Ssekabugo Moses v Kiwogga James (Civil Suit 1 of 2022) [2024] UGHC 1272 (9 April 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COUR TOF UGANDA AT LUWERO CIVIL SUIT NO. HCT-17-FD-CS-0001-2022 SSEKABUGO MOSES…………………PLAINTIFF V KIWOGGA JAMES…………………….. DEFENDANT BEFORE LADY JUSTICE HENRIETTA WOLAYO**

## **JUDGMENT**

Introduction

- 1. By a plaint filed on 5.9.2022, the plaintiff Ssekabugo Moses sued the defendant Kiwogga James for intermeddling in the estate of their late father Mikayiri Kittabagaya until an administrator is appointed. He also claimed that the defendant's paternity is in doubt yet he has decline to take a DNA test and prayed for an order that the court orders the defendant to submit to a DNA test. - 2. In a written statement of defense, the defendant denied the plaintiff's claims and averred that the three bibanja belong to their biological mother Margret Nangamba who purchased them during the lifetime of their father Mikayiri. Furthermore that Nangamba gifted the plot measuring 0.5acres and one measuring 7.5 acres to the defendant Kiwogga and the one measuring 1.5acres she gifted to the plaintiff Ssekabugo.

- 3. Regarding the estate of Mikayiri, the defendant averred that the plaintiff is using four acres in Bugerere and another five acres in Singo without the consent of other beneficiaries. That the third property located in Kikandwa , Luwero district measuring four acres is being used by Segulama Sam. - 4. Regarding the issue of paternity, the defendant averred that the late Mikayiri is his biological father and that the plaintiff is motivated by greed when he doubts his paternity.

## Background facts

- 5. At the trial, the plaintiff was represented by Diana Musisi of Wetaka, Bukenya and Kizito Advocates while the defendant was self – represented. On 15.6.2023, the following issues were agreed for trial: - a) Whether the suit property forms part of the estate of late Mikayiri - b) Whether the defendant's action in dealing with the suit property to the exclusion of the other beneficiaries is lawful. - c) Whether the defendant is a beneficiary in the estate of the late Mikayiri. - d) Remedies.

6. Both parties called witnesses and at the close of the defendant's case, I directed their mother who was in court, Margret Nagamba, to petition for letters of administration as a matter of urgency to confirm the distribution of the estate. As I write this judgment, she has not done so. Furthermore, the plaintiff's submissions are not on record.

#### Undisputed facts

- 7. From the evidence adduced by both parties it is evident that the part of the estate of over which the parties are fighting is 7.5 acres and O.5 acres, the home of the late Mikayiri and later his widow Nagamba , mother of the two parties and other children. - 8. It was also an agreed fact that their mother Nagamba Margret was legally married to their late father Mikayiri who died in 1983 during the war. Another agreed fact is that their father had twelve children four of whom are deceased. Their father had two other wives: Proscovia Nakibuka and Gertrude Namyalo. Most importantly, no one has ever been appointed the administrator of the estate while the plaintiff is the customary heir.

#### The disputed facts

9. Parties disagreed on whether the 7.5acres and 0.5 acres located in Nakaseke district belonged to their mother Nagamba or to the estate of their late father Mikayiri. They also disagreed on the paternity of the defendant.

#### Burden of proof

10. In civil cases, the plaintiff has a legal the burden to prove its case.

# **Section 101 of the Evidence Act Cap. 6** stipulates that

*'whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist'.*

11. In **Miller v Minister of Pensions[1947]2ALL ER** 372 at 373-374, Denning J when speaking on the degree of cogency of evidence required to discharge the burden of proof in civil cases had this to say: 1

> *That degree is well settled. It must carry a reasonable degree of probability, but not as high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it more probable than not, the burden is discharged but if the probabilities are equal, it is not'*

# Resolution of the case

*Issue No. 1: Whether the suit property forms part of the estate of late Mikayiri Kittabagaya*

12. In his witness statement, the plaintiff Ssekabugo who testified as PW1 maintained that the 7.5 acres and 0.5 acres where the home of late Mikayiri was located have been taken over by the defendant to the exclusion of other beneficiaries. The plaintiff affirmed in his witness statement that the other property of the estate of late Mikayiri is 1.5

<sup>1</sup> Cross & Tapper on Evidence, eighth edition, Butterworths, London, Dublin, Edinburgh, (1995)

acre kibanja also located at Njagalabwami in Nakaseke district like the 7.5 acre kibanja and 0.5acre kibanja.

