Kakembo & 4 Others v Nakato (Civil Suit 305 of 2022) [2025] UGHCFD 21 (30 May 2025)

## THE REPUBLIC OF UGANDA

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

#### CIVIL SUIT NO. 0305 OF 2022

1. KAKEMBO SAMWIRI 2. BABIRYE SYLVIA 3. KINTU NORAH 4. NAKAZI ERIYOSI

5. BIRA NASSANGA

#### **VERSUS**

**PLAINTIFFS**

FLORENCE NAKATO MUBANDA ::::::::::::::::::::::::::::::::::: (Administrator of the estate of the late Agiri Nakanyoro)

# Before: HON. LADY JUSTICE DR. CHRISTINE A. ECHOOKIT

#### JUDGEMENT

#### $[1]$ INTRODUCTION:

This Judgment is in respect of a suit brought by Kakembo Samwiri, Babirye Sylvia, Kintu Norah, Nakazi Eriyosi and Bira Nassanga (the Plaintiffs) by way of an amended plaint against Florence Nakato Mubanda (the Defendant) seeking the following remedies;

- a) Revocation of Letters of Administration granted to the Defendant. - b) An order of account of all dealings of the estate of the deceased. - c) Grant of letters of administration to the Administrator General as a public trustee. - d) An order for cancellation of the Defendant's name from the certificate of title for land comprised in Busiro Block 489 Plot 7, land at Ssanda, Sisa. - e) Distribution of the estate to all the beneficiaries including the Plaintiffs. - General damages. $f$ ) - g) Punitive damages. - h) Costs of the suit.

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[2] The Defendant filed an Amended Written Statement of Defence and a Counterclaim. The Plaintiffs made a reply to the Amended Written Statement of Defence and Counterclaim. The Defendant in her Amended Written Statement of Defence and Counterclaim stated that she would raise a preliminary objection to the effect that the Plaintiffs do not have a cause of action against her and are not entitled to any remedies. The Plaintiffs also contended that the counter-claimant has no cause of action against the counter-defendants. The parties filed their respective trial bundles.

[3] In her counter-claim, the Defendant prayed for the following remedies;

- a) A declaration that she is the rightful owner of the land comprised in Busiro Block 489 Plot 7 at Ssanda. - b) A declaration that the counter claimant was gifted the suit land by the late Agiri Nankanyoro. - c) A declaration that the land comprised in Busiro Block 489 Plot 7 at Ssanda does not form part of the estate of the deceased. - d) General damages for the inconveniences and embarrassment. - Interest on general damages from the date of filing the suit till payment in full. $e)$ - $f$ ) Costs of the suit.

#### **BACKGROUND:**

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[4] The late Agiri Nakanyoro died intestate in 1968 (a copy of the death certificate was not exhibited). The letters of administration (exhibited P. EXH.4) were granted on 19<sup>th</sup> June 2007 vide Administration Cause No. 78 of 2007 at the High Court of Uganda at Nakawa to the Defendant Florence Nakato Mubanda (granddaughter) in respect of the estate of the late Agiri Nakanyoro. The Defendant transferred the certificate of title in respect of land comprised in Busiro Block 489 Plot 7, land at Ssanda, Sisa into her name personally written as Nakato Rijcken Mubanda as seen in exhibit P. EXH.6. A letter from Lule Godfrey & Mulumba Co. Advocates requesting a certified copy of a white page of land comprised in Busiro Block 489 Plot 7 land at Ssanda is P. EXH.5; and a certified copy of the white page of the certificate of title for the suit land comprised in Busiro Block 489 Plot 7 land at Sanda is **P. EXH.6.** Hence, this suit.

- [5] It is not in dispute that the late Agiri Nankanyoro was survived by her sisters, brothers, nieces and nephews. PW3 Babirye Sylvia stated in her witness statement that the late Agiri Nakanyoro's father was Absolom Sseviri Mudiima; that Absolom Sseviri Mudiima's other children were Elia Tegawooma, Gabriel Galabuzi Senkandwa, Mugowa Ssebowa Ezekiel, Kabukutu Fenekansi, Irene Nakazi Siwoza, Solome Bbulya, Maliza Nakandi and Bulasio Wamala; that all the children of the late Sseviri Mudiima have since died. The Plaintiffs are apparently grandchildren of the late Sseviri Mudiima. Others referred to are; Ham Sekandi (deceased since 2018), Livingstone Ssemambo (deceased since 2022), Pafuladito Ntambi, Allen Nakandi, Kigongo Salome (deceased since 2017), Nakato Nabiseera (deceased since 2018), among others. - [6] The Defendant did submit on the preliminary objection, while the Plaintiffs only mentioned their preliminary objection at the end of their submissions by asking court to dismiss the suit for lack of a cause of action.

# LOCUS VISIT:

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[7] This court visited locus on 31<sup>st</sup> of May 2024. A locus report was made and put on court record. The purpose of the locus in quo visit was to enable court better understand the evidence to be presented by the witnesses in the case before court and to make informed decisions, and not to fill gaps in their evidence for them (see Fernandes Vs Noroniha [1969] EA 506; De Souza Vs Uganda [1967] EA 784; Yeseri Waibi vs. Edisa Byandala [1982] HCB 28 and Nsibambi vs. Nankya [1980] HCB 81). Court was able to understand the evidence presented by the witnesses better, particularly in regard to the physical location of the disputed land and in regard to the area and objects on the land.

[8] The locus in Ssanda, Ssisa contains the following features and structures;

- On the lower side bordering the road, one kibanja holder was constructing structures $\bullet$ that had the outline of shops. - Another kibanja holder had cultivated near that land.


Eucalyptus trees had been grown on some 10 or so acres of land under which court eat for locus

- There was an access road running through the land; and there was a house belonging $\odot$ to a neighbor on one side thereof. - The Defendant's house was on the upper end of the land and was apparently built $\bullet$ more than 10 or so years back, judging by the vegetation around and in the compound and the aging on the walls of the structures. - [9] From the observation of this court during the locus visit, only the Defendant among the parties resides on the suit land, and only 2 squatters were seen (although the LC1 Chairman said there are 2 others). Apparently, the rest of the squatters had been compensated and vacated the land. This observation was confirmed by both DW2 and DW3 in their evidence given at court.

### REPRESENTATION AND HEARING:

- [10] At the hearing, the Plaintiffs were represented by counsel Frank Sewagudde while counsel Stanley Kawalya and Jabary Luyima represented the Defendant. The parties filed written submissions which have been duly considered by this Court in arriving at its decision. - [11] At the trial, the Plaintiffs presented Nakibule Madina (PW1), the 3<sup>rd</sup> Plaintiff Norah Kintu (PW2) and the 2<sup>nd</sup> Plaintiff Babirye Sylvia (PW3) as their witnesses. The Defendant presented Joyce Jesca Naddamba (DW1), herself Florence Nakato Nakanyoro Rijcken Mubanda as (DW2), Kasaali Fred (DW3), Kato Henry (DW4), Tegawooma Moses Semambo (DW5) and Kakembo Moses (DW6).

