Wakilii

Kironde v Kironde & Anor (Civil Divorce Cause No. 006 2001)

High Court · [2002] UGHCFD 2 · 2002 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Divorce petition filed by wife seeking dissolution of marriage on grounds of adultery; respondent husband filed cross-petition also alleging adultery
Decision
Marriage dissolved by decree nisi; custody of children granted to petitioner with access to respondent; no costs or damages awarded

Observed later treatment

Cited — treatment unverified cited in 4 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

No adverse treatment recorded Cited 4 times with no adverse treatment recorded; not yet tested on the merits. Citations rising — 4 citing cases on record, 4 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that sections 5 and 6 of the Divorce Act, which create different grounds for dissolution of marriage for men and women, are inconsistent with Articles 21, 31, and 33 of the 1995 Constitution and void to that extent. A wife may petition for divorce on the ground of adultery alone, in the same way as a husband, pursuant to the constitutional principle of equality before the law. Where both parties admit adultery and neither has connived, condoned, or colluded, a decree nisi for dissolution may be pronounced. No costs or damages awarded where both parties are equally guilty of adultery and have agreed to harmonious post-divorce arrangements for the welfare of their children.

Outcome

Marriage dissolved by decree nisi; custody of children granted to petitioner with access to respondent; no costs or damages awarded

Facts

Petitioner and respondent married on 1 October 1983 at Namirembe Cathedral. They cohabited in Kampala between 1983 and 1991 and had three children. Petitioner alleged respondent committed adultery with multiple women and deserted her in 1999. Respondent filed cross-petition alleging petitioner committed adultery and produced a child not his. Both parties admitted committing adultery. During scheduling conference, parties agreed on key facts including that petitioner committed adultery with co-respondent Moses Zizinga and had a child named Joe Sebugwawo, that respondent committed adultery with Ayeta Wangusa and Florence Nambasa, and that children should remain in custody of petitioner with access to respondent.

Issues

  1. Whether the petitioner is entitled to the reliefs sought in the petition.
  2. Whether the respondent is entitled to the reliefs sought in the cross-petition.
  3. Whether sections 5 and 6 of the Divorce Act are inconsistent with the Constitution and thus void to the extent of that inconsistency.
  4. Whether a wife can petition for dissolution of marriage on the ground of adultery alone under the 1995 Constitution.
  5. Whether costs and damages should be awarded where both parties are guilty of adultery.

Orders

  • A decree nisi is hereby pronounced dissolving the marriage between the petitioner and the respondent.
  • The custody of the children of the said marriage is granted to the petitioner, their mother.
  • The respondent shall have access to their children, at reasonable hours and times whether they (children) are at the petitioner's home or at school.
  • Each party to the petition shall bear his or her own costs.

Rules and key headnotes

Family Law — Divorce — Grounds for Dissolution — Constitutional Equality Between Men and Women
Sections 5 and 6 of the Divorce Act, which create different grounds for dissolution of marriage for men and women, are inconsistent with Articles 21, 31, and 33 of the 1995 Constitution of Uganda and void to the extent of that inconsistency.
Constitutional Law — Equality and Non-Discrimination — Constitutional Supremacy
Where any law or custom is inconsistent with any provision of the Constitution, the Constitution shall prevail and that other law or custom shall, to the extent of the inconsistency, be void pursuant to Article 2(2) of the Constitution.
Family Law — Divorce — Grounds for Dissolution — Adultery by Wife
Under the 1995 Constitution, a wife may petition for dissolution of marriage on the ground of adultery alone, in the same way as a husband is entitled to do under section 5 of the Divorce Act, pursuant to the constitutional principle of equal rights and opportunities before the law.
Family Law — Divorce — Proof of Adultery — Admission in Pleadings
Adultery may be proved by a party adducing evidence, by the adulterer admitting the fact of adultery, or by circumstantial evidence. Where adultery is admitted in pleadings, the fact is proved and the admitting party will not normally be allowed to resile from the admission unless made under a genuine mistake of fact.
Family Law — Divorce — Costs and Damages — Mutual Guilt
Where both parties to a divorce petition are equally guilty of adultery, the court may in its discretion refuse to award costs or damages to either party on the basis that no party should be allowed to benefit from his or her wrongs and that neither party has come to court with clean hands.
Family Law — Divorce — Costs — Section 23 of Divorce Act as Discriminatory
Section 23 of the Divorce Act, which provides for co-respondent to pay costs only where the petitioner is a husband, is manifestly discriminatory in nature and particularly against women, and is therefore void to the extent of its being discriminatory and in conflict with the Constitution.
Family Law — Custody of Children — Welfare Principle
In making an order for custody, maintenance, and education of children of a dissolved marriage, the guiding principle the court must address is the welfare of the child or children, as set out in sections 4 to 6 and the First Schedule of the Children Statute.

Legislation cited (25)

Cases cited (10)

  • Muller v Minister of Pensions (1947) 2 All ER 372
  • Pan African Insurance Co v Uganda Airlines (1985) HCB 53
  • International Life Insurance Company (U) Ltd v Amin (Civil Application No. 12 of 1968)
  • Gower v Gower (1950) 1 All ER 804 (CA)
  • Bater v Bater (1951) P 35 (CA)
  • Habyarimana v Habyarimana (1980) HCB 139
  • Nakaggwa v Kiggundu (1978) HCB 315
  • Uganda Development Bank v Muganga Construction Company Ltd (1981) HCB 35
  • Ruhara v Ruhara (1997) HCB 86
  • Prince JDC Mpuga Rukidi v Prince Solomon Iguru & Others (Supreme Court Civil Appeal No. 18 of 1994)

Cases citing this judgment (4)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

↓ Download PDF

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

Kironde v Kironde & Anor (Civil Divorce Cause No. 006_2001) [2002] UGHCFD 2 (12 December 2002)
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.