Kyzyma v Okello (Divorce Cause 79 of 2022) [2023] UGHCFD 119 (28 July 2023)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **(FAMILY DIVISION)**

#### **DIVORCE CAUSE NO.79 OF 2022**

**KYZYMA KATERYNA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PETITIONER**

#### **VERSUS**

**WALTER OKELLO ANGOL :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **Before: Justice Ketrah Kitariisibwa Katunguka.**

### **Judgment.**

### **Introduction:**

- 1. Kyzyma Kateryna (herein referred to as **'the petitioner'**) brings this petition for divorce against Walter Okello Angol (herein after called **'the respondent'**); seeking orders; for a Decree Nisi and Absolute dissolving the marriage between the petitioner and the respondent on grounds of desertion, adultery and cruelty.; granting custody of the issues of the marriage to her; directing the respondent to pay the petitioner alimony of UGX1,000,000/= (one million Uganda shillings only) per month;directing the respondent to pay the petitioner maintenance for the issues of the marriage; directing the respondent to pay school fees and provide medical insurance of the issues of the marriage; for a permanent injunction restraining the respondent from interfering with the body of the petitioner; for any other relief that this court may deem fit. - 2. The petition is supported by a copies of; the petitioner's passport and certificate of residence, the marriage certificate, birth certificates of the children, rent agreement, text messages and email exchanges between the respondent and Betty Nassali, police reference report form, the respondent's appointment letter, school fees structures, proof of child support, transfer form for land comprised in Block 442, plot 400 Busiro Mengo.

# **The facts:**

- 3. The petitioner is a Ukrainian citizen domiciled in Uganda while the respondent is a Ugandan citizen; the petitioner and the respondent were united in marriage on 29th of February 2008 at Entebbe Municipal Council, Uganda and begot two issues in the marriage, called Hillary Okello and Maxwell Okello Angol (herein called **'the children'**);the respondent has been and is in adulterous relationships with a one Betty Nassali and Ritah Atukunda; has since 2019 to date deserted the petitioner and the children; denied her sexual relations for over 3 years; due to high dependency on alcohol, the respondent has on several occasions been cruel, violent and emotionally abusive; the children while visiting the respondent have been exposed to instances of cruelty from the respondent's adulterous partners without shield from the respondent, therefore the petitioner prays for sole custody; - 4. Together with the respondent, they purchased matrimonial property - land comprised in plot 400 Block 442 Busiro measuring 0.056 hectares situate at Victoria Estate; the petitioner currently resides at rented premises situate at Namuli Katabi Basambaga, Entebbe Uganda; - 5. The respondent has abandoned his fatherly responsibilities towards the children; the petitioner is solely struggling to raise money for the medical bills, food and other requirements for the children; the respondent has occasionally partly contributed towards the children's school fees but prays for a monthly payment of UGX 1,000,000/= as the children's maintenance from the respondent to cater for rent, feeding, clothing and utility bills; - 6. The respondent should pay school fees, medical insurance and out of pocket expenses, travel, holidays, vacation and entertainment and other miscellaneous expenses; and UGX. 1,000,000/= as alimony per month; because the respondent is gainfully employed as a lecturer at Mbarara University of Science and Technology, the petitioner believes that he can afford both alimony and maintenance as prayed for; there has been no collusion or connivance between the petitioner and the respondent. - 7. The respondent did not file an answer to the petition. The position of the law is that a party who fails to file a defence puts himself out of court and no longer

has any locus standi and cannot be heard. (see: *Sengendo Versus Attorney General (1972)1 EA 140; Mufumba Fredrick V. Waako Lastone Revision Cause No. 006 of 2011*); therefore, the respondent having failed to file an answer to the petition, she automatically lost the right to be heard. I shall therefore go ahead to resolve the petition on the facts and evidence adduced by the petition.

## **Representation:**

The petitioner is represented by counsel Harold Turigye of M/s CR. Amanya Advocates and Solicitors.

8. When the matter came up for mention on 7/9/2022, the respondent was absent, counsel for the petitioner informed court that he was served with the summons and hearing notice; the affidavit of service dated 5/9/2022 deposed by counsel for the petitioner showed that the respondent was contacted by telephone and email; court directed that the respondent be served by substituted service. On 2/3/2023 the matter came up for hearing, the respondent was still absent, counsel for the petitioner informed court that the respondent was served by substituted service as directed by court; an affidavit of service dated 21/9/2022 with a copy of New Vision newspaper showing summons to answer to a divorce petition addressed to the respondent was published; as prayed by the petitioner's counsel, court ordered that the matter proceeds ex parte under Order 9 rule 11(2) of the Civil Procedure Rules.

