Kasozi v Nansamba (Miscellaneous Cause 600 of 2022) [2023] UGHCFD 148 (13 July 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA (FAMILY DIVISION) MISCELLANEOUS CAUSE NO. 600 OF 2022 KASOZI NORMAN MUSISI (SON/THE ADMINISTRATOR OF THE ESTATE JALIA NANYONJO) ::::::::::::::::::::::::: APPLICANT VERSUS RAHMA NANSAMBA (DAUGHTER OF THE**

**LATE JALIA NANYONJO) :::::::::::::::::::::::::::::::::::::::RESPONDENT**

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

#### **RULING**

#### **1.0 Representation**

- 1.1 The Applicant was represented by Counsel Stephen Nambiguba of M/S Nabwire & Company Advocates & Legal Consultants, Kampala. - **1.2** The Respondent was represented by Counsel Barnabas D. K Dyadi of M/S Barnabas D. K Dyadi & Company Advocates, Kampala.

#### **2.0 The Application.**

- 2.1 This application is brought to Court by way of Notice of Motion, under **Order 52 Rules 1 and 3 of the Civil Procedure Rules, Statutory Instrument No. 71-1** seeking the following orders. - 1. A Protection Order doth issue against the Respondent, her agents, assignees or any person/party claiming rights/powers from the


Respondent, restraining them from entering, destroying, damaging, selling, wasting, alienating or/and tampering with the estate of the late Jalia Nanyonjo I particular a Kibanja located in Sebina Zone Kalerwe, Kawempe Division and another estate located at Kanyanya all in Kampala District, until the rightful administrator(s) of the estate are legally appointed or in the alternative;

- 2. The Administrator General takes over management and control of the estate generating income for the benefit of all beneficiaries to the estate until the lawful administrator(s) are appointed. - 3. Costs of this application be provided for. - 2.2 The Application is based briefly on the following grounds. - 1. The Applicant and 6 others including the Respondent are beneficiaries of the Estate of the late Jalia Nanyonjo. - 2. The estate is in danger of being sold to third parties or in the process of being alienated by the Respondent which will render the Letters of Administration granted to be nugatory if the protection order is not granted to the applicant. - 3. The applicant is receiving a lot of threats by the Respondent and her agents to the effect that the applicant should not interfere in the issues relating to the Estate of his deceased mother Jalia Nanyonjo. - 4. The applicant has served the respondent and her agents notices to stop intermeddling with the Estate of the deceased to no avail hence the application for a Protection Order.


- 5. Once a Protection Order is not granted, the beneficiaries of the Estate stand to lose their beneficial shares in the estate. - 6. The Respondent has unlawfully occupied, rented and intends to sell the titled Estate of the late without following the legally established procedures. - 7. The Respondent has never been chosen or appointed as the Administrator of the Estate of the deceased. - 8. The applicant and other beneficiaries shall suffer irreparable damage if the Respondent's actions are not restrained or stopped by order of this Honourable Court.

### **3.0 The Respondent's Case.**

- 3.1 The Respondent filed in Court an Affidavit in reply in opposition to this application on 27th January, 2023. This Affidavit in reply contains affidavit evidence in support of the Respondents' case. The Respondent refutes the orders being sought by the Applicant in this application. - 3.2 The Respondent opposed this application relying on the following grounds summarized below. - 1. The Respondent and the Applicant are the only surviving children of the deceased. - 2. The Respondent has at all times tried to cooperate with the Applicant so that the estate of the deceased is streamlined but discovered that the applicant was fronting his selfish reasons and withdrew her intentions of jointly applying for Letters of Administration.


- 3. The Applicant secretly tried to open a file at the Administrator General's office. - 4. The Respondent has never attempted to dispose of the Estate of the deceased or deal with it in a manner that is detrimental to the interests of the beneficiaries. - 5. A family meeting was held where it was unanimously resolved that Joweria Kimera, Ismail Kasule, the applicant and the respondent proceed to apply for Letters of Administration. - 6. The instant application is extremely sham and based on false evidence. - 7. That it is fair, just and equitable that the instant application is dismissed with costs.

