Kawere & 4 Others v Temba & Another (Miscellaneous Application 1196 of 2024) [2024] UGHCLD 239 (18 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISCELLANEOUS APPLICATION NO. 1196 OF 2024 (ARISING FROM CIVIL SUIT NO 1524 OF 2O15)**

## **1. KAWERE GERALD SALONGO**

**2. NAMUGWANYA IMMACULATE**

- **3. NAKIWA JULIET** - **4. MUSISI MOSES** - **5. KAWERE GODFREY :::::::::::::::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

#### **1. TEMBA KALISITI**

**2. MAYANJA ANDREW ::::::::::::::::::::::::::::::::::::: RESPONDENTS**

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA**

## **RULING.**

#### *Introduction:*

1. This is an application by Notice of Motion brought under Section 98 of the Civil Procedure Act, Section 222 (Section 218 of the revised laws) of the Succession Act cap 268, Order 1 rule 10, Order

6 rule 19, Order 24 rules 4 and 12 and order 52 rules 1,2 and 3 of the Civil Procedure Rules (CPR) for orders that: -

- i) The respondents be appointed as administrators pendentelite for the purpose of representing the estate of the deceased in the pending suit. - ii) That the respondents thereafter be made parties to the suit as legal representatives of the deceased. - iii) The plaint to be amended to include the 2nd respondent as a defendant in the main suit. - *iv)* The costs of the application be in the cause.

### *Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by the 1st applicant on behalf of the other applicants which briefly states as follows; - i) That the applicants filed Civil Suit No. 1524 of 2023 against the 1st respondent as the administrator of the estate of the late Zakaliya Ssekandi for a delivery order for the certificate of title of land comprised in Kyadondo Block 82 Plot 506 out of Kyadondo Block 82 Plot 45, an order directing the 1st

respondent to transfer the suit land into the estate of the late Chrizestom Nganda among other prayers and the said suit is still pending before court.

- ii) That the late Zakaliya Ssekandi died on the 10th of April 1973 before transferring the suit land into the names of the late Chrizestom Nganda and the claim against the estate survived. - iii) That the 1st respondent held out to be the administrator of the late Zakaliya Ssekandi's estate and the suit land was registered in his names as the administrator of his late father's estate and he was sued then as such. - iv) That as the applicants were preparing for hearing of the suit, their lawyers sought for certified copies of the grant for letters of administration and application of the same. - v) That the 1st respondent withheld material information that his application for letters of administration was dismissed on 29th of April, 2021. - vi) That the estate of the late Zakaliya Sseknadi has no administrators yet and the respondents are in process of

obtaining letters of administration to the estate of the late Zakaliya Ssekandi.

vii) That the respondents are familiar with the facts of the pending suit and they are in position to pursue the same to its conclusion.

### *Respondent's evidence;*

- 3. The application is responded to by an affidavit in reply deponed by the 1st respondent which briefly states as follows; - i) That I am a beneficiary to the estate of the late Zakariya Ssekandi thus depone this affidavit in that capacity - ii) That there is no pending suit in the names of the late Zakaliya Ssekandi to warrant the grant of administrators pendent lite. - iii) That the applicants ought to have filed the instant application to the family division and that the 2nd respondent in the instant application is not a party to the main suit. - iv) That an application for administrator pendent lite, to amend pleadings and to add a different party are different applications and the same require independent applications.

#### *Rejoinder;*

4. In rejoinder, the 1st applicant briefly stated as follows;

- i) That the respondents do not deny that they had earlier applied for letters of administration for the estate of the late Zakaliya Ssekandi and that the 1st respondent is the registered proprietor to the suit land as an administrator of the said estate. - ii) That it is not true that the respondents do not have knowledge of the pending suit filed against the 1st respondent and that the 1st respondent proceeded to file a defense to the same. - iii) That there need not be a pending suit in the names of the late Zakariya Ssekandi for this application to be granted. - iv) That the 2nd respondent need not be a party to the main suit for him to be added as a defendant to the main suit. - v) That there is no need to have this application before the family division and this honourable court has the powers to grant the orders sought by the parties and that this is an

omnibus application which tends to cure abuse of court process.

#### *Representation;*

5. The applicants were represented by Counsel Enos Buluma holding brief for Counsel Muhammad Ali Kajubi of MS M. A Kajubi & Co. Advocates whereas the 1st respondent was represented by Counsel Kikomeko Swaibu of M/S Kivumbi Madinah Kikomeko Advocates & Solicitors there was no representation from the 2nd respondent. Both the applicants and the 1st respondent proceeded by way of written submissions which I have considered in the determination of this application.

