Wakilii

Joyce Loumo Choudry v Musinguzi Henry Bitature and Another (Civil Application No. 406 of 2025)

Court of Appeal · [2025] UGCA 295 · 2025 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application before a single Justice of the Court of Appeal for stay of execution of High Court orders pending the determination of an intended appeal
Decision
Application for stay of execution dismissed; the High Court orders in Misc. Application No. 385 of 2025 for a DNA test and exhumation stand

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Holding

The applicant, administratrix of the deceased's estate, sought a stay of the High Court order for a kinship DNA test and, failing that, exhumation of the deceased's remains to determine the respondents' paternity. Sitting as a single Justice, the Court overruled both preliminary objections to the supporting affidavit and held that the applicant established no likelihood of success: having herself pleaded that the respondents should undergo DNA testing, she could not approbate and reprobate by seeking to stay that very order. The right to ascertain paternity under Article 34 extends to adults, and no irreparable damage to a mere trustee was shown. The balance of convenience favoured the respondents. Application dismissed, no order as to costs.

Facts

Max Lokwang Choudry died in 1988. In 1989 the applicant, his widow, obtained letters of administration over his estate. In 2023 the respondents, claiming to be his children and beneficiaries, filed HCCS No. 163 of 2023 challenging the grant as fraudulently obtained and as excluding them; it was later consolidated with another suit. The applicant denied the respondents' paternity and pleaded in her defence that she would apply for an order directing them to undergo a DNA test. The respondents then filed Misc. Application No. 385 of 2025 seeking a paternity DNA test and, if necessary, exhumation of the deceased's remains. The trial judge ordered a kinship DNA test as the first option, with exhumation as a last resort where consent was lacking or results inconclusive. The applicant and others named refused to cooperate with the kinship test. Aggrieved, the applicant lodged a notice of appeal and sought a stay of execution of the order pending the intended appeal.

Issues

  1. Whether the affidavit of an advocate in support of the application was competent where it was alleged he lacked a valid practising certificate and written authorisation from the applicant.
  2. Whether the applicant established a likelihood of success or a prima facie case in the intended appeal.
  3. Whether the applicant would suffer irreparable damage if the stay of execution were refused.
  4. Where the balance of convenience lay as between the applicant and the respondents.

Orders

  • The first preliminary objection (that the deponent lacked a valid practising certificate) is overruled.
  • The second preliminary objection (that the deponent lacked written authorisation) is overruled.
  • The application for stay of execution is dismissed.
  • No order as to costs, the matter being an estate dispute.

Key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant by a Single Justice
A single Justice of the Court of Appeal may grant a stay of execution pending appeal where the applicant establishes a likelihood of success or prima facie case, that irreparable damage will be suffered or the appeal rendered nugatory if a stay is refused, and that the balance of convenience favours the applicant.
Civil Procedure — Stay of Execution — Prima Facie Case — Serious Questions to be Tried
A prima facie case requires more than the bare raising of questions; the applicant must demonstrate serious questions to be tried that are cogent and backed by the pleadings, the claim being neither frivolous nor vexatious.
Civil Procedure — Abuse of Process — Approbation and Reprobation
A party who pleads that an opposing party should be subjected to a DNA paternity test cannot later seek to stay execution of an order granting that very test; a party may not approbate and reprobate by exploiting a position while simultaneously undermining it.
Constitutional Law — Right to Know Parentage — Article 34(1) — Extension to Adults
The right to ascertain one's biological parentage, though articulated in Article 34(1) of the Constitution in respect of children, extends to adults, and a court may order a DNA test to enable an adult to ascertain who his or her biological father is for purposes of inheritance, family legacy and identity.
Evidence — Affidavits — Competence of Advocate Deponent
An advocate may competently swear an affidavit in his own capacity as to matters of law and fact within his knowledge in support of a client's application, and does not require written authorisation from the client to do so; but where he deposes to another's irreparable loss, his evidence is limited to facts he personally knows and is otherwise hearsay.
Succession & Estates — Exhumation — Presumption Against Disturbance and Cultural Objections
A decently buried body is presumed to remain undisturbed unless good reason is shown for exhumation; determining a paternity dispute is such good reason, and a cultural practice invoked to prevent exhumation for ascertaining paternity is repugnant to natural justice, equity and good conscience and contrary to public policy.

Legislation cited (8)

  • Judicature Act s.11
  • Judicature Act s.12(1)
  • Judicature (Court of Appeal Rules) Directions S.I No.13-10 rule 2(2)
  • Judicature (Court of Appeal Rules) Directions S.I No.13-10 rule 6(2)(b)
  • Judicature (Court of Appeal Rules) Directions S.I No.13-10 rule 41(1)
  • Judicature (Court of Appeal Rules) Directions S.I No.13-10 rule 42(2)
  • Judicature (Court of Appeal Rules) Directions S.I No.13-10 rule 43(1)
  • Constitution of Uganda 1995 Article 34(1)

Cases cited (12)

  • Akankwasa Damian v Uganda (Constitutional Application No. 7 & 9 of 2011)
  • Gashumba Maniraguha v Sam Nkudiye (Civil Application No. 24 of 2015)
  • Godfrey Sekitoleko & 4 Ors v Seezi Peter Mutabaazi & 2 Ors (Civil Appeal No. 65 of 2001)
  • Livingstone Kayaga v Charles Waligo (Misc. Application No. 80 of 2012)
  • Israel Kabwa v Martin Banobe Musiga [1996] KALR 253
  • Solo David & Anor v Pagali Abdu & Anor (HCCA No. 27 of 2009)
  • Performance Furnishings (U) Ltd v Executive Investments (Civil Application No. 349 of 2025)
  • Kiyimba Kaggwa v Hajji Abdul Katende [1983] HCB 43
  • Commodity Trading Industries v Uganda Maize Trading Industries [2001-2005] HCB 119
  • Komaketch Walter v Dr. Okot (HCCA No. 114 of 2018)
  • Okonkwo v Okagbua [1994] NWLR (Pt. 368) 301
  • Jayndrakumar D.D v Haridas V.B & Anor (Civil Appeal No. 21 of 1971)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.