In the matter of an Application for revocation of the Letters of Administration & a fresh grant instead to Kajumba Gorretti (Miscellaneous Application 75 of 2023) [2024] UGHC 842 (29 August 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL MISC. APPLICATION NO. 075 OF 2023 ARISING FROM ADMINISTRATION CAUSE NO. 121 OF 2007)**

### **IN THE MATTER OF THE ESTATE OF THE LATE JULIUS KAGABA AND**

#### **IN THE MATTER OF APPLICATION FOR REVOCATION OF THE LETTERS OF ADMINISTRATION AND A FRESH GRANT INSTEAD TO KAJUMBA GORRETTII**

#### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **EX PARTE RULING**

The applicant, Kajumba Gorrettii, filed this *ex parte* application by way of notice of motion under section 98 of the Civil Procedure Act Cap. 282, sections 235 and 273 of the Succession Act Cap. 268, and Order 52 Rule 1, 2 & 3 of the Civil Procedure Rules seeking the following orders:

- a) That letters of administration granted in Administration Cause No. 121 of 2007 be revoked. - b) That the applicant Kajumba Gorrettii be granted fresh letters of administration alone in respect to the estate of the late Julius Kagaba. - c) That costs of this application be borne by the estate of the late Julius Kagaba.

#### **Background**

The applicant together with one Tinkamalirwe Boneface applied for and were appointed as administrators of the estate of the late Julius Kagaba formerly of Kanyansinga village, Kiyomba Parish, Buheesi Subcounty in Kabarole district vide administration Cause No. 121 of 2007.

Ruling of Hon. Justice Vincent Emmy Mugabo Page **1** of **9**

Unfortunately, the co-administrator, Tinkamalirwe Boneface, passed away on the 6th of October 2018 before distributing the entire estate of the deceased. This application seeks for revocation of the said letters of administration and for a fresh grant to be issued to the applicant alone.

## **Grounds in Support of the Application**

The grounds in support of the application are set out in the affidavit of Kajumba Gorrettii, the applicant, the gist of which is that;

- a) The applicant jointly with Tinkamalirwe Boniface applied for and were granted letters of administration in respect of the estate of the late Julius Kagaba vide Administration Cause No. 121 of 2007 on the 18th of February 2008. - b) Unfortunately, Tinkamalirwe Boniface, the co-administrator of the estate passed away on the 6th of October 2018. The applicant attached a copy of a death certificate to the affidavit in support of the application. - c) The late Julius Kagaba owned a bank account in Stanbic Bank where his pension is paid but the applicant is unable to access the same account because Tinkamalirwe Boneface is still on the grant of the letters of administration and the Bank has refused the applicant to access the said Bank Account. - d) The letters of administration vide Administration Cause No. 121 of 2007 should be revoked and fresh ones issued name of the applicant. - e) It is fair, just and equitable that this honourable court be pleased to grant this application and amend the grant to reflect the applicant as a surviving administrator.

There is a report of the family meeting filed in this court on the 16th of January 2024 where the estate beneficiaries consented to the filing of this application in a meeting held on the 30th of November 2023 and recommended that the applicant be appointed a single administrator.

The applicant also filed a supplementary affidavit as directed by this court clarifying why the estate in issue was not distributed. In the supplementary affidavit, the applicant stated:

- a) That after acquiring letters of administration, the administrators withdrew UGX. 30,000,000/= as a gratuity of the deceased and distributed the same among the beneficiaries, equally, and an inventory was filed in this court. - b) However, the co-administrator died before distributing customary land among the beneficiaries and the same remains undistributed. - c) The Ministry of Education keeps depositing the pension entitlements on the estate account No. 9030014246230 in Stanbic Bank and the account was operated by the two administrators. - d) The administration of the estate has not been completed due to the death of the co-administrator. - e) If this application is granted, it will enable the applicant to distribute the remaining estate.

### **Representation and hearing.**

Mr. Robert Kyaligonza represented the applicant. Counsel for the applicant filed written submissions which I will not reproduce herein but have considered in this ruling.

## **Issues for determination**

- 1. Whether the application raises sufficient grounds for revocation of the letters of administration and the issuance of a fresh grant to the estate of the late Julius Kagaba. - 2. What remedies are available to the applicant?

## **Consideration by Court**

# **Issue 1: Whether the application raises sufficient grounds for revocation of the letters of administration and the issuance of a fresh grant to the estate of the late Julius Kagaba.**

This application essentially seeks revocation of the letters of administration Vide Administration Cause No. 121 of 2007 granted by this court on the 18th of February 2008 to the applicant jointly with Tinkamalirwe Boniface (now deceased) in respect of the estate of the late Julius Kagaba formally of Kanyasinga village, Kiyombya Parish, Buheesi sub-county in Kabarole district and issue fresh letters of administration to the applicant.

I notice that the application was filed under section 98 of the Civil Procedure Rules and sections of the Succession Act which have been altered by the 7th Revised Edition of the Principal Laws of Uganda.

