DOMESTIC RELATIONS FINAL PDF 2 Ivn

Table of Contents
MARRIAGE AND DIVORCE ..................................................................... 9
CASES ................................................................................................ 9
VERONICA V. HABYARIMANA V PERFECT HABYARIMANA (1980) HCB

139. ................................................................................................ 9
NASSANGA V NANYONGA (1977) HCB 352 ..................................... 11
GEORGE NYAKAIRU V ROSE NYAKAIRU (1979) HCB 261 ................ 13
NWAGIRU V NUMBI (1967) E.A 639 ............................................... 15
FIDA (U) and 5 Ors V ATTORNEY GENERAL Const. Petition No. 2 of

2003. TWINOMUJUNI, J.A. ............................................................. 16
ALAI V UGANDA (1967) E.A 596 .................................................... 17
JULIUS RWABINUMI V HOPE BAHIMBISOMWE SCCA NO. 10 OF 2009

..................................................................................................... 18
WHAT IS A FAMILY .......................................................................... 19
MARRIAGE .......................................................................................... 20
CUSTOMARY MARRIAGES ................................................................. 21
REQUIREMENNTS OF CUSTOMARY MARRIAGE................................ 24
DIVORCE UNDER CUSTOMARY LAW ............................................... 28
MOHAMMEDAN MARRIAGES/ISLAMIC MARRIAGES ........................... 29
Preliminaries to Islamic Marriages ................................................. 29
DIVORCE UNDER MUHAMMEDAN ................................................... 31
HINDU MARRIAGES .......................................................................... 34
Preliminaries of Hindu Marriage ..................................................... 34
COMPILED AND PREPARED KATUMBA PIUS BUSOBOZI FIRM H2 & CO. ADVOCATES 2016-2017 ©
Celebration of the Marriage ............................................................ 34
CIVIL AND CHURCH MARRIAGE ........................................................ 35
Preliminaries of the Church and civil Marriage ................................ 36
Procedural requirements ............................................................... 38
LEGAL EFFECTS OF MARRIAGE.......................................................... 39
VOID AND VOIDABLE MARRIAGES .................................................... 46
VOID MARRIAGES.......................................................................... 47
VOIDABLE MARRIAGES .................................................................. 48
CAVEATS .......................................................................................... 49
DOMICILE ........................................................................................ 50
WORKSHOP 1 (MARRIAGE) .............................................................. 53
ISSUE ONE. VALIDITY OF THE MARRIAGES .................................... 55
ISSUE TWO ADDITIONAL INFORMATION REQUIRED FROM EACH OF

THE WOMEN. ................................................................................. 60
ISSUE THREE, NULLIFICATION ...................................................... 63
ISSUE FOUR PETITION FOR NULLITY ............................................. 65
CASES ........................................................................................... 69
PETITION FOR NULLITY. ................................................................ 73
SEPARATION AND DIVORCE ................................................................ 82
SEPARATION .................................................................................... 82
SEPARATION BY MUTUAL AGREEMENT .......................................... 82
Enforcement of the separation ....................................................... 83
Judicial separation ......................................................................... 85
DIVORCE .......................................................................................... 86
Grounds for Divorce ....................................................................... 87
BARS TO DIVORCE ......................................................................... 89
Discretionary Bars ......................................................................... 90
WORKSHOP 2 ................................................................................... 91
ISSUE ONE .................................................................................... 93
Separation Agreement ................................................................... 94
ISSUE THREE (JUDICIAL SEPARATION) ......................................... 98
Divorce ......................................................................................... 100
Petition for Judicial Separation...................................................... 101
Petition for Divorce ....................................................................... 106
ADDITIONAL NOTES ........................................................................ 119
RESTORATION OF CONJUGAL RIGHTS (PETITION TO COURT) ....... 120
PROCEDURE FOR ANNULLING A MARRIAGE .................................. 128
DOMICILE ....................................................................................... 129
PROCEDURE FOR DISSOLUTION OF MARRIAGE ................................ 130
Consequential Orders on Dissolution ............................................. 133
HOW A COURT SHOULD DETERMINE A CONTRIBUTING SPOUSE’S

SHARE IN JOINT PROPERTY ............................................................ 137
ADDITIONAL NOTES ON BARS TO DIVORCE ..................................... 138
Absolute Bars ............................................................................... 139
Discretionary bars ........................................................................ 142
NULLITY OF MARRIAGES ................................................................. 143
LAW RELATING TO CHILDREN. ........................................................... 144
RIGHTS OF A CHILD. ....................................................................... 144
WELFARE PRINCIPLE ...................................................................... 145
ADOPTION ...................................................................................... 147
PREREQUISITES FOR ADOPTION .................................................. 148
ADOPTION BY NON-CITIZENS: (PREREQUISITES FOR FOREIGN

APPLICANTS. ................................................................................ 150
REQUISITE CONSENTS TO THE ADOPTION: ................................... 153
EFFECT OF AN ADOPTION ORDER: ................................................ 154
PROCEDURE FOR ADOPTION: ........................................................ 155
PETITION FOR ADOPTION ............................................................ 157
GUARDIANSHIP .............................................................................. 161
LEGAL GUARDIANSHIP ................................................................. 162
CUSTOMARY GUARDIANSHIP........................................................ 163
APPOINTMENT OF A GUARDIAN BY AGREEMENT ........................... 164
TESTAMENTARY GUARDIANSHIP .................................................. 164
BIOLOGICAL PARENTS CAN APPLY FOR GUARDIANSHIP ............... 165
PRE-REQUISITES OF GUARDIANSHIP (SECTION 43 F (1)-(5) ........ 166
GUARDIANSHIP ORDER. ............................................................... 167
EFFECT AND DURATION OF GUARDIANSHIP ORDER S.43 H ........... 167
REVOCATION/ TERMINATION OF GUARDIANSHIP ORDER. SECTION

43K .............................................................................................. 167
WORKSHOP 1 (CHILDREN) .................................................................... 169
FOSTER CARE PLACEMENTS ............................................................. 170
PROCEDURE FOR OBTAINING A FOSTER CARE PLACEMENT ORDER170
DOCUMENTS ................................................................................. 174
SUPERVISION ORDER AND CARE ORDER. ........................................ 176
GROUNDS FOR MAKING A SUPERVISION OR CARE ORDER. ........... 176
Application for a Supervision Order ............................................... 177
CARE ORDER. .................................................................................. 177
PROCEDURE FOR CARE OR SUPERVISION ORDER .......................... 178
FACTORS TO BE TAKEN INTO CONSIDERATION ............................. 178
WORKSHOP 2 CHILDREN ................................................................... 179
CUSTODY ........................................................................................ 180
FACTORS TO BE CONSIDERED IN CASES OF CUSTODY ................... 182
VARIATION OF CUSTODY. ............................................................. 185
CONDITIONS IN CUSTODY ORDERS .............................................. 185
APPLICATION FOR CUSTODY ........................................................ 186
MAINTENANCE ORDER .................................................................... 190
CHILDREN’S RIGHTS VIOLATED AS PER FACTS ............................. 190
DECLARATION OF PARENTAGE ........................................................ 192
Importance of declaration of Parentage. ....................................... 192
Who Can Apply For Parentage? ..................................................... 192
When Can An Application Be Made? .............................................. 192
Considerations by Court. ............................................................... 193
PROCEDURE FOR PARENTAGE. ...................................................... 193
Prima Facie and Conclusive Evidence of Parentage ........................ 194
EFFECTS OF DECLARATION OF PARENTAGE ................................... 195
REVOCATION OF DECLARATION OF PARENTAGE ........................... 196
APPLICATION FOR PARENTAGE (COMPLAINT ON OATH) ............... 199
APPLICATION AS GUARDIAN OVER CHILD’S PROPERTY ................ 202
EXCLUSION ORDER ......................................................................... 206
SEARCH AND PROTECTION ORDER. ................................................. 207
ENFORCEMENT OF ORDER ............................................................... 207
RECOVERY ORDER ........................................................................... 207
WEEK 2 LAW ON SUCCESSION ........................................................... 208
ISSUE ONE CAPACITY TO MAKE A WILL ........................................... 209
Characteristics of a will.................................................................... 210
Capacity to make a will ................................................................. 210
Test of unsound mind ................................................................... 211
Test of Undue Influence ................................................................ 213
FRAUD .......................................................................................... 214
WHAT PROPERTY AND OBLIGATIONS CAN BE INCLUDED OR EXCLUDED

IN BASIMA OGENZE’S SUCCESSION ................................................. 214
PROPERTY NOT BE INCLUDED IN THE WILL .................................. 215
WHAT ADDITIONAL INFORMATION IS REQUIRED FROM BASIIMA

OGENZE .......................................................................................... 218
WHO ARE THE BENEFICIARIES UNDER THE WILL ............................ 219
HOW CAN THE WILL BE VALIDLY EXECUTED .................................... 220
TYPES OF WILLS ............................................................................. 225
DOCUMENT (WILL) ............................................................................ 226
WHERE CAN THE WILL BE KEPT FOR SAFE CUSTODY ....................... 233
WHO CAN BE APPOINTED AS EXECUTOR/ EXECUTRIX UNDER THE

WILL ............................................................................................... 233
REVOCATION OF WILLS................................................................... 234
REVOCATION BY MARRIAGE ......................................................... 234
REVOCATION OF A WILL BY ANOTHER WILL OR CODICIL .............. 241
REVOCATION OF A WILL BY DESTRUCTION, BURNING OR TEARING

.................................................................................................... 236
ISSUE FIVE. CODICILS .................................................................... 238
DOCUMENT (CODICIL) .................................................................. 240
WORK SHOP 2 ................................................................................. 241
BENEFICIARIES TO AN ESTATE ....................................................... 246
WHO IS THE MOST SUITED TO ADMINISTER THE ESTATE ................ 249
DUTIES OF AN ADMINISTRATOR ..................................................... 253
WHO ELSE CAN BE APPOINTED AS AN ADMINISTRATOR OF AN ESTATE

....................................................................................................... 255
ADDITIONAL INFORMATION ........................................................... 256
PETITION FOR GRANT OF LETTERS OF ADMINISTRATION ............... 257
ADDITION TO THE RIGHTS OF THE BENEFICIARIES ........................ 264
CAVEATS ......................................................................................... 267
CAVEAT (DOCUMENT) ..................................................................... 269
PROCEDURE FOR THE GRANT OF PROBATE ...................................... 273
PETITION FOR GRANT OF PROBATE .............................................. 280
PROCEDURE TAKEN WHEN THE EXECUTOR RENOUNCES HER ABILITY

TO ADMINISTER THE ESTATE. ......................................................... 284
PROCEDURE FOR GRANT OF LETTERS OF ADMINISTRATION ............ 285
HOW CAN ONE ADMINISTER AN ESTATE IN UGANDA WHERE HE/SHE
OBTAINED LETTERS OF ADMINISTRATION TO THE ESTATE FROM
KENYA? ........................................................................................... 291
CONDITIONS TO BE FULFILLED..................................................... 291
Who may apply ............................................................................. 292
PROCEDURE ................................................................................. 292
POINTS TO NOTE: ........................................................................... 294
Rank of applying for LOA ................................................................. 294
OPPOSING THE LODGING OF A CAVEAT ........................................... 295
TERM 1
MARRIAGE AND DIVORCE
CASES
VERONICA V. HABYARIMANA V PERFECT HABYARIMANA (1980) HCB

139.
The petitioner brought this suit against her husband for dissolution of their
marriage and for an order granting her the custody of their children aged 13
years and 10 and a half years respectively. The grounds were adultery with
some unknown persons and a one Susan Najuko. The respondent had also
threatened the petitioner with cruelty and as a result, she is suffering mental
depression and her health has and continues to be injured as the petitioner
was assaulted, battered, abused and has been denied food by the
respondent.
Held:
1. Adultery is defined as consensual sexual intercourse during the
subsistence of the Marriage between one spouse and a person of the
opposite sex not being the other spouse. It is a sexual intercourse
between two persons of whom one or both are married but who are not
married to each other.
2. Adultery is a matrimonial offence and not a criminal offence.
3. In adultery, the burden of proof lies throughout on the person alleging it
there being a presumption of innocence.
4. On the standard of proof, it is now well settled that when an allegation of
adultery it must be proved to the satisfaction of the court, that is not
beyond reasonable doubt. While the evidence need not reach certainty,
nevertheless it must carry a high degree of probability. In Uganda where
adultery is also a criminal offence there is a stronger reason for
demanding a higher standard of proof than in other ordinary civil
proceedings.
5. There is no definition of cruelty in the Divorce Act but case law has
established that no conduct can amount to cruelty in law unless it has
the effect of producing actual or apprehended injury to the
petitioner’s health (physical and mental health). There must be
danger to life, limbs or health, bodily or mental or a reasonable
apprehension of it, to constitute legal cruelty” Kasasa V Kasasa Divorce
suit No. 13 of 1976 (1976) HCB.
6. To constitute cruelty the conduct complained of must be serious. It must
be higher than the ordinary wear and tear of married life. It is therefore
the effect of the conduct rather than its nature which is of paramount
importance in assessing a change of cruelty and it must be proved that
the respondent however mindless of the consequences has behaved in a
way which the petitioners could not in the circumstances be called upon
to endure and that such conduct caused injury to health or reasonable
apprehension of it.
7. On the issue of custody of children, the court was of the view that in
such matters their welfare would be paramount Nakagwe V Kiggundu
Civil Appeal No. 1 of 1978 (1978) HCB 315 and in the present case,
the welfare of the 2 children required that they be left with their mother.
8. The respondent as a parent having a right of access to his child would be
entitled to visit the children as often as he pleases provided such visits
did not unduly interfere with the well-being of the children and where
necessary the children would be free to visit the respondent.
NASSANGA V NANYONGA (1977) HCB 352

The appellant was a witness before a Magistrate Grade II Masaka where this
case was tried. She was a plaintiff originally in Civil Case No. 373. She lost in
that case and appealed to the Chief Magistrate Masaka who ordered a retrial on
the ground that the Magistrate Grade III had applied wrong customary law.
The parties were all Banyankole (Bahima) and the trial magistrate’s view was
that the parties having lived in Buganda and adopted Kiganda names had
become Baganda and Buganda customary law applied. The facts of the case
are that Nassanga had 2 daughters, Milien Nanyonga, the respondent and
Robina Nanziri each with a different father, the respondent’s father had long
died and thereafter Nassanga had some relations with one Kabin the father of
Robina, who also died while Robina was still young. Nassanga gave Robina to
Millian to look after her as she left for treatment in Tanzania in the meantime.
In 1963, Robina got married to one George who paid one cow and shs 900/=
to Milien as was the custom when Nassanga returned she claimed this dowry
hence the instant case.
Held:-
1. Parties are free to choose the law to govern their relationship but this
choice is made at the time the relationship is entered into and not after a
dispute has arisen. The choice of the law is a matter for the court to
decide.
2. Where parties belong to the same tribe the proper law is the law of the
tribe to which they belong in matters of moveable property and inter
personal issues. As the instant case related to Marriage and dowry the
proper law was the law of the tribe to which the parties belonged the law
of the tribe to which the parties belonged.
3. In the instant case, the proper law was Ankole customary law as the
parents of Robina were Banyankole and to find otherwise is patently
wrong.
4. A child belongs to the tribe to which his father or her father belongs and
it is the father entitled to his daughter’s dowry. In the absence of the
father and a daughter’s patrilineal male relatives, then the mother is
entitled to the dowry. This is because a mother like a father would be
entitled to dowry as is a form of appreciation to the parents for begetting
the daughter to whom the bridegroom is betrothed in the instant case,
the sister would not be entitled to the dowry.
GEORGE NYAKAIRU V ROSE NYAKAIRU (1979) HCB 261

This was an appeal by the appellant against an order granting custody of his
three children to the respondent in a divorce petition. The trial court granted
the petitioner’s petition based on the grounds of cruelty and adultery on the
part of the appellant and dismissed the respondent’s adultery. The trial court
ordered the appellant to pay maintenance and alimony to the respondent and
granted the custody of the three children of the Marriage, aged 7, 3 and 1 1/2
years respectively to the respondent.
The children were still living with the appellant who had a personal house, a
ranch and 2 vehicles one of which he had set aside for use by the said children
and he also earned a salary of shs 8000/= per month and was in a better
position to look and accommodate the children than the respondent who had
no personal house but lived in a rented house and earned shs 3000/= per
month. The respondent was 25 years and that she could easily remarry and
thus forced to return the children to the father.
Held;
1. S.30 of the Divorce Act merely gave the court discretion to make and
vary orders relating to among others, the custody of children without
prescribing the law to be applied in deciding who of the spouses should
have custody of the children.
2. There was nothing in the Divorce Act that suggest what age children
should be ordered to be with in custody of the mother or father it being
merely a general principle in ordinary cases that a boy of 8 years, other
things being equal should be with his father rather than the mother.
3. Although the underlying principle in all custody cases was that the
welfare of the children was paramount consideration the courts, in
applying the principle had to consider other ancillary circumstances e.g.
such matters as who of the spouses was to blame for the breakup of the
Marriage who of the spouses was more financially equipped to look
better after the interests of the children and which of the spouses could
provide a more comfortable home.
4. Although the father’s superior financial position over that of the mother
was irrelevant in custody cases, since it merely meant that he could
support the children properly while he was still with those children’s
mother such financial superiority could not be ignored if it could be
proved that the father would use his superior financial superiority to
cater for the welfare of the children better than the mother.
5. Immorality on the part of the father was not a sufficient justification for
interfering with a father’s common law right to custody.
6. Since the parties separated, the children had been living with the father
and there was nothing to show that the children’s physical and moral
welfare had deteriorated as a result of living with the father apart from
the mother. In the circumstances, it would be in the interests of the
children that they are not shifted from the environment they had been
living in.
NWAGIRU V NUMBI (1967) E.A 639

The plaintiff sought a declaration that there was a valid and subsisting Marriage
between himself and the defendant by Kikuyu custom, both parties being
Kikuyu. The defendant alleged that no such Marriage existed because she had
not given her consent and had not even been present at the essential
ceremony. She admitted that she had been living with the plaintiff at his house
but for a short time but claimed she had been forced to do so by the father.
She had gone through a civil Marriage with another man with whom she had a
long standing association a short time after she had escaped from the plaintiff
and she in fact married to this man and not to the plaintiff.
Held;
(i) The signifying of consent by the bride is necessary at 2 stages of the
ceremonies which are vital to a regular Kikuyu customary Marriage.
(ii) On the evidence the defendant was not present and consenting it at least
one of the stages and the plaintiff had therefore failed to prove his case.
FIDA (U) and 5 Ors V ATTORNEY GENERAL Const. Petition No. 2 of 2003.
TWINOMUJUNI, J.A.
The petition was brought under A. 37 of the constitution seeking the following
declarations that S.4 (1) of the Divorce Act contravenes and is inconsistent
with A. 21 (1) and (2), A 31 (1) and A. 33 (1) and (6), similarly s. 4 (2), 5, 21,
23, 24 and 26 of the Divorce Act and any other declarations that the court may
deem fit to grant. The Divorce Act was enacted in Uganda in 1904 and has got
its origins in the Matrimonial Causes Act of 1857 of England and has also had
its roots in the common law of England despite the fact that the English have
since reformed the matrimonial causes Act 1557 by the legislation enacted in
1923, 1937, 1969 and 1973 and have abandoned the concept of divorce
granted on the basis of proof of matrimonial offences, the 150 years old
English Law is still intact and in force in Uganda.
The gist of the evidence was that the divorce act discriminated against women,
perpetuates inequality between sexes is against dignity, welfare and interest of
women and undermines their status among others.
The court held that the petitioners were entitled to reliefs prayed for and
that all the grounds of divorce mentioned in s.4 (!) and (2)are available
to both parties to the Marriage and the provisions of the act relating to
naming of the correspondent compensation, damages and alimony apply
to both women and men who are parties to the Marriage.
ALAI V UGANDA (1967) E.A 596

In an appeal from a conviction of adultery by a Magistrate Grade II, a Chief
Magistrate stated a case for the opinion of the high court on a point of law. The
adulterer and adulterers and her husband were all Muslims and the Marriage
between the adulteress and her husband was by Muslim rite.
In this case, Alai was accused of adultery. His defense was that he was not
guilty of adultery because the woman he had sexual relations with was not a
wife as defined by the English law or the penal code. His argument was that if
a person married a woman as per the principle of customary law, then that
person is not a wife as per the penal code.
Court disagreed with him. Sir Udo Udoma CJ held that “any married
woman” in s. 150 A of the penal code means any woman who is married
to any man irrespective of the form of such Marriage, provided that such
Marriage has been conducted in one of the forms recognized by the
people of Uganda, including Marriages according to the custom of the
people.
(in this case, the court departed from the meaning of wife under the English
principles and adopted the interpretation under the customary laws of Uganda.
KRISTINA d/o HAMISI V OMARI NTALALA 2 ANOR (1963) E.A 463
JULIUS RWABINUMI V HOPE BAHIMBISOMWE SCCA NO. 10 OF 2009

The appellant contracted a Marriage with the respondent on 30th Aug. 2003 at
our Lady of Africa Mbuya Catholic Church. Prior to the wedding, they had
cohabited together and also produced a son Edison Rubarema. The applicant
and the respondent developed serious misunderstandings during the first year
of Marriage which culminated in the appellant chasing the respondent and the
son out of the couple’s residence in Kisaasi village. The respondent petitioned
for divorce on grounds of cruelty and adultery which had led to irretrievable
break down of Marriage. The appellants cross petitioned for divorce on grounds
of the respondent’s adultery, witch craft and irretrievable break down of
Marriage.
The appellant was dissatisfied with the H.C decision of sharing property equally
and appealed to the COA which dismissed the appeal and hence this appeal.
The first contention is that the learned Justices of Appeal held that “all property
solely acquired by the appellant became jointly owned property upon Marriage
to the respondent” and that this property had to be shared equally with the
respondent upon divorce.
Held;-1. There is no merit in the appellant’s contention challenging the half
share given to the wife in Kasangati land.
WHAT IS A FAMILY
According to Bromley’s Family Law, a family is a basic social unit constituted
atleast by two people whose relationship may fall in;-
a) Husband and wife
b) Two persons living together as if married
c) Parent living with children
d) Brothers, sisters and other relations.
There are two types of families i.e. nuclear including father, mother and
children and extended including uncles, aunts and grandparents.
MARRIAGE
Hyde V Hyde (1886) LRPD 130, a Marriage was defined as the voluntary
union for life of one man with one woman to the exclusion of all others.
A. 31 of the constitution regulates the right to marry and it provides that
“men and women of the age of 18 years and above have the right to
marry and to found a family”.
In Corbet V Corbet (1970) 2 ALL ER 33; two parties went through a
ceremony of Marriage and the petitioner knew the respondent was male at
birth and had undergone sex change. But three months later, the petitioner
sought an annulment. The judge held that the law recognizes Marriage only
between a man and a woman and it is a person’s biological sex that is the
determining factor. Court also held that ‘while sex is an essential
determinant of a relationship called Marriage. It is not the only essential
determinant of a relationship called Marriage, it is not the only essential
element, but however sex is a characteristic that makes sex
distinguished from other relations and so there was no Marriage.’
It is important to distinguish a formal Marriage from mere cohabitation.
Cohabitation is an arrangement where a man and a woman decide to live as
husband and wife and not to go through any form of Marriage.
These arrangements are not recognized in Uganda as a Marriage irrespective of
the length of time the couple may have stayed together or the number of
children.
TYPES OF MARRIAGE IN UGANDA
There are five types of Marriages recognized by the law in Uganda and these
include;
(i) Customary Marriages recognized by the customary Marriages
registration Act cap 248.
(ii) Civil Marriages, recognized by the Marriage Act Cap 251.
(iii) Church Marriages recognized by the Marriage act cap 251 and the
divorce act cap 249.
(iv) Hindu Marriages recognized by the Hindu Marriage and Divorce Act
Cap 250.
(v) Mohammedan Marriages recognized by the Marriage and Divorce of
Mohammedans Act Cap 252 and Sharia Law.
CUSTOMARY MARRIAGES
The law applicable is
 The 1995 Constitution of the Republic of Uganda.
 The Judicature Act cap 13
 The customary Marriages Registration Act CAP 248
 The Customary Marriages (Registration) (Prescription of Forms and Fees)
Regulations
 Customary Law and Case Law.
A customary Marriage is defined in s.1 (b) of the Act as a Marriage celebrated
in accordance with the rites of an African Community and one of the parties to
which is a member of that community. They are potentially polygamous. They
are governed by the CMRA.
UGANDA V KATO 3 ORS (1976) H.C.B 241
The accused were jointly charged/ indicted for murder C/S 183 of the penal
code act. They were alleged to have murdered one Yozefu Kahwa on Dec 22,
1974 in Buhiiga forest in South Bunyoro District PWC was the wife of the
accused and some of the witnesses for the prosecution confirmed so she had
apparently lived with the accused as husband and wife for 3 years and they
had children together. They had not been named in church and the accused
had not paid dowry to her parents nor did they give their consent to the
Marriage. The issue was whether the accused and PW6 were “husband and
wife” within the meaning of s 119 of the Evidence Act so as not to make PW6 a
compellable witness for the prosecution.
Held;-
1. Although the words “husband and wife” are defined in s.119(2) as
meaning respectively the husband and wife of a subsisting Marriage
recognized as such under any written or customary law, it’s not clear
what constitutes a Marriage recognized under customary law for
customary law is not where defined in the Evidence Act, TIA or
Judicature Act.
2. The test of determining what a Marriage is under customary law is
whether the union is treated as a Marriage by the laws or customs of the
nation, race or sect to which the parties belong.
3. “The Act refers to Marriage recognized under customary law and
this excludes customs or usage that have not matured into rules in
order for a union to be regarded as a Marriage under the Act,
parties must have satisfied all the formal and essential
requirements prescribed for the validity of a Marriage under
customary law. In other words, the parties have gone through the
ceremony of Marriage required under their community and the
Marriage ought not to be void or voidable. But it does not matter
whether that Marriage has been registered or not under the
customary Marriages (Registration) Decree (1973, No. 16/73).”
1. It must be noted that the customs should not be contrary to the
principles of natural justice and morality. S.14 of the Judicature Act
A.33 (6) of the constitution prohibits laws, cultures and customs or
traditions that are against the welfare or interest of women or that
undermine their rights. This was fortified by the case of Kimani V
Gikanga (1965) E.A 735, where court was of the view that
repugnant customs should not be upheld in society.
Bruno Kiwuwa V Ivan Sserunkuma Remy Kasule J; a custom is
repugnant if it causes aversion and disgust to the principles of good
behavior and as to what is reasonable and fair. When a custom is
contrary to the rules of human nature ad is contrary to what is morally
right and acceptable, then such a custom violates natural justice, equity
and good conscience.
REQUIREMENNTS OF CUSTOMARY MARRIAGE

2. The Marriage should be conducted according to rights of an African
community as enunciated in the case of Uganda V Kato and others
(1976) HCB 204.
3. Where bride price has to be paid, it must be paid in full. This depends on
the custom, in Uganda V Eduku (1975) HCB 359 court held that since
bride had not been paid full, there was no subsisting Marriage between
the complainant and the adulterous woman for they were not considered
as husband and wife. In Mifumi (U) Ltd and 12 Ors v AG
Constitutional Appeal No. 2 of 2014
Court held that
a) Bride price and dowry refer to payments made at the time of marriage in
many cultures.
b) It is usually paid by the groom or the groom’s family to that of the bride.
c) Any payment of bride price must be conditioned upon voluntary consent
of the two parties to the marriage and not a third party.
4. Age of the wife is considered to be 16 years and the husband is 18
years. S. 11 (a) and (b) of the Customary Marriages Registration Act).
However, this must be aligned with the constitution, under A. 31 that
provides for 18 years as the age of capacity marry.
5. There should not be any prohibited degrees of kinship under s. 1 (D) of
the CMRA. These are provided under the schedule 2 to the CMRA Bruno
Kiwuwa V Ivan Sserunkuma Remy Kasule J; held that the intended
marriage was illegal, null and void because of the Baganda custom, both
parties to it being of the same clan which is prohibited by the Kiganda
custom.
6. Consent of the parents is a must and it must be got the consent of the
girl was not always sought.
7. The parties should not have previously contracted a monogamous
Marriage; the customary Marriages are potentially polygamous (s.4 of
the CMRA).
Celebration: they are celebrated any place in Uganda.
Registration
S.5 of the CMRA enjoins the Registrar of the District to keep a customary
Marriage. Register Book in the prescribed form.
Under s.6 (1) of the Act, the parties to a customary Marriage may in not later
than 6 months after the date of completion of the ceremony with at least two
witnesses, attend to the office of the registrar with details to register the
ceremony.
The Marriage should be registered as a customary Marriage (s.6 (2). The
registrar should enter the details in the customary Marriage register book
which shall be signed by the parties and their witnesses.
The two witnesses may be parents, brother, sister, clan heads or other persons
of standing (s.6 (4) under s.1 upon payment of prescribed fee, the registrar
shall issue a certificate in the prescribed form, which shall be conclusive
evidence of Marriage.
However, non-registration of customary Marriage does not invalidate the
Marriage. (Nassanga V Nanyonga).
John Tom Kintu Muwanga v Myelhus Gafabusa Kintu Divorce Appeal No.
135 of 1997
“Non-registration does not invalidate a customary marriage. Therefore
failure by the parties to register their marriage should not prevent them
from pursuing remedies based on their marriage if it’s proven to have
taken place.” It is now settled law that in all matrimonial causes, marriage
must be proved. If it’s customary and there is no marriage certificate, by
evidence that according to the customs and the laws of a given tribe, a
marriage exists in Uganda. It can be proved by cohabitation of the parties
which occurs after proof of the ceremony.
Please compare with Mastula Mugisha v E Kakuru & Ors HCCS No. 161 of
1993; court held that a non-registered marriage can’t found a cause of action
because it’s incapable of proof itself.
DIVORCE UNDER CUSTOMARY LAW
The grounds of divorce under customary law depend on communities and not
the Divorce Act, Cap 249. In Kintu V Kintu Divorce Application No. 135 of
1997, court “stated that when parties make a choice and opt to be
governed by customary law in their Marriages, they are presumed to
have made an undertaking that before, during and after their Marriages,
they will be governed by the same rules, there is need to prove the
grounds that satisfy divorce under Customary Law.”
The grounds include; - failure to pay bride price, adultery of woman,
pregnancy at the time of Marriage, issues of witch craft.
Bisangu V Achiku (1978) HCB 282, one must return the dowry/bride price if
one wants to divorce under customary law.
Mifumi (U) Ltd Anor V A.G 2 Anor constitution Appeal No. 02/2014
husbands can no longer demand that bride price be returned in the event of
dissolution of a customary marriage. It is contrary to the constitution regarding
equality in contracting during marriage and its dissolution, it violates A.31 (1)
(b) and 33(1). It should be prohibited under A.32 (1). The customs of refund
of bride price devalues the worth, respect and dignity of a woman. The practice
completely ignores the contribution of the woman to the marriage up to the
time of its break down, it falls under A. 32 (2) of the constitution.
MOHAMMEDAN MARRIAGES/ISLAMIC MARRIAGES
Law Applicable; Constitution of Uganda, 1995 Marriage and divorce of
Mohammedans Act, Cap 252, Sharia Law (Quran) and case law.
S.2 of the Act bases this Marriage between all persons professing the
Mohammedan religion and all divorce from such Marriages celebrated or give in
accordance to the rites and observance of Mohammedan religion, customs and
usage.
Marriage in Islam is practically a civil contract (Nikkah), the bride does not take
active part in ceremony herself she is represented there by a member of her
family, invariably her father or her brother or in the absence by some close
relatives who give her away. The Khadis or Imams who conduct such
Marriages have to refer to main source of Sharia for proper guidance.
In this ceremony the bride representative offers her to the bride groom as his
wife, the former agree to take her as such and to pay the “mahr” or “dower”.
The Khadi then signs the register and his signature is attested by two reliable
man among others who have witnessed the ceremony. The two pillars of offer
and acceptance by the two principles or their proxies are essential Quran 24:2.
Preliminaries to Islamic Marriages

1. Offer and acceptance by the parties
2. Capacity i.e reached the age of at least 18 years, Quran 4:6.
3. Parties must be of sound mind.
4. The parties must not be within the prohibited degree. Quran 4:23
“prohibited to you are your mothers fathers, daughters, sons, mother’s
sons, sisters, father’s sisters……”.
5. Payment of Mahar i.e sum of money or property to the wife
inconsideration of accepting to marry the man. It becomes the property
of the wife Quran 4:4.
6. Witnesses: Quran 2:282, 2 male witnesses or one male and 2 female.
One male witness is necessary with 2 female for the evidence t be valid.
It will not be valid if there is no male even though there are 10 or 12
women.
7. Consent of wali (guardian) performs the function of the offer on behalf
of the female Quran 4:25.
8. Should be Muslims; 2:420, people of the book (Ahli Kitab) Quran 5:5,
Quran 2:22, Quran 60:10.
9. Should be of different sexes Quran 7:80.
10. Consent of both man and woman and they should expressly agree.
It should be as indicted in Quran 2: 282 in writing.
Polygamy; Quran 4:3 up to four wires, the majority of Muslim jurists are in
agreement that when a man fears that he will be unable to be just, polygamy
is prohibited for him Quran 4:129.
DIVORCE UNDER MUHAMMEDAN

