Wakilii

Khemis and Another v Zahara and 4 Others (Civil Suit 196 of 2022)

High Court · [2023] UGHCFD 159 · 2023 Preliminary Objections Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections in first instance civil suit for declarations of fraudulent dealing with estate and orders for cancellation of dealings
Decision
Preliminary objections dismissed; matter proceeding to substantive hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed all three preliminary objections raised by the 2nd and 3rd defendants. The court held that the suit was not barred by res judicata because the current suit concerns how the administrator handled estate distribution after obtaining Letters of Administration, not her eligibility to be appointed. The court found that the plaintiffs disclosed a cause of action against the purchasing defendants by pleading they were beneficiaries whose rights were violated through the alleged fraudulent sale. The plaintiffs therefore had locus standi to bring the suit. The matter was set down for substantive hearing.

Outcome

Preliminary objections dismissed; matter proceeding to substantive hearing

Facts

Hassan Khemis and Habib Sulaiman, grandson and son respectively of the late Haji Juma Sulaiman who died intestate on 28 September 2005, instituted suit alleging fraudulent dealing with the deceased's estate. The plaintiffs claimed they resided with the deceased at his property. Zahara Sulaiman, the 1st defendant, obtained Letters of Administration in 2006. In 2012 she obtained a special certificate to distress for rent and evicted the plaintiffs. The 2nd, 3rd and 4th defendants claimed to be registered proprietors of the suit property having purchased it from the Administrator General, and had issued eviction notices to the plaintiffs. The 2nd and 3rd defendants raised three preliminary objections: that the suit was res judicata based on Civil Suit No. 122 of 2006, that there was no cause of action against them as registered proprietors who compensated beneficiaries, and that the plaintiffs lacked locus standi as they were tenants not beneficiaries.

Issues

  1. Whether the suit is barred by res judicata based on Civil Suit No. 122 of 2006
  2. Whether there is a cause of action against the 2nd, 3rd and 4th defendants as registered proprietors who compensated beneficiaries
  3. Whether the plaintiffs have locus standi to sue as beneficiaries of the estate

Orders

  • Preliminary objections dismissed
  • Costs to be determined in the main suit
  • Defendants to file witness statements and trial bundle
  • All parties to file Joint Scheduling Memorandum
  • Matter set for hearing on 28th September 2023 at 12:00pm

Rules and key headnotes

Preliminary Objections — Definition and Effect
A preliminary objection is an error on the face of the pleadings which rises by clear implication out of the pleadings and which, if argued as a preliminary objection, may dispose of the suit.
Res Judicata — Different Issues in Subsequent Suit
A subsequent suit is not barred by res judicata where the issues for determination differ from those in the earlier suit, even where both suits concern the same estate; a suit challenging how an administrator handled estate distribution after obtaining Letters of Administration raises different issues from a suit determining the administrator's eligibility to be appointed.
Cause of Action — Elements
To prove a cause of action exists, a party must show that they enjoyed a right, that the right has been violated, and that the defendant is liable; if these three elements are present, a cause of action is disclosed and any defect or omission can be put right by amendment.
Administration — Locus Standi of Alleged Beneficiaries
Persons claiming to be beneficiaries of an estate as son and grandson of the deceased who allege they resided with the deceased during his lifetime have locus standi to challenge the administrator's sale of estate property to third parties, notwithstanding a dispute as to whether they are tenants or beneficiaries, as this raises a triable issue for substantive determination.

Legislation cited (1)

Cases cited (3)

  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696
  • Ponsiano Semakula v Susane Magala and Others (1993) KALR 213
  • Tororo Cement Co Ltd v Frokina International Ltd (Civil Appeal No. 2 of 2001)

Full judgment

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

Khemis and Another v Zahara and 4 Others (Civil Suit 196 of 2022) [2023] UGHCFD 159 (12 June 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.