Magambo v Magambo (Miscellaneous Application 293 of 2023) [2024] UGHC 456 (14 June 2024)


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-MA-0293-2023**

## 5 **(ARISING FROM HIGH COURT MISCELLANEOUS APPLICATION NO.74 OF 2023) (ALL ARISING OUT OF ADMINISTRATION CAUSE NO.0056 OF 2013)**

| | MPUMWIRE MAGAMBO ---------------------------------------------<br>APPLICANT | |----|-----------------------------------------------------------------------------| | | VERSUS | | 10 | AMANDA MAGAMBO ----------------------------------------------<br>RESPONDENT |

**BEFORE:** Hon. Justice Nshimye Allan Paul M.

#### **RULING**

#### 15 **REPRESENTATION**

The Applicant was represented by Adv. Niwagaba Wilfred from M/s Niwagaba Advocates & Solicitors, while the Respondent was represented by Adv. Dr. Tusasirwe Benson from M/s Tusasirwe & Co Advocates.

#### 20 **BACKGROUND**

This application was brought under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Order 52 Rules 1,2 and 3 of the Civil Procedure Rules seeking orders that;

- i. All those claiming to be beneficiaries as children of the late John Eric 25 Magambo including the parties hereto be subjected to a DNA test to prove their paternity before the distribution of the deceased's estate can be made by the Administrator of the estate. - ii. The costs and charges payable in the process of carrying out the DNA tests be met from the estate accounts. - 30 iii. Costs of this Application be provided.

The application is supported by the affidavit deponed by the Applicant and was opposed in an affidavit deponed by the Respondent.

### **GROUNDS**

- 5 The grounds of the application as set out in the notice of motion are as follows; - 1. The Applicant is the surviving administrator of the estate of the late John Eric Magambo. - 2. The Applicant honestly believes that he is one of the children of the late John Eric Magambo and qualifies as a beneficiary of his estate. - 10 3. That during his lifetime, the late John Eric Magambo did intimate to the Applicant that some of the latter's siblings who claimed to be the deceased's children and were passing out as his children were not infact his children including the Respondent herein. - 4. The Respondent has *vide* Miscellaneous Application No.74 of 2023 in her - 15 affidavit in rejoinder specifically mentioned Grace, Judith, Benson and Godwin as not being children of the deceased, who must be tested to confirm their paternity; and it is the Applicant's strong conviction that the DNA test be carried out on all those claiming to be children of the late John Eric Magambo but not the few pointed out by the Respondent. - 20 5. That as an administrator, the Applicant finds it necessary and equitable that the said estate only be distributed to the rightful beneficiaries who can only be determined after all those claiming to be the deceased's children including the Applicant and Respondent hereto and others not parties herein, have been subjected to a DNA test to prove paternity and only those confirmed to be his 25 children be the entitled beneficiaries. - 6. It is just, fair and equitable that this application be granted.

#### **SUBMISSIONS**

#### **Applicant's submissions**

The Applicant filed his submissions on 14th 30 November, 2023 and submitted that Hon. Justice Ssekaana Musa conclusively dealt with the issue of distribution of the estate of the late John Eric Magambo in a ruling delivered on 14th January, 2020 *vide* Miscellaneous Application No.74 of 2023**,** but that the said ruling has never been implemented due to issues regarding paternity of the individuals claiming to beneficiaries and children of the late John Eric Magambo. It is upon that background that the Applicant brought to application to prove paternity of the true beneficiaries to whom the estate should be distributed.

#### **Respondent's submissions**

The Respondent filed her submissions on 8th December, 2023 wherein she submitted that she does not oppose the application. She however proposed that to prevent disturbing the peace of the deceased by exhuming his body for purposes

10 of carrying out the DNA test, the parties should conduct a "DNA sibling test" under strict conditions to produce tamper-proof and credible results. She further prayed that the costs of this application and the DNA sibling test be charged on the account of the estate given that the tests are in the interest of the estate.

#### 15 **Applicant's submissions in rejoinder**

The Applicant filed submissions in rejoinder on 16th October, 2023, and largely reiterated his earlier submissions.

#### **DETERMINATION**

- 20 I will start by stating salient observations that can be deduced from the pleadings on court record. - 1. The application is in respect to the estate of the late John Eric Magambo - 2. This is an application whereby the applicant wants court to order a DNA test on children of the late John Eric Magambo to prove paternity. - 25 3. The applicant lists 22 children but who have not been made parties as respondents in the application. - 4. There is no indication that the late John Eric Magambo left any written document disowning any child. - 5. A DNA paternity test, if ordered by court would require the exhumation of 30 the late John Eric Magambo .

#### **PRELIMINARY ISSUE**

The applicant in their submissions purported to amend the notice of motion, they submitted that.

