Roukia Kamugisha and Others v Denise Marie Emile Jaspers and Others (Civil Suit 3 of 2021) [2025] UGHC 357 (10 April 2025)

# 5 **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KABALE**

**HCT NO. 0003 OF 2021**

### **(Originally HCT – 00 – FD – NO. 0122 OF 2010 AT KAMPALA)**

- 10 **1. ROUKIA KAMUGISHA** - **2. RAHMA KAMUGISHA** - **3. HASSAN KAMUGISHA** - **4. ALI KAMUGISHA**::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**PLAINTIFFS**

#### **VERSUS**

- 15 **1. DENISE MARIE EMILE JASPERS** - **2. SHEM BAJURA BAGEINE** - **3. TWINOMUHANGI ANGELLO BAGOROGOZA** - **4. MULAGO HILL DIAGNOSTICS LTD** - **5. THE COMMISSIONER FOR LAND REGISTRATION** - 20 **6. TURYAHIKAYO RWIHANGA GODFREY:**::::::::::::::::::::::::**DEFENDANTS**

#### **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

#### **RULING**

The Plaintiffs filed HCCS No. 0122 of 2016 before the Family Division of the High Court against the 1st Defendant seeking interalia orders for exclusion of the 25 purported will from the estate of William H. B F Kamugisha and a declaration or annulment of probate granted under HCT – 00 – CV – AC – 1205 – 2006 for the estate of the said William H. B. F Kamugisha, grant of Letters of Administration to the Plaintiffs for the estate of William H. B. F Kamugisha. The trial Judge vide HCMA No. 0262 of 2019 issued orders that the Suit file be transferred to Kabale 30 the residence of the Applicants. The Plaintiff upon the filing of the Suit filed HCMA

No. 0013 of 2022 seeking orders that the Plaint be amended by adding other Defendants and prayers.

5 This Court on the 15/02/2023 granted the prayers sought and on the said 15/02/2023 the Applicants/Plaintiffs filed an amended Plaint adding five Defendants to their original claim.

When this matter came up for hearing the 4th Defendant raised a preliminary objection that this Court lacks jurisdiction to hear this matter because the 10 Suitland is in Kampala as per paragraph 8(d), 19(f), 22 and prayers (d) (g) and (h) of the amended Plaint. It is the argument of Counsel that **Section 5** of the **Civil Procedure Act** is clear and that Jurisdiction is a creature of statute while **Section 12** of the **Civil Procedure Act** barres the hearing of the instant matter by providing that for actions for recovery of immovable property as is the case in 15 this matter shall be filed in the place where the same is situate.

It is therefore Counsel's prayer that since the Suit property involving the 4th Defendant is situate in Mulago in Kampala the instant Suit is struck out with costs against the 4th Defendant.

**Plaintiffs' submission in reply**.

20 The Plaintiffs opted to file written submissions in reply to the preliminary objections and contend that the cause of action against all the Defendants is in respect of the estate of the late William H. B. F Kamugisha who had a fixed place of abode in Kabale on plot 35 Ndorwa, 18 Munyanzhe, Rwakaraba, Kabale Municipality and was also a proprietor of Mailo land in Kibuga, Block 29, Plot 25 1128 Mawanda Road at Mulago. It is the submission of Counsel that **Article 139** of the **1995 Constitution** as Amended and **Section 14** of the **Judicature Act** give the High Court unlimited jurisdiction. It is the argument of the Plaintiffs that this

5 Court has territorial jurisdiction since the contention is about the whole estate of the late William H. B. F Kamugisha and that he had more than one plot of land in different areas which gives several Courts multiple jurisdictions over his property and that this Court therefore has jurisdiction to determine this matter.

The fourth Defendant in rejoinder submits that the Plaintiff's claim prior to 10 presenting HCCS No. 0003 of 2021 generally related to the Administration of the Estate of the late William H. B. F Kamugisha but on amendment the Plaint discloses a claim against the fourth Defendant which is strictly in line with the purchase of mailo land in Kibuga Block, 29 Plot 1128 Mawanda Road which should be handled distinctively from HCCS No. 0003 of 2021. It is the argument of Counsel that the 15 wording of **Article 139** of the **Constitution** and **Section 14** of the **Judicature Act**

does provide for the unlimited jurisdiction of the High Court but the same is limited in geographical or territorial jurisdiction.

Counsel reiterates his earlier submission that pursuant to **Section 12** and **13** of the **Civil Procedure Act** in regard to whether the fourth Defendant carried out 20 due diligence on property comprised in Kampala the same should not be determined by this Court.

