Muhangi & Another v Ssekubwa (Civil Appeal 42 of 2022) [2025] UGHCCD 1 (2 January 2025)

# 5 **THE REPUBLIC OF UGANDA**

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

## **(CIVIL DIVISION)**

### **CIVIL APPEAL NO. 042 OF 2022**

### **(Arising from M. A No. 50 Of 2021) (Arising from MA No. 728 Of 2019)**

10 **(Arising from Civil Suit No. 389 Of 2019)**

### **1. PATIENCE MUHANGI**

**2. ALEX KATUNGI (Administrators of the Estate of the Late Charles**

**Muhangi)::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANTS**

### **VERSUS**

# 15 **WILBERFORCE SSEKUBWA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE: HON. JUSTICE ESTA NAMBAYO**

#### **JUDGEMENT**

The Appellants being aggrieved by the ruling and orders of the Learned trial Chief Magistrate, sitting at Mengo Chief Magistrate's Court appeals to this court seeking for 20 orders of this court that: -

- **1. This Appeal be allowed so that the orders of the learned trial Chief Magistrate in MA No. 50 of 2022 are set aside** - **2. That Civil Suit No. 389 of 2019 be tried inter-parties before another Magistrate** - **3. Costs of this appeal and in the court below be provided by the Respondent**

The grounds of this appeal are that;

- **1. The learned trial Chief Magistrate erred in law and fact in holding that the** 30 **Appellants acted illegally when they took over Motor Vehicle Reg. No. UAV 683U Toyota Land Cruiser.** - **2. The learned trial Chief Magistrate erred in law and fact when she failed to find that the Respondent was bound by his pleadings in Civil Suit No. 389/2019, thereby occasioning a miscarriage of justice.** - 35 **3. The learned trial Chief Magistrate erred in law and fact when she released motor vehicle Reg. No. UAV 683U Toyota Land Cruiser, to the Respondent thereby determining the subject matter of the suit without trial.**

# **Background of the Appeal**

The brief background to this appeal is that the Respondent entered into an agreement of 40 sale of his Motor Vehicle Registration No. UAV 683U, Toyota Land Cruiser at Ushs. 35,000,000/- (thirty- five million Uganda shillings only) with the late Charles Muhangi who later passed on while in custody of the vehicle.

After Muhangi's demise, the Appellants took custody of the vehicle as beneficiaries of the late Muhangi's Estate.

45 It is the Respondent's claim that by the time of his passing on, the late Charles Muhangi had not paid for the vehicle as the sale agreement.

On the 28th May, 2019, the Respondent filed Civil Suit No. 389 of 2019 against the Appellants seeking for payment of the sale price and/or return of the vehicle to him. Before the case was heard, the Respondent filed MA No. 728 of 2019 seeking for orders of court that, 50 among others, retain the vehicle at court premises pending disposal of the main suit. Court granted the application and the Appellants handed over the vehicle to court for safe custody pending disposal of the main suit.

On the 8th of February, 2021, the Respondent filed MA No. 50 of 2021, for court to release the car to him on grounds that at the time the Appellants took custody of the vehicle, they 55 had not yet obtained letters of administration to the late Charles Muhangi's Estate.

The learned trial Magistrate, after hearing the application, released the vehicle to the Respondent on the 24th of January, 2022, hence this appeal.

### **Representation**

Learned Counsel Bazira Anthony appeared for the Appellants while Counsel Magara Jesse 60 was for the Respondent. Written submissions were filed as directed by court.

**Duty of this court as a 1st Appellate Court.**

**In the case of M/s Fangmin -v- Belex Tours and Travel Limited SCCA No. 06 of 2013 at page 63**, Kanyeihamba, JSC, (as he then was), noted that;

"the duty of the first Appellant Court is very well settled. It is to evaluate all the evidence 65 which was adduced before the trial court and to arrive at its own conclusion as to whether the findings of the trial court can be supported."

**In Father Nanensio Begumisa and three Others -v- Eric Tiberaga SCCA 17of 2000; [2004] KALR 236;** it was stated that;

"on a first appeal, the parties are entitled to obtain from the appeal court its own decision

70 on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions".

**See also the cases of Geoffrey Nangumya –v- Emmy Tumwine & Another Civil Appeal No. 93 of 2018 and Kifamunte Henry –v- Uganda Criminal Appeal No. 10 of 1997**.

75 This Court will be guided by the above principles in addressing this appeal.

**Grounds of the Appeal**

**Ground 1: The learned trial Magistrate erred in law and fact in holding that the Appellants acted illegally when they took over Motor Vehicle Reg. No. UAV 683U Toyota Land Cruiser.**

80 **Submissions for the Appellants**

Counsel for the Appellant submitted that the finding of the trial Magistrate that the Appellants took possession of the impugned vehicle without letters of Administration was not right. He explained that it's the late Muhangi who took possession of the vehicle at execution of the agreement as pleaded by the Respondent under paragraphs 4 (b) and (c)

85 of the plaint. That the Appellants only continued with the custody of the vehicle after death of the late Muhangi.

