the deceased.

# **Issue 1:** *Whether the Plaintiff is the rightful person to obtain Letters of Administration over the estate of the late Nuwa Mubiru Sematimba* **and; Issue 4:** *Who according to the Will and the law on legatee is the appropriate person*

10 *to administer the estate of the late Henry Nuwa Mubiru Sematimba?* Counsel for the Plaintiff submitted that the Plaintiff, as the only surviving biological child of the deceased and residuary legatee is the most appropriate person to be granted Letters of Administration to administer the remaining estate of the deceased. She argued that even if this Court was to find that the bequest of the heir Nkolo 15 vested in him and he was the residuary legatee, the Defendant would still be entitled to only1% as the heir of the late Nkolo and the Plaintiff would be the biggest beneficiary together with the children of her deceased sisters.

On the other hand, Counsel for the Defendant contended that the Defendant is the 20 most appropriate person to administer the estate of the deceased because he is the heir and administrator of the estate of Nkolo and the largest beneficiary and residuary legatee of the estate of the late Henry Nuwa Sematimba. He further argued that a meeting was held between the Defendant, the Plaintiff and the representatives of the other beneficiaries of the estate of the deceased under the Will and during the 25 meeting, people were nominated to be given a Certificate of No Objection for a Grant of Letters of Administration for the estate of the deceased. The following were the nominated people; **Sematimba Rachel Teruta (Plaintiff), Duncan Kizito**

**Sematimba (Defendant), Allan Ssentumbwe, Juliet Kabugo** and **Edward Barlow Muwanga.**

### **Court's Consideration**

5 Grants of effects unadministered are governed by Section 225 of the Succession Act, Cap. 268 which provides that:

"*If an executor or executrix to whom probate has been granted has died leaving a part of the estate of the testator or testatrix unadministered, a new representative may be appointed for the*

*purpose of administering that part of the estate.*"

Section 226 thereof provides that:


"*In granting letters of administration of an estate not fully administered, the courts shall be guided by the same provisions as apply to original grants, and shall grant letters of administration to those persons only to whom original grants may have been made."*

Section 197 of the Succession Act, Cap. 268 provides for the order in which connections are entitled to administer. It provides that:

"*When the deceased dies intestate, those who are connected with the deceased either by marriage or consanguinity are entitled to obtain letters of administration of his or her estate and effects* 20 *in the order and according to the provisions herein contained.*"

Whereas the deceased did not die intestate, the above provision is relevant and applicable since the executors of the Will have since died before fully administering the estate.

Section 198 thereof provides that:

*"Subject to Section 4 of the Administrator General's Act and Section 199 of this Act, administration shall be granted to the person entitled to the greatest portion of the estate under Section 23."*

5 In the instant case, it is not in dispute that the Plaintiff is a biological daughter of the deceased and she is the only surviving biological child. The Defendant is a biological son of the late Drummond Sematimba who was a biological brother of the deceased, making him a nephew of the deceased. I have also already made a finding that the Plaintiff is the residuary legatee of the estate of the deceased in accordance with the 10 wishes of the deceased as per the Will. It is therefore my finding that the Plaintiff is the most appropriate person to be granted Letters of Administration both as a closest person connected to the deceased by consanguinity and under the law on legatee.

I have considered the argument by Counsel for the Defendant that there are other 15 interests of other beneficiaries who are not lineal descendants of the deceased and the Defendant is the most appropriate person to take care of their interests. However, I find that that argument is not convincing and is accordingly rejected. This is mainly because the bequests to the beneficiaries who did not belong to the deceased's nuclear family were very small and there was evidence that most of them had

20 received their bequests.


Counsel for the Plaintiffs further argued that even if this Court was to find that the late Nkolo was the residuary legatee, the Plaintiff would still be the biggest beneficiary of his estate as the biological sister as opposed to the Defendant who is 25 a cousin.

Counsel for the Defendant in reply contended that the estate of the late Nkolo was not subject of this case and Counsel for the Plaintiff by purporting to argue about it is deviating from her pleadings.

- 5 It is my finding that the two estates are inseparable in as far as they relate to the bequests made to Nkolo by the deceased. If they were separable, I would also wonder why the Defendant would insist on administering the estate of the deceased when he is already the administrator of the estate of the late Nkolo. - 10 I have also taken note of the fact that the Defendant and his biological sister DW1 indicated on PEX 6 that they were son and daughter respectively of the deceased whereas it is not true. This is false information because they were nephew and niece to the deceased respectively. Counsel for the Defendant insists that under the Buganda culture, nephews and nieces are sons and daughters. I respectfully disagree 15 because both the Defendant and his sister (DW1) were elite and fluent in the English language even as they testified in the Court. They therefore, fully knew that they were nephew and niece of the deceased and not son and daughter because the form was filled in English and not in Luganda. I can only conclude that this was a deliberate falsehood intended to mislead the Administrator General.

