Mugabe and 10 Others v Ngaro (HCT-01-LD-CS 34 of 2023) [2024] UGHC 752 (16 August 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **HCT – 01 – LD – CS – 0034 - 2023**

- **1. MUGABE NOBERT KAPARAGA** - **2. JOSHUA KAHUMA** - 6 **3. AMANYA ANDREW** - **4. RWAKYAKA DAVID** - **5. KABATALINDWA NAOME** - 9 **6. KANSIIME MAUREEN** - **7. KAWINO WINNIE JULIET** - **8. KEMBABAZI ROSETTE** - 12 **9. MWAHUZI MARY** - **10. KABAGANYIZI ESTHER**

**11. NATUGONZA MAUREEN :::::::::::::::::::::::::::::: PLAINTIFFS**

# 15 **VERSUS**

# **NGARO LEOTINA ::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

18 **Corum: HON. JUSTICE VINCENT WAGONA**

**Delivered on: 16th/08/2024**

21 *Summary: Limitation in Succession matters: - The general position of law is that the time within which to bring an action in cases of intestacy starts to run from the time of death of the deceased. However, death is not the only event that triggers*

- 24 *limitation. The law does not say so. Events which trigger limitation in intestacy may vary from time to time. For example, when the estate is distributed among the beneficiaries, the limitation period may start running from the date of* - 27 *distribution and not before; in appropriate cases, the limitation period may start running from the date when the beneficiary had knowledge of their entitlement to the estate; further, in appropriate cases, when a personal representative (such as*


*an executor or administrator) is appointed, the limitation period may start running from the date of their appointment. Thus the issue of limitation is a question of* 3 *fact to be determined depending on the facts of each case.*

#### 6 *RULING \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_*

*\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_*

#### **Introduction:**

This ruling determines the point of law by Mr. Musinguzi K. Charles, learned counsel for the defendant to the effect that the suit by the plaintiffs is barred by law

12 of limitation.

### **Point of law:**

15 When the suit was called for mention, learned counsel Mr. Musinguzi K. Charles informed court that he had a point of law to raise and a schedule to file written submission in support and opposition of the point of law was issued and both counsel 18 complied.

#### **Defendant's Arguments:**

Mr. Musinguzi contended that section 20 of the Limitation Act limits action for recovery of an interest to 20 years from the date when the right to receive arises. He

- 24 argued that the 12 years start running from the death of a person who dies intestate. He argued that the plaintiff claimed to have derived interest from the late Rwankara Joseph who died in 1969 and the suit was filed in 2023 after the 12 years had long - 27 passed, that is after 54 years. He invited me to the decision of *Siraj Mugisa v Mugenyi Abdullah & Anor HCT – 01 – CV – LD – 0011 – 2020* where court in


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making reference to section 20 of the Limitation Act held that the time under section 20 starts to run from the time a person dies in case of intestate succession and upon

- 3 appointment of executor in case of testate succession. He also invited me to the commentaries by the authors of the *Halsbury's Laws of England Vol. 68, 5th Edition para 1036* where it was noted that where a person brings a claim to recover land of - 6 a deceased person, whether under a will or intestacy and the deceased person was at the time of his death in possession of the land, the right of action is deemed to have accrued on the date of his death. - 9

He submitted that it is not in dispute that the defendant is in possession of the suit land and has used the same since 1969. That the 12 years started running then and

12 it's now 50 years beyond the period of limitation provided for under the limitation Act. He asked court to uphold the point of law and be pleased to dismiss the suit with costs.

# **Plaintiffs' arguments:**

- 18 In response Mr. Musinguzi for the plaintiffs asserted that the cause of action for the plaintiff against the defendant started to run when the defendant started to sell the estate. That under section 268 of the Succession Act, a beneficiary has a right to sue - 21 any person who intermeddles with the estate of the deceased where there is no executor. That the cause of action arises when a plaintiff is affected by the acts of the defendant. That the status quo before was that the land remained for the family - 24 until the defendant started to sell the same. That the suit is thus intended to safeguard the estate and as such not time barred. Learned counsel also cited Article 126(2)(e) of the Constitution and the case of *Utex Industries Ltd v A. G, SCCA No. 52 of 1995* - 27 for the position that substantive justice should be administered without undue regard


to technicalities. He asked court to overrule the point of law and proceed to hear the case on merits.

### **Defendant's arguments in rejoinder:**

- 6 Mr. Musinguzi contended that the time under section 20 does not start to run when there is an administrator. That even if the plaintiffs were young, they ought to have instituted the suit through a next friend. (See:*Isreal Kabwa v Martin Banoba, SCCA* - 9 *No. 52 of 1995*). That the cause of action accrued in 1969 when the late Rwankara Joseph passed on. That the allegations of disposal of estate without letters of administration are matters of evidence not permissible in response to a point of law. - 12 He insisted that the reply by the plaintiffs was not tenable and court should be pleased to uphold the point of law and dismiss the suit with costs.

