Wakilii

Kyzyma v Okello (Divorce Cause 79 of 2022)

High Court · [2023] UGHCFD 119 · 2023 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance divorce petition heard ex parte after respondent failed to file answer
Decision
Marriage dissolved; joint legal custody granted with physical custody to petitioner; respondent to contribute 80% towards children's maintenance; alimony denied

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dissolved the marriage on grounds of desertion, adultery, and cruelty. The court granted joint legal custody of the minor child to both parties with physical custody to the petitioner, ordered the respondent to contribute 80% towards maintenance of both children, declined to declare the disputed land matrimonial property due to lack of proof of joint contribution, and refused alimony as the petitioner failed to prove financial incapacity.

Outcome

Marriage dissolved; joint legal custody granted with physical custody to petitioner; respondent to contribute 80% towards children's maintenance; alimony denied

Facts

The petitioner, a Ukrainian citizen domiciled in Uganda, and the respondent, a Ugandan citizen, married on 29 February 2008 and had two children. The petitioner alleged that since 2019 the respondent deserted the matrimonial home, engaged in adulterous relationships with Betty Nassali and Ritah Atukunda, denied her sexual relations for over three years, and exhibited violent and emotionally abusive behaviour fuelled by alcohol dependency. The respondent broke the petitioner's phone and assaulted her, leading to a police report. The parties jointly purchased land in 2015 but the transfer form showed registration in the respondent's name only. The petitioner claimed she solely provided for the children while the respondent, employed as a university lecturer, contributed minimally. The respondent failed to file an answer and the matter proceeded ex parte.

Issues

  1. Whether there are grounds for divorce?
  2. Whether the petitioner is entitled to the remedies as prayed for in the petition?

Orders

  • The marriage between Kyzyma Kateryna and Walter Okello Angol is hereby dissolved on account of desertion, adultery and cruelty; a decree nisi hereby issues.
  • Legal custody of Maxwell Okello Angol the issue to the marriage, is granted to both the petitioner and respondent but the petitioner shall have physical custody.
  • Land comprised in plot 400 block 442 Busiro situate at Busiro, Mengo is not matrimonial property.
  • The Respondent shall have the right to spend time with Maxwell Okello Angol anytime he wishes subject to one week notice to the Petitioner, it being understood that the wishes of the child shall be taken into consideration.
  • The respondent shall contribute 80% towards the maintenance of Maxwell Okello Angol and Hillary Okello until they all finish school and are able to fend for themselves.
  • The petitioner is not entitled to receive alimony from the respondent.
  • The respondent shall bear the costs of this petition.
  • The petitioner shall bring this divorce to the attention of the Registrar of Marriages for purposes of updating their records.

Rules and key headnotes

Divorce — Grounds — Desertion — Elements
Desertion for purposes of divorce requires proof of intentional withdrawal from the marriage both physically and emotionally with no intention of returning or being held out as married, without reasonable or justifiable cause, for more than two years.
Divorce — Grounds — Adultery — Standard of Proof
Adultery must be proved to the satisfaction of the court with a high degree of probability. While the evidence need not reach certainty, circumstantial evidence such as intimate email and WhatsApp exchanges between a married person and a third party promising sexual intercourse may corroborate a claim of adultery.
Divorce — Grounds — Cruelty — Definition and Test
Cruelty is behaviour which causes physical or mental harm to a spouse and is judged by its effects rather than solely by the acts done. It includes conduct which produces actual or apprehended injury to physical or mental health, or renders the life of the spouse so miserable as to make it unreasonable to require continued cohabitation.
Matrimonial Property — Proof of Joint Contribution
A party claiming that property is matrimonial property bears the burden of proving both that the property exists and that they contributed to its acquisition. In the absence of a certificate of title and proof of contribution, land registered in one spouse's name alone will not be declared matrimonial property.
Child Custody — Joint Custody Principle
Sole custody should be exceptional and granted only where physical, sexual, or emotional abuse by one parent is established. Courts must recognize and promote joint parenting so that both parents can continue direct involvement in the child's life. Joint legal custody with physical custody to one parent is appropriate where the welfare of the child is paramount and no abuse is proved.
Child Maintenance — Shared Parental Responsibility
Both parents have equal responsibility towards the welfare of their children. Where one parent has physical custody and meets unscheduled costs attendant to the child's wellbeing, the court may order the other parent to contribute a specified percentage towards rent, food, school fees, medical expenses, and other needs based on their respective financial capacities.
Alimony — Proof of Financial Need
Alimony is not granted automatically but is intended to bridge the financial gap arising from divorce. The spouse claiming alimony must prove the attendant financial handicap. Where a spouse has been providing for herself and the children and has not proved financial incapacity, the court has no basis to grant alimony.

Legislation cited (20)

Cases cited (21)

  • Sengendo v Attorney General (1972) 1 EA 140
  • Mufumba Fredrick v Waako Lastone (Revision Cause No. 006 of 2011)
  • Uganda Association of Women Lawyers (FIDA) & 5 Others v Attorney General (Constitutional Petition No. 2 of 2003)
  • Specioza Wandera Kazibwe v Engineer Charles Nsubuga Kazibwe (Divorce Cause No. 3 of 2003)
  • Namuyimbwa Proscovia v David Ralph Pace (Divorce Cause No. 14 of 2017)
  • Lang v Lang [1954] 3 All ER 571
  • Kayhul v Kayhul (Divorce Cause No. 123 of 2016)
  • Mayambala V Mayambala High Court 1998
  • Dr Specioza Wandira Naigaga Kazibwe v Eng Charles Nsubuga Kazibwe (Divorce Cause No. 3 of 2003)
  • Veronica Habyarimana v Perfect Habyarimana [1980] HCB 139
  • Russell v Russell (1897) AC 395
  • Westmeath v Westmeath (1817) 2 Hagg Eccl Supp 1
  • Muwanga v Kintu (High Court Divorce Appeal No. 135 of 1997)
  • Julius Rwabinumi v Hope Bahimbisomwe (Supreme Court Civil Appeal No. 10 of 2009)
  • Sebuliba v Co-operative Bank Ltd [1982] HCB 129
  • Ddungu v Marc Widmer & Anor (Civil Appeal No. 38 of 2009) [2012] UGHC 253
  • Joyce Deborah Alitubera and in the matter of Richard Masaba (Court of Appeal Nos. 70 & 81 of 2011)
  • Rwabuhemba Tim Musinguzi v Harriet Kamakune (Civil Application No. 142 of 2009) [2009] UGCA 34
  • Otto Methodius Pacific v Edyline Sabrina Pacific (Court of Appeal Civil Appeal No. 88 of 2013)
  • CX v CY [2006] 4 LRC
  • Ayiko Mawa Solomon v Lekuru Annet Ayiko [2017] UGHCFD 1

Full judgment

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

Kyzyma v Okello (Divorce Cause 79 of 2022) [2023] UGHCFD 119 (28 July 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.