I also do not believe that the Defendant is authorized to administer the estate on behalf of the other beneficiaries under the Will. I have found no reason why he should assume that responsibility because he was not even a beneficiary under the Will. I would also have expected some of those beneficiaries who are said to still 25 have an interest in the unadministered effects of the deceased's estate or their relatives to come and testify in Court that they had authorized him to be granted Letters of Administration so as to assist them to recover their interest under the Will.

However, he did not produce any of such witnesses apart from his sister (DW1) who is the heir of one of the beneficiaries under the Will but evidence had been adduced that she had already received that bequest and she admitted to that fact.

- 5 In light of the above, I reiterate that the plaintiff **Rachel Teruta Sematimba** is the most appropriate person to be granted Letters of Administration to administer the unadministered effects of the estate of the late Henry Nuwa Sematimba as per the Will. - 10 **Issue 2:** *Whether the Defendant intermeddled in the estate of the late Nuwa Mubiru Sematimba and if so, whether he is liable to account*.

Counsel for the Plaintiff submitted that the Defendant intermeddled in the estate of the deceased by purporting to use forged Powers of Attorney from the surviving executor, Rebecca Grace Kakungulu. While relying on the Kenyan Court decision

- 15 of **Re: Estate of Krishan Murti Maini (Deceased) Succession Cause No. 553 of 2009,** Counsel argued that as an administrator of the estate of the deceased, the late Rebecca Kakungulu had no authority to transfer authority to the Defendant through Powers of Attorney. She insisted that evidence was adduced to the fact that at the time the Powers of Attorney were purported to have been granted, the donor was 20 suffering from Alzheimer's disease which affected her mental ability to make wellinformed decisions to transact on the estate. Counsel also argued that the signature on the Powers of Attorney was different from the known signatures of the late Rebecca Grace Kakungulu. - 25 On the other hand, Counsel for the Defendant contended that the Defendant lawfully dealt with the estate. He argued that the Defendant was authorized by the Administrator of the estate by the Powers of Attorney and even the Plaintiff

acknowledged his authority to deal with the estate in her pleadings and in her evidence adduced in the Court.

### **Court's Consideration**

5 Section 265 (2) of the Succession Act 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-*

- *(a) Takes possession or disposes of the property of the deceased person; or* - 10 *(b) Does any other act which belongs to the office of the executor or executrix, or administrator or administratrix".*

From the adduced evidence, it is not disputed that the Defendant was a donee of Powers of Attorney from the surviving Executrix of the deceased's estate, Rebecca 15 Grace Kakungulu. A copy of the Powers of Attorney was admitted as DEX 7. Though the same is dated 5th August 2019, it was registered with URSB on 14th August 2020. It is, therefore, the finding of this Court that from 14th August 2020 to 1 st May 2021 when the late Rebecca Kakungulu died, the Defendant had Powers of Attorney from the Executrix and the dealings with and in the estate are lawful. The

Death Certificate of the late Rebecca Kakukngulu reveals that she died on 1 20 st May 2021 (PEX 5).

$$\mathcal{O}$$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{O}$ $\mathcal{$

The Plaintiff's Counsel's argument that the Powers of Attorney were forged and or unduly influenced by the Defendant is not tenable in light of the other evidence 25 adduced especially by the Plaintiff. The Plaintiff in her pleadings confirmed that the late Rebecca Kakungulu on account of sickness donated Powers of Attorney to the Defendant to assist her in managing the estate. The same is reiterated in her evidence as contained in paragraph 11 of her witness statement where she stated that:

"*Rebecca Kakungulu was diagnosed with Alzheimer's prior to her death, and this affected her mental faculties. For this reason, she had signed over a Power of Attorney to Duncan Kizito to assist her manage the estate of the late Henry Nuwa Mubiru Sematimba*".

I am aware that in cross-examination the Defendant stated that the late Rebecca Kakungulu gave him the Powers of Attorney at his instance but I am satisfied that the Defendant acted under valid Powers of Attorney because the Plaintiff herself acknowledged that. It is my considered view that the surviving executrix could

10 lawfully give him the Powers of Attorney.


In light of the above, therefore, the actions of the Defendant on the estate from 14th August 2020 when the Powers of Attorney were executed to 1st May 2021 when the late Rebecca Kakungulu died were lawful. However, as the agent of the Executrix 15 then, he still has to give an account of how he dealt with the estate of the deceased for that period.