Counsel further explained that the fact of the late Muhangi taking possession of the motor vehicle is admitted by the Respondent in the plaint and as such, the argument that the Appellants had no letters of administration at the time of taking custody of the vehicle does

90 not arise.

Counsel also clarified that by the time the suit was filed in court, the Appellants had already acquired the letters of administration, which were granted on the 1 st March, 2019 while the suit was filed on the 28th May, 2019, two months later.

Counsel relied on Section 192 of the Succession Act and the case of **Joseph M. Nviri -v-**

95 **Palma Joan Olwoc & 2 Others CS No. 926 of 1998,** at pages 3 and 4, where Court stated that;

" Letters of Administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration has been granted at the moment after his or her death."

100 Counsel explained that the alleged Respondent's evidence, (cited at page 2 of Counsel's submissions in the lower court), that the Respondent learnt that the Appellants had no Letters of Administration when he inquired from the Administrator General's office in Mbarara, was evidence from the bar and it raises the question; why the Respondent would sue the Appellants well knowing that they had no letters of administration, and; why the 105 court did not strike out the Respondent's suit if the Appellants had no locus? and what the effect of suing a party that does not have locus standi, is?

Counsel emphasized that when the Respondent filed the main suit, the Appellants had already obtained interim letters of administration and therefore, their acts related back to the time of the death of the deceased and this validated the actions taken by the Appellants 110 when they took possession of the vehicle that the late Charles Muhangi left behind. He prayed that this Court resolves this ground to the effect that the learned trial Magistrate erred in law and in fact when she held that the Appellants acted illegally when they took over custody of Motor Vehicle Reg. UAV 683U Toyota Land Cruiser.

### **Submissions for the Respondent**

- 115 In reply, Counsel for the Respondent submitted that the Appellants at all material times presented themselves as Administrators of the late Charles Muhangi's estate and that on the 18th day of December 2018, they started using the vehicle without paying for it. That under paragraph 4 of his affidavit in support of the application, the Respondent stated that he only recently learnt that at the time the Appellants took over the suit motor vehicle, 120 they did not have letters of administration. That the Respondent learnt of the above fact upon inquiring with the Administrator General's office at Mbarara, which confirmed to him that the Appellants had obtained interim letters of administration on the 1st March, 2019. - He referred Court to annexture "A" to the affidavit in support of MA No. 50 of 2021. - Counsel submitted that the Appellants' Counsel's submission that he, (counsel for the 125 Respondent), gave evidence from the bar is misleading and not true. That the said evidence was admitted by the Respondent in cross examination by the Appellants' Counsel. He relied on Section 191 of the Succession Act Cap 162 and submitted that the Appellants' act of taking away the suit vehicle without letters of administration was an illegal act which was not condoned by the trial court. He prayed that this Court upholds the trial court's finding - 130 and over rules this ground of appeal. Counsel cited the case of **Sorowen James Kapsus – v- Cherop Stephen HCCR No. 007 of 2015** which was cited with approval in the case of **Makula International –v- Cardinal Nsubuga & Anor** wherein it was held that an illegality once brought to the attention of court cannot be allowed to stand and that such illegality overrides all questions of pleadings. He also cited the case of **Musoke Mike & Anor –v-** - 135 **Kalumba James HCCR No. 09 of 2019,** where court held that;

"since the illegality supersedes everything, including pleadings or admissions made thereon, the orders sought in respect of the proceedings in the trial court are effectively overtaken "

Counsel submitted that in this case, the Appellants' actions were illegal because at the time when they took possession of the suit vehicle from the Respondent and used the same 140 without paying for it, they not only misrepresented themselves as administrators of the estate of the late Muhangi but also lacked the requisite legal capacity/mandate and right to take the suit vehicle. That Section 192 of the Succession Act does not cover illegal acts of the administrator.

Counsel emphasized that from the foregoing authorities, an illegality cannot be condoned 145 by Court. That in this case therefore, the trial magistrate rightfully found that the Appellants acted illegally when they took over motor vehicle Reg. No. UAV 683U Toyota land cruiser without letters of administration to the estate of the late Muhangi. He prayed that this court finds that this ground of appeal fails.

## **Analysis**

150 Under paragraph 4 (c) of his pleadings in the plaint, the Respondent states that; "The late Muhangi took possession of the motor vehicle but he was not supposed to use it until payment of the full purchase price which hitherto remains in the control of the Defendants."

This means that the vehicle was in the late Muhangi's possession by the time of his death.

On the 1 155 st March, 2019, the Appellants were granted interim letters of administration to the Estate of the late Charles Muhangi.

S. 192 of the Succession Act, Cap 162, provides for the effect of letters of administration and it states that letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration has been granted at the moment after

160 his or her death.

In the case of **Nurdin Katende –v- Yunus Kabugo & 4 others, HCCS No. 364 of 2012,** Court noted that;

"a grant of letters of administration entitles the administrator to all rights belonging to the intestate as effectually as if the administration has been granted at the moment after the 165 death of the deceased."