# **Issues for determination:**

Counsel for the petitioner filed written submissions on issues as follows: -

- 1. Whether there are grounds for divorce? - 2. Whether the petitioner is entitled to the remedies as prayed for in the petition?

# **Consideration of the issues:**

Issue No.1. **Whether there are grounds for divorce.**

9. Section 1(a) of the Divorce Act cap.249 limits the grant of a decree of dissolution of marriage to when the petitioner is domiciled in Uganda at the time the petition is presented. According to the petitioner's passport UKR No. FC484319 marked as PId.1, she is a Ukrainian by nationality. In her witness statement, she testifies that she has permanently relocated to Uganda; this is supported by a Ugandan certificate of residence marked as PId.2; there is a tenancy agreement dated 22/9/2022 showing that the petitioner is a tenant paying rent for a house located at plot 20/22 Kisalu road Entebbe, Uganda; the petitioner is found to be domiciled in Uganda.

10. A marriage certificate exhibited and marked PExb.1; shows that the petitioner and the respondent underwent a civil marriage according to the laws of Uganda; so there is a valid marriage between the parties.

I shall proceed to determine if the petitioner's case presents grounds for divorce.

11. The petition is based on the grounds of desertion, adultery and cruelty. **Section 4 of the Divorce Act**; provides that provides for grounds of divorce was found unconstitutional in **Uganda Association of Women Lawyers (FIDA) & 5 Others v Attorney General Constitutional Petition No. 2/2003** on grounds of discriminatory application of the provision to men and women on the ground of sex, contrary to Article 31 (1) (b) of the Constitution. Courts have since gone ahead to hold that each of the grounds individually set out in the Act are equally available to both men and women. (see *Specioza Wandera Kazibwe v Engineer Charles Nsubuga Kazibwe ;DC No. 3/ 2003*) also cited in *Namuyimbwa Proscovia v David Ralph Pace; DC No. 14 of 2017.)*

### *Desertion:*

12. Desertion for purposes of divorce, must be an intentional withdrawal of a party to the marriage from the marriage both physically and emotionally with no intention of coming back or being held out as still married to the other party; the petitioner must prove that there was no reasonable or justifiable reason why the respondent left the marriage or withdrew her/his commitment to the marriage for more than 2 years(section 4 of the Divorce Act); In *Lang v. Lang [1954] 3 ALL ER 571* also cited by counsel for the petitioner; court stated at page 573 that; - "*To establish desertion two things must be proved: first certain outward and visible conduct- the factum of desertion and secondly the "animus deserendi"- the intention underlying this conduct to bring the matrimonial union to an end. In ordinary desertion the factum is simple: it is the act of the absconding party in leaving the matrimonial home. The contest in such a case will be almost*

*entirely as to "animus". Was the intention of the party leaving the home to break it up for good, or something short of, or different from, that?";* the petitioner testified that the respondent deserted the marital home and bed since 2019,(4 years); with no reasonable excuse and has not cohabited with her since then; (see also **Kayhul v Kayhul (Divorce Cause 123 of 2016).**

Desertion has been proved against the respondent.

## *Adultery:*

- 13. In *Mayambala V Mayambala High Court 1998*; adultery was defined as the voluntary sexual intercourse between a married person and person of the opposite sex, the two persons not being married to each other. Since it is hard to directly capture individuals in adulterous acts, courts have adopted reliance on circumstantial evidence which however must be corroborated;(see *Dr. Specioza Wandira Naigaga Kazibwe v Eng. Charles Nsubuga Kazibwe Divorce Cause 3/2003.* - 14. Marriage being a relationship that goes beyond the parties themselves and affects both close and extended families and even communities grounds for divorce must be clear not implied; divorce rips already close knit relationships and impacts children especially emotionally for life;The standard of proof therefore has been stated by courts to be higher than that of balance of probability (see *Veronica Habyarimana v Perfect Habyarimana [1980] HCB 139* where it was held that "…*in adultery, the burden of proof lies throughout on the person alleging it, there being no presumption of innocence…on the standard of proof of adultery, it is now well settled that where there is an allegation of adultery, it must be proved to the satisfaction of the court. While the evidence need not reach certainty, nevertheless, it must carry a high degree of probability...';* - 15. The petitioner claims that around May 2017, she discovered a trail of email, messages and WhatsApp conversations between the respondent and a one Nassali Betty an employee of Glorious Schools;she relied on email messages between the respondent and another woman admitted as PExb.5; they show the respondent using his email address a walter.angol@gmail.com exchanging

love and intimate messages with another woman called Betty Nasaali under gloriousschools14@gmail.com; promising to have sexual intercourse with that person;

