Kagimu v Sansa & Another (Miscellaneous Application 146 of 2022) [2024] UGHC 320 (9 January 2024)

### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT MASAKA**

# **MISCELLANEOUS APPLICATION NO. 146 OF 2022**

# **(ARISING FROM CIVIL SUIT NO. 41 OF 2018)**

# **REBECCA KAGIMU NAKANGU ……………………………………… APPLICANT**

# **VERSUS**

# **1. SANSA RICHARD**

# **2. MAURICE KAGIMU PETER KIWANUKA…………..……….. RESPONDENTS**

### **RULING**

*Hon. Lady Justice Victoria N. N. Katamba*

# **BACKGROUND**

The 1 st Respondent instituted civil suit No. 41 of 2018 against the 1st Respondent and a monetary sum of UGX. 873,000,000/= was awarded to the 1st Respondent the same being proceeds of Judgment under the claim.

A notice to sale Kibuga Block 8 Plot 541 under execution proceedings has since been advertised by the 1st Respondent's agents. This property is registered in the names of the 2nd Respondent. The said advert caught the attention of the Applicant who is on record as being the legally married wife of the 2nd Respondent and claims an interest in the property as her matrimonial home.

The Applicant was unhappy with the mode of execution that was elected by the 1st Respondent thus filed the instant application of objector pleadings to stop the process.

Representation

The Applicant was represented by **M/s Lukwago & Advocates**.

The Respondents was represented by **M/s Nakasagga & Co. Advocates.**


#### **APPLICANT'S SUBMISSIONS**

It was submitted for the Applicant that she was never a party to the suit in which the Respondents obtained Judgment. That the suit land is her matrimonial property on which she stays with the 2nd Respondent and five of her minor children. The youngest of the children was reported to be 3 years at the time of filing the instant Application.

The Applicant argues that if execution against her matrimonial property is permitted to issue, her children of minority age, the 2nd Respondent and herself would be rendered homeless and left destitute.

In conclusion, she prayed that this Honourable Court be pleased to set aside the said execution with costs to her and that the 1st Respondent be directed to find another more appropriate mode of execution.

#### **RESPONDENTS SUBMISSIONS.**

The 1 st Respondent submitted that the Applicant and her husband are well known to him. He stated that they have an alternative home in Bukomansimbi of over 100 acres of land which the 2nd Respondent inherited from his father, the Late Hon. Benedicto Kiwanuka.

The 1 st Respondent further argued that whereas the Applicant and the 2nd Respondent have ever used the suit land at Kabuusu in 2016 as their matrimonial property, they no longer use it for the same.

The 1st Respondent submitted that because the 2nd Respondent only got registered as proprietor to the suit land in 2021, it is not true that the Applicant and her family have been in occupation of the suit property since 2009.

The 1st Respondent also stated that the 2nd Respondent may even dispose of the suit property and leave him with nothing to attach in execution to recover his proceeds of the Judgment.

In conclusion the 1st Respondent submitted that the Applicant has no interest in the suit property but is conniving with the 2nd Respondent to ensure that he never recovers his monies. He prayed that this court be pleased to dismiss the instant Application.


#### **DETERMINATION BY COURT**.

# **ISSUE:** *Whether the Applicant is entitled to an order of release of the suit property from attachment?*

The law on objector proceedings has long been established. The sole question to be investigated is one of possession. The question to be decided is whether at the date of attachment, the judgment debtors or the objector was in possession. Where the court is satisfied that the property was in the possession of the objector, it must be found whether he or she held it on his/her own account or in trust for the Judgment debtor. The sole question to be investigated is, thus one of possession *(See Haril & Co. vs. Buganda Industries Ltd [1960] EA 318 and Trans Africa Assurance Co. Ltd vs. NSSF, SC. Civil Appeal No.1 of 1999)*

*Order 22 rule 56 of the Civil Procedure Rules requires the objector to adduce evidence to show that at the date of attachment he/she had "a measure of interest" in the property be it legal or equitable.*

The objector claimed that the suit land is her matrimonial property from which her children aged between 17 and 3 years, the 2nd Respondent and herself derive sustenance.

To prove that she is the legally married wife of the 2nd Respondent she attached her marriage certificate dated 1st October 2005 as annexure "A" her affidavit in support of the motion. According to this certificate, the Applicant's marriage was solemnized at Kitovu Cathedral parish.

The term possession as used in *Order22 r57 denotes physical relation of control exercised by an individual over a given thing or property*. Whereas the 1st Respondent states in paragraph 11of his affidavit in reply that the Applicant does not have any interest, equitable or legal in the property under attachment, he categorically stated under paragraph 9 of his reply, that the Applicant and the 2 nd Respondent recently occupied the said property in 2016 after failing to clear their many debts. This averment confirms to this court that the Applicant and the 2nd Respondent made a decision in 2016 to turn the property under attachment into their matrimonial property.

In his affidavit in reply, the 1st Respondent informed this Honourable Court that the suit property, among others is one of the properties that the 2 nd Respondent inherited from his father the Late Hon. Benedicto Kiwanuka. The above information discloses to this Honourable Court that the


event of registration of the 1st Respondent as proprietor to the suit land on 16th of April 2021 at 12:14pm was a confirmation that the suit property was a beneficial share of the 1st Respondent.

The 1st Respondent owned the suit property before 16th of April 2021 but did not transfer it into his names until 2021. At this time, he was already residing in the house as his matrimonial property. The use of this property as matrimonial property by the said spouses was confirmed by the 1st Respondent in his affidavit in reply.

The 1st Respondent also argued that since the Applicant had not adduced any evidence of contribution to the establishment of the suit property, she had no interest in the same. With respect to Counsel, I disagree with this argument because there are many non-monetary contributions that a spouse may make for the general wellbeing of the entire family in a matrimonial home. This court is bound to take Judicial notice of the same. See also the famous Kenyan case of *Kivuitu vs. Kivuitu which was cited with approval in Julius Rwabinumi vs. Hope Bahimbisomwe Supreme Court Civil Appeal No. 10 of 2009.*

Further, the law has evolved to protect family residences in newer enactments like the *Land Act Cap. 227 in S. 39(1)(a) which provides that no person shall sell, exchange, mortgage, pledge or lease any family land except with the prior consent of his or her spouse.* To allow creditors to execute decrees against family residences of their debtors would create a bypass to the Land Act, for mischievous spouses, to borrow well knowing that they will not pay and by implication pledge their residences to the detriment of the other innocent family members.

On the balance of probabilities, I am convinced that the property that is currently the subject of execution and objector proceedings is the matrimonial property of the Applicant and the 2nd Respondent.

In conclusion, I find that the Applicant has an interest in the suit property as her matrimonial property and she is entitled to the release of the property from execution. The Applicant has proved that she had physical possession and control of it at the time of attachment. The Application is allowed with no order as to costs.

Obiter:


I note that the 1st Respondent has knowledge on the 2nd Respondent's estate that does not constitute matrimonial property. I advise him to identify any such other property suitable for attachment in execution. The suit property is not suitable for attachment because it is the Applicant's current residence and an order of attachment would deprive the family of their home.

I so order.

Orders;

- 1. The Applicant is entitled to the release of the property from execution. - 2. The Application is allowed with no order as to costs.

Dated this 09th day of January, 2024

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# **HON. LADY JUSTICE VICTORIA NAKINTU NKWANGA KATAMBA**