Wakilii

Busingye v Mukisa (HCT-05-CV-CA 2 of 2019)

High Court · [2023] UGHC 58 · 2023 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court decision on divorce and property division
Decision
Trial court's order for Respondent to purchase land elsewhere was set aside; land at Karukwerezi to be divided equally between the parties

Observed later treatment

Treatment recorded in citing cases followed in 1 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Good law Followed in 1 case and applied in 0 cases, with no adverse treatment recorded. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court held that only land jointly acquired during marriage constitutes matrimonial property subject to division upon divorce. Land acquired through inheritance, even if it houses the matrimonial home, is not matrimonial property where evidence of its inherited nature was unchallenged. The Petitioner's unchallenged evidence of contribution to the purchase of land at Karukwerezi established it as matrimonial property. A trial court may not rely on evidence first introduced at locus in quo or on submissions of counsel where those matters do not form part of the evidence on record.

Outcome

Trial court's order for Respondent to purchase land elsewhere was set aside; land at Karukwerezi to be divided equally between the parties

Facts

The appellant and respondent married on 9 September 1979. During their marriage, they jointly purchased land at Karukwerezi for UGX 1,000,000, to which the appellant contributed UGX 500,000. The respondent also owned land at Rutooma which housed the matrimonial home but which he acquired through inheritance and shared with his brothers. In 1998 the respondent left the matrimonial home. The appellant petitioned for divorce and property division. The trial magistrate found the parties could share two properties but ordered the respondent to purchase land of not less than three acres elsewhere for the appellant based on her expressed fears of settling on the existing properties and on submissions from counsel. The appellant appealed, arguing the trial magistrate failed to evaluate evidence properly and relied on matters not in evidence.

Issues

  1. Whether the trial magistrate properly evaluated the evidence on record in determining the division of matrimonial property.
  2. Whether the trial magistrate erred by relying on matters not raised at trial and submissions of counsel rather than evidence on the court record.

Orders

  • Appeal allowed.
  • Ruling and orders of the trial magistrate set aside.
  • Land to be shared is that situate at Karukwerezi, Kyamurarani, Bugongi, Sheema District.
  • Land to be shared in a ratio of 50% with each party taking an equal share.
  • Each party to bear their own costs for the appeal and in the lower court.

Rules and key headnotes

Family Law — Divorce — Matrimonial Property — Distinction between Matrimonial Property and Personal Property
Upon divorce, the court has jurisdiction to divide only matrimonial property, not personal property of the parties, as parties in a marriage can legally own property exclusive from their spouses even during subsistence of the marriage.
Family Law — Matrimonial Property — Definition — Property Jointly Acquired During Marriage
Matrimonial property to which each spouse is entitled is that property which the parties chose to call home and which they jointly contributed to acquire, not property which a spouse may hold in trust for the clan or property acquired separately by each spouse before or after marriage.
Family Law — Matrimonial Property — Presumption — Property Housing the Matrimonial Home
There is a rebuttable presumption that property which parties chose to call home will be considered joint matrimonial property, but this presumption is extinguished by unchallenged evidence that the land was acquired through inheritance and has other equitable interests of the landowner's family members.
Evidence — Cross-Examination — Failure to Challenge Evidence — Effect
An omission or neglect to challenge the evidence-in-chief of an adversary on a material or essential point by cross-examination leads to the inference that the evidence is accepted subject to its being assailed as inherently incredible or probably untrue.
Civil Procedure — Locus in Quo — Purpose and Limits — Introduction of New Evidence
A visit to the locus in quo is only meant for the court to check on evidence already given by the parties in court and not to substitute that evidence or add to it. Evidence first introduced at the locus in quo cannot be relied upon to make findings where it was not given in court. Visits to the locus in quo are not meant to fill gaps in witnesses' evidence but to have such evidence ocularly demonstrated.
Evidence — Submissions of Counsel — Submissions Cannot Constitute Evidence
Submissions of counsel cannot take the place of evidence. Submissions are parties' endeavors to convince the court that their case is the better one but do not constitute evidence at all. A court's findings and inferences must be based on evidence on the record, not on submissions of counsel.
Civil Procedure — Appellate Jurisdiction — Duty of First Appellate Court — Reassessment of Evidence
A first appellate court is duty bound to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion. The appellate court may interfere with a finding of fact if the trial court overlooked any material feature in the evidence or failed to take account of particular circumstances or probabilities materially affecting the estimate of the evidence.

Legislation cited (1)

Cases cited (12)

  • Father Nanensio Begumisa and three others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2000)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • Nyero v Olweny and Others (Civil Appeal No. 50 of 2018)
  • Kaggwa v Ampire (Civil Appeal No. 126 of 2019)
  • Rwabinumi v Bahimbisomwe (Civil Appeal No. 10 of 2009) [2013] UGSC 5
  • Muwanga v Kintu (High Court Divorce Appeal No. 135 of 1997)
  • Uganda Revenue Authority v Mabosi (Civil Appeal No. 26 of 1995) [1996] UGSC 16
  • William Mukasa v Uganda [1964] EA 698
  • Bangole Geofrey and 4 Others v Agnes Nakiwala (Civil Appeal No. 076 of 2015)
  • David Acar and 3 Others v Alfred Acar Aliro [1982] HCB 60
  • Daniel Toroitich Arap Moi and another v. Mwangi Stephen Murithi and another [2014] eKLR
  • Ambayo Joseph Waigo v Aserua Jackline (Court of Appeal Civil Appeal No. 100 of 2015)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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Busingye v Mukisa (HCT-05-CV-CA 2 of 2019) [2023] UGHC 58 (31 August 2023)
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.