Nakate & Another v Nakiganda (Miscellaneous Application 1065 of 2023) [2024] UGHCFD 90 (25 January 2024)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **FAMILY DIVISION MISCELLANEOUS APPLICATION NO. 1065 OF 2023** (ARISING FROMADMINISTRATION CAUSE NO. 264 OF 2018) 1. NAKATE ANNE BARBARA LULE

2. MUSOKE PETER PAUL (suing through Nazziwa **APPLICANTS Justine G. N)** $\mathbf{J}$ **VERSUS**

NAKIGANDA MIRIAM:::::::::::::::::::::::::::::::::: **BEFORE HON. JUSTICE JOHN EUDES KEITIRIMA**

## **RULING**

1. This is an application brought by way of Notice of Motion under Order 52 rules 1 & 3 of the CPR, Section 98 of the CPA and Section 33 of the Judicature Act Cap 13.

The applicant is seeking for orders that; -

$(i)$ Land comprised in Busiro Block 424 Plot 312 situate at Mpala Entebbe in Wakiso District measuring approximately 0.202 hectares be sold and proceeds of the sale be shared

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amongst the beneficiaries of the estate of the late Lule Samuel Mukasa.

- $(ii)$ That the caveat lodged by the respondent on land comprised in Busiro Block 424 Plot 312 situate at Mpala Entebbe in Wakiso District measuring approximately 0.202 hectares on the $10<sup>th</sup>$ day of April 2019 be vacated. - $(iii)$ Costs of the application be provided for.

2]. The application is supported by the affidavit of Nakate Anne Barbara Lule hereinafter referred to as the "1<sup>st</sup> applicant" who states inter alia; -

- $(i)$ That the applicants and the respondent were granted Letters of Administration to the estate of the late Lule Samuel Mukasa who died intestate by this Court vide Administration Cause No. 0264 of 2018. - $(ii)$ That the applicants and the respondent are all beneficiaries to the estate of the late Lule Samuel Mukasa. - (iii) That upon obtaining Letters of Administration, the applicants and the respondent got registered on the certificate of title vide

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instrument WBU00364835 as administrators of the estate of the deceased to enable its distribution to the beneficiaries.

- $(iv)$ That the land comprised in Busiro Block 424 Plot 312 forms part of the deceased's estate to wit the applicants and the respondent as administrators have a duty to distribute it to the beneficiaries. - That the respondent as one of the beneficiaries/administrators $(v)$ adamantly refused to cooperate has with the other administrators who are also beneficiaries hence frustrating the distribution of the land. - $(vi)$ That the only estate property is land comprised in Busiro Block 424 Plot 312 and is indivisible. - $(vii)$ That the applicants have tried all their capacity to convince the respondent that they sell the said piece of land and share the proceeds amongst the beneficiaries but the respondent has refused to sell.

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(viii) That it is in the interests of justice that an order of sell of the said land be granted and the proceeds of the sell be distributed to all the beneficiaries.

3]. In her affidavit in reply, Nakiganda Miriam hereinafter referred to as "the respondent" states inter alia; -

- $(i)$ That the applicants and herself were granted Letters of Administration to the estate of the late Samuel Mukasa vide Administration Cause No. 0264 of 2018. - $(ii)$ That what is left of the said estate is the late's residential home on land comprised in Busiro, Block 424, Plot 312 land at Mpala in Wakiso District measuring approximately 0.202 hectares. - That on the 10<sup>th</sup> April 2019 she placed a beneficiary caveat on $(iii)$ land comprised in Busiro Block 424 Plot 312 land at Mpala in Wakiso District. - That she is worried as a beneficiary of the late Samuel Lule $(iv)$ Mukasa that the said land can easily be disposed off to third

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parties by the applicants and this would deprive her and the rest of the beneficiaries of the deceased's interest in the said land.

- That though the Late Samuel Mukasa was buried at his $(v)$ ancestral burial grounds, those burial grounds have since filled up to capacity and it was her worry that if the said property is sold off, they shall not have any other place to be buried in the unfortunate occurrence of death. - $(vi)$ That she has been informed by her lawyers that the residence of the deceased is not part of the estate that must be distributed by the administrators. - $(vii)$ That it is not her intention to frustrate the distribution of the estate but rather to have the issues of the deceased's residence and burial grounds considered. - That the applicants have not given any substantial reasons (viii) causing them to consider selling the said property other than that the $2^{nd}$ applicant is desirous of buying a motor vehicle.

