Nabataaya Milicent v Ndaliike Lameka Kivumbi Daniel and Nabasonko Hadijah (Civil Suit No. 125 of 2022) [2025] UGHC 565 (26 March 2025)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MFPIGI

## CIVIL SUIT NO. 125 OF 2022

(Arising from Administration Cause No. 742 of 2016)

NABATAAYA MILICENT it s s costs sosivosrssne s s a1 is s 58 swa o0 5 5 w000 PLAINTIFF

### VERSUS

1. NDALIKE LAMEKA KIVUMBI DANIEL

2. NABASONKO HADIJAH......ccuviinniiniiiniiiniinieneeaeeneenneeas DEFENDANTS

(Administrators of the estate of

10 The late Kivumbi Fredrick)

# BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

## udgment

15 20 25 The plaintiff filed this case against the defendants as administrators of the estate of the late Kivumbi Fredrick for orders that; the residue of the estate of the late Muganga Ezekiel after curving off the road reserve by Uganda National Road Authority belongs to the plaintiff, a declaration that the unilateral sale of several bibanja interests on the estate of the late Muganga Ezekiel without the consent of the plaintiff was illegal, an order that the defendants refund all the proceeds of the unlawful sales of the deceased's properties, a declaration that the money unilaterally transferred from the joint Account No. 2820100632 Centenary Bank of the plaintiff and the late Fredrick Kivumbi by the late Fredrick Kivumbi to the bank accounts of the late Kivumbi's associates without the knowledge and consent of the plaintiff constituted a share of the late Kivumbi Fredrick, a declaration that the late Kivumbi Fredrick died intestate, a permanent injunction, general damages

and costs.

The defendants denied the allegations and prayed for the dismissal of the suit with costs.

#### Representation:

30 Counsel John Patrick Muganga appeared for the plaintiff while Counsel Wanako Conrad appeared for the defendants. Both parties filed written submissions. ;

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#### Issues:

- 1. Whether the money transferred from the estate bank accounts by the late Kivumbi Fredrick constitutes part of his share in the estate of his father the late Muganga Ezekiel? - $5$

- 2. Whether the defendants had capacity to sell or transact on the estate of the late Muganga Ezekiel without the consent of the plaintiff, the surviving administrator of the estate of the late Muganga Ezekiel? - 3. Whether transactions entered into by the defendants on the estate of the late Muganga Ezekiel without the consent of the plaintiff should be annulled. - 4. What remedies are available to the parties?

#### Resolution:

### Burden and standard of proof:

In civil proceedings, the burden of proof lies upon he who alleges. Section 101 of the Evidence Act, provides that;

"(1) Whoever desires any court to give judgment as to any legal right or *liability dependent on the existence of facts which he or she asserts must* prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person".

Section 103 of the Evidence Act provides that; 20

> "The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person".

Therefore, the burden of proof in civil proceedings normally lies upon the Plaintiff or claimant and the standard of proof is on a balance of probabilities. 25

Issue 1: Whether the money transferred from the estate bank accounts by the late Kivumbi Fredrick constitutes part of his share in the estate of his father the late Muganga Ezekiel?

It was submitted for the plaintiff that her late brother Kivumbi Fredrick, the father to the defendants and herself were administrators and beneficiaries of the estate of 30 the late Muganga Ezekiel their father. That their late father left behind property which was sold to UNRA and a compensation of UGX 400,000,000/ $=$ was paid onto their joint account in Centenary bank whereof they withdrew UGX $80,000,000/$ and bought two taxis. That the rest of the money was dealt with illegally by the late Kivumbi Fredrick for his personal use without the consent of 35

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the plaintiff and the developments put up by the two siblings were personalized by him. Counsel prayed that court finds that the money was illegally transferred from the estate bank accounts by the late Kivumbi Fredrick or that money got out of the proceeds of sale or the buildings constructed by the defendants as they admitted during the locus in quo visit out of the money got from the said sales constitutes part of the late Muganga Ezekiel's estate for which the plaintiff has an equal share plus the money which was utilized by the children of the late Kivumbi including the defendants.

10 Counsel for the defendants on the other hand while relying on Section 327 of the Succession Act submitted that criminal liability under that section is individual liability and in the circumstances that there is no conviction against the late Kivumbi Fredrick regarding the alleged illegal withdraws of money, the said allegations cannot be attributed to the defendants.