## **4.0 Issues for Determination by this Court.**

- 1. Whether a Restraining Protection Order can be granted in the circumstances? - 2. Whether the Administrator General can take over the Estate of the deceased? - 3. What Remedies are available in the circumstances?

# **5.0 Burden of Proof.**

- 5.1 The Applicant by virtue of **Section 101, 102 & 103 of the Evidence Act Cap 6** has the burden of proving the facts alleged by her in the Petition on the balance of probabilities. - **6.0 Preliminary Objections**

**Preliminary Objection 1: The Respondent raised a Preliminary Objection to the effect that the applicant's Notice of Motion has never been served upon the Respondent.**


- 6.1 It was the Respondent's contention that she was never served with the Notice of Motion despite the fact that the applicant was directed by Court to serve the Respondent. The Respondent prayed that the Court finds that this application is defective and illegal for lack of service. Counsel for the Respondent submitted that the rules of service of summons and pleadings are mandatory and the applicant's failure to serve the application on the Respondent despite direction from Court to do so, prima facie makes the instant application illegal. - 6.2 **Counsel for the Respondent relied and cited Order 5 rules 1 (2) of The Civil Procedure Rules SI 71-1** which provides as follows; *Service of summons issued under sub-rule (1) of this rule shall be effected within twenty-one days from the date of issue; except that the time may be extended on application to the court, made within fifteen days after the expiration of the twenty-one days, showing sufficient reasons for the extension.* - 6.3 The Notice of Motion was filed at this Court on 2nd September, 2022. On 5th October, 2022, the applicant appeared before this Honorable Court and was directed by the Court to serve the Respondent at through a Court Process Server. An affidavit of Service deponed by a one Asiimwe Paul is on the file dated 18th October, 2022. The affidavit of service is to the effect that service was effected on the son of the Respondent because she was absent from her residence. The Respondent's son accepted to deliver the court directives to his mother.


- 6.4 The Applicant failed to serve the Respondent within the stipulated time, however, upon directives from the court, a court server served the Respondent with the court directives. This was as provided for under **Order 5 Rule 13 of the Civil Procedure Rules SI 71-1** that provides that service may be made on a member of the defendant's family residing with him or her. - 6.5 The Civil Procedure Rules are intended to serve as hand maidens of Justice, but not to defeat it. The Respondent was made aware of the Application against her and made an appearance in defense of her case. This is a family matter in respect to an estate that is allegedly in danger of being wasted. Therefore the matter must be heard by this court as it is enjoined to administer Justice with undue regard to technicalities as provided under **Article 126 (2) (e) of the Constitution of the Republic of Uganda 1995 as amended.**

**Preliminary Objection 2: The Respondent raised a Preliminary Objection to the effect that the applicant brought this application under Order 52 of the Civil Procedure Rules SI 71-1 as amended and later smuggled in Section 30 (1) & (2) of the Administrator General's Act, Cap. 157 as the substantive law under which the application was brought.**

6.6 This court finds that this Preliminary Objection, even when resolved in the affirmative, will not have the effect of disposing of this suit in its entirety. The resolution of this Preliminary

 Objection will only serve to preempt the discussion of Issue 2 of this application.

## **7.0 Resolution of Issues**

## **Issue 1: Whether a Restraining Protection Order can be granted in the Circumstances?**

- 7.1 The Applicant submitted that he is among the beneficiaries of the Estate of the late Jalia Nanyonjo. He contended that there are so many threats from the Respondent intended to mismanage the Estate of the deceased by selling the Estate to third parties without formalizing the process of distributing it. The Applicant stated that he tried to obtain the necessary documents to streamline the estate but to no avail as the Respondent has become hostile. He avers that the Respondent has tried to influence all the local leaders especially the Chairperson LC1 of the area not to grant a letter to process the death certificate at the Division. - 7.2 The Respondent contended that she has never tried to administer the Estate of the deceased without the requisite authority. She averred that the applicant's submissions that the Respondent is intermeddling with the estate are extremely vague and unfounded both at law and evidence. - 7.3 The Respondent submitted a copy of the Minutes of a family meeting of the beneficiaries of the estate of the deceased marked Annexure **"A"**. At this meeting, it was agreed that the Respondent and the Applicant together with two other persons


