Wakilii

Kasirye and 2 Others v Simanya and 4 Others (Civil Suit 168 of 2014)

High Court · [2023] UGHCFD 77 · 2023 Suit Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit challenging validity of will, appointment of executors, and land transfers
Decision
Suit dismissed; will upheld; probate and land transfers confirmed valid

Observed later treatment

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Holding

The High Court held that the late Martin Luther Kasirye left a valid will dated 1st January 2011, properly executed under section 50 of the Succession Act. The 1st and 2nd defendants were rightly granted probate as executors named in the will. The Uganda Land Commission lawfully renewed and extended the lease from 49 to 99 years in favour of the 3rd and 4th defendants, as the suit land had always formed part of public land vested in the Commission and not the Kabaka's mailo land. The 3rd and 4th defendants validly acquired the property as a gift inter vivos from the deceased before his death. The plaintiff's suit was dismissed with costs.

Outcome

Suit dismissed; will upheld; probate and land transfers confirmed valid

Facts

The late Martin Luther Kasirye died on 29 May 2012 without surviving children or spouse. He held a leasehold interest in land at Kibuga Block 22 plots 462 and 463, originally granted by the Government of Uganda Protectorate in 1961 for 49 years. Before his death, the deceased gave portions of the land as gifts inter vivos to several persons including the 3rd and 4th defendants, who funded the extension of the lease from 49 to 99 years. The deceased executed a will dated 1 January 2011 naming the 1st and 2nd defendants as executors and confirming the gifts made during his lifetime. The 3rd and 4th defendants were registered as proprietors on 7 July 2006, six years before the deceased's death. The plaintiffs, who were niece and nephew of the deceased, challenged the validity of the will, the grant of probate, and the Uganda Land Commission's extension of the lease to the 3rd and 4th defendants. The plaintiffs claimed the land should have been under the jurisdiction of the Buganda Land Board as mailo land of the Kabaka, not public land.

Issues

  1. Whether the late Martin Luther Kasirye left a valid will?
  2. Whether the 1st and 2nd defendants were rightly appointed as administrators to the estate of the late Martin Luther Kasirye?
  3. Whether the Uganda Land Commission rightly and lawfully renewed the lease in favour of the 3rd and 4th defendants?
  4. Whether the 3rd and 4th defendants rightly acquired the suit property Kibuga Block 22 plots 462 and 463 to LVR 2592 Folio 11 from the late Martin Luther Kasirye?

Orders

  • Suit dismissed.
  • Declared that the late Martin Luther Kasirye left a valid will.
  • Declared that Simaya Birungi Ssubi and Obadiya Mukumbi were rightly granted probate for the estate of the late Martin Luther Kasirye.
  • Declared that the Uganda Land Commission rightly and lawfully renewed the lease in favour of Rev. Kezironi Kiwanuka and Lydia Kiwanuka.
  • Declared that Rev. Kezironi Kiwanuka and Lydia Kiwanuka rightly acquired the suit property Kibuga Block 22 plots 462 and 463 to LVR 2592 Folio 11 from the late Martin Luther Kasirye.
  • Simaya Birungi Ssubi and Obadiya Mukumbi directed to ensure surveying of the suit land for purposes of demarcation of plots given inter vivos, at their cost, within 6 months.
  • The 1st and 2nd defendants directed to file inventory for the estate of the late Martin Luther Kasirye within 8 months from judgment.
  • Plaintiffs to pay 60% of the defendants' costs.

Rules and key headnotes

Wills — Validity — Requirements for Valid Execution under Succession Act s.50
A valid will under section 50 of the Succession Act must be in writing, dated and signed by the testator, and witnessed by two or more attesting witnesses who must have seen the testator write, sign or affix his mark.
Proof of Execution of Will — Best Evidence — Attesting Witness
The best evidence regarding the execution of a will is by the attesting witness. Unless it can be proved that the witness could not have witnessed the will, a witness to the will is the best person to confirm that a will belongs to a specific person because no other person can attest that the deceased made the will, considering the secrecy concerning making a will.
Burden of Proof — Forgery of Will — Necessity for Expert Evidence
Where plaintiffs allege that the signature on a will is forged, they bear the burden of proving that the signature could not be that of the deceased. In absence of documentary evidence showing the deceased's signature for comparison or expert handwriting evidence, the allegation of forgery cannot be sustained.
Testamentary Capacity — Mental Soundness — Burden of Proof
Under section 36 of the Succession Act, every person of sound mind and not a minor may by will dispose of property. Where there is no evidence that the testator lacked testamentary capacity at the time of executing the will, it will be presumed that the testator had the requisite capacity.
Public Land — Historical Vesting — Crown Land to Uganda Land Commission
Crown land under the 1900 Buganda Agreement and Crown Land Ordinance 1903 became public land after independence, vested in the Land Commission under Article 118 of the 1962 Constitution. Upon abolition of kingdoms in 1967, land held by the Buganda Land Board was vested in the Uganda Land Commission. The Traditional Rulers Restitution Act 1993 restored property confiscated from traditional rulers, but this does not automatically convert all public land into the Kabaka's mailo land without proof of the specific connection.
Indefeasibility of Title — Registration of Titles Act s.59 — Certificate of Title as Conclusive Evidence
Section 59 of the Registration of Titles Act provides that the certificate of title is conclusive evidence of all particulars and the person named in the certificate as proprietor is possessed of the estate or interest described, except for fraud. Once someone is registered as proprietor of land, the title is indefeasible save for fraud.
Executors — Duty to File Inventory and Account — Extension of Time
Under section 278 of the Succession Act, an executor must exhibit an inventory within six months and an account within one year of the grant of probate. Where the estate has been substantially distributed and the circumstances make formal inventory filing a waste of time and resources, the court may in the interest of justice extend the time for filing inventory rather than revoke the grant of probate under section 234(1)(e).

Legislation cited (20)

Cases cited (12)

  • Devji v Damor Jinabhai & Co (E.A.C.A. No. 1 of 1934)
  • Sengendo v Attorney General [1972] 1 EA 140
  • Nsubuga v Kavuma [1978] HCB 307
  • Wambewo v Mazelele (Misc. Application No. 128 of 2013)
  • Mallinga v Obukunyang (Civil Suit No. 13 of 2013)
  • Estate of James Ngengi Muigai (deceased), Nairobi High Court Succession Cause No. 523/1996
  • Estate of Grant Patrick Carrigan [2018] QSC 206
  • Mukoda and 2 Others v Kyemba [2020] UGHC 210
  • Attorney General v Bukirwa and Another [1992-93] HCB 192
  • F.K Zaabwe v Orient Bank Ltd and Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • John Katarikawe v William Katwiremu [1977] HCB 187

Full judgment

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Kasirye and 2 Others v Simanya and 4 Others (Civil Suit 168 of 2014) [2023] UGHCFD 77 (13 March 2023)
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.