[2025] UGHC 467

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA

#### AT LUWERO

#### CIVIL SUIT NO. HCT-17-CV-CS-0073-2023

### (ARISING FROM ADMIN. CAUSE NO. 031 OF 2023)

#### 1. SSEBALAMU MOSES

#### 2. MUTEBI JOSEPH BALIKUDEMBE:::::::::::::::::::::::::::::::::::

#### **VS**

- 1. MAVUUMA MOSES - 2. NDAWULA FRED - 3. SIMBWA HENRY::::::::::::::::::::::::::::::::::::

#### **BEFORE HON. JUSTICE GODFREY HIMBAZA**

#### RULING.

## **Introduction**

1. The plaintiffs herein filed this suit against the defendants who are their siblings, all of them being children and beneficiaries of the estate of late Kayondo Emmanuel Namulaza who died at Semuto Health Center IV leaving behind 29 children. The plaintiffs sought for orders that;

a) The Letters of Administration being sought in Administration Cause no. 031 of 2023, be denied to the defendants.

- b) That the purported Will presented by the defendants be declared null and void. - c) The family members of the late Kayondo Emmanuel Namulaza be directed to pursue a Certificate of No Objection from the office of the Administrator General. - d) A permanent injunction be issued restraining the defendants and their agents from intermeddling with the estate of the late Kayondo Emmanuel Namulaza until Letters of Administration of the Estate are dully granted.

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- e) General damages - f) Costs of the suit.

## Representation

2. The Plaintiffs were represented by Counsel Seruwooza John Bosco whereas the defendant was represented by Counsel Pande Norman.

# Background.

- 3. The plaintiffs' claim was that they are siblings of the defendants all being children and beneficiaries of the estate of late Kayondo Emmanuel Namulaza who died at Semuto Health Centre in 2022 leaving behind 29 children. - 4. Upon his death, the defendants commenced the process of applying for Letters of Probate, having declared that the deceased left behind a Will. When the Plaintiffs discovered that the defendants had commenced the process of applying for Probate, they instructed their lawyers to lodge a caveat on the Administration Cause and filed this suit claiming that; - A) The defendants declared that the deceased had left behind a Will yet during the last funeral rites of the deceased that took place on I ls June 2023, it was made clear that the deceased left behind no Will as none was produced even after wide consultations. - B) The defendants never convened any family meetings with the Administrator General to streamline the administration of the same. - C) The views of some of the beneficiaries of the estate were neglected, ignored and or curtailed in the process. - 5. When this suit came up for hearing, it was revealed that the defendants had since obtained a Certificate of No objection from the Administrator General.

# Preliminary Objections

6. Counsel for the defendants raised preliminary objections as follows;


a) That the suit by the Plaintiffs is statute barred and incompetent for circumventing the provisions of the Succession Act. With regard to the

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2nd plaintiff, counsel argued that the suit by him is incompetent because he did not lodge any caveat. He relied on section 255 A(2) of the Succession Act which provides that a person who lodges a caveat shall within 6 months from the date the caveat was lodged commence a suit to prove the objections contained in the caveat. Counsel argued that in the absence of the caveat by the 2"d plaintiff, he had no capacity to file this suit.

b) The second objection was in respect of incompetence of the l st plaintifl's suit having been filed based on an invalid caveat. Counsel argued that the advertisement for the application was issued in the Daily Monitor on Thursday 9tt' February 2023 and the caveat was lodged in this court on 6ft July 2023, which is more than 5 months. Counsel argued that since it was out of time, it ought to have been filed with leave of court. Counsel relied on the decision of Bwerere Yoweri & 2 ors Vs. Paul Nayebare Masaka Misc. Application no. 1lO of 2023 where court translated the notice period to be 14 days within which parties who are affected are supposed to file a suit challenging the caveat. In that case of Bwerere Yoweri(supra), the judge said;

"ln the instant case, the notice was advertised on 16th August 2023, the caveat was lodged on 8th December 2O23 over 3 months after the notice had been advertised.... the above statutory provisions of the Civil Procedure Act and Rules .i.e section 96 and O.51 rule 6 of the Civil Procedure Act and Rules respectively require that when time has been fixed by court as it is in the notice that was published in the media, the affected person who was unable to lodge his or her caveat within the prescribed time of 14 days should first seek leave ofcourt for enlargement of time before the caveat is lodged".

7. Counsel argued that the instant suit is also rendered incompetent by virtue of breach of those statutory provisions. /^

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8. Counsel further submitted that the defendants only got to know about the caveat when they were served with summons to lile a defence and the plaint in Civil Suit no. 73 of 2023. That the procedure adopted was in contravention of section 255 (1) of the Succession Act which provides that a person who lodges a caveat under section 255 of the Act shall within 14 days of lodging the caveat serve a copy of the caveat to the petitioner for probate or letters of Administration. Counsel relied on the case of AJok Patricia Vs. Jasmine Precious Muwanguzi CS. No. Ol of 2o23 where Justice George Okello stated that the aforesaid provisions are mandatory.

## Plaintiffs Submissions in reply on the preliminary objections

9. The plaintiff, in reply to the written submissions argued that given the familial relationship of the parties in the matter before court, the plaintiffs had elected to envision reconciliation of the parties and as such conceded to the matters of Law as raised. However, counsel prayed that the plaintiffs do not be condemned to costs in view of the reconciliation efforts and harmony amongst the family members of the late Emmanuel Namulaza. Counsel relied on the authority of Nassozi M. Klzito Vs, Muea Nsubuga CACA No. 02 ol 2014. Where Justice Mulyagonja held that in order to restore the family equilibrium and bring the dispute to an end, each party ought to bear its own costs.