15 20 Secondly, that the plaintiff did not adduce any evidence to prove that the said monies were withdrawn illegally either by submitting proof from the bank, or that her signature was forged at some point. That the plaintiff did not know how much they had been compensated and how much balance was remaining thus her testimony was inconsistent with her pleadings where she stated that they withdrew UGX 80,000,000/= and the balance was taken by the late Kivumbi and his associates. Nor did she adduce any proof showing that the late Kivumbi used the money to put up any developments without her consent and knowledge.

Counsel further submitted that at locus it was shown that the homestead where the plaintiff resides was developed and other parts refurbished and the graveyard also built during that period of compensation but the plaintiff did not explain how such developments were made.

Counsel for the plaintiff in rejoinder submitted that the defendants never denied that their father transacted alone on the joint account and money was unilaterally transferred to the late Kivumbi and his associates as illustrated in the bank statements in the plaintiff's trial bundle which were not challenged by the defendants. That the defendants are administrators of the estate of the late Kivumbi Fredrick and his actions created liability on his side to make good the loss he made on the estate of his late father the late Muganga Ezekiel at the detriment of the plaintiff who was a direct beneficiary and co-administrator of her father's estate. (See: Section 327 (2) of the Succession Act). That due to the plaintiff's then blindness, the defendant's father illegally withdrew money without her consent and authority which money he later used to put up developments that are currently being occupied by his children including the defendants and some have already been sold. ;%d

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Further, that the succession Act creates liability of an administrator when it comes to debts and liabilities of the deceased to the extent of the assets of the estate, meaning they are not personally liable beyond the value of the deceased's property, but can be held accountable for mismanagement or negligence in administering the estate, including failing to properly pay off debts or liabilities owed by the

deceased. Thus, the plaintiff has proved that the late Kivumbi Fredrick withdrew UGX 300,000/ $=$ without her consent as evidenced by the bank statements.

I have carefully considered the pleadings filed in the instant case together with their annextures, the evidence adduced in court, the submissions, the law and authorities cited therein by both parties to resolve this issue as follows:

The plaintiff in this case stated that she together with her deceased brother Kivumbi Fredrick were administrators of the estate of their late father, Muganga Ezekiel and part of his estate was taken over by UNRA which paid compensation to a tune of UGX 400,000,000/= and only UGX 80,000,000/= was withdrawn with the consent of the plaintiff. The plaintiff in her trial bundle attached receipts that showed that further withdrawals were made by the late Kivumbi without her consent and the said bank statements indeed indicate that transfers were made by the late Kivumbi. The defendants did not challenge the said bank statements, I therefore find that indeed the late Kivumbi did withdraw the reminder of the money and the plaintiff did not get to benefit from it.

Counsel for the defendants contended that the plaintiff did benefit from the compensation from UNRA and this extended to the house she is currently occupying and the grave yards.

- This can be deduced from what was observed during the locus in quo visit which is a total lie unless counsel attended a different locus in quo because the plaintiff 25 was found confined to a small old two roomed house, poorly ventilated with no renovations that she shares with her daughter. No graveyard was built in my opinion and what was in place was clearly old, the main house was being occupied by the brother to the defendants. - The defendants therefore as administrators of the estate of the late Kivumbi 30 Fredrick have a duty to pay off debts or liabilities owed by the deceased and in the instant case they are therefore responsible for the illegal withdrawals that were made by the late Kivumbi Fredrick from the estate account that he held jointly with the plaintiff over their late father's estate. - I hereby find that the money transferred from the estate bank accounts by the late 35 Kivumbi Fredrick constitutes part of his share in the estate of his father the late Muganga Ezekiel. This issue is hereby resolved in the positive. $\#$

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Issue 2: Whether the defendants had capacity to sell or transact on the estate of the late Muganga Ezekiel without the consent of the plaintiff, the surviving administrator of the estate of the late Muganga Ezekiel?

Issues 3: Whether transactions entered into by the defendants on the estate of the late Muganga Ezekiel without the consent of the plaintiff should be annulled.

Counsel for the plaintiff submitted that in the instant case the defendants and their late father sold off all empty spaces on the land belonging to the estate of the late Muganga Ezekiel and these sales were never consented to by the plaintiff nor did she receive any proceeds therefrom. That in a bid to convince the public the defendants applied for letters of administration to the estate of the late Fredrick Kivumbi and mentioned all the property of Muganga Ezekiel as their father's. And sold, the entire estate using the said Letters of Administration.

Secondly, the 21d defendant without any colour of right illegally confiscated the certificate of title described as Mawokota Block 106 Plot 476 land at Katende which had been directly given to the plaintiff by the land lord measuring 50 decimals and had it registered in her name, Lunkuse Gertrude and Nakimbowa Justine.

