Kazooba v Mugisha (Civil Miscellaneous Application 4 of 2024) [2024] UGHC 400 (31 May 2024)

#### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

# 3 **CIVIL MISC. APPLICATION NO. 004 OF 2024**

#### **(ARISING FROM DIVORCE CAUSE NO. 002 OF 2022)**

# **KAZOOBA DAVID GUMA ::::::::::::::::::::::::::::::::::::::::::: APPLICANT** 6 **VERSUS MUGISHA PATRICIA :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE: HON. JUSTICE VINCENT WAGONA**

#### 9 **RULING**

#### **Introduction:**

12 This ruling determines the motion of the applicant seeking:

1. An order that Muganjano Joyce and Kwezi Albert being the two alleged issues of the marriage subject to litigation in Divorce Cause No. 006 of 2020 be 15 subjected to a DNA Paternity Test.

- 2. A protection order against the Respondent. - 3. An order against the respondent to re-open the matrimonial home. - 18 4. That the costs of this application be provided for.

#### **Grounds of the Application:**

- 21 The application is premised on the motion and the supporting affidavit of the applicant who deposed as follows: - 1. That the Respondent filed Divorce Cause No. 006 of 2022 against him. - 24


- 2. That prior to filing the said divorce cause, the respondent had lived an adulterous life having sexual intercourse with other men, at the different 3 times that she produced Muganjano Joyce aged 14 years and Kwezi Albert aged 11 years, the alleged issues of the marriage. - 3. That the applicant highly doubts his paternity to the above issues of the 6 marriage and a DNA test is necessary for the court to make proper orders of custody and maintenance of the said children. - 4. That after filing the divorce petition, the Respondent started harassing him 9 and locked the entire house including the matrimonial bed room and as such he has no place of abode. - 5. That he complained to police who advised him to follow up the divorce 12 case. That as a result, he cannot access his clothes, beddings; as well business and transactional and academic documents required for him to defend himself in the pending divorce case and to find a job. - 15 6. That he has since been left homeless with his other children. That being a retired civil servant, he is unable to build another home. That it is in the interests of justice that a protection order is issued, the Respondent ordered 18 to open the matrimonial home, and an order for a DNA for the two issues granted.

#### 21 **Reply of the Respondent:**

The motion was opposed by the Respondent who in her affidavit in reply stated as 24 follows:

- 1. That she bore the two issues with the Respondent and their paternity has never been questioned. That the DNA test was unnecessary and if the 27 applicant was interested, he should meet the costs involved.

- 2. That it was not true that the she chased the other children of the applicant. That it was the applicant who wanted to sale the family house and the 3 surrounding land. - 3. That it was not true that he was violent against the applicant; instead it was him who was violent towards her. That it is in the interests of justice that 6 the application is dismissed with costs.

### **Hearing and Representation:**

M/s Ahabawe James & Co. Advocates appeared for the applicant while M/s Kaahwa, Kafuuzi, Bwiruka & Co. Advocates appeared for the Respondent. Learned counsel

12 filed written submissions in support and opposition of the application which I have duly considered herein.

#### 15 **Issues:**

Three issues are pertinent for the determination of this application thus:

- 18 **1. Whether there is sufficient cause to warrant ordering a DNA test on the two issues that parties were blessed with in their union.** - **2. Whether there is just cause for grant of a protection order.** - 21 **3. Whether there is cause to order the Respondent to grant the applicant access to the family home.** - **4. What remedies are available in the circumstances?**

# **Submissions for the Applicant:**


Learned counsel for the applicant contended that since the applicant disputes the paternity of the issues, it is best to order a DNA test. That further the acts of the

- 3 Respondent against the applicant warrant grant of a protection order and an order to allow the applicant access the matrimonial home before the orders of distribution are made in the divorce case. He thus asked court to allow the application and the orders - 6 it seeks.

