Wakilii

Delahaije v Kasolo & Anor (Administration Cause No. 1558 of 2018)

High Court · [2019] UGHCFD 24 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to reseal a Kenyan grant of probate following dismissal of prior civil suit for lack of jurisdiction and lodging of caveat by respondents
Decision
Application dismissed. Court declined to reseal the Kenyan grant of probate.

Observed later treatment

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Holding

The High Court denied an application to reseal a Kenyan grant of probate, finding that respondents had locus standi to lodge a caveat where public notice of reseal was given. The court held that where a deceased's will specifies Dutch law as the exclusive inheritance law, a Ugandan court will not reseal a grant made under Kenyan succession law. The court further found contradictory statements about the deceased's domicile undermined the applicant's credibility and that the Kenyan grant exceeded the limited authority granted by power of attorney.

Outcome

Application dismissed. Court declined to reseal the Kenyan grant of probate.

Facts

The late Edmond Van Tongeren (EVT), a Dutch national, died in 2016 leaving a will naming his wife Joyce Jelimo Maru as executor. The will specified that Dutch law would govern the estate. The applicant, holding power of attorney from Ms. Maru for property outside the Netherlands, obtained a grant of probate from the High Court in Kenya stating the deceased was domiciled in Kenya. He then applied to the Ugandan High Court Family Division to reseal the Kenyan grant to enable administration of shares in six Ugandan companies valued over UGX 100,000,000. The respondents, co-shareholders in one of those companies and judgment creditors from a prior dismissed suit, lodged a caveat objecting to the reseal. The applicant had earlier filed Civil Suit 235 of 2017 in Uganda stating the deceased was domiciled in the Netherlands; that suit was dismissed for lack of jurisdiction under Succession Act s.4(2).

Issues

  1. Whether the respondents had a legal right to lodge a caveat against reseal of the grant of probate with written will to the estate of the late EVT issued to the applicant by the High Court of the Republic of Kenya?
  2. Whether the applicant should have proceeded by way of ordinary civil suit to have the issues in this matter resolved?
  3. Whether the applicant was entitled to the reseal of the grant of probate with written will to the estate of the late EVT issued by the High Court of the Republic of Kenya?

Orders

  • Application to reseal the grant of probate dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Probate (Resealing) — Locus Standi of Objectors — Right to Lodge Caveat
Where public notice of intention to reseal a foreign grant of probate is published under the Probate (Resealing) Rules, third parties with valid claims have standing to lodge a caveat and bring their concerns to the court's attention, notwithstanding the absence of express provision for caveats in the Probate (Resealing) Act.
Probate (Resealing) — Exercise of Judicial Discretion — Sovereignty
The Ugandan High Court must exercise orderly and meticulous scrutiny before resealing a foreign grant of probate, especially in contentious matters, to ensure the court's seal is not reduced to a rubber stamp and that sovereignty is maintained in determining whether to give effect to a foreign grant.
Probate (Resealing) — Choice of Law — Testator's Express Wishes
Where a deceased's will contains an express choice of law clause specifying the law of a particular country as the exclusive inheritance law, a Ugandan court will not reseal a grant of probate issued by a court applying a different succession law, as doing so would contravene the testator's clearly stated wishes.
Probate (Resealing) — Scope of Foreign Grant — Powers of Attorney
A grant of probate issued to a person holding power of attorney must not exceed the scope of authority conferred by the power of attorney. Where a power of attorney limits authority to property outside a particular jurisdiction, a grant purporting to confer powers over the entire worldwide estate is irregular.
Inherent Powers — Filling Procedural Gaps in Statute
Where a statute and its subsidiary rules are silent on the procedure for handling contentious applications, the court may invoke its inherent powers under Civil Procedure Act s.98 to adopt an expedient procedure, including summoning parties for oral hearing on affidavit evidence, without rendering the proceedings irregular.
Domicile — Contradictory Statements in Petitions — Credibility
Where an applicant makes contradictory statements about a deceased's domicile in simultaneous petitions to different courts, the contradictions undermine the applicant's credibility and are a relevant consideration in the exercise of the court's discretion whether to grant relief.

Legislation cited (9)

Cases cited (3)

  • Joyce K. Byabazaire & Anor v Frances Kyomu Katatumba (Civil Suit No. 629 of 1992)
  • Hon. Katuntu & Anor v MTN Uganda Ltd & Others (HCCS No. 248 of 2012)
  • Re Mauchauffee (1969) EA 424

Full judgment

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

Delahaije v Kasolo & Anor (Administration Cause No. 1558 of 2018) [2019] UGHCFD 24 (24 January 2019)
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.