Wakilii

Kaahwa v Kawino (Divorce Cause 127 of 2023)

High Court · [2024] UGHCFD 33 · 2024 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance divorce petition heard exparte after respondent failed to file response despite substituted service
Decision
Marriage dissolved by Decree Nisi; matrimonial property to be valued and divided equally

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a valid church marriage existed and was dissolved on the ground of desertion under section 4(f) of the Divorce Act Cap. 144. The respondent deserted the petitioner for over 10 years without reasonable excuse, abandoning the matrimonial home and moving to Finland with no communication. Both the physical separation (de facto) and mental element (animus deserendi) necessary for desertion were proved. The jointly acquired matrimonial property was ordered to be valued and shared equally between the parties.

Outcome

Marriage dissolved by Decree Nisi; matrimonial property to be valued and divided equally

Facts

The petitioner and respondent celebrated a customary marriage on 12 September 2009 and a church marriage on 19 September 2009 at All Saints Cathedral Kampala. They lived together in Bunga, Makindye Division. In 2011, the respondent left home ostensibly to attend church prayers and never returned. The petitioner searched for her through relatives and friends. He later learned from the respondent's friend that she had travelled to Finland. He obtained her telephone number but she never responded to his messages. The respondent remained absent for over 10 years with no communication or explanation. During their marriage they jointly acquired land comprised in Block 395 Plot 2194 at Kitende, Wakiso District. They have no children. The respondent was served by substituted service granted on 10 October 2023 but filed no response. The matter proceeded exparte.

Issues

  1. Whether there are any grounds for the dissolution of marriage between the Petitioner and the Respondent?
  2. What remedies are available to the Parties?

Orders

  • The marriage between the Petitioner and the Respondent is hereby dissolved.
  • A Decree Nisi is hereby granted.
  • The Property acquired by the Petitioner and the Respondent comprised in Block 395 Plot 2194 Land at Kitende on Entebbe Road, Busiro, Wakiso District measuring approximately 25 decimals shall be valued and shared equally among the Petitioner and the Respondent.
  • Upon the sale of the suit property, the Petitioner shall present to this court, evidence of distribution to the Respondent's share to her mother.
  • No award to costs.

Rules and key headnotes

Family Law — Divorce — Proof of Valid Marriage — Church Marriage under Marriage Act
A church marriage is recognized under the Marriage Act Cap. 144 in Uganda. Proof of marriage is established by a marriage certificate, proof of a ceremony, followed by cohabitation of parties. A marriage certificate filed in the office of the registrar or a certified copy thereof is admissible as evidence of the marriage.
Family Law — Divorce — Desertion — Elements Required
Desertion under section 4(f) of the Divorce Act Cap. 144 consists of two elements: one physical (de facto separation) and the other mental (the animus deserendi, being the intention to bring the matrimonial union to an end). Both elements must be present together for a continuous period of at least two years without the consent of the deserted spouse or other justification.
Family Law — Divorce — Desertion — Unjustifiable Withdrawal from Cohabitation
Desertion exists where there is unjustifiable withdrawal from cohabitation without the consent of the innocent spouse. The deserting spouse need not communicate the intention to desert, but it must be shown that the innocent spouse does not consent to the deserter's absence. Extended desertion spanning over ten years constitutes cruel treatment under matrimonial law, breaching fundamental marital obligations of cohabitation, companionship, and mutual support.
Family Law — Matrimonial Property — Definition and Division
Matrimonial property means property of the parties generated during the marriage otherwise than by external donation. While Article 31(1) of the Constitution guarantees equality in treatment at divorce, it does not require that all property acquired before or during marriage be shared equally in all cases. Where property is jointly acquired by the parties during the marriage, it should be shared equally following valuation.
Civil Procedure — Exparte Proceedings — Service and Non-Response
Where a respondent is served by substituted service as ordered by the court and fails to file any response to a divorce petition, the matter may be set down for hearing exparte under Order 9 Rule 11(2) of the Civil Procedure Rules. The court will not keep married couples together who no longer desire to be together where grounds for dissolution are proved.

Legislation cited (11)

Cases cited (5)

  • Kintu Muwanga v Kintu (Divorce Appeal No. 135 of 1997)
  • Lang v Lang [1995] AC 402
  • Santos v Santos [1972] Fam 247
  • Charman v Charman (No 4) [2007] EWCA Civ 503
  • Rwabinumi v Bahimbisomwe (Civil Appeal No. 10 of 2009)

Full judgment

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

Kaahwa v Kawino (Divorce Cause 127 of 2023) [2024] UGHCFD 33 (15 July 2024)
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.