# **Submissions for the Respondent:**

In reply, it was submitted for the Respondent that the applicant has never questioned the paternity of the issues involved. That if he is interested in a DNA, test, he should

12 meet the costs involved. Further, that the Respondent has never been violent. That it was the Respondent who was cruel and violent against the Respondent and if any, a protection order must be issued against him. She asked court to dismiss the 15 application with costs.

# **CONSIDERATION BY COURT:**

- 18 Section 70 of the Children Act is to the effect that whoever alleges parentage bears the burden to prove the same. Section 71(1) adds that where a name of a father or mother of a child is entered in the register of births in relation to a child, a certified - 21 copy of such entry is primafacie evidence that the person indicated there as father or mother is indeed the mother or father of the child. This however is a rebuttable presumption which can be disproved by leading evidence to the contrary. (See: - 24 *Muzoora v Kabanyomozi (Civil Suit No. 71 of 2019) [2022] UGHC 40 (2 November 2022*).

This presumption may be rebutted by for instance DNA paternity evidence proving

27 otherwise. I have previously observed in **Muzoora v Kabanyomozi (supra),** that


with the evolvement of DNA testing, the position of a certified copy of the entry into the register of birth of the name of the father and mother as being conclusive proof

3 of parentage no longer holds in legal contestations. Science asserts that DNA is nearly 100% accurate at determining paternity. A DNA paternity test is a clearer and more concrete process of proving paternity than witness testimonies and statements 6 in the register. I still hold to the same view.

In **Serunjogi Charles Musoke & Anor. Vs. Tony Nkuubi, Originating Summons No. 07 of 2019** arising from **Admin. Cause No. 149 of 2010,** court cited with 9 approval the Kenyan case of **MMM v ENW M. A No. 7 of 2016**, where court cited with approval the Indian case of **BPs v CS Civil Appeal No. 6222 – 6223 of 2010** wherein the court observed that:

- 12 *". . . the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed . . . DNA should not be directed by court* 15 *as a matter of course or in a routine manner, whenever, such request is made, whether it is not possible for the court to reach the truth without use of such test. . ."* - 18 Justice Ketra further noted that Courts have held that in exercising its discretionary power to grant or not to grant the relief (DNA testing), court should be convinced that the application is made in good faith, and that it is not actuated or designed to - 21 economically exploit or embarrass or is otherwise an abuse of the process of court. **(See also: MW v KC Kakamega High Court Misc. Application No. 105 of 2004).** In the present application, the applicant doubts paternity of the issues he had with



period the said issues were conceived, the Respondent was involved in acts of sexual intercourse with multiple partners who she used to communicate with. The 3 Respondent on the other hand averred that the applicant has never questioned the paternity of the said issues. That however, if he is interested in conducting the paternity test, he should be ordered to meet the attendant costs.

- 6 The arguments on this issue involve two other persons paternity is questioned. There is no document on record in form of either a birth certificate or baptism card where the applicant is indicated as the father. Since the applicant disputes paternity of the - 9 said issues, the only concrete way to prove the same is through a DNA test. I have not detected any malice on the applicant's part or any intent to economically exploit the Respondent by seeking a DNA test. The Respondent seems unopposed to the - 12 DNA test on condition that the applicant meets the attendant costs. I therefore answer the first issue in the affirmative.

Section 2 of Domestic Violence Act No. 3 of 2010, defines a"**protection order**" as 15 an order prohibiting [domestic violence,](https://ulii.org/akn/ug/act/2010/3/eng@2010-04-09#defn-term-domestic_violence) restricting a person from harassing or threatening another person or restraining a person from contacting or approaching another person. The order is intended to ensure safety of persons living in a domestic 18 setting especially where one alleges violence from another. The order can only be granted where it is established that domestic violence has been committed or there is a threat of such violence being committed against another person. (See: *Section*

21 *12 of the Domestic Violence Act No. 3 of 2010*).