# DETERMINATION OF THE PRELIMINARY OBJECTION RAISED BY THE DEFENDANT:

[12] Counsel for the Defendant submitted that the suit is a disguise by the Plaintiffs to recover land and not necessarily about revocation of letters of administration which were granted to the Defendant in 2007; and that therefore the suit is barred by limitation under section 6(2) of the Limitation Act, Cap. 290 which provides that the right of action for recovery of land of a deceased's person who was in occupation of the land at the time of their death, and was the last person entitled to be in possession of the land shall be deemed to have accrued on the date of his or her death.

Counsel for the Defendant submitted that there are no facts in the plaint to allege that the late Agiri Nankanyoro was in possession of the suit land at the time of her death in 1968; and that even if it were to be considered that the late Agiri Nakanyoro never gifted the suit land to the Defendant, the Plaintiffs should have brought a suit to recover the land within twelve years from the death of the late Agiri Nakanyoro or at least twelve years from 2003 when the Defendant took possession of it, or twelve years from 2007 when the Defendant was granted letters of administration and was subsequently registered as the absolute owner of the land.

The Defendant's counsel prayed for the suit to be dismissed for falling outside of the Limitation period.

[13] In rejoinder, counsel for the Plaintiff submitted that the Plaintiffs' cause of action arises at the earliest from 2007 when the letters of administration were granted or upon the Plaintiffs' discovery of the fraudulent process of granting the said letters; and that this is distinct from an action based on simple possession of land, which would accrue from the date of the said possession.

## **Consideration by Court;**

[14] I have considered the submissions of both counsel and note firstly that the preliminary objection the Defendant sought to bring (as indicated in paragraph 2 of this ruling) was that the Plaintiffs had no cause of action against the Defendant. Limitation is different, and court would not be drawn into it had it not been for the fact that the two (cause of action and limitation) are related in the sense that both would culminate in discontinuation of the suit. Counsel for the Defendant did not submit on how the Plaintiff's suit did not disclose a cause of action against the Defendant. That notwithstanding, I agree with the submissions of counsel for the Plaintiffs that the Plaintiffs' claim against the Defendant is not simply for possession of land; it is based on alleged fraudulent acquisition by the Defendant of letters of administration. Hence, the action is not limited by Section 6(2) of the Limitation Act as


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[15] Secondly, the Defendant's preliminary objection is based on conjecture - an assumption that 'the Plaintiffs are cunningly seeking to recover land!" The prayers sought by the Plaintiffs are clearly set out in paragraph 1 of this ruling.

In the circumstances, this preliminary objection is overruled.

# **ISSUES FOR DETERMINATION OF COURT:**

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[16] In the scheduling notes, the following issues were raised for determination;

- 1. Whether the property comprised in Busiro Block 489 Plot 7, land at Ssanda was given to the Defendant as a gift inter vivos by the late Agiri Nakanyoro? - 2. Whether the Defendant fraudulently acquired letters of administration to the estate of the late Agiri Nakanyoro? - 3. What remedies are available to the parties?

# DETERMINATION OF THE ISSUES BY COURT:

[17] The Plaintiffs' exhibits were:

- a) A letter from M/s Lule Godfrey & Mulumba Co. Advocates dated 2<sup>nd</sup> May 2023 **P. EXH.1.** - b) Administrator General's letter in reply to the letter from M/s Lule Godfrey Mulumba & Co. Advocates dated 3<sup>rd</sup> July 2023 P. EXH.2 - c) A certificate of no objection with serial No. 22155 in respect of the estate of Walusimbi Zeddekiya P. EXH.3. - d) Letters of administration dated 19<sup>th</sup> June 2007 **P. EXH.4** - e) A letter from Lule Godfrey & Mulumba Co. Advocates requesting a certified copy of a white page of land comprised in Busiro Block 489 Plot 7 land at Ssanda P. EXH.5 - A certified copy of the white page of the certificate of title for land comprised in Busiro $f$ Block 489 Plot 7 land at Ssanda P. EXH.6 - g) Defendant's application for letters of administration entertained by this court vide AC No. 78 of 2007 P. EXH.7 - h) The Administrator General's document lodging a caveat on the estate land comprised $-1$ , 100 Dist 7 land cityata at Seanda Sisa **P FXH 8**

A letter from the LC 1 of Sanda dated 20<sup>th</sup> August 2008 P. EXH.9 (i) and its English $i)$ translation (ii).

[18] The Defendant's documents are exhibited as follows;

- a) Letter of the LC Chairman Kasaali dated 25<sup>th</sup> March 2007 **D. EXH.1 (i)** and its English translation (ii) - b) Handwritten agreement of sale of a plot comprising the estate of the late Catherine Nakandi signed/sold by the Plaintiffs D. EXH.2 (i) and its English translation (ii) - c) Caveat lodged in the land office by beneficiaries of the late Catherine Nakandi to prevent fraudulent transfer of the land by the Plaintiffs D. EXH.3 - **Issue 1:** Whether the property comprised in Busiro Block 489 Plot 7, land at Ssanda was given to the Defendant as a gift inter vivos by the late Agiri Nakanyoro?

[19] **Section 101(1) of the Evidence Act**, provides that in civil matters;

"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist."

Therefore, the burden is on the claimant to prove their case, on a balance of probabilities (Lugazi Progressive School & anor. Vs Serunjogi & anor. (2001-2005) HCB Vol. 2 page 121 at page 121, cited with approval in Wamara Vs Mugas & 11 ors. Civil Suit No. 17 of 2017 [2023] UGHCLD 338; Sebuliba Vs Co-operative Bank Ltd (1982) HCB 129, Nsubuga Vs Kavuma 1978 HCB 307 cited in Mutebi Ronald & anor. Vs UMEME Uganda Ltd. Civil Suit No. 25 of 2024).

# Plaintiffs' case;

[20] **PW2** testified that during her primary six, her aunt the late Agiri Nakanyoro visited the home of PW2's uncle the late Galabuzi Gabriel where she was staying at the time and handed all her cultural responsibilities to her in the presence of Mr. Galabuzi, his wife Naddamba Joyce and the late Isaac Seesanga linon joining the Saved Christian faith, that the late Agiri Nakanyoro died an ardent follower of the Saved Christian faith and as such could not have appointed a heiress as she did not believe in the cultural practices after her new religious belief.

[21] That notwithstanding, it was submitted for the Plaintiffs in reference to the case of Nyanzi Edward Vs Namulindwa Margaret & 4 Ors Civil Suit No. 404 of 2018 [2021] UGHCLD 79 (28 March 3024) that being a customary heir is a cultural function which does not bestow legal authority on the person to deal with the property of the deceased.

