Kahaawa v Muhumuza (Civil Revision 3 of 2024) [2024] UGHC 1152 (13 December 2024)

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

**CIVIL REVISION APPLICATION NO.0003 OF 2024** [Formerly Masindi Civil Revision No. 0009 of 2021]

KAAHWA DAVID:::::::::::::::::::::::::::::::::::

### **VERSUS**

**EXAMPLE 11.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1** MUHUMUZA HAKIM::::::::::::::::::: BEFORE: HON. JUSTICE BYARUHANGA IESSE RUGYEMA

# **RULING**

- $[1]$ The Applicant in this application is seeking for the following orders: - The record of proceedings, orders and ruling of H/W Opio $(a)$ James Esq. Chief Magistrate, Hoima in Misc. Cause No. 21 of 2021 (Muhumuza Hakim Vs Kiiza Joan & ors) delivered on the $25/8/2021$ be called for and examined by the court for purposes of satisfying itself as to the correctness, legality, propriety, justice and regularity of the same. - The findings, order for distress for rent and Special $(b)$ certificate issued by H/W Opio James Esq. Chief Magistrate, Hoima in Misc. Cause No.21 of 2021 be revised, quashed and/or set aside. - The Respondent meets the costs of this application. $(c)$ - The application was supported by the affidavit of **Kaahwa David**, $[2]$ the Applicant and opposed by the affidavit in reply deposed by Muhumuza Hakim, the Respondent. The Respondent however filed submissions in person and raised a preliminary objection to the effect that the affidavit in support of the application deposed by the Applicant is tainted with material falsehoods that render the Applicant's application defective and bad in law. - The Respondent submitted while relying on **Administrator** $[3]$ General vs Nsangi Hadija & Anor, H. C. M. A. No. 95/2010 and

Hon. Anifa Bangirana Kawooya vs A. G. & Anor, M. A. No. 46 of **2010 (CA)** where it was held that an application supported by an affidavit tainted with lies is bound to fail and that court cannot condone an illegality and argued that in this case, it was a lie that Applicant demanded or required to pay was shs. the $30,000,000/$ = in rent arrears and secured an interim order which caused an injustice to the intended beneficiaries of the estate of the late Haiiati Zuliva.

- I have perused the affidavit in support and reply in the present $[4]$ application and before the lower court and found that in the lower court, the Respondent was seeking recovery of the rent arrears amounting to shs. $30,000,000/=$ for 6 months as of March, 2021 and the Applicant replied that the alleged rent arrears do not exist for the sum rent was paid to a one **Acen Jane**, the known landlord. The Applicant in the lower court deponed an affidavit as follows: - Para 2: "That I am one of the tenants in the said property having lived in it for over 20 years (copies of tenancy agreement and receipts of payment is hereto attached)". - Para 9: "That we do not owe the Applicant (present Respondent) any amount of money and do not know him and neither are we indebted to the estate as we have been promptly paying rent to **Acen Jane** who is the rightful heir of the suit land". - Clearly, the above show that the dispute is about who is the $[5]$ rightful landlord to receive the rent. The Respondent in his application for distress for rent in the lower court had attached to the application a letter (Annex. " $B$ ") addressed to the tenants of the property in question directing that all the rent be paid to him as landlord/administrator. In view of the above, I have not been able to appreciate the Respondent's preliminary objection that the Applicant's affidavit is riddled or tainted with material The alleged material falsehoods have not been falsehoods. pointed out for court to consider. I accordingly overrule the preliminary objection.

# Background.

- The Respondent in the lower court filed an application for $[6]$ distress against 7 Respondents who are tenants in the suit property comprised in Plot 7 Wright Road, Hoima City which belonged to the late Hajjati Zuliya Kabagahya Omari who died in 2007. Letters of Administration vide Kampala A. C 785 of 2007 were granted to the **Respondent** (Grandson) and a one Hawa Kabonesa Olar (Daughter) who later passed on leaving the Respondent as the sole administrator. Upon the death of Hawa Kabonesa Olar, her daughter Acen Jane applied and obtained Probate vide Masindi A. C. No. 25 of 2021 in respect of her mother's estate. According to the Applicant rent was and is being paid to the said Acen Jane. - Upon the application by the Respondent for a Certificate to levy $[7]$ distress for rent to recover the rent arrears from the Applicant, the trial Magistrate granted the application on the grounds that upon the demise of the co-administrator of the estate of the late Kabagahya Zuliya, the Respondent for all intents and purposes remained as the sole administrator seized with all lawful powers to administer the estate for the benefit of the beneficiaries. - The Applicant was aggrieved by the orders and ruling of the trial $[8]$ Magistrate delivered on 25/8/2021 finding him liable for rent arrears in the sum of **Ugx. 30,000,000/=** and filed this application for revision.