Additionally, counsel for the plaintiff prayed that court orders that the defendants surrender the certificate of title for Plot 476 meant for the plaintiff and further direct that the plaintiff is also entitled to the one acre reserved as family property.

Thirdly, that the plaintiff is occupying one acre where her house is located, thus this court should order that the said land be divided equally between the two siblings as the dealings of the defendants amounted to intermeddling with the estate of the deceased and were illegal.

- 25 Counsel for the defendants on the other hand submitted that the plaintiff never adduced in evidence any sale agreements to prove that the defendant's father sold off all the empty spaces of the land belonging to the estate of their late father Ezekiel Muganga. That it was the testimony of DW1 that the plaintiff sold land off Plot 54 to Nazziwa Betty of Katende sometime in 2015 and the said sale was witnessed by - 30 the 1% defendant and the plaintiff did not challenge the sale agreement. Additionally, that the portions sold by her sons and others occupied by her daughter Nabukalu Sarah and her sons Serunjogi Patrick and Mayengo are undeniable.

35 Further, that in regard to the Certificate of title for Plot 476, the plaintiff sold reversionary interest to other people and later transferred registrable interest to the daughters of the late Fredrick Kivumbi, therefore she cannot reclaim a gift intervivos on the said title. That the plaintiff cannot also lay a claim on the kj?:éu'ja

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10 where the 15t defendant constructed the 16 rentals since that portion of land was given to him by the plaintiff and the late Kivumbi Fredrick. That the said commercial building has since been shared amongst the beneficiaries of the late Fredrick Kivumbi. That their father had his own property while still alive and these were bibanja with developments on Block 106 Plot 53 and 54 registered both in his name and that of the plaintiff as administrators of the estate of Ezekiel Muganga, and interest on the kibanja at Kiwamirembe where the ancestral land is situated. That he also had 6 acres at Mawokota Block 106 plot 39 which he obtained as a gift intervivos from his late father and finally, plot 54 at Katende trading centre where he constructed 10 rental units on the kibanja he purchased from the late Hajji Kasani of Nsujuwe and this does not form part of the estate of the late Muganga Ezekiel.

15 Counsel for the plaintiff in rejoinder submitted that the 214 defendant and her siblings got registered on the certificate of title on land described as Mawokota Block 106 Flot 476 which rightfully belonged to the plaintiff. Additionally, the defendants with their siblings sold 3 acres of land to construct a commercial structure where they got UGX 100,000,000/ = which was property of the estate of Muganga Ezekiel.

20 Further, that the defendants had sold off other properties such as the 6 acres without the plaintiff's consent. And for property that was said to belong to Kivumbi Fredrick, evidence was not adduced that the same was ever given to him as a gift intervivos. And the said properties are actually registered in the names of the plaintiff and the late Kivumbi.

25 30 I have carefully considered the submissions of both parties in regard to the issues above. PW1 in her testimony stated that the estate of Muganga Ezekiel was never distributed between her and Kivumbi Fredrick, the only two children left behind by their father. That when she tried to distribute the same, there was protest and dissatisfaction. While, the defendants stated that their father had his own property while still alive and these were bibanja with developments on Block 106 Plot 53 and 54 registered both in his name and that of the plaintiff as administrators of the estate of Ezekiel Muganga, and interest on the kibanja at Kiwamirembe where the ancestral land is situated.

During cross examination DW2 stated that the late Muganga Ezekiel left three titled properties to wit: Block 106, Plots 54 measuring 19 acres at Katende trading centre, Block 106 Plot 53 measuring 1 acre and Block 106 Plot 39 measuring 6 acres and untitled properties being a kibanja at Nabuye about 4 acres. He further stated that they had sold off about 4 acres as the children of the late Kivumbi Fredrick and the proceeds were used to build a commercial building whicl;%te

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plaintiff has no share. He also stated that Block 106 Plot 476 belongs to the plaintiff but is not in her name. That out of their grandfather's property she only got where she is staying. And he admitted that the estate of the late Muganga was never distributed while he was still alive and was never distributed. That from the UGX $100,000,000/$ = that was obtained from the sales made on the estate of Muganga,

the plaintiff was never given anything.

From the evidence as adduced in court I find that the defendants had no capacity to sell or transact on the estate of the late Muganga Ezekiel without the consent of the plaintiff, the surviving administrator of the estate of the late Muganga Ezekiel as such the transactions entered into by the defendants on the estate of the late

Muganga Ezekiel without the consent of the plaintiff were illegal.

