Ndagire v Nakyeyune and 3 Others (Miscellaneous Cause No. 77 of 2022) [2022] UGHCLD 220 (25 November 2022)

## THE REPUBLIC OF UGANDA

地质的现在分词

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

## **MISCELLANEOUS CAUSE NO.077 OF 2022**

$\mathsf{S}$ SHEILAH NDAGIRE::::::::::::::::::::::::::::::::::::

## **VERSUS**

- 1. NAKYEYUNE MONICA - 2. NABILA NJAMBI - 3. EVELYN MWESIGWA - 10 4. HAPPY NAKAYE AMINA:::::::::::::::::::::::::::::::::::

## Before: Lady Justice Alexandra Nkonge Rugadya.

#### Ruling.

The applicant brought this application under Section 33 of the Judicature Act cap.13, Section 98 of the Civil Procedure Act cap.71, Sections 140 (1), 142, 145 & 188 of the Registration of Titles Act cap. 230 and Order 52 rules 1 & 2 of the Civil Procedure

**Rules SI 71-1** seeking orders that;

- a. The respondents appear before the court and show cause why their caveat in respect of land comprised in Kyadondo Block 205 plots 954, 888, 887 land at Bunga Hill Mengo District should not be removed/lapsed; - 20

b. The respondents' caveat be removed from the above-described land;

- c. The respondents be blocked from caveating land comprised in the estate of the late Samuel Mugabi in order to facilitate the effective and complete distribution of the estate to the beneficiaries; - d. Consequential order doth issue directing the Registrar of titles to remove the caveats and effect changes in the register book; - 30 e. The respondents pay compensation and/or damages to the applicant for lodging a caveat without a lawful or reasonable cause;

### f. Costs of this application be provided for.

The grounds upon which the application is based are contained in the affidavit of Ms. Sheilah 35 Ndagire, the applicant who deponed that she was legally married to the late Samuel Mugabi (hereinafter referred to as the 'deceased'), with 2 children to wit; Skylar Mukis, and Nicole


Kezia Nanyonga, and that upon his dcmise, she was appointcd the sole administrator of the deceased's estate.

That while the applicant is supposed to filc an inventory within six months from thc date of appointment as the administrator, immcdiately startcd cxccuting my dutics as administrator

5 of the estate including but not limited to thc paymcnt of school fees for thc children left by the deceased and that on 6'h April 2022, she was registercd as the proprietor of Kgad.ondo Block 2OS plots 954, aaa, 887 la:nd at Bunga Hill lllengo District (hereinafier refened to as the 'suit land') so as to cnablc her to pcrform her administrative dutics.

That thc applicant has bcen in constant negotiations with various crcditors including.ills

- 10 Centenary Bank which advanced a loan to the dcceascd as well as Nakascro Flospital which treated him until his dcath and shc has been making pcriodic paymcnts to servicc the mortgage the deceased left on Kgadondo Block 25O plot 954 from the income earncd by the estate. - 15 That on 91h May 2O22, the respondents jointly lodged a cavcat on the suit property which is under the applicant's posscssion, and that thc said cavcat has grcatly interfered with the applicant's duties as administrator as shc is unablc to gcnerate income and revenue that would havc been of interest to all the bencficiaries of thc cstatc and settle the creditors to the estate- - 20 ln addition, the applicant has been unablc to effectively administer thc cstatc, or complete its distribution, and although she has rcqucstcd thc cavcators to acknowlcdge school fces payments for their childrcn as per thc incomc earned from thc cstate, the same has bcen rejected in view of the distribution of thc dcceased's propcrty so as to cnable them to selfishly gain a share of the estate contrary to the deceased's will and wishes.

25 The respondcnts opposcd thc application throuBh thc affidavit in rcply of Nakycyune Monica, the 1"t rcspondent, whercin shc statcd inter alia that thcy havc since filed Miscellcneous Applicdtion No.955 oJ 2O22 arising out of AdrnlnlstratTolt Cduse 72E3 of 2027 against the applicant beforc thc High Court Family Division sccking orders that thc grant of letters of administration to be varicd by adding the respondcnts hcrcin as the next friends ofthe five minors, who are also bencficiaries of thc latc Samucl Mugabi, owing to thc mismanagcmcnt

30 and the administrator being inconsidcratc of thc intcrcsts of thc othcr bcncficiaries of the deceased's estate.

