Kakibale v Yikii (Miscellaneous Application 1001 of 2023)

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 declined to find the respondent in contempt of a consent decree regarding child custody arrangements. While the respondent did not strictly comply with the rotational custody schedule by placing the children in boarding school, the court held that divergence from strict application is not necessarily contempt absent proof beyond reasonable doubt of deliberate disobedience. The application was dismissed in part; the court directed both parties to implement the consent decree but declined to vary custody arrangements or entertain the counterclaim, as the application was for contempt, not review.

Outcome

Application for contempt dismissed; parties directed to implement existing consent decree; minors to remain at current school with both parents accorded parental rights

Facts

The parties were divorced under Divorce Cause No. 113 of 2018, with a consent decree entered on 24 February 2020 providing for rotational custody of their two minor children. Under the decree, each parent would have custody for one school term with the other parent having Friday-to-Monday visitation rights, and holidays were to be shared equally. The applicant alleged the respondent breached the decree by unilaterally placing the children in boarding school in May 2023 without consultation, denying her the agreed custody arrangement. The respondent countered that the applicant first breached the decree by unilaterally changing the children's school from Stepping Stone to Orel Vine in third term 2023 without his consent, and that the children themselves requested to attend boarding school. Communication between the parties had broken down since 2017, with all interaction occurring through lawyers or the school director. Both parties sought primary custody with limited visitation rights for the other.

Issues

1. Whether the respondent was in contempt of the consent decree dated 24th February 2020.
2. Whether the applicant is entitled to any remedies.

Orders

• The respondent is not in contempt of the consent decree.
• The parties should implement the consent decree as reached.
• In the interest of stability, the minors shall not be removed from Orel Vine Primary School their current school and the applicant shall introduce the respondent to the school where he should be accorded his parental rights thereto.
• Each party shall bear their own costs.
• Application disallowed in part.

Rules and key headnotes

Legislation cited (10)

• Civil Procedure Act s.98
• Judicature Act s.33
• Constitution of Uganda Article 23(1)(a)
• Constitution of Uganda Article 23(1)(b)
• Constitution of Uganda Article 128(2)
• Constitution of Uganda Article 31(5)
• Children Act s.3
• Children Act s.85
• Civil Procedure Rules Order 52 rules 1, 2 & 3
• Civil Procedure Rules Order 19 rule 2(1)

Cases cited (3)

• Hon. Sitenda Sebalu v Secretary General of the East African Community (Reference No. 8 of 2012)
• Babra Nambi v Raymond Lwanga (Miscellaneous Application No. 213 of 2017)
• Betty Kizito v Dickson Nsubuga & 6 Others (Supreme Court Civil Appeal No. 25 & 26 of 2021)

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