#### **Determination.**

The addition of the 2nd – 6 th Defendants vide HCMA No. 0013 of 2022 was interalia under **Order 1 Rule 3** of the **Civil Procedure Rules** that provides that:

25 *"All persons may be joined as Defendants against whom any right to relief in respect of or transaction or series of acts or transactions is alleged to exist, whether jointly severally or in the alternative where if separate suits were brought* 5 *against those persons any common question of law or fact would arise" [*emphasis mine]

A perusal of the amended Plaint reveals that the Plaintiffs are seeking interalia exclusion of the purported will from the estate of the late William H. B. F Kamugisha, a declaration that he died intestate and revocation or annulment of 10 probate granted under HCT – 00 – CV – AC – 1205 of 2006 . As a result of this

anticipated revocation the Plaintiffs also seek declarations that all sale transactions and dealings by the first Defendants who is the holder of Letters of Probate over the Suitland with all the Defendants are null and void.

Clearly from a foregoing a common question of law and fact does arise against 15 each of the Defendants.

The question here is whether the Plaintiffs should be hard pressed to file multiple suits in different jurisdictions over matters that can be handled by a single competent Court and the answer appears to be provided under **Section 33** of the **Judicature Act** that *provides thus;*

- 20 *"The High Court shall in exercise of the jurisdiction vested in it by the Constitution, this Act or any written law grant absolutely or on such terms and conditions as it thinks just all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly before it, so that as far as possible all matters in controversy between the parties may be completely and* - 25 *finally determined and all multiplicities of legal proceedings concerning any of those matters are avoided" [*emphasis mine]

5 The above provision enjoins this Court to prevent a multiplicity of legal proceedings concerning matters that are properly brought before it so that as far as possible all Matters in controversy between the parties may be completely and finally determined.

I hold that this Court would be abdicating its responsibility under this provision 10 of the law if it were to hold that the Plaintiffs are to seek remedy in another geographical jurisdiction when the matters in controversy can properly be determined in this Suit.

I will now turn to the thrust of Counsel's argument that this Court lacks geographical or territorial jurisdiction to handle this matter involving the 4th 15 Defendant because the Suit property is located in Kampala.

**Section 13** of the **Civil Procedure Act** is instructive in this respect and reads;

"*Where a Suit to obtain relief respecting, or compensation for wrong to, immovable property situates within the jurisdiction of different Courts, the Suit may be instituted in any Court within the local limits of whose jurisdiction if in respect of*

20 *the value of the subject matter of the Suit, the entire claim is cognizable by that Court" [*emphasis mine]

Applying the above provision to the facts of this case the estate of the late William H. B. F kamugisha had property in Mulago in Kampala and Kabale town. The first Defendant obtained Letters of Probate to the estate and on this basis transacted with the defendants including the 4th 25 Defendant over property belonging to the

estate. The Plaintiffs seek revocation of the grant of probate and a declaration

5 that all sale transactions and dealings with the estate property amongst all the defendants is null and void.

The estate properties being premised in Kampala and Kabale would grant any of the Courts in this geographical location jurisdiction to handle this dispute as a whole.

Besides the argument of Counsel for the 4th 10 Defendant that **Article 139(1)** of the **Constitution** does not grant this Court unlimited geographical jurisdiction is flawed.

I will for ease of reference reproduce Article 139(1) of the Constitution below:

*"The High Court shall subject to the provisions of this Constitution have unlimited*

15 *original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law"*

The Constitution under **Article 129(1) (c)** creates the High Court and not "*High Courts".* This was deliberate by the framers of the Constitution and the intention was not to appear to limit the powers of this Court to boundary lines as Counsel 20 would like this Court to believe.

The creation of Divisions and Circuits of the High Court across the Country should not be mistaken for creation of *"High Courts"* because the High Court is referred to in a singular manner in the Constitution and the Divisions and Circuits are only created to make access to justice easier and faster for litigants. The Divisions and 25 Circuits of the High Court derive their existence from **Article 138(1) (2)** of the

**Constitution** that I will reproduce for ease of reference. 5 *"The High Court shall sit in such places as the Chief Justice may in Consultation with the Principal Judge, appoint; and in so doing, the Chief Justice shall as far as practicable, ensure that the High Court is accessible to all the people"*

The High Court therefore merely sits in such places as the Chief Justice may designate and it retains its full constitutional powers and mandate. It is 10 imperative that a clear distinction is drawn between the High Court and magistrates Courts. The latter under the Magistrates Courts Act is indeed limited in terms of territorial jurisdiction.

The High Court on the other hand has no legislation by Parliament limiting it in terms of territorial or geographical jurisdiction owing to **Article 139(1)** of the

15 Constitution that grants it unlimited original Civil, Criminal and territorial jurisdiction.

The argument of Counsel that this Court does not have geographical jurisdiction to determine the case against the 4th Defendant is not tenable for the reasons that I have advanced.

20 The Preliminary Objection therefore fails.

**Sixth Defendant's Preliminary Objection.**

It is the submission of Counsel for the 6th Defendant that the Plaint does not disclose a cause of action against the 6th Defendant.

Counsel relies on the provisions of **Order 7 Rule 11(a)** and **(e)** of the **Civil**

25 **Procedure Rules** which is to the effect that a Plaint shall be rejected where it does not disclose a cause of action.

