Mubiru and 4 Others v Nakalema and Another (Miscellaneous Application 2399 of 2023) [2024] UGHCLD 136 (14 May 2024)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

### (LAND DTVTSTON)

### MISCELLANEOUS APPLICATION N0.2399 OF 2023

## ARISING FROM CIVIL SUIT NO. 1169 OF 2O2I

- 1. CHRISTOPHER MUBIRU - 2. GRACE KITAKA - 3. IRENE NABAWANUKA - 4. IRENE NABITAKA - 5. KTWANUKAJOSEPH============ =======APPLICANTS

### VERSUS

# 1. LENA NAKALEMA BINAISA

2. YOUJINGSHU RESPONDENTS

### BEFORE: HON JUSTICE DR. FLAVIAN ZEIJA

#### RULING

The Applicants herein brought the instant application by way of Chamber Summons under Section 98 of the Civil Procedure Act Cap 71 and Order 6 Rules '19 and 31 , and Order '1 Rule 10 of Civil Procedure Rules (CPR) for orders that;

- a) The plaintiffs/applicants be granted leave to amend the plaint in Civil Suit No. 1 169 of 2021 by adding Binaisa Joan l\lazzi, Binaisa Amooti Nakabiri Rosemary and Binaisa lrene Naluwembe the administrators of the estate of the late Godfrey Lukongwa Binaisa as defendants to the suit. - b) Costs of this application be in the cause

The grounds in support of this application are set out in the affidavit deponed by Kiwanuka Joseph, on behalf of the rest of the applicants, briefly that;

- 1. The Appticants filed a suil against the Respondents for recovery ol land comprised in and known as Kyadondo Block 264 plots 72 and 74land at lvlutundwe. - 2. That the 1s Respondent claims to derive her interest in the suit land from her late father Godfrey Lukongwa Binaisa. - 3. That the late Godfrey Lukongwa Binaisa was in breach of trust when he transferred the sul tand to the 1st Respondent which makes his legal representatives liable - 4. That in order to completely and conclusively determine the suit, it ls necessary lo amend the plaint to add Binaisa Joan ilazzi, Binaisa Amooti Nakabii Rosematy and Binaisa lrene Naluwembe, the adninistrators of the estate of the late Godfrey Lukongwa Binaisa, as defendants to the sult. - 5. That the defendants wiil not be preiudiced by the intended amendment

By an affidavit in reply, the 1\$ Respondent detailed her grounds opposing the application by denying all contents of the affidavit in support of this application. Briefly that;

- 1. The application is base/ess wth no reasonab/e chances ofsuccess, an abuse of coul process slnce the said Binaisa Joan Mazzi, Binaisa Amooti Nakabiri Rosemary and Binaisa kene Naluwembe have never had any ights or interests or claimed the same whatsoever in the suit land, the subiect of the main suit. - 2. That the properly forming paft of an estate is one which the deceased still owns at the time of his death which is not the case here. - 3. That the 1'r RespondeDl obtained registration to the su/t land from her late father Godfrey Lukongwa Elnalsa some five years before his death and the so called administrators have never dealt with the land in anywa:t whatsoever or claimed rights or interests in it. - 4. That adding the said Binaisa Joan itlazzi, Binaisa Amooti Nakabii Rosenary and Binaisa lrene Naluwembe as defendants ls not necessary to determine the dispute between the pafties in Clvil Sult No. 1169 of 2021. - 5. That adding other defendant will prejudice the 1! Respondent by reopening pleadings thereby taking backwards a case that is left for hearing and final disposal.

## Representation

The Applicants was represented by tt//s S. K Kiiza & Co. Advocates whereas the '1s Respondent was represented by Mis AF Mpanga Advocates. Both counsel flled written submissions which I have duly perused and considered but lwill not reproduce.

## Decision of Court

I have read the pleadings as well as the submissions of both counsel.

Order 6 rule 19 of the CPR empowers Court at any stage of the proceedings, to allow either party to alter or amend his or her pleadings in such manner and on such terms as may be just. All such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

Order 1 rule 10 ofthe CPR allows court to add a party whether as plaintiff or defendant, whose presence before the court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit.

In the instant case, the basis of the Applicants' application in seeking to add Binaisa Joan l\.4azzi, Binaisa Amooti Nakabiri Rosemary and Binaisa lrene Naluwembe as defendants in the main suit is that the above mentioned persons are administrators of the estate of the late Godfrey Lukongwa Binaisa. However, the Applicants did not provide any proof by way of attaching a copy of Letters of Administratron or any other sufficient proof that the said Binaisa Joan lVazzi, Binaisa Amooti Nakabiri Rosemary and Binaisa lrene Naluwembe were ever appointed administrators of the estate of the late Godfrey Lukongwa Binaisa, ln the absence of such proof, there is no evidence for this court to conclude that they are the duly appointed administrators of the estate of the late Godfrey Lukongwa Binaisa.

Other than failure to attach Letters of Administration, Section 55 of Succession (Amendment) Acl of 2022 provides for expiry of Letters of Administration after two years from the time of coming into force of the Act unless the administrators of the estate apply to court for renewal of the grant. This Amendment Act was assented to by the President on the 1Orh of April 2022. Two years have since lapsed. Therefore, in the instant application, even if there is grant (which in this case was not attached), the applicants needed to prove further that such a grant is not affected by the operatron of Section 55 of Succession (Amendment) Acl ol 2422

because two years have lapsed since the Succession (Amendment) Act of 2022 was assented to by the President.

It is not disputed in the pleadings of all parties that the late Godfrey Lukongwa Binaisa transfened the suit land to the 1\$ Respondent, about five years before his death. Therefore, the suit land did not form part of his estate at the time of his death. Since the evidenc6 of the '1st Respondent's averment in her affidavit in reply that the said Binaisa Joan Mazzi, Binaisa Amooti Nakabiri Rosemary and Binaisa lrene Naluwembe have never claimed any interest or right in the suit land was not challenged in the applicants' affidavit in reyoinder coupled with absence of any evidence proving that they are the duly appointed administrators of the estate of the late Godfrey Lukongwa Binaisa, I do not find adding them as defendants to the suit necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit.

The duties of Administrators are well laid out in the Succession Act. They collect the property of the estate of the deceased, pay debts, provide for immediate necessities for the beneficiaries and preserve the estate property. The property in dispute is not one of the properties they are administering. The role of administrators is to administer estate property. They cannot take liability for the property that did not belong to the estate. Besides, the remedies which the applicants seek to enforce can be obtained against the 1,t Respondent since she dealt in the said property in dispute with her late father.

ln the end result, this application is dismissed. Costs shall abide the outcome of the main suit. I so order.

| Dated this | day of | 2024. | |------------|------------------|-------| | | Flavian Zeija (P | | | | | |

PRINCIPAL JUDGE

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