Namutebi v Musoke and Another (MISC. APPLICATION NO. 21 OF 2023) [2024] UGHC 1204 (1 January 2024)


# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MPIGI

# **FAMILY DIVISION**

### MISC. APPLICATION NO. 21 OF 2023

#### (ARISING FROM ADMINISTRATION CAUSE NO. 193/2017)

# IN THE MATTER OF THE ESTATE OF THE LATE NALUKWAGO ROSALI (DECEASED)

AND

# IN THE MATTER OF AN APPLICATION FOR RECTIFICATION OF THE GRANT OF LETTERS OF ADMINISTRATION

$BY$

# NAMUTEBI CHRISTINE(DAUGHTER/APPLICANT)

#### **BEFORE:** HON. LADY JUSTICE NABAKOOZA FLAVIA. K **RULING**

- 1. The Application was brought by way of Notice of Motion under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Order 52 Rules 1 & 2 of the Civil Procedure Rules for orders that: - a. The grant of Letters of Administration obtained vide AC 193 of 2017 be rectified to exclude **MUSOKE EMMANUEL NALWERA** who was a biological son to the deceased and is also now deceased. - b. A Fresh grant of Letters of Administration be made to reflect the surviving Administrator/Applicant **NAMUTEBI CHRISTINE**(daughter) to the deceased. - c. Costs of the application be provided for. - 3 The grounds are in the Notice of Motion, and are supported by the affidavit in support deposed to by Namutebi Christine *(the applicant)*. - 4 **Representation;** the applicant is self-represented. She also filed written submissions: - 5 The Issues for court's determination are: - $\mathbf{i}$ Whether the Letters of Administration issued can be rectified by removing Musoke Emmanuel Nalwera as Administrator of the Estate of the late Nalukwago Rosali? - What remedies are available? ii.

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6 Resolution of issue 1. Whether the Letters of Administration issued can be rectified by removing Musoke Emmanuel Nalwera as Administrator of the Estate of the late Nalukwago Rosali.

a

o

o

The Applicant relied on Section 273 of the Succession Act for her submission that the law allows survivorship of administrators ofthe estate and that upon death of one or more administrators, all powers of the office become vested in the survivor.

- 7 She also relied on Section 234(2) (d) (supral which states that Letters of Administration may be revoked or annulled for just cause and that Sub-section [2J (d) defines just cause to mean, "that the grant has become useless and inoperative through circumstances". That after the death ofone ofthe Administrators/ Musoke Emmanuel Nalwera, the grant has become useless and inoperative which calls for revocation. - I Letters of Administration cannot be amended without revoking the grant. In Anecho Vs Twalib and 2 others HCCS No. 9 of 2008; in which Mubiru f. held that 'rhar <sup>a</sup> grant remains valid until revoked, even in cases where a grant has been obtoined by fraud, so long as the grant remains unrevoked, the grantee represents the estote ofthe deceased'. In addition to that, in the Matter of an Application for Revocation of Letters of Administration and grant instead to Piwa Clare and Biywaga foan (Miscellaneous Application No. 53 of 2016) court observed that, "a grant may have been properly made but for a reason that has occurred as a result of subsequent events, it may become necessory for court to revoke the grant for practical reasons". - 9 The intention of High Court Mpigi in Administration Cause No. 193 of 2017 was to grant Letters of Administration over the estate of the deceased to her two children (Namutebi Christine/ Applicant ond Musoke Emmonuel Nalwera (now deceased) as seen in the Certificate of No Objection which was relied on by court. The Applicant has now attached to her affidavit in support a short death certificate vide Notif. No. KIR/065 of Musoke Emmanuel Nalwera dated 7 /7 /2020; an introduction letter from LCI Nsuj.lumpolwe Village-Kololo Parish- Kiringente Sub-County-Mpigi District indicating that Musoke Emmanuel Nalwera passed on and was buried on 8/07 /2020. - 10 In the matter of an application for revocation of letters of administration and grant instead to Piwa Clare and Biywaga foan(supra), it was an Application for revocation of Letters of Administration that were jointly granted to Piwa Clare, Bigwaga Joan and favuru Smith GodwinfdeceasedJ. While granting the Application, Mubiru J. said that "where a grant to two or more administrators is revoked however, ond a new grant is issued to one of the originol administrators, a court does not require

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the continuing administrator to prove once more all of the matters which were proved in order to obtain the original grant. In this case itwill not be necessary to go through the entire process of applying, advertising etc.". I do find this holding persuasive.

11 Basing on the evidence at hand, t find that the applicant has made out a proper case for revocation ofLetters of Administration vide Administration Cause No. L93/2023 and grant ofthe same solely to the Applicant. The first issue is therefore answered in the affirmative.

# t2 f<crr c 2 Qerncdiec rweilrhlc

?

o

o

The applicant submits that Section 27 of the Civil Procedure Act provides for costs, and that she is entitled to an award of costs.

13 In Simbamanya Estates Ltd & Anor Vs Equity Bank (U) Ltd & 2 Ors (HCCA No. 6 and24 of 2O2l), it was held that:

The costs of and incidental to a proceeding or a step in o proceeding are in the discretion of the court, and the court moy determine by whom and to what extent the costs shall be paid. The general rule is that the unsuccessful party should be ordered to paJ/ the costs to the successful portv. Thus. the rule has heen coined to "costs follows the event." which means that the courtwill usually order that the loser of the litigation pays the winner's costs. However, the court has the discretion to award or not to award the costs. Tnirs discretion must be exercised judicially; it must not be exercised arbitrarily but in accordonce with reason and \_/ustice. [emphasis addedJ.

14. This was an ex-parte application, which led to ex parte proceedings. Therefore, I find no justification awarding costs.

- 14 I however note that, while petitioning for the grant, the applicant stated that the deceased had 28 acres ofland situate at Kiboga; the value ofthe estate property was about 60,000,000/= fSixty million). For a period ofabout 6 years from the date ofthe grant, the Applicant has never filed an inventory as required by the law. - 15 Section 278 of the Succession Act requires an administrator within six months from the grant of the Letters of Administration to file an inventory containing a full and true estimate ofall the property in possession and all the credits and debts to which the administrators are entitled. - 16 The Administrator is required to exhibit into court an account of the estate showing the assets which have come to his/her hands after the grant and the manner in which the same has been applied or disposed of. This, the applicant has never done so since


the grant. In Re: Proscovia Kaala (MA No. 276/2013) fustice Percy Tuhaise; held that,

I

o

o

ln the circumstances, on the adduced evidence, and in light of the requirements of section 278 oI the Succession Act, I find it pre mature for the applicant to request for discharge as administrator before she has filed an inventory of the estate and or exhibited an account of the estate showing how she and her co administrators have been administering the estate for the last one and a halfyears.

17. The Applicant in the instant case has to take a step to ensure that the beneficiaries take their shares in the estate. This court aims at passing orders which are paramount to the ends of justice; and this is why the Applicant cited Section 98 of the Civil Procedure Act which gives this court the inherent powers to make such orders as may be necessary to prevent abuse ofthe process. In that spirit, this application succeeds with the following orders; -

- 1. A fresh grant in respect ofthe estate ofthe late Nalukwago Rosali shall be granted to the surviving administrator; Namutebi Christine (daughter of the deceasedJ. - 2. The Applicant shall/and must submit to this court a full true and updated inventory of all the assets and liabilities of the estate within 6 months of issuance of the grant.

3. No costs are awarded. Signed, dated and delivered at Mpigi this qFl^ ....1......... day of 2024

Nabakoo

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