16. The messages between a married man and another woman not his wife would corroborate the petitioner's claim of the respondent's adulterous acts during the subsistence of the marriage.

# *Cruelty*

- 17. Cruelty is defined by Oxford Languages Dictionary as 'behavior which causes physical or mental harm to another, especially a spouse whether intentionally or not'; since it can be emotional therefore it depends on the effect one's behavior has on another and how the other('victim') takes it; it may be subjective depending on one's emotional/ temperamental strength and character; that is why there is no definition for it in law so courts have considered facts of each case to determine what amounts to cruelty; which has been stated to include situations which have the effect of producing actual or apprehended injury to the petitioner's physical or mental health. ;danger to life, limbs or health or mental, or a reasonable apprehension of it, **(see Veronica Habyarimana v Perfect Habyarimana a [1980] HCB 139);** - 18. In **Mayambala v Mayambala DC 3/1998,** court relied on *Russell v Russell (1897) AC 395* for the definition of cruelty as willful and unjustified conduct of such character as to cause danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger. Sir John Nicholl in *Westmeath v. Westmeath (1817) 2 Hagg. Eccl. Supp. 1 at p.71* stated that while cruelty was impossible to define with precision, the test should be rather the effects produced than the acts done. Cruelty should be judged from its effects, not solely from the means by which those effects are produced. While judging whether the conduct is cruel or not, what has to be seen is whether that conduct, which is accumulative, renders the life of the spouse so miserable as to make it unreasonable to make one live with the other. - 19. The testimony of the petitioner is that the marriage was blissful but along the way, the respondent started exhibiting unbecoming behavior including adultery, violence, failure to provide for the family, heavy drinking of alcohol and disrespect; which caused psychological torture making the marriage a 'living hell';

- 20. The petitioner further testified that once she got to know about the respondent's involvement with another woman, the respondent turned violent and quarrelsome; he broke her phone, threw her on bed and left a mark on her hand; the following day she filed a report to the police; (police reference form SD REF: 23/30/09/19 filed at Entebbe Police Station, against the respondent concerning the offence of domestic violence) is on record); The petitioner further states that she has received calls from strange women telling her how they are with the respondent, and how she should leave him alone and raise her children better; and finally the petitioner contends that the respondent has denied her sexual intercourse since the desertion. - 21. The report to police shows that the respondent was reported to have been violent against the petitioner; the petitioner could have appeared to deny or concede but chose not to. Where one is sued and chooses not to defend one self he is deemed to have conceded. I would however find that other that the report on domestic violence which is proved by the police reference number; the alleged calls from strange women to her have not been proved.

I find that cruelty has been proved.

The first issue is answered in affirmative.

# Issue No.2. **Whether the petitioner is entitled to the remedies as prayed for in the petition?**

# *Matrimonial property.*

- 22. According to the petitioner's testimony during the subsistence of the marriage, the couple jointly purchased property that would be their matrimonial home, comprised in plot 400 block 442 Busiro measuring 0.056 hectares situate at Busiro Mengo, Victoria Estate at Entebbe. - 23. What constitutes "*matrimonial property" was defined* in *Muwanga v. Kintu High Court Divorce Appeal No. 135 of 1997* **(unreported)** where Bbosa J court held that; Matrimonial property is that property to which each spouse

should be entitled to and which the parties chose to call home and which they jointly contribute to.

