Wakilii

Kwesiga v Nankunda (Miscellaneous Application 822 of 2022)

High Court · [2023] UGHCFD 86 · 2023 Application Granted — Contempt Found AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for contempt of court arising from consolidated custody applications in divorce proceedings
Decision
Respondent found in contempt and ordered to return the child to Uganda within three months and hand her over to the applicant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court found the respondent mother in contempt of court orders that granted primary custody of the child to the applicant father. The respondent had taken the child to the United Kingdom without the applicant's consent and left her there in the care of relatives. The court held that regardless of the child's wishes or alleged citizenship, the custody order remained binding until legally set aside. The respondent was ordered to return the child to Uganda within three months and hand her over to the applicant in accordance with the custody orders.

Outcome

Respondent found in contempt and ordered to return the child to Uganda within three months and hand her over to the applicant

Facts

The parties are former spouses whose marriage was dissolved by the High Court. Their minor child, Alfa Nankunda Kwesiga, was initially in the respondent mother's primary custody under a 2019 order. In June 2022, following consolidated miscellaneous applications, the court varied the custody order and granted primary custody to the applicant father, with the respondent entitled to visitation rights during holidays and by prior arrangement. The respondent subsequently took the 13-year-old child to the United Kingdom during school holidays and did not return her to Uganda when the school term commenced in August 2022. The respondent left the child in the care of relatives in the UK, claiming the child expressed a desire to study there and was a UK citizen. The respondent did not inform the applicant of the child's specific whereabouts or obtain his consent to take her out of the country.

Issues

  1. Whether the respondent is in contempt of court orders issued on 14 June 2022 in consolidated Miscellaneous Application No. 684 of 2021 and Miscellaneous Application No. 328 of 2021.
  2. What remedies are available to the applicant.

Orders

  • The application succeeds.
  • The respondent is in contempt of court orders issued on the 14th day of June 2022 in consolidated Miscellaneous Application No. 684 of 2021 and Miscellaneous Application No. 328 of 2021.
  • The respondent Jackie Nankunda is directed to bring back to Uganda the child Alfa Nankunda Kwesiga from the United Kingdom within three months from this ruling and to hand her over to Pius Kwesiga immediately thereafter in accordance with the custody orders made by this court.
  • Jackie Nankunda is barred from taking the child Alfa Nankunda Kwesiga out of the jurisdiction of this court without the written consent of the applicant.
  • The respondent shall bear the costs of this application.

Rules and key headnotes

Civil Procedure — Contempt of Court — Elements Required for Finding of Contempt
For contempt of court to be established, three conditions must be proved: the existence of a lawful court order; the contemnor's full knowledge of the order; and the contemnor's failure to comply with the order (disobedience).
Civil Procedure — Contempt of Court — Duty to Comply Regardless of Party's View of Order's Validity
A party who knows of a court order cannot be permitted to disobey it by reason of what that party regards the order to be, regardless of whether the party views the order as null, valid, regular or irregular. The order must be complied with in totality, subject to the party's right to challenge the order through appeal or review. If compliance is impossible for genuine reasons, the party must move the court that issued the order and explain the reasons for non-compliance.
Family Law — Custody of Children — Authority to Change Child's Place of Residence
In matters where the court has granted primary custody to one parent, it is that parent who would consider the wishes of the child before the child's living place can be changed. A parent without primary custody cannot unilaterally relocate the child to another country based on the child's expressed wishes without the consent of the parent with custody and in disregard of court orders.
Family Law — Jurisdiction — High Court Jurisdiction over Child Custody Regardless of Child's Location
Where the parents of a child are citizens of Uganda domiciled within the court's jurisdiction and their marriage was dissolved in the High Court, the High Court is clothed with jurisdiction to hear custody matters concerning the child regardless of where the child is physically located or whether the child holds citizenship of another country.
Civil Procedure — Contempt of Court — Purpose of Contempt Powers
The primary purpose of contempt powers is to preserve the effectiveness and sustain the power of the court. The second purpose is to protect and enforce parties' rights by compelling obedience to court orders and judgments. Compliance with the law declared by court through its orders is a pillar in the rule of law; if one is unhappy with the order, the only way is to apply to have it set aside by appeal or revision.

Legislation cited (15)

Cases cited (11)

  • Uganda Super League v Attorney General (Constitutional Application No. 73 of 2013)
  • Khabusi Building Contractors and Furniture Ltd v PPDA (Miscellaneous Application No. 99 of 2015)
  • [2008] BCCA 196
  • Housing Finance Bank Ltd & Another v Edward Musisi (Miscellaneous Application No. 158 of 2010)
  • Mutambo Wepukhulu v Wasswa Balumywa & 2 Others (Miscellaneous Application No. 276 of 2012)
  • Stanbic Bank (U) Ltd and Another v Commissioner General Uganda Revenue Authority (Miscellaneous Application No. 42 of 2010)
  • Amrit Goyal v Harichard Goyal & 3 Others (Civil Application No. 109 of 2014)
  • Stanbic Bank (U) Ltd and Jacobson Power Plant Ltd v Uganda Revenue Authority (Miscellaneous Application No. 42 of 2010)
  • Hon. Sitenda Sebalu v Secretary General of the East African Community (Reference No. 8 of 2012)
  • Angelina Lamunu Langoya v Olweny George William (Miscellaneous Application No. 30 of 2019)
  • Megha Industries (U) Ltd v Comform (U) Ltd (Miscellaneous Application No. 21 of 2014)

Full judgment

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

Kwesiga v Nankunda (Miscellaneous Application 822 of 2022) [2023] UGHCFD 86 (21 April 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.