Ganya and Another v Twinomujuini (HCT-01-CV-LD-CS-28 OF 2023) [2025] UGHC 445 (19 June 2025)

#### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

#### **HCT-01-CV-LD-CS-28 OF 2023**

#### **1. GANYA FLORENCE**

**2. BALINDA JOHN ::::::::::::::::::::::::::: PLAINTIFFS**

*(Administrators of the Estate*

*of the Late Cecilia Mukatayali )*

#### **VERSUS**

# **TWINOMUJUNI ERIC :::::::::::::::::::::::::::::::::: DEFENDANT**

#### **BEFORE: HON. JUSTICE VINCENT WAGONA**

## **RULING ON A PRELIMINARY POINT OF LAW**

#### **Background**:

- 1. The instant suit was originally filed by three Plaintiffs namely, *Kabwa Ibrahim, Ganya Florence* and *Balinda John*. They had brought the suit against *Twinomujuini Eric* seeking; - - **(a)A declaration that the suit land forms part of the estate of the late Mukatayali Cecilia;** - **(b)A declaration that the Plaintiffs are the rightful owners of the suit land as administrators of the estate of the late Mukatayali Cecilia;**


- **(c) A declaration that the Defendant is a trespasser on the suit land/estate of the late Mukatayali Cecilia.** - **(d)Eviction Order against the Defendant, his workers or agents or any other person claiming under the Defendant.** - **(e) Permanent injunction restraining the Defendant, agents and workers from further trespass on the suit land.** - **(f) General damages.** - **(g)Costs of the suit.** - 2. On 20th June 2023, *Mr. Kabwa Ibrahim* (the 1st Plaintiff in this suit at that time) filed a letter dated 19th June 2023 in which he stated as follows; -

*"RE: WITHDRAW OF HCT-01-CV-LD-CS NO. 0028 OF 2023 AGAINST ME*

*Greetings,*

*My Lord, I am the 1st Plaintiff in the aforementioned matter and I have since lost interest in the same and I hereforth request/pray that the same matter be withdrawn against me…"*

3. On 9th April 2024 when the matter came up for hearing, this Court allowed the said Kabwa Ibrahim to withdraw from the suit with no orders as to costs. Learned Counsel for the Plaintiffs was directed to file an amended Plaint and the same was filed on 19th April 2024. When the matter came up for hearing of the Plaintiff's case on 27th November 2024, Learned Counsel for the


Plaintiffs *Mr. Murungi Godfrey* stated that he had a point of law in regard to the amended Plaint.

- 4. Learned Counsel submitted that pursuant to the guidance of this Court, *Kabwa Ibrahim* was removed as a Plaintiff, but that in amending the Plaint, the original Plaintiffs were instead substituted with the administrators of the estate of the late *Cecilia Mukatayali* without leave of Court contrary to the provisions of **Order 1 Rule 10** of the **Civil Procedure Rules**. Further, that **Section 272** of the **Succession Act** makes it mandatory for administrators to always act jointly. That a suit by only 2 administrators where the estate has a total of 3 administrators violates the law and makes the pleadings defective. Counsel prayed that the suit be struck out with costs to the Defendants. - 5. Learned Counsel for the Plaintiffs, *Mr. Patrick Nyakana* could not immediately respond to the said points of law and he requested for time to respond through written submissions. The court issued direction to file written submissions in respect of the said points of law.

#### **Defendant's Submissions**:

- 6. *Mr. Murungi Godfrey* raised two preliminary points of law, to wit; - (1)The Amended Plaint is incurably defective for addition/substitution of parties without leave of court; and


- (2) The suit is incurably defective for having been brought by two administrators yet the grant was given to three administrators. - 7. In respect of the first preliminary point of law, Learned Counsel submitted that before joining any party to a suit, one must first apply to court and demonstrate in an application that he/she has a high interest in the suit and that his or her interest would be affected if the outcome of the suit is not in his/her interest as granted by Court. Counsel relied on the case of the **Departed Asians Property Custodian Board vs. Jaffer Brothers Ltd [1999] 1 EA 55** and **Order 1 Rule 10 (2) and (3)** of the **Civil Procedure Rules**. - 8. With that, Counsel submitted that this Court ordered the removal of the original 1st Plaintiff *(Kabwa Ibrahim)* from the suit, and when he was removed, the 2nd and 3rd original Plaintiffs, *Ganya Florence* and *Balinda John* remained as the only parties to the suit and in their original suit, they had not sued as administrators of the estate of the late *Cecilia Mukatayali*. That for the Plaintiffs to now sue as administrators without a court order allowing them renders the amended Plaint incompetent and the same should be struck off the court record with costs. - 9. In respect of the 2nd preliminary objection, Counsel submitted that grant of the letters of administration in respect of the estate of the late *Cecilia Mukatayali* was obtained by the Plaintiffs herein together with *Kabwa Ibrahim*. That in