Counsel for the Plaintiffs also submitted that the only witness who was around at the time when the late Agiri Nankanyoro lived was DW1. The rest of the witnesses who testified about the gifting of the land to the Defendant made their testimonies based on hearsay, and so their evidence is not admissible. Only direct evidence is the best evidence (section 59 of the Evidence Act, Cap. 8). That even then, DW1's testimony gravely contradicts that of the Defendant in that whereas the Defendant's pleadings state that the late Agiri Nakanyoro handed over the "gift deed" to the Defendant's father, DW1 clearly states that the envelop was delivered through her in the company of a one Nakato the Mulokole.

#### Defendant's case;

[22] The Defendant whose full name is Florence Nakato Nakanyoro Rijcken Mubanda also known as Florence Nakato Mubanda in this suit is DW2. She averred that the late Agiri Nakanyoro was her great aunt being the sister of her paternal grandfather Tegawooma; that she is not too sure if the late Agiri Nakanyoro left a Will; that during the early infancy of the Defendant (about 2 years old), the said Agiri Nakanyoro gifted her inter vivos the suit land by a letter she handed over to the Defendant's father the late Alfred Mubanda together with the certificate of title in respect of the said land; and that in the said letter the late Agiri Nakanyoro declared her the customary heiress. DW2 relied on the letter of the LC Chairman Kasaali dated 25<sup>th</sup> March 2007 is **D. EXH.1 (i)** and its English translation (ii) to support her

 The Defendant further avers that a family member called Naddamba Joyce Jesca Galabuzi was present when the letter gifting the land to the Defendant was written; and that during the regime of Idi Amin the late Alfred Mubanda fled to the United States with his young family, and the certificate of title as well as the letter were irretrievably lost in transit.

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- [23] **Naddamba Joyce Jesca Galabuzi DW1** testified that the late Agiri Nakanyoro told her the Defendant would be her heir and that she had given the Defendant her land at Ssanda; that sometime around 1967 she received some things from her sister-in-law Agiri Nakanyoro brought to her by Nakato also called Mulokole to hand over to her husband Galabuzi Gabriel who was Agiri's surviving sibling at the time; that Galabuzi opened the envelop and read its contents loud; that Galabuzi then sent for Alfred Mubanda to come along with his daughter Nakato Florence Mubanda; that the following morning when Alfred arrived with his daughter Nakato Florence Mubanda, Galabuzi read out the document; and that at the time the late Agiri was still alive. - [24] DW1 further stated that the document stated that Agiri had given Nakato Florence Mubanda all her titled land in Sanda –Nakawuka as a gift and that her father Alfred Mubanda would keep it for her until she came of majority age; that after Galabuzi read out the document (which was a Will in form of a letter) in her presence, he handed over to Alfred Mubanda everything his sister Agiri had sent, including the document "gift deed" as well as the suit case; and that a few years ago, Alfred Mubanda told her that the gift deed and original certificate of title which Galabuzi had handed to him got lost as he fled the country in the 1970s. - [25] Kasaali Fred DW3 testified that he has served as the LC Chairman of Ssanda LC1 Zone, Ssisa subcounty, Kasuku Parish, Wakiso District for over 20 years; that in 1968 when Agiri Nakanyoro died, he was only seven (7) years old and did not know her; that he knew the residents of that area very well and the land owners he saw when he was about 15 years old; that he knew the late Salongo Mubanda and he told him as seen in a letter in **P. EXH.9(i)** that the suit land measuring 28.5 acres belonged to his daughter Florence Nakato Mubanda who was given the same by her grandmother the late Agiri; that he believed Alfred Mubanda

and did not verify the information from anyone else; that he did not see the Will referred to in P. EXH.9(i) with (ii) being its English translation; and that when Florence Nakato Mubanda returned to Uganda in the early 2000s, Salongo Mubanda introduced her to him as the rightful owner of the suit land.

[26] Kato Henry DW4, Tegawooma, Moses Semambo DW5 and Kakembo Moses DW6 all testified that from information from other people they confirm the suit land was given to the Defendant by the late Agiri Nakanyoro; and that the Defendant was the heiress of the late Agiri Nakanyoro. **DW6** testified that he is the son of the late Charles Segujja who was a son to the late Gabriel Senkandwa Galabuzi who was the son of the late Absolom Sseviiri Mudiima: that he is the customary heir of the late Absolom Ssseviiri Mudiima; that the late Galabuzi told him that the Defendant was the rightful heiress of Agiri Nakanyoro; and that with the exception of the Plaintiffs the entire family does not dispute that the land belongs to the Defendant.

## Consideration by court;

[27] The case of Kenneth Nyaga Mwige Vs Austin Kiguta & 2 others Civil Appeal No. 140 of 2008 (2015) eKLR cited with approval in Syanywana Kasereka and Ors Vs Registrar of Titles and Anor. (HCT-01-LD-CS 21) [2024] UGHC 225 (19 April 2024) held that:

".... mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. .... the document becomes proved, not proved or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents – this is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record."


In my view, from the evidence presented and the content thereof, the letter of the LC Chairman Kasaali dated 25<sup>th</sup> March 2007 exhibited by the Defendant as **D. EXH.1 (i)** and its English translation (ii) is mostly a documentation of hearsay. However, the narrative therein is to an extent supported by the evidence of DW1 who actually interfaced with the late Agiri Nakanyoro in respect of the suit property, during the late Nakanyoro's lifetime. Hence, it cannot completely be disregarded.

- [28] PW2's testimony that the late Agiri Nakanyoro died an ardent follower of the Saved Christian faith and as such could not have appointed a heiress as she did not believe in cultural practices after her new-found religious belief, is mere speculation and was not corroborated. - [29] It was submitted for the Plaintiffs in rejoinder that the claim by the Defendant that she perfected the 'gift' by obtaining letters of administration nearly 40 years after the alleged donation and 29 years after the donor's death was not a completed gift inter vivos in the manner contemplated by law or the case of **George William Kalule Vs Norah Nassozi &** Anor CACA No. 29 of 2014. It was further submitted in rejoinder that the Defendant's conduct in seeking letters of administration to perfect the gift and subsequently transferring title based on the grant which was even procured fraudulent, was inconsistent with the claim that the gift was already completed inter vivos in 1968 by delivery and possession. - [30] The key to unlocking the real issue for the determination of this court lies in the definition of the word "gift" and in the understanding of what constitutes a "gift deed".

The legal definition of a gift encompasses the voluntary transfer of property from one person to another, without the expectation of payment or compensation (Justice Christopher Madrama Izama, in Arthur Ssajjabi Vs Catherine Namutebi Muyizzi & Anor (Court of Appeal Civil Appeal No. 25 of 2017) 2020 UGCA 56). A gift is meant to be given without undue influence, peer pressure or coercion and must be given inter vivos.