- 13. In cross examination, the testimony of the plaintiff was that the family home is on three and half gardens where Ssekabugo complains that the defendant has set up a home. Furthermore, that on the 7.5 acre kibanja in Nakaseke, the defendant has been selling migavu trees without consent from him. He denied that the four acre kibanja at Kikandwa is part of the estate and asserted that he inherited it from his late uncle Kibombo Sekabira of Mukono. - 14. The plaintiff was supported by the testimony of Segulani Sam PW2 whose witness statement is a replica of the plaintiff. The only difference is that in cross examination, his testimony was that his mother is Nakibuuka Proscovia which means, he is a step - brother to the parties. He also clarified that while the defendant controls the 7.5acres, the plaintiff their heir controls 1.5 acres. He also confirmed that the defendant occupies the family home. - 15. Ntanda Andrew PW4's witness statement was admitted as his evidence in chief but as he testified in cross examination that he did not know the defendant nor why the parties were disputing, his evidence will be discounted. This leaves the testimony of PW5 Njala Christopher whose witness statement has the same content as that of the plaintiff and Segulani. His main role in this dispute is that he participated in a clan meeting to distribute the estate but the family members disagreed.

- 16. It is evident from the foregoing analysis that the dispute is approx. 7.5 acres located in Nakaseke and the family home of late Mikayiri both of which properties are controlled by the defendant. It also emerged that the plaintiff controls 1.5acres in Nakaseke, part of the 7.5 acres. The plaintiff does not deny that he occupies a kibanja measuring four acres in Mukono and another one measuring five acres in Kikkandwa, Luwero. - 17. Regarding issue No. 1, the defendant Kiwogga's case is that the dispute is about the kibanja his mother shared among the children which belonged to her. It was his testimony that his parents got legally married in 1963 and set up a home in Kikandwa which kibanja is now controlled by the plaintiff and Njala (PW5). Furthermore, that whenever his mother gave him something, the plaintiff would become a beast to the point that one day, he wanted to knock him down (defendant) with a car. According to Kiwogga (DW1), he settled on the disputed kibanja in 1986 when he was young and that his mother shared it among the two brothers but the plaintiff still interferes with the defendant's enjoyment of his portion. - 18. According to Margret Kitta, 76 years old, DW1 resident of Nakisunga, Mukono, the defendant and plaintiff are her biological sons born with her late husband Mikayiri Kitta( Kittabagaya). She produced a baptism card Dexh. 1 to show that Mikayiri Kittabagaya was the father of the defendant Kiwogga James. She produced seven children and the others were produced by Mikayiri outside marriage. It was her

testimony that Mikayiri left a kibanja at Njagalabwami and that she left this kibanja for the defendant on which kibanja she had lived with him (defendant).

- 19. DW3 Nakitende Eva, sister to the defendant and the plaintiff confirmed their mother is caretaker of the property and when a meeting was convened in 2022 to distribute the property, some family members alleged the defendant was not a biological son of Mikayiri. - 20. DW4 Josephine Kyalika sister of the parties agreed that the plaintiff is fighting for property. - 21. From the foregoing analysis of the defendant's case, the emerging facts are that their mother shared the 7.5 acres between the two sons even without letters of administration. From the recent decision of **Kanzira v Natukunda Rwanchwende and another (Civil Appeal No. 81 of 2020)[2023] UGCA 286 (2 November 2023) ULII** her distribution stands in the interim because as the legally married widow , she had priority over everyone to apply for letters of administration and she used this position to give the plaintiff and defendant bibanja from the estate of her late husband. On the basis of the Kanzira decision where a beneficiary of an estate sold his inheritance without a grant and where the Court of Appeal relied upon the doctrine of estoppel to find that the brother was estopped from denying the sale, I find that since both brothers are beneficiaries of the distribution by the their mother without a grant, the plaintiff is estopped from challenging the defendant's share as he too is a beneficiary from their mother. 22. In answer to Issue No.1: The 7.5acres at Njagalabwami and another 0.5 acres belong to the estate of the late Mikayiri except that Margret Kittabagaya, widow of the deceased intestate had already given to the plaintiff and defendant portions of this land.

