Wassaja and Another v Kemirembe and Another (Civil Suit 320 of 2021) [2023] UGHCFD 147 (3 August 2023)

### **THE REPUBLIC OF UGANDA**

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

### **(FAMILY DIVISION)**

## **CIVIL SUIT NO.320 OF 2021**

#### **1. WASSAJA PHILLIP**

#### **2. MUSANJE PAUL :::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS**

#### **VERSUS**

**1. KEMIREMBE WINNIE ::::::::::::::::::::::::::::::::::::: DEFENDANTS**

#### **2. NALULE JUSTINE (Administrators of the Estate of the late NAJJUMA ELIZABETH)**

## **BEFORE HON. LADY JUSTICE CELIA NAGAWA**

#### **JUDGEMENT**

#### **1.1. Introduction**

- 1.2. Wasajja Phillip and Musanje Paul hereinafter referred to as the (Plaintiffs) instituted this suit against the Defendants Kemirembe (Nabukalu) Winnie and Nalule Justine in respect of the Estate of the Late Najjuma Elizabeth seeking the following; - 1. An order directing the defendants to distribute the property/hand over the plaintiffs' share of the estate of the late Najjuma Elizabeth. - 2. An order directing the defendants to provide a true accountability of proceeds collected from the above premises from 26th October, 2017 when they acquired Letters of Administration to date and refund the same to the lawful beneficiaries.


- 3. An order of vacant possession against the 1st defendant from the plaintiffs' share of the estate of the late Najjuma Elizabeth. - 4. In the alternative Letters of Administration granted to the defendants be revoked and the same be granted to other persons who will administer the estate. - 5. A permanent injunction restraining the defendants from interfering and intermeddling with the Estate of the Late Najjuma Elizabeth. - 1.3. The defendants filed a Written Statement of Defense on 2nd December, 2021.

# 2.0 **Representation and Hearing**

2.1. At the hearing, the Plaintiffs were represented by Ms. Berna Mutamba of M/S Manzi Mutamba Advocates & Solicitors while the Respondents were represented by Mr. Tumwesigye Wycliff of M/S Talp Advocates.

# **3.0. Background of the Suit**

3.1 Najjuma Elizabeth died in January, 2001 leaving a Will that did not appoint executors. The defendants were granted Letters of Administration with a Will annexed on 26th October, 2017 to Administer Najjuma's estate. The deceased among other things left land comprised in Block 213 Plot 787 at Bukoto Masalimi Zone on which she had her residential house and a house behind it containing two rental units plus a portion of undeveloped land on the said property. According to the Will, the deceased bequeathed the residential house to the 1st defendant, one rental unit to Esther Namuyomba, the plaintiffs' mother, the 2nd rental unit to Sarah Kizza and the undeveloped land to Joyce Birabwa. The 1st defendant


occupied her share of the property. The children of the Joyce Birabwa (now deceased) disposed of her share of the property. Along the way, the1st defendant joined the two rental units bequeathed to Sarah Kizza and Esther Namuyomba into one house where she now resides.

- 3.2. The plaintiffs aver that as the children of the late Esther Namuyomba, they have waited for their share of the deceased estate from the defendants to hand over the portion of the estate that was bequeathed to their mother in vain since October, 2017 when the defendants obtained letters of administration. They contend that the defendants have never filed an inventory and neither have they tendered a true account of the property of the Estate to the late Najjuma Elizabeth. - 3.3. On their part, the defendants contend that from the time they obtained the grant of letters of administration, they have been involved in disputes relating to persons intermeddling with the estate of the deceased, some of whom are working with the plaintiffs. According to them, the plaintiffs have no exclusive right to the property at Bukoto but simply a part of the Boys' quarters. Instead, that the plaintiffs are conniving with unscrupulous persons to defraud the other beneficiaries of the part of the boy's quarters. The defendants further aver that they used the income derived from the rental properties to cater for and pay for the treatment of the second plaintiff who constantly suffers from mental sickness that requires constant treatment.

