Tibakanya v Muhwezi & 3 Others (Civil Suit 23 of 2022) [2023] UGHC 451 (2 May 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT RUKUNGIRI

### **CIVIL SUIT NO....23... OF 2022**

# (FORMERLY KABALE CIVIL SUIT NO...013... OF 2021)

# (ARISING OUT OF KABALE ADMINISTRATION CAUSE NO...018... OF 2021)

TIBAKANYA TEREZIA KATARAHWEIRE :::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. MUHWEZI JOHN BOSCO - 2. KICONCO FLORENCE - 3. AHIMBISIBWE CATHERINE - 4. KAKURU BEATRICE::::::::::::::::::::::::::::::::::::

### BEFORE: HON. JUSTICE TOM CHEMUTAI, JUDGE.

#### **JUDGEMENT**

The background to this case is that the plaintiff is the mother of the defendants who are her children with late husband, Kakururu John Kelensio. When her husband passed on, the plaintiff applied for letters of administration to which the defendants objected by placing caveats to block the grant. The plaintiff therefore instituted this suit to have the caveats vacated

It is her case that late Kakururu John Kelensio was born on the 8th December 1942 and was a resident of Nyakaina, Buyanzha, Rukungiri District and died as a result of heart failure on 9th September, 2020 at Nyakibale hospital. It is her case that she got married to late kakururu on 30th April 1958 in a church marriage and remained husband and wife until Kakururu passed on.

On 12th March, 2021 she petitioned court for grant of letters of administration in respect of the estate of the late Kakururu John Kelensio vide Administration Cause No1/2021, as his widow However, before the consideration of the petition, the 1st defendant lodged a caveat opposing the grant on 23rd April, 2021. On 26th May 2022, the 2nd, 3rd and 4th defendants also lodged a caveat forbidding the grant.

$\mathbf{1}$

It is her case that the deceased at the time of his death left a total of fourteen children with ten children being borne by the plaintiff and the deceased, two of whom are now deceased, while four children were borne by the late Kakururu and his mistress- one Bamuhangaine

The late Kakururu John Kelensio at the time of his death owned among others, six pieces of land with banana plantation and a matrimonial home all at Ruzhumbura, Block 4 (plots 881,936,850,112,855), farm land at Rwentuha approximately 10 acres, land at Nyakaina, Buyanzha, Rukungiri District.

She prays for an order vacating/lifting the caveat lodged by the defendants against the plaintiff's petition for letters of administration to the estate of lateKakururu John Kelensio, a declaration that the plaintiff is a fit and proper person to administer the estate of late Kakururu John Kelensio, an order granting letters of administration for the estate of late Kakururu John Kelensio to the plaintiff and costs of the suit.

The 1st defendant refuted the plaintiff's claims and contended that the plaintiff was not staying with the deceased at the time of his death as they had separated and that whereas the plaintiff was staying at the matrimonial home, the deceased (late Kakururu) had never visited her. It is the 1st defendant's claim that whereas the plaintiff and late Kakururu were married they lived apart and that the plaintiff did not consult the beneficiaries of the estate whom she listed when applying for letters of administration and failure to do so rendered the process a nullity.

The 1st defendant contends that the plaintiff is not a fit and proper person to administer the estate, being eighty years old, senile and that there are other family members who are strong and capable of taking the role of an administrator not the plaintiff alone. He further contends that the late Kakururu had two wives, namely the plaintiff and Christine Bamuhangaine and the latter's children are still young and need care and it would be proper that the two families are represented. He prayed for the suit to be dismissed with costs.

The 2nd, 3rd and 4th defendants also refuted the plaintiff's claims and contended that whereas the plaintiff was married to late Kakururu John Kelensio, the two had separated and were staying apart and the deceased never visited the plaintiff as claimed. It is further their case that the plaintiff has no capacity to administer the estate being eighty years old, senile and illiterate and she is being used by other siblings who want to sell of the estate using the plaintiff. That the plaintiff never consulted or engaged the listed children before applying for the letters of administration yet there are other family members who are strong and capable

of administering the estate not the plaintiff alone. That plaintiff is being misled by one Maurice Kabeireho who had a land dispute with the deceased before his death. The 2nd, 3rd and 4th defendants are not interested in being administrators of the estate but lodged the caveat to ensure that both families are represented in the interest of the young children of late Kakururu John Kelensio. They prayed that the suit be dismissed with costs.