Whether the defendant's action in dealing with the suit property to the exclusion of the other beneficiaries is lawful.

23. The defendant was given the land by his mother Nangamba Margret Kitta out of his father's estate in which has been in possession and control since 1986 until the plaintiff sued him in 2022. The only person after the defendant's land is the plaintiff as the other siblings seem to have moved on. It is therefore not true that Kiwogga is dealing in the suit land to the exclusion of all others as the plaintiff confirmed that he too is in possession of 1.5acres of the said kibanja. However, since it is not certain what acreage Kiwogga occupies, I will issue a grant of letters of administration to their mother Nangamba Margret to confirm to each beneficiary their portions.

Whether the defendant is a beneficiary in the estate of Kitta Mikayiri.

24. The plaintiff's evidence on this issue is very scanty. It was is evidence that in 2022, the family had a meeting to distribute the property, his sister Nakiwogga who did not testify, voiced the concern that Kiwogga the defendant was not sired by Mikayiri their late father whereupon , the clan resolved that the defendant should undergo a DNA test which he declined to do.

- 25. According to PW3 Nakibuuka Edith, a sister to the parties, she doubts Kiwogga as her brother because during the last funeral rites of their late father, Kiwogga was one of the candidates for appointment as heir but their paternal aunties and uncle ruled him out on the grounds he was not a son of the deceased. - 26. The other reason Nakibuuka doubts paternity of the defendant is that he declined to contribute to the cleaning of their father's grave and also when his child died, he did not bury the child in the family graveyard. - 27. The other reason she suspects the defendant is that he is son of one Lwanga Edward who mentioned in his Will that he had an unnamed child outside marriage and that the child should be welcomed. - 28. PW2 Segulani Sam, a brother to the two parties except that his mother is Nakibuuka Proscovia. His evidence on paternity of the defendant is the same as that of the plaintiff, namely, that on 15.6.2022, during a family meeting, distribution of the estate of Mikayiri could not proceed because of doubts on the defendant's paternity whereupon it was agreed he undergoes a DNA test. - 29. In cross examination when the plaintiff was asked to name his father's children, he named the defendant among others. Clearly, the claim that the defendant who has lived all his life as Mikayiri's son is not his biological child is diversionary. It is evident that the claim is merely to delegitimize him so that it is an excuse to dispossess him of the land

his mother gave him as part of his share in the estate of her late husband.

- 30. According to DW2 Kiwogga James, he was not there when his parents produced him. Furthermore, that the plaintiff had made life difficult for him. It was his testimony that whenever his mother gave him something, the plaintiff would turn into a beast. For instance, the plaintiff at one time injured a pig their mother had given to Kiwogga. - 31. Their own mother DW2 Margret Kita, aged 76 years confirmed in court that Kiwogga is her biological son with Mikayiri Kita and her husband accepted him as his son. It was Margret's testimony the suspicions about his paternity started in 1993. She produced a baptism card as evidence of his paternity. The card issued by Kikandwa Church of Uganda shows that Kowogga was born on 24.3.1979 and baptized on 16.6.1979. His parent is named as Mikayiri Kittabagaya. DW2 Margret Kittabagaya also confirmed that she is the lawfully wedded widow of the deceased Mikayiri. She had seven children with the deceased including the two warring parties. - 32. Counsel for the plaintiff submitted that the paternity of the defendant remains a thorny issue within the family and that therefore, this court ought to order a DNA test for the defendant to prove that he is a child of late Mikayiri Kittabagaya. She did not cite any authority in support of her submission save for the usual **Section 33 of the Judicature Act Cap. 13** as amended.

