Kakama v Asiimwe (Civil Appeal 7 of 2021) [2025] UGHCFD 2 (31 January 2025)

### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION)**

#### **CIVIL APPEAL NO. 07 OF 2021**

### **CHRIS KAKAMA ::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

### **VERSUS**

**JOSLYN ASIIMWE :::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **JUDGEMENT BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

#### **1.0 Introduction.**

- 1.1 This is an Appeal from the decision and orders of the Family and Children's Court (His Worship Nakibinge Latif Abubakar) in Family Cause No. 002 of 2021. The Grounds of the Appeal are set forth as follows; - **1. The learned Trial Magistrate erred in Law and in fact and exhibited bias by making reference to and taking into account in his ruling matters that were never pleaded, evidence led on them and never argued by the parties nor proved.** - **2. The learned Trial Magistrate erred in law in failing and/or refusing to take into account relevant evidence led by the Appellant when granting full custody of the Minors to the Respondent.** - **3. The learned Trial Magistrate erred in law and fact when he granted orders of maintenance against the Appellant that are excessive and vague.**


- **4. The learned Trial erred in law and fact when he granted visitation rights to the Appellant that are vague and unenforceable.** - **5. The learned Trial Magistrate erred in law and fact when he granted reliefs that were never sought by the Respondent.** - **6. The learned Trial Magistrate erred in law and fact when he granted costs to the Respondent against the Applicant.** - 1.2 The Appellant prayed for the following; - i. That the Appeal be allowed. - ii. That the orders of the lower court be set aside. - iii. That full custody of the minor children be granted to the Appellant. - iv. That the costs of this Appeal and lower Court be granted to the Appellant. - 1.3 The Respondent was served and an Affidavit of Service was filed at this court on 7th January 2022. The Respondent filed an Affidavit in Reply to the Appeal. - 1.4 The Appellant was represented by M/S KBW Advocates, Plot 10 Clement Hill Road, Kampala. - 1.5 The Respondent was represented by M/S Nyanzi, Kiboneka & Mbabazi Advocates, Plot 103 Buganda Road, Kampala.

# 2.0 **Background of the Appeal.**

2.1 The Appellant cohabited with the Respondent for 17 years and got 2 issues namely Aine Amani Kristi Mukama aged 7 years and Ahereza Jayden Mukama aged 5 years until 18th


December 2020, when the Respondent ran away from their home in Muyenga, Bukasa Kampala District. The children lived with the Respondent and the Appellant in Muyenga, Bukasa Kampala. The Appellant solely provided for their children's welfare and the Respondent would buy a few things for the children.

- 2.2 The children started residing with the Respondent from 19th December, 2020 at Kireka-Kasokoso slum/Kirinya Asante up to 21st January, 2021 and thereafter moved to Kavule slum in Matugga. The children are being moved from one congested place to another irrespective of their welfare and health risks associated with the COVID-19 Pandemic. - 2.3 The Respondent left the Appellant's home along with the children on her own accord and this distorted the children's physical, psychological, emotional and social welfare due to the drastic change from reasonably good social standards of living to a miserable life to the innocent children of tender years thus to say changing dwelling places from Muyenga Bukasa in Kampala City to Kireka-Kasokoso slum/Kirinya to Kavule Gombe in Matugga. - 2.4 The Respondent then filed an Application for the full custody of the children Anne Amani Kristi Mukama and Ahereza Jayden Mukama vide Family Cause No. 2 of 2021. The court therein awarded full custody of the children to the Respondent, visitation rights to the Appellant and ordered that the Appellant pay Maintenance of UGX 2,000,000/= (Two Million Uganda Shillings) for the children. The Appellant


being aggrieved by the decision of the court instituted this Appeal.

# **3.0 Lower Court's Decision.**

- 1. Full custody of Aine Amani Christ Mukama and Ahereza Jayden Mukama granted to their mother Joselyn Asiimwe until they are of Majority age. - 2. The Applicant shall be entitled to a monthly payment of Two Million Uganda Shillings (UGX 2,000,000/=) to cater for the daily feeding and general welfare of the two minors. - 3. The two parties shall take up other shared responsibilities in raising the children. - a) The Applicant shall take care of the general clothing and minor health care of the children until they are of majority age. The Respondent shall always contribute if the health bill is too high and beyond the means of the Applicant. - b) The Respondent shall take care of the school fees needs of the two minors in any reasonable good school that is in the proximity of the Applicant's residence. - c) The Applicant shall cater for their scholastic materials to help them in learning at school during the school term. - 4. The Respondent shall have monthly visitation rights at least 4 days in a month, preferably on weekends where convenient, at the mother's residence as long as the visitation does not interfere with the private life of the Applicant or in the Alternative have the Children spend with him a weekend once a month.