The plaintiff was represented by MS Amber Solicitors & Advocates while the defendants were jointly represented by MS Namara, Twenda & Co. Advocates. Both parties through their respective Counsel filed submissions which court shall take into consideration in making this decision

The parties filed a joint scheduling memorandum, agreed on certain fact. The following issues were also raised:

- 1. Whether the plaintiff is a fit and proper person to be granted letters of administration for the estate of late Kakururu John Kelensio. - 2. Whether the defendants were justified to lodge a caveat against the plaintiff's petition for letters of administration; - 3. What remedies are available to the parties?

Court shall be guided by the following legal principles

- 1. The burden of proof in civil matters is on he who alleges or one who must fail if at all no evidence is adduced on either side as per Section 101 & 102 of the Evidence Act, Cap.6. - 2. The standard of proof in civil matters is on the balance of probability.

It should be noted that the plaintiff in proving her case relied on her own testimony as PW1 and another one Bamuhangaine Christine as PW2.

Pw2 is the woman whom the husband of the plaintiff cohabited with after the separation and with whom he had four children. She testified in support of the plaintiff and told court that the plaintiff was in fact looking after her and her children since the death of their husband.

The defendants relied on the testimony of the 1st defendant as DW1. They , however ,did not tender in the witness statements of the 2nd, 3rd and 4th defendants as evidence in Chief and as such court shall only rely on the testimony of the 1st defendant (DW1).

The following facts were agreed upon by the parties as per the joint scheduling memorandum on the record dated 19th November, 2021.

- The late Kakururu John Kelensio was born on the 8th December, 1942 and was a $\bullet$ resident of Nyakaina, Buyanza, Rukungiri District and he died of heart failure on 9th September, 2020 at Nyakibale hospital, Rukungiri. - The plaintiff got married to the deceased on 30th April, 1958 in a church marriage and lived together as husband and wife. - The deceased got a mistress, built another home and had children with her but the plaintiff remained in the matrimonial home - The deceased at the time of his death had a total of fourteen children with ten having $\bullet$ been borne by the plaintiff (two of whom are now deceased) and four children borne by the deceased's mistress, Bamuhangaine Christine. - The plaintiff on the 12th March, 2021 petitioned this honorable court- vide $\bullet$ administration cause No. 018/2021 for grant of letters of administration to the estate of late Kakururu John Kelensio, as his widow. - That before court could consider the plaintiff's petition to grant her letters of administration to the estate of Kakururu John Kelensio the defendants lodged a caveat against the grant and filed an affidavit to that effect on 23rd April, 2021. - The subject matter of this suit is located at Rukungiri District with estimated value of over 100,000,000 Ug.shs, which is within the jurisdiction of the court. - The defendants were served with 21 days' notice/warning to vacate their caveat to no avail - That the defendants were served with notice of intention to sue. - The plaintiff did not call for family meeting before petitioning this honorable court for $\bullet$ grant of letters of administration for the estate of late Kakururu John Kelensio.

### Issue No.1: Whether the plaintiff is a fit and proper person to be granted letters of administration for the estate of late Kakururu John Kelensio.

It is the defendants' case that the plaintiff is not a fit and proper person to be granted letters of administration due to the following reasons;

- a) The plaintiff was at the time of death of the separated with the deceased - b) The plaintiff is of advanced age of 80 years, illiterate and senile.