## **4.0 The evidence**

- 4.1 The plaintiffs called the following witnesses to prove their case: - **1. Wassajja Philip Mutebi (the 1st Plaintiff) PW1.** - **2. Kasozi Monica Harriet, PW2.**


### **3. Kiwalabye Herbert, PW3**

- 4.2 The plaintiffs relied on only four (4) documents (The Will, Proceedings at the Administrator General's Office, Petition for the Letters of Administration of the late Najjuma Elizabeth and the grant of Letters of Administration of the late Najjuma Elizabeth). The plaintiffs relied on witness statements. The three (3) plaintiffs' witnesses were cross- examined by Counsel for the defendants. - 4.3 The defendants adduced evidence through three witnesses, namely: - **1. Ms. Nakijoba Deborah, DW1.** - **2. Ms. Nalule Justine (the 2nd defendant), DW2.**

## **3. Ms. Kemirembe Winnie (1st Defendant), DW3.**

4.4 The defendants also relied on the following documents namely; Plaint in Civil Suit No. 176 of 2021, Correspondences on efforts to evict non-paying tenants, accountability receipts for costs and expenses on the renovation of estate property on Plot 787 Bukoto, rental receipts for the defendants residence between 2017 -2018, money acknowledgment by the 1st plaintiff as part of the proceeds from the rent on Plot 787, Bukoto, utility advice slips and water bill payment, property rates payment advice and bank deposit for Plot 787 Bukoto. DW1, DW2 and DW3 were respectively crossexamined by Counsel for the plaintiffs.

## **5.0 Issues for Resolution by this Court**

**1. Whether the defendants have willfully and without reasonable**

**cause omitted to distribute the estate of the late Najjuma**


**Elizabeth and exhibit an inventory or account in accordance with the law.**

- **2. Whether the plaintiffs received their share of the estate of the late Najjuma and if not, why?** - **3. Whether the defendants mismanaged the estate of the late Najjuma Elizabeth?** - **4. What remedies are available to the parties?**

# **6.0. Written Submissions.**

- 6.1. Learned Counsel for the Plaintiff filed written submissions that have assisted me in determining this Suit. I have carefully perused the record and considered the submissions in the determination of this suit. - 6.2 The Defendants' counsel at the end of hearing this suit on 16th May, 2023 prayed to this court that he had one witness remaining to testify following the hearing and that she was based in South Africa, since during hearing her name came up on several occasions. The court reminded Counsel that the Joint Scheduling Memorandum could not accommodate him and that he had equally agreed to the set timelines for hearing this matter. In the end, Court adjourned the matter to 17th May, 2023 at 8:00am but Counsel for the defendants and his clients did not make appearance. - 6.3 On 17th May, 2023 following non-appearance by counsel for the defendants and the defendants together with their witness Sarah Kiiza (Ngonzi), counsel for the Plaintiffs addressed Court that the matter was coming up for the defendant's last witness, much as her witness statement had not been served upon the plaintiffs and prayed that in the absence of counsel and his clients that the matter should be closed


and court gives schedules. As prayed by counsel for the Plaintiffs the matter was closed citing Article 126 (2) (b) of the Constitution that justice shall not be delayed.

- 6.4 Court directed the Plaintiffs to file and serve their submissions by 7th June, 2023, the Respondents submissions were to be filed on 27th June, 2023 and a rejoinder if necessary on 7th July, 2023. Court directed the plaintiffs' counsel to communicate in writing the said dates to the defendants counsel. However, up to the date of writing this judgement, only the plaintiff's submissions are on record, filed on 5th June, 2023. There is an indication that the Defendant received the said communication regarding the scheduled timeline as evidenced by the scribble on the letter addressed to the Defendants to wit counsel for the defendants commented that *"we are not aware of any court order/directives regarding filing submissions. The defendants have never closed their case. We shall not receive submissions dated 5th June, 2023 and signed.* - 6.5 I have deemed it that the Defendant chose not to file any submissions and I have proceeded to write the judgment relying on their pleadings and testimonies for their part of the case.