5. The Applicant awarded half the taxed costs of the Application.

## **4.0 Duty of the 1st Appellate Court.**

4.1 In agreement with both Counsel for the parties, the first Appellate Court has a duty to review the evidence of the case and to consider the materials before the trial Judge. The Appellate Court must then make up its own mind not disregarding the Judgment appealed from but carefully weighing and considering it. **Kifamunte Henry Vs. Uganda S. C. C. A. No. 10 of 2007 at p.5.**

## **5.0 Submissions by Counsel.**

5.1 The Appellant and the Respondent filed written submissions at this court to resolve this Appeal, which this Court has perused, analysed and considered in the determination of this Appeal. Every effort by counsel to have this matter resolved is thus appreciated by the court.

## **6.0 Preliminary Objection.**

- 6.1 The Respondent raised a preliminary objection to the effect that the Appellant's submission is not reliant on the certified record of Appeal but instead on the Memorandum and record of Appeal. - 6.2 This preliminary objection was read and understood by this court and is dismissed in light of **Article 126(2) (e) of the Constitution of the Republic of Uganda 1995** which


enjoins courts to administer Justice without undue regard to technicalities.

# **7.0 Resolution of the Grounds of the Appeal.**

**Ground 1& Ground 2 as Argued by the Appellant: The learned Trial Magistrate erred in Law and in fact and exhibited bias by making reference to and taking into account in his ruling matters that were never pleaded, evidence led on them and never argued by the parties nor proved.**

# **And**

**Ground 2: The learned Trial Magistrate erred in law in failing and/or refusing to take into account relevant evidence led by the Appellant when granting full custody of the Minors to the Respondent.**

- 7.1 On these grounds, the Applicant contended that the trial Magistrate's decision was influenced by factors such as the patriarchal nature of society and a perceived sensitivity to the financial constraints of ordinary citizens. The Applicant specifically took issue with the following statements from the Ruling: - "*In a patriarchal society, mothers have been bestowed the duty of looking after children."* (Page 223, Record of Appeal) - "…*their argument is insensitive to ordinary citizens with low incomes…"* (Page 223, Record of Appeal)


- 7.2 The Appellant argued that the trial Magistrate placed undue emphasis on these societal factors, disregarding the substantive issues raised by both parties during the trial. Instead of addressing the core matters in dispute, the Magistrate focused on societal structures like patriarchy, which, according to the Appellant, led to a violation of the right to a fair hearing as guaranteed under the law. - 7.3 The Appellant further submitted that the trial Magistrate erred by dismissing critical and credible evidence presented by the Appellant without providing any legal justification for doing so. The Appellant contends that this was a fundamental error, as the Magistrate relied on irrelevant matters not raised by either party during the proceedings. - 7.4 Specifically, the Magistrate rejected important evidence, including the voluminous affidavit in reply, phone records, and mobile money transaction attachments, stating:

"... I *failed to believe the averments of the voluminous affidavit in reply, the phone records, and mobile money transaction attachments of the Applicant, which are merely an expression of the Applicant and Respondent's failed sexual relations and an expression of anger from the estranged girlfriend."* (Paragraph 1, Page 224, Record of Appeal)

- 7.5 The Appellant maintains that this assessment was unjustified and disconnected from the legal issues at hand. - 7.6 The Appellant also asserted that the trial Magistrate improperly delved into the personal nature of the relationship between the Appellant and the Respondent, an issue that had no bearing on the central matter of the case the custody of


their children. The Appellant argued that this was an irrelevant line of inquiry and was not part of the issues to be determined. Despite this, the Magistrate erroneously concluded:

"…*the Applicant and the Respondent agreed to have a causal relationship that was doomed to have issues…"* (Page 224, Paragraph 2, Record of Appeal)

- 7.7 Such statements, according to the Appellant, were not only unnecessary but also prejudicial to the determination of the case. The Appellant submitted that the trial Magistrate's ruling was wholly disconnected from the facts, pleadings, and evidence presented during the trial. The Appellant argued that this misdirection amounted to a serious breach of the constitutional right to a fair hearing, as enshrined under **Article 28 of the Constitution of the Republic of Uganda, 1995**. By failing to properly evaluate the evidence and focusing on irrelevant and extraneous issues, the Magistrate's decision undermined the fairness of the proceedings and resulted in an unjust ruling. - 7.8 On her part, the Respondent submitted that the trial court considered the evidence of both parties and thus their right to a fair hearing was not breached in any way during the hearing in the Application. The Respondent also submitted that the trial court did not error in law and fact by exhibiting any bias when analysing the welfare principle that was at the centre of the issues raised in the Application for Custody in the affidavits of the parties.


