Kiberu v Ssekisaka (Miscellaneous Application 1289 of 2024) [2024] UGHCFD 63 (11 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) MISCELLANEOUS APPLICATION NO. 1289 OF 2024** 5 **(ARISING FROM CIVIL SUIT NO. 0244 OF 2022)**

## **KIBERU SSEBADUKA EMANUEL DAVID ………………... APPLICANT**

### **VERSUS**

10 **SSEKISAKA ARON …………………………………………… RESPONDENT**

## **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA**

#### **RULING**

#### **Introduction**

15 This is a Ruling in respect of an Application by Notice of Motion for Orders that:

- 1. The Respondent be subjected to a scientific DNA test to prove his paternity; and - 2. Costs of this Application be provided for.

#### 20 **Representation**

When the Application came up for hearing, the Applicant was represented by Mr. Akenda Solomon while the Respondent was represented by Mr. Kakande Kenneth Paul and Mr. Kyamanywa Edward Cooper.

#### **The Application**

The Application is supported by the Affidavit of Kiberu Ssebaduka Emanuel David, the Applicant while the Affidavit in Reply is deponed by Ssekisaka Aron, the Respondent.

The facts of this suit can be summarized as follows:

That the Applicant is the nephew of the late Solomon Kalulwe Ntulume (hereinafter referred to as **the deceased**) and the overseer of the affairs of the Kalulwe family. That the Respondent is not a child of the deceased since in the deceased's last Will, 10 the Respondent was never mentioned among the children and neither was he listed among the children of the deceased when Sarah Mbowa, David Mbowa, Mary Nansubuga and Edward Nsubuga (hereinafter collectively referred to as **the Executors**) applied for Probate in 1998. That the Applicant later learnt of a suit the respondent had filed at Family Division wherein he claims to be one of the children 15 of the deceased and also declares the widow of the deceased, dead. That as the

overseer of the Kalulwe family, it is his responsibility to ensure that the family lineage is preserved and protected against strangers and as such prayed that the Respondent is subjected to a scientific DNA test to prove the Respondent's paternity.

20 **In Reply**, the Respondent while opposing the Application, raised a point of law that the Application is misconceived as the Applicant lacks locus standi to bring the Application. That the Applicant is not a party but a stranger to Civil Suit No. 0244 of 2022 where the issue of paternity can best be determined; that as the parties in Civil Suit No. 0244 of 2022 during mediation resolved not to exhume the remains 25 of the deceased to carry out a DNA to determine the paternity of each issue; that the Respondent was 14 years old when the deceased died and he had never contested his paternity; that the Application is also time barred since the respondent is nolonger a

minor and neither is he a parent to contest his paternity; that one of the issues to be determined in Civil Suit No. 0244 of 2022 is whether the deceased died intestate and as such, the Applicant cannot base his Application on a document which is being contested; that at the deceased's last funeral rites, the Respondent was mentioned 5 among the deceased's children by an elder called Wakibugu Gidion; that the Respondent would have contested the deceased's Will at the earliest instance had he

known that he was not listed among the issues of the deceased but the process of applying for probate was kept as a secret and he never got the opportunity to participate in the process of securing the same; and that the Respondent's lawyer 10 mixed up the names and described the widow of the deceased as dead but that has

since been rectified and has no connection to this Application.

**In Rejoinder**, the Applicant averred that this Honourable Court is vested with inherent powers to make orders as may be necessary for the ends of justice and is 15 enjoined to administer justice without undue regard to technicalities; that as the overseer of the Kalulwe lineage, the Applicant has the responsibility of preserving the family bloodline and it is not necessary to have been a party to Civil Suit No. 0244 of 2022 to derive locus standi; that this Honourable Court has jurisdiction to enforce and recognize custom; that this Honourable Court on its own motion can 20 add the Applicant as a party to the suit; that the issue of DNA was actually raised by the 1st, 4th and 5th Defendants; that this Application does not seek exhumation orders as erroneously stated by the Respondent as there are other scientific methods of verifying paternity other than exhuming the body and that the purported Consent is not on the record of Court; that Applications for DNA testing are not restricted to 25 minors and that the Applicant need not to be a parent of the Respondent to contest his paternity; that the issue of whether the deceased died intestate does not form grounds of this Application; that it was deliberate that the Respondent's name missed

on many occasions hence warranting a scientific DNA test to confirm his paternity; that because the Respondent was neither the Executor nor any authorized person, he did not have the locus to participate in the process leading to securing probate; that the mix up in the widow's name was deliberate and made in bad faith with a view to

5 make it impossible for the widow to participate in managing the affairs of her late husband; that it was immaterial at that time that a DNA test was necessary between the deceased and the Respondent; and that it is in the best interest of the Respondent to confirm his paternity and it is suspicious that the Respondent does not want to know who his real father is/was which is also the interest of the family in order to 10 resolve the long and outstanding question of the respondent's paternity.

