Eryaku and Anor v Asamo (Miscellaneous Application No. 135 of 2022)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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.

Holding

The High Court dismissed the application for contempt of court. While the court found that a lawful order existed and that the respondent had knowledge of it through her counsel, the applicants failed to prove that it was the respondent who placed a padlock on the mausoleum built over the grave. The court held that the burden of proof lies on the applicant in contempt proceedings and that the standard is higher than balance of probabilities. Without direct evidence identifying who placed the padlock restricting access to the grave, the respondent could not be found in contempt of the court order granting the applicants access.

Outcome

Application dismissed; respondent not found in contempt of court orders

Facts

The applicants, siblings of the respondent, obtained a court order on 4 March 2022 granting them access to their late mother's grave to perform last funeral rites and protecting their cultural and religious rights. Following the order, the respondent constructed a mausoleum enclosing the grave, ostensibly to protect it from harsh weather and animals. The applicants alleged that the mausoleum was locked with a padlock, denying them access in violation of the court order. The respondent admitted building the mausoleum but denied responsibility for the padlock, claiming it was left open and that the first applicant, who had since taken possession of the surrounding land, was responsible for the padlock. The 1st applicant denied participating in the construction or locking the mausoleum. The court noted that determining who placed the padlock was crucial, but the evidence did not clearly establish this fact.

Issues

1. Whether the respondent is in contempt of the court order issued vide Miscellaneous Application No. 167 of 2021 on 4 March 2022.
2. What remedies, if any, are the applicants entitled to.

Orders

• Application dismissed.
• No order as to costs since the parties are a family.

Rules and key headnotes

Legislation cited (9)

• Civil Procedure Act Cap 71 s.98
• Civil Procedure Rules Order 52 rules 1 and 3
• Civil Procedure Rules Order 49 rule 2
• Civil Procedure Rules Order 5 Rule 16
• Constitution of the Republic of Uganda 1995 Article 139(1)
• Judicature Act s.14(2)(b)(1)
• Judicature Act s.14(2)(c)
• Evidence Act s.101
• Evidence Act s.102

Cases cited (7)

• Stanbic Bank (U) Ltd and Jacobsen Power Plant Ltd v The Commissioner General Uganda Revenue Authority (Miscellaneous Application No. 42 of 2010)
• Uganda Super League v Attorney General (Constitutional Application No. 73 of 2013)
• Hon. Sitenda Ssebalu v Secretary General of the East African Community (EACJ Reference No. 8 of 2012)
• Re Contempt of Dougherty 429, Michigan 81, 97 and [1987]
• Muriisa Nicholas v Attorney General and 3 Others (High Court Miscellaneous Application No. 35 of 2012)
• Massa v Achen [1978] HCB 297
• Housing Finance Bank Ltd and another v Edward Musisi (Miscellaneous Application No. 58 of 2010)

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