[2025] UGHCFD 49

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) **MISCELLANEOUS APPLICATION NO. 2558 OF 2024** (ARISING FROM DIVORCE CAUSE NO. 0013 OF 2016)

## SSENYONGA ASHRA :::::::::::::::::::::::::::::::::::: **VERSUS**

SSEMUWEMBA JAMES ::::::::::::::::::::::::::::::::::::

## BEFORE HON. JUSTICE JOHN EUDES KEITIRIMA

## **RULING**

1]. This application was brought by way of Notice of Motion under Section 98 of the CPA and Order 52 Rules 1 & 3 of the CPR.

The applicant is seeking for orders that; -

Part two of the consent judgment in Divorce Cause No. 13 of $(i)$ $2016$ be varied.

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- $(ii)$ That the issue of distribution of matrimonial property in **Divorce** Cause No. 13 of 2016 be heard and the applicant be given her share of the matrimonial home. - That each party bear their own costs. $(iii)$

2]. The application is supported by the affidavit of the applicant who states inter alia; -

- $(i)$ That the applicant signed the consent in **Divorce Cause No.** 13 of 2016 and the respondent was to remain in custody of the children including; Aaliyan Namirembe, Ryan Kirabo and Rodney Kusiima while the applicant was to have visitation rights. - $(ii)$ That Aaliyan is now an adult and currently in care of the applicant. That Ryan was chased by the respondent from the matrimonial home and Rodney Kusiima left the respondent's home and all the three children are under the applicant's care. - $(iii)$ That Rodney left the respondent's house owing to the hostile conditions and the fact that he was missing his two siblings.

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- That the respondent makes a contribution to the school fees $(iv)$ and maintenance of the three children. - $(v)$ That this Court makes further orders in respect of the matrimonial property as this issue was not addressed in the divorce cause. - $(vi)$ That the respondent is gainfully employed and able to contribute to the children's maintenance and school fees. - (vii) That in the interests of justice the orders sought should be granted.

3. This matter proceeded ex parte as the respondent was served but failed or refused to file an affidavit in reply. The applicant filed written submissions which I have considered in determining this application.

The issue to determine now is whether part two of the consent judgment in Divorce Cause No. 13 of 2016 should be varied and whether the distribution of matrimonial property should be considered.

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Since the application was not contested by the respondent, I take it that he conceded to it.

4]. Section 28 of the Divorce Act Cap 144 provides that "In suits for dissolution of marriage, or for nullity of marriage or for judicial separation, the Court may, at any stage of the proceedings, or after a decree absolute has been pronounced, make such order as it thinks fit, and may vary or discharge the orders, with respect to the custody, maintenance and education of the minor children of the marriage, or for placing them under the protection of the Court".

5]. With regard to the issue of custody of the children, it was held in the case of Otto Methodius Pacific versus Edyline Sabrina Pacific C. A. C. A No. 88 of 2013 citing the Singaporean Court of Appeal case CX versus CY (2006) 4LRC that in any custody proceedings, it is crucial that the Courts recognize and promote joint parenting so that both parents can continue to have a direct involvement in the child's life.

6]. Article 31(5) of the Constitution provides that "children may not be separated from their families or the persons entitled to bring them up

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against the will of their families or of those persons, except in accordance with the law".

7]. The consent judgment will therefore be varied to provide for joint custody of the children by the parties.

The parties will equally make a fifty, fifty contribution to their children's school fees and general welfare.

8]. In his reply to the Petition vide Divorce Cause No. 13 of 2016 the respondent acknowledged that the home in Namugongo was jointly acquired by him and the applicant.

The applicant is therefore entitled to fifty percent of its current value.

9]. The application will therefore be granted and the consent judgment in Divorce Cause No. 13 of 2016 will be varied as follows; -

$(i)$ The parties will be granted joint custody of the minor children. The respondent shall have custody of the children during the weekends while the applicant shall have custody of the children during the weekdays.

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- $(ii)$ The parties are to contribute fifty percent each to the children's needs especially with regard to school fees, health care and their general welfare. - $(iii)$ The matrimonial home at Namugongo should be sold and each party takes fifty percent of the proceeds of the sale or a party that intends to retain it should compensate the other fifty percent of its value within a period of six months from the date hereof. - $(iv)$ Each party will bear their costs of this application.

**Hon. Justice John Eudes Keitiri**

27/06/2025

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