Section 230(1) of the Succession Act Cap. 268 provides that a grant of probate or letters of administration may be revoked or annulled for justice cause. "Just cause" includes, inter alia, situations where the grant has become useless and inoperative through circumstances *(see: section 230(2)(d) of the Succession Act Cap 268).*

In the instant case, letters of administration in respect to the estate of the late Julius Kagaba were granted by this court on the 18th of February 2008 to the applicant and Tinkamalirwe Boneface who unfortunately died on the 6th of October 2018. A death certificate No. 1610555 of Tinkamalirwe Boneface was attached to the affidavit in support of the application

In her affidavit in support, the applicant stated that the late Tinkamalirwe Boneface died before the administrators had distributed the entire estate of the deceased and that the deceased left an operational Bank Account in Stanbic Bank where the deceased pension is posted and the applicant can't access the account as a single administrator.

In the circumstances, the death of Tinkamalirwe Boneface rendered the joint management of the estate of the late Julius Kagaba inoperative which is detrimental to the interest of the beneficiaries.

*In the matter of the estate of the late Etadu Eliphas Misc. Application No. 006 of 2024*, Hon Justice Dr Henry Peter Adonyo held that:

> *"In law, the object of the power given to the court to revoke an earlier but now inoperative grant is to ensure that the due and proper administration of the estate and protection of the interests of those beneficially interested."*

Quoting *In the Goods of William Loveday [1900] Page 154*, the learned judge went on to state that:

> *"The real object which court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto, and I can see no good reason why the court should not take fresh action in regard to the estate where it is made clear that the previous grant has turned our abortive or inefficient. If the court has in certain circumstances made a grant in the*

*belief and hope that the person appointed will and fully administer the estate and it turns out that the person so appointed will not or cannot administer, I do not see why the court should not revoke an inoperative grant and make a fresh grant."*

This principle is instructive. In the instant case, this court made a grant in belief and hope that the two persons, the applicant and Tinkamalirwe Boneface (now deceased) would jointly manage and administer the estate of the late Julius Kagaba properly, but the circumstances have changed making the administration of the estate impossible due to the death of a co-administrator.

The death of the co-administrator renders the letters of administration so granted by this court inoperative *(see: In the matter of the estate of the late Javuru Apollo Micheal HCMA No. 053 of 2016).* Since in the instant case, the applicant has proved, on the balance of probability, that indeed Tinkamalirwe Boneface passed away, I do not see any reason why the letters of administration granted by this court should not be revoked.

In the premises, I accordingly exercise my powers under section 230(2)(d) of the Succession Act and revoke the earlier grant of letters of administration vide Administration Cause No 121 of 2007 on the basis that the said letters of administration became inoperative due to the death of the co-administrator, Tinkamalirwe Boneface, and the same estate can longer be managed appropriately in the interests of the beneficiaries under that grant.

On the issuance of the new grant, section 230(5) of the succession Act Cap 268 provides that:

*"The court may on the revocation of the probate or letters of administration grant probate or letters of administration to another person where the court determines that such a person is a fit and proper person to be granted probate or letters of administration under this Act."*

The import of the foregoing provision is that this court has the discretion to grant letters of administration to the applicant where it is satisfied that the applicant is a fit and proper person and there is no objection raised to that effect.

In the case of *Nyakubiiha Murro Friday & 4 Others v. Richard Mwirumubi HCCS No. 43 of 2019***,** this court held that the determination of who is a fit and proper person to be granted letters of administration is left to the discretion of the court. In that case, the plaintiffs were held to be fit and proper persons because they had been approved by the majority of the beneficiaries to be the administrators, they demonstrated to have preserved the estate of the deceased and had secured a letter of no objection from the Administrator General as required by the law.

In determining whether a grant should be issued, courts have emphasized the need to evaluate the evidence properly and address issues related to fraud and compliance with legal requirements. The court also needs to consider whether the beneficiaries of the estate still recommend the applicant to continue administering the estate of the deceased **(see:** *In the matter of the estate of the late Etadu Eliphas (supra).*

In the instant case, the applicant has already gone through the process of granting the letter of administration vide Administration Cause No. 121 of 2007 and the grant was made to her as a fit and proper person to comanage the estate.

The report on the estate of the late Julius Kagaba filed in this court on the 16th of January 2024 following a family meeting held on the 30th of November 2023 shows that all the beneficiaries consented to this application for a fresh grant to the applicant and recommended that the applicant be appointed as a sole administrator of the estate. The court record in Administration Cause No. 121 of 2007 shows that the applicant filed an inventory of the estate of the late Julius Kagaba in this court on 10th March 2021 stating how she has managed and distributed the estate of the deceased thus far.

In her supplementary affidavit, the applicant stated that the coadministrator died when they had distributed the gratuity of the deceased to the beneficiaries but there is one customary piece of land that has not been distributed. She also stated that the pension of the deceased is posted on the estate's Bank Account, and she needs fresh letters of administration to access it.

In the circumstances, I do not doubt that the applicant is a fit and proper person to be issued a fresh grant of letters of administration for the estate of the late Julius Kagaba.

Accordingly, this application is hereby granted with the following orders:

(a)Letters of administration for the estate of the late Julius Kagaba Vide Administration Cause No. 121 of 2007 issued in the names of the applicant and Tinkamalirwe Boneface are hereby revoked.

- (b) A fresh and single grant of letters of administration is hereby issued to the applicant, Kajumba Gorrettii, being the only surviving administrator of the late Julius Kagaba. - (c) No order as to the costs of this application.

It is so ordered.

Dated at Fort Portal this 29th day of August 2024.

**Vincent Emmy Mugabo**

**Judge**