Mawangala and 2 Others v Kalule (Civil Application 1008 of 2023) [2024] UGCA 151 (3 May 2024)

Full Case Text

| 5 | THE REPUBLIC OF UGANDA | |----|-----------------------------------------------------------| | | IN THE COURT OF APPEAL OF UGANDA AT KAMPALA | | | CIVIL APPLICATION NO. 1008 OF 2023 | | | (ARISING FROM CIVIL APPLICATION NO. 229 OF 2017 | | | AND | | 10 | CIVIL APPEAL NO. 29 OF 2014) | | | ALL ARISING FROM HC [FAMILY DIVISION] CIVIL APPEAL NO. 05 | | | $OF 2012)$ | | | | | | 1. HENRY MUKASA MAWANGALA | | 15 | 2. PAFRAH DIITO TOMUSANGE | | | APPLICANTS (Administrators of the estate of the | | | Late NORAH NASSOZI | | | 3. NANFUKA JULIET | | | (Administratrix of the estate of the | | 20 | Late THOMAS KALINABIRI |

#### **VERSUS**

## GEORGE WILLIAM KALULE:::::::::::::::::::::::::::::::::::

### **RULING**

## BEFORE HONOURABLE LADY JUSTICE EVA K. LUSWATA

## Introduction and brief background

$30$ 1] The applicant through $M/s$ AF Ayigihugu & Co. Advocates presented this application by Notice of Motion under Section 12 Judicature Act and Rules 2, 43, & 44 of the Judicature (Court of Appeal Rules) Directions seeking an order that Ms. Nakiranda Hellen be appointed an administrator of the estate of the late George William Kalule for the purpose of responding to/defending Civil Application No. 299 of 2017. They in addition sought costs of the application.

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- 2l The application arises from Court of Appeal Civil Appeal No. 29/2014, which also arose from Civil Appeal No. 5/2012 of the High Court, the latter an appeal against the decision in Mengo Civil Suit No. 109 of 1996. The grounds of the application as set out in the motion are that: - 1. The applicants filed Civil Application No 299 of 2Ol7 in which they seek a certificate that the intended appeal from Civil Appeal No 29 of 2014 involves the determination of a matter/question of law of great public ald general importance. - 2. George William Kalule the respondent in the application died some time on 2l"t November 2O2O. - 3. No grant of administration/probate in respect of the estate of the late George William Kalule has been made. - 4. It is necessary that an administrator of the estate of the late George William Kalule be appointed for the purpose of responding to/defending the application pending hearing in this court. - 5. The respondent transferred the land to his daughter Nakiranda Hellen. - 6. Nakirarida Hellen is best suited to be appointed administrator of the estate o[ the late George William Kalule for purpose of responding to/defending the application pending hearing in this court. - 7. It is in the interest of justice that the application be granted. - 3l Henry Mukasa Mawangala the first applicant swore the afhdavit in support of the application, representing himself and on instructions of the other two applicants. He repeated much of what is stated in the grounds and in addition deposed that he is

- also an applicant in CA No. 299/2017. He explained that in Civil Appeal No. 29 l2Ol4, the parties here where the respondent as the appellant on one hand, and Norah Nassozi and Thomas Kalinabiri as the respondents on the other hand. That a-fter filing the appeal, Norah Nassozi died on 24/2l2ol5 before the appeal was heard and as a result, the first and second applicant here were granted letters of administration in respect of her estate. Similarly, Thomas Ka-tinabiiri died on 6/2/2OI5, and letters of administration in respect of his estate where granted to Nanfuka Juliet the 3'd applicant here. That it was for that reason that on 13/ 5 / 2016, the three applicants here were joined as parties to the appeal to replace the late Nassozi ald the late Kalinabiri. 15 5 10 - 4] Mr. Mawangala in addition gave a detailed background of the dispute surrounding land comprised in Kyadondo Block 230 Plot 35 (measuring approximately two acres) that at some point belonged to the late Daudi Banalekaki (hereinafter the deceased). We sha1l not repeat the full facts here, save for the fact related that G. W Kalule the respondent, died on 2l / ll /2O2O. - 5l Mr. Mawangala in addition filed a supplementary affidavit meant to provide more information to prove the death of G. W Ka-lule. He stated that oflicials of the National Identification Registration Authority (NIRA) declined his request for G. W Kalule's death certificate for the reason that such a certificate is issued only to the next of kin and on production of a medical certificate confirming the deceased's death. Mr. Mawangala explained that he is not in possession of either document and none of the late