The general ground of divorce in the Quran is the hopeless failure duties and to
consort with each other in kindness peace and compassion.
Marriage under Islamic law may be dissolved in ways;-
a) By the husband through Talaq
b) Mutual agreement of the spouses (khul)
c) By judicial order of separation (fask)
d) Lian-divorce by oath.
Talaq is pronounced by an adult of sound mind, married person to his wife
during the marital life three times for 2 times, the husband has the right to
revoke the pronouncement and can continue the usual marital relationship.
Quran 2:229.
S.5 registered within one month from the date of Marriage. Application should
be by the husband and if he dies, then the widow can apply or guardian.
S. 9 give parties’ copies of certificates s.16, non-registration doesn’t render the
Marriage
AYOOB V AYOOB (1968) E.A 72
The petitioner, a Sunni Muslim domiciled in Kenya on 10/08/1951, married the
respondent then a shite Muslim domiciled in Kenya in the Marriage Registrar’s
office. There is one child of the Marriage, a son born on 22/06/1952.
Subsequent to this the parties went through a Marriage according to the
Mohammedan law, the law, the respondent having adopted by then the
doctrines of the Sunni set on 2/02/1967, the petitioner pronounced in writing
an irrevocable divorce by “talak” purporting to divorce the respondent. Under
the Mohammedan Marriage act, such a divorce would be a valid divorce.
It was held;-
1. That a Mohammedan Marriage is not a monogamous Marriage, it is a
Marriage capable of being dissolved at the will of the husband by a
“talak” divorce without the intervention of any court and without the
necessity of any grounds existing to justify the divorce.
2. The effect of a Marriage under the Marriage act is quite different from a
Marriage under the Marriage based on the Mohammedan law.
3. A valid Marriage effected under the Marriage act can only be dissolved in
Kenya under the law of Kenya by a judgment or decree passed under the
matrimonial causes act and the question of religion is wholly immaterial
in such causes.
4. Divorce by talak is not good divorce as regards such a Marriage.
ZAINABU V MOHAMEDI (1973) E.A 280
The appellant and the respondent were Sunni Muslims of the Shafii sect. the
appellant applied to the court for an order and constructive desertion. On
appeal it was held;-
1. Shaffi law does not recognize constructive desertion.
2. A court must inquire into the matrimonial offence alleged and if it is
proved must dissolve the Marriage itself.
3. The appellant was guilty of desertion, by deserting her husband and
refusing to return to him, the appellant had committed an offence
(matrimonial offence of disobedience). She is therefore “nashiza” the
respondent may sue for restitution of conjugal rights or he may leave her
where she has chosen to live. But all the times she remains his wife and
she cannot remarry. Being “nashiza” she is not entitled to any
maintenance until she ceases to disobey her husband’s lawful order that
she should return to the matrimonial home.
4. The court cannot be ordered to pronounce the talak on the appellant
and it was incompetent and illegal. The trail court should have inquired
into the alleged matrimonial offence and therefore dissolved the Marriage
by faskh if satisfied that the offence was proved.
HINDU MARRIAGES
Law Applicable, 1995 constitution of Uganda, the Hindu Marriage and Divorce
Act, Cap 250, the Divorce Act, Cap 249, case law.
S.1 of the Act defined a Marriage solemnized under the provisions of this Act
between persons of Hindu father.
Preliminaries of Hindu Marriage

Stipulated under s.2 of the Act, these are;-
1. Neither party has a spouse leaving at the time of Marriage.
2. Parties are of sound mind
3. Bride groom has attained 18 years, bride has attained 16 years if not
then consent of guardian must be given.
4. Parties are not within the prohibited degrees. These are provided for
under s.2 (2) of the Act.
Celebration of the Marriage

This is provided for under s.4 of the Act. The Marriage may be solemnized in
accordance with the customary rights and ceremonies of either party thereto.
Registration
S. 5 of the Act requires the Minister to make rules as to registration of such
Marriages s. 8 allows for the application of the divorce act, cap 249 for relation
to divorce under these Marriages.
S.98 of the CPA Cap 71 provides that nothing in the Act shall be deemed to
limit or otherwise affect the inherent power of the court to make such orders
as may be necessary for the ends of justice.
CIVIL AND CHURCH MARRIAGE

It was defined by Lord Peasance in the case of Hyde V Hyde, I am convinced
that Marriage as understand by Christian law may be defined as the voluntary
Union for life of one man and one woman to the exclusion of others. They are
contracted under the Marriage Act Cap 251.
This definition sets out the elements of the civil and church Marriage; these
are;
1. Voluntary
Parajoic V Parajoic (1959) ALL ER.
2. It is for life except for divorce and death
3. It is monogamous.
Nachimson V Nachimson
4. It is heterosexual.
Corbet V Corbet (1970) 2 ALL ER 33; two parties went through a
ceremony of Marriage and the petitioner knew the respondent was male at
birth and had undergone sex change. But three months later, the petitioner
sought an annulment. The judge held that the law recognizes Marriage only
between a man and a woman and it is a person’s biological sex that is the
determining factor. Court also held that ‘while sex is an essential
determinant of a relationship called Marriage. It is not the only
essential determinant of a relationship called Marriage, it is not the
only essential element, but however sex is a characteristic that makes
sex distinguished from other relations and so there was no Marriage.’
Preliminaries of the Church and civil Marriage

These are spelt out in s.10 of the requirement of parties to an intended
Marriage.
a) Residence
One of the parties must have resided in the district where the Marriage is to be
celebrated for at least 15 days. (s. 10 (a).
b) Age
Each of the parties must be above 21 years of age and if below consent of the
parents required (s.10 (b), this should however be brought in conformity with
the 1995 constitution of Uganda which provides for 18 years.
c) Parties should not be within the prohibited degrees of Marriage. (s. 10)
d) None of the parties to the intended Marriage should be married either
under customary law or the Marriage act or have any other form of
Marriage (s.36).
Steven Bujara V Polly Bujara civil Appeal No.8 of 2002 validity of a
customary marriage is not affected by any subsequent monogamous
marriage or Muslim marriage but subsequent marriage shall be void.
Kristina d/o Hamisi V Oman Ntalala (1963) E.A 463
The parties were married under Christian law subsequently, the husband
changed his faith and married another woman under Islamic law. The appellant
petitioned for divorce from the respondent of the ground of adultery with his
second wife. The 1st respondent argued that the second respondent was his
wife under Islamic law. The appellant had been married to the respondent by a
Christian ceremony and had also resided with the respondent for some time
after his second Marriage, but had for about a year been living apart from him.
Held:-1. That the adultery had been condoned and accordingly dismissed the
petition under s. 10 (2) of the matrimonial causes ordinance.
2. “That the respondent having contracted a Christian Marriage was
incapable of, while that Marriage is subsisting marrying any other
person. This position could not be altered by any change of religion by
the respondent alone.”
e) Notice S6 of the Act publish notice and affix it on the outer door or the
……………..the parties can get married.
The Marriage should take place after 21 days but within 3 months from the
date of notice.
Procedural requirements
1. Licensed place, the Marriage must be celebrated in a licensed place, i.e
the office of the registrar of Marriages or a licensed place of worship. The
registrar should be a recognized one and also a recognized minister of
the church (s.20 of the Act).
R V Registrar General exparte Segordal (1970)3 ALL ER 886, CA,
members of the “Church of Scientology” sought judicial review of the
Registrar’s refusal of register their chapel as a place of religious worship. The
trail judge and the COA rejected the application; a “place of worship” could
take many forms, but must have as its main function the worship of a Supreme
Being scientology, a purely humanist philosophy could not qualify.
2. Open doors: s.20 and 26 of the Marriage Act.
3. Specified hours: s.26 of the Marriage Act; registrar’s office should be
celebrated from the hours of 10:00 am and to 4:00pm.
4. Witnesses at least witnesses s.26 ad 20 (2) of the Marriage Act.
5. Registration of the Marriage: s. 4, 25 and 27 of the Act, the parties
should give the parties a certificate of Marriage after solemnizing the
Marriage.
S.31-33 of the Act, s.31 enjoins the registrar to keep a Marriage register book
in which to register every certificate of Marriage s.33 every certificate of
Marriage so filed is conducive evidence of Marriage; s.46, it is an offence for a
party to fail or willfully neglect to transmit certificate of Marriage to the
registrar.
Steven Bajara V Poll Bajara civil Appeal No. 81 of 2002, validity of a
customary Marriage is not affected by ant subsequent or monogamous
Marriage or Muslim Marriage but the subsequent Marriage shall be.
LEGAL EFFECTS OF MARRIAGE
1. The parties acquire the status of being married, the person who gets
married under the Marriage Act becomes incapable of contracting
another Marriage during the subsistence of the Marriage, and if one has
sexual intercourse outside the Marriage one commits adultery Hyde V
Hyde.
2. The legal fiction of one person; at common law the personality of the
husband and wife are fused into one.
3. The right of the wife to use the husband’s name, this is not obligatory,
Fendall V Goldsmith (1877) L.R 263. In this case the parties obtained
a decree absolute and then remained. The woman used the husband’s
names for the publication. She later wanted to use this for the
nullification of the Marriage, the case made a composition that while
Marriage offered to a wife the right to her husband’s name, and she is
under no duty to do so. Marriage confers a name upon a woman which
becomes her actual name and that she can only obtain another by
reputation.
A woman may also retain her former husband’s name after termination of the
Marriage and the husband has a right to restrain her from using it, unless for
fraudulent purposes.
Cowley V Cowley (1900) p 305, court held that a man has no such property
in his name as to entitle him to a woman not his wife claiming to be such
unless does so maliciously.
4. The wife acquires the domicile of her husband Joy Kiggundu V Horace
Awori divorce cause No 8 of 1998 court held that a wife cannot
acquire domicile away from that of her husband. Therefore since Joy’s
husband was domiciled in Kenya so was she and therefore she could not
acquire judgment in her favor because courts in Uganda did not have
jurisdiction.
5. Presumption of legitimacy Kajubi V Kabali 1954 EACA 45 although
there was no valid Marriage, the children were entitled to entitled to
inherit from their deceased father. The presumption can be rebutted by
overwhelming evidence to the contrary in the following circumstances.
a) Where the husband was temporarily or permanently impotent at the
time of the conception.
b) Absence of the husband for a reasonably long time.
Preston Jones V Preston Jones (1956), ALL ER 124, the husband put it
clearly that a child was born 360 days after a particular coitus was not his
legitimate child and his appeal was allowed.
6. The right to consortium or conjugal rights, this refers to living together
or a bundle of rights which arises or accrues to the husband or wife and
all other incidence that flow from the relationship.
Consortium embraces the right to companionship, love, comfort, mutual
services, sexual intercourse, affections etc.
R V Jackson (1891), 671 the wife had gone to live with her relations while
her husband was absent in New Zealand upon his return she refused to leave
with him again and failed to comply with a decree of restitution of conjugal
rights. Consequently he arranged with two men that they should seize her as
she came out of church one Sunday afternoon and she was then put in a
Marriage and taken to her husband’s residence where she was not allowed to
leave.
Court of appeal said that “it was no defense that the husband as merely
confining her to enforce his right to her consortium.”
Teopista Mugenzi V Pascal Mugenzi court stated that as a consequence of
Marriage, the wife and husband are entitled to a right of consortium which
includes a right to cohabit together, share all the facilities and rights and
obligations. Consortium connotes as far as possible sharing a common home
and a common basic life. Besides being one person, consortium involves
sharing a common law. Court stated that as a consequence of Marriage, the
wife and husband are entitled to a right of consortium which includes a right to
cohabit together, share all the facilities and rights and obligations. Consortium
connotes as far as possible sharing a common home and a common basic life.
Besides being one person, consortium involves sharing a common home.
Newton V Hardy (1993) 1 49 165, court held that a married woman has a
right to consortium from the husband and can recover damages from anyone
who violates this.
S. 20 of the Divorce Act envisages restitution of conjugal rights, it provides
that if the husband or wife without reasonable excuse withdraws from the
society of the other, the aggrieved party may petition the court for restitution
of conjugal rights.
If there is a reasonable excuse as to why a party has left, the court can order
separation. (R V Jackson) R V Reid (1973) QB 299: court held that a
husband who steals or carries away his wife against her will commits the
offence of kidnapping.
7. Right to live together, it is not mandatory that they should live together
at all times, e.g. health, work, studies etc., what is important is the
continued intention of the parties to share a common matrimonial home
and share consortium.
Where the party unreasonably leaves the matrimonial home, such a person
may be held guilty of desertion and this is a ground of judicial separation or
divorce.
8. The right to marital confidence, this is to protect spouses from disclosing
matters which came to their knowledge through their disclosing matters
which came to their knowledge through their marital relations.
S. 120 of the evidence Act
Uganda V Kato 5 Ors.
9. Right to maintenance, this is established under common law. It includes
the right to a house and to be provided with necessaries of life. The
husband has a duty to provide his wife with matrimonial home and the
wife has no right to insist on any particular home.
Stewart V Stewart (1917) 2 ALL ER, the subject matter of the dispute was a
flat owned by a husband who filed a petition of divorce and before proceedings
were concluded, the husband applied for an eviction order against the wife to
cave the flat and go to accommodation provided elsewhere. Court granted this
application holding that the right of one spouse in regard to living in the
matrimonial home depends on circumstances of the case.
In this case, where at least the wife was at fault it would be unreasonable to
insist on the wife remaining in cohabitation with the husband. As 39 of the
land Act, S.33A of the Act as amended 29.
10. Matrimonial property, at common law, it is presumed that all
property in the matrimonial home belonged to the husband. Lailai
Ghinumaouze V the Queen (1956) 23 EACA 609. However it can be
rebutted by evidence proving otherwise.
a) Spouse making substantial improvements to another spouse’s property.
It will depend on the substantiality of the improvement that has been
made.
 Gissing V Gissing (1970) 2 ALL ER 780, the matrimonial home
was brought and put in the names of the husband. The wife paid
for the furniture and household expenses. The issue was whether
the wife was entitled to beneficial interest in the matrimonial
home.
It was held that there was no common intention that the wife should have any
such interest in the matrimonial home and there was no express expense
agreement to that effect and there was no common intention that the wife
could acquire an interest to the property.
 Edith Nakiyingi V Meichizedeki (1978) HCB 107, the court held
that a husband has a duty to provide his wife with a home and if
he wanted to evict her he must find alternative accommodation
that since he had terminated the Marriage in the eyes of equity,
he could not chase the wife from the house to which she had
substantially contributed.
Kisitu V Kisitu CA 26/1985, it was held that a wife does contribute to the
family in a thousand other ways including child rearing, looking after the
family. It cannot therefore be said that only monetary contribution should be
taken into account. Any such limitation would clearly work an injustice to a
large number of women in our country.
b) Issue on household property and gifts between spouses.
c) Bank accounts
d) Savings from household expenses
e) Wedding gifts
f)
VOID AND VOIDABLE MARRIAGES
The distinction between a void and voidable Marriage was stated by Lord
Green in De Renoville V De Renoville (1948), ALL ER 56, CA where he
stated that a void Marriage is one that every court regards in which the
existence of the Marriage in issue has never taken place and can be so treated
by every party to it without the necessity of any decree annulling it. A voidable
Marriage is one which will be regarded as a subsisting Marriage until a
competent jurisdiction announces a decree annulling it.
A voidable Marriage can be annulled at the instance of the innocent party, but
if either party dies before a decree of nullity is granted a voidable Marriage
must e treated as a valid one for all purposes and at all times.
The circumstances under which a Marriage is said to be void or voidable are
spelt out in the provisions of the law i.e 1995 constitution of Uganda, A. 31,
s.34 of the Marriage Act, s.11 of the Divorce Act and s. 12, s.13 of the
customary Marriage Registration Act.
VOID MARRIAGES
 S.34 (1), a Marriage will be void or invalid on grounds of kindred
or affinity or whether either of the parties was married all the time
of the Marriage.
 S. 34 (2) (a) if the celebration is in a place not licensed as a place
of worship or registrar’s office except where they on given
permission by the Minister.
c) Where Marriage is celebrated under false names.
d) Without having a registrar’s certificate of notice or the Minister’s license.
e) Celebrated by a person not a recognized minister or a registrar of
Marriage.
A V B, the Marriage alleged to have been held was purported to be performed
by the resident magistrate and acting deputy registrar but unfortunate they
were not ordained.
S.12 of the divorce act lays down some grounds.
a) That the parties are within the prohibited degrees of affinity.
b) That either party was a lunatic or idiot at the time of Marriage.
c) That the former husband or wife was then living at the time of the
Marriage and the Marriage was the in force.
d) The consent of either party to the Marriage was obtained by force or
fraud in any case in which the Marriage might be annulled on this ground
by the law of England.
S.13 of the CMRA.
a) If the female party has not attained the age of 16 years
b) The male party has not attained the age of 18 years
c) One of the parties is of unsound mind
d) The parties to the Marriage are within the prohibited degrees of affinity.
e) One of the parties has contracted a monogamous Marriage which is still
subsisting.
VOIDABLE MARRIAGES
1. Permanent impotence
2. Mistake, misrepresentation and fraudulent intent
CVC (1942) NZLR 356, Callan J, A woman met a man who claimed to be
Michael Miller, a well-known boxer. She married him after a short courtship,
but subsequently found he was not Miller at all and sought an annulment. Her
petition was dismissed, the judge said that P was mistaken as to R’s attributes
rather than his identity. She intended to marry the respondent (R) standing
beside her and was mistaken only as to his name and profession.
Valier V Valier (1925) 133, LT 830, Lord Nemvale A; An Italian plaintiff
working in England met a woman R who took a fancy to him. She persuaded
him to go through a register office wedding. P answered some simple
questions in English, signed his name and gave R a ring which had just been
given to him. Only afterwards did P learn that this was a Marriage ceremony,
and he sought an annulment. The judge granted his petition.
3. Fear and duress
4. Lack of consent
Approbation of a voidable Marriage
This occurs in situations where one party who is fully aware of the defects of
the Marriage which will make the Marriage voidable, never the less conducts
himself or herself as if the Marriage was valid.
The innocent party will be estopped from revoking the Marriage and may lose
his or her rights to nullify the Marriage.
It only occurs in situations of voidable Marriages.
NULLIFICATION
S.11 of the Divorce Act, a husband or a wife may present a petition praying
that the Marriage be declined null and void.
CAVEATS
These are entered against an impending Marriage by inserting in the Register
book the word “forbidden” and should be done before 30 days before notice
expires.
S. 3 of the Marriage Act provides for the entering of a caveat by any person
whose consent I required under the Act or who may know of any cause why
the Marriage should not take place.
Under S.14, a caveat entered against the issue of certificate, the registrar
should refer the matter to the High Court, which shall hear and determine the
case in a summary way and the decision of the High Court is final.
S. 15 provides for removal of a caveat.
DOMICILE
In Whicker V Humes (194-50) ALL ER 450, domicile was held to mean
habitation in a place with the intention of remaining there forever until some
circumstances should come to alter the intention.
- Domicile by choice
- Domicile by marriage (dependency)
- Domicile by birth
Special License- S.12 of the Marriage Act (form D)
Minister can grant you a license to have the marriage in a short period without
the required period of notice
Cannon Law governs church marriages
Church marriages
- S.20 (2) of the Marriage Act
- S.22 Minister can give you a license to celebrate the Marriage anywhere.
- S.28, should conform to how it is celebrated in church or at the registrar
(8:00-6:00pm and 10:00-4:00 pm respectively).
- S.29 customary marriage can convert our marriage to a monogamous
marriage
- S.33 certificate is conclusive evidence
- S.34 void marriages
- Offences and penalties s. 42-50.
Fees
Marriage Act (Amendment of 2nd schedule) order, 2005
R. 2 (1)- filing every notice and entering it- 10,000/=
Both parties are citizens
i) On registration of marriage- 25,000/=
ii) Marriage in registrar’s office- 50,000/=
iii) Special license- 50,000/=
WORKSHOP 1 (MARRIAGE)
BRIEF FACTS
Khalid Mukasa, a business man in Masindi and Kampala got married to Rehema
Katigo in accordance with the Marriage and Divorce of Mohammadan Act at the
home of Rehema’s parents at 8:00pm. He rented a house for Rehema at
Masindi and continuous to ply between Kampala and Masindi to see Rehema
(Dec, 2nd 2010).
In March 2012, Khalid met Aisha Musisi and got married to her at Kibuli
Mosque on 5th Sept,2012. Aisha did not inform her parents and the ceremony
took place in the presence of the Immam and two of their friends. They lived at
Bukasa.
On 1st October 2012, Jayson Katimbo came to their home claiming that Aisha
was his wife that he had paid Aisha’s parents 1,000,000/= but Aisha stated
that they had been married for 3 months and separated on the advice of the
elders from both families due to Jayson’s periodic impotence.
Khalid and Aisha underwent a civil marriage, Aisha caused notice to appear in
Etop Newspaper. Rehema rang the registrars protecting against the marriage
but the registrar ignored her call ad conducted the marriage on 4th Dec, 2013.
Khalid met Joyce at café Javas, presented himself as Kenneth Mukasa of the
Catholic faith and Joyce presented herself as a born again and they both stated
that they were single, they got married on 20th April 2014 by a Pastor at Life
Ark Ministry who read the banns three times and the wedding took place in two
weeks.
The three women have approached my firm M/s Kamuli and Co Advocates for
legal advice and possible action.
ISSUES
1. What is the marital status of the three women?.
2. What additional information would I need from each of the women to
advise them?
3. What action can Khalid take to remain married to Rehema Katigo only?
4. What are the relevant documents, procedure and forum?
LAW APPLICABLE
1. The 1995 Constitution of Uganda
2. The Marriage Act, Cap 251
3. The Divorce Act, Cap 49
4. The customary Marriages Registration Act, Cap 248
5. The Marriage and Divorce of Mohammedans Act, Cap 252
6. The Uganda Registration services Bureau Act
7. The Judicature Act, Cap 13.
RESOLUTION OF ISSUES
ISSUE ONE. VALIDITY OF THE MARRIAGES
a) Rehema Katigo
S.1 of the Marriage and Divorce Act of Mohammedans Act, Cap 252 outlaws
the use of the Marriage Act and the Marriage of Africans Act in Marriages
between persons both of whom profess the Mohammedan Religion.
S.2 of the Act provides that all marriages between persons professing the
Mohammedan religion shall be celebrated according to the rites and
observances of the Mohammedan religion.
In Islamic marriages, the place where the marriage takes place and the time is
not of essence, but rather there are conditions precedent to the fulfillment of
the marriage.
- Consent of the parties
- Consent of the wali, Quran 4:25.
Husin V Saayah 2 Anor (1980) JH, 183 court held that without the consent of
the Wali, the marriage is a nullity.
- Witnesses Quran 2:282 2 male or one male and 2 females
- Mahr 4:4
- Publicity of the marriage 4:24
In our facts, Khalid and Rehema celebrated their wedding at Rehema’s parents
home at 8:00pm and the conditions precedent were all present, therefore the
marriage between Khalid and Rehema is valid.
b) Aisha Musisi
S.1 (b) of the customary marriages (Registration) Act Cap 248, a customary
marriage is defined to mean a marriage celebrated according to the rites of an
African community. These marriages are potentially polygamous.
Civil marriages are provided for under S. 26 of the Marriage Act, Cap 251. This
section is to the effect that parties may contract a marriage before the registrar
in the presence of two witnesses in his/her office with open doors between the
hours of 10:00 am and 4:00 pm.
Aisha’s marriage with Khalid an Islamic marriage should e in the presence of
witnesses, that is two males or one male and two omen, in the presence of an
Immam and consent of the wali (guardian) is essential Quran 4:25.
In our facts Aisha and Khalid got married without informing the parents of the
girl i.e Aisha and also there were two friends, we are not sure whether these
were males or females. Therefore the marriage is invalid.
Aisha and Jayson’s;
S.1 (b) of the customary marriages (Registration) Act cap 248 Bruno Kiwuwa V
Sserunkuma Ivan and Juliet Nmazzi HCCS No. 82 of 2006, a custom is a
practice that has been followed in a particular locality that it is to be accepted
part of te law of that locality.
In our facts, Jayson had paid shs 1,000,000/= to Aisha’s father, Aisha states
that the marriage lasted only three months because of Jayson’s periodic
impotence and he would not buy food or other necessaries of life. They had
consulted the elders from both families who advised them to go separate ways.
- Bride price has to be pais in full; Uganda V Eduku (1975) HCB 359, that
since bride price had not been paid in full, there was no subsisting
marriage.
- Consent of the parents
The marriage was therefore valid but after the consultations of the wife, Aisha
with the elders of the families, the marriage could be believed to have been
dissolved.
Uganda V Kato and 3 Ors
Kintu V Kintu, Divorce cause Bo. 135/1998, court stated that where parties
make a choice and opt to be governed by customary law in their marriages,
they are presumed to have made an undertaking that before, during and after
their marriage, they will be governed by the same rulers.
Khalid Mukasa, being a Muslim has a right to marry a second wife Quran 4:3.
The Sharia outlines different situations where parties took capacity to contract
marriage.
A woman who is already married is not allowed to marry again when the
earlier marriage is still subsisting.
The woman should not be within the period of Iddah (Quran 2:228).
- Consent of 2 witnesses both male
- Consent of the parents has to be obtained 4:25
Ockbar V Ockbar (1957) E.A 675, an injunction would be granted to the
father whose consent had not been given prior to the daughter’s marriage
under Mohammedan religion.
S.13 of the CMRA provides that contracting marriage that is a monogamous
marriage or a Muslim marriage with another person while the customary
marriage is still subsisting, the validity of the customary shall not be affected
by the monogamous or Muslim marriage but they shall be void.
Aisha’s civil marriage with Khalid before the Registrar of marriages.
S.26 of the Marriage Act Cap 251 provides that a civil marriage is contracted
before the Registrar in his office before 10:00am and 4:00pm and in the
presence of 2 witnesses.
S.1 of the marriage and Divorce of Mohammedan’s Act Cap 252 outlaws the
use of the Marriage act for persons professing the Mohammedan religion.
Therefore Kahlid and Aisha cannot contract a marriage under the Marriage Act.
Ayoob V Ayoob (1968) E.A 72, it was held that the parties being duly
married under the marriage act, the second ceremony had no legal effect and
a marriage could only be dissolved by a decree of divorce.
Therefore, the civil marriage between Aisha Musisis and Khalid Mukasa had no
legal effect.
Kristina d/o Hamisi V Oman Ntalala.
S.13 of the marriage act provides for the entering of a caveat by any person
whose consent is required or who is protest a marriage by writing.
Rehema contracted the registrar by calling her using a telephone this was not
the proper way of lodging a caveat, therefore, this was not sufficient.
S.13 write in the marriage notice book the word “forbidden” opposite to the
entry of the notice with his/her name and place of abode and the grounds upon
by reason of which he or she claims to be forbid the issue of the certificate.
c) Joyce Kapali
S. 34 (2) (b) marriage act provides that a marriage under a false name or
names shall be null and void.
S. 43 of the marriage act creates on offence for any person who in any
certificate, license to be issued for the purposes of the marriage states any
material matter which is false.
S. 47 marriage act creates an offence for any person who personates any other
person in marriage or marries under a false name with intent to deceive e
other party to the marriage.
Adebei V Adebei Matrimonial Divorce cause No.2 of 1990, held that
fraudulent concealment of the true faith of the respondent was fraud by which
the consequent marriage would be declared null and void.
S.12 (e) Divorce Act provides that marriage will also be null and void where
consent was obtained through fraud.
In the instant case, Khalid presented himself as Kenneth Mukasa of the Catholic
faith and the marriage between the two is null and void because it was
contracted under the false names and he also concealed his true faith which
amounted to fraud.
ISSUE TWO ADDITIONAL INFORMATION REQUIRED FROM EACH OF THE

WOMEN.
Rehema Katigo
- Whether she has been married before to ascertain the validity of her
marriage to Khalid.
- Whether Khalid paid Mahr to her which is mandatory.
- Whether the parents consented, Quran 4:5
- Whether there were any witnesses as required by Sharia Law.
- The age of Rehema at the times of marriage
- Whether the marriage was registered, s.5 of the Act provides that the
marriage should be registered within one month from the date of
marriage.
S.17, failure to apply for registration is an offence whether Khalid informed her
before contracting another marriage.
Aisha Musisi
- Whether the customary marriage between her and Jayson was
registered.
- Whether the 1,000,000/= was the full amount of the bride price, Uganda
V John Eduku.
- Whether the marriage between Jayson and Aisha was dissolved by the
elders.
- Whether the 2 friends were male or female
- Whether Khalid paid Mahr.
- Whether Aisha waited for the period of Iddah of 3 months before
marrying Khalid.
- Inquire about the mandatory period of notice i.e 21 days (S. 9 of the
Marriage Act).
Joyce Kapali
- Whether she had previously celebrated any marriage recognized under
the laws of Uganda and if so whether that marriage was duly dissolved.
- Whether life Ark Ministry was licensed to celebrate marriages as required
by S.5 of the marriage act.
- Whether the marriage was duly registered as required by S.31 of the
marriage act.
- Whether Joyce was aware that Khalid (aka Kenneth) was already
married at the time they celebrated their marriage.
- Whether she wants to continue with the marriage to Khalid which would
amount to approbation of a voidable marriage.
- Did she take any diligent steps to find out the true identity of the alleged
husband.
- The time the marriage ceremony was performed
- Age.
ISSUE THREE, NULLIFICATION

(What action can Khalid take to remain married to Rehema Katigo only?)
I would petition court praying that Khalid’s marriage to Aisha and Joyce be
declared null and void under S.11 of the Divorce Act.
S.12 of the Divorce Act lays down the grounds for decree of nullity which in
relation to the facts include; the former wife of Khalid was living at the time of
marriage and such marriage was still in force and consent was obtained by
fraud.
S.18 of the Marriage and Divorce of Mohammedans Act empowers any
competent court to grant appropriate relief under Mohammedan law and high
court and any court to which jurisdiction is specially given shall have
jurisdiction for granting that relief.
S.30 of the Divorce Act, all proceedings shall be regulated by the CPA.
S.31 every petition shall state distinctly the nature of the case, the facts on
which the claim is based and shall be verified.
Joyce Kapali’s marriage is also null and void as it was obtained by fraud and
misrepresentation. S. 34 of the marriage Act.
To effect and protect the marriage to Rehema Katigo, the Mohammedan
marriage should be registered within one month from the date of the
celebration. Application should be by the husband.
The marriage and Divorce of Mohammedans (jurisdiction in matrimonial
causes) instrument S.1 252-3 in Rule 2 provides that jurisdiction in all
matrimonial causes under Mohammedan law where parties to the matrimonial
cause are Africans of Uganda is conferred upon chief Magistrates Grade I.
Aisha marriages, there was no consent of the wali therefore it was void and
can be nullified.
The civil marriage, subsisting with Rehema and because he is trying to contract
a monogamous marriage, it is void (S. 12 (!) (d) of the Divorce Act.
Sumaya Nabawanuka V Med Makumbi D.C No. 39 of 2011, the Qadi courts are
courts of competent jurisdiction. According to S.2 of the NDMA and 129 of the
constitution they are subordinate court.
You can go to both the high court and the Qadi courts procedure S.31 and
S.30.
Forum, Chief Magistrate’s court, s.3 of the Divorce Act.
High court- to nullify both marriages for Aisha s.13 if the judicature act and A.
139 of the constitution.
Because a certificate exists and in order to put notice to the public, you go to
court to make a declaration because it operates in rem (High Court).
ISSUE FOUR PETITION FOR NULLITY