In **Julius Rwabinumi v. Hope Bahimbisomwe, S. C. Civil Appeal No.10 of 2009;** *Kisaakye JSC* stated;*"So, while I agree that Article 31 (1) of the Uganda Constitution (1995) guarantees equality in treatment of either the wife or husband at divorce, it does not, in my opinion, require that all property either individually or jointly acquired before or during the subsistence of a marriage should in all cases be shared equally upon divorce... In my view The Constitution of Uganda (1995), while recognizing the right to equality of men and women in marriage and its dissolution, also reserved the constitutional right of individuals, be they married or not to own property either individually or in association with others under Article 26 (1) of The Constitution of Uganda (1995). This means that even in the context of marriage the right to own property individually is preserved by our constitution as is the right of an individual to own property in association with others who may include a spouse, children, siblings or even business partners. If indeed the framers of our Constitution had wanted to take away the right of married persons to own separate property in their individual names, they would have explicitly said so*…"

- 24. *Section 101 (1) of the Evidence Act Cap 6* provides that; "*Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist." (see: Sebuliba versus Co-operative Bank Ltd [1982] HCB 129*). The petitioner bears the burden of proving that the land in question is matrimonial property. - 25. The petitioner claims that the suit land is registered in the names of the respondent; she did not adduce evidence of a certificate of title, but rather a transfer form exhibited as PExb.9; showing that the land was transferred by Canaansites Limited to the respondent on the 23rd day of May 2015. According to **section 59 of The Registration of Titles Act (Cap 230),** a certificate of title issued under the Act is conclusive evidence of ownership of land, and shall be received in all courts as evidence of the particulars set forth in the certificate of title. *(Ddungu vs. Marc Widmer & Anor (Civil Appeal No. 38 of 2009) [2012] UGHC 253 November 2012)*. 26. In the absence of a certificate of title to land comprised in plot 400 block 442 Busiro situate at Busiro, Mengo, the respondent's ownership or registration cannot be made out. Neither has the petitioner proved or demonstrated her contribution in whatever form to the subject land. It is therefore, my finding that this land does not constitute matrimonial property.

## *Custody*.

- 27. The birth certificates adduced in evidence show that the petitioner together with the respondent are biological parents of Okello Hillary born on 13/6/2005 (now 18 years) and Okello Maxwell Angol born on 21/2/2009 (14 years). Article 257(1)(c) of the Constitution of the Republic of Uganda and Section 2 of the Children Act define a child as a person below the age of 18 years. Since Okello Hillary is now 18 years, he is no longer a child; court shall restrict itself to the child Maxwell Angol aged 14 years. - 28. Section 29 of the Divorce Act provides that *"in dissolution of marriage, the court may at any stage of the proceedings make such orders with respect to the custody, maintenance and education of minor children of the marriage."* - 29. The petitioner prays for the sole custody of the children; she deposes that by reason of the respondent's persistent alcoholism and instances of mental imbalance, he is not well placed to have custody of the children since it will jeopardize their welfare; that while visiting the respondent, the children have been exposed to cruel instances from the respondent's adulterous partners; however that she is open to the respondent having access to the children provided that court makes orders for him to seek medical attention for his mental issues and rehabilitation program for his addictions. - 30. The position of the law is that in matters concerning children their welfare must be of paramount consideration and courts have held so.(See the case of Joyce Deborah Alitubera and in the matter of Richard Masaba CA No. 70 & 81 of 2011 at page 8 where it was stated that;*"in all actions concerning Children undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be the primary consideration. This is as enshrined in Article in Article 34 of the Constitution, section 3 and 1st schedule of the Children Act and international conventions that Uganda is a party*

*to such as the UN convention on the Rights of the child (article 3(1); the African Charter on the rights and Welfare of the child(article 4(1)…"* they added that … *"Court and any person is enjoined to have regard to the ascertainable wishes and feelings of the child concerned in light of his age and understanding, child's physical, emotional and educational needs, the likely effects of change in the child's circumstances, the child's sex, background and any other circumstances relevant in the matter, any harm that the child has suffered and is at risk of suffering, the capacity of the child' parents, guardians or other involved in the care of the child in meeting his/her needs"*