*"My lord, after the appearance before court on 1st November and 9th* 5 *November 2023 the applicant elected to and found it pertinent to amend the applicants Notice of Motion."*

The applicant then went on to state they were seeking to amend the orders in the

- 10 Notice of Motion to seeking for a DNA sibling test. And prayed that court grants the application for the amendment. The applicant then proceeded to submit on the application with out even waiting to hear from court on whether it had allowed the application to amend that was surprisingly made in the submissions. - 15 The respondent in her submissions stated objected to amendment being made in this manner but went on to submit on the application after registering their reservation. - The law in **Order 6 Rules 19 and 31 of the Civil Procedure Rules SI 71-1** is instructive 20 on seeking amendment of pleadings. Once court grants leave to amend the pleadings it is required that the amendment be filed and served on the opposite party, who can then respondent to it (*Order 6 Rules 23 and 24 of the Civil Procedure Rules SI 71-1*) - 25 In the case at hand, the applicant has made an application to amend the application within their final submissions. The applicant did not even ask court for leave to make the application, irrespective of the manner it was made and the stage of the application. I find that the application to amend did follow the law in Order 6 Rules 19 and 31 of the Civil Procedure Rules SI 71-1. This is illegal as it is not in line with - 30 the laid down legal procedures. The application to amend is therefore rejected.

#### **MAIN ISSUE**

**Whether the application seeking an order for a DNA test on the children of the estate of the late John Eric Magambo should be granted.**

- 5 A court of law can order a DNA test based on its discretionary powers under **section 98 of the CPA and Section 33 of the Judicature Act**. In my opinion there are clear cases that require DNA testing such as a paternity test to confirm if a father that is denying child, is indeed the father of that child. - 10 The applicant in this case seeking to carry out a DNA test on the children of the late John Eric Magambo before distribution of estate property *( see orders sought in the Notice of Motion and paragraph 3,5,6 and 7 of the affidavit in support of the application)* - 15 The applicant has not stated in his evidence that there is any known safely stored sample of the late John Eric Magambo's DNA that can be tested as against the children, so any order by court as prayed would involve the exhumation of the late John Eric Magambo to facilitate the carrying out of the desired DNA tests on the late John Eric Magambo's remains to determine paternity. - 20

One of the principles for consideration when dealing with applications for exhumation, is that a "decently buried" body should remain undisturbed where it was placed unless good reason is given to exhume it as was articulated by Hon Justice Stephen Mubiru J in **KOMAKETCH WALTER VS DR. OKOT CHRISTOPHER** 25 **HIGHCOURT CIVIL APPEAL 114 OF 2018**.

In the case at hand, the late John Eric Magambo worked for his property, that beneficiaries are now squabbling about, and based on this the applicant has brought an application that would require an exhumation to test children, when it

30 has not been shown that the late john Eric Magambo disowned any of the children during his lifetime.

It is my opinion that when court is dealing with an application where an applicant is seeking a DNA paternity test of Children that are beneficiaries of a deceased person, for purposes of sharing property, the following consideration ought to be applied.

- 1. The courts of law ought to order any exhumation for DNA paternity testing purposes as a last resort. The applicants, therefore, must clearly state if there is any safely stored samples of the deceased's blood or genetic material available that can be used for the DNA test. - 2. The applicant ought to make all the Children against whom the DNA paternity test is sought as respondents so that they can respond to the application as parties to the application. This is in line with the principle of fair hearing.

In this case the applicant lists 22 children in paragraph 5 of his affidavit in support but only one of them was made a respondent, yet the order sought is intended to affect all the 22 children. The inclusion of all the children as respondents promotes fair hearing and avoids a scenario where two siblings 20 connive before court to consent to an order affecting others that don't know anything about the proceedings or orders sought.

3. The courts of law ought to prioritise Sibling Kinship tests if the answer the children require is to confirm if they are siblings. A sibling kinship test can be 25 pursued before seeking a DNA paternity test order from court where the parent against whom the test would be conducted is deceased and buried.

Science tell us that that children get a chromosome from their father, so the male applicants DNA can by compared against that of the other male 30 children stated to be the children of the late John Eric Magambo, this is because the male lineal descendants of the deceased each have the XY chromosome, meaning that they share a Y chromosome from a common donner, who in this case would be their late father. This would confirm the

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boys as brothers. On the other hand, female children have the XX Chromosome, with a significant X chromosome from a common donner, who is father, this is despite being born from different mothers. It would mean that testing the female children alone would confirm that they are sibling sisters, if they are found to carry the common significant X chromosome from their father.

A sibling kinship test of the males alone and the females alone would remove the need for an exhumation of the deceased owner of the estate property that is being disturbed for the property he accumulated in his lifetime.

In matter at hand, I find that;

- 1. The applicant has not made all the children that he seeks the DNA paternity test to affect, to be parties in the application so as to give them a chance to respond to the application and to promote the right to a fair hearing. - 2. The applicant has not stated if any attempts have been made by the children to conduct a sibling kinship test.

In conclusion, I find that the applicant has not made out his case to justify the court to exercise its discretion to grant the orders sought in the application. 20

I therefore order that the application is dismissed with costs to the respondent.

hurstet 8

NSHIMYE ALLAN PAUL M. **JUDGE** 14-06-2024

$\mathsf{S}$

$10$