Mukwaya & 6 Others v Ssentamu & Another (Civil Appeal 10 of 2022) [2023] UGHC 391 (2 October 2023)

# **THE REPUBLIC OF UGANDA**

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

# **CIVIL APPLICATION NO.10 OF 2022**

# **(ARISING FROM CIVIL APPEAL NO.19 OF 2021)**

# **(ARISING FROM FCC. NO.04 OF 2020 IN THE CHIEF MAGISTRATES COURT OF RAKAI AT RAKAI)**

- **1. MUKWAYA BADRU** - **2. KATO YOKANA** - **3. BABIRYE RUTH** - **4. KIZZA YUSUF** - **5. KAGGWA NYANZI** - **6. KAMYA MOSES** - **7. NANYANZI MAX::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS**

## **VERSUS**

- **1. SSENTAMU MOSES** - **2. SSENTAMU SAMSON:::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

## *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

# **RULING**

This Application was brought under Sections 82 and 98 of the Civil Procedure Act Cap 71, Order 46 Rules 1, 3 and 8 and Order 52 Rules 1,2 and 3 of the Civil Procedure Rules SI 71-1 (as amended) seeking the followings orders, that;

- 1. The order requiring a DNA relationship test on all the children of the late Nalaba Charles be reviewed and set aside or revoked. - 2. The order requiring the DNA test to be conducted at the expense of the estate of late Nalaba Charles be reviewed and set aside. - 3. The costs of the Application be provided for.


The Application was supported by an Affidavit deponed by Mukwaya Badru, the 1st Applicant who deponed the affidavit on his behalf and on behalf of the other Applicants. The Deponent states as follows, that;

- 1. On 19th January 2022, this Court issued an order wherein, A DNA relationship test on all those presumed to be the children of the late Nalaba Charles in Civil Appeal No.19 of 2021 was to be conducted. - 2. The Court vide a letter AD/05/05 ordered the Directorate of Government Analytical Laboratory to conduct a DNA test on all presumed to be children of the late. - 3. The DNA test could not be conducted because there were no reference samples of the late Nalaba Charles. - 4. The claim for a DNA test was based on bias and malice by the Respondents since 2006 and yet the 1st Respondent as the customary heir of the late Nalaba Charles gave the Applicant an additional piece of land through a memorandum of understanding. - 5. The Court on 11th March 2022, directed that a family meeting be held to find ways of financing the DNA test however, the Respondents declined to attend the same despite several reminders resulting in one of the Respondents being charged with disobedience of lawful orders. - 6. Since the late Nalaba Charles died testate, the estate had already been distributed according to his will however, the undistributed part of the estate was sold off by the 1 st Respondent without the consent or knowledge of the Applicants. - 7. The Respondents also demolished homes.

An affidavit in reply was deponed by Ssentamu Samson, the 2 nd Respondent and he states as follows, that;

- 1. The Director of Government Analytical Laboratory recommended the exhumation of the deceased to be done and a femur bone or molar tooth be recovered for purposes of analysis in order to conduct the DNA test. - 2. If the advice of the laboratory is adhered to, the DNA test process can be conducted successfully and the argument that the DNA tests cannot be conducted is malafide. - 3. The DNA test is done with good intention for the benefit of all the children to confirm lineage.


- 4. The act of the 1st Respondent giving the 1st Applicant a piece of land belonging to the estate of the late was an illegality and that the piece of land at the time belonged to the 2 nd Respondent who constructed houses thereon. - 5. The Respondents have never been informed of any meeting intended to find ways to fund the DNA test process. - 6. The Respondents have never sold any part of the estate illegally or maliciously and that the only part they sold was based on a decree of Court which sought an effect of raising funds to facilitate the DNA testing process.

In rejoinder, it was stated as follows, that;

- 1. The DNA test cannot be conducted for lack of reference samples. - 2. The DNA test process cannot be conducted because it is impossible for the estate to fund the process. - 3. The Respondents have no right to sell any property because they are not administrators of the estate of the late Nalaba Charles. - 4. A family meeting was held on 17th February 2022, to devise means to fund the DNA testing process but the Respondents did not attend. - 5. There was no Court order authorizing the sale of any estate property. - 6. The Respondents deliberately refused to attend the family meeting scheduled for 14th July 2022 at the Administrator General's offices.

## **Representation.**

The Respondents were represented by M/S Rem Advocates while the Applicants were represented by M/S Mayanja, Nakibuule and Co. Advocates.