the original Plaint, all the three Plaintiffs sued as beneficiaries and not as administrators, however, that one of them, *Kabwa Ibrahim*, denied ever instructing counsel to file a suit on his behalf, and that upon his application, the court granted him leave to withdraw from the suit and directed the Plaintiffs to file an amendment to reflect the changes. That the Plaintiffs are now only two yet joint administrators of an estate are supposed to act jointly and that a suit by the Plaintiffs without their co-administrator is a violation of **Section 268** of the **Succession Act**. Counsel cited the case of **Silver Byaruhanga vs. Fr. Emmanuel Ruvugwaho & Anor, SCCA No. 09 of 2014**, where *the Hon. Justice M. S. Arach Amoko, JSC* (as she then was), held at page 45 that where a grant of probate or letters of administration is made jointly to administrators, that power must be exercised jointly. He prayed that the suit be struck out with costs to the Defendant.

#### **Plaintiff's submissions in reply to the preliminary points of law**:

10. In respect of the first preliminary point of law, *Mr. Patrick Nyakana* submitted that this is a declaratory suit which was filed by the administrators of the estate of the late *Cecilia Mukatayali* for the benefit of all beneficiaries including the Plaintiffs. He referred me to **Paragraph 3** of the Plaint that provides for the Plaintiff's claim against the Defendants. That it is an undisputed fact that the Defendant and his lawyers know that the instant case is about the estate of the


late *Cecilia Mukatayali* because even in his written statement of defence, the Defendant denies that the suit land forms part of the estate of the late *Cecilia Mukatayali*. That even the 1st issue in the joint scheduling memorandum is whether the suit land forms part of the state of the late *Cecilia Mukatayali*. That mere mentioning of the Plaintiffs as administrators of the estate of the late *Cecilia Mukatayali* does not substitute or add the parties to the suit. The law and authorities quoted by the Defendant's lawyers in the submissions are wrongly cited because there is no substation/addition of parties in this case.

- 11. In respect of the second preliminary objection, learned Counsel submitted that the conduct of one administrator withdrawing from the case during proceedings is against the interests of his co-plaintiffs and other beneficiaries and the same defeats the purpose of acquiring the grant of letters of administration. The withdrawal of one of the administrators is highly suspect; highly suspicious that he was courageous enough to come to court and deny his co-administrator and advocates, forgetting that by his own communication to court, he clearly stated that he was one of the Plaintiff but "lost" interest in the suit. He did not explain the cause of "loss of interest." That the conduct of the said *Kabwa Ibrahim* leaves one with only one logical conclusion that he could have been comprised. - 12. Counsel further submitted that learned Counsel for the Defendants is merely misleading this Court by citing **Section 268** of the **Succession Act**. He then


invited this Court to consider, but also take the opportunity, to enlighten Counsel for the Defendant on the provisions of **Section 272** of the **Succession Act** which provides that; *"when there are several executors, the power of all may, in the absence of any direction to the contrary, be exercised by any one of them who has proved the will or taken out administration."* That the simple interpretation of this Section is that any one or more of the administrators can take action for the benefit of the estate, or for preservation of the estate of the deceased as it is in instant case. But even different from the circumstances of this case, the two Plaintiffs are proceeding with the matter that was originally filed by all the three administrators. Counsel submitted that the case of **Silver Byaruhanga vs. Fr. Emmanuel Ruvugwaho & Anor, SCCA No. 09 of 2014** is distinguishable from the instant case. He invited this Court to overrule the two preliminary objections with costs.

