Wakilii

Annettee Nakalema Kironde v Apollo Kaddu Mukasa Kironde & Anor (Civil Divorce Cause 6 of 2001)

High Court · [2002] UGHCFD 3 · 2002 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance divorce petition with cross-petition
Decision
Marriage dissolved by decree nisi; custody of children granted to petitioner with access to respondent

Observed later treatment

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Holding

Held that sections 5 and 6 of the Divorce Act, which create different sets of rights for men and women in divorce proceedings, are inconsistent with the 1995 Constitution's equality provisions. A wife may sue for divorce on the ground of adultery alone, just as a husband may. Both parties having admitted adultery and no connivance, condonation, or collusion being found, the court pronounced a decree nisi dissolving the marriage. Custody of the children was granted to the petitioner. No costs or damages were awarded to any party.

Outcome

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

Facts

The petitioner and respondent married on 1 October 1983 at Namirembe Cathedral and cohabited in Kampala until 1991. Three children were born of the marriage. The petitioner alleged the respondent committed adultery with multiple women and acts of cruelty, and deserted her in 1999. The respondent in a cross-petition accused the petitioner of committing adultery with the co-respondent Moses Zizinga and producing a child not his own. Both parties admitted to committing adultery with various individuals. At a scheduling conference, both counsel agreed that the petitioner committed adultery with the co-respondent and produced a child; that the respondent committed adultery with two named women; and that property disputes would be resolved in another forum. They agreed on custody, access, and maintenance arrangements for the children.

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 1995 Constitution.
  4. Whether a wife may petition for divorce on the ground of adultery alone.

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 (children) 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 — Constitutional Validity of Differential Grounds for Men and Women
Sections 5 and 6 of the Divorce Act, which permit a husband to petition for divorce on the ground of adultery alone but require a wife to prove adultery plus an additional ground, are inconsistent with Articles 31(1), 33(1), 33(6), and 34(4) of the Constitution of Uganda 1995, which guarantee equality between men and women in marriage and its dissolution, and are therefore void to the extent of their inconsistency.
Constitutional Law — Supremacy of the Constitution — Existing Laws
Under Articles 2(2) and 273(1) of the Constitution, where existing law is inconsistent with the Constitution, the Constitution prevails and the inconsistent law is void to that extent. The principle of equal rights before the law requires that a wife may sue for divorce on the ground of adultery alone, in the same way as a husband.
Family Law — Divorce — Proof of Adultery by Admission
Adultery may be proved by express admission in pleadings. A fact once admitted need not be proved, and a party making a pleaded admission will not normally be allowed to resile from it unless made under a genuine mistake of fact.
Family Law — Divorce — Decree Nisi — Requirements
Where adultery by both parties is admitted and the court finds no connivance, condonation, or collusion under section 8 of the Divorce Act, the court may pronounce a decree nisi dissolving the marriage.
Family Law — Custody of Children — Welfare Principle
Under section 30 of the Divorce Act, when a decree nisi is pronounced, the court makes such order as to custody, maintenance, and education of children as it deems fit, having regard to the welfare of the children as the guiding principle.
Family Law — Divorce — Costs — Section 23 of Divorce Act Discriminatory
Section 23 of the Divorce Act, which provides for a co-respondent to pay costs to a petitioner husband where adultery with the wife is proved but imposes no such liability where the petitioner is a wife, is manifestly discriminatory against women and is void to the extent of its inconsistency with the Constitution.
Civil Procedure — Costs — Discretion to Refuse Costs Where Both Parties Equally at Fault
Under section 27 of the Civil Procedure Act, the court has discretion to refuse costs to a successful party. Where both parties to a divorce petition are equally guilty of adultery and neither has clean hands, the court may exercise its discretion to refuse costs to both parties in the interest of reconciliation and family harmony.

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 v Habyarimana (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 v Prince Solomon Iguru & Others (Supreme Court Civil Appeal No. 18 of 1994)

Full judgment

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

Annettee Nakalema Kironde v Apollo Kaddu Mukasa Kironde & Anor (Civil Divorce Cause 6 of 2001) [2002] UGHCFD 3 (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.