Kakuru & Another v Kobusingye & Another (Civil Suit 14 of 2022) [2023] UGHC 433 (31 October 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT RUKUNGIRI

## CIVIL SUIT NO.14 OF 2022

## (FORMERLY CIVIL SUIT NO.006 OF 2021

1. ANGERIKA KAKURU

2. HENRY MUGISHA ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. JACINTA KOBUSINGYE - 2. CHARLES MAGEZI - 3. FRIDAY MUBANGIZI :::::::::::::::::::::::::::::::::::

# BEFORE: HON. JUSTICE TOM CHEMUTAI. JUDGE. JUDGMENT

The Plaintiffs filed this suit against the Defendants seeking for nullification of the purported sale of a commercial building in Kanungu Town Council, declaration that the disputed land is part of the estate of the late Urubano Kakuru. The Plaintiffs sought for a permanent injunction restraining the Defendants from selling and or any way dealing with the suit land to the detriment of beneficiaries with their knowledge and the consent of all the beneficiaries. They further sought for an eviction order and costs of the suit.

The brief facts of the case are that the suit property originally belonged to the late Urubano Kakuru who passed on and left the Will which is a subject of the dispute by the parties. The late Urubano Kakuru left a widow known by the name of Mrs. Anna Kakuru Urubano, who also has since passed on. The Plaintiffs and the $1^st$ and $2^{nd}$ Defendant are the biological children of the late Urubano Kakuru.

The late Anna Kakuru Urubano on the 30th January, 2012 sold off the suit property (Commercial building/house) alleged to be part of the estate of the late Urubano Kakuru to the 3rd Defendant, Mr. Friday Mbubangizi at $35,000,000/=($ Thirty five million shillings ).

The Plaintiffs are challenging the sale of the suit property by the late Anna Kakuru Urubano alleging that as per the Will of the late Urubano, she did not have authority to sale the suit property because it was family property and it belonged to the beneficiaries of estate of the late Urubano Kakuru.

The Plaintiffs further alleged that 1st and 2nd Defendant secretly and fraudulently connived with the late Anna Kakuru Urubano and sold off the suit property to 3rd Defendant without the consent of the Plaintiffs and beneficiaries.

### Representation

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During hearing of this matter, the Plaintiffs were represented by Counsel Nabimanya Ersamus of M/S Bikangiso & Co. Advocates and the Defendants was represented by Counsel Beitwenda Dan of M/S Beitwenda & Co. Advocates.

During the hearing of this case, it was agreed by both counsel of the respective parties that the major contention was the alleged Will of the Urubano Kakuru and the parties were of the view, it needed construction by this Court. The Court accordingly directed the parties to file their written submissions and authorities thereto and they obliged.

## Plaintiff's submissions.

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Counsel for the Plaintiffs submitted that the late Urubano Kakuru's Will dated 15th.12.2004 was illegal because it was witnessed by one witness as opposed to the requirement of two or more witnesses by Section 50 (C) of the Succession Act.

Counsel submitted the late Urubano Kakuru in his Will bequeathed to his wife, the late Anna Kakuru Urubano his plot at Kanungu to cater for her and that all his lands were put under the care of the said Anna Kakuru Urubano. Counsel added there was condition in the Will that the late Anna Kakuru Urubano did not have authority to sell the property. Counsel added that contrary to the condition in the Will, the late Anna Kakuru Urubano sold off the suit property to the 3rd Defendant.

Counsel submitted that the condition not to sell was lawful and ought to have been respected by all the beneficiaries. He invited the Court to find the sale of the suit property between the late Anna Kakuru Urubano and 3rd Defendant was null and void.

# Respondents' submissions

Counsel for the Respondents submitted that the late Anna Kakuru Urubano suffered from the grave ailment of hypertension and diabetes which required a special medical care which necessitated the sale of the suit property.