#### 15 **Decision:**

Section 20 of the Limitation Act Cap. 80 provides that; "*Subject to [section 19\(](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#part_II__sec_19)1), no*

- 18 *action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of twelve years from the date when the right to receive* - 21 *the share or interest accrued, and no action to recover arrears of interest in respect of any legacy or damages in respect of those arrears shall be brought after the expiration of six years from the date on which the interest became due*." Notably, - 24 the Act provides for *the date when the right to receive the share or interest accrues* but does not expressly state the event that triggers the limitation. - 27 The debate raised herein is whether or not the time starts running from the time of death of a person who dies intestate or after securing the letters of administration


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over such an estate. In **Siraji Mugisa (supra),** His Lordship Vincent Emmy Mugabo took the view that the time starts to run from the time a person dies in case of

- 3 intestacy. He stated that the absence of grant of letters of administration does not stop a beneficiary from pursing an interest or a share in the estate and that is the reason why a beneficiary has a right to sue any person who intermeddles with the 6 estate even without letters of administration. - In *Mugenyi Justus & 3 others v Kateeba Rose, C. A. C. A No. 162 of 2021 Gashirabake JA* observed at page 27 thus: "*The Right to receive an interest in the* - 9 *estate of a deceased intestate does not accrue when letters of administration are obtained. It accrues upon the death of the deceased. That is why a beneficiary can maintain an action even without letters of administration as the Respondents did* 12 *in the instance case*."

Therefore, the general position of law is that the time within which to bring an action 15 in cases of intestacy starts to run from the time of death of the deceased. The question is whether death is the only event that triggers limitation in intestacy. It cannot be, because the law does not say so. I thus find that the specific events that trigger 18 limitation in intestacy can vary. For example, when the estate is distributed among the beneficiaries, the limitation period may start running from the date of distribution and not before; in appropriate cases, the limitation period may start running from the

- 21 date when the beneficiary had knowledge of their entitlement to the estate; further, in appropriate cases, when a personal representative (such as an executor or administrator) is appointed, the limitation period may start running from the date of - 24 their appointment. Thus the issue of limitation is a question of fact to be determined depending on the facts of each case.


I have examined the plaint filed by the plaintiffs and their claim seems to be that the suit property was left undistributed for a long time, after the death of their grand-

- 3 grand-father the late Rwankara Joseph in 1969. That after the death of the late Rwankara Joseph their grand-grand-father, the late Katuramu Francis, son to the late Rwankara Joseph was appointed as heir and the suit property remained under his 6 custody but he also died 4 months later. That after the death of Katuramu Francis, - the late Kaparaga Katalyeba Adon the father of the plaintiffs, was appointed as heir and the land in issue remained under his custody as heir. That the late Rwankara - 9 Joseph prior to his death in 1969 had given shares of his land to all his children, except 3 of his children including **Katuramu Francis** the grandfather of the plaintiffs, Karwemera Teopista, and the defendant, who did not get their shares. - 12

That the late Rwankara Joseph's estate remained intact and undistributed even after the death of his last heir Kaparaga Katalyeba Adon the father of the plaintiffs. That

- 15 later the defendant took over the management of the estate and possessed it as her own and as such she started selling portions of the land forming part thereof to the detriment of the grand children whose parents never received their shares from their - 18 late father's estate. That their cause of action arose when the defendant started to sell the land. - 21 The defendant on the other hand contended that before the late Rwankara Joseph before his death had distributed all his land among his 3 sons who included the grandfather of the plaintiffs and the land in issue was reserved for his 3 daughters - 24 (the defendant's and her 2 sisters) and remained under the care of their mother until prior to her death in 1976 when the land was handed over to them and they occupied


and utilized it since then and thus the land did not form part of the estate of the late Rwankara Joseph. In 2001 the plaintiffs started claiming the land as theirs.

Mr. Twesige for the plaintiffs asserted that the cause of action for the plaintiff against the defendant started to run when the defendant started to sell the estate. That under 6 section 268 of the Succession Act, a beneficiary has a right to sue any person who intermeddles with the estate of the deceased where there is no executor. It was contended that the cause of action arises when a plaintiff is affected by the acts of 9 the defendant. That the status quo before was that the land remained for the family until the defendant started to sell the same. **The question then become – when did the defendant start intermeddling with or selling the land according to the** 12 **plaintiffs?**

The plaint states that the defendant took over the management of the estate and 15 possessed it as her own and started selling portions of the land, without stating when the defendant took over the land or when she started selling portions of the land. The defendant on the other hand states that she took over the land that had been reserved

- 18 for them, from their mother, as their own, as the daughters of the late Rwankara Joseph, prior to their mother's death in 1976, when the land was handed over to them, and they occupied and utilized it since then. That the hand over was done in - 21 the presence of the defendant's brothers who included the grandfather of the plaintiffs. - 24 A cause of action based on intermeddling, which is the remedy sought in this case, therefore arose in or around 1976 when defendant took over the management of the estate and possessed it as her own before starting to sell if at all. At this time the


grandfather of the plaintiffs was still alive and could have brought a suit against the defendant if at all it was true that the late Rwankara Joseph prior to his death in 1969

- 3 had given shares of his land to all his children, except 3 of his children including **Katuramu Francis** the grandfather of the plaintiffs, as alleged in the plaint. Whichever favourable way one may want to look at this case, it is my finding that it - 6 is barred by limitation. The suit is hereby struck out with costs for being barred by limitation.


9 Vincent Wagona **High Court Judge FORTPORTAL** 12 **DATE: 16/08/2024**