I have also noted from the documents exhibited by the Plaintiff namely: a Land Sale Agreement for a Plot of land (number unspecified) on Block 353 Busiro Wakiso 20 (PEX14) to the effect that the Defendant through a one Ssempera Mathias sold the said plot of land to Mpirirwe Agnes at Twenty Million Shillings only (UGX 20,000,000) and the Defendant received Eighteen Million Shillings only (UGX18,000,000) remaining with a balance of Two Million Shillings (UGX 2,000,000). This sale agreement was effected on 15th June 2021 which is one and a 25 half months after the death of Rebecca Kakungulu. The receipt was also issued by Makamba Estate- Lungujja which belongs to the Defendant and it is dated 15/6/2021. The Plaintiff further adduced evidence of other receipts issued by Makamba Estate in respect of Plot 928 Block 353 at Kisozi in the name of Mukyala Edisa Nabassa all totaling to Seven Million Shillings only (UGX 7,000,000) [See PEX 25, PEX26

and PEX 27]. Whereas PEX 26 is dated 20 5 th March 2021 (before the death of the late Rebecca Grace Kakukngulu), PEX25 is dated 8/6/2021 while and PEX 27 is dated 9/9/2021. This therefore implies that the two transactions which were entered into after 1st May 2021 (after the death of Rebecca Grace Kakungulu) were conducted without authority thereby making the Defendant an intermeddler and liable to 10 account.

In light of the above therefore, for the transactions which the Defendant conducted while holding the Powers of Attorney and when the late Rebecca Grace Kakungulu was still alive, he had the authority and therefore not an intermeddler. However, for 15 the transactions after the death of Rebecca Grace Kakungulu, he acted without authority and thereby intermeddling. Issue 2 is therefore, answered partly in the negative and partly in the affirmative as explained above.

## **Issue 6:** *What remedies are available to the parties?*

- 20 The Plaintiff prayed for the following Orders: - a) An Order vacating the caveat placed on the grant of Letters of Administration to the Plaintiff; - b) An Order granting Letters of Administration to the Plaintiff in respect of the estate of the late HENRY NUWA SEMATIMBA; - 25 c) A declaration that the Defendant's conduct constitutes intermeddling in the estate of the late HENRY NUWA SEMATIMBA;

- d) An Order for an account or inventory be issued against the Defendant in respect of the estate of the late HENRY NUWA SEMATIMBA for the years 2016 -2022 or till the date of resolution of this suit; - e) An Order for the refund of money received out of intermeddling by the 5 Defendant to the estate of the late HENRY NUWA SEMATIMBA; - f) An Order for compensation to the beneficiaries of the estate of the late HENRY NUWA SEMATIMBA for damages arising out of the intermeddling; - g) A permanent injunction against the Defendant prohibiting him and his agents, representatives or employees from intermeddling in the estate of the late

## 10 HENRY NUWA SEMATIMBA;

- h) General damages and costs of the suit; and - i) As against the 2nd Defendant, for a consequential Order to reverse all transactions on estate property entered on the Register after the death of late Rebecca Kakukungulu or adjudged to have been concluded fraudulently by

the 1 15 st Defendant.


## **Court's consideration**

- *(a)An Order vacating the caveat placed on the grant of Letters of Administration to the Plaintiff*. - 20 Upon perusal of the caveat lodged by the Defendant and the supporting affidavit (PEX 20), I find that it was premised on the belief that the Defendant, being the administrator of the estate of the late Nkolo who had the largest share of the estate of the deceased and the residuary legatee, he had the largest interest in the estate of the deceased.

However, having found that Nkolo's bequest vested to the daughters of the deceased upon his intestate and childless demise as per the wishes of the deceased and having also ruled that the residue also passed to the daughters, it is my finding that the only benefit that accrues to the Defendant is 1% as the heir of the late Nkolo.

I need to emphasize that the Defendant was not a beneficiary named under the 5 deceased's Will. The deceased mentioned in the Will that if his named heir Nkolo died intestate and childless, the property originally bequeathed to him would vest in the daughters. He also stated that the daughters would appoint the heir and they would decide what to give to the heir. In compliance with the wishes of the deceased, when Nkolo died intestate and childless, the daughters appointed the Defendant as 10 the heir and also gave him some property. This would therefore mean that under the law, the Defendant is entitled to 1% of the estate of what was originally Nkolo's

bequest in accordance with Section 23 (1) (a) of the Succession Act, Cap. 268 and any other property that the daughters of the deceased would choose to give him.