- 33. Most of the precedents I have come across where DNA has been ordered involve minors. In **Gasa Atara v Namara and another (Misc. Applic. No. 1205 of 2023) 2023 UGHCFD 163( 27 November 2023) ULLI** my sister Nagawa J ordered DNA of minor children to ascertain if they were beneficiaries of the estate of their father and even then, DNA was ordered on their deceased father whose body was to be exhumed for the purpose. - 34. **In Makhoka v Namatovu( Civil Revision No. 9 of 2022) 2023 UGHCFD 172( 20 November 2023)ULLI,** the High Court confirmed the orders of the magistrate grade one for DNA testing to be carried out on the children in of the two parties to ascertain paternity. - 35. In both the above cases, the persons subjected to DNA testing were children below 18 years old. An order for a DNA test is mandated by **Section 69(4) of the Children Act Cap. 59 because** it permits use of blood samples as proof of parentage for children below 18 years. - 36. Where parentage of an adult becomes an issue, the order should be made only where the party is willing to subject himself or herself to such test. Moreover, this order can only be made in a formal application and should not come as a basis for a claim in land. In the instant case, the plaintiff was claiming that the defendant had intermeddled in the estate of his late father but it turned out that even the plaintiff had been given land by their mother who did not have letters of administration. In any case, the issues as framed as well as the evidence adduced was not so much that the defendant was an intermeddler but that the plaintiff was unhappy the defendant seemed to have got a bigger share

of the estate and yet he was believed not to be sired by their father Mikayiri.

- 37. The defendant was born during the lifetime of his deceased father who died when the defendant was three years old and grew up knowing his father as Kittabagaya Mikairi, and now he is an adult aged 44. He declined to go for DNA testing arguing that all the twelve children of Mikayiri should undergo the same. Clearly, he is unwilling to go for the DNA test except on his own terms. For me to order an adult to undergo a test when he is not willing to do so would be an order in futility because the court cannot enforce it short of ordering an arrest and compulsory testing. Moreover, it would involve making an order to exhume the remains of their father which would happen only when the defendant is willing to do the test. - 38. **Article 24 of the 1995 Uganda Constitution** commands, inter alia, that no person shall be subjected to any form of degrading treatment. To order a DNA test on the defendant just to appease some of his siblings who are uncertain of his paternity, moreover, without credible evidence, would tantamount to a violation of his right to human dignity. For this reason, I decline to order a DNA test to prove paternity in the absence of credible evidence that his father is someone else and not Mikayiri. Indeed no one has come forth to make such claim on him. - 39. Given the unsubstantiated claims of the plaintiff and some of his witnesses and given the clear testimony from their mother and their sister Nakitenda Eva DW3 that Kiwogga is their biological brother and

from Kiwogga himself, I find that the defendant Kiwogga James is a son of the late Mikayiri Kittabagaya and a beneficiary of his estate.

- 40. Regarding a locus in quo visit, I have found it unnecessary to visit the suit land because the dispute is about distribution of the estate which was partially done by their mother Margret Kittabagaya albeit without letters of administration. Consequently, I shall appoint her the administrator of the estate of her late husband Mikayiri Kittabagaya to enable her regularize the distribution she made without a grant and distribute any other property not yet distributed. - 41. In summary I have found as follows: - a) Both the plaintiff Ssekabugo Moses and the defendant Kiwogga James are biological children of the late Mikayira Kittabagaya and Margret Nangamba Kittabagaya. - b) Their mother had partially distributed the estate having given some land to Kiwogga James and to Ssekabugo. - c) Kiwogga James is a son of the late Mikayiri Kittabagaya and therefore he is a beneficiary in the estate of the late Mikayri Kittabagaya. - d) No one had been appointed administrator of the estate of Mikayiri Kittabagaya prior to the suit.

In the premises, I make the following orders:

a) A grant of letters of administration shall issue to Margret Nangamba Kittabagaya, widow of late Kittabagaya Miayiri immediately.

- b) She will confirm or vary the previous distribution and distribute what has not been distributed to the beneficiaries. - c) Each beneficiary is restrained from interfering in the quiet possession of the other beneficiary once their mother confirms the distribution. - d) The prayer for an order for a DNA test is denied. - e) The plaintiff and his agents are restrained from repeating false claims the defendant is a not a biological son of late Mikayiri Kittabagaya. - f) The administrator of the estate shall submit an inventory of the distribution within sixty (60 days) from the date of this judgment. - g) Each party will bear their own costs.

## **DATED AT LUWERO THIS APRIL 9, 2024 \_\_\_\_\_\_\_\_\_\_\_\_ LADY JUSTICE HENRIETTA WOLAYO**

## **Legal representation:**

Wetaka, Bukenya and Kizito Advocates for the plaintiff Defendant appeared as unrepresented litigant.