THE REPUBLIC OF UGANDA
IN THE CHIEF MAGISTRATES COURT AT NABWERU
MATRIMONIAL CAUSE NO. 25 OF 2014
KHALID MUKASA…………………..PETITIONER
VERSUS
JOYCE KAPALI……………………….RESPONDENT
PETITION
(Under S. 34 (2) (b) of the marriage Act Cap 251)
THE HUMBLE PETITION OF MR. KHAID MUKASA C/O
Firm H2 and co Advocates, P.O. Box 7117 Kampala showeth as follows;
1. That the petitioner is an adult male Ugandan of sound mind resident at.
2. That the respondent is an adult female Ugandan presumed to be of
sound mind and the petitioner undertakes to effect service of court on
her.
3. That both the petitioner and the respondent are domiciled in Uganda
with a matrimonial home at.
4. That the petitioner was married to the respondent wide marriage Act,
Cap 251 at life Ark Ministry, Bwayiso on 20th April 214 (A photocopy of
the marriage certificate attached as Annexure ‘A’).
5. That such marriage was solemnized in accordance with the provision of
the marriage Act in force in Uganda.
6. That the said marriage was celebrated was celebrated under false
names.
7. That no marriage notice of the said marriage was given.
8. That this petition is not prosecuted in collusion or connivance with the
respondent or with and connected in any way with these proceedings nor
is the petitioner guilty of condonation.
9. That this cause of action arose in Bwayise within the jurisdiction of this
honorable court.
WHEREFRE the petitioner prays for;
a) That the said marriage between the petitioner and the respondent be
nullified.
b) That the parties pay their own costs
Dated at Kampala this 3rd day of November 2014
………………….
Petitioner
Or
Counsel for the Petitioner
Before me
…………………….
Commissioner for Oaths
Drawn and filed by:
M/S F1 and Co Advocates
P.O.BOX 7117,
Kampala
VERIFICATION
I certify that the statements above are true to the best of my knowledge and
belief.
………………………..
PETITONER
Before me
……………………………
CASES
SUMAYA NAMAWANUKA V MED MAKUMBI DIVRCE CAUSE NO.39 OF
2011. Justice Kainamura
The petitioner filed this petition seeking for a decree nisi dissolving the
marriage between the petitioner and the respondent, custody of the child,
maintenance of the child, alimony, share of the matrimonial property, costs
and any further order. The respondent in his reply refuted the allegations any
by way of P.O applied for the petition to be dismissed because it is resjudicata
since the matter before court had been finally determine by the Sharia court of
the Muslim Supreme Council Counsel for the respondent argued that the
matter is resjudicata because the issue is between the same parties and had
already been determined by the court with competent jurisdiction, a 129 (!)
(d) of the constitution. That it is the court envisaged under the marriage and
divorce of Mohammedans Act CAP 252.
Counsel for the petitioner urged that parliament has not yet operationalised A.
129 (!) (d) that requires parliament to establish Qadhi courts and that the High
Court has inherent powers to give remedies to all aggrieved parties before it.
It was held; Sharia court of the Muslim Supreme Council are operating within
the law and are competent courts to handle divorce cases and grant relief.
Therefore the matter was heard and determined by a competent court and an
attempt to resurrect the matter in this court would surely run foul of s.7 of the
CPA as it is resjudicata.
JULIUS CHAMA V SPECIOZA RWALINDA MBABAZI DIVORCE CAUSE
NO.25 OF 2011
The petitioner south orders of the court for dissolution of his marriage with
Specioza Rwalinda Mbabazi and he played for custody of the only child in the
marriage and costs of the petition. The position was based on the ground of
cruelty as set out in the petition.
Uganda Association of women lawyers and 5 Ors V A.G constitutions. Petition
No.2 of 2003 where the constitution court nullified section 4 (1), (2), 5, 22, 23,
24 and 2 of the Divorce Act Cap 249. The said provisions are of no legal
consequences and are no longer valid. This remains the position of the law
(Han Herman Kock V Victoria Kayeeba D.C Mo. 6 of 2001)
What courts have done to bridge the gap is to look at the totality of the facts
before it and determine whether the facts lead to the finding have the marriage
has inevitably broken down then divorce is granted (Gershom Masiko V
Florence Masiko CA No. 8 of 2011).
The courts held that since the acts of adultery desertion and cruelty have
according to the uncontroverted evidence of the cross petition and her witness
been established, the marriage between the petitioner and the respondent has
inevitably broken down and should be dissolved.
Absence of proof of existence of and ownership of the said properties fails the
issue as court has no property to distribute.
KANWERU V KANWERU (2003) 2 E.A 484
The appellant had filed a divorce petition in the High Court, seeking dissolution
of his marriage on ground of adultery committed with three persons. Evidence
was adduced that the medical records were produced and the resp, used not to
be at home at midnight when the app would call from abroad.
Held;- the standard of proof is set out in S.10 of the matrimonial causes act.
The requirement is that court must be satisfied that a matrimonial offense has
been proved.
That act does not refer to proof beyond reasonable doubt and it is proper to
put the burden of proof at the level of a feeling certain.
PETITION FOR NULLITY.
IN THE CHIEF MAGISTRATES COURT AT MAKIDYE
VERSUS
AISHA MUSISI……………………….RESPONDENT
PETITION
(Under s.1 and 12 of the Divorce Act, Cap 249, s.98 CPA).
THE HUMBLE PETITION OF Khalid Mukasa Showeth as follows;
1. That the petitioner is an adult male Uganda of sound mind resident at
Bukasa and his address for the purposes of this suit is M/S firm H2 and
Co. Advocates P.O.BOX 7117 Kampala.
2. That the respondent is a female adult Uganda presumed to be of sound
mind and the petitioner undertakes to effect service of court process on
her.
3. That the petitioner was married to the respondent ride a Muslim
marriage at Kibuli Mosque on 1st October 2012 solemnized in accordance
with the marriage and Divorce of Mohammedans Act, Cap 252 in
Uganda.
4. That the petitioner and respondent are domiciled in Uganda with a
matrimonial home at Bukasa.
5. That prior to this marriage the respondent was married to one Jayson
Katimbo who had paid shs 1,000,000 to her father thus it was a valid
and subsisting marriage and therefore invalidated her subsequent
marriage to the petitioners.
6. That this petition is not prosecuted in collusion or connivance with the
respondent or with and connected in any way with these proceedings nor
is the petitioner guilty of condonation.
7. That notice to institute legal action was communicated to the
respondent.
8. That this cause of action arose in Kampala within the jurisdiction of this
honorable court.
WHEREFORE the petitioner prays for;
a) A decree of nullity of the marriage
b) Other relief as court deems fit.
………………….
Petitioner
Counsel for the petition
Before me:…………………….
Witnessed by Comm for oaths
VERIFICATION
I certify that the statements above are true to the best of my knowledge and
belief .
Dated at Kampala this day of November, 2014
………………….
Petitioner
Before me
…………………………..
Commissioner for oaths.
Drawn and filed by
FIRM F1 CO ADVOCATES
P.O.BOX 7117, KAMPALA
VERSUS
SUMMARY OF EVIDENCE
The petitioner will adduce evidence to show that the respondent has been
married to another man other than himself.
LIST OF AUTHORITIES
The 1995 constitution of Uganda
Judicature Act Cap 13
The marriage and Divorce of Mohammedans Act Cap 252
Others with tears of court.
LIST OF DOCUMENTS
Marriage certificate
Others with leave of court
……………………………….
Counsel for petiioner
Drawn and filed by
FIRM F1 CO ADVOCATES
P.O.BOX 7117, KAMPALA
VERSUS
SUMMONS TO ANSWER PETITION
WHEREAS the petitioner has petitioned this court for a decree of nullity of
marriage.
YOU ARE hereby summoned to file an answer to the petition to this court
within 15 days from service of summons to you.
AND TAKE FURTHER NOTICE that in default of doing so, the petition will be
heard and determined in your absence.
Dated at Kampala this 03rd day of November 2014.
REGISTRA
What should be in the petition?
- Introduce the parties and their possible addresses
- Show that they are domiciled in Uganda.
- State that the court has jurisdiction
- That there is no condonation, collusion and connivance
- The rest should be the evidence, the strongest point should become out,
state the facts that bring out your case clearly.
CASES
MAYAMBALA V MAYAMBALA DIVORCE CAUSE NO.3 OF 1998
The petitioner filed this petition against her husband (respondent) seeking
orders for dissolution of their marriage under the divorce act, custody of the
children of their marriage, payment of the debts owed to the petitioner by the
respondent, her contribution to the matrimonial house, and expenses for the
education and maintenance of the children of the family. The grounds were
adultery and cruelty.
Adultery has been defined as the voluntary sexual intercourse between a
married person and person of the opposite sex, the two persons not being
married to each other.
To be a ground, the adultery must be committed since the celebration of the
marriage. It is immaterial whether the marriage has been consummated or
not.
One act of adultery is sufficient Douglas V Douglas (1952) ALL ER 748, it
must be proved to the satisfaction of the court and need not reach certainty
but it must carry a high degree of probability.
Cruelty may be defined as willful and unjustified conduct of such character as
to cause danger to life, limb or health (bodily or mental) or as to give rise to a
reasonable apprehension of such danger. The conduct complained of must be
serious. It must be higher than the ordinary tear and wear of a married life.
(Habyarimana V Habyarimana).
The petitioner contributed 70% and incase the house is sold she gets 70% of
the market price.
BRUNO L. KIWUWA V IVAN SERUNKUMA AND JULIET NAMAZZI (2007)
ULR 509
The plaintiff instituted this suit to challenge the celebration of marriage of the
first and second defendants on grounds that both defendants like the plaintiff,
being Baganda by tribe, belonging to the same clan of “Ndiga” that is to say
“sheep” could not lawfully by reason of an obtaining custom, contract such a
marriage.
Held;-
1. It is settled that where customary law is not documented or so notorious
for the court to take judicial notice of the same, it has to be proved in
evidence.
2. A custom is defined as a practice that has been followed in a particular
locality in such circumstances that is to be accepted as part of the law of
that locality.
It must be recognizable in nature, must have been followed continuously and
as if it were a right, since the beginning of legal memory.
3. It must be in conformity with the constitution
4. The marriage Act recognize the validity of customary marriages, the
custom in issue applies to marriage under the Marriage Act.
5. A custom is repugnant to justice and morality if it causes aversion and
disgust to the principles of good behavior and as to what is reasonable
and fair it is repugnant if it violates natural justice, equity and good
conscience. In this case, the custom is not barred and not in conflict or
inconsistent with the Marriage Act.
MIFUMI (U) LTD 12 ORS V A.G ANOR CONSTITUTION PETITION NO.12
OF 2007
The petition is brought under A. 2 (1) and (2), 37, (3), 93 (a) of the
constitution of Uganda and Rule 3 of the constitution. Court (petitions and
references rules s.191 of 2009). They challenge the constitutionality of the
customary practice of demand for and payment of bride price.
It is intended to reflect the perceived value of the girl or young woman (bride
price).
Justice L.E.M Mukasa- Kikonyogo, a bride price agreement is intended to show
appreciation to the parents of a bride. It is entered into with joy by 2 parties
seeking the facilities of a marriage relationship. It is not barred by the
constitution.
A man and a woman have the constitutional right to so choose the bride price
option as the way they wish to get married.
Any payment of bride price must be conditioned upon voluntary consent of the
2 parties to the marriage.
However, the refund in the event of dissolution of marriage demeans and
undermines the dignity of a woman and is in violation of A. 33(6) o the
constitution and violates the equal entitlements to equal rights with the man in
marriage A.31 (1).
Supreme Court decision, Mifumi (U) Ltd Anor V A.G 2 Anor constitution
Appeal No. 02/2014 husbands can no longer demand that bride price be
returned in the event of dissolution of a customary marriage. It is contrary to
the constitution regarding equality in contracting during marriage and its
dissolution, it violates A.31 (1) (b) and 33(1). It should be prohibited under
A.321. The customs of refund of bride price devalues the worth, respect and
dignity of a woman. The practice completely ignores the contribution of the
woman to the marriage up to the time of its break down, it falls under A. 32
(2) of the constitution.
SEPARATION AND DIVORCE
SEPARATION
There are two forms of separation, separation by mutual agreement and
judicial separation
SEPARATION BY MUTUAL AGREEMENT

a) Agreement to live as if they were not married
b) Who to stay in the marital home, who to live and how to live if at all they
stay in the same house.
c) Custody of the children and non-custodians rights e.g. visitation.
d) Maintenance of the wife and the children during separation
e) Any temporary division of property during separation
f) Dum casta clause, this means the parties agree to live a chaste life. It
must be express for it to be enforceable.
Wilson V Wilson (1848) HL CAS 538, the House of Lords held that there is
nothing illegal person in an agreement for immediate separation. Thus when a
marriage has irrevocably broken down, then an agreement can be made where
the parties agree to stay apart.
Enforcement of the separation

- The parties are called to agree on whether to enter a separation
agreement.
- The parties have to agree on the terms of the agreement
- A separation agreement is then drafted
- The agreement must be dated, signed and witnessed by most preferably
a lawyer.
- The term in the agreement should include a clause that the parties
should not commit adultery or have sexual intercourse with one another.
- Fearson V Earl of Aylesford (1884) 14 Q.B.D 792, the separation
deed had a condition that the wife would not molest the husband during
the period and the wife was to receive annuity.
The husband stopped paying the annuity contending that the wife had
breached the non-molestation clause. She had committed adultery and got a
child. The court held that the adultery by the wife did not invalidate the
separation deed and the fact that the wife had committed adultery did not
constitute a breach of consent not to molest the husband.
Other clauses include
- Effect of breach of agreement
- Duration of the termination clause
- Control of the matrimonial house
- Property clause
- Amendment clause
- Use of the matrimonial home.
Judicial separation
It is provided for under s.14 of the Divorce Act. It is a remedy for spouses who
cannot have a remedy for divorce for lack of grounds.
Gakwavu V Gasanganyire (1977) HCB 322, it was held that judicial
separation may be awarded on grounds of adultery, cruelty or desertion.
Russel V Russel (1877) NC 395, it was stated that the mere wear and tear of
married life is not enough for court to grant a decree of judicial separation. The
grounds for judicial separation must be so gave and weighty so as to show an
absolute impossibility that the duties of married life can be discharged.
Legal consequences from the date of application/ grant of the decree
S.15 of the Divorce Act, all property acquired during separation is deemed to
be property of the wife exclusively.
S.16 of the Divorce Act, the wife losses the power to contract on behalf of the
husband and it extends to wrongs and injuries in cases where the husband is
suing or being sued and the husband shall not be liable for acts or contracts
the wife incurs.
Any party can apply to court to have it/ the order varied e.g it was granted in
his/her absence or the decree was granted on the ground of desertion and the
person had deserted for a reasonable excuse (S.17).
DIVORCE
This is governed by the Divorce Act, Cap 249 of the law of Uganda.
In the case of Droogemroech V Coolen 2 Gibbons, 1992) 2 KLR 18, it was
held that in a divorce petition, the petitioner must prove marriage domicile, the
ground for divorce and that there is no condonation collusion or connivance.
Mahsent Gashaw V Seamus Dunne and Samantha Moray Divorce cause
No. 4 of 1997, the petitioner was born in Ethiopia and the respondent had an
Irish passport.
The couple had been married in Ethiopia and then moved to Sudan and finally
came to Uganda where they rented the premises in Kampala. The respondent
deserted the marriage and cohabited with the correspondent. Court observed
that a wife upon +marriage acquires the domicile of the husband which she
retains so long as the marriage subsists even if she is deserted by the
husband. It must be proved with perfect clearness and satisfaction of the court
that the person has formed a purpose a determination, a final and deliberate
intention to abandon his original domicile for a new one. Therefore, they were
not domiciled in Uganda and the case was not heard on its own merit.
Jurisdiction
- S. 3 of the Divorce Act Chief Magistrate Grade I or High Court.
Grounds for Divorce

These are provided for under S.4 of the Divorce Act, however it must be read
in conjunction with the case of Uganda Federation of Women Lawyers V
A.G constitution. Petition No-2 of 2003 wherein it was held that ‘the
grounds for divorce under S.4 of the Divorce Act are now available to both men
and women. This means that a person has to prove one ground’.
Kazibwe V Kazibwe D.C No. 3 of 2003 where Kibuuka J held that each of
the grounds for divorce under S.4 of the Divorce Act are available equally to
husband and wife, and that adultery and cruelty are separated grounds for
divorce.
Desertion for 2 years upwards
Patel v Patel (1965) E.A 560, it was held that the constituents of desertion
include; that the husband or wife left the matrimonial home without the
consent of the other partners, with the intention of permanently ending
cohabitation and without reasonable cause.
In Nassuna Edith Zavuga V Jasper Serwanga 2 Anor, DC No. 10 of 2003,
Rwamisazi Kagaba J held that desertion can be constructive where one of the
parties in the marriage makes it difficult for the other person to live in their
matrimonial home and that person leaves desertion is umpired on that person
who was making it difficult for the other to stay in their matrimonial home.
Adultery
Habyarimana V Habyarimana (1980) HCB 139 Odoki J defines adultery as
the consensual sexual intercourse during the subsistence of marriage between
one spouse and another person of the opposite sex not being the other spouse.
Nyakairu V Nyakairu (1979) HCB 261 Ntabgoba J. held that in allegations
of adultery. The facts must be interfered from the circumstances of the case.
Cruelty
In the case of Colarossi V Colarossi (1965) E.A 135, court held that to show
cruelty the petitioner must prove, injury to life, limb or health (both physical
and mental) and or probable injury.
Habyarimana V Habyarimana (1980) HCB 139, it was held that the general
rule in all questions of cruelty is that the whole matrimonial relationship must
be considered and the rule of special value when the cruelty consists not of
violent acts but of injurious reproaches, complaints accusations and taunts.
BARS TO DIVORCE
In the case of Kivumbi V Kivumbi (1975) HCB 139, Sekandi J stated that
under s.9 (now s.8 (2) of the divorce decree, it is essential not only that the
respondent be guilty but also that the petitioner is innocent and justly
aggrieved by the other’s wickedness.
1. Condonation
This refers to the forgiveness, knowing that an unlawful act had taken place
the petitioner goes ahead and forgive the respondent.
Mugoya V Mugoya (1975) HCB 295, it was held that for there to be
condonation, the innocent spouse must intend to forgive the other and remit
the matrimonial offence. He or she must set the seal upon the forgiveness by
reinstating the offending spouse to the matrimonial position he/she held.
S.9 of the Act (adultery)………………………………
2. Connivance
This is where the petitioner’s conduct has led to the act of the respondent
which is the ground for divorce for examples where a man procures the wife
for prostitution; he cannot turn around and want to divorce her on that basis.
S.6-8 of the Divorce Act.
In Gibbs V Gibbs (1988) U.s 371, the husband took money from a man
sleeping with his wife, court held that the husband had connived.
3. Collusion
This is where parties agree to the commission of an act which later forms the
ground of divorce. The petitioner is stopped from petitioning for divorce.
Discretionary Bars
S. 8 of the Divorce Act, the court has the power to decide whether or not to
grant divorce. The grounds include;
a) Unreasonable delay in presenting or prosecuting the petition i.e. delay in
bringing a petition is a bar to divorce if the petitioner knows that it is open to
him to have the marriage dissolved and the delay led the respondent to believe
that he does not intend to do so.
b) Petitioner’s conduct if the petitioner is guilty of cruelty, adultery or
desertion towards the respondent.
c) Lapse of time, cannot bring the suit after four years since the commission
of the offence.
d) Petitioner’s knowledge. Willful conduct.
Procedure
Decree Nisi and Decree absolute
Under s.37 (1) when the court is satisfied that the grounds for divorce are in
existence the court will grant a decree nisi.
This simply states that the marriage is coming to an end and points out who is
to take custody of the children during that period and temporary distribution of
property.
Court gives a grace period of 6 months and this mandatory. Court cannot issue
a decree absolute before the expiry of the 6 months.
Where the petitioner fails to move court within a reasonable time that the
decree nisi be made absolute the court may dismiss the suit.
Maintenance Order
Young V Young (1962) ALL ER 120 Mayanja’s case
Costs, court has discretion to grant costs. Kironde V Kironde decides
otherwise court can however lower costs if it deems fit e.g. if their mutual
consent, incapacity to pay costs, mitigating factors aggravating factors for
waiver.
WORKSHOP 2
BRIEF FACTS
Kikune Tom, a successful business man owns a number of businesses,
including a Dubai Equipment and furniture business block of flats in Ntinda, a
farm in Najjera and the house in Kiwatule where he leaves. He got married to
Betty in Dec 2011 at St Francis Chapel, Ndeeba and they have 2 children who
are both minors. Tom asked Betty to stop working after the birth of the first
son, Sam but after the birth of the second child Denise, Betty went back to
work, this was 01st Jan 2014. Tom.
Since then, was uncomfortable and suspicious, he checked Betty’s phone
where she returned from her trips which angered Betty and Tom found out
that Betty is secretly building a posh house at Muyenga. He feels enough is
enough and he wants Betty to go and leave his children without accessing
them as she is bad influence and has approached me for advice.
ISSUES
1. What options does Tom have
2. What is the relevant procedure, forum and documents?
3. What advice would I give Tom if he found a message “Betty, you are
really wonderful in bed? Thank you for last evening”.
4. What is the relevant procedure, forum and documents
LAW APPLICABLE
1. The 1995 constitution of Uganda
2. The Divorce Act Cap 249
3. The Divorce Rules s.1 249-1
4. The MARRIAGE Act, Cap 251
5. Case law
RESOLUTIONS
ISSUE ONE
The options available to Tom are;
MUTUAL SEPARATION BY AGREEMENT.

In the case of Wilson V Wilson (1848) H.L CAS 538 the House of Lords held
that there is nothing illegal or strong per se in an agreement for immediate
separation. Thus when a marriage has irrevocably broken down, then an
agreement can be made where the parties agree to stay apart.
Fearson V Aylesford (1884) 14 QBD 792 parties had a separation deed and
one of the conditions was the wife. There was a provision that the wife should
not molest the husband during the period. The wife committed adultery and
get a child. The husband stopped paying alimony arguing that she had
breached the non-molestation i.e. adultery clause and non molestation are
different.
Kirk V Eustace (1937) ALL ER. 175, wife was claiming for a monthly sum
which she was entitled to after a separation deed or agreement had been
made. Court held that the wife was entitled to the sum after a separation deed
or agreement had been made.
Nicole V Nicole (1887-90) ALL ER 497; the court held that renewal of
cohabitation will mean that separation has come to an end and will depend on
the language of the agreement except if the agreement states to the contrary.
R V Clarke (1949)2 ALL ER 443, it was held that at separation, implied
consent given at marriage foe sexual intercourse is revoked and the sexual
intercourse cannot be done without consent.
Judicial separation
This is a remedy to spouses who cannot have the remedy of divorce because of
the lack of the grounds. It is provided for under s.14 of the divorce act. Ground
is cruelty but it is not sufficiently proved and you would require more, evidence
so it is not the best remedy in the circumstances.
ISSUE TWO
The best option for Kikune Tom is separating from Kikune Betty by mutual
agreement. The agreement is drafted like a standards agreement.
Separation Agreement
IN THE MATTER OF THE MARRIAGE ACT CAP 251
AND THE CONTRACTS ACT 2010
IN THE MATTER OF THE DIVORCE ACT CAP 249
SEPARATION AGREEMENT
THIS AGREEMENT made this 05th day of November 2014.
BETWEEN
KIKUNE TOM of P.O.BOX 1237, Kampala (hereinafter refereed to referred to as
the husband)
AND
KIKUNE BETTY of P.OBOX 1212, KAMPALA (hereinafter referred to as the wife)
and shall be called the parties where the context allows;
AND WHEREAS the parties were married on or about the 12th day of December
2011.
AND WHREAS the wife after solemnization of the said marriage bore two issues
both minors (hereafter referred to as the children).
AND WHEREAS, the relationship between the parties because of the numerous
reasons, has irrevocably broken down for which reason is constrained.
NOW THEREFORE THIS AGREEMENT WITNESSETH AS FOLLOWS;
1. In consideration of the parties having each other’s consortium and
mutually accepting to stay apart. The parties enter into this agreement
with conditions and terms as provided here under.
2. The parties agree that the custody of the children shall go to the
husband in respect of the fact that the wife works as an air hostess ad is
always at work and the husband is a successful business man with
capacity to look after the children and the wife shall have intention
visitation rights over the children on the last Saturday of every month
between the hours of 9:00 am to 9:00 pm.
3. The parties mutually agree that there shall be no molestation of one by
the other during the continuance of this agreement.
4. The husband shall provide for the maintenance of the children and the
wife shall also be entitled to a claim for maintenance from the husband in
all matters incidental to her welfare.
5. The maintenance of the children shall continue subsisting on condition
she remains chaste.
6. Breach of the clause 5 above shall relinquish maintenance to herself save
for that which will be incidental to the maintenance of the children.
7. Each of the parties will be entitles to share property equally among
themselves and the wife shall remain in the matrimonial home at
Kiwatule.
8. There shall be institution of suits for restitution of conjugal rights during
the subsistence of this agreement.
9. This agreement shall, unless otherwise agreed upon by the parties, run
for three years from the date of execution, save herein, this agreement
can be terminated by mutual consent.
10. This agreement may be amended any time upon agreement by the
parties hereto and the amendment shall be reflected in writing duly
signed by the parties and witnessed to.
IN WITNESSETH whereof, the parties hereto have signed and dated 5th of
November, 2014.
Signed by the said’
Husband………………………………………………………
In the presence of
………………………..
Signed by the said
Wife………………………………………..
In the presence of
……………………………………
Drawn and filed by:
Firm H2 and Co Advocates
P.O.BOX 7117
Kampala
ISSUE THREE (JUDICIAL SEPARATION)

Yes, my advice would be different
Judicial separation
It is provided for under s.14 of the Divorce Act, Cap 249 Laws of Uganda, thus
a husband and or a wife may apply by petition to the court for a judicial
separation on the grounds of cruelty, adultery or desertion without reasonable
excuse for a period of two years.
The court satisfied that the allegations of the petition are true, and that there is
no legal ground why the application should not be granted decree judicial
separation accordingly.
Procedure for petitioning for a judicial separation
One applies to court by petition s.30 of the Divorce Act, Cap 249 provides that
all proceedings under the Act shall be regulated by the civil procedure Act.
S.3(1) of the divorce act every position shall state as distinctly as the nature
of the case permits, the facts on which the claim is based and it should be
verified and may be referred to as evidence.
S.31 (2) states that for petition for dissolution of marriage or for nullity of
marriage or for judicial separation shall state that there is not any collusion or
connivance between the petitioner and the respondent.
S.32 of the Act, the petition should be served on the party. The respondent is
supposed to file a reply to the petition in 15 days from the date of service of
the petition. (Based on the law of service of court process under 0.5 of the CPR
S. 1 71-1).
Documents
- Petition
- Summary of evidence
- Summons to answer the petition
- Affidavit of service
Jurisdiction (forum)
S. 3 of the Divorce Act, Cap 249 states that where all parties are Africans, or
where a petition for damages is lodged in accordance with s.12, jurisdiction
may be exercised by a court over which presides a Magistrates Grade 1 or a
Chief Magistrate.
The High Court also has jurisdiction in all matters as it has inherent powers
(original jurisdiction).
In our facts Kikune Tom has to petition to court for judicial separation on the
ground of adultery. Adultery can be inferred from the circumstances.
Manjula V Asahi Divorce Cause No.2 of 1962, Sir Udo Udoma CJ held ‘that
adultery is of course essentially an act which can rarely be proved by direct
positive evidence. It is a matter of inference, opportunities and circumstances’.
George Nyakairu V Rose Nyakairu (1979) HCB 2611 Ntabgoba A.G. Held
that in all allegations of adultery it is not necessary to prove the direct fact of
adultery. It is not necessary to prove the direct act of adultery for the fact was
almost always to be inferred from circumstances as a necessary conclusion
since it was indeed very rare that parties were ever surprised in the direct act
of adultery.
Divorce
A valid marriage may be terminated either by death of the parties or by
dissolution or divorce pronounced by a competent court. Divorce is defined as
the termination of a valid and subsisting marriage by a court of competent
jurisdiction. It must be noted that for court to pass a decree of divorce, the
petitioner should have been domiciled in Uganda at the time the petition is
presented.
Effect of pronunciation of decree
1. The marriage is dissolved and as a result, the spouse is free to remarry.
It should be noted that the decree nisi does not have this effect and if
either party remarries before it is made absolute.
2. The court may award damages against co-respondent for committing
adultery with the wife of the petitioner.
3. Court may make orders as to payment of permanent alimony by the
husband to the wife S.24 of the divorce act.
4. The court may make orders as to the custody maintenance and
education of the minor children of the marriage or for placing them
under the protection of the court under s.29 of the divorce act. Nyakana
(1973) HCB 261 where court held on custody.
Grounds for divorce- s.4 of the Divorce Act
Jurisdiction s.3 of the Divorce Act.
Petition for Judicial Separation

IN THE HIGH COURT OF UGANDA AT NAKAWA KAMPALA
KIKUNE TOM…………………..PETITIONER
VERSUS
KIKUNE BETTY……………………….RESPONDENT
PETITION
(Under s.3, 14, 30 and 31(1) of the Divorce Act and s. 98 of the CPA, Cap 71).
THE HUMBLE PETITION OF KIKUNE TOM showeth,
1. That the petitioner is an adult male UGANDAN OF SOUND MIND
RESIDENT AT Kiwatule. Your petitioner address is C/O firm H2 and Co
Advocates P.O.BOX 7117 Kampala.
2. That the respondent is a female adult Ugandan presumed to be of a
sound mind residing at Kiwatule
3. That your petitioner and the respondent are domiciled in Uganda with a
Matrimonial home at Kiwatule.
4. That your petitioner professes the Christian religion.
5. That your petitioner was married lawfully to the respondent at St Francis
Chapel Ndeeba in December 2011. (A copy of the marriage certificate is
attached hereto as Annexure ‘A’).
6. That such marriage was solemnized under the provisions of the marriage
act in force in Uganda.
7. That after the said marriage was solemnized, your petitioner lived
…………………….issues of the marriage.
8. That after three years in the marriage, the respondent started
conducting herself in a manner that demonstrated that she was
adulterous.
9. That the petitioner became suspicious and started checking the
respondent’s cell phone whenever she returned from her trips.
10. That on one occasion the petitioner checked the respondent’s cell
phone and in the message box there was message “Betty you are really
wonderful in bed. Thank you for last evening”.
11. That the petitioner believes that the purpose of marrying the
respondent was to derive happiness between each other and give
company to one another which has totally failed since the 01st of January
2014.
12. That there is not any collusion or connivance between your
petitioner and the respondent.
13. That notice to institute legal proceedings was communicated to the
respondent.
14. That this cause of action arose in Kiwatule within the jurisdiction of
the court.
WHEREFORE, the petitioner prays for;
a) An order of judicial separation against the respondent.
b) An order that the custody of the children remains with the petitioner.
c) An order for maintenance for the children.
d) That the court grant an injunction restraining the respondent from ever
molesting the petitioner
e) That the respondent pays costs of and incidents to this
f) That your petitioner may have such further and other relief this
honourable court may deem fit
Dated at Kampala this 05th day of November, 2014
Petitioner
Before me
……………………………………………….
VERIFICATION
I …………………………., certify that the statements above are true to the best
of my knowledge and belief
Dated at Kampala this 05th day of November 2014
………………………………………………
Petitioner
Before me
…………………………………………………….
Drawn and filed by:
Firm F1 and Co Advocates
P.O.BOX 7117
Kampala
Petition for Divorce

