Wakilii

Kasozi v Nankya and Others (Civil Suit No. 82 of 2007)

High Court · [2010] UGHCFD 8 · 2010 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit challenging Letters of Administration and seeking to enforce alleged will
Decision
Plaintiff's suit dismissed; widow to be restored to residence; plaintiff to vacate and pay damages

Observed later treatment

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Holding

Held that the purported will was invalid because it was not attested in compliance with section 50(c) of the Succession Act — the attesting witnesses did not see the testator sign the will, and the will was signed eleven days after its alleged execution. The widow was entitled to remain in the residential home as co-owner, having contributed to its construction. The Letters of Administration were validly granted. The plaintiff, who had unlawfully evicted the widow, was ordered to vacate and pay damages of UGX 100 million.

Outcome

Plaintiff's suit dismissed; widow to be restored to residence; plaintiff to vacate and pay damages

Facts

The late Yusuf Mubiru died on 10 June 1987. The plaintiff, Samson Kasozi, claimed to be the customary heir and produced a purported will dated 17 April 1985, allegedly written by the deceased and witnessed on 28 April 1985, which bequeathed the residential home at Nansana to him. Following the last funeral rites, the plaintiff took possession of the home and evicted the widow. The defendants, including the widow Nankya Catherine and other family members, subsequently obtained Letters of Administration to administer the estate as intestate. The plaintiff brought this suit seeking to validate the will, revoke the Letters of Administration, and obtain title to the home. The widow testified that she contributed to the construction of the home and had no knowledge of the alleged will, which she considered unfair in its distribution. She was evicted from the marital home in October 1987.

Issues

  1. Whether the deceased died testate or intestate.
  2. Whether the plaintiff is entitled to own the deceased's home at Nansana.
  3. Whether the Letters of Administration obtained by the defendants were obtained fraudulently.

Orders

  • Declaration that the late Yusuf Mubiru died intestate.
  • Declaration that the widow is entitled to stay in the home as the surviving co-owner.
  • The plaintiff is a trespasser in the home and should vacate the house in Nansana immediately.
  • The administrators of the estate should take immediate administration and ensure the widow takes up residence; inventory of all property and file account within six months and one year.
  • Plaintiff to pay the widow damages of UGX 100,000,000 for inconvenience, pain and suffering since eviction from her marital home.
  • Plaintiff to pay costs of the suit.
  • Plaintiff to pay interest at 30% per annum on damages from date of judgment until payment in full.

Rules and key headnotes

Validity of Wills — Attestation Requirements under Succession Act s.50(c)
For a will to be valid under section 50(c) of the Succession Act, it must be attested by two or more witnesses who must have seen the testator sign or affix his mark on the will. The physical presence of witnesses at the time when the testator is signing is a prerequisite to validity. A will not attested in compliance with section 50(c) is invalid, and non-compliance with the mandatory requirements of section 50(c) invalidates the will.
Attestation of Wills — Witnesses Not Present at Execution
Where a will is dated eleven days earlier than the date on which an attesting witness signed it, and the witness admits he did not see the testator sign the will but was only asked to sign after the will had already been written, the attestation does not comply with section 50(c) of the Succession Act and the will is invalid.
Proof of Wills — Burden of Removing Suspicion
When a will is prepared under circumstances which cause suspicion of the court, it ought not to be pronounced unless the party relying on it adduces evidence which removes such suspicion and satisfies the court that the testator knew and approved of the contents of the instrument. Suspicious circumstances include unequal distribution of property, omission of children, and lack of awareness of the will by family members at the time of death.
Rights of Widows — Co-ownership of Marital Property
Where a widow has contributed to the construction of the marital home, she has a proprietary interest in the home as co-owner with her deceased husband. Upon the death of her husband, her proprietary interest continues and is superior to any claim by an heir.
Succession Act s.2(n) and s.26 — Declaration of Unconstitutionality
Sections 2(n) and 26 of the Succession Act, which defined the legal heir and vested the residential holding in the heir, have been declared null and void by the Constitutional Court in Law and Advocacy for Women in Uganda v Attorney General (Constitutional Petition No. 13/05 and 05/06). These sections cannot be invoked to support a claim to the deceased's residential holding.
Letters of Administration — Fraud Not Established
Where an applicant for Letters of Administration had knowledge of the grant process and chose not to participate or lodge a caveat under sections 253 and 255 of the Succession Act, and where the grant process was open and transparent with no evidence of concealment or false information provided to the court, the grant is not fraudulent.

Legislation cited (8)

Cases cited (6)

  • Magunda and Another v Sulaiman Senoga and Others (High Court Civil Suit No. 663 of 1993)
  • Administrator General v Teddy Bukirwa and Another (High Court Civil Suit No. 1028 of 1992-93)
  • Hajji Sulaiti Habib Ijumba and Others v Hajjati Safarani Nyinakiza Sanyu (High Court Civil Suit No. 718 of 1995)
  • Rev. James Kyamukama and Another v Catherine Zaribwende and Another (High Court Civil Suit No. 1144 of 1997)
  • Administrator General v Nakiyaga and Others (Administration Cause No. 55 of 1990)
  • Law and Advocacy for Women in Uganda v Attorney General (Constitutional Petition No. 13 of 2005 and No. 5 of 2006)

Full judgment

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

Kasozi v Nankya and Others (Civil Suit No. 82 of 2007) [2010] UGHCFD 8 (29 September 2010)
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.