- 5 G. W Kalule's children and/or any of his relatives could provide them since he is their advisory in Court. That, that notwithstanding, he did obtain a letter from the LC Chairperson confirming that G. W Kalule died. That he too could confirm that fact because the late G. W Kalule was a brother of his mother Lovinca Nalukenge, and that he attended his burial in Banda, Kisoga Ntenjeru Sub county, in Mukono District. - 6l The applicant attached several annexures to the application and also filed submissions and authorities which I have considered when resolving the application.

# 15 Applicant's written submissions

- 7) In his submissions, Mr. Kwizera the applicants' counsel emphasized the purpose of the application and the grounds on which it was premised. He outlined the brief background of the suit land starting from its ownership by the deceased up to the point when the Administrator General distributed Plot 35 arnong the deceased beneficiaries. He also gave a detailed account of the dispute stemming from that distribution which was hrst heard in the Chief Magistrates' Court of Mengo and there resolved in favour of G. W Kalule, a decision that was on appeal, upheld by the High Court. - 8l Mr. Kwizera further submitted that on 15/9/2075, the Court of Appeal over turned the decision of the High Court. He explained further that a-fter the death of G. W Kalule on 2l/ll/2Q22, no person has been appointed to administrator his estate and it is necessary that one be appointed for the purpose of responding

- 5 and /or defending the application pending hearing in this Court. Counsel further submitted that following the decision of Court of Appeal, the suit land was reinstated into the narnes of G. W Kalule who in turn transferred that land to his daughter Nakiranda Hellen, who then subdivided the land into 14 plots. That as such, she is the person best suited to be appointed administrator of the estate of the late G. W Kalule the for purpose of responding to the application pending hearing in this Court. 10 - 9l Counsel then drew court's attention to the law, in particular Section 222 of the Succession Act and emphasised that the section can be invoked in those cases where the person entitled to administration, is unwilling to act. He continued that Nakiranda being the deceased's daughter and into whose names the suit land was transferred, she is entitled to a grant of letters of administration, but is so far, unwilling to act. That MA No.229 of 2017, has been pending hearing for eight years since it was filed which is a grave injustice to the applicants, and does not auger well with the administration of justice. That in the absence of a specific law in the Rules of Court, this Court can invoke its inherit powers under Rule 2(2) of the Rules of Court, to grant the orders sought. - lol In his supplementary submissions, counsei referred to the High Court decision of Byomuhanji Christopher versus Rugumya Johns, (Fort Portal) Civil Miscellaneous Application No. 27 of 2O23 where the principle of an administrator ad litem was extensively discussed. He also referred to Winrose Emmah

- 5 Ndinda Kiamba versus Agnes Nthambi Kasyoka l2O2Ll e KLR and several other authorities which a-lso dealt with the same issue. That the gist in those decision is in detail. It was held in both cases that an administrator ad litem can be appointed for a limited and special purpose where the administrator is unwilling to act, yet one must be present to represent the interests of the estate in a particular suit. - Counsel then invoked Section 222 of the Succession Act to move the Court to appoint Ms. Nakiranda as an administrator ad litem as a quick remedy to prevent the application from abating or being dismissed for want of prosecution. 1il

#### decision M

- t2l The applicants were sued and lost Civil Appeal No.29/2014 in this Court. They intend to appeal that decision and for that reason, have filed Civil Application No. 299 l2ol7 to pursue a Certificate of Importance (hereinafter a certificate) that is required before they can file an appeal in the Supreme Court. They have filed this application seeking an order that Ms. Nakiranda Hellen be appointed administrator of the estate of the late George William Kalule, the respondent here, so that she may respond to the application and probably the appeal that they wish to file. Henry Mukasa Mawangala the l"t applicant deposed two detailed affidavits in support of the application. - 13] In his submissions, Mr. Kwizera referred to Section 222 of t):.e Succession Act which provides as follows:-

"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."

