Wakilii

Kabakali Swabra Zein v Mukasa Moustapha (Civil Revision 7 of 2025)

High Court · [2026] UGHCFD 50 · 2026 Revision Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil revision from two lower court rulings declining jurisdiction over child custody application, consolidated with miscellaneous application for interim relief
Decision
Lower court rulings revised and set aside; sole custody granted to mother; supervised visitation rights granted to father

Observed later treatment

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Holding

The High Court revised and set aside two lower court rulings that declined to exercise jurisdiction over child custody. The court held that the Family and Children Court has exclusive statutory jurisdiction over child custody matters under the Children Act, and that the Khadi Court's custody orders were void for want of jurisdiction. Sole custody of the twin children was granted to the mother, with supervised visitation rights to the father, on the basis that the children had suffered documented abuse in the father's custody and their welfare was paramount.

Outcome

Lower court rulings revised and set aside; sole custody granted to mother; supervised visitation rights granted to father

Facts

The applicant mother and respondent father were married under Islamic rites in 2017 and had twin daughters born in January 2019. The mother suffered domestic violence during the marriage, including an assault while pregnant that resulted in miscarriage. In May 2022 the father expelled the mother and children from the matrimonial home. The marriage was dissolved by the Director of Shariah in August 2023, with custody initially granted to the mother. In August 2023 the father forcibly took the children from school. The Uganda Muslim Supreme Council's Khadi Court subsequently granted temporary custody to the father without affording the mother a hearing. In January 2024 the mother discovered that one child had been sexually molested and the other had sustained a burn injury while in the father's custody. Both children reported physical abuse. Medical and psychiatric evaluations confirmed serious physical, emotional and sexual trauma. The mother filed custody applications before two lower courts; both declined jurisdiction. Police assisted in recovering the children in July 2024. Medical records documented the children's recovery and improved emotional state since placement with the mother.

Issues

  1. Whether the decisions of the Family and Children's Court of Mukono at Goma (FCC No. 0019 of 2023) and the Chief Magistrate's Court at Mengo (Family Cause No. 006 of 2024) ought to be revised and set aside.
  2. Whether it is in the best interests of the children to grant sole custody to the Applicant.

Orders

  • The ruling and orders of the Family and Children's Court of Mukono at Goma in FCC No. 0019 of 2023 dated 20th October 2023, and the ruling and orders of the Chief Magistrate's Court at Mengo in Family Cause No. 006 of 2024 dated 17th April 2025, are hereby revised and set aside.
  • The custody proceedings and orders of the Uganda Muslim Supreme Council, Khadi Court at Kibuli, in Civil Suit No. 008 of 2023, including the preliminary ruling of 14th September 2023 and the order of 7th October 2023, are declared void for want of jurisdiction and are of no legal effect.
  • Sole custody of the minor children, Mukasa Hamida Babirye and Mukasa Nakato Hawa, is hereby granted to the Applicant, Kabakali Swabra Zein.
  • The Respondent, Mukasa Moustapha, shall have visitation rights twice a month over the weekend during the school holiday.
  • The Applicant is permitted to travel with the minor children within and outside Uganda for purposes of their welfare, including vacations, educational exposure, and overall development.
  • Civil Revision No. 007 of 2025 and Miscellaneous Application No. 6600 of 2025 having been consolidated this decision determines both matters.
  • No order as to costs.

Rules and key headnotes

Family Law — Child Custody — Jurisdiction — Exclusive Statutory Jurisdiction of Family and Children Court
The Family and Children Court established under sections 13 and 14 of the Children Act has exclusive statutory jurisdiction to determine all matters relating to the care and protection of children, including custody orders. The Marriage and Divorce of Mohammedans Act does not confer jurisdiction over child custody matters on Khadi Courts, and custody orders made by a Khadi Court are void for want of jurisdiction.
Civil Procedure — Jurisdiction — Lis Pendens — Requirement of Competent Court
The lis pendens rule under section 6 of the Civil Procedure Act presupposes that the earlier suit is pending before a court having jurisdiction to grant the relief claimed. Where the earlier proceedings are before a court lacking jurisdiction, those proceedings cannot amount to a pending suit capable of barring an application before the competent court.
Civil Procedure — Revision — Failure to Exercise Jurisdiction — Grounds for Revision
A subordinate court's failure to exercise jurisdiction vested in it by law, where that failure occasions injustice, constitutes a ground for revision under section 83 of the Civil Procedure Act. A Family and Children Court that declines to exercise its statutory jurisdiction over child custody on the basis of proceedings before a court lacking such jurisdiction acts with material irregularity warranting revision.
Family Law — Child Custody — Best Interests of the Child — Paramount Consideration
The welfare of the child is the paramount consideration in all custody determinations under section 3(1) of the Children Act, Article 34 of the Constitution, and international instruments. Welfare must be read in its largest possible sense, and the court must do what a wise parent acting in the true interests of the child would do, having particular regard to any harm the child has suffered or is at risk of suffering.
Family Law — Child Custody — Evidence of Harm — Medical and Welfare Reports
Where independent medical evidence, psychiatric assessments, and probation officer reports establish that children suffered serious physical, emotional and sexual harm in one parent's custody, and that their condition has markedly improved since placement with the other parent, the court is compelled to grant custody to the parent in whose care the children's welfare is demonstrably better served.

Legislation cited (21)

Cases cited (6)

  • Mubiru v Mubiru (Revision Cause No. 4 of 2012)
  • Aramanzani Zziwa v Angella Kintu (HCMA No. 7 of 1993)
  • Desai v Warsama (1967) EA 51
  • Baku Raphael Obudura Kania v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Queen v Gyngall [1893] 2 QB 232
  • Pulkeria Nakaggwa v Dominiko Kiggundu (1978) HCB 310

Full judgment

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

Kabakali Swabra Zein v Mukasa Moustapha (Civil Revision 7 of 2025) [2026] UGHCFD 50 (6 May 2026)
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.