#### **Issues**

The issues for Court's determination are:

- 1. Whether the Respondent should be subjected to a scientific DNA test; and - 15 2. What is the most appropriate procedure for carrying out the DNA test?

Before resolving the above issues, I will first deal with the Preliminary Objections raised by Counsel for the Respondent. In his submissions, Counsel for the Respondent contends that the Applicant lacks locus standi to bring the instant 20 Application; and that the instant Application is misconceived and unsustainable before this Court.


Concerning **the Applicant's lack of locus standi**, Counsel for the Respondent while citing the case of *DFCU Bank LTD & 3 Others versus MP. Electronics Limited &*

25 *Another Miscellaneous Application No. 0124 of 2024*, submitted that HCCS No. 0244 of 2022 was brought specifically for revocation of the grant of Letters of administration of the estate of the deceased for which the Applicant is neither a plaintiff nor a defendant in the said suit; that the Applicant acknowledges that he is not a beneficiary of the estate of the deceased and as such has no interest in the suit pending before this court; that the dismissal of the instant application will not affect the Applicant in any way and prayed that this Honourable Court finds that the

5 Applicant has no interest in the head suit pending before this Court.

**In reply**, Counsel for the Applicant while citing the cases of *Njau & Another versus City Counsil of Nairobi [1976-1985] 1 EA 397 at 407; Dima Dominic Poro versus Inyani Godfrey and Apiku Martin High Court Civil Appeal No. 0017 of 2016*; 10 Article 377 of the 1995 Constitution of Uganda; Objective XXIV of the National Objectives in the 1995 Constitution of the Republic of Uganda; and Section 14 (2) (b) (ii) of the Judicature Act contended that it was a well-established culture and usage that in Buganda, every family has a body of clan heads which organization stems from the different families in the kingdom; that among the clan heads are the 15 "Abataka, Abakulu bebika, Abakulu bolunyilili, Abakulu bempya, Abakulu ba mayumba" and these personnel have different responsibilities among which is the preservation of the family lineage from strangers; that this custom and usage has not been rendered repugnant by any law or Court in Uganda; and that it is in that capacity that the Applicant brought this Application. The Applicant further contends that he 20 has locus to bring the Application in his capacity as one of the family heads of the Kalulwe family. As such his interest cannot be said to be so remote as he is directly concerned about the affairs of the family since he is the head and his authority is not

denied by the Respondent.


25 Regarding the issue of the Applicant not being a party to Civil Suit No. 0244 of 2022 (the main/head suit), Counsel for the Applicant while citing Article 126 (2) (e) of the 1995 Constitution of the Republic of Uganda, Order 1 Rule 10 (4) of the Civil Procedure Rules and the case of *Tendo Sunitah (through next friend Kiconco Janet) versus Annet Tumwebaze Mugasha Miscellaneous Application No. 0957 of 2023*, contended that the Court on its own motion can add the Applicant as a party to the main suit; that the issues of the DNA were raised by the parties in the main

- 5 suit but were never resolved; that the fact that the Applicant is not a party to the main suit is a mere technicality which cannot bar the Court to pass the orders applied for by the Applicant which will in turn help to dispose of the matter to avoid further litigation and wastage of Court's time; that the parties in the main suit had already got interested in the orders that the Applicant is seeking for, as such, the Applicant's - 10 Application is in good faith to assist the rest of the parties who wanted to put the Respondent to a DNA test in order to prove his paternity; that the DNA is in the best interest of the Respondent in order to resolve the anomaly of his paternity for good.

## **Court's Decision**


15 Locus standi was defined in the case of *Hon. Sekikubo Theodore & Others versus Attorney General Miscellaneous Cause No. 0092 of 2015* to mean a place of standing; it is the right to be heard in Court or other proceedings.

In the case of *Law Society of Kenya versus Commissioner of Lands & Others Civil* 20 *Case No. 464 of 2000*, it was held that locus standi signifies a right to be heard and that a person must have sufficiency of interest to sustain his standing to sue in Court.