That the interim inventory filed by the applicant is fillcd with falsehoods because she did not include some of the deccascd's property, nor did she show how the same was distributed by her as thc sole administrator of the estate since all thc other beneficiaries are minors and

that in their application, the respondcnt's avcr that thc applicant has failed to execute her administrative duties owing to the high level of discrimination exhibitcd because the estate 35

2 \J"',6

has only benefited the applicant and hcr two childrcn whilc sidc-lining the other five children sired by the respondents.

It was also averred that the applicant only makes payment of school fees for her two children while the welfare, maintenance, and school fees of the other fivc children mothered by the respondents, and that the applicant's allegations that she has been in negotiations with various creditors including Centenary llank and Nakascro llospital and making periodical payments thereto, are not truc since there was no cvidcnce of thc crcditors, or the alleged payments attached on the invcntory filcd in thc Family l)ivision.

In addition, that while the incomc generatcd by the cstate can sustain the proper running of the estate as well as the beneficiaries thcrcof, the applicant has failed to do so as she spends all the income on herself and a fcw sclcct bcncficiarics at thc cxpensc of thc othcrs.

That accordingly, thc caveat in issue was lodgcd in good faith by thc rcspondents as the same is intended to protect the cstatc from being wasted and to cnsurc that thc interests of the fivc beneficiaries of the deceascd who arc still minors and school going arc protected.

Further, the lodging of the caveats in issuc was triggcred by the applicant's conduct of concealing information about properties such as the dcccased's propcrtics, which arc believed to have been sold off, and the proceeds channeled to bcnefit the applicant and her children to the exclusion of the other bcneficiarics. 15

That the caveats on Block 25O, plots 887, Aaa, & 954land at Bunga hill have not in any way interfered with the administration of thc deceascd's cstatc sincc the land in issue has a hotel thereon, which has continued business and earned an income despite the respondent's caveats being lodged. 20

That the said allegations by the applicant are mere excuses by thc applicant who does not want to equally distribute thc proceeds from the cstate, which she uscs for her own personal developments and her children.

That while the applicant's previous attcmpts to give thc respondcnts school fccs were a mere cover-up by the applicant owing to the fact that thc proposed monics could barely cater for school fees, maintenance, and wclfare of the respondcnts' childrcn, thc applicant spends over sevcn million shillings in school fccs pcr term for hcr childrcn which is unfair to the

respondents' children who arc also beneficiarics of thc deceascd's cstate. 30

That the caveats in issue should not bc vacaled by this court until thc detcrmination of thc respondents' application in the IIigh Court Family Divisions to be added as next friends of the othcr five beneficiaries, thc intention of which is to protect the cstate from being depletcd and/or mismanaged and protcct the intcrcsts of thc other 5 bencficiaries, thus it is in thc

intcrest ofjusticc and fairncss that this court docs not granl the applicant's application. 35

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The applicant also filed an affidavit in rcjoindcr whcrcin shc statcd lhal Mlscerldneous Appllcatlon No.955 of 2O22 arising out of Adminlstrdtion Cause No.72E3 of 2027 is r,oI attached to the affidavit in support of this applicaLion, nor has thc samc becn scrvcd on hcr, or hcr lawycrs, thus therc is nothing on rccord to provc thc existcncc thereof and that thc pcndency of a suit does not bar thc administration of the cstatc, nor docs it operatc as a stay on her prerogativc as an administrator of thc cstatc of thc deccascd.

That since there is no court injunction rcstraining hcr from administcring the deceased's estate, this court is cntitled to ordcr the rcmoval of thc caveats in issue to enablc the respondent to effectivcly distributc the cstatc to thc right bcneficiarics,

That the respondents failed to furnish proof of thc allcgcd falsifications of thc inventory or how she failed to cxecute her duties as thc administrator and that because she has a grant ofletters of administration which has never bccn contcsted, the proper procedure is for them to challenge the same in a court of law rathcr than lodge cavcats on thc cstatc land in a bid to selfishly gain a share from thc estate and undermining the applicant's work as an 10

administrator. 15

That the respondcnts havc also wilfully neglcctcd or rcfuscd to acknowledge any cfforts in contributing towards the school fees paymcnts for thcir children as per thc income earned by the estatc thereby prompting the respondent to notify thcm of thc availability of school fees, which notifications havc also bcen neglccted by thc respondcnts, and that the respondcnts

havc failed to demonstratc reasonable causc why thcir cavcats should not lapsc. 20