The Parties were instructed to file written submissions however, at the point of determination of this Application, only the Applicants had filed written submissions. I shall therefore dispense with the submissions for the Respondents.


#### **Submissions for the Applicants.**

Counsel submitted that this application for review was brought with an intention to protect the interests of the Applicants and save the estate which is at risk of being wasted.

The actions of the Respondent in preferring exhumation of the body of the late Nalaba Charles are intended to delay proper administration of the estate and yet the DNA tests can be conducted on other surviving members of the family or siblings. It was further submitted that the estate cannot fund the DNA testing process because part of the estate that was to fund the process was illegally sold off by the 1st and 2nd Respondents without the authority or consent of the beneficiaries and the only thing left of the estate is burial grounds.

I have carefully considered the Affidavits to this Application together with the submissions for the Applicants, I now proceed to determine this Application.

#### **Determination of Application.**

*Section 82* of the CPA establishes court`s jurisdiction to review its own decrees or orders. It provides that: - "*Any person considering him/her self-aggrieved by a decree or order from which an appeal is allowed by this Act but from which no appeal has been preferred or by a decree or order from which no appeal is allowed by this Act, may appeal for review of the judgment to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit*."

*Order 46 rule 1* of the *Civil Procedure Rules* also provides for review and it is to the effect that:- "*Any person considering him/her self-aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred or by a decree or order from which no appeal is hereby allowed and who from the discovery of new and important matter of evidence which after the exercise of due diligence was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed 4 or order was made or on account of*


*some mistake or error apparent on the face of the record or for any other sufficient reason desires to obtain a review of the decree passed or order made against him or her may apply for a review of the judgment to the court which passed the decree or made the order.*"

In *FX Mubuuke Vs UEB High Court Misc. Application No.98 of 2005* it was observed that for Court to exercise its powers of review, the Applicant must prove;

- 1. That there is a mistake or manifest mistake or error apparent on the face of the record. - 2. That there is discovery of new and important evidence which after exercise of due diligence was not within the applicant's knowledge or could not be produced by him or her at the time when the decree was passed or the order made. - 3. That any other sufficient reason exists. (Must be read in line with the first two grounds)

I have had an opportunity to carefully examine the Affidavits and submissions for the Applicants and I come to the conclusion that the Applicants have not pleaded or satisfied any of the grounds above to warrant a review of Courts orders. It is my observation that the Applicants seek to set aside the Court orders on account of matters that occurred after the order had already been issued and this is not the purpose of review.

All the matters alleged in the Applicants affidavit are matters that occurred after an order for DNA tests had already been issued. An Application for review was not the right procedure to address grievances accruing after the orders had been issued.

To put it into context, the Applicants aver that after the order of Court, the Respondents sold estate property intended to fund the DNA test process but never used the proceeds for the intended purpose. The Applicants also alleged that there were various meetings called to establish how the family could navigate the DNA testing process but the Respondents refused to attend the meetings. It is my opinion that the complaints raised do not fall within the ambit of review.

Considering the above, it is my finding that this Application is misconceived.


Before I take leave of this matter, it is my observation that the Applicants contended that DNA tests could not be conducted because there were no reference samples for the late Charles Nalaba. On the other hand, the Respondents while relying on a letter from Director of Government Analytical Laboratory contended that the body of late Nalaba Charles should be exhumed so that a reference sample can be obtained.

The above issues raised were already subjected to scrutiny vide HCMA. No.119 of 2022 before this Court, where in the Respondents as Applicants sought an order to permit them to exhume the late Nalaba's body for purposes of obtaining a reference sample for the DNA tests however, this Court dismissed the Application for reasons this Court shall not repeat.

To further emphasise and guide the concerned parties, let each of the issues of the Late Charles Nalaba present himself/herself before the Government Laboratory technologist and submit a blood sample so that a relationship test is carried out on all the issues. This way, the family will know who of the issues are related and which ones' DNA is/are at variance from the majority in as far as family relationship is concerned.

#### **Conclusion and orders.**

- 1. The Application for review largely fails save for emphasis' sake. - 2. Since it is a matter between family members and this Court seeks to promote reconciliation, I make no orders as to costs.

I so order.

Dated and delivered electronically at Masaka this 02nd day of October, 2023.

**Victoria Nakintu Nkwanga Katamba. Judge.**