14] The person to be appointed under that law is at common law referred to as an "administrator ad litem". I have found no definition in the Act but one is given in Black's Law Dictionary1 to be:

> "A special administrator appointed by the Court to represent the estate's interests in an action either because there is no administrator of the estate or because, the current administrator has an interest in the *action adverse to that of the estate."*

- 15] Counsel's dissection of the above law is correct. An applicant who intends to invoke that section must show that: - 30

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- a) There is a pending suit. - b) It is necessary that a representative of a person deceased is made a party to the pending suit.

c) The executors or person entitled to administration is unable or unwilling to act.

d) Letters of administration may be granted to the nominee of a party to the suit.

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&lt;sup>1 Page 54 of 10th Edition e) The letters of administration are limited for the purpose of representation of the deceased in the suit etc, until the final decree and carried into execution.

16] The authorities counsel provided are also instructive. In Byomuhangi Christopher versus Rugumya Jones (supra), the 10 Court agreed to appoint the eldest son of a deceased in a suit when it was shown that no family member cared to procure administration of the deceased's estate. The Court considered a definition of the term and concluded that such a person is appointed where no surviving dependant has taken the necessary 15 step yet one is required for purposes of commencing or continuing the proceedings, by or against a deceased person.

[17] Similarly in **Winrose Emmah Ndinda Kiamba versus Agnes** Nthambi Kasyoka (supra), followed in Byomuhangi Christopher (supra), when considering Sections 54 and 55 of the Succession Act of Kenya which corresponds to our law, the Court held that:

> "... such a grant is normally issued due to the exigencies arising in relation to the estate and which could not wait for issuance of full grant through the normal way. It is also issued without prejudice to the right of any other person to apply for full grant of representation to the deceased. As such, limited grant may not be subjected to full and strict compliance with the requirements meant for, as if it is full grant of representation. Again, *the person to whom the grant is so made undertakes to administer the estate according to the law but limited for the purpose for which the grant is issued until a further grant of representation is made by the court." Emphasis* applied.

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The Court added that:

"...the aspect of consent u.tith regard to special limited grants of representation need not be mandatory. . . . "

10 15 It was also explained in Mckag uersus MK Nasb 97 Tem 236 S. I,y. A. 7O9, 7896, lalso a persuasive authority), that the purpose of such an appointment is to prevent a party's action from abating. Further that the duty is upon the Judge presiding over the proceedings to make the appointment for the particular proceedings, and without requiring any bond from the one appointed.

18] The facts of this case were in great detail explained by Mr. Mawangala in his a-ffidavits. In brief, it was stated that at some point, the suit land measuring two acres belonged to the deceased, who in his life time permitted G. W Kalule the respondent, to occupy and develop it. The Administrator General was granted letters of Administration in respect of the deceased's estate and under that mandate, distributed the suit land between his widow and three sons, one of whom was the respondent. The respondent disputed that distribution and thereby filed the Mengo suit which he lost. He filed an appeal in the High Court which he also lost. The High Court held that the land constituted part of the deceased's estate and upheld the distribution made by the Administrator General. GW. Kalule's appeal to this Court succeeded. It was held that the deceased had before his death, given a gift inter uiuos to GW Kalule, and the distribution by the

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- 5 Administrator General was set aside. The applicants here intend to appeal that decision, but before they can do so, they must lirst obtain a certificate. - 10 15 19] In his submissions, Mr. Kwizera claims that there is a pending suit which would sufhce as the action upon which this application is premised. He has not given any details of that suit and indeed there would be none for CA No.29/2O1a was concluded, and an appeal to the apex Court would only be possible after a certificate has been obtained. However, I am persuaded that Civil Application No.229 of 2Ol7 would suffice as the pending suit envisaged under Section 222 of the Succession Act. - 2Ol Secondly, the applicant must show that it is necessary that a legal representative of G. W Kalule's estate is appointed because those entitled to administration are unable or unwilling to act. It was stated that G. W Kalule died on 2l/11/2O2O and since then, no one has taken out Letters of Administration or Probate in respect of his estate. The best possible proof of GW Kalule's death would be a death certificate. However, Mr. Mawangala explained in his supplementary affidavit that he had attempted, but failed to obtain one from NIRA because he was neither a close relative nor one who had the short certificate of death. I frnd his explanation reasonable, for its standard practice that only those determined to be close kin, can be issued with a death certilicate for any named deceased. 30