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- $(ix)$ That it is in the interests of justice that the caveat lodged by the respondent is not vacated in order to preserve the said property as their burial grounds. - 4]. In her affidavit in rejoinder, the applicant states inter alia; - - $(i)$ That she is advised by her lawyers that she should raise a preliminary objection to have the respondent's affidavit in reply struck out on grounds that it was filed out of time. - That the respondent was served with the application on the $26^{th}$ $(ii)$ February 2024 as shown in the affidavit of service and the respondent filed her affidavit in reply on 28<sup>th</sup> March 2024 after a lapse of 15 days within which to file the same. - $(iii)$ That the property subject to this application is situate at Busiro Block 424 Plot 312 at Mpala Wakiso District and forms part of the estate of the late Samuel Mukasa and that none of his beneficiaries or family members reside in the said premises. - That the current state of the property is that it is under key and $(iv)$ lock and has been in that state for over a year.

6 | Page - That the allegations that the said property is a burial ground $(v)$ are false and baseless and that their burial grounds are located at their grandfather Festo Mukasa's home situate on Block 424 Plot 318 which is in a different location where the late Samuel Mukasa was buried. - That the applicants filed the present application with the $(vi)$ intention of selling the estate property comprised on Busiro Block 424 Plot 312 at Mpala Wakiso District and distribute the amongst all the beneficiaries including proceeds the respondent and wind up the deceased's estate. - That she is advised by her lawyers that administration is not $(vii)$ infinite and must come to an end. - $(viii)$ That in the interests of justice this application should be allowed with costs.

Counsel for the applicants and counsel for the respondent filed written submissions the details of which are on record and which I have considered in determining this application.

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## <u>Preliminary Objection by the Applicant.</u>

5]. The applicant submitted that the respondent was served with the application on the $26<sup>th</sup>$ day of February 2024 as per the affidavit of service. The respondent filed the affidavit in reply out of time as she filed it on the 28<sup>th</sup> May 2024.

6. The applicant cited Order 12 rule 3(2) of the CPR and the case of Stop and See (U) Ltd versus Tropical Africa Bank Ltd M. A 333/2010 (Commercial Division of the High Court) to buttress his submissions. The respondent never responded to this preliminary objection which implies that she conceded to it.

7]. The affidavit of service by Wasirwa Francis a Process Server of this Court shows that the application was served on the respondent on the $20<sup>th</sup>$ February 2024. The respondent filed an affidavit in reply and filed it in Court on 28<sup>th</sup> March 2024.

8]. Order 12 Rule 3(2) of the CPR provides that "service of an interlocutory application to the opposite party shall be made within fifteen days from the filing of the application, and a reply to the

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application by the opposite party shall be filed within fifteen days from the date of service of the application and be served on the applicant within fifteen days from the date of filing of the reply".

9]. Since the respondent was served on 26<sup>th</sup> February 2024, she should have replied and served the applicant within fifteen days from the date of service and hence the last date should have lapsed on 12<sup>th</sup> March 2024.

10]. The respondent filed the affidavit in reply on 28<sup>th</sup> March 2024 which was over two weeks when she should have filed the reply and did it without leave of Court, See Stop and See (U) Ltd versus Tropical Africa Bank Ltd (supra).

11]. Since the affidavit in reply was filed out of time without leave of Court, the same will be struck out and the application stands unchallenged.

12]. The parties herein as administrators of the estate of the Late Samuel Mukasa have an obligation to distribute his estate to the beneficiaries in accordance with the law.

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13]. The applicants and the respondent were granted Letters of Administration of the said estate on 26<sup>th</sup> February 2019. They were under obligation to make a full and true inventory of the said estate within 6 months of the grant of Letters of Administration and render to this Court a true account of the said estate within one year from the date of issue of the Letters of Administration. The applicants have adduced evidence to show that it has been the respondent that has frustrated the said process.

14]. Leave will therefore be granted to the applicant as co-administrators of the estate of the Late Lule Samuel Mukasa to sell land comprised in Busiro Block 424 Plot 312 at Mpala and the proceeds shared among the beneficiaries in accordance with the law.

15]. The caveat lodged by the respondent on Land comprised in Busiro Block 424 Plot 312 situate at Mpala Entebbe in Wakiso District measuring approximately 0.202 hectares should be vacated.

The costs of this application will be provided by the estate of the Late Lule Samuel Mukasa.

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U $\mathcal{F}$ $\ell$ $\overline{\phantom{a}}$

Hon. Justice John Eudes Keitirima.

25/10/2024