IN THE HIGH COURT OF UGANDA AT NAKAWA KAMPALA
DIVORCE CAUSE NO. 020 OF 2014
VERSUS
PETITION
(S.4 of the Divorce Act CAP 249)
THE HUMBLE PETITION OF KIKUNE TOM showeth that
1. The petitioner is an adult male Ugandan of sound mind residing at
Kiwatule. Your petitioners’ address is c/o firm H2 and Co Advocates
P.O.BOX 7117 Kampala.
2. The respondent is an adult female Uganda presumed to be of sound
mind, currently residing at Kiwatule.
3. The petitioner and the respondent both profess the Christian religion.
4. That your petitioner was lawfully married to the respondent at St.
Francis Chapel Ndeeba in December 2011.
5. That such marriage was solemnized under the provisions of the marriage
Act in force in Uganda.
6. The after the said marriage your petitioner lived and cohabited with the
respondent in Kiwatule and there are 2 issues of the marriage.
7. That after 3 years of the marriage the respondent started conducting
herself in a manner that demonstrated that she was adulterous.
8. That the petitioner became suspicious and started checking the
respondent’s cell phone
9. That on one occasion the petitioner checked the respondent’s cell phone
and found a message, “Betty you are wonderful in bed” thank you for
last evening.
10. That the petitioner believes that the purpose of marrying the
respondent was to derive happiness from each other and give company
to each other which has totally ailed since 01st January 2014.
11. That there is not any collusion or connivance between your
petitioner and the respondent.
12. That notice to institute legal proceedings was communicated to the
respondent.
13. That the cause of action arose in Kiwatule within the jurisdiction of
this honorable court.
WHEREFORE your petitioner prays for;
a) That the said marriage between your petitioners and the respondent may
be dissolved.
b) That the petitioner be granted custody of the issues of the marriage.
c) The petitioner prays for an order to distribute matrimonial property equal
distribution of property during the marriage.
d) Any other relief as this court may deem fit
Dated at Kampala this 05th day of November 2014
………………………………………………………….
Petitioner
Before me:
…………………………………………………………….
VERIFICATION
I certify that the statements contained herein above are true to the best of my
knowledge and belief.
Dated at Kampala on this 5th day of November 2014.
Petitioner
Before me
………………………………………………..
Drawn and filed by:
P.O.BOX 7117
Kampala
Refer to the previous summons and summary of evidence.
SUmmons rule 2 of the Divorce Rules
Draw another summons (Kilapi).
Family land
S.38 A of the LAND Act as amended
S. 38 A (4) where the family ordinarily resides or where it derives sustenance.
- Rwabinumi V Bahimnisomwe- definition of the individual property, the
house that she is building in Muyenga.
- Kivuiti V Kivuiti (1990-1994) HCB.
How to proceed on one ground
Kazibwe V Kazibwe- declares that one ground can be used as a ground of
divorce.
FIDA case just outlawed the sections as being discriminatory.
 Take note that the law is not updated therefore you should use the
recent cases.
 Irretrievable break down of marriage can be a ground but you have to
prove a ground in addition to it. Cannot be a ground.
- Why do we use a verification and not on affidavit
- What are the salient features of the petition
- Why do we proceed in the High Court and not in the Chief Magistrate’s
Court.
KIVUITU V KIVUITU (1990-1994) HCB case No.26 of 1985 COA of
Kenys (1985) LLR 1411
The parties were once a husband and wife, owned property in the
proportion of 2 to the wife and 4 as to the husband. The wife took out an
originating summons and she prayed for orders that the property having
been the matrimonial home of the plaintiff and defendant herein he sold and
the proceeds be shared in equal shares to the plaintiff and defendant.
The question was what is nature of the contribution that a wife or husband
has to make before she or he can be held to have acquired a share in the
matrimonial home?
“It was held that a wife who stays at home and looks after the
children and keeps the home going contributes to the acquisition of
the property been though that contribution cannot be quantified in
monetary terms in the case of urban house wife, if she were not there,
the husband could be compelled to employ someone to do the house
choices for him, the wife accordingly saves the expense. In case of a
wife left in the rural home, she makes even a bigger contribution on to
the family welfare by filing the family land and producing either cash
or food crops. Both of them make a contribution to the family welfare
and assets”
Where a husband, acquires property from his salary or business and
registers it in the joint names of himself and his wife without specifying any
proportions, the courts must take it that such property, being a family asset
is owned in the equal shares, where it is registered in the husband’s names,
the wife is entitled to apply to court to determine her interest in the
property and court would assess the value of the wife’s non-monetary
contribution.
DR. SPECIOZA KAZIBWE V ENG. CHARLES KAZIBWE DIVORCE cause
no.3 of 2003
The couple were married under the Marriage of Africans Act CAP 253.
Entered into Holy Matrimony in 1983 at Our Lady of Africa Mbuya Catholic
Parish, and were blessed with 4 issues.
She filed the petition seeking decree nisi for the dissolution of the marriage
on the grounds of adultery and cruelty.
Each ground for divorce in s.4 of the Divorce Act. Cap 249 is available
equally to both the husband and wife. That both adultery and cruelty are
distinctive grounds, each in its own right, upon any of which decree nisi
may issue. The petitioner in this case, therefore could obtain that remedy
after proving to the satisfaction of this court either the ground of adultery or
the one cruelty or both.
Adultery can be proved by the petitioner by adducing direct or
circumstantial evidence to prove it. It can also be proved by admission on
the part of the party against whom it is alleged in the instant case, both
grounds have been admitted and once a fact has been admitted, it need not
be proved and judgment upon admission should be entered.
The standard of proof is higher than that required in other civil matters but
not as high as beyond reasonable doubt as required in criminal cases. No
connivance or condonation was proved against the petitioner.
Custody of the child was granted to the petitioner with the respondent
having visitation rights at a school and in holidays. Each party was to keep
the property that is registered in the party’s name.
VIVIAN NTANDA V JAMES KAYEMBA DIVORCE CAUSE NO.4 OF 2007
The parties to the petition went through a Christian ceremony of marriage
at St. Augustine Chapel, Makerere blessed with 2 children, 6 years and 3
years. The petitioner petitioned for dissolution on ground of cruelty.
Held;-
1. FIDA each of the grounds is available to the parties equally and that
adultery and cruelty are distinct grounds upon which each one of them
may lead to a decree being granted.
2. No comprehensive definition of cruelty has been accepted as
satisfactory- much depends on the habits and circumstances of
matrimonial life of the husband and wife, their character the made of
conduct one to the other and the knowledge which each has of the
intention and feelings of the other.
3. The party must prove actual or probable injury to life, limb or health. So
even on one incident of assault cruelty as to warrant dissolution of a
marriage can be established.
4. Custody of the children was given to the petitioner and access was
allowed to the respondent every Sunday after church service up to
6:00om. Each parent would have custody to the children during the
holiday for half the holiday.
ANNETTEE NAKALEMA KIRONDE V APOLLO KADDU MUKASA
KIRONDE 2 MOSES ZIZINGA DIVORCE CAUSE NO.006 OF 2001
The petitioner seeks dissolution of her marriage with the respondent. The
grounds were adultery and cruelty to the petitioner and their issues (3
children). She also claimed that the respondent lad deserted her. The
respondent was joined by the co-respondent.
 S. 5 of the divorce act, the principle of equal rights and opportunities
before the law the wife and husband have the same. Therefore the
petitioner’s petition and the respondent’s cross petition are both
competent and valid before the court.
Both the parties relied on each other’s adultery for the dissolution of their
marriage.
 Adultery can be proved by a party adducing evidence to prove the same
or by the adulterer admitting the fact of adultery or by circumstantial
evidence.
 The person alleging the facts must produce evidence to prove the
existence of the facts that they assert.
Miller V Minister of pensions (1947) 2 ALL ER 372.
S.100-103 of the evidence Act
Adultery was admitted of both the petitioner and the respondent.
 The standard of proof is one which is not as high as beyond reasonable
doubt as required in criminal cases but higher than the balance of
probabilities required in civil cases.
 Guiding principle for the custody of the child is the welfare of that child
or those children.
 S.22 of the Divorce Act is in conflict with the constitution, it punishes
the adulterous woman and the man goes scot free as far as the co-
adultery is concerned.
 It is discriminatory in nature and particularly against women.
 It is therefore void to the extent of its being discriminatory and in
conflict with the constitution.
 The court cannot award costs to the parties s they are both equally
guilty of adultery. No party should benefit from his/her wrongs, none of
them has come to court with clean hands.
Walter V Walter (2) (1949) 65 TLR 680 that “the mere refusal to join the
husband in the place where he is ready to receive her is not necessarily
desertion unless the refusal is in the circumstances unreasonable.
Patel V Patel (1965) E.A 560, The ingredients of desertion, the husband
would have to establish, (i) that the respondent left the matrimonial home,
secondly that she left without the husband’s consent, thirdly, she left with the
intention permanently of ending co-habitation and fourthly that she left
without cause.
14/7/2017
GUEST LECTURE
- There are two forms that are signed and filled in that is the notice form
and the witness forms filled in by the matron and the best man.
- Developed a system for notifying the public by putting the notice not
only on the notice board at the registrar’ office but also in a newspaper.
- This is done for 21 days, any person with any issue should lodge a
caveat. This should be done within reasonable time like 2 weeks.
- A. 274 and A.2 (2): a person of 18 years and above can contract a
marriage even if the marriage act says 21 years.
- The civil marriage can be done in the office of the CAO and or in the
office of the civil Registry.
ADDITIONAL NOTES
Consequential orders on dissolution
S.20 court may decree restitution of conjugal rights upon petition by
husband/wife that the husband/wife has without reasonable excuse withdrawn
from the society of the others.
R V Jackson (1896) QB 671, wife had gone to live with her relatives in New
Zealand upon her return she refused to live with her husband and failed to
comply with the restitution order.
She was put in a carriage and taken to the husband’s place, allowed complete
freedom but was not allowed to leave.
It was held that a spouse can’t be compelled to stay with the husband.
S. 23 Alimony pendete lite: alimony pending the suit Kazibwe V Kazibwe D.C
No.3 of 2003.
S.24 permanent alimony
Ruhara V Ruhara (1977) HCB 86 one of the consideration is the ability of the
husband or wife to pay and who is dependent on who.
Custody of children
S.6 property
Kazibwe V Kazibwe where property is in the names of a party that party is
entitled to the exclusive ownership of that property at dissolution.
Ancestral land/clan land: Julius Rwabinumi V Hope Bahimbisomwe: Ancestral
land/clan land cannot be shared.
Procedure for suspension of conjugal rights
- Separation agreement
- Judicial separation
RESTORATION OF CONJUGAL RIGHTS (PETITION TO COURT)
IN THE CHIEF MAGISTRATES COURT OF MENGO AT MENGO
MATRIMONIAL CAUSE NO……………OF 2014
VERSUS
PETITION
(Under s.20 of the Divorce Act, Cap 249)
THE HUMBLE PETITION OF KIKUNE TOM showeth or
I KIKUNE TOM c/o Firm F1 and co. Advocates P.O.BOX 7117 Kampala do
swear and state as follows;
1. That your petitioner is an adult male Ugandan of sound mind and a
resident of Kiwatule.
2. That your petitioner professes the Christian faith.
3. That your petitioner was on the 12th of December 2016 lawfully married
to the respondent at St. Francis Chapel Ndeeba under the marriage Act.
4. That after the said married your petitioner lived and cohabite with the
respondents at Kiwatule and were blessed with issues to which Sam
Kikune and Denise Kikune.
5. That on the 01st January 2016, the respondent withdraw from
cohabitation with your petitioner and has ever since without any just
cause, kept and continued away from him and has also refused and still
refuses to render her conjugal rights.
6. That as a result of the said withdraw your petitioner and children of
marriage have suffered great inconvenience, loss and damage.
WHEREFORE your petitioner humbly prays for a decree;
a) That the respondent do unconditionally return to the matrimonial home
and be received by the petitioners as her husband and render him
conjugal rights.
b) That your petitioner may have such further and other relief in premises
as the honourable court may decree fit.
c) That the petitioner be provided with costs.
Dated at Kampala this 06th day of November, 2014
……………………………………………………
Petitioner
Before me
…………………………………………………
VERIFICATION
I, KIKUNE TOM verify that the statements made herein above are true to the
best of my knowledge and belief
Dated this 06th day of November 2016
Petitioner
……………………………………………….
Before me
…………………………………………………..
Drawn and filed by:
P.O.BOX 7117
Kampala
DOMESTIC RELATIONS WRAP UP
- Bareness is not impotence: women cannot be impotent. Bareness is not
cruelty.
- Buganda road court only tries criminal matters not civil divorce/domestic.
- Irretrievable break down of marriage is not a ground of divorce
- Discretionary Bars, the court uses its discretion to either give the divorce
or not.
- When you are going to court, you should go to court with clean hands.
- A valid marriage leads to petition for divorce
- A void marriage leads to a nullity
- Divorce grounds are those in s.4 of the Act.
PETITIONS
- Provide facts
- Number paragraphs
- Judicial separation is by court while separation agreement is by both
parties have the same effect so remedy is divorce.
- Do not verify summary of evidence only the petition.
DISSOLUTION
- Implies there was a valid marriage
Suspending conjugal rights
Judicial separation
Nullification
- Did not exist from the start
- By husband /wife
- Always stick to facts, do not presume facts.
PLAINT, only when a third party petition for nullification of someone’s marriage
seeking for a declaration but don’t use it.
EXAM
1. Marriage and Divorce
2. What makes different types of marriage valid?
3. If valid, grounds for dissolution of each
Customary- by custom
4. Only law that does not apply to Divorce Act is Mohammedan.
5. H.C has jurisdiction but dissolves using Mohammedan law.
6. Nullity grounds
7. Petition must have 2 places of date and signature.
2 places of petitioner
2 places for Commissioner Oaths
8. Date after the prayers, then petition, verification, petitioner
-Verify date, verification petition
-Comm for Oaths
Do not draft summons
Affidavit of service
Decree nisi and absolute
- There is always only one document either in 1 or 2.
- Dates are important
- Brief facts, issues, residue, resolve each issue and conclude on each
- Adulterer can be the petitioner. But in petition indicate that he
committed adultery and prays for condonation by court.
- If on talking terms separation agreement.
- If not on talking terms judicial separation.
Read: Kintu V Kintu
- Mayambala V Mayambala
- Rwabinumi’s case
- Kazibwe V Kazibwe
- Kiyingi V Kiyingi (domicile)
Additional points/ Notes
Fees
Marriage Act (Amendment of 2nd Schedule) Order 2005.
R. 2 (1) - filing every notice and entering it UGX 10,000/=
Fees where both parties are citizens of Uganda.
i) On registration of a marriage shs 25000/=
ii) For marriage in registrar’s office shs 50,000/= in special license from
the Minister 50,000/=
PROCEDURE FOR ANNULLING A MARRIAGE
S.11 of the Divorce Act presents a petition to the court praying that his/her
marriage may be declared null and void.
S.1 (b) nothing in this Act shall authorize the making of a decree of nulling of
marriage unless the petitioner is domiciled in Uganda at the time when the
petition is presented or unless marriage was solemnized in Uganda.
S.30 Divorce act proceedings under the divorce act are regulated by the COA.
S.32Divorce act petition must be served on the party to be affected by it and
respondent be summoned to answer petition
Rule 2 of the Divorce Rules, summons attached to petition.
S.12 Divorce Act, if court finds that petitioners’ case has been proved, it shall
pronounce a decree nisi declaring the marriage to be null and void.
Forum- high court. S.139 or civil s.3 Divorce Act.
Documents- 0.6.2
Grounds for decree of nullity
S.12 of the Divorce Act
DOMICILE
Cohabitation in a place with the intention of remaining there forever or
permanently unless circumstances occur to alter this intention
Domicile by choice, this is the one a person acquires at the age of maturity.
Prove 2 essential elements.
i) Prove the intention to stay in a place permanently
ii) Proof of caveat acts to demonstrate domicile. Tahana Adebeyi V
Adbeyi D.C 1990- petitioner relying on domicile by choice must prove
that he/she has abandoned his domicile of origin.
Gordon V Gordon (1965) E.A 87 intention to stay in Uganda because you have
a boyfriend and yet you are from U.K does not render you domiciled in
Uganda.
Domicile by marriage (dependent domicile)
The position of the law is that a wife by virtue of marriage acquires the
domicile of her husband but in order to petition for divorce, husband must be
domicile in Uganda either by choice or origin.
Joy Kiggundu V Awori (2001-2005) HCB 124: it is clear that domicile of a
married woman on that of her husband as long as he is during husband’s
lifetime, wife cannot acquire nor of her own separate from that of the
husband although marriage was solemnized and celebra in Uganda, the
respondent lived in Kenya hence domicile was held to be Kenya.
Domicile of origin (natural domicile)
Acquired at birth, once marriage and do proved, next consideration is whether
petition has for divorce.
PROCEDURE FOR DISSOLUTION OF MARRIAGE

S.3 (1) Divorce Act, in a matter involving Africans, the matter shall be heard in
Grade 1 Magistrate’s court or C.M.
A.139 High court has inherent jurisdiction in all matters (family division).
S.3 (2), the H.C can hear all other matters
S.30 Divorce Act, all proceedings under this act shall be regulated by the CPA.
S. 30 Divorce Act, all proceedings under this Act shall be regulated by the CPA.
S. 19 of the CPA, all suits shall be commenced in a manner provided by rules.
S. 4 Divorce Act provides for the grounds of divorce (association of women
lawyers V A.G Constitutional petition 2/2003).
S.31 Divorce Act, the petition shall state as distinctly, the nature of the case,
permits facts on which claim is based and be verified as if it were a plaint.
S.31 (2) Divorce Act, the petition shall state as distinctly, the nature of the
case, permits facts on which claim is based and be verified as if it were a
plaint.
S.31 (2) Divorce Act, petition to state that there is no collusion or connivance
between the respondent and petitioner.
0.6r.2 the petition must be accompanied by a brief summary of evidence,
witnesses, authorities and documents to be relied upon.
Rule 2, Divorce Rules, provides that summons should be attached to the
petition.
S. 32, Divorce Act, the petition must be served on the respondent and the
respondent must be summoned to answer the petition.
0.5 r.16 CPR-Petitioner must file an affidavit of service of the petition.
Court issues a hearing notice to both parties and a hearing takes place.
If court is satisfied that the petitioner has proved her case and that there are
no bars to the divorce, it shall pronounce a decree nisi s.8 D.A.
Decree absolute after 6 months following a decree nisi s.37 divorce act. After
decree absolute, the parties will be officially divorced.
Documents
- Petition for Divorce
- Verification/ Affidavit
- Summons to answer petition
- Summary of evidence
- Affidavit of service.
Noegy V Noegy (1967) E.A 654, court held that there is no power within
Uganda courts to bridge 6 months period by s.37 D.A between decree nisi and
decree absolute.
Discretionary Bars
These are provided for under s.8 (2) of the Divorce Act
1. Evidence that the petitioner has during the marriage been guilty of
adultery
Christopher Kivumbi V Miliamu Kivumbi (1976) HCB 139
Petitioner filed for a divorce on the ground of adultery by the wife. Petitioner
later admitted in his evidence that he cohabited with a certain woman by
whom he had 3 children.
Held: A husband may seek divorce of his wife is guilty of adultery, it is essential
not only that the respondent should be guilty but that the petitioner should be
innocent and justly aggrieved by others wickedness petitioner was on his
admission guilty of continuous adultery and could not be justly be aggrieved by
adultery of his wife.
Adultery of petitioner may be condoned by the court but no such application
was made in the case and petition for divorce could not be granted.
2. Unreasonable delay on presentation and prosecution of petition unless
such inordinate delay is explained.
Prince V Prince 20 K.L.R 21, wife was living in the U.K, she petitioned on
grounds of her husband’s adultery. By the petition, the respondent had been
living with a woman known since 1936 but the petition was not filed till 1942.
Reasons were that there were difficulties in obtaining satisfactory evidence,
postal delays in correspondence between England and Kenya. Whether there
was unreasonable delay to file the petition. Taking into consideration all these
circumstances of this case, the poverty of the petitioner delay was excusable.
3. Cruelty to respondent
4. Desertion or willful separation from respondent before adultery
complained of and without reasonable excuse.
5. Willful neglect of or misconduct towards respondent.
Consequential Orders on Dissolution

S.20 court may decree restitution of conjugal rights upon petition by
husband/wife that wife/ husband has without reasonable excuse withdrawn
from the society of the other.
R v Jackson (1896) QB 671, wife had gone to live with her relations in New
Zealand and upon her return, she refused to live with h husband and failed to
comply with a decree of restitution of conjugal rights. He arranged with 2 men
that they should seize her as she came out of church she was put in carriage
taken to the husband’s place and allowed complete freedom within the building
but not allowed to go out.
A spouse cannot be compelled against her will to stay with the husband.
Powell V Powell
Husband should not use extra judicial means or force to enforce his rights of
consortium.
S.21, in a petition for dissolution of marriage or for judicial separation,
petitioner may claim for damages from the correspondent having committed
adultery.
S. 22 correspondent may be ordered to pay the whole or any part of the costs
of proceedings if adultery with the wife has been proved.
Gakwavu V Gasanganyire (1977) HCB 322 get damages from correspondent.
S. 23 Alimony pendent lite, apply to court for alimony pending the suit but it
shall not exceed 1/5 of the husband’s average net income for 3 years next
preceding the date of the order and shall continue in the case of a decree nisi
of dissolution of nullity of marriage until the decree is made absolute.
Kazibwe V Kazibwe D.C 3/2003 in this case court considered Eng. Kazibwe
had lost his job and he was granted alimony pendent lite.
S.24 permanent alimony on a decree absolute declaring a marriage to be
dissolved or on a decree of judicial separation obtained by a wife. Court may
order the husband to secure to the wife such sum of money as having regard
to her fortune an ability of husband and conduct of parties.
Ruhara V Ruhara (1977) HCB 97 one of the consideration in determining the
amount/sum of money to be granted as alimony in ability to pay and who is
dependent on who.
S. 29 in suits for dissolution of marriage or for nullity of marriage or for judicial
separation, the court may after decree absolute make such orders with respect
to custody of children.
Most relevant factor for determining who will be granted custody of children is
WELFARE principle. Court must ascertain whether the interests of the children
will be more catered for by a particular spouse (S.3 children Act).
Miriam Kagimu V William Kagimu (2001-2005) HCB 100, it is trite law that
custody of children goes to the mother, since the respondent does not pay
fees nor buy food, pay rent, custody was given to the petitioner.
George Nyakairu V Rose Nyakairu (1979) HCB 261 General principle is that
a boy of 8 years other things being equal should be with his father rather than
his mother. Cruelty could be a good ground for cruelty extended to the children
as well.
Visitation rights: Kazibwe V Kazibwe D.C 3/2003 custody of the child was
given to the petitioner but visitation were given to the respondent given during
school term.
Peter Dungu Matovu V Dorothy Dungu Matovu divorce cause 37/2003
court discussed the issue of change in custody of children from one parent to
another and held that it would be in the best interests of the children that they
remain with the parents they have been living with.
S.29 Divorce act provides that in suits for dissolution of marriage or for nullity
of marriage or for judicial separation, the court may at any stage of the
proceedings make such orders relating to maintenance and education of the
minor children of the marriage
A.34 (1)
S. 26 settlement of the wife’s property.
Where a decree of dissolution of marriage or of judicial separation is
pronounced on account of adultery by the wife and the wife is entitled to any
property, court may order whole of property to be settled for the benefit of the
husband.
Edith Nakiyingi V Merekezadeki (1978) HCB 107 where wife is the innocent
party in matters of divorce separation, she should remain in the house.
S. 18 protection orders, if the deserter has acquired an interest in deserter’s
property to protect herself/ himself from creditors of desertion apply for
protection order.
Julius Rwabinumi V Hope Bahimbisomwe civil app. 10/2009 take into
account to what extent the spouses had contributed to the acquisition of each
property in question.
HOW A COURT SHOULD DETERMINE A CONTRIBUTING SPOUSE’S SHARE

IN JOINT PROPERTY
 Kagga V Kagga High court, divorce cause 11/2005. Mwangusya J,
“Our courts have established a principle which recognizes each spouse’s
contribution to acquisition of property and this contribution may be
direct, where contribution is monetary or indirect where a spouse offers
domestic services. It is immaterial that one of the spouses was not as
financially endowed as the other as this case clearly showed that while
the fir respondent was the financial muscle behind all the wealth they
acquired the contribution of petitioners is no less important than that
made by the respondent.
 Muthembwa V Muthembwa (2002) E.A 186, it was held that where
it was impracticable to take account for purposes of determining the
respective contributions of parties to management of a home, there
arose a rebuttable presumption of an equal contribution.
 Mayambala V Mayambala divorce cause No. 3 of 1998 (pg: 46 of the
notes
 Kivutu V Kivuti (1990-1994) E.A 270. (page 10 of the notes) what
amounts to an indirect contribution? Payments for household expenses
preparation of food, purchase of children’s clothing, organizing children
for school and generally enhanced the welfare of the family, therefore
this counted to a substantial indirect contribution to the family income
and assets which entitled her to an equal share in couple’s joint property.
Kazibwe V Kazibwe D.C 3/2003, court held that where property is in the names
of a party that party is entitled to the exclusive ownership of that property at
dissolution.
Julius Rwabinumi V Hope Bahimbisomwe, ancestral landor clan cannot be
shared.
ADDITIONAL NOTES ON BARS TO DIVORCE

- The petitioner has to prove that he has not connived with the
commission of matrimonial offence
- There are two bars to divorce if proved to exist divorce will not be
granted
1. Absolute bars
2. Discretionary bars
Absolute Bars
1. Connivance, where the conduct of one spouse has been accused or
knowingly or recklessly been permitted by the other spouse. In such a
case, the other spouse is an accessory to the matrimonial offence.
 Churchman V Churchman (1945)p.44, it is the essence of
connivance that it precedes the event and generally speaking the
material event is the inception of the adultery and not its reputation.
 Godfrey V Godfrey 2 (1956)79 N.W 2d 476, in this case court held
that the husband petitioner was guilty of connivance as his wife’s
adultery. He failed to show that his initial connivance was not the
effective cause of the subsequent adultery.
2. Condonation: this is the forgiveness of a matrimonial/ marital offence
and reconciliation between the parties with full knowledge of all the
material circumstances.
S.9 of the divorce act, Cap 249, adultery shall not be deemed to have been
condoned unless and until conjugal cohabitation shall have resumed.
Henderson V Henderson (1887-89) 35, 716 court stated that where the
wife had committed adultery, the essence of condonation is that the husband
with the knowledge of the wife’s offence should forgive her and should confirm
his forgiveness by reinstating her as his wife.
Cramp V Cramp (1920) p.158, a husband who has sexual intercourse with
his wife after knowledge of her adultery must be conclusively presumed to
have condoned the offence.
Crocker V Crocker (1921) p.25, where a soldier who was serving overseas
during the war wrote to his wife offering to forgive him for having committed
adultery when he was away. The wife accepted the offer but on his return
home he changed his mind and petitioned for divorce. It was held that there
was no condonation because there was no reinstatement.
3. Collusion, this is the presenting of a divorce petition by way of a bargain
or agreement between the parties. The reason why this is a bar to
divorce is that true facts will be hidden from the court and in some case
mental offence will be procured or pretended for the purposes of
securing a divorce.
Church ward V Churchward (1910) P. 195, the petitioner declined to
divorce his wife who wanted to marry the correspondent until she had made a
settlement in favour of the children of the marriage and she agreed to do so
since she wanted to be released from the marriage deposited some amount
and the petitioner then filed his petition. It was held that this amounted to
collusion.
Discretionary bars
1. Unreasonable delay
Johnson V Johnson (1903) it was stated that the reason why courts insist on
steps being taken promptly that it is a terrible thing that people should go
around and about neither married nor unmarried possibly liable to contract
fresh and illegal matrimony and certainly exposed to the temptation to commit
adultery.
Binney V Binney the husband took no steps for divorce until his wife has been
living with another man for 20 years and even so only petitioned for the
purpose of freeing himself to marry another women. It was held that there had
been culpable delay and the petition was dismissed.
2. Conducing conduct
This is the conduct that conduces the commission of a marital offence.
Therefore cruelty, neglect, desertion or other misconduct towards a spouse
who afterwards as a result commits a marital offence may bar the petitioner
from obtaining a divorce.
Dixon V Dixon (1952) the wife refused to agree to intercourse until husband
filed for divorce and it was held that the wife was guilty of conducing conduct.
3. Petitioner’s own adultery
The petitioner’s own conduct is a consequence of the respondent’s conduct
therefore the courts will look at the circumstances and gauge in divorce.
You have to prove, a marriage, a ground of divorce and there are no bars for
divorce.
NULLITY OF MARRIAGES
- Marriage is rendered null and void
Grounds
- Failure to consummate the marriage
- Lack of consent
- Unsound mind Estate of park (1953) 2 ALL ER 411 court held that
where the person was not capable of understanding the nature of the
contract into which he was entering or was in a condition such that he
was incapable of understanding it.
Other grounds
- Drunkardness and drugs
- Mistake as to identity
- Fraud and misrepresentation
Sing V Sing (1971)2 ALL ER 828, court held that where it is proved that the
will of one of the parties was overcome by genuine and reasonably held fear
caused by threat and immediate danger to life, limb and liberty so that the
constraint destroys the reality of consent in wedlock
- Venereal disease
- Pregnancy per alium
Cohabitation
Mayi Bint Salim 2 10 Ors V Hajji Sulaiman Mayanja CA No. 37 of 2008
cohabitation however long does not constitute marriage.
LAW RELATING TO CHILDREN.
WHO IS A CHILD?
Under Article 257 (c) of the constitution and Section 2 of the Children Act, a
child means a person below the age of 18 years.
RIGHTS OF A CHILD.
These are provided for under Article 30, 31 and 34 of the Constitution and they
are also enshrined in Sections 4,5,6 and 7 of the Children’s Act (as amended).
These include:
a) The right to know and be cared for by parents
b) The right to be brought up by parents.
c) The right to basic education under Article 30.
d) The right to other social and economic rights.
e) The right to access medical treatment.
f) The right to maintenance
The rights of a child are succinctly summarized in Section 4 of the Children
Act, as amended
S5(1) of the Children Act, provides that it shall be the duty of a parent,
guardian or any person having custody of a child to maintain that child and, in
particular, that duty gives a child the right to—
a) education and guidance;

b) immunisation;
c) adequate diet;
d) clothing;
e) shelter; and
f) medical attention.
See also Sections 7, 8, 5(2) of the Children Act.
WHO IS A PARENT?
S1 (n) of the Children Act defines a parent as ”the biological mother or father
or adoptive mother or father of a child”
WELFARE PRINCIPLE
Section 3(1), as amended, provides that the welfare of the child shall be of
paramount consideration whenever determining questions involving a child.
Section 3(3) provides that in determining any question, court or any other
person shall have regard in particular to—
a) the ascertainable wishes and feelings of the child concerned considered

in the light of his or her age and understanding;
b) the child‘s physical, emotional and educational needs;
c) the likely effects of any changes in the child‘s circumstances;
d) the child‘s age, sex, background and any other circumstances relevant in
the matter;
e) any harm that the child has suffered or is at the risk of suffering;
f) Where relevant, the capacity of the child’s parents, guardian or any other
person involved in the care of the child and in meeting the needs of the
child.
This is in line with Article 3 of the Convention on the Rights of a Child.
Pulkeria Nakaggwa v Dominico Kiggundu [1978] HCB 310; Court held that
the term welfare of a child, though incapable of the exact definition means, in
relation to custody of children, all circumstances affecting the wellbeing and
upbringing of the child have to be taken into account and the court has to do
what a wise parent acting in the interest of a child ought to do.
Re Mc Grath (an infant) (1893) 1 Ch. 143; court held that the term welfare
of a child is not to be measured in money alone, nor by physical comfort, the
word welfare must be taken in its wide sense, the moral and religious interests
of a child should be considered, as well as its physical wellbeing, nor should the
ties of affection be disregarded.
In the Matter of Mayanja Ayla Misc. Application No: 20 of 2003; court

noted that in all matters relating to the child, the paramount consideration to
be addressed and applied is the welfare of the child. The welfare principle set
out in S.4 of the Children Statute (now S.3) is a blanket expression which
expresses the rights, facilities and opportunities which are God given to a child.
These rights, facilities and opportunities are not bestowed to a child with
favour by some person or authority. They must not be taken away from a child
except under the law. Where a law may affect such rights, facilities and
opportunities, Article 34 of the Constitution provides that such a law shall be
enacted in the best interests of a child.
ADOPTION
Adoption is the legal process or act whereby a court extinguishes the ties
between a parent or guardian and vests the legal rights, duties and obligations
in another person.
Through adoption, a child ceases to be a member of the biological family and

becomes a member of another family.
FORUM/JURISDICTION
The chief magistrate court in cases of citizens:
Sec 44(1)(a) An application for an adoption order may be made to a chief

magistrate‘s court within the jurisdiction of which the applicant or the child
resides where both the child and the applicant are citizens of Uganda; and the
court may, subject to this Act, grant the application.
The High court where one of the parties is a non-citizen:
Sec 44(1)(b) An application for an adoption order may be made to the High
Court where the child or the applicant is not a citizen of Uganda, and the court
may, subject to this Act, grant the application.
PERSONS THAT CAN BE ADOPTED:
Sec 44(2) any child found within Uganda. A child need not be a Ugandan to be
adopted.
Sec 2: A child is a person below the age of eighteen years.
WHO CAN ADOPT.
Under Section 45, any person whether Ugandan or a foreigner, if such person
satisfies the requirements of adoption.
PREREQUISITES FOR ADOPTION

These are provided for in Section 45 of the Children Act as amended
Sec 45 (1) Provides that an adoption order may be granted to a sole applicant
or jointly to spouses where:-
a) the applicant or at least one of the joint applicants has attained the age
of twenty-five years and is at least twenty-one years older than the
child;
b) in the case of an application by one of the spouses, the other has
consented to the adoption.
Sec 45 (2) provides that the court may dispense with the consent required
under subsection (1)(b) if the spouse whose consent is required cannot be
found or is incapable of giving consent, or the spouses are separated and living
apart and the separation is likely to be permanent.
Re Elena Nsubuga Kaggwa Misc Cause No 41/89. The natural father of the
infant was dead and the adoption order was given to her step-father and
natural mother. Consent can be dispensed with if the spouse can’t be found
and if they are separated.
Sec 45 (3) An adoption order shall not be made in favour of a sole male
applicant in respect of a female child, or in favour of a sole female applicant in
respect of a male child, unless the court is satisfied that there are special
circumstances that justify, as an exceptional measure, the making of an
adoption order.
Re George Kagulu Rebecca & Others Misc App No. 43 /44/45 of 1998.
Court held that in granting an adoption order, the paramount interests of the
child would be served by the uncle looking after the child, because he was
linked with them and he had love and affection for them. In this case, the
applicant was the natur
Sec 45(4) The application shall not be considered unless the applicant has
fostered the child for a period of not less than twelve months under the
supervision of a probation and social welfare officer.
In the Matter of Michael Benjamin Pietsche Misc. App No 121 of 2008,

court held that inspite of the fact that the applicants were foreign citizens and
had only fostered the child for 2 years, it was in the best interests that the
child be adopted.
In the Matter of Michelle and Thomas Ikandikwe, Adoption Cause No 105

of 2004, court held that if provisions of S46(1) of the Children Act are read as
only directory, and not mandatory, it is then possible in appropriate cases that
the best interest of the child in question militate towards waiving the remaining
period for this court to grant an order of adoption, notwithstanding the fact
that the the petitioners have fostered the infant for less than 3 Years (now one
year).
Sec 45.(5) The probation and social welfare officer shall be required to submit
a report to assist the court in considering the application; and the court may, in
addition, require some other person or the local authority to make a report in
respect of the adoption application.
Sec 45(6) Except where the application is by spouses jointly, an adoption
order shall not be made authorising more than one person to adopt a child at
the same time.
SECTION 46(4) (amendment) provides that court may in exceptional

circumstances waive any of the requirements specified in Subsection (1)
The age of the child needs to be proved:
Rule 9(1) of the Children (Adoption of Children) Rules S.I 52-1, provides
that the age of the child shall be proved to the satisfaction of the court which
may admit documentary or other evidence to determine the age.
Rule 9(2) A certified copy of an entry in a births register book issued in

Uganda by a registrar appointed under the Births and Deaths Registration Act
in respect of the child shall be prima facie evidence of the facts contained in it.
Rule 9(3) The court may itself inquire into the age of the child and may make
an order for the medical examination of the child in Form E in the Schedule to
these Rules, in accordance with section 107 of the Act.
The Children (Adoption of Children) Rules S.I 52-1
Rule 9(4) A certificate signed by a medical officer as to the age of the child
shall be evidence of that age.
ADOPTION BY NON-CITIZENS: (PREREQUISITES FOR FOREIGN

APPLICANTS.
Sec 46(1) A person who is not a citizen of Uganda may in exceptional
circumstances adopt a Ugandan child, if he or she—
(a) has stayed in Uganda for at least one year(as per the amendment);
Re M (an infant) SCCA 22/94. Court held that the words residence in Uganda
must be given a liberal and purposive interpretation. In this case the Applicant
lived partly in Uganda and partly in Austria. Court held that one can 2
residences and reside in both. A temporary presence at an address does not
make one a resident there, and that temporary absence, depending on the
circumstances of the case, does not deprive one of his residence.
(b) has fostered the child for at least thirty-six months under the
supervision of a probation and social welfare officer;
In the Matter of Michelle and Thomas Ikandikwe, Adoption Cause No 105
of 2004, court held that if provisions of S46(1) of the Children Act are read as
only directory, and not mandatory, it is then possible in appropriate cases that
the best interest of the child in question militate towards waiving the remaining
period for this court to grant an order of adoption, notwithstanding the fact
that the the petitioners have fostered the infant for less than 3 Years (now one
year).
See Also: Re: Margaret Laker & Savana Apio Adoption Cause No. 3 of
1998
(c) does not have a criminal record;

Case: RE: Edith Nassanzi (An Infant) Adoption Clause No.4 of 1997
(d) has a recommendation concerning his or her suitability to adopt a

child from his or her country‘s probation and welfare office or other
competent authority; and
(e) has satisfied the court that his or her country of origin will respect and
recognise the adoption order.
The Petition is in the format of FORM B of the rules:
Rule 3(2) Children (Adoption of Children) Rules S.I 52-1
When a petitioner or the child is a non-Uganda citizen, the application for an
adoption order shall be made to the High Court in Form B in theSchedule to
these Rules.
RE: EDITH NASSANZI (AN INFANT) ADOPTION CLAUSE NO.4 OF 1997.
The application for adoption was by a sole male Applicant in respect of a

female child. The Applicant was a German tutor in Germany. He was also a
Principal of a home to physically handicapped children. The infant child was
aged 1, physically handicapped and couldn’t stand but only crawled on the
ground, and was an orphan staying with the paternal aunt. In 1993, the aunt
of the child requested the applicant to take the infant. Since then the Applicant
had been fostering the child at the home in Bulera.
Issue. Whether there were special circumstances justifying the making of an

adoption order.
Court granted the adoption order to the applicant on the following grounds.
i) The child was physically handicapped and needed specialized care.