- 10 15 5 2Il I am also prepared to believe Mr. Mawangala's statement that the deceased died on 2l / | I / 2O2O. The detailed facts of this case show that Mr. Mawangala and late G. W Kalule are closely related, both being the deceased's descendants but with adverse claims to the suit land. That dispute which started off between Mr. Mawangala's grandmother and G. W Kalule, dates back to 1996 when the matter was lirst heard in the Chief Magistrate's Court of Mengo. It is conceivable then that as a grandchild of the deceased's late wife, Mr. Mawangala attended G. W Kalule's burial which he states took place in Banda, Kisogo Ntenjeru Sub County in Mukono District. Indeed, GW. Kalule is mentioned by the LCI Chairperson of Kamuli "B' LCI, Namugongo (the deceased's last place of abode), as one of the deceased's children. - 221 The record indicates that this is a matter that has been long in the courts of law. It was first filed in Mengo in 1996, and the appeal in the High Court was concluded on 25/2/2O14. The judgment of this Court is dated l5/912017, and the applicants have shown their intention to appeal. They are unable to do so because, after GW. Kalule's demise, no living relative has stepped forward to administer his estate. It is correct as raised for the applicants, that there is a danger that their right of appeal will abate or the application for a certificate of importance is dismissed for want of prosecution. It is therefore in the interests of justice that someone is appointed to replace GW. Kalule, as the respondent in the matter.

- 5 2311 Mr. Mawangala stated in his affidavit that to the best of his knowledge, no grant for Letters of Administration or Probate has been made in respect of GW Kalule's estate. However, he has not provided any evidence to conlirm that no one is willing to act. However, it can be assumed that after the lapse of nearly four years since GW Kalule's demise, with no grant being made, none of the beneficiaries of that estate a-re willing to take the necessarSr step. I do agree that Ms. Nakiranda Hellen would be the most suitable candidate in that respect. It is shown that following the decision of this Court, the suit land was reinstated into the narnes of GW. Kalule who in turn transferred it to Nakiranda, his daughter. It is not clear when that transfer took place, but it is shown in an Area Schedule Form and several formal search communications issued by the Registrar of titles (Annexture "G" to Mr. Mawangala's affidavit) that the land was subdivided into 14 plots, 13 of which are registered in Nakiranda's names. Being the registered owner, Ms. Nakiranda has a legal claim to the larger portion of the suit land. She would thereby be the party most suited and most interested in protecting that interest. 10 15 20 - 25 241 Mr. Mawangala is clear in both his testimony and his counsel's submissions, that the order sought should be limited to the purpose of appointing Ms. Nakiranda as the administrator of GW. Kaluie's estate in order to defend the application and intended appeal, and nothing more. The application may suffer some setback in that, by effect of registration into Ms. Nakiranda's narne, the suit land ceased to form part of GW Kalule's estate. 30

- 5 However, given that before the appeal in this Court was concluded, the land formed part of that estate, in my view, nothing should prevent this Court from granting the orders sought. It is in the interests of justice that this long standing matter is expeditiously resolved. That said, I agree that the grant should be strictly limited as prayed. 10 - 251 Accordingly, this application succeeds and is granted. I thereby issue the following orders - o a) MS. NAKIRANDA HELLEN is appointed an administrator ad litemin respect of the estate of the late George William Kalule for the purpose of responding to, or defending Civil Application No. 299 12077, now pending hearing before this Court. - b) Summons/Notice of hearing sha1l issue against Ms. Nakiranda Hellen in that respect. - c) The applicants shall meet the costs of this application.

I so order.

o \* ) DATED at Kampala the day of 2024.

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EVA K. LU TA JUSTIC F APPEAL