obtain Letters of Administration to the estate of the deceased. Under Paragraph 9 of the Respondent's affidavit in Reply, she avers that due to the Applicant's selfish interests, she withdrew her intentions of applying for Letters of Administration jointly with the applicant. Under Paragraph 10 of the Affidavit, the Respondent avers that the Applicant secretly attempted to open a file at the Administrator General's office.

- 7.4 It is clear that both the Applicant and the Respondent are children of the deceased. That it was resolved that they both apply for Letters of Administration together with Joweriya Kimera and Ismail Kalule. However, the Respondent did not apply for Letters of Administration with the Applicant despite the Resolution of the Family Meeting. She avers that this was done because the applicant was fronting his own selfish interests, but does not state what those interests were and in what way these interests were detrimental to the other beneficiaries. Furthermore, the Respondent also resides at the deceased's house and service was effected upon her at the premises which is an indicator that she is benefitting from the deceased's estate as contended by the Applicant. It is only fair that the unanimous decision of the beneficiaries at the family meeting be upheld. One party, the Applicant, cannot be blocked, eliminated or left out of the application for letters of administration by another party, the Respondent. - 7.5 The Respondent is therefore Restrained from entering, destroying, damaging, selling, wasting, alienating or/and


tampering with the estate of the late Jalia Nanyonjo that is to say a Kibanja located in Sebina Zone, Kalerwe, Kawempe Division and another estate located at Kanyanya all in Kampala District, until the rightful Administrator(s) of the estate are legally appointed.

## **Issue 2: Whether the Administrator General can take over the estate of the deceased?**

7.6 The Applicant relied on **Section 30 subsections 1 and 2 of the Administrator General's Act Cap 157** which provides that,

"*In all cases wherein a grant of letters of administration has been made in favour of the administrator General, the court may on application made to it give to the Administrator General any general or special directions as to any estate in his or her charge, or in regard to the administration of such estate and may decide all disputes, matters, claims and demands in respect of the estate"*

*"Subsection 2 of Section 30 of the Act is further to the effect that, the application under subsection (1) may be made by the Administrator General or any person interested in the assets or in the due administration of the estate.*

7.7 It is this court's considered finding that the Applicant wrongly relied on this section/ misinterpreted it. This section was framed to provide recourse to estates where the Letters of Administration had already been granted to the Administrator General in respect to further or specific directions as to the


estates management. In this case, Letters of Administration have not been granted to the Administrator General, therefore, special directions as to the management of the estate of the deceased cannot be issued by this Court to the office of the Administrator General.

7.8 The Administrator General can therefore not take over the Estate of the deceased under this section.

## **8.0 Conclusion.**

In the final result, the court orders as follows.

- 1. The Respondent is hereby Restrained from entering, destroying, damaging, selling, wasting, alienating or/and tampering with the estate of the late Jalia Nanyonjo that is to say a Kibanja located in Sebina Zone, Kalerwe Kawempe Division and another estate located at Kanyanya all in Kampala District, until the rightful administrator(s) of the estate are legally appointed and granted Letters of Administration. - 2. The Applicant is entitled to apply for Letters of Administration over the Estate of the Late Jalia Nanyonjo together with Joweriya Kimera and Ismail Kalule. - 3. The Chairperson LC 1 of the area where the late Jalia Nanyonjo shall issue a letter introducing the applicant and Joweriya Kimera and Ismail Kalule to National Identification Registration Authority (NIRA) to enable the beneficiaries obtain a Death Certificate and commence with the process of


obtaining Letters of Administration and any other role initiated by the Chairperson LC 1.

4. Each Party to bear its own costs.

*Dated, signed and delivered by email this 13th day of July, 2023.*