She needed a home where she could be provided with special
equipment to assist her in her position. The Applicant had such a
home.
ii) The applicant had been defacto guardian of the infant since April
1993.
iii) That apart from the applicant, there was no other person willing to
provide for the special care and maintenance that the child needed.
iv) That there was an age difference of 44 years between the applicant
and the infant child.
v) That the applicant was married and led a settled marital existence and
his wife consented to the adoption
RE PAULA ROBERTSON AND CYNTHIA ROBERTSON. ADOPTION CAUSE
NO. 31 OF 2004.
Court held that the conditions specified in Section 46 of the Children Act are
not mandatory but directory, on account of the reason that the Welfare
Principle specified in Section 3 of the same Act is paramount. Its application
overrides other provisions of the same Act, thus an adoption order may not be
refused to be granted, where refusal is evidently contrary to the welfare of the
child involved.
RE MIREMBE NAMANSA. ADOPTION CAUSE 110/2009 (MISC CAUE

37/2009.
Court waived the age difference. The petitioner was 27 and adopted an11 year
old. Court observed that the petitioner was only 16 years older and did not
fulfill the requirement, but he was an uncle of the child and married and had
fostered the child and both parents had consented.
REQUISITE CONSENTS TO THE ADOPTION:

Sec 47(1) The consent of the parents of the child, if known, is necessary for
the adoption order to be made; but the consent may be revoked at any time
before the pronouncement of the adoption order.
Sec 47(6) If the child is at least fourteen years of age, his or her consent to
the adoption must be obtained unless it is impossible for him or her to express
his or her wishes.
Sec 47(7) Where it appears to the court that any person who is not the parent
of the child has any rights or obligations in respect of the child under any order
of the court or agreement or under customary law or otherwise, the court may
require the consent of that person before the adoption order is made.
Rule 8(1) Children (Adoption of Children) Rules S.I 52-1:
A consent required by the Act shall be given in Form C in the Schedule to these
Rules, except that a consent required by the Act from a child over the age of
fourteen years shall be given in Form D in the Schedule.
Rule 8(2) All consents shall be sworn before a commissioner for oaths and
shall be submitted together with the affidavit of verification with the petition or
accompanied by a separate affidavit of verification.
EFFECT OF AN ADOPTION ORDER:
The parents or other guardian lose all parental responsibility over the child:
Sec 51. Effect of an adoption order.
Upon an adoption order being made—
(a) All rights, duties, obligations and liabilities of the parents and guardians in
relation to the future custody, maintenance and education of the child,
including all rights to appoint a guardian and to consent or give notice of
consent to marriage, are extinguished; and
The applicant acquires the above responsibility:
Sec 51 (b) There shall vest in, and be exercised by, and enforceable against
the adopter all such rights, duties, obligations and liabilities in relation to the
future custody, maintenance and education of the child as would vest in him or
her if the child were the natural child of the adopter born to him or her in
lawful wedlock.
PROCEDURE FOR ADOPTION:
Under Section 49(1) Children Act, the Chief Justice may by Statutory
Instrument make rules regarding matters under this part and the procedure to
be followed by court in adoption proceedings.
Accordingly, the procedure to be followed is set out in the Children (Adoption

of Children) Rules S.I 52-1.
Rule 3(1) Children (Adoption of Children) Rules S.I 52-1. Application by

petition.
When the petitioner or petitioners and the child are all Uganda citizens, the
application for an adoption order shall be made by petition to the chief
magistrate‘s court, in Form A in the Schedule to these Rules.
Rule 3(2) Non Ugandan Appication is made to the High Court in Form B.
Rule 7. Verification by affidavit. The statements contained in the petition

shall be verified by an affidavit to which shall be annexed certificates and other
documents proper for proving the allegations in the petition.
Rule 3(3) The petitioner or petitioners shall present the petition ex parte in
person or by advocate to a judge or chief magistrate sitting in chambers; and
the judge or the chief magistrate shall give such directions as to service,
appointment of a guardian ad litem, any further consents as may be required
and otherwise as may be necessary.
Rule 5(1) The petition shall be served on, the parent or parents of the child, if
any; or if none, the guardian or guardians of the child; or if none the person or
persons having the actual custody of the child; or if none the person or persons
liable to contribute to the support of the child; and the child, if of the age of
fourteen years or above.
Rule 5(2) The Judge or Chief Magistrate may dispense with the service on any
of those persons listed in sub-rule (1) and may order the petition to be served
on any other person
Mode of service.
Service of the petition on the above persons shall be personal and

verified by affidavit:
Rule 6(1) Every petition, notice or document shall, unless the judge or chief
magistrate otherwise directs, be served by an officer of the court, by delivering
or tendering a copy of it signed by the registrar or the chief magistrate and
sealed with the seal of the court to the person to be served.
Rule 6(2) The service of every petition shall be verified by affidavit, unless the
judge or chief magistrate otherwise directs.
Rule 11. Response to petition.
The guardian ad litem or the persons whose consent is required by the Act
may file an affidavit in response to the petition.
Rule 12. Fixing of hearing. When all documents have been filed and served
to the satisfaction of the court, the court shall fix a date for a hearing and give
notice to all parties in Form F set out in the Schedule to these Rules.
Rule 13. The Judge or Chief Magistrate shall sit in Camera and shall not
interpose any other matters during the hearing of the Adoption proceedings.
Rule 14. All documents filed in the court shall be confidential and shall be kept
in secret by the registrar or Chief magistrate.
After the Adoption Order is granted, register it with the Registrar of Births and
Deaths (URSB) – Section 54 Children Act
PETITION FOR ADOPTION
IN THE CHIEF MAGISTRATES’ COURT OF ENTEBBE AT ENTEBBE
ADOPTION CAUSE NO. ________________ OF 2007
IN THE MATTER OF S.45 OF THE CHILDREN ACT CAP 59
AND
IN THE MATTER OF NATASHA KASSAMI
PETITION FOR ADOPTION
The Petition of PLAXEDES KASSAMI of C/O Kasirye, Byaruhanga & Co.

Advocates of Postal Address Number 10946 Kampala, Uganda states as
follows:-
1. The Petitioner is desirous of adopting the said NATASHA KASSAMI aged 17

(sixteen) under the provisions of the Children Act Cap 59. (Copy of the birth
certificate is attached hereto and marked annexture “A”.)
2. The Petitioner is resident at 118A Landor Road, SW 99NT London, United

Kingdom and is a Ugandan citizen. (Copy of the passport is attached hereto
and marked “B”).
3. Your Petitioner is not married and therefore lives alone.
4. The Petitioner is by occupation a Hotelier and works with the Devere
Cavendish Hotel London.
5. The said child was born to my brother Christopher Kassami and Proscovia
Kangume Kassami who are both alive.
6. The Petitioner is fifty five (55) years old having been born on 28th November
1952. (Copy of her birth certificate is attached hereto and marked
annexture “C”.)
7. Your petitioner is related to the said child by reason of the fact that she is
the paternal aunt, being a sister to the child’s father the Mr. CHRISTOPHER
KASSAMI.
8. The said NATASHA KASSAMI is: -
(a) Of the female sex.
(b)Unmarried.
(c) A child born to Christopher Kassami and Proscovia Kangume

Kassami.
(d) 17 (seventeen) years old.
(e) A citizen of Uganda and a resident of Entebbe within the

Jurisdiction of this Honourable court.
(f) Now in the actual custody of his biological father and mother Mr.
and Mrs. Christopher Kassami of Entebbe.
9. The Petitioner attaches the following consents as required under the law.
Name of the person consenting Relationship with
child
(a) Mr. Christopher Kassami Father
(b) Mrs. Proscovia Kangume Kassami Mother
(c) Ms. Natasha Kassami The Child
10. The said NATASHA KASSAMI has not been the subject of any adoption
order or an application or petition for an adoption order.
11. Your petitioner has not received or agreed to receive and no person has
made or given or agreed to make or give the petitioner any payment or
reward in consideration of the adoption of the said NATASHA KASSAMI.
12. That the child has been fostered by the petitioner since _______ under
the supervision of the PSWO, whose report is annexed hereto and marked
D.
13. It is proposed that your petitioner pays the costs of this petition.
YOUR PETITIONER PRAYS:
(a) That an order for the adoption of the said NATASHA KASSAMI by
your petitioner may be made in pursuance of the Children Act Cap
59 with all necessary directions.
(b)That the costs of this petition may be provided for as above

mentioned or otherwise as the court may direct.
(c) Such further order as the nature of the case may require.
Dated at Kampala this ___________________ day of _________________
2007.
_________________________________
THE PETITIONER
Before Me
_____________________________
COMMISSIONER FOR OATHS
DRAWN & FILED BY:

M/s Kasirye, Byaruhanga & Co.,
Advocates & Solicitors,
33 Clement Hill Road,
P. O. Box 10946,
Kampala, UGANDA
VERIFICATION
I PLAXEDES KASSAMI, hereby take oath and state that the contents of the
petition are true and correct to the best of my knowledge
_________________________
PETITIONER
Before Me:
_____________________________
DR AWN & FILED BY:
M/s Kasirye, Byaruhanga & Co.,
Advocates & Solicitors,
33 Clement Hill Road,
P. O. Box 10946,
Kampala, UGANDA
GUARDIANSHIP
Black’s Law Dictionary 8th Edition defines a guardian as one who has the
legal authority and duty to care for another’s person or property because of the
other’s infancy, incapacity or disability.
Section 6(1) of the Children Act as amended states that every parent or
guardian shall have parental responsibility of his/her child.
Section 6(2) of the Children Act as amended provides that where the natural
parents of a child are deceased, parental responsibility may be passed on to
the relatives of either parent, or by way of a care order, to the warden of an
approved home, or to a foster parent.
JURISDICTION.
An Application for Guardianship is made in the High Court. Section 43B(b)

Children Act as amended
LEGAL GUARDIANSHIP
S.43 A (1) as amended. (Guardianship of children in Uganda by citizens of
Uganda)
S.43 A (2) (non-citizens not eligible to apply for legal guardianship.
Application for legal guardianship
 S.43 B (a) it may be made by any person above the age of 18years
 S.43 B (b) made to the high court.
 S.43 B (c) shall be by petition in Form 1 set out in the Third Schedule to
the Act.
 S.43 B (d) shall be accompanied by a report of PSWO
Re Namugerwa Joyce and 2 Others (2009)
The aunt to the minors was in charge of taking care of them. She was desirous
of selling part of the land which was in the minors’ names in order to provide
basic necessities. Justice Irene Mulyagonja stated that the court has the
obligation to stand in the shoes of that child and examine whether the
applicant really has cause to dispense of it and that a PSWO acts as eyes and
ears of the judge/court. That since the minors weren’t given the opportunity to
express their views and have these views taken into account, the application
for guardianship failed.
Re Deborah Joyce Alibubeera Civil Appeal No. 70 of 2011.
An irresponsible and worthless drunkard father of the child couldn’t look after it
after separating with the mother. The child was then placed under the care of
an NGO. The applicants, a married couple living in California applied for the
grant of legal guardianship. The application was dismissed on grounds that
they were foreign nationals and they weren’t residents of Uganda and court
would be incapable of supervising the welfare of the child. See also Rem (an
infant)
Re Sanyu Elivania 2005)
The applicant (an aunt) sought for legal guardianship of Robinnah Kiyinji’s
daughter. Justice Okumu Wengi stated that the applicant is a fit and proper
person considering that she knows the child, she is the sister to the deceased
mother, she is an established mother who will look after the child given that
the child may be torn been the post traumatic emotions of the loss of the
mother and uncertainty surrounding the father.
CUSTOMARY GUARDIANSHIP
S.43 C (1) of Children Act as Amended provides that family members may
appoint a guardian of a child in accordance with their customs/culture
Conditions/Instances justifying the appointment of a Customary

Guardian.
Section 43C (1) –
a) Where both parents are deceased/can’t be found.

b) The surviving parent is incapacitated or
c) Where the child has no guardian or any other person having parental
responsibility.
S.43 C (2) the customary guardian shall act as a trustee in respect of property
of the child.
S.43 C (3) misappropriation of property of the child is a criminal offence and

attracts a fine of 150 currency points or 5years imprisonment.
S.43 C (4) customary guardianship means parental responsibility of a Ugandan

child by a Ugandan citizen resident in Uganda in accordance with the customs,
culture/tradition.
APPOINTMENT OF A GUARDIAN BY AGREEMENT

This is provided for in Section 43D
Section 43D (1) provides that the Parent of a child may, by agreement or
deed appoint any person to be a guardian.
Section 43D(2); the deed or agreement must be dated and signed by the
parent in the presence of the witnesses, one of whom must be a PSWO and the
other must be a local councilor at LC1 level.
TESTAMENTARY GUARDIANSHIP.
S.43 of the succession Act (A father may by will appoint a guardian(s) for his
child)
Law Advocacy for women in Uganda v AG (2007)
Where S.2 (n) (i) and (ii), 23, 26, 27, 29, 43, 44 of the succession Act and
section 154 of the PCA were held to be inconsistent with the constitution.
Specifically Article 21 (Equality and freedom from discrimination), Article 33

(Rights of women), among others.
These authorities harmonize provisions of the succession Act to include women

as equals to men.
BIOLOGICAL PARENTS CAN APPLY FOR GUARDIANSHIP

Re Ayla Mayanja Misc. cause 20/2003
The applicant, a Belgian cohabited with Joseph Mayanja and during their stay
together they produced a child. The two separated due to the respondent’s
acts of cruelty. The applicant a biological mother sought an order of
guardianship of the child. The respondent did not object and the court granted
both guardianship and custody to the applicant.
A person who acquires responsibility over a child should take care of the
property in the child’s best interest.
Re Namugerwa Joyce and 2 Others (2009). Justice Mulyagonja refused to

grant the order because she considered the minor’s interests in the property
when they come of age.
Re Otim Gabriel (2013)
The applicant, a brother to the minor applied for guardianship to enforce the
rights of the minor. The applicant, the minor and other brother (Otim Moses)
owned land jointly and then they wanted to sell the land in order to look after
the minor. The minor stated to court on oath that the applicant is the brother
and he looks after him and he isn’t opposed to his selling of the land to cater
for his school fees. Guardianship order was granted.
PRE-REQUISITES OF GUARDIANSHIP (SECTION 43 F (1)-(5)
Section 43F (1) the court shall before making a guardianship order, satisfy
itself that:
a) There is no known relative or next of kin of the child.

b) The relative or next of kin are unwilling/unable to take parental
responsibility of the child.
c) All alternative care options available to the child have been exhausted.
d) The child is suffering/likely to suffer significant harm under present

custody.
e) Consideration has been given to the wishes of the child, having regard to
the child’s age and understanding.
f) Consent of the child where he/she is 12years and above unless where a
child can’t express his/her consent.
Subsection 2 provides that, the court shall satisfy itself that;
a) Applicant has lived in Uganda continuously for at least 3months.
b) Applicant has no criminal record
c) Has a Recommendation from a PSWO or other competent authority
Subsection 3. Applicant must not made any payment or reward in

consideration for the guardianship.
Subsection 4. Court may dispense with any consent required if the person to
consent has consistently abandoned the child or is incapable of giving the
consent.
GUARDIANSHIP ORDER.
Court may grant guardianship order upon the fulfilment of all the requisite
conditions. Section 43G (1)
Section 43 G (2) provides that only spouses can be granted joint guardianship
Re Otim Gabriel (Supra). The minor had consented and his wishes were
taken into account.
Re Mark and Stacy Luckey 2002
An infant was found abandoned in Wakiso district and taken to Nsambya

babies’ home. The child was in a very poor state of health. The applicants
looked after the child and sought the parents through adverts but no one came
forward the court found that the applicants (US citizens) were fit and proper
persons to be granted guardianship.
EFFECT AND DURATION OF GUARDIANSHIP ORDER S.43 H

 It shall vest parental responsibility of the child in the guardian.
 It shall remain in force until the child attains 18years.
 It shall cease to apply where the guardian dies or is suffering from

infirmity of body/mind.
 S.43I Registration of Guardianship Order, guardianship order to be

registered within 14 days after grant with both the URSB and the
ministry responsible for children and a copy submitted to the National
Children Authority.
REVOCATION/ TERMINATION OF GUARDIANSHIP ORDER. SECTION 43K

 A probation officer or relatives of a child may apply to revoke the order.
 Where the order was obtained by fraud or misrepresentation.
 Where the guardian hasn’t complied with the conditions issued by court.
 Where the guardian has neglected parental responsibility over a child.
 After revocation, court shall place the child under alternative care.
S.43 M Offences by the administrator of the estate of the child.
Neglecting, misappropriating, wasting or occasioning loss or damage to any

asset forming part of the estate.
Failure to submit to court/parent/guardian any account or inventory required

by law.
Producing an inventory/an account which is false in any material particular,

knowing it to be so.
The above is punishable by 5years imprisonment or a fine not exceeding

100currency points or both. The court shall also require the person to make
good any loss or damage caused.
Re Musasizi Joel and Yusuf Kalule
The judge dismissed an application to legal guardianship on the basis of the

information in the applicant’s home study which stated that the applicants
weren’t practicing any religion were both divorcees and that their families
hadn’t approved of their current marriage and couldn’t be welcoming to
children. Although they would provide material needs of the children, they
wouldn’t provide spiritual and emotional support that the children needed.
WORKSHOP 1 (CHILDREN)
BRIEF FACTS
Busega children’s home is a shelter where abandoned children are catered for
until the age of 5 years. Sumayah has reached the age of 5 years and she can
longer stay in the home. Mark Bukenya has shown interest and would like to
cater for the welfare of Sumayah. Mark neither wants to adopt Sumayah nor
be her guardian. He only wants to act as a parent to Sumayah.
ISSUES
1. What is the procedure and relevant documents required to foster

Sumayah?
2. What are the necessary documents?
3. What are the other alternatives available to Mark Bukenya to cater for
Sumayah?
4. What factors would be taken into account when suggesting the

alternatives?
LAW APPLICABLE
1. The 1995 constitution of Uganda.
2. The children Act cap 59.
3. The children (family and children court) Rules S.1 59–2
ISSUE ONE
FOSTER CARE PLACEMENTS
Defines foster care placements to mean the placement of a child with a person
who is not his/her parent or relative and who is willing to undertake the care
and maintenance of the child.
Defines a foster parent to mean a parent not being the biological mother,
father or relative of the child who assumes parental responsibility of the child
by way a care order.
Part VI of the Act provides for faster care placements.
S.43 Provides for the foster care placements.
S.43 (1) Provides that where a child has been committed to an approved
home under a care order, the district probation and social welfare officer, in
conjunction with the warden of the approved home, may place the child with a
person who is willing to undertake the care and maintenance of the child
referred to as the “foster parent”.
S.43 (2) An application to foster a child shall be made to the district probation
and social welfare officer, except that a relative of a child without a parent or
guardian may foster the child without first applying to the district PSWO and
the section does not apply to him/her.
The foster parent in whose care a child is committed shall, while the child
remains in his/her care have the same responsibilities in respect of the child’s
maintenance as if he/she were the parents of the child. S.43 (3)
PROCEDURE FOR OBTAINING A FOSTER CARE PLACEMENT ORDER

Foster care placements are made in accordance with the rules set out in the
schedule to the Act.
Foster care placement rules (second schedule)
Any person interested in fostering a child shall complete the application form
specified in form 1 of the schedule to the rules and submit it to the district
Probation and Social Welfare Officer or to the warden of an approved home.
(Rule 4)
Rule 5 provides for the persons qualified to foster children.
Rule 5 (1);
a) A husband and wife, but if the man has more than one wife, the name of
the one who is to be the foster mother should be clearly stated.
b) A single woman not below the age of 21years
c) A single man not below the age of 21years.
Rule 5 (2) Provides that a single man may not foster a female child under this
Act.
A non-citizen staying or residing in Uganda is qualified to be a foster parent.

(Rule 5(3))
Procedure before placement
Rule 6 (1) of the rules provides that a child shall not be placed with a foster
parent who is not a relative of the child unless.
a) A Probation and Social Welfare Officer has interviewed the prospective

foster parent and assessed that he/she is a suitable person to foster a
child.
b) A PSWO has visited the home of the prospective foster parent and has
confirmed in writing that it’s likely to meet the requirements particular to
the child and that the conditions are satisfactory.
c) 2 persons who know the prospective foster parent well have vouched for
his/her good character and suitability to care for the child and one of the
two persons shall be the secretary for children’s affairs of the village local
council or the village chief.
d) It has been established from the secretary for children’s affairs of the
council or the person in charge of any government medical unit in the
area that no person in the house of the perspective foster parent is
suffering from any physical or mental illness likely to affect the child
adversely.
e) It has been established from the secretary for children’s affairs or from
officer in charge of the police station in the area that no person in the
home has been convicted of a serious criminal offense rendering it
undesirable for the child to associate with that person.
f) The wishes of the child so far as can be ascertained and concerning the
proposed fostering have been ascertained and have so far as practicable
been taken into account.
Rule 6 (2) The PSWO concerned with foster shall make a written report which
shall contain the;
a) The information required in sub rule (1) of the rule.
b) Details of the name, approximate age, religion and employment of the

prospective foster parent
c) The number and approximate ages of other persons living in the

house hold of the prospective foster parent.
The report shall be in Form 3 as specified in the schedule to the Rules. (Rule 6
(3))
Rule 7 (1) Where a child’s religion is known, the child shall be placed with a
foster parent who is of the same religion as the foster child, but where that is
not possible, the foster parent shall undertake to bring up the child in the
religious denomination of the child.
Rule 8 Cultural background of the foster parent should be the same as that of
the foster child or as the child’s parents. Should originate from the same area
in Uganda as the parents of the child.
Rule 9 An undertaking by foster parents on the day on which the child is
placed with him/her shall be signed by him/her in the presence of a witness.
Rule 9 (2) Prospective foster parent cannot read the English language; the
supervising officer should cause the undertaking to be explained to the
prospective foster parent and shall certify to that effect.
Rule 10 Medical examination by a qualified medical practitioner or any other

medical personnel not below a rank approved by the director of medical
services.
Rule 12 Visits by a PSWO during placements to oversee/supervise the

placements.
Documents
1. Application to foster a child (form 1).
2. Form of undertaking (form 2).
3. Certificate.
DOCUMENTS
Form 1
Application to foster a child
Foster care placements
The children Act
Name of the applicant:

…………………………………………………...
Married/single: ……………………… Age:

……………………………
Address: …………………………………………………………………..
………………………………….. Tel no:

………………………………..
Number of children: ………………………… Ages:

……………………
…………………………………………………………………………….
Employment of applicant:
………………………………………………..
Employment of husband:
…………………………………………………
Employment of wife:
……………………………………………………..
Other sources of income (e.g. farm):

………………….…………………
……………………………………………………………………………..
Have you ever fostered child/children before? (if yes give

particulars)
…………………………………………………………………………….
…………………………………………………………………………….
…………………………………………………………………………….
Reason to foster:
………………………………………………………….
…………………………………………………………………………….
Are you willing to undertake short term fostering?

..............................
Names of two referees and their addresses. (one should be

your local LC1 chairperson or village chief)
1. ……………………………………………………………………
2. ……………………………………………………………………
Age range: ………………. Sex of child you wish to foster:

…………..
Applicant’s signature: ……………………
Date: …………………………..
ISSUE THREE
Other alternatives available to Bukenya
SUPERVISION ORDER AND CARE ORDER.

S.19 (1) On the application of a probation and social welfare officer or an
authorized person, a family and child court may make.
a) A supervision and interim supervision order placing a child under the

supervision of a PSWO while leaving the child in the custody of his/her
parents and relatives.
b) A care order or interim care order placing the child in the care of the
warden of an approved home or with an approved foster parent in
accordance with the foster care placement rules in the second schedule.
S.20 (1). The family and children court shall require a written welfare report in
respect of a child before making a supervision order or a care order.
S.20 (2). It shall be the duty of the probation and social welfare officer to
prepare a welfare report.
SUPERVISION ORDER
GROUNDS FOR MAKING A SUPERVISION OR CARE ORDER.
S.21 (a) the child concerned is suffering or is likely to suffer significant harm.
S.21 (b) that the harm or probability of harm is attributed to;
i. The care given to the child or likely to be given to the child if the order
was not made.
ii. The child’s beyond the parental control.
Application for a Supervision Order
S.22 before making an application for a supervision order, the probation and
social welfare officer or an authorized person shall be satisfied that;
a) The local government councils from village to sub county level where the
child resides have dealt with the matter without success.
b) There is need for continuous of supervision enforced by a court order.
S.23 Duties of a supervisor while a supervision order is in force.
S.24 duration of a supervision order; one year may be extended for one
further year on application of PSWO.
S.26 Requirements as to change of address and visits.
CARE ORDER.
S.27 of the Act:
S.27 (1) A family and children court may on the application of a PSWO or an
authorized person, make a care order or an interim care order placing the child
in the care of the warden of an approved home or with foster parents.
S.27 (2) conditions under which a care order can be made;
a) After all possible alternative methods of assisting the child have been
tried without success and the significance the child is facing requires
his/her immediate removal.
b) The danger to which the child is exposed is so as to require him/her

immediate removal from where he/she is living.
S.28 Purpose of a care order.
S.29 Duration of care order; a maximum period of 3 Years or until the child
reaches the age of 18years.
S.30 Duty of a PSWO to enforce the care order
S.31 Duty/parental responsibility of the foster parent or warden.
S.32 Special duties of the PSWO in relation to care order
S.33 Interim supervision order and interim care order- maximum period is 3
months.
PROCEDURE FOR CARE OR SUPERVISION ORDER

Rule 19 (1) of the children and family court rules. A person seeking any of the
orders in this rule shall apply to court supported by an affidavit and any reports
or documents to be relied upon shall be attached to the application.
Rule 19 (2) the orders referred to in sub rule 1 of these rules inter alia
include;
a) Supervision order
b) Care order
Rule 19 (3) An application under sub rule (1) of this rule shall be as specified
in Form 1 in schedule to these rules.
Rule 21 Court shall issue a summons to the respondent directing him/her to

appear in court on a date named in the summons.
ISSUE FOUR
FACTORS TO BE TAKEN INTO CONSIDERATION

 The welfare principle under S.3 of the children Act.
 S.27 of the children Act: S.27 (2) conditions for granting a care order.
 S.21 of the Act which states the grounds.
 Undertaking for foster care placement. Form 2 (in the rules)
 Certificate of translation (if the foster parent does not understand
English)
CERTIFICATE
I Ms. Betty Musisi the probation and social welfare officer, Busega certify that I
have explained the foregoing undertaking in the Luganda language to Mark
Bukenya, the foster father.
Betty Musisi Ibrahim Kiyingi
PSWO Witness
Date: 02/02/2017
WORKSHOP 2 CHILDREN
BRIEF FACTS
Geoffrey Kiwanuka got married to Valeria Mwesigwa on the 27th March 2009
at St Paul’s Church Nagulu. They have two children Glovarni Kisakye aged
5years and Valeria Kusubira aged 3years. That on the 1st day of December
2014, Valeria together with the children left the matrimonial home. Valeria is
living with her parents at Maganjo in a two bedroom house together with other
five relatives of Valeria. Valeria has refused him to see the children. The home
where the children are is not conducive to their welfare. It is shared by many
people hence lack of privacy. The children cannot fully express themselves as
they are surrounded by adults. They lack proper discipline and cannot freely
access the paternal side of family. Geoffrey Kiwanuka has a better income than
the mother’ and can ably cater for their welfare. He lives in the matrimonial
home in Bunga. It has five bedrooms and is double stored. The mother does
not have time for the kids as she is caring for her elderly parents.
ISSUES
1. Whether Geoffrey Kiwanuka can have the children with him in his house.
3. How can the orders in favor of the children be enforced?
4. What children’s rights are violated in the above facts taking into account
international, regional and national laws?
LAW APPLICABLE
2. The international convention of the Rights of the child.
3. The African charter on the Rights and welfare of the child 1999.
4. The children Act Cap 59.
ISSUE ONE
Geoffrey Kiwanuka can have the children with him in his house if he can
acquire custody of the children.
CUSTODY
This concerns the legal rules governing the right of children regarding who to
live with.
The general rule is that both parents have a right to be with their children and
bring them up as under Article.31 (4) of the 1995 constitution.
The guiding principle is the child’s welfare is paramount as stated under

Section 3 of the Children Act.
Nakaggwa v Kiggundu (1978) HCB 310, court recognized the welfare of the
child as the paramount consideration in custody proceedings and held that in
determining who shall have the custody, it is well established that the
paramount consideration is the welfare of the child such factors as the father’s
natural and superior right to custody over the child as against the mother, the
claims of other relatives and the conduct of the parties among others should be
taken into account in determining the welfare of the child.
Court went on to say that the term welfare though incapable of exact definition
means in relation to custody of a child that all circumstances affecting the
wellbeing and upbringing of the child have to be taken into account as the
court has to do what a wise parent acting for the interest of the child ought to
do.
Section 1(f) Defines custodian to mean a person in whose care a child is

physically placed.
Section 73 (as amended) Provides for custody of children under Section

73(1), the court may on the application of a sole applicant or joint applicants,
grant custody of a child on such conditions as may be determined by the court.
Sec.73 (2) Provides that the court may at any time revoke the grant of
custody to one person and make the grant to another person, institute or
organization.
Sec.73 (3) of the Act provides that the in reaching its decision under sub
section (1) and (2), the court shall primarily consider the welfare of the child.
Sec.73 (4) a person who unlawfully removes a child from the lawful custody of
a person, institute or organization commits an offence and shall be dealt with
in accordance with this Act.
Hofman v Hofman (1970) E.A.100 custody of the child of the marriage, a

boy aged 6years was granted to the respondent father but interim custody was
granted to the mother pending the hearing of the appeal.
Access to the child was given to the father who failed to return him on two
occasions, on the second of which he took him into Tanzania where he had
taken a job.
Held;
1. A kidnapper should not obtain an advantage from kidnapping.
2. Disobedience of a parent of a court order should not influence the court

against the parent to the disadvantage of the child.
3. Father’s superior position was irrelevant that he could support the child
properly while he was with the mother.
4. Presumption that a child under age of 7years could be with his mother
has not been displaced.
In Karanu, Karanu (1968) EA 36, on an ex parte application, the High Court

granted the husband the custody pending a suit of the children and refused to
alter the order. The children were a boy and a girl 7 and 8 years respectively.
There was evidence that they were sickly and needed constant attention, on
appeal, court of appeal held that the judge had misdirected himself in not
referring to the presumption that young children should be with the mother,
custody would be given to the mother.
FACTORS TO BE CONSIDERED IN CASES OF CUSTODY

1. Welfare of the child. S.73 (3) of the Act, the court shall primarily
consider the welfare of the child.
Section 3 of the children Act, as amended provides that the guiding principle
is the child’s welfare which is paramount. It provides that the welfare principle
shall be the guiding principle in making any decision based on this Act. See
Also Nakaggwa v Kiggundu (1978) HCB 310.
Hassan Mariam Mohammed (1977) HCB 43; it was held that the welfare of
the children is a paramount consideration and the matter of custody is best
determined after hearing both parties and custody should not be granted until
both parties have been heard.
2. Children of tender years.
It is presumed that children of tender years that is 7years and below should
live with their mother as opposed to the father.
Teopista Kayongo v Richard Sekiziyivu (1978) HCB 240. It was held that
as concerns children of tender years, such children should normally stay with
their mother unless she is not a fit and proper person. And where the custody
of the children is taken away from their mother, the mother should be free to
visit her children as often as she pleases.
3. Better financial status.
Hofman v Hofman (1970) E.A. 100 court held that although the father’s
superior financial position over the mother was irrelevant in custody cases, it
could not be ignored, if it could be proved that the father could use his superior
financial position to cater for the welfare of the child better than the mother
whose financial inferiority would stand in her way, the overriding factor is the
interests of the child and if the father could use them to enhance the welfare of
the child, it could be taken into consideration.
George Nyakairu v Rose Nyakairu (1979) HCB 261 (pg 04)
4. Conduct of the parties
Nyakairu v Nyakairu court held that in applying the welfare principle court
had to consider other ancillary circumstances e.g. such matters as; who of the
spouse was to blame for the breakup of the marriage, who of the spouses was
more financially equipped to look better after the interests of the children and
which spouse could provide a more comfortable home.
Court held that immorality on the father was not sufficient justification for
interfering with the common law right of custody of children unless such
immorality was very flagrant or was coupled with other habits injurious to the
children.
5. Right of access of the child should be exercised reasonably.
S.4 of the children Act provides for the child’s right to stay with parents and
S.5 places upon parents a duty to maintain the child.
The other parent therefore has a right of visitation where there is separation.
Under S.84 (2) the right of the parent to reasonable access to the child is
recognized.
Habyarimana v Habyarimana (1980) HCB 139, court held inter alia that the
respondent (father) as a parent having a right to access his child would be
entitled to visit the children as often as he pleased provided that such visits do
not interfere with the wellbeing of the children and where necessary the
children would be free to visit the respondent.
Teopista Kayongo v Richard Sekiziyivu (1978) HCB 240, court held that
where the custody of the children is taken away from the mother, mother
should be free to visit her child as often as she pleases.
6. Joint participation of the parents in the upbringing of the child.
Section.86 of the children Act provides that in separation, divorce and nullity
cases there shall be joint consultation between the parents in bringing up the
child where the circumstances permit.
S.6 (1) of the Act provides that every parent shall have parental responsibility
of his/her child.
Pulkeria Nakaggwa v Dominiko Kiggundu (1978) HCB 310. Right to access
to the child provided that such access did not interfere with or disrupt the
wellbeing of the child. However a rigid time table of access was impracticable.
VARIATION OF CUSTODY.
Section 85 of the Act, where the court is satisfied on information from a PSWO
or an official of a local government council that the parent who has custody of
the child is wilfully neglecting or mistreating the child, custody shall be granted
to the other parent.
Unfit parents
S.87 of the Act provides that where the court in divorce, separation or nullity
proceedings finds that the child is suffering or is likely to suffer significant harm
as a result of both parents being unfit to have custody of the child, the court
shall place the child in the custody of the fit person, but the parents shall be
allowed to have reasonable access to their child unless it is not in the best
interests of the child.
The Queen v Gungail (1893) 2 QB 233 at 243, the court is placed in a

position of reason. In its prerogative to act as a supreme parent of the children
and must exercise its jurisdiction in a manner which a wise affectionate and
careful parent would act for the welfare of the child.
CONDITIONS IN CUSTODY ORDERS

Catherine Jema Kalisa v John Wikal Kalisa (1974) HCB 108, custody of
two children was given to the mother following an order of judicial separation.
In granting the custody order, court imposed a condition that the children
would not be removed from jurisdiction. The petitioner sought to vary the
order because she had found employment in Nairobi and found it was not easy
to transmit money easily to Uganda since their father had failed to keep his
obligation but he stated that he had no access to his funds then. The petitions
had planned to take the children to school in Kenya where she was a resident.
It was held that court would not vary its order merely to suit the convenience
of the petitioner. That by entrusting the children to the custody by her mother
and her going away to Nairobi, the petitioner had by her conduct shown some
irresponsibility towards the children since it was not impossible for her to
obtain employment in Uganda. To do so would amount to depriving the court
of the power to act in the best interest of the child.
ISSUE TWO
DOCUMENT
APPLICATION FOR CUSTODY
IN THE FAMILY AND CHILDREN COURT AT KAMPALA
IN THE MATTER OF THE CHILDREN ACT CAP 59
AND
IN THE MATTER OF GIOVANNIE KISAKYE AND VIANNA KUSUBIRA