The essential elements of a valid gift are that; there must be a donee, or the person receiving the gift; there is clear evidence of the donor's intent for the transfer to be a gift; there is clear evidence of the delivery of a gift to the done; and the donee has accepted the gift (George William Kalule Vs Norah Nassozi & Anor. CACA No. 29 of 2014).

George William Kalule Vs Norah Nassozi & Anor. (ibid) cited Mellows in *The Law of* Succession 5<sup>th</sup> Edition, Butterworth 1977 pages 9 to 10 which stated as follows regarding gifts *inter vivos:*

"Various formalities are necessary for gifts inter vivos. Thus a gift of land must be by deed; a gift of land where the title is registered at the Land Registry must be effected by an instrument of transfer which is registered."

#### Presence of a gift deed:

[31] Ordinarily, a Deed of Gift should be drawn to formalize the transfer of a gift from one party to another, in order to protect the interests of both parties involved in the transaction. A Deed of Gift ensures that the donor is giving the gift voluntarily and without any coercion or undue influence and that the recipient is accepting the gift willingly and without any obligation or condition attached to it.

To be legally binding and enforceable, a Deed of Gift must contain certain essential elements that include:

- (i) The donor and recipient's names and addresses - (ii) A clear description of the property or asset being gifted including its nature, value, and condition - (iii) The date of the gift - (iv) The intention of the donor to make a gift without any obligation or condition attached to it. While a gift is generally considered to be a transfer of ownership without consideration, it is still necessary to mention that there is no consideration involved in the transaction.


- (v) The gift acceptance by the recipient. The Deed of Gift should specify how the gift will be delivered to the donee, and when the transfer of ownership will take place. - (vi) The signatures of both parties and any witnesses.

(https://www.contractscounsel.com/t/us/deed-of-gift)

It is important to note that a Deed of Gift must be signed and witnessed by two independent witnesses who are not related to either the donor or the recipient. The witnesses must be present when the document is signed and must sign the document themselves as proof of their presence.

# **Registration of title:**

[32] In the case of The Registered Trustees Anglican Church of Kenya Mbeere Diocese Vs The Rev. David Waweru Njoroge Civil Appeal No 108/2002 Court of Appeal of **Kenya**) it was observed that;

"Generally speaking, the moment in time when a gift takes effects is dependent on the nature of the gift; the statutory provisions governing the type of the gift and the steps taken by the donor to effectuate the gift."

Under section 91 of the Registration of Titles Act, Cap. 240 the transferor would need to execute and deliver transfer forms in favour of the transferee/donee. A gift inter vivos becomes effective once the transfer is executed and delivered. It cannot be taken back even if the donee has not yet obtained a legal interest thereto. An unregistered transfer operates as a contract, conferring a beneficial interest in the done. Once the donee becomes registered as proprietor of land under a transfer instrument, a legal interest passes to him or her. (The Registered Trustees Anglican Church of Kenya Mbeere Diocese Vs The Rev. David Waweru Njoroge (supra).

[33] It is obvious that the alleged gift inter vivo from the late Agiri Nakanyoro to the Defendant did not meet the requirements of validity, contrary to the submission of her counsel. No gift deed to her was shown nor any transfer forms signed by the late Agiri Nankanyoro in her favour. The Defendant and her witnesses only referred to a gift having been made and did

not produce any documents to evidence that gift. As such, the claim of 'perfecting' the gift cannot stand.

I am, therefore, unable to find this question in the affirmative.

## Whether the Defendant fraudulently acquired letters of administration to the $$ estate of the late Agiri Nakanyoro?

#### Plaintiffs' case;

- [34] According to the Plaintiffs, when applying for letters of administration, the Defendant stated that the late Agiri Nankanyoro was survived by only two people who are herself and her late father Alfred Mubanda, whereas not. The Defendant's application for letters of administration in Administration Cause No. 78 of 2007 is **P. EXH.7**. - [35] The Plaintiffs also aver that the Defendant, without consent of the family members and beneficiaries to the estate of the late Agiri Nakanyoro appointed herself as customary heir of the late Nakanyoro - which she used to convince the local authorities to write to the Administrator General prior to the grant of letters of administration; and that she wilfully and without reasonable cause omitted or failed to inform the whole family about being in possession of letters of administration. - [36] The Plaintiffs aver that upon acquiring letters of administration to the estate of the late Agiri Nakanyoro, the Defendant has since transferred the title of the land comprised in Busiro Block 489 Plot 7, land at Ssanda, Sisa into her name personally and has refused to distribute the estate, to the detriment of the Plaintiffs and other beneficiaries of the estate of the late Agiri Nakanyoro. - [37] The Plaintiffs further aver that the late Agiri Nakanyoro left land comprised in Busiro Block 489 Plot 7, land at Ssanda, Sisa, measuring approximately 28.5 acres; and that by the said grant of letters of administration, the Defendant undertook to administer the estate of the

deceased, and make a full and true inventory and render a true account of the deceased property in court; but that she has not done so to-date.

[38] The 2<sup>nd</sup>, 3<sup>rd</sup>, 4<sup>th</sup> and 5<sup>th</sup> Plaintiffs contend that the Defendant fraudulently, illegally and unlawfully obtained the letters of administration.

## Particulars of fraud by the Defendant are allegedly as follows;

- a) Clandestinely procuring the grant of letters of administration without the consent and/or knowledge of the Plaintiffs and other beneficiaries of the late Agiri Nakanyoro. - b) Non- disclosure and/or concealment from the Plaintiffs and court of material facts relating to the estate of the deceased. - c) Intentionally and fraudulently excluding the Plaintiffs and other beneficiaries from participating in the process of obtaining letters of administration. - d) Failure to file an account and inventory. - e) Uttering a forged certificate of no objection from the Attorney General vide Serial No. 22155 of the late Walusimbi Zeddekiya and of Agiri Nakanyoro.

I will couple up the first 3 particulars of the alleged fraud viz. **Procuring the grant of letters of** administration without the consent and/or knowledge of the Plaintiffs and other beneficiaries of the late Agiri Nakanyoro; concealing and non-disclosure of material facts; and intentionally and fraudulently excluding the Plaintiffs and other beneficiaries from participating in the process of obtaining letters of administration.

[39] **PW1 Madinah Nakibuule** an Assistant Administrator General/Public Trustee with the Office of the Administrator General adduced evidence that the beneficiaries of the estate of the late Agiri Nakanyoro are Kintu Norah, Kakembo Moses, Nakandi Diana and Nakazi Elios; and that Kintu Norah is mentioned as the customary heiress and others as grandchildren. PW1 further stated that no family meeting was held prior to the issuance of the alleged certificate of no objection to determine the most appropriate person to be considered for the grant.


