Wakilii

Birungi v Kakyo (Civil Appeal No. 32 of 2022)

High Court · [2022] UGHC 39 · 2022 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal from Chief Magistrate's decision affirming Magistrate Grade II orders on custody and maintenance of minor children
Decision
Appeal partly allowed; custody affirmed; maintenance reduced; arrears set aside; costs orders revised

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that custody was properly granted to the mother who had raised the minor from birth. The court established that in exceptional circumstances, parental support may extend beyond age 18 where a child is still in education, particularly where parental support commenced before majority age. The court reduced the monthly maintenance to UGX 100,000, set aside maintenance arrears of UGX 5,001,400 as there was no prior order, and declined to award costs in the interest of promoting family harmony. The appeal was partially allowed.

Outcome

Appeal partly allowed; custody affirmed; maintenance reduced; arrears set aside; costs orders revised

Facts

The appellant and respondent are parents of two children: a daughter aged 19 years attending university and a son aged four and a half years. The parties cohabited for six years until 2018 when they separated. The respondent filed an application for maintenance in February 2022, alleging she was solely providing for both children and that the appellant, employed as a Sub-County Chief earning UGX 700,000 net per month, was not contributing to their maintenance. The appellant contended he had remarried, had other dependants, was servicing a bank loan, and that the respondent enrolled the daughter to university without consulting him. The Magistrate Grade II granted custody of the minor son to the respondent, awarded maintenance including arrears totalling UGX 5,001,400, and awarded costs. The Chief Magistrate affirmed the custody and maintenance orders on first appeal and additionally ordered the appellant to pay university tuition for the adult daughter. The appellant brought this second appeal challenging custody, maintenance quantum, maintenance arrears, maintenance for the adult child, and costs.

Issues

  1. Whether the Chief Magistrate properly re-evaluated the evidence on custody of the minor child.
  2. Whether it was lawful for the Chief Magistrate to re-try and allow a claim on maintenance for an adult child aged 19 years.
  3. Whether the maintenance orders were excessive in light of the appellant's financial means.
  4. Whether the Chief Magistrate erred in granting maintenance arrears in the absence of a prior court order.
  5. Whether the Chief Magistrate erred in awarding costs to the respondent.

Orders

  • Custody of the minor child granted to the respondent mother.
  • Both appellant and respondent to provide parental support for the adult child aged 19: appellant to pay university tuition, fees, and academic expenses; respondent to pay hostel fees and attendant costs until completion of Bachelor of Business Administration at MUBS.
  • Monthly maintenance for minor child reduced to UGX 100,000 payable by appellant with effect from 1 April 2022.
  • Appellant to pay medical bills for minor child at agreed facility, pay school fees and scholastic materials; respondent to provide shelter, food, clothing and bedding.
  • Both parties to agree on school for minor child starting First Term 2023; failing agreement, child to attend Buhinga Nursery and Primary School.
  • Appellant directed to pay school fees for minor child for term ending December 2022.
  • Maintenance arrears of UGX 5,001,400 set aside.
  • Costs order in lower court set aside; each party to bear own costs in trial court and on appeal.

Rules and key headnotes

Custody of Children — Best Interests Principle — Welfare Paramount
In determining custody of children, the paramount consideration is the best interests and welfare of the child. Where a child has been in the custody of one parent from birth and that parent has demonstrated capacity to care for the child without evidence of harm or neglect, there must be compelling reasons to remove custody from that parent. Financial position or economic station of a parent should not be the overriding factor.
Parental Responsibility — Equal Rights — Article 31 Constitution
Article 31 of the Constitution grants equal parental responsibility to both men and women, which must be enjoyed without discrimination. The general societal view that mothers are the best care givers and should automatically be granted custody was severed by this constitutional provision. Courts must examine and assess the facts of each case independently and avoid discriminatory ideology.
Maintenance — Extension Beyond Majority Age — Exceptional Circumstances
Although the Children Act limits maintenance to children below the age of 18 years, the High Court may in exceptional circumstances invoke its equitable jurisdiction under Sections 33 of the Judicature Act and 98 of the Civil Procedure Act to order parental support to continue beyond majority age. Exceptional circumstances include where a child attained majority age while still in school and the education was started with parental support or with the expectation that support would continue to completion of the course, provided the parent has capacity to continue support.
Maintenance — Quantum — Consideration of Financial Capacity
In making maintenance orders, court must have due regard to the financial standing of the parent and should make orders which can be satisfied given the parent's financial capacity. Section 76(7)(a) of the Children Act mandates courts to take into account the ability of parents to afford maintenance. Courts should not be divorced from prevailing reality and should not punish parents for giving birth to children by imposing orders beyond their financial means.
Maintenance Arrears — No Prior Order — Parental Duty Under Section 5 Children Act
It is irregular and illegal to award maintenance arrears where there was no prior court order directing the parent to pay maintenance. Section 5 of the Children Act imposes a duty on any person having custody of a child to maintain that child. Where a parent has custody and is looking after the child pursuant to this statutory duty, that parent cannot seek recovery of maintenance arrears from the other parent in the absence of a prior order that was breached.
Costs — Family Matters — Promotion of Harmony
Although costs generally follow the event, grant of costs is discretionary. In family matters, particularly maintenance cases, courts should be reluctant to award costs because they tend to widen the gap between disputing parties and the ultimate effect goes to the children involved. Where it is in the interest of promoting harmony among parties, court may order each party to bear own costs.
Second Appeal — Limited Scope of Interference
On second appeal, the court is not required to re-evaluate the evidence in the same manner as a first appellate court. It is sufficient to decide whether the first appellate court, in approaching its task, has applied the relevant principles properly.

Legislation cited (18)

Cases cited (14)

  • Milly Masembe v Sugar Corporation (U) Ltd and Another (Civil Appeal No. 1 of 2000)
  • Sembatya v Alport Services Ltd (Civil Appeal No. 6 of 1999)
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • In the matter of Edith Nassazi (An Infant) (Adoption Cause No. 9 of 1997)
  • Anne Musisi v Hebert Musisi (2008) KALR 594
  • Triloknath Bhandari & Anor. Vs .R Gautama [1964] 1 B.A 606
  • Sarah Kiyemba v Robert Batte (Divorce Cause No. 127 of 2018)
  • Rwabuhemba Tim Muigai v Harriet Kamakune (Civil Application No. 142 of 2009)
  • Sanyu Lwanga Musoke v Sam Galiwanga (Civil Appeal No. 48 of 1995)
  • Graham Vs. Graham 597 A.2d 385 (App DC 1991)
  • CM v SWA (Civil Appeal No. 21 of 2018)
  • Prince J.D.C Mpuga Rukidi v Prince Solomon Kioro & other (Civil Appeal No. 15 of 1994)
  • Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873
  • Buligasiima v Kiiza & others (Miscellaneous Application No. 1495 of 2016)

Full judgment

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Birungi v Kakyo (Civil Appeal No. 32 of 2022) [2022] UGHC 39 (11 November 2022)
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.