In addition to the above, under section 13 of the Act, the said order may be granted among others to; prohibit the [perpetrator](https://ulii.org/akn/ug/act/2010/3/eng@2010-04-09#defn-term-perpetrator) from committing or enlisting the help of 24 another person to commit an act of [domestic violence;](https://ulii.org/akn/ug/act/2010/3/eng@2010-04-09#defn-term-domestic_violence) direct the [perpetrator](https://ulii.org/akn/ug/act/2010/3/eng@2010-04-09#defn-term-perpetrator) to stay away from the premises or place where the [victim](https://ulii.org/akn/ug/act/2010/3/eng@2010-04-09#defn-term-victim) resides or any part of the premises,


if the prohibition is in the best interest of the [victim;](https://ulii.org/akn/ug/act/2010/3/eng@2010-04-09#defn-term-victim) prohibit the [perpetrator](https://ulii.org/akn/ug/act/2010/3/eng@2010-04-09#defn-term-perpetrator) from entering or approaching any place or premises where the [victim](https://ulii.org/akn/ug/act/2010/3/eng@2010-04-09#defn-term-victim) works, frequents, 3 attends or any part of the premises or place.

In the present application, the applicant contended that the Respondent is violent against him and chased him from the matrimonial home together with his other 6 children and locked up the house including the matrimonial bedroom. That as a result, the applicant is unable to access his personal clothes, beddings as well as his business transactional and academic documents. The applicant stated that he 9 reported these incidents at Fort-portal police station where the respondent was summoned and ordered to open the room but she refused to comply. The applicant did not attach any documentary evidence to support his claim that he had reported a

- 12 case to police against the respondent. On the other hand, the respondent denied the allegations and contended that it was actually the applicant who was violent against her and he had inspected the home several times in efforts to sell the family land - 15 during which he destroyed property and attempted to beat her. That on one of those occasions the applicant came armed with a panga. The respondent stated that she had reported one of the incidents to the LC1 Chairperson. The respondent had also - 18 reported all these incidents to police. The respondent cited the police reference numbers and attached the relevant police documents where she had reported a case of threatening violence against the applicant on 3/11/2023. The respondent also - 21 attached her written complaint to police against the applicant dated 14/2/2024. Regarding the claim that the respondent had sent away the applicant's other children from the home, the respondent stated that some live with their mother while others 24 are adults who now live on their own.


It therefore appears from the facts that there is some form of violence or threat of violence from either party. In my careful evaluation of the above evidence, I find the

- 3 evidence of the respondent more believable and probable that it is the applicant who has been more violent to the respondent although the respondent has prevented him from accessing the bedroom in order to access his personal clothes, beddings as well - 6 as his business transactional and academic documents. Therefore, a protection order would be necessary to protect the lives of the parties.

In the result, this application succeeds with the following orders:

- 9 **1. An order is hereby issued directing that a DNA Paternity Test be conducted involving the applicant and the two issues, namely, Muganjano Joyce and Kwezi Albert to determine the applicant's** 12 **paternity of the said issues.** - **2. The said DNA Paternity Test shall be carried out at the Government Analytical Laboratory in Wandegeya and a report filed in court** 15 **within 30 days from the date of delivery of this ruling.** - **3. The applicant and the respondent shall be permitted to witness the taking of the required samples for the said DNA Paternity Test in the** 18 **presence of the District Probation and Social Welfare Officer of Kabarole District or any person nominated by the said District Probation and Social Welfare Officer for the said purpose.** - 21 **4. All the costs and expenses involved in this exercise shall be met by the applicant.** - **5. A protection order is hereby issued restraining both the applicant and** 24 **the respondent from being violent to one another. In particular, it is hereby directed that the applicant shall stay away and/or continue to**


**stay away from the premises or place where the respondent is residing or any part of the said premises or place until further orders of this** 3 **court.**

- **6. The applicant shall with the assistance of the police and the LC authorities be permitted to access the premises or place where the** 6 **respondent is residing or any part of the said premises or place, only for the purpose of accessing and retrieving his personal clothes, beddings, business transactional documents, academic documents and** 9 **other personal effects.** - **7. There is no order as to the costs of this application.**

**I so order.**

Vincent Wagona

**High Court Judge / FORT-PORTAL**

**DATE: 31/05/2024**