Wakilii

Kasule and Another v Departed Asians Property Custodian Board and Others (Civil Suit 751 of 1991; Civil Suit 752 of 1991)

High Court · [1994] UGHC 44 · 1994 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Two civil suits consolidated by court order, originally commenced exparte before defence counsel appeared during hearing
Decision
Plaintiff granted Letters of Administration to the estate; defendant restrained from interfering with plot No. 61

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the plaintiff was a widow of the deceased but the defendant was not validly married under Bakiga custom because the deceased had not paid dowry. Paternity of the disputed child was not proved on balance of probabilities. Plot No. 61 belonged to the estate as the defendant applied for it with knowledge of the deceased's unregistered customary tenure, amounting to fraud. The plaintiff was entitled to Letters of Administration and an order restraining the defendant from interfering with the estate.

Outcome

Plaintiff granted Letters of Administration to the estate; defendant restrained from interfering with plot No. 61

Facts

The plaintiffs, sisters and daughters of the late Haji Musa Kasule, claimed they were entitled to Letters of Administration to their father's estate. The defendant claimed to be a widow of the deceased and asserted entitlement to plot No. 61 Kabale/Kisoro Road. The deceased had cohabited with the defendant and she bore twin children. The deceased had paid Shs. 100,000 to the defendant's parents as a fine for cohabitation, but no dowry had been paid. Under Bakiga custom, marriage is not valid until dowry is paid. The deceased had purchased plot No. 61 and survey proceedings were ongoing at the time of his death. After his death, the defendant applied for and was offered a lease on the same plot. The plaintiffs challenged the defendant's status as widow, the paternity of the children, and ownership of the plot.

Issues

  1. Whether the plaintiff or the defendant or both were widows of the deceased Haji Musa Kasule
  2. Whether the surviving twin child was fathered by the deceased
  3. Whether plot No. 61 Kabale/Kisoro Road belongs to the estate of the deceased or the defendant personally
  4. Whether the plaintiff has the mandate of the deceased's family to apply for grant of Letters of Administration
  5. Whether the plaintiff is entitled to grant of Letters of Administration
  6. Whether the plaintiff is entitled to other reliefs prayed

Orders

  • Two suits consolidated by court order dated 20th May 1992
  • Defendant is not recognised as one of the widows of the deceased
  • The surviving twin child was not fathered by the deceased
  • Plot No. 61 Kabale/Kisoro Road belongs to the estate of the deceased G.W. Kateeka
  • Plaintiff is granted Letters of Administration to the estate of the deceased G.W. Kateeka
  • Defendant is ordered not to interfere with any part of the estate of the deceased, particularly plot No. 61, Kabale/Kisoro Road situate at Nyabikoni/Rwakaraba in Kabale Municipality
  • Defendant is ordered to pay the plaintiff the costs of the suit
  • Judgment entered for the plaintiff

Rules and key headnotes

Customary Marriage — Bakiga Custom — Validity of Marriage Without Payment of Dowry
Under Bakiga customary law, a marriage is not recognised as valid until dowry has been paid to the bride's family, notwithstanding cohabitation or payment of a fine for irregular cohabitation.
Burden of Proof — Civil Suits — Standard of Proof on Balance of Probabilities
In civil proceedings the burden of proving an issue lies on the party who asserts it, and proof must be established on the balance of probabilities in accordance with Order 13 Rule 2 of the Civil Procedure Rules.
Paternity — Proof in Civil Cases — Genetic and Physical Evidence
In paternity disputes, genetic and biological factors or physical resemblance may raise a good presumption but are not conclusive; the party asserting paternity bears the burden of proving it on balance of probabilities.
Customary Tenure — Unregistered Interest — Protection Against Subsequent Allocation
An unregistered customary tenure acquired by purchase of land and valuable trees thereon subsists and is enforceable against a subsequent applicant for allocation who has knowledge of the prior unregistered interest.
Registration of Titles — Section 51 — Protection of Prior Unregistered Customary Tenure
Section 51 of the Registration of Titles Act does not operate to defeat an existing unregistered customary tenure where a subsequent applicant applies for allocation with knowledge of the prior interest and intends to defeat it.
Letters of Administration — Grant to Widow — Standing Where Status as Widow Disputed
Where the plaintiff establishes status as a widow of the deceased and has the mandate of the deceased's family to apply for Letters of Administration, and the defendant's claim to be a widow is not proved, the plaintiff is entitled to a grant.

Legislation cited (3)

Cases cited (12)

  • Inge v Manano [1958] EA 124
  • Francis v Boniface [1969] EA 146
  • Case v Ruguru [1970] EA 55
  • Choitram v H Ghanshamdas Dadlani [1958] EA 641
  • National Grindlays Bank Ltd v Patel [1969] EA 403
  • Nyangunda v Kihwili [1967] EA 212
  • Departed Asians Property Custodian Board v Anyadra (Supreme Court Civil Appeal No. 8 of 1989)
  • Sewanynna v Aliker (Supreme Court Civil Appeal No. 4 of 1990)
  • Katarikawe v Katwiremu [1977] HCB 188
  • Okello v UNEB (Supreme Court Civil Appeal No. 12 of 1987)
  • Okadapao v Omuse (High Court Civil Suit No. 704 of 1982)
  • Matovu & Others v Sseviri (Court of Appeal Civil Appeal No. 7 of 1978)

Full judgment

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

Kasule and Another v Departed Asians Property Custodian Board and Others (Civil Suit 751 of 1991; Civil Suit 752 of 1991) [1994] UGHC 44 (18 April 1994)
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.