Byarugaba v Turyamureeba & Another (Miscellaneous Cause 3 of 2022) [2023] UGHC 435 (28 August 2023)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT RUKUNGIRI **MISCELLANEOUS CAUSE NO.003 OF 2022**

## (FORMERLY MISCELLANEOUS CAUSE NO.006 OF 2022-KABALE HIGH COURT)

## BYARUGABA NDAKWENDA EMMANUEL :::::::::::::::::::::::::::::::::::: **VERSUS**

### 1. TURYAMUREEBA NAZARIUS

# 2. AGABA FRANCIS::::::::::::::::::::::::::::::::::::

## BEFORE: HON. JUSTICE TOM CHEMUTAI.

#### **RULING**

The Applicant, Byarugaba Ndakwenda Emmanuel filed this application against the Respondents, Turyamureeba Nazarius and Agaba Francis for orders that:-

- 1. The letters of administration that were granted to late Dafroza Babihenkomo in respect of the estate of her late husband Narcisio Ndakwenda be cancelled. - 2. The letters of administration in respect of the estate of late Narcisio Ndakwenda be granted to the Applicant. - 3. The Respondents show cause why letters of administration in respect of the estate of late Narcisio Ndakwenda should not be granted to the Applicant. - 4. Costs of the application.

The grounds of the Application are amplified in the Applicant's affidavit in support of his application:

The 1st Respondent filed his statement for withdrawal of his signature on the consent on record which in effect intended to authorize the Applicant to obtain a Certificate of no objection, revocation of the grant of letters of Administration to late Dafroza Babihenkomo having become inoperative among others. The Respondents admit that indeed the grant made to late

Dafroza Babihenkomo became inoperative following her death in 2019. The Respondents, however, oppose the Applicant's prayer to be appointed as a sole administrator of the estate and secondly on the ground that the Applicant cannot be appointed as administrator in the same proceedings for revocation of an inoperative grant. It is the 1<sup>st</sup> Respondent's case as per his affidavit in reply and supplementary affidavit in reply that the Applicant is not a fit and proper person to administer the estate since he intermeddled with the estate in a number of way. The Respondents prayed that the Application be dismissed with costs in as far as the prayer that the Applicant be appointed as the sole administrator of the estate.

#### Representation

During the hearing of this Application, the Applicant was represented by M/S Lubega & Co. Advocates and the Respondents were represented by M/S Ntegyereize, Ingura & Musiimenta Advocates.

Both counsel filed their written submissions which court shall take into consideration in this ruling.

### Issues for determination

- 1. Whether the grant of letters of administration to late Dafroza Babihenkomo in respect of the estate of late Narcisio Ndakwenda ought to be revoked. - 2. Whether Applicant could be appointed as the sole administrator of the estate of late Narcisio Ndakwenda?

#### Decision of the court

Issue No.1, Whether the grant of letters of administration to late Dafroza Babihenkomo in respect of the estate of late Narcisio Ndakwenda ought to be revoked.

**Section 234 (2) of the Succession Act** enjoins court with powers to revoke letters of administration which have become inoperative.

Both parties concur that the letters of administration granted to late Dafroza Babihenkomo in respect of the estate of late Narcisio Ndakwenda had become inoperative following her death. A perusal of the record reveals that

Dafroza Babihenkomo died on 2Jd March, 2019. She was issued letters of administration on 29th June, 1993, vide administration cause No.04/1993. Death is one of the grounds upon which grant of letters of administration may be revoked so as to enable other fit and proper persons to apply for and administer the estate for the benefit of the beneficiaries. I therefore find that the letters of administration in respect of the estate of late Narcisio Ndakwenda to Dafroza Babihenkomo, dated 29th June, 1993 vide administration cause No.04/1993, have become inoperative owing to her death and the same is hereby revoked.

### Issue No.2: Whether Applicant could be appointed as the sole administrator of the estate of late Narcisio Ndakwenda?

It is the Applicant's case that he ought to be appointed the administrator of the estate of late Narcisio Ndakwenda as he was unanimously chosen by the family on 28<sup>th</sup> December, 2021 as a person to obtain a Certificate of no objection. It is his contention that all the children including the 1st Respondent with exception of the 2<sup>nd</sup> Respondent nominated the Applicant for a Certificate of no objection.

It is the Respondent's case that the Applicant is not a fit and proper person to administer the estate as he intermeddled with the estate. The 1st Applicant filed on record a statement of withdrawal of his signature from a consent filed on record.

The Applicant was accused by the 1st Respondent being unfit to administrator of the estate of late Narcisio Ndakwenda, being an intermeddler. The Applicant contends that he was unanimously appointed by the family to obtain a Certificate of no objection and as such the Respondents should show cause why letters of administration should not have granted to him.

In view of the foregoing, it is my finding that there are trial able issues as fitness of the Applicant which cannot be determined by Court through an application like this one. The procedure would be for the Respondents to challenge the Applicant under the provisions of the Succession Act, whereupon, Court would make a decision.

I therefore reject the prayer since the matter is contentious in nature. Both parties directed to follow the normal process of acquisition of letters of Administration. Court is mindful however, that an estate for which a grant was first obtained in 1993 is clearly being wasted or better still stands a high risk of being wasted to the prejudice of the beneficiaries.

This is not a proper case where Court can exercise its inherent powers to issue a fresh grant to an Applicant without following the normal procedure owing to the dispute between the parties who are beneficiaries.

In effect, Issue No.2 is answered in the negative.

In the final result the Application partly succeeds with the following orders '-

- 1. The letters of administration in respect of the estate of late Narcisio Ndakwenda to Dafroza Babihenkomo, dated 29<sup>th</sup> June, 1993, vide Administration Cause No.04/1993 have become inoperative owing to her death and the same are hereby revoked. - 2. The prayer to have the Applicant appointed as an Administrator in respect of the estate of late Narcisio Ndakwenda is not allowed. - 3. No orders as to costs.

Delivered at Rukungiri this 2.8......day of Ans. GLAT 2023 in the presence of both parties and in the presence of their Counsel.

**TOM CHEMUTAI** JUDGE