- 31. The Children Act has since been amended by the **The** Children (Amendment) Act **2016 Act 9** where section 3 has been fortified by including the provisions of article 4(1) of the African Charter on the Rights and Welfare of the Child; - *32. Section 3 provides:'(1) 'The welfare of the child shall be of paramount consideration whenever the state, a court, a tribunal, a local authority or any person determines any question in respect to the upbringing of a child, the administration of a child's property, or the application of any income arising from that administration'.* - *33. (2) 'In all matters relating to a child, whether before a court of law or before any other person, regard shall be had to the general principle that any delay in determining the matter is likely to be prejudicial to the welfare of the child'.* - *34. (3)' In determining any question under subsection (1), court or any other person shall have regard to— 1)the ascertainable wishes and feelings of the child concerned, with due regard to his or her age and understanding; 2)the child's physical, emotional and educational needs;3) the likely effects of any change in the child's circumstances;4)the child's sex, age, background and any other circumstances relevant in the matter; 5)any harm that the child has suffered or is at the risk of suffering; and where relevant, the capacity of the child's parents, guardian or any other person involved in the care of the child, and in meeting the needs of the child."* - *35.* Section 4(1)(l) provides that every child shall have the right to*- 'exercise, in addition to all the rights stated in this Act, the rights set out in the United Nations Convention on the Rights of the Child and the Organization of African Charter on the Rights and Welfare of the child with appropriate modifications to suit circumstances in Uganda that are not specifically mentioned in this Act';* - 36. According to **Halsbury's Laws of England (4th Edition, Volume 13, Para 809)**: *"Where in any proceedings before any Court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take*

*into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other."*

- 37. It is a general rule that parents are joint guardians of a child and responsible for their welfare and protection. Article 31(4) of the Constitution of Uganda provides that; it is the right and duty of parents to care for and bring up their children; Section 4(1) of the Children Act (as amended) provides that it is the right of every child to stay with their parents or guardians. - 38. Unless there is a strong reason barring the parents from taking care of their children which reason presents a risk to the welfare of the children, children have a right to care, access and have a relationship with, their parents and, the same present as both a duty and a right to the parents vice versa(see Rwabuhemba Tim Musinguzi Vs. Harriet Kamakune (Civil Application No.142 of 2009) [2009] UGCA 34). - 39. Court in **Otto Methodius Pacific V. Edyline Sabrina Pacific C. A. C. A No.88of 2013;** adopted with approval the reasoning in the case of CX V. CY [2006] 4 LRC and held that in any custody proceedings, it is crucial that the courts recognize and promote joint parenting so that both parents can continue to have a direct involvement in the child's life; court further considered that custody is not only about care, control and access. It also involves the right to make long term decisions like education, religion, major healthcare decisions and others relating to a child; court concluded that sole custody should be exceptional, and should be granted only where for example physical, sexual, or emotional abuse by one parent is established. I hold the same view. - 40. The child's entitlement to parental responsibilities should neither be affected by the dissolution or annulment of the marriage or other formal relationship nor the legal or factual separation between the parents; his rights should never be fettered by the relationship/ or lack thereof; between his parents; The petitioner in this case has not proved the fact that by the respondent drinking

alcohol, the child shall be in danger while in his custody; besides that, there is no evidence that the respondent is mentally incapacitated to have custody of the child.

41. In the circumstances, joint legal custody of the child Okello Maxwell Angol is granted to both the petitioner and the respondent; with the petitioner having physical custody since the petitioner seems not to have been in the day today life of the child; the respondent shall have the right to spend time with the child as and when he requires but on prior notice to the petitioner; it being understood that the child's wishes shall always be taken into consideration*.*

## **Maintenance.**

- 42. **Article 34 (1)** of the 1995 Constitution of the Republic of Uganda provides that children shall have the right to know and be cared for by their parents or those entitled by law to bring them up; **sections 5 and 6 of the Children Act** provide that it shall be the duty of a parent, guardian or any person having custody of a child to maintain that child and, in particular, that duty gives a child the right to— (a) education and guidance; (b) immunization; (c) adequate diet; (d) clothing; (e) shelter; and (f) medical attention. - 43. The petitioner contends that the respondent has during the subsistence of the marriage not cared for the children's welfare; the respondent has now abandoned the children has failed to willingly provide the school fees, monthly upkeep and medical insurance; she presented copies of their children's school fees structure; she alleges that the respondent has contributed not more than 5 times to the children's school fees;she presented a copy of a tenancy agreement showing that she is incurring house rent of UGX. 700,000/- per month. - 44. The petitioner presented the respondent's letter of appointment showing that he is gainfully employed as a lecturer at Mbarara University of Science and Technology earning a monthly sum of a salary range of UGX. 26,992,372/= P. A to UGX.29,064,452/= P. A; she therefore prays for the child's maintenance of a monthly sum of UGX. 1,000,000/= as upkeep and rent against the respondent; she also prays that the respondent covers the school fees and medical expenses.