[40] The 3<sup>rd</sup> Plaintiff **Kintu Norah** was **PW2**. She stated in her witness statement that the late Alfred Mubanda was her brother; that the late Mubanda had informed the family members that the family of the late Eliya Tegawooma was entitled to a share of the land comprised in Busiro Block 489 Plot 7 land at Sanda that had been given to the late Agiri Nakanyoro who died intestate and left no children; that the Defendant's father the late Alfred Mubanda had told the then LC Chairman that by Will the late Agiri Nakanyoro had bequeathed the suit land to his daughter but until his death the late Mubanda failed to deliver the alleged Will for verification. Reference was made to the letter from the LC 1 of Sanda dated 20th August 2008 is P. EXH.9 (i) and its English translation (ii).

PW2 stated during cross examination that Agiri Nakanyoro had given the responsibility of the suit land to the late Alfred Mubanda during her life time and had given the land to the family of Tegawooma the father of both Alfred Mubanda and PW2.

PW2 further stated that upon the demise of Alfred Mubanda, the 1<sup>st</sup> Plaintiff as the eldest surviving brother who took on the responsibility as leader of the Tegawooma family later discovered that the Defendant had transferred the suit land into her name in utter disregard of other beneficiaries of the estate of the late Eliyah Tegawooma.

PW2 testified that in 2020 she opened a file in the office of the Administrator General in respect of the estate of the late Agiri Nakanyoro; and that she took so long to do so because her brother Alfred Mubanda who was her father's heir had taken over the responsibility of Agiri Nakanyoro's estate.

[41] The 2<sup>nd</sup> Plaintiff **Babirye Sylvia** (PW3) in her witness statement stated that she is a niece of the late Agiri Nakanyoro; that the suit land was given to the late Agiri Nakanyoro by her father the late Absolom Sseviri Mudiima; and that since Agiri Nakanyoro died intestate without leaving children, the suit land reverted to the estate of the late Absolom Sseviri Mudiima. PW3 stated that her brother the late Alfred Mubanda told her that their father the late Elia Tegawooma was entitled to a share in the land initially given to Agiri Nakanyoro; that the family of Tegawooma allowed the late Alfred Mubanda to caretake the land; and that the Defendant has merely concocted stories about a letter giving her the suit land.

# Defendant's case:

- [42] It is the Defendant's case that the Plaintiffs could not have been beneficiaries to property gifted during the lifetime of the late Agiri Nakanyoro, which gifting the entire family was aware of; and that she was not fraudulent in obtaining letters of administration to the estate of the late Agiri Nakanyoro – rather, she was perfecting the gift by obtaining the authority of an administrator of the deceased's estate in order to transfer the suit land into her name. - [43] The Defendant DW2 further averred that for over 54 years since the demise of the late Nakanyoro, no family member including the late Agiri Nakanyoro's siblings such as the late Tegawooma and the late Gabriel Galabuzi has ever even remotely laid claim to any interest in the suit land. That in her own regard, it took her 39 years to apply for letters of administration because she was living in the United States where she grew up.

The Defendant does not recall if the application for letters of administration in P. EXH.7 was done by her, but confirms the signature therein is not hers. She confirms that the late Agiri Nakanyoro is survived by many family members not only the Defendant and Alfred Mubanda her father.

[44] In her counter claim, the Defendant averred that in 2003 when she and her late father Alfred Mubanda returned to Uganda, he handed over vacant possession of the land to her and she has been in possession to date; that she found squatters on the land whom she compensated and they vacated the same; that she has since made developments on the land; and that the actions of the Plaintiffs have caused her psychological torture and emotional distress.

- [45] The Defendant stated that the land at Plot 7 at Ssanda measures 28.5 acres not over 36 acres shown in the photocopy of the MRV title attached to the Plaintiffs' trial bundle. - [46] Kato Henry DW4 testified that the late Sseviri Mudiima bequeathed to each of his children land separately; that the 1<sup>st</sup> Plaintiff is his biological father and the Defendant is his cousin; that according to their customs, the entire family including children and grandchildren of the siblings of the late Agiri Nakanyoro would be right to place a claim on the estate of the late Agiri Nakanyoro since she had no children, but that even her own siblings like Galabuzi who died in 1983 years after her, never claimed it; and that the suit land belongs to the Defendant as the heiress to the late Agiri Nakanyoro. - [47] Tegawooma Moses Ssemambo DW5 testified that the 1<sup>st</sup> Plaintiff is his paternal uncle and the Defendant is his cousin; that it is a well-known fact in the family that the suit land was given to the Defendant by the late Agiri Nakanyoro before she died; that he is aware the late Alfred Mubanda the father of the Defendant was the caretaker of the said land for many years. - [48] Counsel for the Defendant submitted that section 19 of the Succession Act, Cap. 268 provides for the mode of computing degrees of kinship; that Galabuzi the surviving sibling of the late Agiri Nakanyoro could have been considered a beneficiary but he knew that she had not left any estate; that the testimony of Babirye Sylvia (PW3) is simply hearsay; and that PW1 Madinah Nakibuule is an unreliable witness as she completely abandoned her witness statement as well as annextures thereto which had already been exhibited as the Plaintiffs' exhibits, and opted to give contradictory oral evidence. Counsel argued that PW1 and the Plaintiffs must accept the entire contents of their exhibits and they cannot choose excerpts which presumably favour them and reject the rest of the content as doing so would amount to "approbation and reprobation".

## Consideration by court;


deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth or look or gesture.

In the case of J. W. R Kazora Vs M. L. S Rukuba SCCA No. 13 of 1992, court held that; "It is a well-established principle of law that a party relying on fraud must specifically plead it and that particulars of the alleged fraud must be stated on the face of the pleading.... As to standard of proof, the law is that allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than mere probabilities is required. See Ratlal G. Patel vs. Baiji Makayi (1957) EA 314 at $317.$

Direct evidence is not the only way to prove knowledge of fraud. This knowledge can be inferred from circumstances (see; Vivo Energy Ug. Ltd Vs Lydia Kisitu SCCA No. 7 of **2015**). It remains to be determined whether indeed, from the circumstances of the present suit the Defendant was fraudulent.

[50] In general, if a person dies intestate and without children, the land she was given by her father may revert to her father's family, subject to the Succession Act and depending on whether the customary practice of the specific tribe applies. PW3 did not adduce any custom in this regard and did not indicate the manner in which the land reverted.

Furthermore, the testimonies of PW2 and PW3 conflict. While PW2 stated during cross examination that the land was given to Tegawooma, PW3 states in her evidence in chief that it reverted to the late Absolom Sseviri Mudiima. During cross examination, however, **PW3** stated instead that she does not know if the late Agiri Nakanyoro gave the suit land to her father's family – the late Tegawooma; and that in 2024 she came to claim an interest in the estate of the late Agiri Nakanyoro because they had previously told Alfred Muganda about that land but he did not care. That anomaly is grave. If the land had reverted to Mudiima, there is no way that only Tegawooma one of his several children would be entitled

$\Delta$

to the whole of it. That aside, this court will not speculate as to applicable customary law in this regard since none was adduced.