- c) The plaintiff did not convene a family meeting to consult the beneficiaries before filing the petition. - d) The plaintiff did not obtain a Certificate of no Objection before filing the petition - e) The plaintiff has conflict of interest in the estate

#### **Resolution of issues**

# a) The plaintiff was at the time of death of the separated with the deceased

It was submitted for the defendants that the plaintiff at the time of death of the deceased, had separated from him hence she was not entitled to a share in the estate or qualified to petition to administer the estate.

The 1st defendant- DW1- Muhwezi John Bosco testified to the effect the plaintiff at the time of the deceased's death (Kakururu John Kelensio) had separated for about 10 years and were no longer staying together. He referred to the judgment of court marked DEX1 in respect of the judicial separation.

The plaintiff testified as PW2 and in her witness statement in paragraph 7. She stated that during the subsistence of their marriage, the deceased got a mistress and built another home and had children with the mistress, leaving her at the matrimonial home but kept on visiting her.

Section 30 (1) of the Succession Act (as Amendment), provides that a surviving spouse of an intestate shall not take any interest in the estate of the intestate if, at the death of intestate the surviving Spouse was separated from the intestate as a member of the same household. In other words, according to her, the deceased is the one who deserted and abandoned her at their matrimonial home.

Section 30 (2) of the Succession Act (as Amendment) states that Subsection (I) shall not apply where-

(a) the surviving spouse has been absent on an approved course of study in an educational institution:

(b) the intestate was, at the time of his or her death, the one who had separated from the surviving spouse as a member of the same household;

I have perused the judgment of Her Lordship Margaret C. Oguli dated 2nd September, 2008. It is clear that judicial separation was ordered upon the plaintiff herein proving three grounds of cruelty, desertion and adultery against late Kakururu John Kelensio.

From the evidence of PW1, PW2 and DW1, it is not disputed that the plaintiff, prior to and after the judicial separation, remained in the matrimonial home. The deceased (late Kakururu) left the plaintiff and started cohabiting with his mistress -PW2 and begot four issue and it was the reason for the judicial seperation.

Therefore, the said section 30 (1) of the Act cited by the defendants does not apply to the plaintiff because she remained in the matrimonial home and it was the deceased who left her after getting a mistress. The plaintiff cannot be faulted for act of the deceased which was clearly beyond her control. She didn't cause the separation but rather it was the deceased who moved out of the matrimonial home and left the plaintiff. In effect, it is my finding that the plaintiff has an interest in the estate of Late Kakururu John Kelensio as his widow.

# b) The plaintiff is of advanced age of 80 years, illiterate and senile.

Section 190 of the succession Act is to the effect that letters of administration may not be granted to any person who is a minor and of unsound mind.

In the instant case the petitioner for letters of administration, the plaintiff is of apparent age of 80 years old and as such she is not a minor. No evidence whether documentary or otherwise has been provided by the defendants to prove that the plaintiff is senile and illiterate. Section 101 of the Evidence Act is to the effect that he or she who alleges must prove. The defendants have not proven the said allegation. Besides, advanced age and illiteracy is not one of the grounds for disqualifying one from petitioning for grant of letters of administration. The evidence of PW1 and PW2 reveals that she has been taking care of the children of the deceased, including those of the mistress (PW2). Therefore, it is my finding that whereas the plaintiff is of advanced age and illiterate, the same do not render her unfit to administer the estate.

### c) The plaintiff did not convene a family meeting to consult the beneficiaries before filing the petition.

It is not disputed that the plaintiff did not convene a meeting with the beneficiaries of the estate. It is submitted for the defendants that failure by the plaintiff to consult the beneficiaries before filing the petition rendered the process a nullity. However, the defendants failed to show how such a lapse operated to the disadvantage of the beneficiaries of the estate. In their written statements of defense, the defendants all contend that they were not interested in being administrators of the estate but are concerned about the younger children of the deceased which need to be represented.

$\tilde{\mathcal{A}}_1$

DW1 testified to the effect that he has no interest in administering the estate but wants the interest of the young children of the deceased to be protected. It was further DW1's testimony that there are other strong members of the family who can administer the estate. However, he did not point out any.