15 I will also note with emphasis that even if this Court was to agree with the Defendant's interpretation of the deceased's Will that the legacy of Nkolo vested in him and he was the residuary legatee with the largest bequest, I would still find that the Defendant is only an administrator of his estate and a beneficiary of only 1% as the heir. Being an administrator of an estate alone does not make one a beneficiary 20 thereof. Throughout Section 23 of the Succession Act, Cap. 268 which provides for distribution of property of the intestate in the various circumstances, the heir is entitled to only 1%.

On the contrary, the Plaintiff who is the biological sister of Nkolo is the largest 25 beneficiary of his estate since he (Nkolo) neither had a child, nor a spouse, nor a dependent relative. Section 23 (1) (e) of the Succession Act provides that:

"*Where the intestate leaves no person surviving him or her other than a customary heir or heiress capable of taking a proportion of his or her property specified in paragraph (a), (b), (c) or (d), the estate shall be divided equally between the relatives nearest in kinship to the intestate*."

5 It is not in dispute that the Plaintiff, being the biological sister of late Nkolo is the nearest in kinship in comparison with the Defendant who is a cousin.

In light of the above therefore, I find reason to vacate the caveat that was lodged by the Defendant prohibiting the grant of Letters of Administration to the Plaintiff vide

10 Administration Cause No. 426 of 2022. The said caveat is hereby removed, lifted and vacated with immediate effect.


# *(b)An Order granting Letters of Administration to the Plaintiff in respect of the estate of the late HENRY NUWA SEMATIMBA.*

- 15 I have considered the fact that the Plaintiff is the only surviving child of the deceased. I have also found from the preceding discussion that she is the residuary legatee and a beneficiary of the largest part of the deceased's estate and the most appropriate person to be granted Letters of Administration to administer the unadministered effects of the estate of the late Henry Nuwa Sematimba as per the - 20 Will. I have also taken note of the Family consent in which she was nominated as the sole administrator (PEX17) and a Certificate of no objection (PEX18) issued to her by the Administrator General. Accordingly, by this Judgment, a Grant of Letters of Administration for the estate of the late HENRY NUWA SEMATIMBA hereby doth issue to **Sematimba Rachel Teruta** (daughter) to administer the 25 unadministered effects as per the Will.

# *(c) A declaration that the Defendant's conduct constitutes intermeddling in the estate of the late HENRY NUWA SEMATIMBA.*

The dealings of the Defendant on the estate of the deceased after the death of the late Rebecca Grace Kakungulu were without authority and amounted to intermeddling

5 in the deceased's estate.

# *(d)An Order for an account or inventory be issued against the Defendant in respect of the estate of the late HENRY NUWA SEMATIMBA for the years 2016 to 2022 or till the date of resolution of this suit.*

10 (i) The Defendant shall provide an inventory of all the properties under his stewardship as an administrator of the estate of the late Nkolo and as a Donee of Powers of Attorney from the time each instrument was acquired up to the time of the said accountability to the Plaintiff and give this Court a copy thereof **within one month from the date of this Judgment and in any case**

#### **not later than 7 th** 15 **September 2024**.

$$\mathcal{O}$$

(ii) The Defendant shall also provide a full accountability of how the estate of the deceased has been managed from the time he obtained Letters of Administration for the estate of the late Nkolo and when he was granted 20 Powers of Attorney by the surviving Executrix of the estate of the deceased (the late Henry Mubiru Sematimba) and when he acted without authority to date to the Plaintiff and give this Court a copy thereof **within one month from the date of this Judgment and in any case not later than 7 th September 2024**.

*(e) An Order for the refund of money received out of intermeddling by the Defendant to the estate of the late HENRY NUWA SEMATIMBA.*

The Defendant shall hand over to the Plaintiff, Twenty-two Million Shillings (UGX 22,000,000) as monies received from sale of estate land which was done after 1st May 2021 as proved by Receipt No. 465 dated 15/6/2021 for Eighteen Million Shillings (UGX 18,000,000), Receipt dated 8/6/2021 for Two Million Shillings 5 (UGX 2,000,000) in favour of Mukyala Edisa Nabbassa and another dated 9/9/2021 of Two Million Shillings (UGX 2,000,000) also in favour of Mukyala Edisa Nabbassa. This should be done **within sixty days from the date of this Judgment and in any case not later than 7th October 2024**. **IN THE ALTERNATIVE**, if the Defendant is unable to hand over the money, the said transactions shall be 10 cancelled.