# **7.0. Burden of Proof.**

7.1 In all civil matters, he who alleges bears the burden to prove his/her case on a balance of probabilities. The plaintiffs in this matter bears the burden to proof as required under **Section 101,102 and 103 of the Evidence Act, Cap 6. Section 101 of the Evidence Act (supra**) is to the effect that; "Whoever desires any Court to give judgment as to

 any legal right or liability, dependent on the existence of the facts which he or she asserts must prove that those facts exist".

## **8.0 Resolution of Issues by Court.**

**Issue 1: Whether the defendants have wilfully and without reasonable cause omitted to distribute the estate of the late Najjuma Elizabeth and exhibit an inventory or account in accordance with the law?**

- 8.1 An administrator means a person appointed by a court to administer the estate of a deceased person when there is no executor. **Section 2(a) of the Succession Act Cap 162 as amended.** The Primary duty of the Administrators as the legal representatives of the deceased in death is the distribution of the estate. They only hold the property in trust for the beneficiaries of the estate for the purpose of distribution. In this case, the Letters of Administration were granted to the defendants on the 26th October, 2017 by this court. A time period of 5 years has elapsed since the said grant. - 8.2. The Resolution of this issue is factual, in the regard that the answer is either they administered the estate of the deceased, or they did not. Under Paragraph 9 of their Witness Statements, the defendants stated that from the time they obtained Letters of Administration, there have been several conflicts regarding the suit property that have made it hard for them to administer the estate. According to the Will, the 1st defendant was given the residential house belonging to the deceased which she took over and rented out upon obtaining letters of administration. The said conflicts did not prevent her from obtaining her portion of the estate which was the residential house. The 1st defendant further moved into the rental properties and even broke


them down to make one house. The 1st defendant further avers that the suit land was subject to several disputes, however, only Civil Suit 178 of 2021, where the defendants sued a one Robert Njima was mentioned. In the said suit, the portion of the estate in question is the undeveloped portion of land that was distributed to Joyce Birabwa. The said dispute was not in regard to the rental unit/boys' quarter that was bequeathed to the Plaintiffs' mother and which now belongs to the Plaintiffs. This is the same property where the 1st defendant resides. In her statement to this court, the 2nd defendant admitted that Phillip's share was taken by Winnie who is the 1st defendant. There is no other conclusion than that the defendants wilfully and without reasonable cause omitted to distribute the estate of the late Najjuma Elizabeth to all beneficiaries.

8.3. A perusal of the letters of administration granted to the defendants indicates that they were duty-bound to file an inventory of the estate of the late Najjuma Elizabeth within 6 months following the issuance of the grant. This is a mandatory statutory requirement under **Section 278 of the Succession Act Cap. 162** which provides that;

'*An executor or administrator shall, within six months from the grant of probate or letters of administration, or within such further time as the court which granted the probate or letters may from time to time appoint, exhibit in that court an inventory containing a full and true estimate of all the property in possession, and all the credits, and also all the debts owing by any person to which the executor or administrator is entitled in that character; and shall in like manner within one year from the grant, or within such further time as the court may from time to time appoint, exhibit an account of the estate, showing the assets which have*


*come to his or her hands, and the manner in which they have been applied or disposed of."*

*8.4* In the case of *Anecho Haruna Musa Vs Twalib Noah & Ors HCCS No. 009 of 2009(unreported) court held that:*

**"The personal representative generally is under legal duty to account for the assets, distribute them to the beneficiaries and wind up the affairs of the estate".**

- 8.4 The defendants admitted to this court under oath and in their witness statements that they failed to file an inventory to this court. The 1st defendant averred that the beneficiaries of the estate all knew their shares and that the disputes regarding the estate prevented them from providing this court with an Inventory. - 8.5 The administration of an estate commences with the appointment of the administrators and ends when the last asset of the estate has been distributed to the beneficiaries. The defendants as administrators of the estate of the Najjuma Elizabeth have/had an obligation to distribute the properties of the estate amongst the beneficiaries and to exhibit in the court an inventory. Therefore, the defendants being administrators ought to have distributed the estate amongst the beneficiaries. It is this court's opinion that this was a deliberate omission not to perform their duty as required under Section 278(1) of the Succession Act, Cap. 162 and hence providing just cause for revocation of the said letters as provided for under Section 234 (2) (e) of the Succession Act, Cap. 162.