Also, in the case of *Dima Domnic Poro versus Inyani Godfrey & Another High Court Civil Appeal No. 0017 of 2016*, it was held that the issue of *locus standi* is a 25 pure point of law that can properly be raised as a preliminary objection; that in determining such a point, the Court is perfectly entitled to look at the pleadings and other relevant matter in its records. Court further held in the above case that,

*"… for any person to otherwise have locus standi, such person must have "sufficient interest" in respect of the subject matter of a suit, which is constituted by having; an adequate interest,*

5 *not merely a technical one in the subject matter of the suit; the interest must not be too far removed (or remote); the interest must be actual, not abstract or academic; and the interest must be current, not hypothetical. The requirement of sufficient interest is an important safe-guard to prevent having "busy-bodies" in litigation, with misguided or trivial complaints. If the requirement did not exist, the courts would be flooded and persons harassed by irresponsible*

10 *suits."* **[Emphasis Mine]**

In the case of *DFCU Bank LTD & 3 Others versus MP. Electronics Limited & Another Miscellaneous Application No. 0124 of 2024,* it was held that locus standi is predicated on a person having a "direct" or "sufficient" interest in the subject

- 15 matter of the litigation. That a person has "direct interest" when he or she has suffered a legal grievance, or is a person against whom when the decision is pronounced, will be deprived of something, or denied something, or will be affected, his or her title or other interest, or will be exposed to a liability or obligation, or in respect of whom the relief sought is capable of conferring a direct benefit or - 20 detriment. [Emphasis Mine]


It was further held in the DFCU Bank case, supra that what constitutes "sufficient interest" will essentially depend on the co-relation between the matter brought before the Court and the person who is bringing it. A person who has an interest in

25 the outcome, is one in whose respect the outcome will result into a specific, identifiable interest by which their legal rights or liabilities are affected, potentially resulting in an adjustment in their position; a real stake in the proceedings at hand. [Emphasis Mine]

Considering the Application before this Honourable Court, the Applicant in paragraph 1 of his Affidavit in Support of the Application states that he is **the nephew** to the late Solomon Kalulwe Ntulume. [Emphasis Mine] This alone shows 5 that his relation with the deceased is not direct. The Applicant simply mentions the deceased as his paternal uncle but does not describe his consanguinity with the deceased. Is he a child of the deceased's brother or cousin? This is because any of these relations would amount to the Applicant referring to the deceased as his paternal uncle. I find that the Applicant's relationship in this matter is not well 10 defined which leads me to question his interest in this matter. The deceased being the Applicant's paternal uncle makes the Applicant's interest too far removed.

It would be understandable if the biological brothers and sisters of the deceased were the ones questioning the paternity of the Respondent because their relationship is 15 close as opposed to a nephew of the deceased. I therefore find that the Applicant does not have a direct interest in the matter for him to have sufficient locus standi to lodge this Application. One is left to wonder of what interest is this matter to the Applicant seeing that he is not as close as he wants this Honourable Court to believe

that he is, seeing that he is neither a biological brother to the deceased nor one of the

20 beneficiaries to the estate of the deceased.


Further still, the Applicant does not avail this Court with any evidence of how he came to be the overseer of the affairs of the Kalulwe family. Was he appointed to carryout that responsibility? If yes, I would expect a copy of the minutes where he 25 was appointed as such or at least an Affidavit of another person attesting to that fact because I believe that for such appointments to happen, usually there is a meeting called/held or it is a well-known fact. However, in this instance there is nothing that

was filed on Court's record to show or to prove the Applicant's appointment as an overseer of the Kalulwe family.

Concerning the issue of the Applicant not being a party to Civil Suit No. 0244 of 5 2022, it is true that he is not a party to the said suit and whereas it is true that this Honourable Court has the discretion on its own motion to add any person it deems fit as a party to a suit, I do not find the Applicant as a necessary party to be added to the main suit in order for this Court to effectually and completely adjudicate the said suit. As already stated, the Applicant's interest is questionable and far-fetched as he 10 is neither a biological brother nor a beneficiary to the deceased's estate. The Applicant too, has not provided any evidence to show when, how or by who he was appointed as the overseer of the Kalulwe family.