During the locus in quo it was discovered that the defendants had sold off properties of the estate of Muganga without the plaintiff's consent and no proceeds were shared with her. Since the estate of the late Muganda Ezekiel had never been distributed, the defendants ought to have engaged the plaintiff over the same before dealing with it without her consent.

The $2<sup>nd</sup>$ defendant also according to the evidence adduced in court and at locus was found to be in the custody of the certificate of title for Block 106 Plot 476 which belongs to the plaintiff but registered in her name and two others. The

- plaintiff denied having given the legal interest in the said land to the $2<sup>nd</sup>$ plaintiff 20 and her two siblings. I therefore find that it was wrong for the $2<sup>nd</sup>$ defendant, Lunkuse Gertrude and Nakimbowa Justine to have had themselves registered on the certificate of title for interest that belongs to the plaintiff and yet their deceased father's estate was also given its own share from the land lord of the same kibanja. - As for the family land that measures one acre, I am of the view that the plaintiff 25 and the estate of the late Kivumbi Fredrick use it equally and not limiting the plaintiff to only a small portion of the said land.

I therefore resolve these two issue in favour of the plaintiff.

## Issue 4: What remedies are available to the parties?

Counsel for the plaintiff prayed for among other remedies; general damages to a 30 tune of UGX 100,000,000= against each defendant totaling to UGX $200,000,000$ = since the actions of the defendants constituted selling parcels of land to third parties without the consent of the plaintiff, that their actions were unjustified, amounted to mistreatment of the plaintiff causing her suffering and emotional stress. And that the suit be allowed with costs. 35

Counsel for the defendants on the other hand submitted that the plaintiff has failed to prove that the late Kivumbi Fredrick transferred money from their joint account

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illegally nor sold portions of land without her consent. On the other hand the defendants adduced evidence to the effect that the plaintiff has not been denied usage of the land she having given portions to her children who already sold off the same. That the plaintiff and the brother used to work together and their decisions were made uninfluenced and not known to the defendants. Thus, no property was sold by the defendants without her consent and the plaintiff is therefore not entitled to the remedies sought. As such the suit should be dismissed with costs.

General damages are losses which flow naturally from the defendant's act. Therefore, general damages are damages which the law implies and presumes to 10 have accrued from the wrong complained of or as the immediate, direct and proximate result, or the necessary result of the wrong complained of. The essence of damages is compensatory. It is neither to punish the defendant nor confer a windfall on the plaintiff. It is not also meant to punish the claimant and allow the

- defendant to go without repairing the actual loss caused to the claimant. (See: Lydia 15 Mugambe v Kayita James & Another HCCS No. 339 of 2020). The plaintiff in this instant case her proved to this court that the estate of the late Muganga Ezekiel her late father was unfairly dealt with by the late Kivumbi Fredrick whose estate the defendants administer. DW2 confirmed that indeed the plaintiff did not benefit - from the sale of some of the estate property to which she is a direct beneficiary. In 20 the circumstances, I find an award of UGX 20,000,000/ $=$ is sufficient in general damages at an interest rate of 6% per annum from the delivery of this judgment to payment in full.

The plaintiff has therefore proved her case on a balance of probabilities and judgment is hereby entered in her favour in the following terms; 25

- 1. A declaration that the residue of the estate of the late Muganga Ezekiel after curving off the road reserve by Uganda National Road Authority belongs to the plaintiff. - 2. A declaration that the unilateral sale of several bibanja interests on the estate of the late Muganga Ezekiel without the consent of the plaintiff was illegal. - 3. An order is issued that the plaintiff and the estate of the late Kivumbi Fredrick are entitled to equally share the proceeds from the unlawful sales that were made of the late Muganga Ezekiel's properties. The plaintiff's share should therefore be remitted to her within 30 days from the date of delivery of this judgment. - 4. A declaration that the money unilaterally transferred from the joint Account No. 2820100632 Centenary Bank of the plaintiff and the late Fredrick Kivumbi by the late Fredrick Kivumbi to the bank accounts of the late

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- Kivumbi's associates without the knowledge and consent of the plaintiff constituted a share of the late Kivumbi Fredrick. - 5. A declaration that the late Kivumbi Fredrick died intestate. - 6. An order is issued that the $2^{nd}$ defendant surrenders the certificate of title for Plot 476 meant for the plaintiff and the same be registered in the plaintiff's name. - 7. An award of UGX 20,000,000/ $=$ to the plaintiff in general damages at an interest rate of 6% per annum from the delivery of this judgment to payment in full. - 8. Costs to the plaintiff. 10

I so order. Right of appeal explained.

OYUKO ANTHONY OJOK

**JUDGE** 15

26/03/2025

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