**Issues 2 & 3 will be resolved together. Whether the plaintiffs received their share of the estate of the late Najjuma and if not, why? Whether the defendants mismanaged the estate of the late Najjuma Elizabeth?**

- 8.6. According to the Will of the late Najjuma Elizabeth, it stated that "the house behind has been shared in two parts, it stated; *"One side is for my daughter Esther Namuyomba, the other side is for Sarah Kizza".* The plaintiffs are children of the late Esther Namuyomba and they claim her share from their grandmother's estate. The defendants obtained letters of administration on 26th October, 2017, and since then, the 1st defendant occupied the residential house apportioned to her and rented it out. She then took over the said rental units at the back of the main house that she turned into one house where she now resides. - 8.7. The 1st plaintiff averred under paragraph 20 of his witness statement that the 1st defendant only paid him rent for 3 months for the house which she has occupied since 2017. In his Witness Statement, Kiwalabye Herbert testified that the defendants have refused to stop occupying and benefitting from the Plaintiff's share of the estate of the deceased. He testified that upon the demise of the Plaintiff's mother, the 1st defendant took over her boy's quarter and continued collecting rent. According to Paragraph 8 of her Witness Statement, Kasozi Harriet stated that in 2016, the 1st defendant rented out her house and moved into the plaintiff's portion of the estate and in the 5 years since the grant of letters, she has never handed it over to the children who are in need of their share. The defendants contend that they incurred medical expenses in catering for the 2nd defendant when he fell sick. They stated that the money used to treat him was obtained from the


rental units. They further stated that they did not distribute the estate due to several conflicts regarding the estate.

- 8.8. The defendants being administrators ought to have distributed the properties amongst the beneficiaries. But it seems to me that the defendants have not administrated the estate. - 8.9 The duty of the administrators is very clear. Upon obtaining the grant almost 7 years ago they were to distribute the deceased's estate and to this day they have not. The 1st defendant has demonstrated a high level of greed, a lack of integrity and a callousness of nature in her actions in regard to the estate of the deceased. Not only did she fail to administer the estate, but she also took over a portion meant for the plaintiffs. This is in addition to the portion distributed to her. This court therefore finds that the plaintiffs did not receive their share of the estate of the late Najjuma and the defendants who are the administrators of the estate failed to furnish this court with adequate reasons as to why. The court also finds that the 1st defendant mismanaged the estate when she took over the Plaintiffs portion of the estate.

## **9.0. Conclusion**

- 9.1 In the final result, the court orders as follows. - 1. The defendants are hereby ordered to hand over to the plaintiffs, the share bequeathed to Esther Namuyomba out of the estate of the late Najjuma Elizabeth with immediate effect. - 2. The defendants will distribute the estate of the late Najjuma Elizabeth among the beneficiaries and file in court a comprehensive and true statement of account dealings.


- 3. The 1st defendant is hereby ordered to immediately hand over to the plaintiffs, vacant possession of the rental unit bequeathed to Esther Namuyomba. - 4. The 1st defendant shall refund to the plaintiffs' rental income arising out of their rental unit from the time of her occupancy until the date she hands over. - 5. The Letters of Administration granted to the defendants by this court are hereby revoked. - 6. The revoked Letters of Administration should be returned to this Court within 2weeks from the date of this judgement.(17/8/2023) - 7. A permanent injunction is hereby issued restraining the defendants from interfering and intermeddling with the estate of the late Najjuma Elizabeth. - 8. Costs awarded to the Plaintiffs.

It is so ordered.

## *Dated, Signed and Delivered by email this 3rd August, 2023.*

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ CELIA NAGAWA JUDGE**