### **Determination.**

- 7.9 This Court has carefully considered Grounds 1 and 2 of the appeal advanced by the Appellant, particularly the assertion that the trial Magistrate improperly relied on societal factors such as patriarchy and financial constraints, thereby undermining the principles of a fair hearing and legal reasoning. - 7.10 It is a well-established principle that judicial officers are not mere machines that apply the law in a vacuum. While decisions must be firmly rooted in legal principles, they must also be rendered with an appreciation of the socio-economic and cultural realities in which disputes arise. The law does not exist in isolation from the society it seeks to regulate, and courts must ensure that justice is dispensed in a manner that is both legally sound and practically just. - 7.11 The statements made by the trial Magistrate, particularly regarding the patriarchal nature of society and financial constraints, do not, in and of themselves, amount to judicial impropriety, but rather reflect how he came to his decision. The acknowledgement of societal realities does not indicate a disregard for the law but rather an effort to contextualize legal determinations within the framework of our society. The principle of judicial discretion allows a court to take judicial notice of prevailing societal conditions, provided such considerations do not undermine the law but rather inform a balanced and just resolution of disputes. - 7.12 The contention that the trial Magistrate disregarded critical evidence without justification must be examined in light of


the court's role as the primary evaluator of evidence. The trial Magistrate, having had the opportunity to assess the demeanour of witnesses and the credibility of documentary evidence, exercised discretion in weighing the probative value of the materials presented. The finding that certain pieces of evidence were not persuasive or were tainted by the personal nature of the parties' past relationship falls within the court's mandate to determine relevance and credibility. An appellate court will not lightly interfere with such factual findings unless they are shown to be perverse, unreasonable, or unsupported by the record.

- 7.13 Additionally, the Appellant argues that the trial Magistrate improperly delved into the personal nature of the parties' relationship. While it is true that judicial determinations should remain focused on the legal and factual issues presented, it is not uncommon for courts to consider the broader context in which disputes arise, particularly in matters concerning child custody. Family law cases, by their nature, require an assessment of not just legal rights but also the welfare and best interests of the child. To that extent, an inquiry into the nature of the parties' relationship may become relevant insofar as it affects parental responsibility and the child's well-being. - 7.14 With respect to the assertion that the trial Magistrate's reasoning violated the Appellant's right to a fair hearing under **Article 28 of the Constitution of the Republic of Uganda, 1995**, this Court finds no merit in the argument that the trial court acted in a manner that undermined procedural

 fairness. A fair hearing does not mean that a party is entitled to a ruling in their favour; rather, it guarantees that each party is given an opportunity to present their case and that the decision rendered is based on reasoned and lawful considerations.

- 7.15 However, this court disagrees with the learned Magistrate's conclusion on Custody. **Section 4 of the Children Act, Cap 62** provides for the right of every child to live with their parent or guardian. **Article 34(1) of the Constitution of the Republic of Uganda (1995)** provides for the right of all children to know and be cared for by their parents. - 7.16 This is emphasised in the case of **Otto Methodius Pacific Vs Edyline Sabrina Pacific (HCCA No. 88 of 2013)** in which it was established that granting sole custody should be an exceptional measure, reserved for situations where there is evidence of physical, sexual, or emotional abuse. - 7.17 It must be shown to the satisfaction of the court that that parent poses a threat to the well-being of the child in question. This was stated in the **matter of Twesiga (Infant) (Miscellaneous Application 4 of 2008) [2008] UGHCFD 1 (16 September 2008)** where it was established that while the primary right of the child is to grow up under the tutelage of his or her parents, or parent, for the obvious reason of emotional attachment; *if it is shown to the satisfaction of a competent authority, and in this case the Court, that it would serve the best interest of the child,* then it would be proper for this Court to make an order removing such child from the parent.