Also, I do not find it a mere technicality that the Applicant is not a party to the main

- 15 suit. Counsel for the Applicant should know this better and should have advised his client on the process of being added as a party to the main suit as opposed to merely imagining that the Court can at its discretion add the Applicant as a party. Unfortunately, as the case is in this instant Application and for reasons already stated above, I do not find sufficient reason as to why the Applicant should be added as a - 20 party to the main suit.


More so, the Applicant has not provided any evidence to the fact that the other parties on the main suit were also interested in the orders being sought by him in this Application. What the Applicant seeks to rely on is a Mediation Case Summary that 25 is neither signed by any of the parties nor by Court and in the said document, the DNA test was to be conducted on all the three children of the deceased who are alive. One wonders why the Applicant is now zeroing down to only the Respondent. Wouldn't it be in the interest of justice that all the children of the deceased be subjected to the said DNA test if indeed the Applicant is trying to ascertain the truth concerning the rightful beneficiaries of the deceased's estate? I find that the Applicant has not brought this Application in good faith.

Also, the Applicant did not contest the fact that the Respondent was raised by the deceased for 14 years of his life and during those 14 years, the deceased never subjected the Respondent to a DNA test. One would wonder why the Applicant is so interested in contesting the paternity of the Respondent at this stage of his life and 10 yet as already stated above, he is not even the right person who should be contesting

the Respondent's paternity.


Without prejudice to the above, I have had the opportunity of interacting with the parties on the main suit. The first time they appeared before me (20th March 2024), 15 the parties and their Counsel requested for more time to settle the said matter out of Court by appearing before a Mediator of the Court. The last time the parties and their Counsel appeared (19th September 2024), they told this Honourable Court that they had entered into a consent and only two issues remained for this Court to resolve and none of those two issues pertained to conducting a DNA test on the Respondent.

I am confident that the issues that need to be resolved by this Court are well known to the parties and adding the issue of a DNA test that the Applicant is trying to raise at this time when a Consent has been entered will distort the harmony that is being created among the parties. As is the mandate of the Family Division, mending and 25 not breaking families is our priority. Therefore, it would not serve the interest of justice to allow the Applicant open up another can of worms to destroy the new bond among the parties.

In light of the above, I find that the Applicant lacks the necessary locus standi to lodge or bring this Application. As such, the Respondent's first preliminary objection is sustained.

Regarding the objection as to **the Application is misconceived and unsustainable before this Court**, Counsel for the Respondent still citing the case of *DFCU Bank LTD & 3 Others versus MP. Electronics Limited & Another Miscellaneous Application No. 0124 of 2024*, submitted that the instant Application is not a

- 10 Miscellaneous Cause but rather an interlocutory Application because it arises from HCCS No. 0244 of 2022. As such the Applicant has no substantive suit before this Court from which the Application arises, it has no foundation and is unsustainable in law. - 15 The Applicant in his additional submissions did not make any submissions on the said preliminary objection.

## **Court's Decision**

In the case of *DFCU Bank LTD & 3 Others versus MP. Electronics Limited &*

- 20 *Another Miscellaneous Application No. 0124 of 2024, supra* cited by Counsel for the Respondent, an interlocutory Application was defined as an Application to the Court in any suit, appeal or proceeding already instituted in such Court, other than a proceeding for execution of a decree or order. By their nature and purpose, interlocutory Applications seek interim reliefs and do not by their objective resolve - 25 the parties' rights as pleaded in the pleadings. [Emphasis Mine]

In agreement with Counsel for the Respondent, I find that this Application is indeed an interlocutory Application having arisen out of Civil Suit No. 0244 of 2022 that is instituted in this very Court. However, as already stated above, the Applicant is not a party in Civil Suit No. 0244 of 2022 and I find no sufficient reason as to why he

5 should be added as a party. As such, the Applicant cannot lodge a Miscellaneous Application, which is an interlocutory Application out of the main suit for which he is not party to.

In light of the above, I find that this Application is wrongly lodged and the Applicant has no substantive suit before this Court. Therefore, the 2nd 10 preliminary objection is also sustained.

Having sustained or upheld all the preliminary objections raised by the Respondent and/or his Counsel, I find that they dispose of this entire Application. As such, I will 15 not delve into resolving the issues raised by the Applicant. The Applicant has no locus to institute this suit and the suit is also not properly lodged in this Court.

## **Conclusion**

This Application is dismissed and its costs shall be borne by the Applicant.

**Dated at Kampala this 11th day of October 2024.**

............................................

Alice Komuhangi Khaukha

## 25 **JUDGE**

11/10/2024