Tendo v Tumwebaze (Miscellaneous Application 383 of 2023) [2023] UGHCFD 161 (16 June 2023)

#### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) MISCELLANEOUS APPLICATION NO. 383 OF 2023 (ARISING OUT OF FAMILY CAUSE NO. 102 OF 2020)**

#### **TENDO SUNITAH (Through next friend Kiconco Janet) :::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

#### **ANNET TUMWEBAZE MUGASHA ::::::::::::::::::::::::::DEFENDANT (Administrator of the Estate of the Late Frank Mugasha)**

#### **RULING BY HON. LADY JUSTICE CELIA NAGAWA**

#### **1.0 The Application**

1.1 This application is brought to this Court by way of Notice of Motion, under Section 98 of Civil Procedure Act, Cap. 71 and Order 52 Rules 1 and 3 of the Civil Procedure Rules, SI. 71- 1. The orders sought are that:

- i. The child be recognised as a beneficiary of the late Frank Mugasha's estate. - ii. Costs be provided for. - 1.2 The grounds of the application are set out in the Notice of Motion and explicated in the supporting affidavits sworn by the applicant through Kiconco Janet a next of friend to the child, but in brief are that:


- i. The Applicant is a biological child of the late Frank Mugasha and a beneficiary of this estate. - ii. The applicant shall suffer irreparable loss and damage of the application is not granted. - iii. It is in the interest of justice that this application is granted.

1.3 The Respondent opposed the application through an affidavit in reply deponed to by herself, in which she stated in brief as follows;

- i. That the Respondent is the administrator of the estate of the late Mugasha Frank Muhumuza who died on 12th March, 2016 and left six children. She obtained Letters of Administration vide Administration Cause No. 221 of 2016. - ii. On 12th October, 2022 when the suit came up for hearing, the applicant herein was brought by Janet Kiconco, her next friend and their lawyer indicated that the applicant was not party to the suit was a child of the deceased and this fact shocked and surprised me but court rightly advised that she should be added to the suit. - iii. Upon service of the application, it was full of falsehoods on perusal. - iv. That contrary to the ssertions of the applicant's alleged partnal aunt and next frined in the paragraphs 3,4,5,6,7 and 8 wherein she deponded that she knew the applicant as deceased's child in 2011 ( the deceased's death) and allegedly saw the child in October 2021, she did not


mention this in the evidence before court contained in her witness statement of 10th September, 2021. Certainly it is not true that she should have forgotten this important fact which she claims she knew in 2011 and saw the child in October, 2021.

- v. The deceased was a staunch Munyakole Anglican who would never have baptised his child Sunitah which is a moslem name and Tendo which is not a Kinyakole name. - vi. That in the interest of justice, a DNA test should be done to ascertain whether she is a child of the deceased. The Applicant filed an affidavit in rejoinder contained in 10 paragraphs.

## **2.0 Representation and Hearing**

At the hearing, the applicant was represented by Mr. Kamugisha Vicent from Balikuddembe & Co. Advocates while the Respondent by Mr. Tumwesigye Louis & Co. Advocates.

It was agreed that the hearing proceeds by way of written submissions and Counsel were given schedules to file the same. The Applicant's submissions were to be filed and served by 12th April, 2023, the Respondent's submissions were to be filed and served by 24th May, 2023 and a rejoinder to be filed and served by 30th May, 2023 for a Ruling to be delivered on 5th June, 2023 by email.

## **3.0 Issues for determination by the Court**

Only one issue is up for determination by the Court, namely;


**Whether the Applicant can be granted Orders that a DNA/Paternity test be conducted to confirm whether she is a beneficiary of the estate of the Late Frank Mugasha.**

### **Determination**

Today, it is no longer necessary to provide evidence to rebut the presumption of legitimacy beyond all reasonable doubt. It is sufficient if the paternity of the child is "more probable than not" and secondly, developments in blood testing and DNA sampling have made parenthood something that can be established positively as a matter of virtual certainty provided that the necessary tissue samples are available *(Waite L. J put it in Re A (A Minor) Paternity: Refusal of Blood Test) [1994] 2 F. L. R 463 at 469)*

More recently, the development of DNA profiling has greatly increased the accuracy with which parentage may be established. The presumption of legitimacy thus has little offer: as Thorpe L. J commented in *Re H and A (Children) [2002] EWCA Civ 383,CA,* " *it seems to me that the paternity of any child is to be established by science and not by legal presumption or inference" (at 30).* This of course assumes that the issue of paternity actually falls to be resolved by the court. There is no requirement that the paternity of the child be tested before the details of the man assumed to be the father are entered on the birth certificate, and research indicates that in a surprisingly large number of cases the certificate is misleading.

It is in the best interest of the child to have his parentage determined at the earliest opportunity. Being a parent of a child carries with it certain rights and obligations for example financial support of the


child. However, the key concept in determining what rights and duties a parent has in relation to the child is not parentage, but parental responsibility.

Counsel for the Applicant in his submission stated that applications of this nature are governed by among other principles of equity and good conscience. In the affidavit before this court, the applicant stated in there that the child's mother was in another relationship at the time of conception of the child. It was therefore agree by the deceased and the child's mother to keep the matter between themselves and a few realties, the deceased confined in his sister (next friend in this matter and his aged father.

The Respondent in her affidavit in reply under paragraph 21 averred that in the interest of justice, a DNA test should be done to ascertain whether the applicant is a child of the deceased, among other averments.

Since the Respondent did not object to this sample collection, this court hereby allows the Applicant to conduct the DNA test for the child Tendo Sunitah.

## **4.0. Conclusion**

- 4.1. In conclusion and for the foregoing reasons, I allow this application with the following orders; that: - 1. A Deoxyribonucleic (DNA) samples be collected from Tendo Sunitah. - 2. The DNA test shall be conducted by the Government Analytical Laboratories, Wandegeya.


- 3. A paternity test to be done comparing the DNA Samples of the Applicant as guided by the Government Analytical Laboratories on all alternative sample collections. - 4. Considering a pending suit in this Honourable Court Civil Suit No. 102 of 2020, the samples for Sunitah Tendo should be collected not later that 27th June, 2023. - 5. The DNA test results shall be submitted to Court by the Applicant not later than 31st July, 2023. - 6. The costs of the DNA test shall be borne by the Estate of the Frank Mugasha. - 7. The process of the DNA test shall be monitored by both parties and their respective counsel so as to avoid any would be false DNA test results. - 8. Each party shall bear its own costs of this application.

## *Dated, signed and delivered by email this 16th day of June, 2023.*

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ CELIA NAGAWA AG. JUDGE**