- 45. Financially capable parents must cater for the needs of their children irrespective of where the children are, and depending on the circumstances of each case, since it is the welfare of the children that matters (see **In the matter of Deborah Joyce Alitubeera) (supra).** - 46. I have found it pertinent to state that according to the school curriculum of this country, young adults of between 18 and 25 years of age are still in school, therefore jobless and unable to cater for themselves; although Okello Hillary is now 18 years he may still be in school until the age of 25 years, and still living at home, unless proved otherwise; both parents therefore have the duty to maintain him till he finishes school. - 47. Whereas it is not in contention that the respondent is gainfully employed and earns an income, the petitioner did not disclose her financial status to enable court access her contribution capacity towards the maintenance of the children; in my view, since petitioner claims that she has been solely proving for the children's basic needs and only received limited support from the respondent in respect to school fees, I am inclined to believe that she has an income and has a duty to contribute towards the maintenance of Okello Hillary and the child Okello Maxwell Angol. - 48. While both parents have equal responsibility towards the welfare of their children a parent who lives with the child will find him/her meeting none scheduled and none quantifiable costs attendant to the well being of the children including entertainment and leisure. - 49. It is therefore the decision of this court that the maintenance of the child and Okello Hillary(who is still a young adult) will be a shared responsibility between the petitioner and the respondent whereby the respondent shall contribute 80% towards rent, food, school fees, medical expenses, shelter, clothing and entertainment, among other needs.

## **Alimony .**

50. The petitioner prays for UGX.1,000,000/= as monthly alimony from the respondent. Under section 24 (1) of *The Divorce Act*, the court may on a decree absolute declaring a marriage to be dissolved obtained by a wife, order the

husband to secure to the wife such sum of money as, having regard to her fortune, if any, to the ability of the husband, and the conduct of the parties, it thinks reasonable. **Black's Law Diction 8th Edition page 228** defines the term alimony as "A court-ordered allowance that one spouse pays to the other spouse for maintenance and support while they are separated, while they are involved in a matrimonial lawsuit, or after they are divorced";

- 51. Alimony is not granted automatically as a matter of course because it is intended to breach the financial gap that arises as a result of divorce; therefore the attendant envisaged financial handicap must be proved**. In Ayiko Mawa Solomon Vs. Lekuru Annet Ayiko [2017] UGHCFD 1**; court held that, *"Alimony conceptualizes spousal support as compensation earned by the economically disadvantaged spouse (normally the wife) through marital investments and as a means of eliminating distorting financial incentives in marriage, as well as a way to relieving financial need. Under section 24 (1) of The Divorce Act, the court may on a decree absolute declaring a marriage to be dissolved obtained by a wife, order the husband to secure to the wife such sum of money as, having regard to her fortune, if any, to the ability of the husband, and the conduct of the parties, it thinks reasonable".* - 52. The petitioner has not proved her financial capacity or incapacity to help court to determine if she qualifies to receive monetary support and maintenance; she has been, according to her testimony, single handedly providing for the children and herself; she has not proved entitlement to alimony and this court has no basis on which to grant it.

## *Costs:*

53. It is trite law that costs follow the event so unless otherwise proved the successful party is entitled to costs (see section 27 of the Civil Procedure Act). The respondent shall meet the costs of this petition.

In the premises, the petition majorly succeeds and it is hereby ordered as follows:

1) The marriage between Kyzma Kateryna and Walter Okello Angol is hereby dissolved on account of desertion, adultery and cruelty; a decree nisi hereby issues.

- 2) Legal custody of Maxwell Okello Angol the issue to the marriage, is granted to both the petitioner and respondent but the petitioner shall have physical custody. - 3) Land comprised in plot 400 block 442 Busiro situate at Busiro, Mengo is not matrimonial property. - 4) The Respondent shall have the right to spend time with Maxwell Okello Angol anytime he wishes subject to one week notice to the Petitioner, it being understood that the wishes of the child shall be taken into consideration. - 5) The respondent shall contribute 80% towards the maintenance of Maxwell Okello Angol and Hillary Okello until they all finish school and are able to fend for themselves. - 6) The petitioner is not entitled to receive alimony from the respondent. - 7) The respondent shall bear the costs of this petition. - 8) The petitioner shall bring this divorce to the attention of the Registra of Marriages for purposes of updating their records.

Ketrah Kitariisibwa Katunguka Judge

28/07/2023

Delivered by email to:haroxitex@gmail.com,haroldturigye@cr.amanya.com