[51] As regards reference to the Succession Act, Cap. 268, letters of administration have to be obtained for purposes of distributing the estate of a person who dies intestate.

The evidence of **PW2** and **PW3** seems to hinge on the belief that the beneficiaries of the estates of the late Sseviri Mudiima or the late Tegawooma are entitled to the estate of the late Agiri Nakanyoro. That to me is a total misconception. No one estate can simply inherit the estate of another.

Besides, it was never shown whether there were letters of administration to the estate of the late Absolom Sseviri Mudiima and in succession the estate of the late Tegawooma, and whether in the description of their estate there was mention of the entitlement of its beneficiaries to any property belonging to the late Agiri Nakanyoro. Court cannot imply into things what was not evident and obvious in the first place.

- [52] In my view, the Plaintiffs seem to be on a fishing expedition to claim an interest in property not remotely attributed to them. PW3 Babirye Sylvia admitted in cross examination that she only began claiming the said land in 2024 because the late Alfred Mubanda did not care. She also admitted that none of her family members did anything on the land during the time the Defendant was absent; and that they were waiting for Alfred Mubanda to tell them the way forward in regard to that land. She further stated that she never asked Alfred Mubanda about the suit land because he was not seen and sometimes was not there. - [53] **DW2, DW4** and **DW5** aver that the Plaintiffs sold off a portion of her late cousin Catherine Nakandi Sekandi's land measuring 0.50 acres comprised in Busiro Block 409 Plot 335 at Ssisa. A handwritten agreement of sale of a plot comprising the estate of the late Catherine Nakandi allegedly signed/sold by the Plaintiffs is **D. EXH.2** (i) and its English translation (ii); and a caveat lodged in the land office by beneficiaries of the late Catherine Nakandi to prevent fraudulent transfer of the land by the Plaintiffs is D FXH 3. Annarently this is

intended to show that the Plaintiffs have previously sold off land not belonging to them and intend to do likewise to the suit property. During cross examination, PW2 Norah Kintu admitted signing the sale agreement in D. EXH.2(i). She claimed that it was in respect of land Nakandi had given to the family of Eria Tegawooma in a Will after her death. The said Will was not produced in court to prove that **claim**.

It is apparent the above evidence was adduced to show that the Plaintiffs are dishonest. However, I will not pursue the aspect of the late Nakandi's land as it does not have any relation to the present suit.

Uttering a forged certificate of no objection from the Attorney General vide Serial No. 22155 of the late Walusimbi Zeddekiya and of Agiri Nakanyoro.

#### Plaintiffs' case;

[54] Madinah Nakibuule (PW1) adduced evidence as the first witness of the Plaintiffs. Before I go into her evidence, I need to point out that it is not true that PW1 completely abandoned her witness statement as well as annextures thereto as claimed by counsel for the Defendant. But in some aspects, PW1's evidence was not based on comprehensive information to support her assertions in the witness statement.

PW1 testified that apart from a widow, widower and a person appointed as executor/executrix of a Will, in all other cases the Administrator General takes precedence in the priority of application for letters of administration for estates of intestate persons with property in Uganda. That in most cases the Administrator General issues a certificate of no objection to the nearest relatives in degree of kinship to the deceased.

PW1 stated in her witness statement that on 2<sup>nd</sup> May 2023 the Administrator General received a letter from M/s Lule Godfrey & Mulumba Co. Advocates seeking to establish the authenticity or otherwise of a certificate of no objection issued to Nakato Florence Mubanda vide Mengo/AC/435/2007 in respect of the estate of the late Agiri Nankanyoro. The said letter is P. EXH. 1. PW1 stated that she was assigned to establish whether there was any anomaly in the certificate of no objection as suspected by the said law firm; and that the said document was examined and verified vis-à-vis a file referenced No. ME/AC/435/2007 for the estate of the late Agiri Nakanyoro and it was found that the purported certificate of no objection was a forgery because it did not originate from the office of the Administrator General.

PW1 further stated that the Administrator General wrote to the law firm in that regard by letter dated 3<sup>rd</sup> July 2023 (marked exhibit **P. EXH.2**); that the subject file reference No. ME/AC/435/2007 was in respect of the late Walusimbi Zedekiya and not the late Agiri Nakanyoro; that a certificate of no objection with serial No. 22155 (P. EXH.3) was issued to Amulani Nakayima (son) of the cousin brother to Walusimbi Zedekiya in respect of the estate of Walusimbi Zeddekiya; and that the office of the Administrator General has never issued a certificate of no objection to Florence Nakato Mubanda in respect of the estate of the late Agiri Nakanyoro under file reference Mengo Administration Cause No 435 of 2007; that a search in the office's registry and system indicated that Mengo Administration Cause No. 435 of 2007 does not exist; that the file indicates Agiri Nankanyoro died on 24th July 1975; that there is a short certificate to that effect; and that the seal on the certified copy is forged as the certificate of no objection did not originate from the Administrator General's office.

[55] On cross examination, PW1 stated that the certificate of no objection in question was signed by Wagabi Aggrey but she admitted that she had not established from him whether it was forged. She only concluded it was forged because the serial number on it was issued for another certificate of no objection. She clarified that it is possible that the Administrator General can make a mistake but not in a serial number; that a serial number is a book numbered chronologically, so there is no way the same serial number can be repeated. On re-examination, PW1 stated that what the Administrator General has is Bukeddi Administration Cause No. 435 of 2007 for the estate of Wabwire Joseph.


PW1 further testified that the Administrator General later learnt that the Defendant had already procured letters of administration in 2007 and registered her name on the certificate of title for land comprised in Busiro Block 489 Plot 7 land at Sanda Sisa, Wakiso; that the Administrator General lodged a caveat thereto (P. EXH.8). During cross examination the witness stated that she signed the caveat on 9<sup>th</sup> January 2024 but it was lodged on 30<sup>th</sup> April 2024 at 10.15am. She stated that she does not know why the lodging delayed as she sent it for filing on the day she signed it.

[56] Counsel for the Plaintiffs submitted that the letters of administration were premised on fraudulent misrepresentation since no certificate of no objection was issued to the Petitioner; that the petition for letters of administration bore a signature purporting to be that of the Petitioner/Defendant yet it was a different person; and that, therefore, the said petition was fraudulent.