(INFANTS)
AND
IN THE MATTER OF AN APPLICATION FOR CUSTODY ORDER
APPLICATION
I Geoffrey Kiwanuka, being the biological father of Giovanne Kisakye and

Vianna Kusubira apply for a custody order against the respondent, Valeria
Mwesigwa being the biological mother of Giovanne Kisakye and Vianna
Kusubira aged 5years and 3years respectively on the following grounds.
1. That I am the biological father of Giovanne (aged and Vianna Kusubira

(aged).
2. That on the 1st day of December 2014, the respondent together with the
children (infants) left the matrimonial home.
3. That the respondent is living with the children and her parents at
Maganjo in a two bed roomed house with other relatives of the
respondent.
4. That the home is not conducive to the welfare of the children as it is

shared by many people hence lack of privacy.
5. That the children cannot fully express themselves since they are
surrounded by adults.
6. That the respondent does not have time for the children she is caring for
her elderly parents
7. That the children cannot access their paternal side as the respondent has
refused to allow them access the application since December 2014.
8. That the applicant has a better income and can ably cater for the welfare
of the children.
9. That it is in the best interests of the children that the applicant be

granted custody.
Dated at Kampala this 3rd day of February 2017
Signed by the said
Geoffrey Kiwanuka ……………………
Applicant
 Affidavit in support
AFFIDANT IN SUPPORT OF APPLICATION.
I, Geoffrey Kiwanuka c/o firm F1 and H2 Advocates P.O. BOX 7117, Kampala
do swear and make an oath as follows;
1. That I am a male adult Ugandan of sound mind and the applicant in

which capacity I swear this affidavit.
2. That I am the biological father of the children, Giovvane Kisakye aged

5years and Vianna Kusubira aged 3years (copies of birth certificates are
annexed here to and marked ‘A’).
3. That on the 1st day of December 2014, the respondent the mother of the
infants left our matrimonial house together with the children.
4. That the respondent, together with the infants and five other relatives
are living in Maganjo with her parents in a two bed roomed house.
5. That the respondent has denied me access to see my children since

December 2014.
6. That the home where the children are is not conducive to their welfare.
7. That I am willing and able to take care of the children if this is granted.
8. That it is in the best interests of the children that the application be

granted.
9. That whatever is stated here in above is correct and true to the best of
my knowledge and belief.
Sworn at Kampala this 3rd day of February 2015 by the said Geoffrey
Kiwanuka.
………………….
Deponent
Before Me.
…………………..
Commissioner for oaths
Drawn and filed by;
Firm F1 Advocates.
P.O. BOX 7117
Kampala
ISSUE THREE
HOW CAN ORDERS MADE IN FAVOR OF THE CHILDREN BE ENFORCED.
MAINTENANCE ORDER
S.76 (7) court may make an order against the father or mother for payment
to the applicant of a monthly sum of money as may be determined by court.
S.76 (9) if the court thinks fit, it may in place of a monthly payment order that
a lump sum determined by the court be paid into court and that the sum shall
be expended on the maintenance of the child.
S.77 a magistrate may by warrant signed by him/her direct.
a) That an attachment of earnings be made or;
b) Sum due be recovered by distress and sale or redistribution of the

property of the father or mother unless he/she gives sufficient security
by way of recognizance or appearance in court on the day of
appointment.
If the person refuses to pay or neglects to pay the sum due.
S.79 money to be paid to applicant or custodian
ISSUE FOUR
CHILDREN’S RIGHTS VIOLATED AS PER FACTS

1. Right to stay with the parents (S.4 C.A)
2. The right to maintenance (S.5 CA)
3. The right to parental care (S.6 C.A A.7 ACRWC A.BC)
4. Freedom of expression A.7 ACRWC, A.9 CRC
5. Freedom of thought, consdence and religion. A.9 (1) ACRWC, A.14 CRC
6. Right to privacy A.10 ACRWC and A.16 CRC
7. Right to education A.11 ACRWC
8. Right to parental care and protection A.19 ACRWC
BRIEF FACTS
Susan Mukasa aged 22years had a love relationship with Sengendo Ssaka. The
relationship resulted into the birth of a baby girl Raniya Sengendo on the 1st
day of June 2016. Throughout the pregnancy, Sengendo used to give her
money for her up keep and for the good times she gave him. After the birth of
Raniya, Sengendo stated that he was not father of the child claiming that
Susan insists that the child is Sengendo’s
ISSUES
1. What is Susan’s cause of action?
3. What advice would you give Susan who would want to sell off the land in
Raniya’s names so as to raise money for her education and up keep.
4. What are the steps that would be taken to fulfill the action?
LAW APPLICABLE
2. The children Act Cap 59.
ISSUE ONE
The cause of action is to apply for a declaration of parentage.
DECLARATION OF PARENTAGE
Declaration of parentage may be defined as the legal process where the court
declares that a person is the putative parent of a given child. That question
normally arises when one parent disputes the fact that he fathered the child.
Importance of declaration of Parentage.

1. Under A.34, it’s the Child’s right to know its parents.
2. Under Article 34, it is the child’s right to be cared for by its parents.
Therefore, unless parentage is established then the person will not be
responsible for the child.
3. For inheritance purposes: it is the child’s right to share in the estate of
the deceased parent.
4. Guard against incest or prohibited degrees of marriage.
5. Imposing parental responsibility.
Who Can Apply For Parentage?

Under Section 67 of the Act, the application may be made by;
a) the mother of a child;

b) the father of a child;
c) the guardian of a child;
d) the child himself or herself through a next of friend
When Can An Application Be Made?

Under Section 68(1), an application for a declaration of parentage may be
made—
a) during pregnancy;
b) at any time before the child attains eighteen years of age;
c) within three years after the death of the alleged father or mother.
However, under Section 68(2), an application for a declaration of parentage
may be made at any time after the three years specified in subsection (1)(c),
with leave of the family and children court.
Considerations by Court.
Section 68(3) – In exercising its discretion under subsection (2), the court
shall primarily consider—
a) the welfare of the child;

b) the time of knowledge of the alleged father or mother or of the birth of
the child, as the case may be, by the applicant;
c) the conduct of the alleged father or mother where he or she knew of the
birth of the child alleged to be his or her child, or his or her conduct
towards any other person having the custody or control of the child.
An application for a declaration of parentage may be made whether the child or
the alleged father or mother is in or outside Uganda. (Section 68(4))
PROCEDURE FOR PARENTAGE.

Under S.67, the application for a declaration of parentage is by complaint on
oath to a Family and Children Court having jurisdiction in the place where the
Applicant resides for summons to be served on the father of the child or the
woman alleged to be the mother of the child.
Rule 20 of the FCC Rules provides that an application for a declaration of

parentage shall be a complaint on oath as specified in Form 2 in the Schedule
to the rules.
Section 69(1) of the Act, the Family and Children Court shall issue a summons
to the person alleged to be the father or mother of the child, to appear before
the court on a day named in the summons.
Rule 21 of the rules provides that the summons are as specified in Form 3 in
the Schedule to the rules and accompanied by all the relevant documents filed
by the applicant.
On appearance of the person summoned, or on proof that the summons was

duly served on him/her or left at his/her place of abode seven days or more
before the hearing, the court shall also hear the evidence of the applicant and
shall also hear any evidence tendered by or on behalf of the alleged father or
mother. (Section 69(2))
There is need for corroboration of the applicant’s evidence in a material

particular. If the evidence of the applicant is corroborated in some material
particular by other evidence to the satisfaction of the court, the court may
adjudge the person summoned to be the mother or father of the child as the
case may be. (Section 69(3))
In proceedings for the declaration of parentage, the court may on the

application of any party to the proceedings or on its own motion, make an
order upon such terms as may be just, requiring a person to give evidence
which may be material to the question, including a blood sample for the
purpose of blood tests. (Section 69(4))
Any person sought to be tested must be made a party to the proceedings.

(Section 69(5))
The burden of proof lies on the person alleging it (Section 70). This therefore
means that the burden of proof lies on the Applicant.
Prima Facie and Conclusive Evidence of Parentage

S.71 provides for situations where the court can either hold a prima facie
evidence or conclusive evidence parentage:
i) Where the name of the father or mother of a child entered in the
Register of births. A certified copy of this evidence will be prima facie
evidence of parentage that the person so named is the father or mother
of the child. (S.71 (1))
ii) Where there is an instrument signed by either the mother of the child
and by any person acknowledging that the father o the child or vice
versa. The instrument is executed as a deed or signed jointly or severally
each of those persons in presence of the witness. Such an instrument
shall be prima facie evidence that named is father or mother of a child.
(S.71 (2)).
iii) An order of court for maintenance is Prima Facie Evidence (S.71(3)
iv) A declaration of parentage by court is conclusive proof of parentage.
(S.71(4) ).
v) An order of parentage by a competent court outside Uganda is prima
facie evidence. (S.71(5))
vi) An express or implied reference in a written or oral with that the child is
his or her son or daughter is prima facie evidence. (S.71 (6)).
vii) A statement by a deceased person made to a person in a position
of authority indicating that the deceased is / was the father / mother of
a particular child. (S.71 (7)).
S.71(8) defines ’a person in a position of authority.’’
EFFECTS OF DECLARATION OF PARENTAGE

A declaration of parentage has the effect of establishing a blood relationship of
the father and child or of the mother and child and accordingly, the child shall
be in the same legal position towards the father or the mother as a child
actually born in lawful used lock.
(S.71 (1)). A declaration of parentage does not by itself confers rights of

custody of the child upon the declared father or mother.
REVOCATION OF DECLARATION OF PARENTAGE
S.71 of the Act, a declaration of parentage may be revoked for sufficient cause
by the family and children court on the application of the person against whom
it was made.
APPEALS
S.71 of the Act, a party may appeal to a chief Magistrates court which may
confirm or revoke the declaration or make any lawful order that it thinks fit.
Gardner v Gardner [1877] 2 A.C. 723 at 729 HL;
Lord Caims LC: Where a man marries a woman who is in a state of pregnancy,
the presumption of paternity from that mere fact is very strong…...Still further
where the pregnancy is far advanced, obvious to the eye or actually confessed
or announced to the intended husband. A presumption is reared up which
according to universal feeling and giving due weigh to what may be called the
ordinary instincts of humanity, will be very difficult indeed to overcome.
Pouliet Peerage case (1903) A.C.398 HL
The wife was 3 months pregnant at the time of marriage. The husband
separated from her 2 months later for this reason. He deposed that he had sex
with her before and the child was not his. The wife had told a friend that
another man was the father.
Held: The presumption of the child’s legitimacy was rebutted.
Preston Jones v Preston Jones (1951) ALL ER 124 HL.
Court would take judicial notice of the fact that there is a normal period of
gestation although the period is variously given as 270-280 days or 9 months.
Lord Mac Dermatt; Judicial notice must also be taken that the normal period is
not always followed and that the actual period in a given case may be
considered longer or shorter, however the longer the period deviates from the
normal ,the more easily will the presumption be rebutted.
Re Over bury (1954) 3 ALL ER 308.
If conception took place before marriage but when such woman had been
divorced, the child is to presumed a legitimate child of the husband.
Slingsby v A.G. (1916) 13 TLR 364.
The woman delivered a child and was hiding in a sorry room. She advertised
the child for adoption before even birth. She stayed away from home and from
her husband. The letter she wrote to her husband was of importance.
Conzens-Hardy – the child was illegitimate: a lady would never ordinarily, while
expecting advertises her child for adoption.
Moore v Hewitt (1947) 1 KB 831.
This involved the question of admissibility of a letter of a putative husband

produced by the wife to show the evidence of association on terms of intimacy
and affection.
Held: Where in bastardly proceedings, there is evidence that over a long period
including time of conception, the father has chosen to associate with
complainant on terms of close affection and there is no evidence that she was
associating with another man, material exists of which justices are entitled to
treat as corroborative of complainants’ evidence in some material particular.
A complainant cannot corroborate herself with a letter which she alleges was
written to her by the father of the child.
The fact that the parties went together to cinemas and dance and that the
applicant visited the respondent was not sufficient. The defense of an innocent
man would in cases of this character be rendered almost impossible.
Mpirirwe v Oliver Ninsabimana HCCS 5/ 1990 /[I994] IV KALR.88.
There was an application for a caveat on letters of administration contending

that the applicant had twins of the deceased and yet had been left out by
applicants for letters. Tsekooko J; the evidence of similarity in physical features
between a child and the alleged parent is admissible to prove paternity.
Although the evidence is not conclusive failure by the respondent to adduce
evidence of genetical biological and physical features similar to those of the
deceased made court fail to presume that the alleged two were fathered by the
deceased.
Jones Mwambo v Wandoa (1966) E.A. 241.
Respondent had had three children with different fathers. The trial magistrate
held that she was a woman of loose character and apparently considerable
sexual appetite; that he was prepared to hold sexual intercourse with her.
Spry J.A. The fact that the respondent appeared to have loose morals was
reason to treat her evidence with greatest caution. It could not make good the
absence of the evidence to support the allegation that the respondent was
associating with other men.
There was need for corroboration in some material particular including the fact
of sexual intercourse. The corroborating evidence must implicate the
respondent.
The letter from the appellant expressed in endearing and saying that she still
remembered that night, undo tended to prove that he was the father of the
child. Evidence need point to the man as father but not be capable of other
interpretation.
CT V NW [1969] E.A. 375,
The appellant contended that there was no evidence corroborating. He had
admitted having sexual intercourse with the respondent for months before
conception of a child.
Farrell J; There was ample evidence corroborating the evidence the

respondent. The fact of previous sexual intercourse material rather than it’s
interval from the date of conception.
The interval was not substantially long; but it is the fact of previous
intercourse, rather than length of the interval which is material.
ISSUE TWO
APPLICATION FOR PARENTAGE (COMPLAINT ON OATH)
IN THE FAMILY AND CHLIDREN COURT AT
IN THE MATTER OF THE CHILDREN ACT CAP 59
AND
IN THE FAMILY OF RANIYA SENGENDO, A CHILD
AND
IN THE FAMILY OF AN APPLICATION FOR A
DECLARATION OF PARENTAGE
COMPLAINT ON OATH
I, SUSAN MUKASA, being the mother of the child, Raniya Sengendo apply for a
declaration of parentage against Sengendo Ssaka on the following being the
father of Raniya Sengendo on the following grounds.
1. That in march 2013, I had a love relationship with Sengendo Ssaka.
2. That the relationship resulted into the birth of a baby girl, Raniya
Sengendo on the 1st day of June 2014.
3. That through out the pregnancy, the respondent, Sengendo Ssaka used
to give the applicant some money for her up keep and for the good times
she gave him.
4. That after the birth of Raniya Sengendo, Sengendo Ssaka went to the
applicant’s place and stated that he was not the father of the child.
5. That the applicant insists that the respondent is the father of the child.
6. That whatever is stated here in is true and correct to the best of my

knowledge and belief.
Sworn at Kampala this 3rd day of February 2017.
Signature;
Applicant / complainant
Before me
Commissioner for oath
Simpson v Collinson (1962) 1 ALL ER 262;
Admission of previous sexual intercourse was held to be corroborative evidence
of the mother of the disputed child.
Paretonia v Nsibimana (1994) 4 KALR.
The question of resemblance was brought up and court held that the evidence
of similarity between a parent and a child is admissible but not conclusive.
CASES;
Rwabuhemba Tim Musinguzi v Harriet Kamakune Civil Application No.

142 of 2009;
Court held under A.31 (4) it is the night and duty of apparent to care for and
bring up their children. A. 31(5) constitution children shall not b separated
from their families or person entitled to bring them up against the will of their
families or of those people except in accordance with the law.
Court further observed that parents have a fundamental right to care and bring
up their children and that such a right is a constitutional right. It is not
consideration to be taken into account and at times may be the paramount
consideration.
A parent can only be denied the right to care for and raise her children when it
is clear and has been determined by a competent authority in accordance with
the law that it is best interest of the child that the child be separated from the
parent court further held that both parents have similar and equal rights with
regard to their child.
The mother wants to care for and raise her child and she is entitled to do so in
law and her right cannot be ousted by a wealthy relative on the basis that the
relative is well-off and competent to look after the child.
Peter Ddungu Matovu v Dorothy Ddungu Matovu case No.0037 of 2003;
Court held that in custody of children in S.73 of the Act paragraph 1 of the first
schedule to the Act provides as follows;………………
ISSUE THREE
APPLICATION AS GUARDIAN OVER CHILD’S PROPERTY

Susan Mukasa has to apply to court for an order with the property comprised in
Makerere Block 111 plot 222 which Is Raniya’s names. She has to apply for
guardianship as the mother of the child.
There are two situations in which a biological parent can be granted

guardianship, namely;
a. Where there is property in the child’s name and the parent wants to deal
with it in the best interest of the child.
b. In cases of separation of the parents - In a matter of Prosy Naluggwa

(an infant) Misc. App. 500 /1997; court noted that the applicant as a
parent qualifies to apply for an order of guardianship in respect to an
infant.
The guiding principle is the welfare of the child. In Lillian Nattema and
Rogers Watanda Misc. App. 35/2000; court noted that welfare principle
should be observed where guardianship is granted for;
a. Upbringing and managing of child’s property.
b. Application of any income arising from it.
c. Where guardianship is for managements of child’s property it should be

managed for the benefit of the child.
In the matter of an application for guardianship by Atai Pauline: In the

matter of Naiga Hellen (a child) family Cause 25 of 2014.
In this case, the child’s biological mother sought an order that would enable
her deal with the land that she jointly owned with her child as she wanted to
get school fees for the child. And such order was not denied as it was for the
welfare and the best interests of the child. It was held that: in all matters
concerning children, the best interest of the child shall be the primary
consideration where the applicant, who is child’s biological mother, seeks an
order that will enable her to deal with the land jointly owns with the child, and
where the child who is of understanding age is not opposed to and where both
state that it is for the child’s school fees, such order should not be denied as for
the welfare best interest of the child legal guardianship was granted.
ISSUE FOUR
The steps to be taken to fulfill this application are the following;
The applicant should have the following places according to the facts of the
cases;
1. The applicant should be the biological mother of the child.
2. The child is a minor and is being taken care or depends on the applicant
for her welfare of education.
3. The child is of school going age and the applicant has failed to raise her
school fees.
4. The parents are separated and the child lives with one parent.
5. That the applicant wants to deal with the applicant and raise money for
the child.
(As in the case of in the matter of Naiga Hellen (a child) family cause No. 25 of
2014)
This application is by Notice of Motion under S.14 of the Judicature Act,
5.33 of the Judicature Act Cap 13, A. 139 (1) of the court 0.52 R.1.2 and 3 of
the CPR.
The application is supported by an affidavit. Sworn by the applicant.
Re Kangame (Teres) (an infant) [1996) guardianship order is by

notice of motion supported by an affidant.
In Re Kenneth Kintu (An infant) family cause No. 12 of 2008; held a

parent may be appointed as a legal guardian of the infant’s estate to deal with
such estate in a manner that promotes the child’s welfare and interest. Upon
dealing with such estate, the legal guardian must file in court an account of
income that has come into his / her hands within a specified period of time.
Relevant Steps
1. An application by Susan to be appointed legal guardian for Raniya

Sengendo, made to
The High Court.
2. This application is by NOM supported by an affidarit 0.52 r.1, 2, and 3 of

the CPR.
3. Susan will have to pray that she be appointed a legal guardian and
should adduce evidence to show that the proceeds will be used for the
benefit of the child after sale of the property.
4. Should also pray that for an order of court to sell the land.
5. The order of court should be registered, upon payment of stamp duty,

and it should be entered in the Register of documents and assigned an
instrument number.
6. The applicant should be served on Sengendo to show cause why this
land should not be sold by Susan.1
Follow up- Dr. Musoke.
1. Adoption – 3 year rule, (now one year)
2. 3 year rule- purpose is to make sure that before you adopt, you are sure
that you want the child to be part of your family.
One can be a foster parent with or without a care order.
3. -Applications for guardianship are expert, and it’s by notice of motion

supported by an affidavit.
4. -Can a gay couple adopt?
It depends on the circumstances and discretion of the court. If it is in the

interests of the child they can.
Petition for adoption can either be verified or supported by the affidant.
5. Complaint on oath-no need for an affidavit.
6. S.76(5). An application for a maintenance order can be made by

complaint on oath (if you have engaged on advocate.)
-Biological parent cannot adopt his / her child.
 -adoption cause. Adoption proceedings.
 -Misc cause custody and Guardianship proceedings / family cause
-Application for variation of any order –you go by plaint but it also depends on
the circumstances that you are relying on to apply for revocation of the order.
Care order foster care
-Application is made to the FCC. 5.27. - Application is made to the PSWS
5.43.
-Given to a person or an approved
home. -It is given to a person who becomes
a foster parent.
- It can be given to a foster parent or
an approved home.
Petition for adoption is commissioned once but it is dated twice but the
one for divorce is commissioned twice and dated twice.
Orders relating to children. (Continuation on other orders).
Rule 19 (2) of the family and court Rules 5.1 59.2 provides for orders that a
person may seek in respect to children. These are; supervision order, exclusion
order, care order, interim order, search and production order, recovery order,
maintenance order, contribution order and custody order.
Application for these orders shall be as specified in form/in the schedule to

these Rules. (R.19 (3)).
EXCLUSION ORDER
S.34 (1) children Act-a family and children court may make an exclusion order
prohibiting a named person from contact with the child or with persons looking
after the child.
The court shall be satisfied that it is necessary for the protection of the child
and to safeguard the child’s welfare.
Enforcement of exclusive order S.35 any persecution breaches an exclusive

order commits an offence and may be dealt with in accordance with the Act.
SEARCH AND PROTECTION ORDER.
S.36 (1) A family and children court may make search and protection order
authorizing the PSWO to enter premises specified in the order to search for and
remove a place of safety, and child whom the PSWO believes or is suffering or
likely to suffer significant harm.
The child shall be produced to the court within after his/her reward.
ENFORCEMENT OF ORDER
S.111 children Act provides that subject to any enactment to the enforcement
of orders of a magistrate court shall apply to orders of family and children with
necessary modifications.
If one violates an order, you move on notice of nation to show cause why the
person should be committed to civil prison.
RECOVERY ORDER
S.62 of the Act; made when a child has been removed unlawfully from an
approved home.
S.63 application for a recovery order by a person with parental responsibility

for the child or the PSWO.
WEEK 2 LAW ON SUCCESSION
WORKSHOP ONE
BRIEF FACTS
Basiima Ogenze is a rich business man, happily married for over 20 years to
two wives, Teopista Nalongo and Olga Basemerera. He has been blessed with
five children from Teopista aged between 19-8 years. He has two other
children, Ben Kato and Esther Babirye from former house girl, Kapere Naome
from whom he rents a house at Kisasi. Each of his wives lives in his residential
houses situated at Zana and Konge. He has relatives staying with him at Zana
that is, his deseased brother’s two children Bob and Tony Miti both aged 15
years and his retired father aged 77 years. Basiima Ogennze bought Basemera
100 acres of land at her village, however it is still in his names and a new
Mercedez Benz from Spear Motors with private number plate and it is
registered in both their names. Basiima Ogenze has a number other properties
though some is shared with other people and debts owing to him and those
that he owes to other people. He has come to my chambers and he has
informed me that it is high time he plans for his succession.
Issues
1. What is the legal basis of including or excluding any of Basima Ogenze’s
property and obligations in his succession.
2. What additional information is required from Basima Ogenze’s property
to draft the necessary documents.
3. What are the necessary documents and where can he keep the
documents for safe custody.
4. What is the effect of a subsequent marriage on a will.
5. What advice would you give Basima Ogenze in case he acquires new
property and gave birth to other children after…………………..
6. What is the relevant document to put the advice in effect.
LAW APPLICABLE
The succession act cap 163
Resolution of issues
ISSUE ONE CAPACITY TO MAKE A WILL

A will is a written document that provides for how one’s property will be
distributed after he/she dies. It is an expression by a person of his/her
wishes which is intended to take effect only at his/her death.
Administrator General V Teddy Bukirwa & Anor (1992-1993) HCB 192
1[1992] 111 KALR 98; it was held that a will has two basic meanings-A
will refers to total declaration of what the maker (testator) wishes to
happen at his demise/death. - The second definition refers to the document
of itself.
Characteristics of a will
 It is ambulatory i.e. takes effect on the death of the testator.
 It is usually in prescribed form
 A will is revocable at any time
 The scope of the will is not confined to dispositions of property
 Operates only as a declaration; during the testators life time, the content
of the will are treated as mere declarations of intentions.
 Accordingly, he is at liberty to dispose of his property intervivos
notwithstanding that it has already been denied by will. A beneficiary
cannot ordinarily restrain the testator from disposing of such property
since his interest does not take effect until the testator’s death. His
interest in the property lapses if he dies before testator.
Capacity to make a will

 Every person of sound mind and not a minor may by will dispose of
his/her property. S.36 (1).
 By necessary implications , any person below the age of 18 years cannot
make a will to dispose his/her property
 A person ordinarily insane may make a will during an interval in which
he/she is of sound mind. (S.36 (4)).
 Banks V Good fellow (1870) L.R.5 G.B.579, laid down the test of
unsoundness of mind. The testator suffered from the delusion that he
was pursued and disturbed by a man who was already dead. He believed
further in the invisible presence of devils and evil spirits. Nevertheless,
the court held that the testator had a sound mind disposing mind and
memory at the time of making the will because the delusions were not
capable of having any influence on the provisions of the will.
Test of unsound mind

 The capacity to understand the nature and extent of one’s property and
beneficiaries of that property.
 Woods V Smith 1993) Ch.90; the testator told someone at the time he
was making the will that he had investments worth £105000 whereas
the actual value was in excess of £105000. This showed that he was
therefore seriously confused as to the extent of his estate and court held
that this was consistent with such confusion of mind as to indicate that
the deceased lacked testamentary capacity.
 Banks V Goodfellow(1870) L.R.5 G.B.579
The understanding of his disposition that the testator had animus testandi
(intention to give the property)
 Ability to form and orderly plan the disposition of the testator’s estate.
A married woman may by will dispose of any property which she could alienate
by her own act during her life. (S.30 (2)). This means that a married woman
should show that this property is owned by her means and there should be
evidence.
 A person who is deaf, dumb or blind is capable of making a will if
he/she is able to know what he/she does by it. (S.36 (3)).
 S.36 (5), no person can make a will when he/she is in a such a state of
mind whether arising from drunkenness, from illness, or from any other
cause that person does not know what he/she is doing. The relevance of
S.36 (5) is that a will must be executed voluntarily and a person must be
fully aware of what he/she is doing. The testator must have
testamentary intention.
 Usually in cases of illness, the courts would be reluctant to impose a will
that includes recent relatives. Battan Singh V Armichand (1948) A.C
161; held that the testator was so feeble by disease that his sound mind
and memory was affected by disease and the will was set aside. He had
left the property to strangers on the assumption that he had no relatives.
 Harwood V Baker (1870), a will executed by a testator on his death
bed giving all his property to his wife was held invalid because owing to
his illness, the testator was unable to comprehend and weigh the claims
of his relatives upon him.
Test of Undue Influence

 The person influencing the testator has excessive influence on him/her
 The influence must over power the will of the testator at the time making
the will.
 The influence causes the testator to execute a will he/she would not
otherwise have executed.
A will procured by undue influence of another is invalid
The case of Wingrove V Wingrove (1886) clarifies what amounts to undue
influence. To establish undue influence sufficient to invalidate a will, it must be
proved that the will of testator was coerced into doing that which he did not
desire to do.
Hall V Hall (1886) L.R.1 P&D 481; court made a distinction
between love and affection and being coerced. Persuasion appeals to the
affections or ties of kind sentiments of gratitude for post services, pity for
future destitution are legitimate and may be fairly placed upon the
testator but pressure of whatever character on or hope if exerted as to
overpower volition is undue influence. A will must be the offspring of a
testator own volition and not the record of somebody else in that case,
the will was not set aside due to threats by the testator’s wife , and that
for the sake of peace and quiet, the testator had agreed the terms of the
will.
FRAUD
 Inserting a clause in a will without the knowledge of the testator. For
misrepresentation to amount to fraud, it must be willful.
Sarah Lwanga Musoke V Galiwango
The son of the deceased brought an application for letters of administration
claiming that there was no will. However, there was a will read at family
meeting. The grand daughter was out of the country and applicant
pretended that there was no will. The Supreme Court upheld the will and
granted probate to Sanyu.
In order to amount to fraud or mistake , it is a matter of fact
depending on circumstances of each case.
WHAT PROPERTY AND OBLIGATIONS CAN BE INCLUDED OR EXCLUDED

IN BASIMA OGENZE’S SUCCESSION
Property is not defined under succession act but immovable property
is defined under S.2 (m) to include land, incorporeal tenements and things
attached to the earth; movable property as defined under S.2 (p) means
property of every description except immovable property.
All property owned by a testator, including property that one
may not use during his life time e.g. proceeds from insurance policy or
retirement benefits may be included in a will.
These include tangible personal property, intangible personal
property e.g. cash held in banks, and financial institutions.
The property to be bequeathed must be property of the person
making the will, if the property bequeathed does not belong to the testator
at time of his/her death, it cannot take effect by reason of the subject
matter having been withdrawn from the operation of the will. This known as
Ademption (S.139).
This was evidenced in James Katende and 2 0rs V Dan
Byabakama, administration cause No.2/1992, where Kiveju J held that
the testator should dispose of property or interest belonging to him/her at
time of his/her death meaning that any disposition by the testator of
property in which he has no interest at the time of his death must fail.
PROPERTY NOT BE INCLUDED IN THE WILL

 Joint tenancy property, this is the type of property that grants the right
survivorship to the joint tenant and upon death of the testator his/her
shares passes to the surviving joint tenant. A will provision leaving a
testator share would have no effect until both co-owners die
simultaneously.
Administrator General of Zanzibar V Khalfan and Others (1963) E.A 230,
it was held that in the event of simultaneous death of joint tenants, the land is
taken over by the respective estates. A surviving joint tenant assumes the
interests of the deceased.
Willcox V McLeroth (1933) KLR 82 a husband and wife executed identical
wills each appointing the other sole beneficiary and executor of their estates.
They both died in circumstances in which it was not known who survived the
other. It was held that according to common law the estate of each of the
deceased must be administered as an intestacy being presumed that they both
died at the same time.
Upon death of one joint tenant, his/her interest the land is extinguished and
does not form part of his estate. Property held in joint tenancy cannot devolve
by will or intestate succession unless joint tenancy has previously severed in
the life time of the deceased tenant.
Where joint tenants die in a common calamity in circumstances which render it
impossible to determine survived the other doctrine of survivorship doesn’t
apply.
 Property in a living trust, property placed in a trust automatically
devolves to the beneficiary named in the documents, such properly
cannot be passed on a will.
 Life insurance proceeds that have a beneficiary, because the proceeds
automatically go to the beneficiary.
 Retirement plan proceeds including money from a pension because there
is a provision for a beneficiary.
 Property held as an administrator or executor does not form part of
the property of the administrator/executor.
Jonah Senteza Kanyerezi & Anor V Registrar of tittles HCMA No. 919 of
1997, the court held that transfer into the executor’s or administrator’s name
does not mean that the land devolves upon the personal estate of the
executor or administrator such that he can do whatever he wishes with the
land without recourse to the interest of other beneficiaries. His/her duty is to
hold the land in trust for the beneficiaries.
ISSUE TWO
WHAT ADDITIONAL INFORMATION IS REQUIRED FROM BASIIMA
OGENZE
 Which residential house is occupied by Teopista and Basemera and the
addresses of the houses.
 Propositions of disposition of property among the beneficiaries
 Persons to be appointed as the executor/ executrix
 Information about his burial wishes
 Information relating to the creditors
 His address
 Place of origin, birth certificates
 The persons to be his witnesses
 The percentage of shares in the joint account and the shares he bought
in East African Breweries Kenya.
 Who he is appointing as heir
 The ages of the Naomi that is Ben, Kato and Esther.
 Any conditions that he wishes to impose on the people to whom he is to
leave property.
WHO ARE THE BENEFICIARIES UNDER THE WILL

1. The legitimate and illegitimate children of Basima
S.2 (b) succession Act Cap 162 defines children to include illegitimate and
adopted children.
Illegitimate child means an illegitimate child recognized or accepted by the
deceased as a child of his or her own S.2 (1).
Legitimate children are those born during the subsistence of a legally
recognized marriage between the parents.
Kajubi V Kabali (1944) EACA 14, court held that all children have a right to
share in their father’s estate whether born within wedlock or not.
2. The wives Teopista Nalongo and Olga Basemera
Section 2(g)(i) Succession Act Cap 162 defines a dependent relative to
include a wife, a husband, a son or daughter under 18 years of age who is
wholly or substantially dependent on the deceased.
A legal wife refers to the woman she is validly married to a man according to
the laws of Uganda or one valid in another country.
A polygamous marriage infers that all wives married under customary marriage
are recognized as legal wives.
For purposes of inheritance, all legal wives are entitled to share in the property
of a deceased.
3. Dependant relatives
S.2 (g) (ii) of Cap 162 defines dependant relative to include a parent, a
brother, or sister, grand parent or grand child who on the date of the
deceased’s death was wholly or substantially dependent on the deceased for
the provision of the ordinary necessaries of life suitable to a person of his/her
station.
S.37 Succession Act provides that where a person by will disposes of all his
property without making reasonable provision for the maintenance of his
dependant relatives, S.38 shall apply.
S.38 (1) the court has power to order payment out of the estate of the
deceased for maintenance of dependents if there was no reasonable provision
in the will.
HOW CAN THE WILL BE VALIDLY EXECUTED

