Wakilii

Kabugho Vasolene Zuhudi v Banja Karim Kyakabale (Divorce Cause 2 of 2024)

High Court · [2025] UGHC 899 · 2025 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Petition for dissolution of marriage and cross-petition for nullity of marriage
Decision
Both petition and cross-petition dismissed; no legal marriage proven to exist

Observed later treatment

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Holding

The High Court dismissed both the petition for dissolution of marriage and the cross-petition for nullity, holding that the petitioner failed to prove on a balance of probabilities that a legal customary marriage existed between the parties. The court found that despite the respondent's claim of Congolese domicile, both parties held valid Ugandan National IDs establishing domicile in Uganda, giving the court jurisdiction. However, the marriage agreement produced did not bear the petitioner's names as they appeared on official documents, and insufficient witness testimony was adduced to prove a valid customary marriage under Kikonzo culture.

Outcome

Both petition and cross-petition dismissed; no legal marriage proven to exist

Facts

The petitioner sought dissolution of marriage, custody of their daughter, and property division, alleging a customary marriage celebrated on 12 August 2008 in Beni, DRC, with payment of bride price. She claimed the respondent committed adultery and deserted her. The respondent raised a preliminary objection on jurisdiction, claiming both parties were Congolese nationals domiciled in DRC, and denied the marriage, stating he had only paid compensation for making the petitioner pregnant while she was married to another man. The respondent filed a cross-petition for nullity, stating he was validly married to another woman in DRC under civil law on 1 July 2014. Both parties held Ugandan National IDs showing residence in Kasese District. The petitioner produced a marriage agreement and one witness to the alleged ceremony, but the agreement did not bear her names as they appeared on her National ID or passport.

Issues

  1. Whether there was an existing legal marriage between the parties.
  2. Whether the High Court of Uganda had jurisdiction to hear the petition given the respondent's claim of Congolese domicile.
  3. Whether the petitioner and respondent were domiciled in Uganda at the time the petition was filed.
  4. Whether the petitioner proved the existence of a customary marriage on a balance of probabilities.

Orders

  • The Petition and Cross-Petition are both dismissed as no legal marriage was proved to exist between the Petitioner/Cross-Respondent and the Respondent/Cross-Petitioner.
  • Parties shall each bear their own costs.

Rules and key headnotes

Preliminary Objections — Nature and Scope
A preliminary objection raises a pure point of law on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
Divorce — Jurisdiction — Domicile
Under Section 2(a) of the Divorce Act, a Ugandan court cannot make a decree of dissolution unless the petitioner is domiciled in Uganda at the time the petition is presented. A person acquires a domicile of choice in a country by being lawfully present there with the intention of remaining indefinitely, and domicile must not be confused with nationality.
Documentary Evidence — National Identification Cards — Proof of Domicile
A National Identification Card is prima facie proof of the particulars contained in it under Section 69(2) of the Registration of Persons Act, including the bearer's residential address in Uganda, and therefore constitutes prima facie evidence of domicile where the card specifies details of village, parish, sub-county, county and district.
Customary Marriage — Definition and Recognition
Under Section 1 of the Customary Marriage (Registration) Act, a customary marriage is defined as a marriage celebrated according to the rites of an African community to which one of the parties belongs. The fact that the marriage was celebrated outside Uganda or in accordance with a culture not indigenous to Uganda does not disqualify it from recognition as a customary marriage.
Burden of Proof — Existence of Marriage
Under Sections 101 and 103 of the Evidence Act, the burden of proving the existence of a customary marriage lies on the party asserting it. An unregistered customary marriage is not necessarily invalid but is voidable if the party seeking to prove its existence fails to discharge the burden of proof on a balance of probabilities.
Customary Marriage — Proof — Sufficiency of Evidence
Where a party alleges a customary marriage but produces a marriage agreement that does not bear the party's names as they appear on official documents, and adduces only one witness to the ceremony while the other party denies the marriage and provides a conflicting account, the party asserting the marriage has failed to prove its existence on a balance of probabilities. In such circumstances, it is prudent to produce senior relatives or elders from the community to confirm that a customary marriage took place in accordance with cultural norms.
Divorce — Custody Orders — Jurisdiction
Under Section 28 of the Divorce Act, the court may make custodial orders with respect to children only during the course of divorce proceedings or as a result of the dissolution of marriage. Where both a petition and cross-petition for dissolution or nullity are dismissed because no legal marriage was proven to exist, custodial orders arising from those proceedings would be misplaced, and the party seeking custody should proceed under the Children Act in a separate action.

Legislation cited (16)

Cases cited (7)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696
  • Alfred Tako Kenyi v Apika Jacqueline (Divorce Cause No. 94 of 2022)
  • Robinah Erina Kayaga Kiyingi v Dr Aggrey Kiyingi (Civil Appeal No. 41 of 2004)
  • Selamawit Haile Tscgy and Another v Amanuile Yemane and Another (Civil Appeal No. 22 of 2017)
  • Namukasa Joweria v Kakondere Livingstone (Divorce Cause No. 30 of 2010)
  • Negulu Milly v Dr. Serugga Solomon (Civil Appeal No. 103 of 2013)
  • Uganda v Kato and Others (1976) HCB 204

Full judgment

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

Kabugho Vasolene Zuhudi v Banja Karim Kyakabale (Divorce Cause 2 of 2024) [2025] UGHC 899 (3 September 2025)
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.