## Defendant's case;

- [57] The Defendant **DW2** stated during cross examination that she instructed her lawyers Kajeke-Maguru & Co. Advocates to process a certificate of no objection, and gathers she was issued with one although she did not apply at the Office of the Administrator General for a family meeting before the issuance of the same. She also admitted that she did not go to court for identification for purposes of letters of administration as she was living in Tanzania and would only occasionally fly into Uganda; and that she obtained the grant of letters of administration but does not recall who got them for her. - [58] Counsel for the Defendant submitted that PW1 Madinah Nakibuule digressed when she brought to court a file of **Bukedi AG No. 435 of 2007** for the estate of the late Wabwire Joseph which has absolutely no nexus to the certificate of no objection granted to the Defendant. He further submitted that **PW1** did not produce the register book as well as a computer to access the system that computerized the recording of files she testified about orally in court; that the witness therefore did not demonstrate that file No. ME/AC/435/2007 registered for the estate of the late Agiri Nakanyoro was not on the system; and that as such, PW1 was giving hearsay oral evidence of documents that exist without producing them.

## Consideration by court;

[59] It is true, as submitted by counsel for the Plaintiffs, that a certificate of no objection is mandatory where the Administrator General is not the one applying for letters of administration or where a Will names an executor (section 5(1) of the Administrator General's Act, Cap. 264). Counsel for the Plaintiffs submitted that the alleged process of obtaining a certificate of no objection was marred with misrepresentation, illegality, forgery and fraud, as testified by PW1.

It is indeed a cardinal principle of law that an illegality once brought to the attention of court overrides all questions of pleadings, including any admissions made thereon (Makula International Ltd vs. His Eminence Cardinal Nsubuga & Anor [1982] UGSC 2 (8 April 1982) [1982] UGSC 2).

[60] As mentioned in paragraph **49** of this ruling, fraud has to be specifically and strictly proved, with the burden being heavier than on a balance of probabilities (also see; **Kampala Bottlers** Ltd. vs. DAMANICO (U) Ltd SCCA No. 22 of 1992).

This court has perused the court file for Administration Cause No. 78 of 2023 in which letters of administration were granted to the Defendant. I note that the Administration Cause has a short certificate of death for the late Agiri Nakanyoro reflecting the date of death as 8.68, not 24<sup>th</sup> July 1975 stated by **PW1**. I also note that the certificate of no objection on the said Administration Cause file is serial number 22155 referring to Mengo Administrator General's Cause No. 435 of 2007 and issued on 27<sup>th</sup> of April 2007 in the name of the deceased Agiri Nakanyor - most likely the name was intended to be written as Nakanyoro. The Administration Cause file also contains a newspaper advert dated 16<sup>th</sup> April 2007 in the Bukedde Newspaper of 19<sup>th</sup> April 2007 for an application by Florence Nakato Mubanda (granddaughter of the deceased) to obtain letters of administration in respect of the estate of the late Agiri Nakanyoro.

[61] I agree with the submissions of counsel for the Defendant that PW1 did not substantiate her oral evidence in regard to the serial numbers in Administrator General's Causes she referred to more conclusively. She merely stated that the serial number in the certificate of no objection in respect to the late Agiri Nakanyoro's estate is also borne by a file of the estate of the late Wabwire Joseph which she presented in court. Her oral testimony that there was no way the Administrator General could have given the same serial number to two different files was not backed by evidence. Whilst she testified that the alleged forgery was reported to police for further investigation vide SD Ref. 114/21/08/2023 and that the Administrator General placed a caveat on the suit land, she admitted that she has not seen a police report in that respect to date.

PW1's evidence in this respect is not just minor inconsistencies or contradictions that do not undermine the credibility of the Plaintiffs' case, as envisaged in the case of Hadija Nasolo vs. Uganda, SCCA No. 14 of 2000 [2001] UGSC 15th August 2001. The documents adduced by the witness are not sufficient to prove fraud on the part of the Defendant, contrary to the submissions in rejoinder by counsel for the Plaintiffs.

[62] It is certain though, that the Defendant entrusted a lot of the process of obtaining letters of administration to her lawyers as shown in paragraphs 43 and 57 of this ruling. She did not mention in her evidence that she retracted her instructions from the lawyers; nor did the Plaintiffs adduce any such evidence.

Also, as indicated in paragraph 60 of this ruling, the Administration Cause file contains a newspaper advert dated 16<sup>th</sup> April 2007 in the Bukedde Newspaper of 19<sup>th</sup> April 2007 for an application by Florence Nakato Mubanda (granddaughter of the deceased) to obtain letters of administration in respect of the estate of the late Agiri Nakanyoro. Hence, the necessary notification to interested parties was made. Accordingly, while the outcome was undesirable to the Plaintiffs, the Defendant's actions did not meet the threshold of fraud to warrant revocation of letters of administration.


On the converse, the Defendant's action of registering the suit land in her name personally goes against the grain of administration of estates of a deceased's person. Hence, that registration has to be overturned. She can only obtain registration as an administrator of the

estate of the late Agiri Nakanyoro first, before leveraging on her entitlement as a beneficiary of the said estate.

## Failure to file an account and inventory:

[63] This issue seems to have been forgotten in the quest by the Plaintiffs to prove fraudulent acquisition of Letters of Administration. I will, therefore, just make a quick reference to the applicable law.

As was held in the case of Abubaker Sebaluma Ganya Vs Yasmin Nalwoga. SCCA No. 14 of 2017;

"The filing of an inventory/account is one of the paramount duties of an administrator/executor of a deceased's estate."

An inventory is required to be filed within 6 months from the grant of Letters of Administration (Section 273(1) of the Succession Act, failing which, court may be moved to revoke the grant under section 230(2) of the Act where the failure was wilful and without reasonable cause or where the inventory is untrue in a material respect. The failure to file an inventory is lack of compliance, not fraud - unless the ingredients of fraud are proved, which is not the case in the present suit.

[64] In conclusion, in view of the evidence presented, the legal arguments advanced, and the analysis of the facts and the law, I am not convinced that fraud had been proved. Accordingly, this issue is resolved in the negative.

# **Issue 3:** What remedies are available to the parties?

# Revocation of Letters of Administration and grant of Letters of Administration to the Administrator General as a public trustee.

[65] The Plaintiffs prayed for revocation of letters of administration held by the Defendant and


grant instead to the Administrator General who has expertise to distribute the estate. It was submitted for the Plaintiffs that they have shown just cause for revocation of the grant

#### Decision of court:

[66] The law on revocation of letters of administration is settled. Section 230(2) of the Succession Act Cap. 268 provides for the grounds of revocation of letters of administration which include inter alia; fraud, when the letters of administration become useless and inoperative through circumstances, omitting wilfully and without reasonable cause to file an inventory or filing an untrue account in a material respect, or mismanaging the estate.

There is no justification for the revocation as fraud in obtaining the same was not proved. However, since the grant was made before the amendment of the Succession Act, the said letters of administration will lapse on 31<sup>st</sup> of May 2025, unless an extension is sought.