Counsel admitted that the Will of Urubano Kakuru was attested by one witness, hence invalid. He added that Urubano Kakuru dead intestate in respect of his properties.

Counsel submitted that despite of the invalid of the will, it was only late Anna Kakuru Urubano, who was bequeathed with and owned the disputed property.

Counsel submitted that late Anna Kakuru Urubano was bequeathed with the suit property without any condition and he added that the property was to be used to take care of her by getting rent from the property and proceeds from its sale.

Counsel submitted, the Plaintiffs have no cause of action against the 1st and $2nd$ Defendant. That the 1st and 2nd Defendant did not sell suit property as alleged by the Plaintiffs. Counsel added that it was the late Anna Kakuru Urubano who sold the suit property to the 3rd Defendant.

# Court's determination

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I have already noted in this Judgment that the Plaintiffs and the $1^{st}$ and $2^{nd}$ Defendants are siblings and biological children of the late Urubano Kakuru. They are all beneficiaries of the estate of late Urubano Kakuru. They are seeking for the Court's interpretation of the Will of the late Urubano Kakuru.

Before delying into the merits of the case, counsel for the Respondent raised pertinent objection that the Plaintiffs do not have cause of action against the 1st and 2nd Defendant because suit property was sold by the late Anna Kakuru Urubano to the 3rd Defendant.

A cause of action is disclosed when it is shown that the plaintiff enjoyed a right, and that right was violated, resulting into damages and that the defendant is liable.

The decision in Tororo Cement Co. Ltd vs Frokina International Ltd; Civil Appeal No. 21 of 2001 laid down the three essential elements to support of a cause of action:

- 1. The plaintiff enjoyed a right. - 2. The right has been violated. - 3. The defendant is liable.

In Cooke vs Gull LR 8E. P 116 and in Read vs Brown 22 QBD P.31, a cause of action was defined as every fact which is material to be proved to enable the plaintiff succeed or every fact which if denied, the plaintiff must prove in order to obtain judgment. A perusal of the plaint shows that the plaintiff has pleaded all relevant facts to show that he has a cause of action against the defendant.

In case of Kebirungi vs Road Trainers Ltd & 2 others, [2008] HCB 72, Court held that the question whether a plaint discloses a caution of action must be determined upon perusal of the plaint alone together with anything attached so as to form part of it

I have perused the sale agreement of the suit property between late Anna Kakuru Urubano and 3rd Defendant, dated 30th January 2012. It is clear that the seller was the late Anna Kakuru Urubano and the buyer was the 3rd

Defendant. The 1st and 2nd Defendants were not parties to the said transaction nor were they listed among the people who witnessed the said sale.

$\mathcal{L}_{\mathcal{A}}$

The Plaintiffs allege that 1st and 2nd Defendants connived with the late Anna Kakuru Urubano to sell the suit property to the 3rd Defendant however, there is no evidence of connivance from the record.

The person responsible for selling suit property to the 3rd Defendant was Anna Kakuru Urubano who has since passed on. The proper person to sue for the acts of the late Anna Kakuru Urubano would be the Administrator of her estate and not the $1^{st}$ and $2^{nd}$ Defendants.

I therefore find that the Plaintiffs' amended plaint and Civil Suit No.14 of 2022 did disclose no cause of action against the Defendants and the same is dismissed.

Each party shall bear their own costs since the parties are siblings.

Before I take leave of the matter, I wish to comment on the construction of the Will of the late Kakuru Urubano. Counsel for the Plaintiffs clearly elaborated that the said Will is null and void because it was witnessed by one witness as opposed to requirement of two or more witnesses required by **Section 50 (C) of the Succession Act.** Counsel for the Defendants recognized and admitted the said illegality of the Will. Therefore, the Court cannot construe a Will that is clearly is null and void. See **Mallinga v Obukunyang** High Court Civil Suit No.0013 of 2013.

Delivered at Rukungiri this....................................

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TOM CHEMUTAI JUDGE