- 7.18 I have carefully reviewed the record of appeal, including all affidavit evidence submitted by both parties. Upon evaluation, neither party provided sufficient proof that the other poses a danger to the children. The court reiterates that no child should be separated from their parent against their will unless there is compelling evidence demonstrating that the parent or guardian presents a direct and substantial risk to the child's safety and well-being. - 7.19 On this basis, the court awards Joint Custody of the Children Aine Amani Kristi Mukama and Ahereza Jayden Mukama to the Appellant and the Respondent on the following terms: - 1. The Respondent shall have Custody of the Children during the School Term. - 2. The Appellant shall have Custody of the Children during the School Holidays. - 3. If or when the Children are placed in Boarding School, the Appellant and the Respondent shall split the School Holiday evenly between themselves. - 4. When the Children attain the age of 16, their ascertainable wishes on which parent they want to live with shall be considered. - 6.20. This effectively resolves ground 4 on the Trial Magistrate's decision on Visitation Rights.

# **8.0 Ground 3: The learned Trial Magistrate erred in law and fact when he granted orders of maintenance against the Appellant that were excessive and vague.**


8.1 On this ground, the Appellant argued that the trial Magistrate's decision as to maintenance was erroneous and vague as he did not legally define what an average family is and its legal basis to get the amounts mentioned during the ruling hence making it unreliable and vague. The trial Magistrate held that;

"…..an average family in Uganda consumes about 50,000/= on a daily basis for meals, electricity bills and other utilities…" **Paragraph 7 of the Trial Magistrate's Ruling.**

- 8.2 The Appellant argued that he did not know how the trial Magistrate came up with a vague and excessive figure. - 8.3 The Respondent on the other hand submitted that the Trial Magistrate did not error in law and fact in respect on the Maintenance orders. She argued that this was part of the Appellant's parental responsibility under **Section 6 of the Children Act, Cap. 62** which provides that it shall be the duty of the parent to maintain their child.

## **Determination.**

- 8.4 **Section 5 of the Children Act, Cap. 62** provides that; "It shall be the duty of a parent, guardian or any person having custody of a child to maintain that child and, in particular, that duty gives a child the right to- - (a) education and guidance; - (b) immunisation - (c) adequate diet; - (d) clothing; - (e) shelter; and - (f) medical attention.


- 8.5 **Article 31(4) of the Constitution of the Republic of Uganda 1995** stipulates the duty of parents to provide and care for their children. - 8.6 The Court finds that when taking into account the costs of feeding, housing, and other essential needs, the amount determined by the learned Trial Magistrate is not excessive but rather reasonable under the circumstances. The estimate of UGX 50,000 per day for meals, electricity, and utilities is a fair approximation of the financial demands of raising a child in an average Ugandan household. While the Trial Magistrate did not explicitly define the legal basis for this amount, it is evident that such expenses are necessary to ensure the child's well-being and maintain a standard of living that aligns with reasonable expectations. The Court, therefore, does not find the amount arbitrary or exaggerated but rather a reflection of the basic costs associated with childcare. - 8.7 However, the Court emphasizes that the duty to maintain a child is a shared responsibility between both parents. Parental responsibility is not the sole obligation of one party but must be apportioned fairly, taking into account the financial capacity of each parent. While the Trial Magistrate's ruling recognized the child's needs, it is imperative that both parents contribute to meeting these expenses in a just and equitable manner. The Court, therefore, finds that the financial burden should not be placed solely on one parent but should be distributed between both parties to ensure the child receives adequate care and support from both parents.


- 8.8 Accordingly, the court varies the maintenance orders in Family and Children's Court Family Cause No. 2 of 2021, giving due regard to the current financial capacity of both parties to ensure the enforceability of the court's orders. Maintenance shall be as follows; - 1. Each party shall maintain the children while in their care. This shall include food and housing. - 2. The Appellant shall pay the children's school and medical fees. - 3. The Appellant shall cater for the children's school requirements. - **9.0 Ground 5: The learned Trial Magistrate erred in law and fact when he granted reliefs that were never sought by the Respondent.** - 9.1 The reliefs in question in ground 5 as submitted by the Appellant are regarding the Custody, Maintenance and Visitation Rights. The court has resolved those above. Costs will be resolved in Ground 6 below. - **10.0 Ground 6: The learned Trial Magistrate erred in law and fact when he granted costs to the Respondent against the Applicant.** - 10.1 The Applicant submitted that while alive to the fact that the grant of costs is at the discretion of the court, the said discretion ought to be exercised Judiciously considering all facts and the Justice of the case. - 10.2 The Appellant argued that the Trial Magistrate did not consider the principle that in order to reduce acrimony


between the parents, no order should be made as to costs. The Appellant relied on the case of *Otto Methodius Pacific Versus Edyline Sabrina Pacific (***HCCA No. 88 of 2013).**