The will must be executed in the manner provided by law, S.50 provides for
the requirements of a valid will.
 S.50 (a) the testator shall sign or affix his or her mark to the will or it
shall be signed some other person in his/her presence and by his
direction.
In the Goods of Chalcraft
A dying woman whose usual signature was ‘E’ chal wrote her name as ‘E. Chal’
wrote her name as ‘E. Chal’ owing to the loss of consciousness. Court held that
this constituted a valid signature. It held that the critical principle was that
there should be a name or some mark which represents the deceased.
In the Estate of Cook
It was a hand written will that stated “ I Eron cook……. and signed, your
loving mother” Held to have testamentary capacity because the concluding
words were sufficient to represent the testatrix’s name.
 S.50 (b) the signature or mark of the testator shall be so placed that it
shall appear that it was intended give effect to the writing as a will.
Woods V Smith (1993) Ch 90, held the complementary requirement of a
signature to give effect to the will demanded a practical approach that a name
not being a normal signature was capable of being a signature. Where a
testamentary document signed before the will was written, affirmative
evidence was necessary to show that the testator had intended for signature
to give effect to the will. The testator’s statement I have signed by my name
was affirmative evidence. By writing his name in one single operation of
disposal of property. It was held to be valid.
Re Beadle
The witness signed the envelope but the testator did not sign although on the
top of the envelope he had written ‘my last will and testament.’ Held to be
invalid and court held that the words only identified the contents of the will/
envelope.
 S.50 (c) the will shall be attested to by 2 or more witnesses, each of
whom must have seen the testator sign or have received from the
testator a personal acknowledgement of his/her signature and each
witness must sign in the presence of the testator. It is not necessary
that they sign at the same time.
Administrator General V Norah Nakiyaga and Ors Administration cause
No.554/90, the plaintiff administrator general intended to apply for letters of
administration with a will annexed to the estate of the deceased and some
beneficiaries were contesting the 2 wills which the plaintiff had in custody. The
plaintiff applied to court by originating summons for the determination of the
validity of the wills. One of the wills was not attested to at all and the other
though attested, the witness could neither be found nor identified.
Held: 1. It had been proved that the first will had been signed by the deceased
though not attested. It was invalid for the reason that it was not attested as
required by S.50 (c) of the Succession Act.
2. The second will could not be relied upon as its execution was not proved by
one of the attesting witnesses as required by the mandatory provisions of S.66
and S.67 of the evidence act.
The witness need not see the contents of the will. Re-Benjamin (1934)
150 LT 417, held the testator is not bound to inform the witnesses that what
he in signing is his will. This is because what they are required to witness is not
the will but the testator’s signature when it is being written or after it has been
written.
Smith V Smith (1866)
The witnesses could see the testatrix writing but when she invited them to sign
the will, she covered her signature with bolting paper thus making it invisible to
them. Court held that the will was duly executed.
A witness need not sign his name. In the Goods of Sperling (1863), the
words employed were ‘servant of sperling’ these were held to be a valid
signature.
 The requirements of a valid will entails being in writing if it is an ordinary
will.
S.61 provides that it is not necessary that any technical words or terms shall
be used in the will.
 The law does not insist that the writing must be in English. In Re.
Berger (1989), a testamentary document written in Hebrew was
admitted to probate. What is important is the intention of the testator
and a clear understanding of it.
 The law does not insist that the will must be embodied in a document.
Douglas- Menzies V Umphelby (1908) Privy Council held that even where a
person’s testamentary wishes are set out in several documents, he will be
deemed to have left only one will i.e the aggregate of all documents forms a
will.
Re- little
The will was on several pieces of paper which were attached together. Because
they were put together by the deceased, they were considered to be one valid
will.
However, it is good practice to affix a signature on each piece of paper.
Alitabala Eria V Kakaire Vincent HCCA No. 301/87. To be an attesting
witness, one must subscribe his signature on the will and merely not see the
will to be executed. Since the two so called attesting witnesses could not even
identify the will in question, the will had not been proved.
According to S.54 of the Act, an attesting witness takes nothing from the
will.
“A will shall not be considered as insufficiently attested to by reason of any
benefit given by will either by way of bequest or appointment to any person
attesting to it but the bequest or appointment shall be void as far as concerns
the person so attesting.”
Distinction between S.54 and S.55 succession Act
S.54 deals with an attesting witness
S.55 anybody who has an interest in the will or a dependent can be a witness
to a will for purposes of proving its execution or validity. (Not attesting
witness)
S.54 (2) is an exception to S.54 (1). It provides that a legatee who attests to
a codicil does not lose the gift under a will.
In Estate of Baardo (1968). Russell LJ held that it is inappropriate to ask a
beneficiary or a spouse to witness a will because every time a beneficiary is an
attesting witness, the act done deprives him of his benefit.
TYPES OF WILLS
1. Unprivileged wills/ordinary wills S.50
2. Privileged wills
S.52 succession Act Cap 162, any member of the armed forces being
employed in an expedition or engaged in actual warfare or any mariner at sea
may at age of 18 years dispose of his/her property in a privileged will.
S.53 (1) A privileged will may be written oral.
Therefore, Basiima Ogenze can make an unprivileged will/ordinary will as
defined under S.52 of the succession Act.
DOCUMENT (WILL)
THE LAST WILL AND TESTAMENT OF BASIMA OGENZE
1. I, Basima Ogenze of Zana today the 09th day of March 2017 make my
will and revoke all wills which I made previously. I have made this Will
voluntarily while I am of sound mind and no body or institution should
change my will.
2. Birth particulars
Father’s name: _____________________________
Mother’s name: _____________________________
My tribe: ___________________________________
My totem: ___________________________________
My religion: __________________________________
3. I was born on the 13th day of August 1954 at _____________
(village/town)____________ (Sub county)_____________( District).
4. Marital status
I am married to
a) Teopista Nalongo
b) Olga Basemera
5. I got married to Teopista Nalongo at Kawempe on the _______day of
______________.
I got married to Olga Basemera at Fort portal on the day of
6. Full names of my children, male and female
Name Age Name of mother
i) Kigozi Peter 19 Teopista Nalongo
ii) Nakigozi Sarah 18 Teopista Nalongo
iii) Kato Henry 14 Teopista Nalongo
iv) Babirye Mary 14 Teopista Nalongo
v) Kiiza jane 18 Teopista Nalongo
Name Age Name of mother
i) Ben Kato Kapere Naomi
ii) Esther Babirye Kapere Naomi
7. Full names of dependants
Name Relationship Address/Residence
i) Bob Miti Nephew Zana
ii) Tony Miti Nephew Zana
iii) Father Father Zana
8. I appoint the following people to be guardians to my young children
Name Addresses
i) Teopista Nalongo
ii) Olga Basemera
9. I appoint the following Kigozi Peter who is my son to my heir
10. I appoint the following people to be the executrixes of my will.
Name Address
i) Teopista Nalongo
ii) Olga Basemera
11. I own the following property:
i) Two residential houses situated at Zana and ………….
ii) 100 acres of land in Kiryatete village in Fortportal
iii) A commercial building on Kampala Road in ………..
iv) A saloon car Reg No.UAE 8880.
12. I have the following bank accounts
Account Number Bank/ Branch Type of Account
2445888 Bank of Africa Fixed deposit
7566610 Centenary Bank Joint account
Indicate how you wish to distribute the money on the above accounts.
13. I have shares in the following businesses.
Name and Addresses of Business Company/ Shares in business
Insurance policies
Bas & Bass Ltd 5% shares
Bas & Patel Ltd 10%
East African Breweries Ltd
14. My creditors and Debtors
A Name and Address of Particulars Amount owing
Creditors
B Name and Address of Debtors Particulars Amount
Spear motors Balance on purchase Shs 45 million
Price of Mercedez
Benz, Reg No.
BASSYI
Bas & Patel Ltd Amount for 10%
shares
15. I have distributed my property as follows;
Name of the person I Relationship with that Description of the
have given property person property
16. Property which I give to my minor children
The property I have given to my children below the age of 21 years will not
be distributed to them immediately. It will be dealt with as follows;
It will not be given to them until they attain the age of 21 years.
17. I wish to be buried at _________________ (village/ district).
Basima Ogenze
Signature:
_______________
Date:
__________________
First witness
Full names: ______________________________
Physical Address: __________________________
Postal Address: ____________________________
Occupation: ______________________________
Signature/ Thumb mark: _____________________
Second witness
Full names: ______________________________
Physical Address: __________________________
Postal Address: ____________________________
Occupation: ______________________________
Signature/ Thumb mark: _____________________
WHERE CAN THE WILL BE KEPT FOR SAFE CUSTODY

S.337 Succession Act, The offices of the Chief Registrar and deputy registrar
of the High Court are appointed places for the safe custody of the wills of
living persons.
At least 2 or more copies of the will should be made and the will may be kept
with an advocate bank, trusted friend, a priest/ reverend, spouse etc.
WHO CAN BE APPOINTED AS EXECUTOR/ EXECUTRIX UNDER THE WILL

S.2 (b) defines an executor to mean a person appointed in the last will of a
deceased person to execute the terms of the will.
A general executor is one appointed indefinitely and is charged with the
administration of the whole will or the deceased’s estate.
A specific executor is one whose appointment is limited to specific property (S.
219 succession Act).
On being named an executor, one applies to court for probate.
to Probate is defined in S.2 (s) mean the grant by a count of competent
jurisdiction authorizing the executor named in the testator’s last will to
administer the testator’s estate.
Part XXXIV deals with duties of an executor.
ISSUE FOUR
REVOCATION OF WILLS
S.48, a will is liable to be revoked by its maker at any time when he/she is
competent to dispose of his/her property by will.
Vynior’s case (1609) 80 Rep.81 a will by its very nature is revocable even
though a testator declares it irrevocable.
A will can be revoked in three ways
 Revocation by marriage
 Revocation by will, or codicil
 Revocation by burning, tearing or destruction
REVOCATION BY MARRIAGE
S.56 (1) every will shall be revoked by the marriage of the maker, except a
will made in exercise of a power of appointment when the property over which
the power of appointment is exercised would not, in default of appointment,
pass to his/her executor or administrator or to the person entitled in case of
intestacy.
S.3 stipulates that marriage per se will not confer any rights to a person, in the
property of another person, and does not make one incapable of doing any act
in respect of his or her own property which he/she could have done if
unmarried.
For the operation of this rule, it is essential to prove a valid marriage. A
marriage that is that is void abinitio cannot revoke an earlier will because in the
words of Lord Greene MR in De Renville V De Renville (1948), it will be
regarded in every court as never having taken place.
A voidable marriage on the other hand revokes a will because it is considered
valid until the marriage is set aside.
Divorce, however, does not revoke a will until one remarries. Upon re-
marriage, he cannot consider a will as if it had never taken place.
Farazi Rwabaganga V Donato Bashemurwabusha 1977 (HCB) 244 Held
that since the will in court was made in August 1966, it stood revoked when
the deceased married the plaintiff in 1970 and that there being no subsequent
will, the deceased would be regarded as having died intestate.
Re- Bird
A couple divorced and the wife re-married. The husband did not revoke the
will. The ex-wife was entitled to property even though she re-married. Held
marriage revokes a will but divorce does not.
EXCEPTIONS
S.56 (2) where a person is invested with power to determine the disposition of
property of which he/she is not the owner, he/she is said to have power to
appoint that property.
Where a will is made in contemplation of marriage. In the Estate of
Langston (1953)P.100. The testator said “I devise and bequeath upon my
fiancée,” and later married the fiancée. Held, the will was valid and the test is
did the testator express the fact that he was contemplating marriage to that
particular person.
Therefore Basima Ogenze’s marriage to flower Karuiki will revoke the will.
REVOCATION OF A WILL BY DESTRUCTION, BURNING OR TEARING

S.57, a will is revoked by the burning, tearing or otherwise destroying of the
will or codicil by the testator with the intention of revoking it.
There must be physical destruction. Cheese v Lovejoy (1877)2 pd. 251 at
253. T drew lines to cancel the will and wrote “all these are revoked. He then
placed the will amongst a heap of wastepaper and the maid retrieved it. Held
that it was a symbolic but not sufficient act of destruction so as to impair the
entire will.
In the Estate of Num (1936)32 TLR 322: T cut out parts of the will and the
remaining parts were stitched together. Held only the missing part of the will
had been revoked and the remainder was submitted to probate.
G. Morton (1887)12 PD 141, where the signature of the testator was
scratched out with a knife the will was said to be effectively revoked.
It can be by the testator or some person in his presence and by his direction.
Gill V Gill (1909) PD 157, the testator’s will was torn up by the testator’s
wife in a fit of anger in the testator’s presence but without his direction. Court
held that the will was not revoked.
AN ACT OF DESTROYING REQUIRED TO REVOKE A WILL MUST BE DONE
WITH THE INTENTION OF REVOKING THE SAME.
Re Jones
A will was found mutilated with a piece of paper torn from it particularly for
those parts that the testator intended to amend. Held, in mutilating her will,
the testator had intention to achieve a revocation irrespective of writing a new
will.
ISSUE FIVE. CODICILS
WHAT IS THE ADVICE YOU GIVE BASIMA OGENNZE IN CASE HE
OBTAINS MORE PROPERTY AND OTHER CHILDREN AFTER HE HAS
DRAFTED A WILL?
Given the fact that a will is ambulatory in nature, that is it takes effect upon
death and can be revoked before the death of the testator. Basima Ogenze has
an option of revoking his prior will and write a new will where he can
redistribute his property to include his new property and his newly born triplets
who are entitled to benefit from his property.
Alternatively, Basima Ogenze may simply execute a codicil to add to the
original will and include the new property and the children or simply alter the
distribution of property.
S.2(c) - A codicil means an instrument explaining altering or adding to a will
and which is considered as being part of the will.
Each codicil is a constituent part of a will to which it belongs, therefore it is
important to refer to the will, which set it up otherwise it is likely to be read
as an independent will.
Burton V Newberry (1875), Ch. D 2341, the distinct reference to a prior
writing shows that the testator intends that the prior writing be part of the
testamentary disposition of property therefore the codicil ratifies, confirms
explains or adds to a will.
Re Estate of Saxton 712 N.Y.S 2d 225. The Testator made 2 documents
each signed and properly executed. The first document appointed and the 2 nd
document listed the beneficiaries. It was held that in the circumstances, the
lists were intended to be part of the will and the documents were labeled as
part of the will.
A codicil is executed in the same manner as will i.e
a) A testator must affix a signature
Baker V Gribble (1990)3 ALL ER 1, the testator attempted to alter a valid
will. He crossed out the section that he wanted altered and the witnesses
signed. The original signature of the testator remained intact and he simply
wrote ‘altering’ and put the date. Held, that the alterations were invalid and the
original will remained valid as unamended because the testator at the time did
not sign the alteration.
b) At least 2 attesting witnesses
S.54 (2) a legatee who attests a codicil that confirms a previous will does not
lose the gift under the will. This is because there is no new will but rather is a
confirmation of an existing will.
ISSUE SIX
DOCUMENT (CODICIL)
CODICIL, TO THE LAST WILL AND TESTAMENT OF BASIMA OGENZE
Made this 09th day of March 2017
Whereas I made a will on the 08th day of March 2015 at Zana. I wish to add to
my will the following
Clause 6 of my will is modified to include my three children borne by Teopista
Nalongo whose names are Kato Pal, Babirye Sarah and Kiiza Sandra all aged 1
year.
Clause II of my will is modified to include new property I have required;
 100 acres of land at Temangalo on Block 185 plot 8050.
 Commercial building on Kampala Road Block 25 plot 8080.
Basima Ogenze
Signature___________
Date
________________
FIRST WITNESS SECOND WITNESS.
Re Suleiman/ Serwanga Salongo (1972) 1ULR 122.
 The word executor had no equivalent word in Luganda that carry exactly
the same meaning, but “Omusika” had a wide meaning and conferred
more rights than executor and could safely be said to include executor
within its meaning.
 In kiganda customs, a person named in a will as omusika was the person
entitled in the English law who was supposed to be known as executor.
 Under such customs duties of “omusika” embraced the role of an
executor within meaning of the Succession Act and the intention of the
deceased would best be served by treating “omusika” as an executor.
 Haji Sulait Habib & Ors V Haji Safa.
REVOCATION OF A WILL BY ANOTHER WILL OR CODICIL

S.57, No unprivileged will or codicil nor any part thereof shall be revoked
otherwise than by marriage, or by another will or codicil or by some writing
declaring an intention to revoke the unprivileged will or codicil.
Express revocation, insert in a will an express provision revoking all prior
testamentary disposition made by the testator.
Implied revocation, it can be implied from a subsequent will or codicil.
Southern V Denning
A married woman having powers of appointment made a will and a codicil after
her husband’s death. She revoked all former wills. She made a third will that
bequeathed her personal property. Court held that the testamentary
appointment under the first will was revoked by the second will, the second
was revoked by the third will. That a revocation when it is clear in words has
the effect of revoking all former wills just as if they had never existed. It
cannot be contended that in revoking the second will, it sets up against the
first will. Both wills were revoked.
Simpson V Foxon
T made a will appointing his daughter as an executor. Later he executed an
insurance policy and gave the policy that “this is my last will”, 2 years later he
made another codicil amending the last will. Court held that all 3 intermediate
documents were valid wills that the words ‘ last and only will’ would not revoke
a former will if they are not inconsistent with it. The words would not
necessarily revoke the former if the 2 wills can stand properly together.
If the 2 wills are read together and the second one is inconsistent with the
first, the first one will be treated as revoked as to such parts as are
inconsistent with the provisions of the second will.
A subsequent will is no revocation unless its contents are known.
WORK SHOP 2
BRIEF FACTS
Joe Kasawo passed away in June 2012 and he left behind a widow Robinah and
four children namely Nocholas Kasawo aged 25 years, Jane Kasawo aged 22
years, Brian Kasawo aged 17 years and Yvonne Kasawo aged 14 years. He also
left behind land and a house at Wakiso comprised in Block 164 plot 117, a car
Reg No.UAA 11B, an account in Stanbic Bank (U) Ltd and other personal items.
His sisters Sarah and Anne together with his mother believed that Robinah was
the cause of Joe’s death. Two days after the burial, it was resolved that
Robinah should leave the house and that she should not take anything from
the house except her clothes. They also want her to go with her 14 year old
daughter as they suspect she does not belong to their clan and was not a
daughter of the deceased. They have gone ahead and distributed the estate
minus the daughter.
ISSUES
1. What are the rights of the different parties mentioned in the facts in
relation to the estate.
2. Who is most suited to administer the estate.
3. What other additional information would be required from Robinah in
order to advise her.
4. What are the necessary documents
5. What are the necessary court documents for Robinah’s action incase she
sees an advertisement for application for letters of administration to the
estate of Joe Kasawo applied for by Sarah and Anne in Orumuri dated
16th July 2013.
6. What would your advice be if Joe Kasawo had left a will naming Robinah
as the Executrix.
7. What is the procedure to be taken by the other beneficiaries if Robinah
who is named executrix renounces her ability to administer the estate.
8. What can Nicholas Kasawo do if he has obtained a Grant of Letters of
Administration to the Estate of Joe Kasawo Vide High Court of Kenya.
Admin cause No.90 of 2013 on 9th Nov 2013 and he wants to administer
Joe’s estate in Uganda.
9. What is the procedure to be followed to have the estate administered in
Uganda.
LAW APPLICABLE
1. Succession Act Cap 162
2. The administer General’s Act Cap 157
3. The probate (Resealing) Act Cap 160
4. The probate (Resealing) Rules S.1 160-1.
ISSUE ONE
BENEFICIARIES TO AN ESTATE
Rights of the different persons mentioned in the facts in relation to the
estate.
S.24 of the succession Act, a person dies intestate in respect of all property
which has not been disposed of by a valid testamentary disposition.
Romaro Samil, Ogwang & Anor v Sande Otaale HCCS No. 20 0f 2005, a
beneficiary is a person entitled to a share in the deceased’s property as per
succession law in Uganda.
a) Robinah, Joe Kasawo’s widow
Dependent relative S.2 (g) (1) includes a wife, a husband, a son or daughter
under 18 years of age or son or daughter of or above 18 years of age who is
wholly or substantially dependent on the deceased.
S.2 (w) Defines wife to mean a person validly married to the deceased
according to the laws of Uganda S.2 (w) (i). Therefore Robinah has a right to
share in the deceased husband’s property if she proves that she was legally
married to the deceased under the recognized forms of marriage in Uganda.
b) Children, Nicholas Kasawo, 25 years, Jane Kasawo aged 17years and
Yvonne Kasawo aged 14 years.
S.2 (b) “child” or “children” or issue and lineal descendant include legitimate,
illegitimate and adopted children.
S.2 (1) “illegitimate child” means an illegitimate child recognized or accepted
by the deceased as a child of his/her own.
Kajubi V Kabali (1994) EACA 14 court held that all children have a right to
share of their father’s estate whether born within wedlock or not.
Dependent relatives S.2 (g) (i) includes a son or daughter of or above 18
years of age who is wholly or substantially dependent on the deceased.
Therefore Brian Kasawo aged 17 years is entitled to a share of his father’s
estate. Nicholas Kasawo and Jane Kasawo will be entitled upon proof that they
were wholly or substantially dependant on their late father.
Yvonne Kasawo aged 14 years is entitled to the estate of the father as an
illegitimate child as she was accepted by the deceased as his daughter as she
had his last name. She is therefore a beneficiary.
b) Sarah and Anne, his sisters and his mother. S.2 (g) (ii), a dependent
relative includes a parent, a brother or sister, a grandparent or
grand child who on the date of the deceased’ death was wholly or
substantially dependent on the deceased for the provision of the ordinary
necessaries of life suitable for a person of his/her station.
In our facts, the sisters, Sarah and Anne together with his mother can amount
to dependent relatives upon proof that they were substantially or wholly
dependent on the deceased for the necessaries of life, however the facts do not
disclose this fact. Therefore they do not have a right to a share in the estate of
the deceased.
c) Clan leader
He does not qualify as a dependent relative and as such he is not entitled to
the deceased’s estate.
Nabaggala V Naakku (1993) IV KALR 59: A niece was held not to be a
dependant relative and as such is not entitled to the property of the deceased.
Right to occupy the residential holding. Section 26 to be held by the personal
representative upon trust, subject to the rights of occupation and terms and
conditions in the 2nd Schedule
ISSUE TWO
WHO IS THE MOST SUITED TO ADMINISTER THE ESTATE
An administrator means a person appointed by a court to administer the estate
of a deceased person when there is no executor (S.2 (a).
S.190 of the succession Act provides that letters of administration shall not
be granted to any person who is a minor or is of unsound mind.
S.201 of the succession act provides that when the deceased has died
intestate, those who are connected with the deceased either by marriage suit
or by consanguinity are entitled to obtain letter of administration of his/her
estate and effects in the order and according to the provisions hereafter
contained.
In the case of Francis Ddiba V Nansikombi (1980) HCB 79, court observed
that in appointing administrators, regard should be made inter alia to safety of
the estate and the probability of proper administration.
Musa V Musa (2002) E.A. 182, the widow of the deceased had priority in
petitioning for letters of administration.
Katinti V Nakalemera HCCS 84/91, it was held that it is trite law that the
widow has first priority to administer the estate of her intestate husband if
there is no widow or if for some reasons the widow cannot administer the
estate, the court must grant the administration thereof according to the rules
of distribution of an intestate’s estate.
The reason for this priority was given in Re Kibiego (1972) EA where it was
held that the widow had a better right to administer an estate because she
would rightfully and honestly safeguard the assets of the estate for herself and
the children. The wife of the deceased is therefore the appropriate person to
administer the estate.
A wife is defined under S.2 (w) of the succession Act to mean a person at
the time of the intestate’s death was;
i) Validly married to the deceased according to the law of Uganda or.
ii) Married to the deceased in another country by a marriage recognized
as valid by any foreign law under which the marriage was celebrated.
Christine Male & Anor V Mary Namanda Anor (1982) HCB 140, the 1st
plaintiff was the widow of the deceased and they were validly married. The first
defendant had never been the wife of the deceased although she had four
children by him consequently, the only person who could apply for letter of
administration was the first plaintiff under S.201 of the succession act as
amended by section 1 of the succession (Amendment) decree No.22 of 1972.
In addition, the wife must not at the time of the demise of the husband be
separated from him otherwise she loses the interest in the estate.
S.30 (1) Succession Act provides that no wife or husband of an intestate shall
take any interest in the estate of an intestate if, at the death of the intestate,
he/she was separated from the intestate as a member of the same household.
Rwabaganda Farasio V Bahemurwabusha (1978) HCB 244 court held that
no spouse of an intestate can share in the estate of the intestate if at the time
of the intestate’s death the spouse was separated from the intestate as a
member of the same household.
S. 202 of the succession act provides that subject to S.4 of the administrator
Generals Act, administration shall be granted to the person entitled to the
greatest proportion of the estate under S.27.
S.27 provides for the distribution in the death of a male intestate.
S.27 (1) (a) where there is a customary heir a wife, a lineal descendant and a
dependant relative.
i) Customary heir shall receive 1%
ii) The wives shall receive 15%
iii) The dependent relative shall receive 9%
iv) The lineal descendants shall receive 75%
S.27 (1) (b) where the intestate is survived by a customary heir, a wife and a
dependent relative but no lineal descendent.
i) Customary heir shall receive 1%
ii) The wife shall receive 50%
iii) The dependent relative shall receive 49%
S.27 (1) (c), where the intestate is survived by a customary heir, a wife or a
dependant relative but no lineal descendant.
i) The customary heir shall receive 1% and
ii) The wife or dependant relative as the case may be shall receive 99%.
Law and advocacy for women in Uganda (LAW (U) V A.G Const. petition
No.13 of 2006: the petitioner filed a petition under A.137 (3) of the
constitution challenging some sections of the succession Act, among which is
S.27 that were contrary to A.20,21,24,26,31,33 and 34 of the constitution.
The court held that the said provision was inconsistent with the constitution.
Rule 11 of the Administration of Estate’s (Small Estates) (Special
Provisions) (Probate and Administration) Rules S.1 156-1 provides for the
order of priority for grant of letters of administration in case of intestacy.
Rule 11 (1) the order of priority is;
a) The children of the deceased
b) The surviving spouse
c) The father or mother of the deceased
d) Brothers and sisters of the whole blood or the issue of any deceased’s
brother or sister of the whole blood who had died during the life time of
the deceased and any persons entitled by virtue of any enactment to be
treated as if they were the children of the deceased.
e) The issue of any such child of the deceased.
Rule 11 (2) persons entitled to a grant incase the classes mentioned in Rule
11 (1) are not available.
Rule 11 (3) the administrator General may also be entitled to a grant if he/she
claims bona vacantia on behalf of the state.
S.25 of the succession Act, all property in an intestate estate devolves upon
the personal representative of the deceased upon trust for those persons
entitled under the Act.
DUTIES OF AN ADMINISTRATOR
 S. 277 succession Act. Perform the funeral of the deceased in a manner
suitable of his/her condition
 S. 278. To make an inventory within 6 months after the grant of letters
of administration. An inventory provides for the estimates of all property
of the deceased. The administrator has to exhibit an account showing the
assets which have come to his/her hands and the manner in which they
have been applied or disposed of.
 S. 279. Administrator has to collect all the property and debts of the
deceased which accrued to him/her at the time of the death.
 S.280. Administrator is required to pay expenses such as funeral
expenses, death bed charges and they rank in priority over any other
debts.
 S.281. the Adminstrator has an obligation to pay expenses incurred
while obtaining Letters of Administration and they rank 2nd in priority.
 S.282. The administrator has a duty to pay wages and other debts due
for services rendered to the deceased within 3 months preceding his/her
death e.g labourers, domestic servants etc.
 S.283.The administrator has a duty to pay the deceased’s creditors and
none of the creditors has priority over the others.
 S.249.The administrator has a duty not to have any false averments in
any verification accompanying a petition which he/she believes to be
false.
 S.25. Administrator holds the property of the deceased on behalf of or in
trust for the beneficiaries.
Tibakanya Margret & Anor V.A.J Kamba Apoli Family Division Civil Suit
No.50 of 2008. Court held that the administrator of the estate of the deceased
holds the property of the deceased on behalf of the beneficiaries but not for his
personal use. After grant of letters of administration he/she is supposed to file
an account in court within 6 months of the grant and an inventory on the
court record.
 S.270. The administrator has power to dispose of the property of the
deceased either wholly or in part subject to S.26 and the 2nd schedule.
 S.271. Administrators are not supposed to purchase the estate or
property of the deceased.
 Power to distribute the estate of the deceased amongst the beneficiaries.
WHO ELSE CAN BE APPOINTED AS AN ADMINISTRATOR OF AN ESTATE

 A creditor may be granted letters of administration if no person
connected to the deceased by marriage or consanguinity exists or is
willing to act.,
 A legatee, other than a universal legatee
 Administrator General (S.4 (4) of the A.G Act he ranks higher.
 A friend of the deceased
 A trust corporation in accordance with trust corporations (probate and
administration) act cap 163.
 Consular offices of foreign states in accordance with the Diplomatic
property and consular convention act cap 202.
NB: For purposes of succession a child is a child until he/she dies.
S.5 (1) Administrator General Act, a widow is exempted from applying for a
certificate of no objection.
Administrator General V Akello Joyce and Anor SCCA No. 15/1993, court held
that a widow is or a widower is authorized to apply for Letters of
Administration before first obtaining a certificate of no objection.
Omera V Otiengi & Anor (1994) HCB 98 court held that where there are
children mothered by another woman, it is prudent to give the letters of
administration to the widow and another person.
ISSUE THREE
ADDITIONAL INFORMATION
 Whether Robinah was married to the deceased Joe Kasawo legally
(marriage certificate).
 The death certificate of the deceased
 Whether Nicholas Kasawo and Jane Kasawo were wholly or substantially
dependant on the deceased.
 Time and place of the deceased’s death
 Other relatives of the deceased dependent on the deceased
 The property of the deceased
 Whether the death was reported to the administer General.
 The letter of introduction from the local authority to show that Robinah is
a citizen of Uganda. It should be signed by 5 members of the council.
 The children’s birth certificates
 The paternity of Yvonne Kasawo.
PETITION FOR GRANT OF LETTERS OF ADMINISTRATION
S.246 of the succession Act provides that an application for letters of
administration shall be made by petition distinctly written in English language
and stating;
a) the time and place of the deceased’s death
b) the family or other relatives of the deceased and their respective
residences
c) the right in which the petitioner claims
d) that the deceased left some property within the jurisdiction of the high
court or district delegate to whom the application is made and
e) The amount of assets which are likely to come to the petitioner’s hands.
S.247, the petition has to be signed and verified by the petitioner.
Petition
IN THE HIGH COURT OF UGANDA AT KAMPALA
ADMINISTRTATION CAUSE NO.247 OF 2015
IN THE MATTER OF THE ESTATE OF JOE KASAWO
(DECEASED) FORMERLY OF RUBAGA, KAMPALA DISTRICT
AND
IN THE MATTER OF AN APPLICATION FOR LETTERS OF
ADMINISTRTAION TO THE ESTATE OF JOE KASAWO (DECEASED) BY
ROBINAH KASAWO, WIDOW TO THE DECEASED
PETITION FOR LETTERS OF ADMINISTRTAION
THE HUMBLE PETITIONOF ROBINAH KASAWO SHOWETH;
1. That your petitioner is a female adult Ugandan of sound mind, whose
address for purpose of the petition shall be M/S Firm F1 & Co.
Advocates P.O. Box 7117, Kampala.
2. That your petitioner hereby petitions this honorable court for the grant of
the letters of administration of the estate of the late Joe Kasawo who
died on the 21st of June 2015 in Rubaga. (A copy of the death
certificate is hereto attached and marked annexture ‘A’).
3. That at the time of his death, the deceased had a home in Rubaga
comprised in Block 116, plot 10 Rubaga division within the jurisdiction of
this honourable court.
4. That the deceased, Joe Kasawo died intestate
5. That the deceased is survived by your petitioner the widow (a copy of
the marriage certificate is hereto attached and marked annexture
‘B’).
6. The deceased is survived by the following;
i) Nicholas Kasawo (son) aged 25 years
ii) Jane Kasawo (daughter) aged 22 years
iii) Brian Kasawo (son) aged 17 years
iv) Yvonne Kasawo (daughter) aged 14 years
v) Robinah Kasawo (widow) aged 45 years.
7. That the deceased had no dependent relatives.
8. That the deceased left the following property;
a) Land and a house at Rubaga comprised in Block 116, plot 10.
b) Land and a house at wakiso comprised in Block 164, plot 117
c) A car Reg. No.UAA 111B.
d) An account in Stanbic Bank (U) Ltd
e) Personal items.
9. That the value of the deceased’s property is approximately shs
150,000,000/= which is likely to come into my hands.
10. That whatever I have stated hereinabove is true and correct to the
best of my knowledge and belief.
SWORN at Kampala this 11th day of March 2017
By the said ROBINAH KASAWO ______________________
Petitioner
Before me: ____________________________
VERIFICATION
I, Robinah Kasawo, the petitioner in the above petition, declare that what is
stated therein is true to the best of my information and belief.
_______________
Declarant
Before me: __________________________
Drawn and filed by
M/s Firm D3 & Co. Advocates
P.O. Box 7117, Kampala
If there is no death certificate you swear an affidavit in Lieu of death
certificate and attach a letter of introduction from the LC.
STATUTORY DECLARATION
ADMINISTRTATION CAUSE NO._____ OF 2017
AND
IN THE MATTER OF AN APPLICATION FOR LETTERS OF ADMINISTRTAION TO

THE ESTATE OF JOE KASAWO (DECEASED) BY ROBINAH KASAWO, WIDOW
TO THE DECEASED
STATUTORY DECLARATION
I, Robinah Kasawo of c/o firm F1 and Co Advocates P.O Box 7117, Kampala
sincerely declare;
1. That I am the widow of the late Joe Kasawo
2. That the late Joe Kasawo died on the 21st day of June 2017 intestate at
his home in Rubaga, Kampala district.
3. That I will faithfully administer the estate and effects of the said
deceased by paying his just debts and distributing the residue of his said
estate and distributing the residue of his said estate and effects
according to the law.
4. That I shall make true and perfect inventory of all and singular the said
estate and effects and render a just and true account thereof whenever
required by the law so to do.
Sworn at Kampala by the said
ROBINAH KASAWO _______________________
Deponent (Declarant)
This 11th day of March 2015
Before me _________________________
NOTICE OF APPLICATION
ADMINISTRTATION CAUSE NO.______ OF 2017
AND
IN THE MATTER OF AN APPLICATION FOR LETTERS OF ADMINISTRTAION TO