Under S. 279 of the Succession Act, it is provided that an executor or administrator shall collect, with reasonable diligence, the property of the deceased, and the debts that were due to him or her at the time of his or her death.

In this case, the Appellants obtained interim letters of administration to the late Charles Muhangi's Estate on the 1st 170 of march, 2019.

- Applying the above provisions of the law to this case, I would find that the Appellants were responsible for the late Charles Muhangi's estate as if the authority to administer it was granted to them immediately after his death and that by virtue of the grant, the Administrators had a duty to collect all the property and debts due to the deceased at the - 175 time of his death. This means that the Appellants rightly continued in custody of the late Charles Muhangi's impugned vehicle. Therefore, I find that the learned Chief Magistrate erred in law and in fact when she found that the Appellants acted illegally when they took over Motor Vehicle Reg. No. UAV 683U Toyota Land Cruiser.

**Ground 2: The learned trial Magistrate erred in law and fact when she failed to find** 180 **that the Respondent was bound by his pleadings in Civil Suit No. 389/2019, thereby**

I have already pointed out that the Respondent stated under paragraph 4 (c) of his plaint that the late Charles Muhangi took custody of the vehicle which I interpreted to mean that by the time of his death, Muhangi already had custody of the vehicle.

# 185 **Order 6 Rule 7 of the Civil Procedure Rules Provides that**; "

**occasioning a miscarriage of justice.**

"no pleading shall, not being a petition or application, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading."

In **Jani Properties Ltd –v- Dar es Salaam City Council [1966] EA 281,** it was held that; 190 "Parties in civil matters are bound by what they say in their pleadings which have the potential of forming the record and moreover, the court itself is also bound by what the parties have stated in their pleadings as to the facts relied on by them. No party can be allowed to depart from its pleadings"

In this case therefore, it was wrong for the Respondent to claim that the Appellants forcefully took the vehicle on the 18 195 th December, 2018, contrary to paragraph 4 (c) of his plaint where he states that the late Charles Muhangi took possession of the vehicle but was not supposed to use it until payment of the full purchase price, without first amending his plaint. In the circumstances, I would agree with the submission of Counsel for the Appellant that the learned trial Chief Magistrate erred in law and fact when she failed to find that the 200 Respondent was bound by his pleadings in the main suit, thereby occasioning a miscarriage of justice.

**Ground 3: The learned trial Magistrate erred in law and fact when she released motor vehicle Reg. No. UAV 689U Toyota Land Cruiser, to the Respondent thereby determining the subject matter of the suit without trial.**

205 In the main suit, the Respondent sought for an order for payment of Ushs. 35,000,000/- (thirty- five million Uganda shillings only), as the purchase price of the vehicle and in the alternative an order of return of the motor vehicle to the plaintiff in a sound state.

On their part, the Appellants/Defendants in their WSD claimed that the late Charles Muhangi had an outstanding balance of Ugshs. 15,000,000/- (fifteen million Uganda shillings only) 210 having made a part payment of Ugshs. 20,000,000/-.

- On the 7th November, 2019, the Respondent filed MA No. 728 of 2019 seeking for orders of court to have the vehicle parked at the court premises for safe custody pending disposal of the main suit. This application was granted amidst the Appellants protest. All the same, the Appellants complied with the orders of court and parked the vehicle at court premises - 215 for safe custody. In a turn around, the Respondent went before the same trial Magistrate and again sought for orders of court to have the vehicle released to him on grounds that the Appellants had no letters of administration when they took over the vehicle. Unfortunately, the same trial magistrate who ordered that the vehicle be retained at court premises for safe custody pending determination of the matter, went ahead to grant the 220 prayer releasing the vehicle to the Respondent/Applicant and she handed over the vehicle - to the Respondent. This was very unfortunate. In effect the trial Magistrate granted the Respondent's/Plaintiff's prayer in the main suit of returning the vehicle to the plaintiff before

the case was heard on the merits. Therefore, I find that the learned trial Magistrate erred in law and fact when she released motor vehicle Reg. No. UAV 689U Toyota Land Cruiser, to 225 the Respondent and by so doing, she partly determined issues for trial in the main suit without hearing the parties. This ground of the appeal also succeeds. Therefore, on the whole, this appeal succeeds on all the grounds and it is hereby allowed with orders that: -

**1. The ruling and orders of the learned trial Magistrate in MA No. 050 of 2022 be and are hereby set aside.**

- 230 **2. MV Registration No. UAV 689U Toyota Land Cruiser, be kept under safe court custody as ordered by court in MA No. 728 of 2019, pending determination of Civil Suit No. 389 of 2019** - **3. The court file in respect of CS No. 389 of 2019 be returned to the Chief Magistrates Court of Mengo for an expeditious hearing of the case before** 235 **another Magistrate.** - **4. The Respondent pays costs of this appeal and costs in MA No. 50 of 2021.**

I so order.

**Dated, signed and delivered by mail and uploaded on ECCMIS at Kampala on this 2 nd day of January, 2025.**

**Esta Nambayo JUDGE 2 nd /1/2025.**