Waliggo v Kiwankuka and Njongo (Miscellaneous Application 125 of 2023) [2025] UGHC 212 (21 April 2025)

### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO. 125 OF 2023 ARISING FROM CIVIL SUIT NO. 116 OF 2022**

## **DAVID WALIGGO SIMON**::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: **APPLICANT VERSUS**

### **1. KIWANUKA JOSEPH CHRISTOPHER**

(Administrator of the Estate of the Late Mary Waliggo) **2. NJONGO CHARLES**:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: **RESPONDENTS**

### **BEFORE: HON. JUSTICE LAWRENCE TWEYANZE**

### **RULING**

#### **Introduction**

- 1. This Application, brought under Order 52, Rules 1, 2, and 3 of the Civil Procedure Rules (CPR), Section 98 of the Civil Procedure Act, and Section 33 Judicature Act Cap 13 now Section 37 Judicature Act Cap 16, seeks the following reliefs: an order to set aside the consent judgment and order dated 24th May 2023 in Civil Suit No. 116 of 2022; an order directing the Respondents to bear the costs of this Application. - 2. The Application is grounded on the Applicant's affidavit, which alleges that the consent judgment was procured through fraud and is legally invalid. The Applicant contends that the Respondents failed to obtain his consent prior to entering the consent judgment, despite his status as an heir and beneficiary of the Estate of the late John Mary Waliggo. He further asserts that he derived no benefit from the consent judgment and that it was executed with the ulterior motive of unlawfully appropriating the Estate land, specifically the freehold property registered as Volume MSK 146 Folio 4, Block 844, Plot 13, situated at Kabuta Mayanja Kamuganja. The Applicant claims he only became aware of the consent judgment when the second Respondent attempted to enforce it by surveying a portion of the Estate land.

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- 3. The Respondents, through their respective affidavits, oppose the Application. They argue that the Applicant lacks the requisite locus standi to institute this suit, as the consent judgment was entered pursuant to a contractual agreement between parties with privity. The first Respondent, as the duly appointed Administrator of the Estate of the late John Mary Waliggo under Administration Cause No. 1961 of 2008 (Family Division, High Court at Kampala), asserts his lawful authority to manage and dispose off the Estate property. The Respondents further contend that the first Respondent sold a portion of the suit land to raise funds for the beneficiaries' tuition fees, that the Applicant received part payment, and that no fraud was committed. They pray for the dismissal of the Application with costs. - 4. In rejoinder, the Applicant refuted the Respondents' averments and reiterated the averments in his supporting affidavit.

# **Representation**

5. The Applicant was represented by M/s Kajeke, Maguru & Co. Advocates, while the Respondents were represented by M/s Sebanja & Co. Advocates. Both parties filed written submissions as directed by the Court, and these have been duly considered in arriving at this ruling.

### **Issues for Determination**

- 6. From the pleadings and submissions, the following issues arise for determination: - 1. Whether the Applicant has the locus standi to file this Application. - 2. Whether the consent judgment dated 24th May 2023 in High Court Civil Suit No. 116 of 2022 should be set aside. - 3. What remedies, if any, are available to the parties?

### **Decision**

# **Issue 1: Whether the Applicant has the locus standi to file this Application**

7. The concept of locus standi, defined in *Black's Law Dictionary (10th Edition)* as "the right to bring an action or to be heard in a given forum," is a fundamental prerequisite for a party to invoke the jurisdiction of the Court.

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In *Alfred Njau & Others vs. City Council of Nairobi* **[1982] KAR 229**, the Court held that locus standi denotes a party's right to appear and be heard, and the absence thereof renders a claim incompetent, irrespective of its merits. This principle goes to the jurisdiction of the Court and may be raised as a preliminary objection. Similarly, in *Fakrudin & Another vs. Kampala District Land Board & Another* **[HCCS No. 570 of 2015**], the Court emphasised that locus standi is the legal capacity to seek a remedy, intrinsically linked to the cause of action.

- 8. The Respondents contend that the Applicant lacks locus standi, arguing that he was not a party to High Court Civil Suit No. 116 of 2022, wherein the consent judgment was entered. It is undisputed that the first Respondent is the Administrator of the Estate of the late John Mary Waliggo, appointed under Administration Cause No. 1961 of 2008. Under *Section 21 of the Succession Act Cap 268 ( Revised Edition)*, the property of an intestate devolves upon the personal representative in trust for those entitled. *Section 188 of the same Act* further provides that Letters of Administration vest the Administrator with all rights of the deceased as if administration were granted immediately after death, a principle affirmed in *Ssewanyana James & Another vs. Makanga Benjamin* **[Civil Appeal No. 70 of 2010].** - 9. *Section 267 of the Succession Act* empowers an Administrator to dispose off the deceased's property, wholly or in part, with the consent of beneficiaries, if any. However, the Applicant's standing hinges on establishing his status as a beneficiary. In my view, a beneficiary is a person entitled to a benefit under a Will or the Estate of a deceased intestate. In this case, the late John Mary Waliggo left a Will, a copy of which was annexed to the first Respondent's affidavit. The Applicant has not challenged the validity of the Will or the first Respondent's appointment as an Administrator. Crucially, the Applicant is not named as a beneficiary in the Will, nor has he provided any credible evidence or other documentations demonstrating his entitlement as a dependent relative under Section 2 of the Succession Act. His mere assertion of being an heir or beneficiary, unsupported by corroborative evidence, is insufficient. - 10. Furthermore, the Applicant has not demonstrated that he suffered a legal wrong entitling him to challenge the consent judgment. The Respondents assert that the first Respondent acted within his administrative powers to

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sell part of the suit land for the beneficiaries' education, and that the Applicant received part-payment, a claim the Applicant has not adequately rebutted. In *Nuru Hassan Sharif vs. The Administrator of the Estate of the Late Shamji Jamal Lakhan* **[Jinja HCCS No. 34 of 2011],** the Court cautioned against entertaining Applications from mere "busy bodies" lacking a genuine cause, a principle applicable here.

- 11. In the absence of evidence establishing the Applicant's status as a beneficiary or a party with a vested interest in the suit land or Estate property, I find that he lacks the legal capacity to challenge the consent judgment. This conclusion renders the Application incompetent, and it is unnecessary to address the remaining issues, as the determination on locus standi concludes this matter. I hereby make the following orders: - 1. This Application is hereby dismissed. - 2. Costs are awarded to the Respondents.

Ruling signed delivered electronically at Masaka this 21st day of April 2025.


**LAWRENCE TWEYANZE JUDGE 21st April 2025**