#### **CONSIDERATION BY COURT**:

- 13. I will resolve the points of law under two issues that is: - *(1)Whether there was substitution/addition of parties in the amended Plaint without leave of Court.* - *(2)Whether the Plaintiffs herein can progress this suit in the absence of their co-administrator, Kabwa Ibrahim.*


# **Issue One**: **Whether there was substitution/addition of parties in the amended Plaint without leave of Court.**

- 14.**Order 1 Rule 10(2)** of the **Civil Procedure Rules** states: *"The Court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."* - 15.**Order 1 Rule 13** of the **Civil Procedure Rules** provides that; *"Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by motion or summons or at the trial of the suit in a summary manner".* Therefore, a party can only be added to an ongoing suit or substituted only by order of court. The case of **Departed Asians Property Custodian Board vs. Jaffer Brothers Ltd [1999] 1 EA 55** is a cornerstone for applications to add parties, emphasizing the requirement for leave of court and demonstrating a direct interest in the suit. - 16. In the instant case, in the original Plaint, the Plaintiffs did not state in the heading of the Plaint that they had brought this suit in their capacity as administrators of the estate of the of the late *Cecilia Mukatayali*. However, under Paragraph 3 of the Plaint, it was expressly stated that they sought

 declarations that the suit land forms part of the estate of the late *Cecilia Mukatayali* and that the Plaintiffs are the rightful owners *as administrators of the estate* of the late *Cecilia Mukatayali*. In my view, in order to determine the capacity under which one brings a suit, one has to look at the entire plaint and not only at its heading.

17. In this case the contents of **Paragraph 3** of the original Plaint show that the Plaintiffs' claim was intertwined with their capacity as administrators. In the amended Plaint, a description of the Plaintiffs as administrators to the estate of the late *Cecilia Mukatayali* was added in brackets against their names that appear in the heading of the Plaint, which had been omitted in the original Plaint. In my view, this only clarified the form without altering the substance of the Plaint because in both the original and amended Plaint, the Plaintiffs filed the instant suit in their capacity as administrators of the estate of the late *Cecilia Mukatayali.* I find that the actions of the plaintiffs in this regard did not amount to adding or substituting parties without leave of court. The first preliminary objection is therefore overruled.

## **Issue Two**: **Whether the Plaintiffs herein can progress this suit in the absence of their co-administrator, Kabwa Ibrahim**

18.**Section 2** of the **Succession Act, Cap 268** defines an "administrator" as a person appointed by a court to administer the estate of a deceased person when


there is no executor or executrix while **Section 176** of the **Succession Act, Cap 268**, provides that, *"the executor or executrix or administrator or administratrix, as the case may be, of a deceased person is his or her legal representative for all purposes, and all the property of the deceased person vests in him or her as such."*

19. **Section 268 (1)** (originally **Section 272** before the Revised Laws**)** of the **Succession Act, Cap 268** which provides that; -

*"When there are several executors or executrixes or administrators or administratrices, the powers of all may, in the absence of any direction to the contrary, be exercised by any one of them who has proved the will or. taken out administration."*

20. In the case of **Silver Byaruhanga vs. Fr. Emmanuel Ruvugwaho & Anor, SCCA No. 09 of 2014** the Supreme Court had the opportunity to interpret and apply the above Section of the Succession Act where *the Hon. Justice M. S. Arach Amoko, JSC* (as she then was) stated that; -

*"Interpretation and application of section 272 [now Section 268 (1)] of the Succession Act*

*This appeal necessitates the interpretation of section 272 of the Succession Act and its application to cases of conveyancing of estates of deceased persons.*

*Section 272 of the Succession Act reads as follows:*


*"272. Powers of several executors, etc. exercisable by one.*

*When there are several executors or administrators, the powers of all may, in the absence of any direction to the contrary, be exercised by any one of them who has proved the will or taken out administration."*

*I agree with both counsel that the language of the section is plain and unambiguous. Therefore, the literal rule of statutory interpretation applies. The rule is to the effect that if the words of a legislation are precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense. The words themselves in such a case best declare the intention of the legislature. Therefore, they must be given their natural and ordinary meaning. (See: Paul K Ssemwogerere v Attorney General (Supra)*

*In my view, the starting point is Section 185 (now Section 181) of the Succession Act which deals with the grant of probate. The section allows the grant of Probate to be made simultaneously or at different times where several executors are appointed by a deceased person. The section reads:*

*"185. Grant of probate to several executors When several executors are appointed probate may be granted to them all simultaneously or at different times."*