The applicant also denied thc allegations of conccaling thc cstatcs' propertics or asscts. [n addition, shc stated that all the deceascd's propcrtics'vcst in her sincc shc has a valid grant of lctters of administration thercfore she has thc authority to managc and distribute the estate as mandatcd by law and that thc cxistcncc of thc caveats lodgcd by the rcspondents

interferes with her duties as administrator, 25

> That the rcspondents failed to adduce any cvidcnce of mismanagcmcnt of the incomc carned by the cstate to the cxclusion of olhcr bcncficiarics and that whilc the cavcats in issue wcre lodged in a selfish attcmpt to compel the applicant to scll thc dcceased's property and distribute the proceeds among themselves, the rcspondents havc failcd to prove justifiable

reasons for lodging the caveats lodged in the falsc, misguidcd belicf, assumption that thcy are protecting thc minor children sincc the applicant has no plans of sclling the property at the expense of the bcneficiaries. 30

## Representdtion:

Thc applicant was rcprcscntcd by M/s JB Mud.de Adoocqtes whilc thc rcspondcnts wcrc jointly rcprcscnlcd by M/s Sselcyerua Matotru & Co. Aduocates ond. M/s Ssemwanga 2(

w%

Muutazl & Co. Adaocates, Iloth sidcs filcd written submissions in support of their respectivc clients'cases as dirccted by this court.

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I have carefully read and considered thc submissions by both counscl, the dctails of which are on court record and contents of which I have takcn into account in addrcssing the issue ofwhether or not the applicant merits thc prayers sought.

It is trite law that for a caveat to be valid, thc caveator must have a protcctablc intercst lcgal or equitablc to bc protcctcd by thc cavcat othcrwisc the cavcat would bc invalid. (Miscellaneous Cause No.77/92 Mrs, Catherlne Serutad.da o'nd Anor. Vs. Mlchr:.el Nsefeko and Anor).

The respondents in thcir affidavit in reply averred that they had sincc filed Jlliscellcneous Cause No,955 ol 2022 arising out of Admlnlstrdtion Cduse 1283 of 2O21 in thcir capacity as the next fricnds, to bc addcd to thc grant of lcttcrs of administration oI thc cstatc of the Iatc Samuel Mugabi. They also sought a frcsh grant of lcttcrs to bc madc to the applicant herein and the respondcnts as next friends to be grantcd.

It is also clear from the said application that the respondcnts arc not satisfied with the inventory filed by thc applicant. They scck an ordcr dirccting the applicant in this cause to frle the correct inventory; and in addition, a permancnt injunction restraining the applicant herein from dealing in thc estate propcrty.

- The application pending before the family division oI the Iligh Court which the applicant claims was never seryed to hcr clcarly raises issues pcrtaining 1o thc distribution, and management of thc estate of the late Samucl Mugabi. [t is not for this court to determine whether or not it was duly scrved to the applicant. What is clear is that it is pending before another court. It is thc opinion of this court that thc issucs raised in this application can only 20 - be concludcd after the determination of thc matters pcnding bcforc thc l,'amily division, 25

Sectlon 98 of the Clall Procedure Act savcs thc inhcrcnt powers of court to make such orders as may be necessary for the ends ofjustice or to prcvcnt abuse of the process of court.

Accordingly, the issues raised in this application shall bc hcard and dcalt with by the family division whcrc all the mattcrs pcrtaining to thc administration and distribution of the estate of the estate of the Latc Samuel Mugabi are to bc concludcd.

It is thcrcfore the order of this court that thc caveats lodged by thc respondents on the land comprised rn Kgadond,o Block 2OS plots 954, aBA, aA7 lo'n,d at Bunga Hill lllengo District arc to bc maintaincd until furthr:r ordcrs arc mardc undcr Mlscelrq.neous Cause llo.955 of 2O22, pending bcforc thc I ligh Court l.'amily l)ivision.

35 Each party to mcct its own costs of this application

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I so order.

lekaly

$\mathsf{S}$ Alexandra Nkonge Rugadya

**Judge**

25<sup>th</sup> November, 2022.

conge Rus<br> Delivered by eartil<br> Oleharby<br> $\int \frac{25|u|^{20}}{25}$

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