# *Issues for determination;*

- *i) Whether the respondents can be appointed as administrators pendent lite for purposes of representing the estate of the deceased in the pending suit?* - *ii) Whether the plaint in the main suit can be amended to include the 2nd respondent as a defendant?*

#### *Resolution and determination of the issues;* - 6. Counsel for the 1st respondent raises preliminary objections which are to the effect that the instant application is brought under the wrong law and the wrong court. This court will proceed to determine the preliminary objections first before proceeding with the merits of the application. - 7. Counsel for the 1st respondent refers to section 222 of the succession act and order 24 rule 4(1) of the civil procedure rules and submits that where the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to a party in a suit. In the instant case there is no executor or administrators of the estate who are unwilling to act and that the pending suit is in the name of 1st respondent not the deceased. - 8. Further counsel for the 1st respondent submits that an application for administrator pendent lite where there is no pending suit in the name of the deceased, such application ought to be filed in the High Court (family division) not the land division. - 9. In responding to the said objection, counsel for the applicants submits that the provisions of section 222 of the succession act read together with section 98 of the civil procedure act enjoins this

honourable court with unlimited jurisdiction to grant this application and that there need not be a pending suit in the name of the deceased person to have this application granted.

- 10. I bring to the attention of both counsel that section 222 of Succession act has since been revised to section 218 of the same Act which provides that *"When it is necessary that the representative of a person deceased is made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in the suit, Limited for the purpose of representing the deceased in that suit or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in that cause or suit, and until a final decree shall be made in it, and carried into complete execution"* - 11. The wording of the said provision relates to situations where there is necessity for the representatives of the deceased person to be made a party to a suit and the holder of the letters of administration is unable or unwilling to act, letters of

administration may be granted to the nominee of a party in the suit limited for purpose of representing the deceased in that suit.

- 12. In the instant application, the main suit is against the 1st respondent as an administrator of the estate of the late Zakaliya Ssekandi and the claim in the suit is based on the fact that the late Chrizestom Nganda purchased the suit land from the late Zakaliya Sekandi as per the sales agreement attached on the plaint and that the late Zakaliya Ssekandi passed on before he had transferred the certificate of title to the suit land into the names of the late Chrizestom Nganda. - 13. As the main suit was proceeding against the 1st respondent/1st defendant as an administrator of the late Zakalia Ssekandi, counsel for the plaintiffs/applicants made a prayer before court for the 1st defendant to avail to him certified copies of the letters of administration, however the 1st respondent brought it to the attention of court that the entire application for letters of administration was dismissed by the assistant registrar on the 29th of April 2021 and that at the moment the estate of the late Zakaliya Ssekandi had no administrators.

- 14. It is due to the said findings that the applicants are moving court to have the respondents' appointed administrators of the estate of the late Zakaliya Ssekandi for purposes of proceeding with the main suit only. - 15. The 1st respondent as someone who had attempted to apply for letters of administration for the estate of the late Zakaliya Ssekandi it can be inferred that he is well versed with the facts of the estate of the late and the fact that the 2nd respondent was not party to the main suit is not material in the circumstances at hand, it is evidence of the applicants that the respondents are well versed with facts regarding the administration of the estate of the late Zakaliya Ssekandi and the respondents did not adduce any evidence to the contrary. - 16. The grant in such an application is only limited for the purpose of filing or prosecuting a suit or defending a suit, with no powers to the grantee to distribute or deal with the estate under the grant. *(See; Okway John Kimbo Vs Oddia Nuru & Anor, Misc. App*

# *No.0039 of 2016,Before Justice Stephen Mubiru)*

17. I am of the view that the presence of the respondents in the main suit as representatives of the estate of the late Zakaliya Ssekandi is for purposes of proceeding with the suit only and does not extend to administration or distribution of the estate of the late.

- 18. Further it was the submissions of counsel for the applicants when he referred to order 6 rule 19 of the civil procedure rules that speaks to amendment of pleadings to have the plaint in the main suit amended and include the 2nd respondent as a defendant in representative capacity for purposes of proceeding with the suit. - 19. It is to the finding of this court that the main suit which is based on a dispute that relates to land ownership is rightly before this court and so is the instant application, this is not an application that dwells into the factors that relate to the distribution of the estate of the late Zakaliya Ssekandi's estate nor are the applicants claiming as beneficiaries to the estate of the late. - 20. Upon resolving and determining the raised preliminary objections, this court does not find it necessary to proceed with the determination of the issues. - 21. In the result therefore, this court is of a finding that the instant application succeeds with the following orders;

- i) That the respondents are appointed administrators pendente-lite for the purpose of representing the estate of the late Zakaliya Ssekandi for purposes of proceeding with the suit. - ii) The plaint in the main suit vide Civil Suit No.1524 of 2023 be amended to include the 2nd respondent among the defendants. - iii) Costs of the application to be in the main cause.

# **I SO ORDER**.

## **NALUZZE AISHA BATALA**

#### **Ag. JUDGE**

# **18/10/2024**

# **Delivered electronically via ECCMIS on the 18th day of October, 2024**