PW1 testified to the effect that she had been taking care of the deceased's children including paying their school fees and had no dispute with the deceased's mistress (PW2). This was corroborated by PW2 who is the mother to the said young children. She informed court that she has been living in peace with the plaintiff, who is even taking care of her and the children. She said she has confidence that the plaintiff is the most suitable person to administer the estate of late Kakururu John Kelensio.

I would like to point out the fact that an administrator/administratrix of an estate must be appointed as soon as possible or the estate stands the risk of being wasted/intermeddled. This is because the properties of the deceased vests in the administrator/administratrix as the case may be in trust for and in the interest of all the beneficiaries of the said estate.

I see no injustice being occasioned to the beneficiaries or better still the defendants by the plaintiff petitioning for the grant of letters of administration without convening a meeting as clearly shown, she was already taking care of the children of the deceased and there is no person (not even the defendants) willing to administer the said estate.

# d) The plaintiff did not obtain a Certificate of no Objection before filing the petition

Section 201 of the Succession (Amendment) Act, 2022 provides that when the deceased died intestate then those connected with the deceased by either marriage or by consanguinity are entitled to obtain letters of administration in the order provided.

Section 5 of the Administrator General's Act is to the effect that no grant shall be made by any person except an executor appointed by will or a widow or widower of the deceased or his/her attorney authorized in writing, authorizing that person to administer the estate of the deceased person until such has produced proof that the administrator general or its agent had declined to administer the estate or proof of having given the administrator general 14 clear days' notice in writing of his/her intention to apply for the grant.

In effect, Section 5 of the Act above does not require a widow, widower of the deceased or an executor appointed by will to obtain a Certificate of no Objection from the Administrator General. In the instant case it is not disputed that the plaintiff is the widow of late Kakurururu John Kelensio. Therefore, she was not under any legal duty to first seek consent from the Administrator General in the form of a Certificate of no Objection.

## c) The plaintiff has conflict of interest in the estate

The defendant DW1 in his testimony contended that the plaintiff is being misled into petitioning for the grant by one of the deceased's sons, one Maurice Kabeiro since she is of advanced age and senile. Dw1 referred to a court judgment dated 20th November, 2020 before his worship Ngamije Faishal, whereby the deceased and the said Kabeiro Maurice had a land conflicts which was resolved in favor of the deceased. The defendants merely alleged but failed to show the conflict of interest in the said matter which had been determined in court in favor of the deceased. Section 101 of the evidence Act requires he that alleges to provide proof. It is my finding that the defendants have failed to establish the said allegation of conflict of interest in the estate by the plaintiff.

Consequently, I find that the plaintiff is a fit and proper person to obtain a grant of Letters of Administration in respect of the estate of late Kakururu John Kelensio.

### Issue No.2: Whether the defendant was justified to lodge a caveat against the plaintiff's petition for letters of administration.

I have already found in issue no.1 that the plaintiff is a fit and proper person to obtain a grant of Letters of Administration. The defendants lodged the caveat forbidding the grant on the ground that the plaintiff is not a fit and proper person to secure the grant. Consequently, the defendants had no justification whatsoever in lodging the caveat against the plaintiff's petition for the grant of Letters of Administration.

## Issue No.3: what remedies are available to the parties?

The plaintiff having succeeded in issue No.1 & No.2 is entitled to the following remedies;

- 1. An order doth issue vacating/lifting the caveat lodged by the defendants against the plaintiff's petition for Letters of Administration to the estate of late Kakururu John Kelensio. - 2. It is declared that the plaintiff is a fit and proper person to administer the estate of late Kakururu John Kelensio, - 3. An order doth issue granting Letters of Administration for the estate of late Kakururu John Kelensio to the plaintiff - 4. The defendants shall pay costs of the suit to the plaintiff.

Either party aggrieved with the court's decision may appeal.

Delivered at Rukungiri this.......2nd ..... day of........... May.......... 2023 in the presence of both

parties and in the presence of their Counsel.

HON. JUSTICE TOM CHEMUTAI **JUDGE**