- 5 It is the contention of Counsel that the instant Suit is founded on annulment of Letters of Probate under Administration Cause No. 1205 of 2006 for the estate of the late William H. B. F Kamugisha but rather in the names of the 3rd Defendant albeit illegally and thus there is a Suit pending in this Court against the 3rd defendant vide HCCS No. 0020 of 2022 Godfrefy Turyahikayo and Another versus Twinomuhangi Angello Bagorogoza where the 6th 10 Defendant is still trying to - recover the Suit property and only lodged a caveat to protect the title to the Suitland from being sold to another person.

That it is thus clear that the 6th defendant has not recovered the Suitland and thus any proceedings against him are without basis because his Suit is still pending 15 hearing.

To buttress his argument Counsel relies on the provisions of **Section 6** of the **Civil Procedure Act** that provides;

*"No Court shall proceed with the trial of any Suit or proceeding in which the matter in issue is also directly and substantially in a previous instituted Suit on* 20 *proceeding between the same parties or between the parties under whom they or any of them claim litigating under the same title where that Suit or proceeding is pending in the same or any other Court having jurisdiction in Uganda to grant the relief claimed"*

Counsel for the 6th Defendant submits that the matters in HCS No. 0020 of 2022 25 contains matters that may directly or indirectly affect the instant Suit and as such 6 th Defendant should not be dragged in this Suit when he also still has a case against the 3rd Defendant over the same subject matter whose judgment in any of

5 the suit may lead this Court on a collision Course of giving different opinion there by causing embarrassment.

Counsel therefore prays that the suit against the 6th Defendant is dismissed.

Counsel for the Plaintiff in his written submissions in reply contends that there is a cause of action against the 6th Defendant and that this is premised on illegal

transactions or dealings that the 6th Defendant had with the 3rd 10 Defendant who sold without having a title to the property.

Counsel further submits that one of the orders they seek from this Court is a declaration that all sales and transactions over estate property are null and void. Further that they seek vacation of the caveats lodged on the Suitland in Kabale

15 Municipality.

It is also the contention of Counsel that the argument of lis pendens is inapplicable because HCCS No. 0020 of 2022 was filed after the instant Suit.

**Determination**.

It is trite law that an action shall only be maintained if it discloses a cause of 20 action.

The three elements that constitute a cause of action were laid down in **Auto Garage versus Motokov (1971) EA 514** as;

- i) That the Plaintiff enjoyed a right. - ii) That the right has been violated. - 25 iii) That the defendant is liable.

5 Applying the above to the instant Suit, the Plaint discloses that the Plaintiffs are children of the deceased late William H. B. F Kamugisha and this is not disputed by the 6th Defendant.

The Plaint discloses that the said estate had land situate at Kigezi Ndorwa Block 18 Plot 35 Kabale Municipality which has lodged against it a caveat. The Supreme

10 Court in **Isreal Kabwa versus Martin Banoba Mugisa Civil Appeal No. 0052** of **1995** held that beneficiaries have a right to sue on the basis of their interest in the estate.

Therefore, the right enjoyed by the Plaintiffs is that of beneficiaries.

On the 2nd test the Plaint under paragraph 24 discloses that the 6th Defendant

15 lodged a caveat on the Suitland in Kabale and one of the arguments raised by the 6 th Defendant was that the Plaintiffs/beneficiaries did not show how they were affected by the caveat.

In **Boynes versus Gather (1969) EA 385** the Court held that the primary objective of a caveat is to give the caveator temporary protection.

20 While the Court of Appeal of Malaysia in **Lim Mol versus Ams Periasamy Suppiah Pillay Civil Appeal No. A-2-641 (1995)** held that caveats act as statutory injunctions which fetter a registered proprietor from dealing with his property and exercising all the rights conferred upon him by law.

When the 6th Defendant lodged a caveat, he lodged it against the whole world not

25 just the registered proprietor at the time. Therefore, the beneficiaries right to deal in the Suitland is curtailed with the caveat in place lodged by the 6th Defendant.

It is therefore my finding that the Plaint discloses a cause of action against the 6th 5 Defendant.

I will now address the question of lis pendens. This doctrine essentially aims at (i) avoiding endless litigation, (ii) protecting either party to the litigation against the actions of another and (iii) avoiding abuse of the legal process.

10 **Section 6** of the **Civil Procedure Act** directs that a Court handling matters of this nature either dismiss or stay the Suit.

I would agree with the submissions of Counsel for the Plaintiff that the instant suit was filed before HCCS No. 0020 of 2022. It is therefore only fair and just that proceedings in HCCS No. 0020 of 2022 are stayed pending the outcome of this

15 Suit. An order to this effect is issued.

In the final result the Preliminary Objection raised by the 4th and 6th Defendants fail.

The instant Suit is hereby fixed for hearing.

Before me,

…………………………………… **Samuel Emokor Judge 10/04/2025**