THE ESTATE OF JOE KASAWO (DECEASED) BY ROBINAH KASAWO, WIDOW
TO THE DECEASED
NOTICE OF APPLICATION
(FOR LETTERS OF ADMINISTRATION)
TO WHOM IT MAY CONCERN
TAKE NOTICE that the application for letters of administration to the Estate of
the late JOE KASAWO has been lodged in this court by ROBINAH KASAWO,
widow of the deceased.
This court will proceed to grant the same if no caveat is lodged with this court
within 14 (fourteen) days from the date of publication of the Notice unless
cause be shown to the contrary.
Dated at Kampala this 12th day of March 2017
___________________
REGISTRAR
ADDITION TO THE RIGHTS OF THE BENEFICIARIES

Right to the residential holdings
S.26 (1) of the succession act provides that the residential holding normally
occupied by a person dying intestate prior to his/her death as his/her principal
residence or owned by him/her as a principal residential holding including the
house chattels shall be held by his/her personal representative upon trust for
his/her heir subject to the rights of occupation and terms and conditions set
out in the 2nd schedule to this act.
NB: Rules 1, 7, 8 and 9 of the 2nd Schedule were found to be
Unconstitutional in the case of Law and Advocacy for Women in Uganda
v Attorney General Constitutional Petitions Nos. 13/05 & 05/06.
Rule 1, 2nd schedule provides for the persons entitled to occupation rule 1
(1) any wife or husband, and children under 18 years of age if male or
under 21 years and unmarried if female who were normally resident in the
residential holding are entitled to occupy it.
Rule 1 (2) in case of a residential holding owned by the intestate as a principal
residential holding but not occupied by him or her because he/she was living in
premises owned by another person, any wife or husband any children under 18
years if male or 21 years of age if unmarried for female who were resident
with the intestate prior to his/her death.
Rule 1 (4) any property that does not fall within the residential holding shall
be distributed in accordance with S.27 of this Act.
Rule 4 certificate of occupancy in form B of the third representative and a
duplicate to the occupant.
Rule 6 occupancy of a residential holding shall be deemed to be an interest
inland capable of protection by a caveat under the RTA.
Rule 8 termination by events occupancy of a residential holding shall terminate
automatically on the happening of any of the following events;
a) Upon the remarriage of the occupant where the occupant is a wife(This
was found to be unconstitutional)
b) Upon the death of the occupant for all the occupants
c) Upon the occupant, being a child or all the occupants being children
attaining the age of 18 years in case of males and attaining the age of
21 or marrying in the case of females.
d) Upon the occupant or occupants easing to occupy the residential holding
for a continous period of 6 months
e) Upon surrender in writing signed by the occupant if adult or endorsed by
the court if the occupancy is by a minor or minors.
Rule 9 termination by court order,
a) When the occupant persistently fails to comply with one or more
provisions of the covenants (Rule 7 one or more provisions of the
covenants (rule 7)
b) Suitable alternative accommodation is available for the occupant and
the occupant would not suffer any hardship by occupying the alternative
accommodation instead of the residential holding.
c) No hardship would be occasioned to the occupant or any person
resident with and dependent upon the occupant if the occupant is paid
a sum of money to be assessed by the court instead of being permitted
to occupy the residential holding or part of it.
ISSUE FIVE
CAVEATS
S.253 of the succession Act provides that caveats against the grant of
probate or administration may be lodged with the high court or a district
delegate and immediately on any caveat being lodged with any district
delegate he or she shall send a copy of it to the high court.
The form of the caveat is provided for under S.254 of the succession Act.
The effect of such caveat is that no proceeding shall be taken on a petition
for probate or letters of administration after a caveat against the grant of the
petition has been entered with the judge or officer to whom the application
has been made, or notice has been given of its entry with some other delegate
until after such notice to the person by the caveat has been enacted as the
court thinks reasonable (S.255).
In any case before the High Court in which there is contention, the proceedings
shall take as nearly as may be the form of a regular suit according to the
provisions of the law relating to civil procedure in which the petitioner for
probate or letters of administration as the case may be shall be the Plaintiff
and the person who may have appeared to oppose the grant shall be the
Defendant (S.265) removal of caveat by suit.
Kakaira Namungo V Mrs. Nakku Namusis (1980) HCB 65 held that an
applicant would institute against the caveator a regular suit whereby the
applicant would become the plaintiff and the caveator the defendant.
Kaggwa 16 Ors V Yowana Kiwanuka (1993) III KARL 17 held S.265
applies to a situation where a person applies for a grant of probate of letters
of administration and another opposing the application lodges a caveat against
the grant. In such a case, the caveatee must file a suit in court aimed at lifting
the caveat. He becomes the plaintiff and the caveator must file a defence and
thus becomes the defendant.
1. S.265 is also applicable where the applicant or applicants have applied
for but have not yet obtained grant of probate or letters of administration
and a third party who is opposing the grant places a caveat against such
grant.
2. S.265 does not apply in a situation in which what is being sought is
revocation of the grant of probate directly made and replacement of the
grantee, the survivors and 3 of the fellow grantee. The proper
procedure would be originating summons under 0.3 4 r 1 and 2 (now
0.37).
The remedy available to Robinah Kasawo is to lodge a caveat in the High court
where the application for letters of administration has been made/filed.
The caveat takes effect when filed in registry and stamped and no need to
sign by the registrar or magistrate as his signature only shows the time within
which the caveat is lodged and the same is for a WSD as time limit is
important.
The caveat is supported by an affidavit in support and you have to attach
the marriage certificate, death certificate and make mention of the
beneficiaries.
The grounds for lodging the caveat are;
 Mismanagement of the estate
 And that Robinah Kasawo is the most suitable person to administer the
estate as she is the widow.
CAVEAT (DOCUMENT)
ADMINISTRTATION CAUSE NO.______ OF 2017
AND
IN THE MATTER OF AN APPLICATION FOR LETTERS OF ADMINISTRATION BY

SARAH AND ANNE KASAWO, SISTERS OF THE DECEASED
CAVEAT
LET NOTHING BE DONE in the matter of the estate of the Late Joe Kasawo
(deceased) of Rubaga Division, Kampala District who died on the 21st day of
June 2015 at Rubaga Division without notice to Robinah Kasawo of Rubaga
division, Kampala district, the widow of the deceased.
The grounds upon which this caveat is lodged are stated in the affidavit of
Robinah Kasawo, the caveator attached hereto.
Dated at Kampala this 11th day of March 2015
_______________
CAVEATOR
Drawn and filed by
P.O. Box 7117
Kampala
ADMINISTRTATION CAUSE NO._____ OF 2017
AND
IN THE MATTER OF AN APPLICATION FOR LETTERS OF ADMINISTRATION BY
SARAH AND ANNE KASAWO, SISTERS OF THE DECEASED
AFFIDAVIT IN SUPPORT
I Robinah Kasawo of Rubaga, C/o Firm F1 and Co Advocates P.O.Box 7117,
Kampala do hereby swear that the state on Oaths as follows;
1. I am a female adult Ugandan of sound mind, the caveator in this matter
in which capacity I swear this affidavit.
2. That I am the widow of the late Joe Kasawo (A copy of the marriage
certificate is attached hereto and marked annexture ‘A’).
3. That as a result of our marriage, we had four issues, to wit, Nicholas
Kasawo aged 25 years, Jane Kawaso aged 21 years, Brian Kasawo aged
17 years and Yvonne Kasawo aged 14 years.
4. That on the 21st day of June 2015, the deceased died from our home in
Rubaga division, Kampala division. (A copy of the death certificate is
attached hereto and marked annexture ‘B’).
5. That the deceased left the following property; land and house at Rubaga
comprised in Block 116, plot 10, land and a house at Wakiso comprised
in Block 164, Plot 117,…………. Car reg no UAA 111B an account in
Stanbic Bank (U). I and other personal items.
7. That I saw a publication of advertisement for application letters of
administration to the estate of Joe Kasawo applied for by Sarah and
Anne Kasawo, the sisters of the deceased in the Orumuri, dated 16th
July 2013 (A copy of the publication is attached hereto and marked
annexture ‘C’).
8. That the applicants for the letters of administration are not entitled to
the letters of administration as they have no interest in the estate of the
late Joe Kasawo.
9. That I have been advised by my lawyers which information I verily
believe to be true that I am the most suitable person to administer the
estate of the late Joe Kasawi because I am the widow if the deceased.
10. That I have an interest in the estate of the deceased.
11. That whatever I have stated herein above is true and correct to
the best of my knowledge save for paragraph 8 whose source of
information is indicated therein.
Sworn at Kampala this 11th day of March 2015 by the said
ROBINAH KASAWO ________________________
DEPONENT
This 11th day of March 2015
BEFORE ME __________________________
Drawn and filed by
P.O. Box 7117
Kampala
ISSUE SIX
PROCEDURE FOR THE GRANT OF PROBATE
S.2 (5) of the succession Act defines “probate” to means the grant by a
court of competent jurisdiction authorizing the executor named in the testator’s
last will to administer the testator’s estate.
S.235 (1) of the succession Act provides that the jurisdiction to grant
probate and letters of administration shall be exercised by the High Court and a
magistrate’s court in accordance with the administration of Estates (small
estates) special provisions) Act.
S.235(2). Any reference to a district delegate shall be constructed as a
reference to a magistrate’s court.
Procedure
1. Obtain a death certificate, Rule 4 (1) (S.156-1) to prove the deceased
has actually died, you must have a copy of the death certificate. There
are two ways to acquire one if the deceased died at the hospital you
should ask the hospital for a record of the death. If the deceased died
somewhere other than a hospital you should ask the LCI Chairperson to
write a document verifying the death.
You should also get letters of introduction at the same time, if you go to the
LCI.
2. Obtain a copy of the will, this should be in English if it is written in a
language other than English, it must be translated into English by a
translator of the court. The administration of Estates (Small Estates),
(Special provisions) Rules, Rule 6 provides for the manner for
verification of the translation (and S.245 succession Act.)
“I ……………….declare that I read and perfectly understand the language and
character of the original and that the above is a true and accurate translation
of the original”.
3. Determine which court has authority over the estate. The amount of
property the deceased owned at the time of death determines which
court can appoint an executor/grant the probate. You simply make an
estimate of the combined value of all the deceased’s estate.
S.235 (1) jurisdiction of the high court and the magistrate’s estate.
4. Obtain letters of introduction. The law does not require letters of
introduction but the letters but the letters help your application proceed.
They show the court that you are proceeding openly and have the
support of local leaders
5. Obtain identification card. The court needs to know that the person
applying for the grant of probate is who she/he claims to be whenever
you go to a government building regarding your application, you should
bring an identification card.
6. Write court documents. You must write three different documents and
submit them to the court as part of your application for the grant of
probate. These are petition; the declaration and the notice of application.
S.244 of the succession Act provides that an application for probate shall be
made by a petition distinctly written in English language with the will annexed
to it. Stating:
a) The time of the testator’s death.
b) That the writing annexed is the testator’s last will and testament and
that it was duly executed.
c) The amount of assets which are likely to come to the petitioner’s hands
and,
d) That the petitioner is the executor named in the will and in case the
application is to a district delegate, the petition shall further state the
deceased, at the time of his/her death, had his/her fixed place of abode, or had
some property, movable or immovable, situate within the jurisdiction of the
delegate.
R.3 (1) of the Administration of Estates Rules S.1 156-1, an application for
probate shall be in form 1A of the 1st schedule to these rules with the will
annexed.
S.247 provides that the petition should be signed and verified by the petitioner
and it provides for the manner.
Rule 3(5) of S.I 156-1 provides for that the application shall be subscribed by
the applicant in the presence of a magistrate or by his/her advocate, if any and
shall be verified by at least one of the witnesses who is in the position to testify
to the authenticity of the signature of the testator in a manner provided for in
form 1A of the first schedule to these Rules or to the like effect.
S.248 of the succession Act provides for verification of the petition for probate
by one witness to will and the manner of the verification.
You must notify anyone interested in the estate that you have applied to
become the executor.
Rule 2 of the Judicature (Administration of Estates) Rules S.1 13-7:
applicant for grant of probate shall cause notice of his/her intention to be
published in the Gazette, a newspaper of wide circulation and posted on the
High Court Notice Board. (This is a notice of application).
7. Get the documents commissioned. The declaration and petition must
be commissioned. A commissioner for oaths is an attorney who had
practiced for several years and has been certified by the government to
issue commissions.
8. Apply for a grant of probate. The application should be filed with the
magistrate if the magistrate court has authority over the estate or with
the registrar if the high court has authority.
The application must include copies of death certificate, deceased’s will, letter
of introduction, your identification card, declaration, petition for probate, notice
of application for a grant of probate published in newspaper.
When the petition, declaration and notice of application are filed in court, you
will pay a filing fee to the bank. Bring the receipt to the court registry. The
registry will assign your petition a file number. Then the court officials will give
you a copy of notice of application for probate to publish in a local newspaper
that circulates in Uganda.
9. Publish notice of application in a newspaper.
The advert in the newspaper in forms anyone with an interest in the estate
that you have applied to become the executor.
The newspaper will charge a fee to run the advert. It must only appear in one
issue. You should probably run the advert in one of the widely circulated
newspapers in your home area.
If anyone else wants to apply for letter of administration or to protest the
application, they must file a caveat in the court within 14 days of the
advert’s appearance in the newspapers.
S.262 No probate of a will shall be granted until after the expiration of 7 clear
days from the day of the testator’s death.
Rule 3 of the Judicature (Administration of Estates) Rules S.1 13-7, no
application for probate or for letter of administration shall be granted until 14
clear days after the advertisement of the notice of application.
Fourteen days after the notice in the newspapers, return to court with a copy
of that newspaper to show wherever the notice was published. File this copy in
court. Then the court will give you identification forms to fill and a state when
you will return for identifications.
10. Appear for identification
After you have submitted a complete application you should follow up with the
clerk about its progress. Once the court has considered the application and is
prepared to appoint an executor, you will be called to appear in court. Bring
you identification card. LCI letter of introduction and all other documents you
included in the application. The registrar/magistrate will ask several questions
to verify your claim to be. The questions could be about your birth date, age or
relationship to the deceased.
If everything is in order, the register will send the file to the judge for final
approval or if case is before the magistrate, the magistrate will approve the
application.
11. Receive Grant of Probate
Once the Court has approved the application, verified that you are the person
identified in the will as executor, and verified that the will is not forged, you will
go to court to pick up the grant of probate. This is a legal document from the
court authorizing you to take control of the deceased’s estate and distribute it
according to the will.
12. Distribute the estate.
Once appointed by the court, the executor has legal authority to administer the
estate.
The executor must:
1) Collect any debts owed to the deceased.
2) Pay debts owed the deceased
3) File an inventory
The executor must give the court a complete and accurate inventory of all the
estate property within six months of receiving letter of administration. S.278
of the succession Act.
If the executor does not file an inventory within six months, the court may
require that he/she pays the money pledged in the administration bond.
4. Distribute the estate property to persons according to the will’s instructions.
5. File a complete and final account with the court of how the property was
distributed. S.278 (1) of the Succession Act. If the estate will not be
completely distributed within 12 months of receiving the grant of probate the
executor must notify the court as to the reason why, prior to the expiration of
that 12 months period.
6. Act in the best interest of those entitled to receive property.
PETITION FOR GRANT OF PROBATE

PROBATE CAUSE NO.001/2015
IN THE MATTER OF THE ESTATE OF JOE KASAWO (DECEASED)
FORMERLY OF RUBAGA DIVISION, KAMPALA DISTRICT.
AND
IN THE MATTER OF AN APPLCIATION FOR THE GRANT OF PROBATE BY
ROBINAH KASAWO (EXECUTION OF THE WILL OF THE DECEASED)
PETITION FOR PROBATE
THE HUMBLE PETITION OF ROBINAH KASAWO SHOWETH:
1. That your petitioner is a female adult Ugandan of sound mind whose
address for purposes of this petition shall be M/S Firm F1 & Co Advocates , P.O
Box 7117, Kampala.
2. That your petitioner hereby applies to this honorable Court for grant of
probate of a will of the late Joe Kasawo who died on the 21st day of June
2015. (A death certificate of hereto attached and marked annexure “A”)
3. That the last will and testament of the deceased, executed by him on the
on the 26th day of October 2014 is hereto attached marked annexture “B”.
and
4. That your petitioner was married to the deceased at the time of making
the will. (A copy of the marriage certificate is hereto attached and marked
annexture “C”)
5. The deceased is survived by the following children:
i) Nicholas Kasawo aged 25 years
ii) Jane Kasawo aged 22 years
iii) Brian Kasawo aged 17 years
iv) Yvonne Kasawo aged 14 years
6. That the deceased left both moveable and immovable property namely.
a) Land and a house at Rubaga comprised in Block 116, plot 10.
b) Land and a hosue at Wakiso comprised in Block 104, plot 10
c) A car Reg Nol UAA 11B
d) An account in Stanbic Bank (U) Ltd
e) Personal items
7. That the deceased, Joe Kasawa, at the time of his death had a fixed
place of abode at Rubaga division, Kampala district within the jurisdiction of
the Honorable Court.
8. That the petitioner, Robinah Kasawo is the executor named in the last
will and testament of the late Joe Kasawo.
9. That the value of the deceased’s property that is likely to come into your
petitioner’s hands is approximately Shs, 150,000,000/=
Sworn at Kampala this 11th day of March, 2015
By the said Robinah Kasawo ...............................
Petitioner
Before me: ...................................
Commissioner of oaths
VERIFICATION
I, Robinah Kasawo, the petitioner in the above petition, declare that what is
stated in it is true to the best of my information and belief.
.............................
Petitioner
Before me: …………………………………………………..
Commissioner for oaths.
VERIFICATION OF THE PETITION FOR PROBATE BY A WITNESS TO
THE WILL
I, Timothy Dumba one of the witnesses to the last will and testament of the
late Joe Kasawo mentioned in the above petition, declare that I was present
and saw the testator affix his signature to it in my presence.
Signed by the said
Timothy Dumba ........................
Witness
Before me: .................................
Commissioner for oaths
Note: Should be accompanied by the Declaration and a Notice of application.
ISSUE SEVEN
PROCEDURE TAKEN WHEN THE EXECUTOR RENOUNCES HER ABILITY TO

ADMINISTER THE ESTATE.
S. 194(1) of the Succession Act provides that when a person appointed an
executor has not renounced the executorship letters of administration shall not
be granted to any other person until a citation has been issued ,calling upon
the executor to accept or renounce his/her executorship.
S.195 a renunciation may be made orally in the presence of a magistrate.
Commissioner for oaths or justice of the peace or by writing signed by the
person renouncing and when made, shall preclude him or her from ever
thereafter applying for probate of the will appointing him/her executor.
S.196 provides for the procedure where executor renounces or fails to accept
within time limited, if the executor renounces the will may be proved and
letters of administration with a copy of the will annexed may be granted to the
person who would be entitled to administration in case of intestacy.
Therefore when Robinah, Kasawo renounces her ability to administer the
estate, the other beneficiaries can proceed to petition for grant of letters of
administration with a copy of the will annexed on ground that the named
executor has renounced her ability to administer the estate.
PROCEDURE FOR GRANT OF LETTERS OF ADMINISTRATION

1. Every death must be reported to the Administrator General S.4(1) of
the administrator General’s Act provides that when a person dies in
Uganda, the agent of the area in which the death occurs shall upon
receiving notice of the death, institute inquiries to ascertain whether the
deceased left any property in Uganda and shall report the death with full
particulars as to property to the Administrator General.
A person who comes to report the death of the deceased buys a file and a
report of death form at a fee of shs 2000/=
 The death should be reported within 3 months after the death of the
deceased.
 The person should present a death certificate which can be obtained
from a hospital which is referred to as a short hand, death certificate,
which is given by the hospital where the deceased was admitted prior to
his/her death.
 The death certificate can also be obtained from the registrar of Deaths
located at Georgia House.
 If you do not have a death certificate, you make an affidavit in lieu of
death certificate.
 The report should also be accompanied by an introductory letter of the
L.C.I chairman introducing the person reporting the death.
 The form must be filled in with all the details of the deceased, whether
he left a will or not, the beneficiaries among others.
2. When a file is opened, the file is sanctioned by the officer. It is then
given a file number number. This depends on the region from which the
person is/the estate. This enables the file to be allocated to a person who
knows the language.
3. The officer will then call a family meeting; this is either held at the
Administrator General’s office or the CAO’s office if the person comes
from outside Kampala, or the LCIII (Mayor’s of the division e.g Rubaga
Makindye)
4. When a meeting is called the Administrator General shall make sure that
as many beneficiaries as possible attend the meeting.
5. The administrator General/an officer chairs the meeting and writes the
minutes of the meeting. In the meeting, an administrator or
administrators is/are appointed, he/she then makes a report of the
family meeting
If there is a beneficiary out of the country, who needs to consent, a power of
attorney is required.
6. The a proposed administrator will then apply for a certificate of no
objection. However, the widow or the widower is not required to acquire
/obtained a certificate of no objection.
A certificate of no objection is a prerequisite for one to get letters of
administration form the courts of law, except for widows or widowers.
7. A certificate of no objection is given within a week, ideally it should not
take more than 28 days. This certificate is given if there is no objection.
However, a widow or widower may be required to have the consent of the
children who are not her biological/adopted children. This is a precaution
taken by the courts of law.
8. The proposed administrator shall then petition to the High Court for
letters of administration. The petition is provided for under S.246 of the
Succession Act. The petition is accompanied by a declaration.
9. The registrar will then cause a notice of application for letters of
administration to be advertised in a newspaper of wide circulation S.262
of the Succession Act, Rule 2 of the Judicature (Administration of
Estates) Rules S.1 13-7.
The notice must also be gazeted in the Uganda, Gazette. The advert only
appears once in the newspaper. If anyone else is opposed to the grant of
letters of administration, he/she should lodge a caveat within 14 days from the
date of advertisement (S.253 and 254).
10. When no caveat is lodged and the 14 days lapse after the
advertisement, the petitioner shall secure a date for identification with
the registrar of the High court.
11. The petitioner will then appear for identification before court. The
court will then ask you questions about your relationship with the
deceased.
The petitioner is required to have an identification card and a letter of
introduction from the LC I and passport size photographs.
The petitioner should also have a certificate of no objection and the original
advert.
Identification is before the registrar of the high court.
If the registrar is satisfied that all the requirements for identification are as
required he/she will forward the file to the judge for grant of letters of
administration.
12. The judge shall then grant the letters of administration of the
estate of the deceased S. 260 of the succession act. The court may
before committing a grant of letters of administration to any person
require that a person to give a bond to a judge of the high court or
district delegate to be available for the benefit of the judge or delegate
for the time being, with one or more surety or sureties engaging for the
due collection, getting in and administering the estate of the deceased
which bond shall be in such a form as the high court shall direct.
13. The appointed administrator who has obtained letters of
administration should cause an advertisement to be placed in a
newspaper of wide circulation.
S .259 grant of letters of administration to be under the seal of court. It
provides for the manner in which the grant should take.
14. Six months after the grant of the letter of administration, the
administrator should come back to court and exhibit an inventory
containing the full and true estimate of all the property in his possession,
and all the credits and also the debts owing to the administrator in that
character. (S. 278(1) of the succession act.)
15. One year after the grant, the administrator is required to exhibit an
account of the estate showing the assets which have come to his/her
hands and the manner in which they have been applied or disposed of
(S.278 (1) succession act)
The administrator will also be required to wind up and inform court that he is
released from the obligations as administrator.
ISSUE EIGHT
HOW CAN ONE ADMINISTER AN ESTATE IN UGANDA WHERE HE/SHE
OBTAINED LETTERS OF ADMINISTRATION TO THE ESTATE FROM
KENYA?
S .2 of the Probate (Resealing) Act CAP 160 provides for the sealing of
probates and letters of administration granted outside Uganda where a court of
probate in any part of the common wealth in any foreign country has granted
probate or letters of administration in respect of the estate of a deceased
person. The probate or letters so granted may on being produced to and a
copy deposited with the high court be sealed with the seal of that court and
thereupon shall be of the like force and effect and have the same operation in
Uganda as if granted by that court.
“probate” and “letters of administration” include confirmation in Scotland and
any instrument having in any other part of the common wealth the same effect
which under English law is given to probate and letters of administration
respectively. (S.1(c)of the Probate (Resealing) act.
CONDITIONS TO BE FULFILLED
S .3(b); the court shall before sealing a probate or letters of administration be
satisfied, in case of letters of administration that security has been given in a
sum sufficient in amount to cover the property if any in Uganda to which the
letters of administration relate and may require such evidence as it thinks fit as
to the domicile of the deceased person.
S .4 of the succession act provides under s.4(1) that succession to the
immovable property in Uganda of a person deceased is regulated by the law of
Uganda. Wherever that person may have had his/her domicile at the time of
his/her death.
S .4 (3) provides for the instances when the deceased is deemed to have had
his/her domicile in Uganda.
Who may apply
Rule 2 of the probate (resealing) rules s.1 160-1 provides that the
application may be made by the person to whom the grant was made or the
attorney of that person either in person or by advocate.
ISSUE NINE
PROCEDURE
 The application is made by lodging with the chief registrar of the high
court at Kampala by way of ordinary letter together with the grant
required to be sealed an administration bond in form A in the schedule to
the rules, if the applicant is aching under a power of attorney, the
instrument creating the power and if the applicant requires the
instrument to be returned with the grant, a copy of the instrument (Rule
3).
 The application shall be supported by an oath in form C in the schedule.
Rule 4 (b).
 A fee of 45 shillings shall be paid upon making an application. Rule 5.
 The application shall be advertised and the advertisement is prescribed
to be in form B in the schedule.
 The advertisement runs for 14 days (rule 4 (a).
 The grant is then sealed by the registrar who shall endorse on it the
words; “sealed with the seal of the high court of Uganda by order of the
court dated the …. Day of ….. 2017”
 It shall be signed by the registrar Rule 6.
 The grant which has been sealed is then returned to the applicant or
her/his advocate Rule 7.
A duplicate of any probate or letters of administration sealed with the seal of
the court or a copy thereof certified as correct by or under the authority of the
court granting the same, shall have the same effect as the original. (S.5 of the
act.)
Ibrahim Kiggundu V Aisha Nalwoga HCCS no. 85/1999.The plaintiff
applied for letters of administration to the estate of the deceased without
applying to the administrator general for clearance. Held that the grant was
made in error.
POINTS TO NOTE:
 An execution can start to deal with the estate before probate is granted
for some acts e.g. paying debts, funeral arrangements but others must
be after grant of probate and the will must be annexed.
 If the executor mismanages and does an act outside the Will, it will
amount to intermeddling.
 On the other hand, an administrator cannot deal with estate before the
letters of administration are granted.
 The executor may deal with the estate before the grant of probate only if
the will is not challenged on the grounds of the validity.
 Executor and administrators have the same duties, liabilities and rights
and if they use their own money, they can recover from the estate.
 Grant of L.O.A with a will annexed is an absolute grant.
Instances-
 no executor named
 Remuneration of the execution
 Varying will by court in relation to distribution of the estate.
Probate duty is the same as administration bond.
Rank of applying for LOA
1. Widow/widower
2. Administrator general
3. Children
OPPOSING THE LODGING OF A CAVEAT
CIVIL SUIT NO. _____ OF 2017
(Arising out of probate and administration cause no. ____of 2017)
ABC====================================PLAINTIFF
VERSUS
XYZ===================================DEFENDANT
PLAINT
(Under s. 265 succession act s.19 CPA, 0.4 r1 CPR)
1. The plaintiff is a female adult Ugandan of sound mind and widow of the
late…………….. whose address for purpose of this suit shall be……………
2. The defendant is a male adult Ugandan presumed to be of sound mind
and the plaintiffs advocates undertake to effect service of court process
or him.
3. The plaintiffs claim against the defendant is for;
a) A declaration that the plaintiff is the fit and proper person to be
granted letters of administration to the estate of the deceased.
b) An order vacating the caveat lodged by the defendant
c) An order for the grant of the letters of administration to the estate of
the deceased to the plaintiff.
d) A declaration that the plaintiff is entitled to administer the interest of
the deceased in the ancestral land.
e) Costs of the suit
4. The facts constituting the plaintiffs cause of action arose as follows;
i) that the plaintiff got married to the deceased ( copy of the
marriage certificate annexed )
ii) That the deceased at the time of death was survived by 2 issues.
iii) That at the time of death, the deceased left a will in which he
bequeathed all properties to the plaintiff and the children. ( A copy
of the will annexed)
iv) That the plaintiff applied for letters of administration vide Probate
and Administration Cause no. … of 2017. (A copy is hereto
attached)
However, the defendant lodged a caveat against the plaintiffs action on the
following grounds;
a) That the plaintiff did not obtain a certificate of no objection from the
Administrator General.
b) That the application was not authenticated by any of the witnesses to the
will.
c) That some property included in the will did not form part of the estate of
the deceased.
d) That the will was not original
e) That the application of the plaintiff left out one purported child of the
deceased.
5. The plaintiff asserts that she had no obligation to obtain consent from
the family members of the deceased.
6. The plaintiff asserts that as a widow to the deceased, she is exempted by
law from applying for a Certificate of no objection from the administrator
general.
7. The plaintiffs claim is solely for the interest of the deceased.
8. The plaintiff asserts that the will was original.
9. The plaintiff avers and contends that the defendant had no reasonable
ground for having lodged a caveat against the plaintiff’s petition for grant
of letters of administration to the estate of the deceased.
10. The plaintiff further asserts that the defendant’s unjustifiable
caveat has prevented the plaintiff from administering the estate of her
deceased husband and this has seriously prejudiced her and other
beneficiaries of the estate.
11. A Notice of intention to sue was served on the defendant
12. This Honorable Court is vested with the jurisdiction to hear and
determine this matter.
WHEREFORE the plaintiff prays that judgment be entered against the
defendant for;
a) A declaration that the defendants caveat against the plaintiff’s petition
for grant of letters of administration of the estate of the deceased is not
justified in law and is unreasonable.
b) A declaration that the plaintiff is a fit and proper person to be granted
the letters of administration.
c) An order vacating the defendants caveat.
d) Costs of the suit.
Dated at Kampala at this …… day of ……. 2017
_______________________
COUNSEL FOR PLAINTIFF
Drawn and filed by;
M/s firm F1 and Co. Advocates
Accompanied by a summary of evidence and mediation summaries.

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Table of Contents

MARRIAGE AND DIVORCE ..................................................................... 9

VERONICA V. HABYARIMANA V PERFECT HABYARIMANA (1980) HCB

NASSANGA V NANYONGA (1977) HCB 352 ..................................... 11

GEORGE NYAKAIRU V ROSE NYAKAIRU (1979) HCB 261 ................ 13

NWAGIRU V NUMBI (1967) E.A 639 ............................................... 15

FIDA (U) and 5 Ors V ATTORNEY GENERAL Const. Petition No. 2 of

ALAI V UGANDA (1967) E.A 596 .................................................... 17

JULIUS RWABINUMI V HOPE BAHIMBISOMWE SCCA NO. 10 OF 2009

WHAT IS A FAMILY .......................................................................... 19

CUSTOMARY MARRIAGES ................................................................. 21

REQUIREMENNTS OF CUSTOMARY MARRIAGE................................ 24

DIVORCE UNDER CUSTOMARY LAW ............................................... 28

MOHAMMEDAN MARRIAGES/ISLAMIC MARRIAGES ........................... 29

Preliminaries to Islamic Marriages ................................................. 29

DIVORCE UNDER MUHAMMEDAN ................................................... 31

HINDU MARRIAGES .......................................................................... 34

Preliminaries of Hindu Marriage ..................................................... 34

CIVIL AND CHURCH MARRIAGE ........................................................ 35

Preliminaries of the Church and civil Marriage ................................ 36

Procedural requirements ............................................................... 38

LEGAL EFFECTS OF MARRIAGE.......................................................... 39

VOID AND VOIDABLE MARRIAGES .................................................... 46

VOIDABLE MARRIAGES .................................................................. 48

WORKSHOP 1 (MARRIAGE) .............................................................. 53

ISSUE ONE. VALIDITY OF THE MARRIAGES .................................... 55

ISSUE TWO ADDITIONAL INFORMATION REQUIRED FROM EACH OF

ISSUE THREE, NULLIFICATION ...................................................... 63

ISSUE FOUR PETITION FOR NULLITY ............................................. 65

PETITION FOR NULLITY. ................................................................ 73

SEPARATION AND DIVORCE ................................................................ 82

SEPARATION BY MUTUAL AGREEMENT .......................................... 82

Enforcement of the separation ....................................................... 83

Judicial separation ......................................................................... 85

BARS TO DIVORCE ......................................................................... 89

Discretionary Bars ......................................................................... 90

ISSUE ONE .................................................................................... 93

Separation Agreement ................................................................... 94

ISSUE THREE (JUDICIAL SEPARATION) ......................................... 98

Divorce ......................................................................................... 100

Petition for Judicial Separation...................................................... 101

Petition for Divorce ....................................................................... 106

ADDITIONAL NOTES ........................................................................ 119

RESTORATION OF CONJUGAL RIGHTS (PETITION TO COURT) ....... 120

PROCEDURE FOR ANNULLING A MARRIAGE .................................. 128

DOMICILE ....................................................................................... 129

PROCEDURE FOR DISSOLUTION OF MARRIAGE ................................ 130

Consequential Orders on Dissolution ............................................. 133

HOW A COURT SHOULD DETERMINE A CONTRIBUTING SPOUSE’S

ADDITIONAL NOTES ON BARS TO DIVORCE ..................................... 138

Absolute Bars ............................................................................... 139

Discretionary bars ........................................................................ 142

NULLITY OF MARRIAGES ................................................................. 143

LAW RELATING TO CHILDREN. ........................................................... 144

RIGHTS OF A CHILD. ....................................................................... 144

ADOPTION ...................................................................................... 147

PREREQUISITES FOR ADOPTION .................................................. 148

ADOPTION BY NON-CITIZENS: (PREREQUISITES FOR FOREIGN

REQUISITE CONSENTS TO THE ADOPTION: ................................... 153