Wakilii

Kiwawa v Serunkuma and Another (Civil Suit 52 of 2006)

High Court · [2007] UGHCFD 1 · 2007 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit to prevent celebration of marriage on grounds of Baganda custom
Decision
Marriage prohibited; permanent injunction granted restraining defendants from marrying each other

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a Baganda custom prohibiting marriage between clan-mates applies to marriages under the Marriage Act Cap.251, not only to customary marriages. The custom constitutes lawful cause to challenge a marriage under sections 10(c), 12, 13, and 21 of the Marriage Act. Where customary law is not documented or notorious, it must be proved by evidence. The custom that Baganda of the same clan cannot marry is not repugnant to natural justice, equity and good conscience, nor inconsistent with the Constitution or the Marriage Act. A marriage between the defendants, both of the Ndiga clan, was declared illegal, null and void.

Outcome

Marriage prohibited; permanent injunction granted restraining defendants from marrying each other

Facts

The plaintiff, a Muganda of the Ndiga (Sheep) clan, instituted suit to prevent the marriage of the first defendant (also a Muganda of the Ndiga clan) to the second defendant. The plaintiff claimed to be the biological father of the second defendant, which was disputed. The defendants planned to marry on 24 June 2006 at Makerere University Chapel. The court issued an interim order staying the marriage. A DNA test subsequently confirmed that the plaintiff was the biological father of the second defendant. Both defendants admitted that a Baganda custom exists prohibiting marriage between clan-mates. The defendants argued the custom applied only to customary marriages, not marriages under the Marriage Act Cap.251, and that they satisfied the prohibited degrees of consanguinity under written law.

Issues

  1. Whether the plaintiff is the biological father of the second defendant.
  2. Whether the defendants, being Baganda by tribe and being members of the same 'Ndiga' (Sheep) clan, can lawfully contract a marriage under the Marriage Act Cap.251.
  3. Whether the defendants, being Baganda by tribe and being members of the same 'Ndiga' (Sheep) clan, can lawfully contract a marriage under the laws of Uganda.
  4. Whether failure to conduct a formal introduction ceremony and obtaining consent from the parents is a pre-requisite to contract a marriage under the provisions of the Marriage Act Cap.251.

Orders

  • Declaration that the plaintiff is the biological father of the second defendant.
  • Declaration that the first and second defendants' intended marriage is illegal, null and void by reason of the custom that, being Baganda by tribe both belonging to the same 'Ndiga' (Sheep) clan, the defendants cannot lawfully contract a marriage as between themselves.
  • Declaration that it is a custom of the Baganda as a tribe that before a marriage is contracted, it is preceded by an introduction ceremony.
  • Permanent injunction issued restraining the first and second defendants from contracting a marriage as between themselves.
  • Each party to bear its own costs of the suit.

Rules and key headnotes

Marriage — Customary Law — Proof of Custom
Where customary law is not documented or so notorious for the court to take judicial notice of it, it must be proved in evidence.
Marriage — Customary Law — Definition and Requirements
A custom is a practice that has been followed in a particular locality in such circumstances that it is accepted as part of the law of that locality. To be recognized as customary law, it must be reasonable in nature and must have been followed continuously, and as if it were a right, since the beginning of legal memory.
Constitutional Supremacy — Customary Law
Customary law must be in conformity with the Constitution, the supreme law in Uganda. Any custom inconsistent with the Constitution is void to the extent of the inconsistency.
Marriage — Marriage Act — Recognition of Customary Marriage
The Marriage Act Cap.251 recognizes the validity of customary marriage because a customary marriage can be converted to a civil marriage under the Act, and one cannot contract a customary marriage if already married under the Marriage Act. The Marriage Act takes cognizance of the operation of marriage customary laws and does not exclude the observance of customary law or practice by those intending to contract marriage under the Act.
Marriage — Marriage Act — Lawful Cause to Challenge Marriage
A Baganda custom prohibiting marriage between clan-mates constitutes lawful cause under sections 10(c), 12, 13, and 21 of the Marriage Act Cap.251 to successfully challenge a marriage under the Marriage Act.
Marriage — Customary Law — Fusion of Religious and Customary Elements
Since the colonial era and the advent of Christianity and Islam, native Ugandans have kept to their customs in marriage, making it necessary for religions to give due recognition to these customs in the celebration of marriage. Marriage celebrated under the Marriage Act became a combination of both what is religious and what is customary, while remaining essentially a church or civil marriage and not a customary one.
Marriage — Prohibited Degrees — Other Grounds for Challenge
The Marriage Act Cap.251 provides for challenging an intended marriage on many grounds independent of prohibited degrees of consanguinity. Once a couple satisfies the test of prohibited degrees of consanguinity, their intended marriage can still be challenged on other grounds, such as violating the custom of clan-mates not marrying each other.

Legislation cited (22)

Cases cited (6)

  • Kimani v Gikanga [1965] EA 735
  • Marko Kajubi v Kulanima Kabali Ext A34 [1944]
  • R v Amkeyo [1917] EA
  • Lukwago v Kizza and Another [1999] 2 EA 142
  • Virginia Edith Wamboi Otieno v Joash Ochieng Ongo and Omolo Sirange [1982] 1 KAR 1049
  • Magwi Kimito v Gebeno Werema [1985] TLR 132

Full judgment

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

Kiwawa v Serunkuma and Another (Civil Suit 52 of 2006) [2007] UGHCFD 1 (5 May 2007)
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.