# Distribution of the estate of the late Agiri Nakanyoro to the beneficiaries including the *Plaintiffs:*

[67] It was submitted for the Plaintiffs that they are family members and/or beneficiaries of the estate of the late Agiri Nakanyoro; and that, therefore, they are entitled to a beneficial interest in her estate.

### Decision of Court:

[68] The Hon. Justice Patricia Mutesi in Rwomushana Vs Manwagi, Civil Suit No. 81 of 2022 [2023] UGCommC 169 held that the administrator of the estate has a fiduciary duty to act in the interest of the beneficiaries; and that the administrator is required to obtain consent from the beneficiaries before dealing with the estate property and without that consent, the transaction is unlawful (The learned judge cited the Hon. Lady Justice Percy Night Tuhaise in Richard Babumba & Others Vs James Ssali Babumba Civil Suit No. 78 of 2012; and the case of Asiki Charles Vs Dianna Ayume & 3 ors., CACA No. 134 of 2012).

In the case of Anecho Haruna Musa Vs Twalib Noah & 2 Others, Civil Suit No. 9 of 2008 [2018] UGHCLD it was held that;


"..... the beneficial interest passes and all assets are then held by the administrator on bare trust for the beneficiaries, since the administrator's role is

merely distribution. .... The personal representative generally is under a legal duty to account for the assets, distribute them to the beneficiaries, and wind up the affairs of the estate."

[69] The Plaintiffs have not given a justification for the land to be distributed to them. There is nothing to show that the Plaintiffs are beneficiaries of the estate of the late Agiri Nakanyoro and therefore they cannot profit from their ventures. The attempt to drag in other beneficiaries also fails as it is evident that the late Agiri Nankanyoro died without a child.

Besides, there is no contestation that the Defendant and her late father compensated and vacated the squatters on the land. This is corroborated by the testimony of DW3 Kassali Fred the LC1 Chairman who testified that when the Defendant wanted to recover vacant possession of the land from the squatters and compensate them, he facilitated meetings with the squatters and the Defendant managed to recover vacant possession; that the Defendant's father compensated the squatters; that the Defendant currently lives on the suit land; and that he is not aware of any other owner of the land or anyone with an interest in it apart from the Defendant.

The Defendant has been in occupation of the land for several years without disturbance by the Plaintiffs. If, for moot's sake, the Plaintiffs could be said to be entitled to any portion of the suit land only by virtue of their kinship with the late Agiri Nakanyoro, then it should be the portion occupied by squatters. They should incur the cost of compensating and vacating the existing squatters and then take over that portion of the land where the squatters are. But they cannot be seen to profit from the efforts of the Defendant and her late father only by reason that they are first in line in terms of kinship compared to the Defendant.

# Filing of the inventory and rendering a true account of the estate

[70] The Plaintiffs assert that the Defendant did not exhibit an inventory and statement of account showing her dealings in the estate and should be ordered to do so.

### Decision of court:

[71] The Defendant should apply for leave to file an inventory and a final account out of time.

An order for cancellation of the Defendant's name from the certificate of title for the suit land vs. a declaration that the suit land does not form part of the estate of the deceased [72] It was submitted for the Plaintiffs that the Defendant fraudulently obtained letters of

- administration and that therefore her name should be cancelled from the certificate of title. - [73] It was argued for the Defendant that she acquired an equitable interest in the suit land under the Registration of Titles Act (RTA), Cap. 240, by virtue of the gift inter vivos, and has a right to apply under the RTA to have it registered in her name. It was also argued for the Defendant that she has been in adverse possession of the suit land for over 16 years, to the exclusion of all others; and is therefore entitled to remain therein.

#### Decision of Court:

[74] The Plaintiffs have not adduced sufficient evidence in proof of fraud as the basis of cancelling the Defendant's name from the certificate of title in respect of the suit land. The issue of forgery of the certificate of no objection has not been prosecuted to its logical conclusion even when an SD Ref. 114/21/08/2023 was generated way back in 2023.

In the same vein, the Defendant's claim that the suit land is not part of the estate of the late Agiri Nakanyoro will not be sustained, since she failed to prove a gift inter vivos and even went ahead to process letters of administration in respect of the said estate.

What should have been done was for the Defendant's name to be first registered in the certificate of title as an administrator of the estate of the late Agiri Nakanyoro before conversion into her personal name. That aside, if the issue was about adverse possession, the claim of adverse possession would be justifiable in the circumstances that the Defendant has occupied and utilised the suit land exclusively, continuously and undisturbed for over 16 years.


## **Claim for general and punitive damages**

[75] The Plaintiffs pray for general and punitive damages, while the Defendant prays for general damages and interest thereon from the date of filing the suit till payment in full.

#### Decision of court:

[76] In the context of administration of estates of deceased persons, general damages may be claimed to compensate for non-economic losses caused by actions that interfere with the proper administration of the deceased's estate. In the case of James Fredrick Nsubuga Vs Attorney General HCCS No. 13 of 1993 it was held that the object of the award of damages is to compensate for the damage, loss or injury suffered.

For a claim of general damages to succeed, it must be proved that the actions complained of were wrongful and that a party was harmed by those wrongful actions. From the facts of this case, I do not find any justification for payment of general damages to the Plaintiffs. On the part of the Defendant, she registered the suit land in her name personally and not as an administrator of the estate of the late Agiri Nakanyoro. Hence, she is also not entitled to general damages for inconvenience and emotional disturbance.

#### Costs of the suit

[77] I am aware that costs follow the event as provided for under section 27 of the Civil Procedure Act, Cap. 282, unless the Court for good reason orders otherwise (Impressa Ing. Fortunato Federice Vs Irene Nabwire (Suing by Her Next Friend Dr. Julius Wambette: SCCA No. 3 of 2000; Kwizera Eddie Vs Attorney General, Supreme Court Constitutional Appeal No. 1 of 2008).

Being that the Plaintiffs and the Defendant are part of the same extended family and to avoid further acrimony, I am reluctant to award costs. It is only prudent that each party bears their own costs.

## **DECISION OF COURT:**

[78] In the final result, this Court makes the following orders;

- a) That the Commissioner Land Registration shall immediately cancel the name of **Nakato** Rijcken Mubanda from the certificate of title for land comprised in Busiro Block 489 Plot 7, land at Ssanda, Sisa and register her in the said title as the administrator of the estate of the late Agiri Nakanyoro, subject to validity of Letters of administration and before she can leverage on her entitlement as a beneficiary of the said estate. - b) That the Defendant shall within one week from the date of this judgement file an application for leave to file an inventory and to render a final account in respect of the estate of the late Agiri Nakanyoro out of time if no such application has already been filed. - c) Each party shall bear their own costs.

I so order.

Dated at Kampala this. 30 th May 2025.

the tree

Hon. Lady Justice Dr. Christine A. Echookit Judge