# **Determination of the application.**

According to Munobwa Mohamed vs Uganda Muslim Supreme $[9]$ Council, H. C. Civil Revision NO. 010/2006, in cases where the High Court exercises its revision jurisdiction, its duty entail, examination of any proceedings before it for purposes of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any

proceedings before it. Decisions are revised whenever the trial Magistrate fails to exercise his/her jurisdiction or where he/she acts illegally or with material irregularity or injustice, **S.83 CPA.**

- [10] Counsel for the Applicant, Mr. Kasangaki Simon submitted that it is not in dispute that the Applicant and others are tenants on property comprised in Wright Road, LRV 1060, Folio 15 situate at Park Cell, Hoima District. That the premises in question originally belonged to the late Hajjati Zuliya Kabagahya Omari and that the deceased Hawa Kabonesa Olar, being her daughter. Counsel contended that the said Hawa Kabones Olar having passed on, the property devolved to her daughter, Acen Jane who holds probate of her mother's estate under MSD Probate Cause No. 25 of 2021 to whom the Applicant and others have That therefore. been paying rent and have never defaulted. having effected payments to the probate holder, the obligation of the Applicant was discharged and the finding and order of the trial Magistrate directing him to pay rent to the Respondent amounted to double payment and is prejudicial to the Applicant. - [11] The Respondent in person on the other hand, submitted that as the surviving sole administrator of the estate of the late Hajjati Kabagahya Zuliya Omari is entitled to the rent of the suit property and Hawa Kabonesa who was an administrator could not bequeath the property she never owned to her daughter **Acen Jane** who the Applicant is paying rent. - [12] It is the view of this court that it is the law, that when Letters of Administration are granted to more than one person and one of the co-administrators die, then the grant becomes useless and inoperative, H. C. M. A. No. 053 of 2016, see also S.272 of the **Succession Act.** Once a grant becomes inoperative, then in the absence of a fresh administrator, it reverts to the original deceased owner. - [13] In the instant case, I find that there is no dispute that the suit property initially belonged to Hajiati Zuliya Kabagahya Omari.

Upon her demise, her daughter, Hawa Kabonesa Olar and the Respondent, a grandson became joint administrators of the estate. Unfortunately, the deceased daughter, Hawa Kabonesa Olar, a co-administrator with the Respondent also passed on leaving the **Respondent** as the surviving administrator. The grant having become useless and inoperative by virtue of the death of the co-administrator, in the absence of a fresh grant to administer the estate of the late Hajjati Zuliya Kabagahya, the property reverted to the un administered estate of the deceased and therefore devolved to her daughter, the late Hawa Kabonesa Olar who by WILL, bequeathed it to her daughter Acen Jane, the current administrator of her estate.

- [14] As a result of the above, I find that the trial Magistrate erred in law and fact when he found that the Applicant was liable to the Respondent rent arrears in the sum of $Ugx$ 30,000,000/= yet it was not in dispute that he was paying the rent due to Acen Jane, the administrator of the estate of Hawa Kabonesa Olar whom the property devolved to when the joint grant she held with the Respondent became useless and inoperative upon her demise. The finding and order of the trial Magistrate directing him to pay the Respondent rent of the estate premises would be double payment since he had paid the rent to the current estate administrator, Acen Jane and therefore, an injustice would occasion the Applicant. - [15] As to whether the trial court acted with material irregularity when it struck out the affidavit of **Acen Jane**, the legal representative of the estate of the late **Hawa Kabonesa** to whom all tenants paid rent fully, I find that no miscarriage of justice occasioned the Applicant as a result of the striking out of her affidavit since it was not in dispute that indeed, the Applicant was paying rent to the said **Acen Jane**. - [16] The Respondent claimed that on the authority of **Makula** International vs His Eminence Cardinal Nsubuga [1982] HCB 11, the letters of probate vide A. C. No. 25 of 2021 in favour of

**Acen Jane** relied upon by the Applicant was an abuse of court process for lacking a death certificate, a newspaper advert and was issued within 4 days from the date of its filing on $26/3/2021$ . However, upon perusal of **A. C. No. 25 of 2021**, I find that this is not correct. The application for Letters of Probate was originally filed in the Family Division, Makindye under A. C. No. 948 of **Medical** certificate 2020 with $\mathbf{a}$ cause $\quad\text{ of }\quad$ death dated $13/11/2014$ , application Newspaper advert Daily Monitor of $17/12/2020$ and the Grant was issued on $31/3/2021$ upon transfer to Masindi High Court vide A. C. No. 25 of 2021.

- [17] In the premises, I find the Respondent's complaint regarding the validity of the probate in favour of Acen Jane misplaced and without any merit. - [18] Lastly, I find that the trial Magistrate acted with material irregularity when he issued a Certificate of distress for rent against the Applicant when there was an unresolved dispute before him regarding who was the rightful landlord so as to form the basis of landlord tenant relationship and without a list of properties that were the subject of distress for rent being disclosed. - [19] In the premises, I find that the application has merit. The record of proceedings, ruling and orders for distress for rent and Special certificate of the trial Magistrate in Misc. Cause No. 21 of 2021 are accordingly revised and set aside for being grossly irregular and occasioned a miscarriage of justice to the Applicant. - [20] The Applicant as the successful party in this revision application is granted costs both in the High Court and in the lower court.

Dated at Hoima this $13^{\text{th}}$ day of December, 2024.

**Byaruhanga Jesse Rugyema JUDGE**