Wakilii

Annette Nakalema Kironde v Apollo Kaddu Mukasa Kironde & Anor (CIVIL DIVORCE CAUSE NO. 006 2001 ) (CIVIL DIVORCE CAUSE NO. 006 2001)

High Court · [2002] UGHC 29 · 2002 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Petition for dissolution of marriage on grounds of adultery and cruelty; cross-petition by respondent on grounds of adultery
Decision
Marriage dissolved by decree nisi; custody of three children granted to petitioner with access rights to respondent

Observed later treatment

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Holding

The Court held that sections 5 and 6 of the Divorce Act, which created different grounds for dissolution of marriage for husbands and wives, are inconsistent with the Constitution's guarantee of equality and equal treatment of men and women. A wife may petition for dissolution of marriage on the ground of adultery alone, in the same manner as a husband. Both petitioner and respondent admitted adultery. The Court granted a decree nisi dissolving the marriage, awarded custody of the three children to the petitioner, granted the respondent access rights, and ordered each party to bear their own costs given mutual fault and the need to foster reconciliation for the children's welfare.

Outcome

Marriage dissolved by decree nisi; custody of three children granted to petitioner with access rights to respondent

Facts

The petitioner and respondent married on 1 October 1983 at Namirembe Cathedral and cohabited in Kampala between 1983 and 1991. Three children were born of the marriage: Gulemye Apollo Kironde (19), Senteza Kaddu Mukasa Kironde (17), and Mpagi Kalibala Kironde (13). The petitioner alleged that the respondent committed adultery with multiple women and committed acts of cruelty, and that the respondent deserted her in 1999. The respondent filed a cross-petition alleging the petitioner committed adultery with Moses Zizinga and produced a child (Joe Sebugwawo) who was not the respondent's. Both parties admitted adultery in their pleadings: the petitioner admitted adultery with the co-respondent and the respondent admitted adultery with Ayeta Wangusa and Florence Nambasa. The parties agreed that the children would remain in the petitioner's custody, that the property at Plot 82 Old Kira Road Naguru was joint property to be resolved in another forum, and that the petitioner would bear two-thirds of the children's maintenance while the respondent would bear one-third subject to financial means.

Issues

  1. Whether the petitioner is entitled to the reliefs sought in the petition.
  2. Whether the respondent is entitled to the reliefs sought in the cross-petition.
  3. Whether sections 5 and 6 of the Divorce Act are inconsistent with the Constitution in creating different rights for men and women in seeking dissolution of marriage.
  4. Whether a wife may petition for dissolution of marriage on the ground of adultery alone under the constitutional guarantee of equality.

Orders

  • A decree nisi is hereby pronounced dissolving the marriage between the petitioner and the respondent.
  • The custody of the children of the said marriage is granted to the petitioner, their mother.
  • The respondent shall have access to their children at reasonable hours and times whether they are at the petitioner's home or at school.
  • Each party to the petition shall bear his or her own costs.

Rules and key headnotes

Family Law — Divorce — Grounds for Dissolution — Constitutional Equality
Sections 5 and 6 of the Divorce Act, which create different grounds for dissolution of marriage for husbands and wives, are inconsistent with Articles 31(1), 33(1), 33(6), 34(4), and 21 of the Constitution which guarantee equality and equal treatment of men and women in marriage and its dissolution. A wife may petition for dissolution of marriage on the ground of adultery alone, in the same manner as a husband.
Constitutional Law — Supremacy of the Constitution — Pre-1995 Legislation
Under Articles 2(2) and 273 of the Constitution, any law or custom inconsistent with the Constitution is void to the extent of the inconsistency. Pre-existing statutes must be construed with such modifications as may be necessary to bring them into conformity with the Constitution.
Family Law — Divorce — Proof of Adultery — Admissions in Pleadings
Adultery may be proved by express admission in pleadings. Under Order 11 rule 1 of the Civil Procedure Rules, a fact once admitted need not be proved and the party is entitled to judgment on the defendant's admission of the claim. A party will not normally be allowed to resile from a pleaded admission unless made under a genuine mistake of fact.
Family Law — Divorce — Custody of Children — Welfare Principle
Under section 30 of the Divorce Act, the court makes such order as to the custody, maintenance and education of children as it deems fit. The guiding principle is the welfare of the child, as defined in sections 4-6 and the First Schedule of the Children Statute.
Family Law — Divorce — Costs — Discriminatory Provisions
Section 23 of the Divorce Act, which provides for the co-respondent to pay costs to a petitioner only where the petitioner is the husband, is discriminatory against women and void to the extent of its inconsistency with the Constitution. The general law on costs under section 27 of the Civil Procedure Act applies.
Civil Procedure — Costs — Discretion of Court — Mutual Fault
Where both parties to divorce proceedings are equally guilty of adultery and there is no winner or loser, the court may exercise its discretion under section 27 of the Civil Procedure Act to refuse costs to both parties. No party should be allowed to benefit from their own wrongs, and refusing costs may foster reconciliation and harmony for the welfare of children.

Legislation cited (27)

Cases cited (10)

  • Muller v Minister of Pensions (1947) 2 All ER 372
  • Pan African Insurance Co v Uganda Airlines (1985) HCB 53
  • International Life Insurance Company. (U) Ltd. Versus Amin. A Civil Application 12/1968 Court of Appeal - Kenya
  • Gower v Gower [1950] 1 All ER 804 (CA)
  • Bater v Bater [1951] P 35 (CA)
  • Habyarimana vs. Habyarimana Divorce Cause No. (1980) HCB 139
  • Nakaggwa v Kiggundu (1978) HCB 315
  • Uganda Development Bank v Muganga Construction Company Ltd (1981) HCB 35
  • Ruhara v Ruhara (1997) HCB 86
  • Prince J. D. C. Mpuga Rukidi vs. Prince Solomon Iguru & others Supreme Court Civil Appeal No. 18194

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Annette Nakalema Kironde v Apollo Kaddu Mukasa Kironde & Anor (CIVIL DIVORCE CAUSE NO. 006_2001 ) (CIVIL DIVORCE CAUSE NO. 006_2001) [2002] UGHC 29 (12 December 2002)
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.