*When the literal rule of statutory construction is applied, Section 272 of the Succession Act means in my opinion, that where several executors are appointed by a deceased person in his will, any one of them who has proved the will and obtained a grant of Probate, may exercise the power of all of them, provided there is no direction in the will to the contrary or objection from his or her co-executors. In case of a person who has died intestate, where several people have applied for Letters of Administration, any one of them who has taken out Letters of Administration, may exercise the power of all, provided there is no direction to the contrary as well.*

*However, in the case of executors or administrators who have jointly applied for Probate or Letters of Administration and obtained the grant simultaneously or all together, they must act jointly at all times because Section 272 of the Succession Act does not allow them to act singly. Otherwise it would defeat the purpose for appointing joint executors or administrators. [Emphasis mine]."*

21. In arriving at its decisions, the Supreme Court was fortified by decision of the Court of Appeal for Eastern Africa in the case of **Henry De Souza Figueiredo vs. George Blacquere Talbot and Another [1962] EA 167**, where one of the joint executors *(George Blacquere Talbot* and *Betty Gwyneth Talbot*) who were registered as proprietors under a leasehold house and land in Kampala purported to sublet property to the appellant. By virtue of the


sublease agreement signed by only a single *executor (George Blacquere Talbot)*, the appellant registered a caveat on the title claiming that by virtue of an agreement dated May 23, 1953, he was interested as equitable mortgagee in the interest of the second respondent in the property. On appeal to the Court of Appeal for Eastern Africa, in the lead judgment which all the members of the Coram agreed with, *Sir Alistair Forbes, VP*, held that an equitable mortgage could not have been created since Mr. *George Blacquere Talbot* had not joined Mrs. *Betty Gwyneth Talbot* in depositing the duplicate certificate of title with the appellant with intent to create security thereon. It was further held that the deposit of the certificate of title would be ineffective to create an equitable mortgage unless both executors had joined in depositing the certificate of title.

22. Therefore, the position of the law, is that joint administrators must act jointly at all time because **Section 268 (1)** of the **Succession Act, Cap 268** does not allow them to act singly. Acting singly would defeat the purpose for having appointed them as joint administrators. In that regard, if one of the administrators withdraw from the conduct of a suit, it would mean that the legal representatives of the deceased person are no longer complete and as such, the remaining administrators would cease having the requisite *locus standi* to sustain the suit.


23. The term **"Locus standi"** was defined in Law society of *Kenya vs. Commissioner of Lands and others, Civil case no. 464 of 2000*, thus: *"Locus standi signifies a right to be heard, a person must have sufficiency of interest to sustain his standing to sue in court."* In **Dima Enterprises Poro vs. Inyani Godfrey, Civil Appeal No. 17 of 2016**, *Justice Mubiru* described locus standi thus: *"The terms locus standi literally means a place of standing. It means a right to appear in court and conversely to say that a person has no locus standi means that he has no right to appear or be heard in a specified proceeding."* Therefore, joint administrators of an estate of a deceased person only have *locus standi* to sue on behalf of an estate where they are all jointly pursuing the suit. In the absence of a joint effort, such persons may only bring a suit in their capacity as beneficiaries to the estate of a deceased person but not as administrators.

## 24.**Order 31 Rule 2** of the **Civil Procedure Rules** provides that;

## *"Joinder of trustees, executors and administrators*

*Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them; except the executors who have not proved their testator's will, and trustees, executors and administrators outside Uganda, need not be made parties."*

25. Therefore, the rules of procedure of this Court which are set out in mandatory terms also do not envision a situation where a single administrator would act


singly in a suit brought on behalf of an estate which has more than one administrator. I accordingly sustain and uphold learned Counsel for the Defendant's preliminary point of law to the effect that this suit is incurably defective for having been brought by two administrators yet the grant of letters of administration was given to three administrators. This suit is accordingly hereby struck out. I however make no order as to costs because this state of affairs was brought about, not by the present plaintiffs, but by the withdrawal from the suit by *Mr. Kabwa Ibrahim* (the 1st Plaintiff in this suit at that time).

I so order.

**Dated at Fort Portal this 11th day of June 2025**


Vincent Wagona

**High Court Judge**

**FORTPORTAL**

**Ruling delivered on the 19th day of June 2025**