The Defendant argued that some of those transactions were commenced when the late Rebecca Grace Kakungulu was still alive and completed after her death. Be that as it may, the Defendant was duty bound to give the money to the beneficiaries which

15 he did not do. As such, he is still liable for intermeddling since he had then lost the authority to deal with and in the estate and he also did not hand over the monies to the beneficiaries.

*(f) An Order for compensation to the beneficiaries of the estate of the late* 20 *HENRY NUWA SEMATIMBA for damages arising out of the intermeddling.*

This relief is not granted because it is covered by (e) above.

*(g)A permanent injunction against the Defendant prohibiting him and his* 25 *agents, representatives or employees from intermeddling in the estate of the late HENRY NUWA SEMATIMBA.*

A permanent injunction doth issue against the Defendant and or his agents from interfering in and with the estate of the late *HENRY NUWA SEMATIMBA.*

## *(h)General damages and costs of the suit.*

5 The Plaintiff has not proved any loss suffered at the hands of the Defendant to entitle her to damages. Any loss that may have been suffered will be catered for under (e) above.

However, regarding costs, Section 27 (1) of the Civil Procedure Act, Cap. 282

10 provides for costs and stipulates that: *"Subject to such conditions and limitations as may be prescribed, and to the provision of any law for the time being in force, the costs of and incident to all suits shall be at the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and out of what property and to what extent those costs are to be paid, and give all the necessary* 15 *directions for the purposes aforesaid."*

I agree with Counsel for the Plaintiff that the Plaintiff has incurred cost to prosecute this suit and the other many Applications that arose from this suit. Therefore, **the**

### **Defendant shall bear the costs of this suit**.


**(i) As against the 2nd Defendant, for a consequential Order to reverse all transactions on estate property entered on the Register after the death of late Rebecca Kakungulu or adjudged to have been concluded fraudulently by the 1st Defendant**.

The Commissioner Land Registration shall reverse all transactions on the estate property entered into by the Defendant after the death of the late Rebecca Grace Kakungulu (1st May 2021) if the Defendant fails to account for and or hand over the proceeds of the sale to the Plaintiff in accordance with (d) and (e) above.

## **Conclusion**

Consequently, this suit succeeds and Judgment is entered in favor of the Plaintiff on the following Orders and declarations:

- 5 1. The caveat lodged by the Defendant on Administration Cause No. 426 of 2022 is hereby removed, lifted and vacated with immediate effect; - 2. Letters of Administration for the estate of the late HENRY NUWA SEMATIMBA are hereby issued to **Sematimba Rachel Teruta** (daughter) to administer the unadministered effects as per the Will; - 10 3. The dealings of the Defendant on the estate of the deceased after the death of the late Rebecca Grace Kakungulu were without authority and amounted to intermeddling in the deceased's estate; - 4. The Defendant shall provide an inventory of all the properties under his stewardship as an administrator of the estate of the late Nkolo and as a Donee 15 of Powers of Attorney from the time each instrument was acquired up to the time of the said accountability to the Plaintiff and give this Court a copy thereof **within one month from the date of this Judgment and in any case not later than 7 th September 2024**; - 5. The Defendant shall also provide a full accountability of how the estate of the 20 deceased has been managed from the time he obtained Letters of Administration for the estate of the late Nkolo and when he was granted Powers of Attorney by the surviving Executrix of the estate of the deceased (Henry Mubiru Nuwa Sematimba) and when he acted without authority to date to the Plaintiff and give this Court a copy thereof **within one month from** - **the date of this Judgment and in any case not later than 7 th** 25 **September 2024**;


- 6. The Defendant shall hand over to the Plaintiff Twenty-two Million Shillings (UGX 22,000,000) as monies received from sale of estate land which was done after 1st May 2021 as proved **within sixty days from the date of this judgment and in any case not later than 7th October 2024**.

5 **IN THE ALTERNATIVE**, if the Defendant is unable to hand over the money, the said transactions shall be cancelled;

- 7. The Commissioner Land Registration shall reverse all transactions on the estate property entered into by the Defendant after the death of the late Rebecca Grace Kakungulu (1st May 2021) if the Defendant fails to account for 10 and or hand over the proceeds of the sale to the Plaintiff in line with orders (5) and (6) above; - 8. The Administrator General shall hand over the estate Certificates of Title in his possession to the Plaintiff (Administrator) immediately to enable her reorganize and administer the unadministered effects as per the Will of the 15 deceased; and - 9. The Defendant shall bear the costs of this suit.

I so order.

**Dated at Kampala this 5th day of August 2024.**

20 ………………………………..

Alice Komuhangi Khaukha

## **JUDGE**

05/08/2024.

25