Namakula v Namatovu (Originating Summons 11 of 2022) [2022] UGHCFD 36 (8 September 2022)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) ORIGINATING SUMMONS NO. 011 OF 2022 ARISING FROM ADMINISTRATION CAUSE NO. 0441 OF 2022**

**NAMAKULA RESTY NALONGO =================== PLAINTIFF**

### **VERSUS**

**MATOVU FRANCIS ============================ DEFENDANT**

**(ADMINISTRATOR OF THE ESTATE OF THE LATE LWANGA EMMANUEL)**

## **RULING**

## **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA**

#### **Introduction**

This ruling is in respect of a suit brought by way of Originating Summons under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act, Order 37 Rules 1 and 8 of the Civil Procedure Rules. The application seeks for determination of the following questions:

- 1. Whether or not property comprised in Plot 24 Block 278 Muyomba entirely forms part of the Estate of the late Lwanga Emmanuel; - 2. Whether or not the grant vide Administration Cause No. 0441 of 2022 should be amended so that the deceased's estate is jointly administered by the following persons namely: - (i) Matovu Francis

- (ii) Namakulla Resty Nalongo. - 3. Whether it is just that the Defendant pays costs of this suit.

#### **Appearance and Representation**.

The plaintiff was represented by Mr. Barnabas Dyadi of M/S Barnabas D. K. Dyadi & Co. Advocates while the defendant was represented by Mr. Musede and Ms. Sandra Nakirwe of Tropical Advocates.

#### **Court's Decision**

Upon thorough perusal of the pleadings and the submissions, I find that no sufficient evidence has been adduced before me to enable me to answer the above questions as formulated by the plaintiff. The plaintiff alleges that the property comprised in Plot 24 Block 278 Muyomba (suit property) belongs to the estate of the late Kayuki Leopold who was a grandfather to both her and the defendant. The plaintiff's mother and the defendant's father were siblings having been born by the said Kayuki Leopold.

The defendant does not deny being a cousin of the plaintiff but contends that the suit property was bequeathed to his late father Lwanga Emmanuel by his grandfather Kayuki Leopold in a Will dated 6 th February 1967 (A photocopy of the said Will was attached on the affidavit in reply). The defendant further argues that in the said Will, the plaintiff's mother with her other two sisters were given the house and household items but now the plaintiff seeks to claim what belongs to only the defendant and his siblings (the children of the late Lwanga Emmanuel).

The plaintiff on the other hand disputes the Will and insists the suit property still belongs to the estate of the late Kayuki Leopold and all the grandchildren are entitled in equal measure.

There is no evidence that has been adduced in this court to confirm whether the said Will was probated or not, whether it is valid or not and the validity of the Will cannot be ascertained in this application. It requires oral evidence.

I therefore, agree with counsel for the defendant that the issues in this matter are contentious and can only resolved by way of an ordinary suit where parties will be able to adduce evidence (**see:** *Vincent Kawunde T/A Oscar Associates Versus Damiano Kato HCT-00-CC-OS-0004-2007*) which counsel for the defendant relied on.

In light of the above therefore, this Originating Summons is summarily dismissed under Order 37 Rule 11 of the Civil Procedure Rules, S. I 71-1.

Each party shall bear its own costs.

**Dated at Kampala this 8 th day of September 2022.**

**………………………………..**

Alice Komuhangi Khaukha

**JUDGE** 8/09/2022