- 10.3 The Trial Magistrate granted the Respondent half of the taxed costs of the Application which according to the Appellant was a grave error in law and fact and not only an injustice to the Appellant but also the children. - 10.4 The Respondent on her part submitted that the court rightly used its discretion under **Section 27 of the Civil Procedure Act, Cap. 282.**

#### **Determination.**

- 10.5 **Section 27 of the Civil Procedure Act, Cap. 282** provides that; - 1. Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent those costs are to be paid, and to give all necessary directions for the purposes aforesaid. - 2. The fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of the powers in subsection (1); but the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. - Page **16** of **19** 10.6 The effect of the provisions of **Section 27** is that the judge or court dealing with the issue of costs in any suit, action, cause

or matter has absolute discretion to determine by whom and to what extent such costs are to be paid. **Impressa Infortunato Federici Vs Irene Nabwire (Civil Appeal 3 of 2000) 2001 UGSC 1 (2 October 2001) (2)**

- 10.7 The learned Magistrate exercised his discretion basing on the fact that the parties should have amicably resolved their issues and known their responsibilities in regard to their children. The factors which determine the exercise of the discretion in favour of one party and against another in a case do not necessarily apply to any other case. If, there were mathematical formula, it would no longer be discretion. **A. H. O Oder, JSC Impressa Infortunato Federici Vs Irene Nabwire (Supra).** - 10.8 However, **Section 3 of the Children Act, Cap. 62** provides that the welfare of the child shall be of paramount consideration whenever the State, a court, a tribunal, a local authority or any person determines any question concerning the upbringing of a child, the administration of the property of a child, or the application of any income arising from that administration. - 10.9 In matters concerning children, the paramount consideration is their best interests, as consistently upheld by this Court. In determining any issue affecting a child, including the costs of an Application for Custody, the Court must act as a wise and responsible parent would, prioritizing the child's welfare above all else. As established in **Nakaggwa Vs Kigundu (1978) HCB 310**, the guiding principle is to ensure that the decisions made serve the child's well-being rather than


penalizing either parent. An award of costs in a custody dispute risks discouraging genuine efforts to seek the best possible arrangements for the child and may create a financial strain that ultimately affects the child's welfare.

- 10.10 Furthermore, imposing costs in custody proceedings could deter parents from approaching the courts to resolve disputes amicably, forcing them to settle matters informally in ways that may not serve the child's best interests. The purpose of such proceedings is to ensure that the child is placed in a stable and supportive environment, not to impose a financial burden on either party. The Court must be cautious not to turn custody disputes into adversarial contests with financial consequences that overshadow the child's needs. - 10.11 Accordingly, the award of costs in the Application for Custody is not in the best interests of the children. The award of half of the taxed costs is hereby set aside.

# **11.0 Conclusion.**

- 11.1 In the final result the court finds as follows; - 1. The Appeal partially succeeds. - 2. The Appellant and the Respondent shall have Joint Custody of the Children Aine Amani Kristi Mukama and Ahereza Jayden Mukama on the following terms; - a) The Respondent shall have Custody of the Children during the School Term. - b) The Appellant shall have Custody of the Children during the School Holidays.


- c) If or when the Children are placed in Boarding School, the Appellant and the Respondent shall split the School Holiday evenly between themselves. - d) When the Children attain the age of 16, their ascertainable wishes on which parent they want to live with shall be considered. - 3. The Appellant and the Respondent shall both maintain the children on the following terms; - a) Each party shall maintain the children while in their care. This shall include food and housing. - b) The Appellant shall pay the children's school and medical fees. - c) The Appellant shall cater for the children's school requirements. - 4. The award of half of the taxed costs to the Respondent in Family Cause No. 21 of 2021 at the Family and Children's Court is hereby set aside. - 5. Each party shall bear its costs both in Family Cause No. 2 of 2021 and in the current Appeal.

## **I so Order.**

*Dated, Signed and Delivered by email this 31st day of January, 2025.*