## Defendants' submissions in rejoinder.

- 10. Counsel for the defendants insisted on an award of costs. He argued that the plaintiffs conduct of putting the defendants to suffering by making them defend an unnecessary suit should be punished with costs. Counsel specifically pointed out the conduct of the 2"d plaintiff who insisted that the plaint be amended to correct the spelling of his names well knowing that he did not have a good case. - 11. Counsel for the defendants further argued that Costs follow the event and that it is within court's discretion to award or not to award costs. He relied on section 27 of the Civil Procedure Act and the case of Iyamulemye David Vs. Attorney

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General SCCA No. O4 of 2O13 . Counsel insisted that a successful party ought to be compensated by an award ofcosts.

12. Counsel finally argued that Court on various sittings had always been informed of the lst plaintiffs 'conduct towards the defendants tarnishing their names in the whole village which facts were never denied.

## The issue for determination;

13. The plaintiffs having conceded to the preliminary objections, the only issue that remains for Court's determination is whether the defendants should be awarded costs, since the preliminary points of law raised dispose of the suit. Under Order 15 rule 2 of the Civil Procedure Rules, preliminary points of law raised in the suit ought to be disposed of first before determination of the merits of the suit. It provides as follows;

# Issues of Laut and lssues of fact

" Where issues both of Lau and of fact aise in the same suit, and the court is of the opinion that the case or anA part of it may be disposed of on fhe issues of lau onlg, it shall try those issues \_7trst and for that purpose mag, if it thinks fit, postpone the settlement of the issues of fact until after fhe issues of latu haue been determined".

## Whether the defendants should be awarded costs or not.

#### DECISION

14. The law that governs award of costs is section 27 of t}:e Civil Procedure Act. Costs always follow the event. Having analysed the circumstances giving rise to this suit, as well as the submissions of both parties, i notice that the plaintiffs and the defendants are siblings all being the children of late Kayondo Emmanuel Namulaza. According to the amended plaint filed in this court in July 2024, t},e late Kayondo Emmanuel Namulaza left behind 29 children. Upon his demise in 2022, the defendants commenced on the process of application for Letters of . fldministration. The defendants however, being some of the beneficiaries of the ttlk., rh 5lPage

estate of late Kayondo Emmanuel Namulaza, were not contented by the manner in which the defendants were conducting the process. Specifically, there complaints at least as can be discerned from the amended plaint were that;

- A) The defendants declared that the deceased had left behind a Will yet during the last funeral rites of the deceased that took place on 11ft June 2023, it was made clear that the deceased left behind no Will as none was produced even after wide consultations. - B) The defendants never convened any family meetings with the Administrator General to streamline the administration of the same. - C) The views of some of the beneficiaries of the estate were neglected ,ignored and or curtailed in the process. - 15. In my view, the plaintiffs filed this suit, for purposes of safeguarding the general interests of the estate and the beneficiaries of their late father. I do not think that they filed the suit for their own personal gain individually. They sought to have a process of administration of the estate that was all inclusive and representative of the interests of all the 29 beneficiaries. This can be read from paragraph 4 g) of the amended plaint which reads as follows;

"The plaintiffs were also shocked to learn that an Administration Cause file in respect of the estate had been opened by Mavuuma Richard, Nawula Fred and Simbwa Henry to appoint the same as Administrators of the estate of late Kayondo Emmanuel Namulaza vet the views of some of the beneficiaries of the estate were neslected. isnored and or curtailed" (emphasis)

16. The record also shows that the defendants had opened the Administration Cause without a Certificate of No Objection. It took the intervention of the senior resident Judge Justice Henrietta Wolayo who directed the defendants to come back to court with a Certilicate of No Objection which they did. This can be read from the record of 20s May 2025 when this case was called before me, and counsel for the Plaintiffs informed court as follows;

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" ... I would object to the adjournment because I have preliminary objections as to the competence of the suit...if there are any issues, they will be resolved in the Administration Cause, we are appearing before the Deputy Registrar on 24lJ1 June 2025. The defendants in this suit who are the petitioners have returned to court with a Certificate of No Objection from Administrator General as ordered by Justice Wolayo on 4ft July 2023"

- 17. In my view, much as the plaintiffs suit is incompetent for having violated the provisions of section 255 of the succession Act, i have already noted that the plaintiffs suit was not frivolous or vexatious as it was intended to protect the interests of the estate and the beneficiaries generally. But also as observed above, the defendants' petition for Letters of Administration lacked an important document which is the 'Certificate of No objection'. Indeed, one of the prayers in the suit was that court should order the parties to obtain a Certificate of No Objection from the Administrator General. This court would be acting harshly against the plaintiffs who sought to protect the deceased's estate from being put to waste. - 18. More so, the plaintiffs and the defendants being siblings, ought to promote reconciliation and cohesion as family members. I have noted that the process of application for letters of Administration is still on going where the family needs to sit together and agree on key and important decisions affecting the estate. Condemning the plaintiffs to costs will only worsen the situation. I agree with the decision of Hon. Lady Justice Irene Mulyagonja in the case Nassozi M. Klzlto Vs.

## Musa Nsubuga CACA 02 of 2O14 that;

"Since the matter was between members of the same family, it is my view that in order to restore equilibrium and bring this dispute to an end, each party should bear their own costs for this appeal and in the court below"

19. Similarly in the instant case, i would decline to award costs to the defendants for the reasons i have given above.

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In the final result this suit is hereby struck out for failure to comply with mandatory provisions of the law.

20. Each party shall bears its own Costs.

I so order

ue De

**GODFREY HIMBAZA** Ag. JUDGE $28^{\rm th}$ JUNE 2025