Wakilii

Lugwaro v Karema (Family Cause 67 of 2021)

High Court · [2024] UGHCFD 50 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Family cause petition heard exparte following respondent's failure to file affidavit in reply despite service
Decision
Petition granted with sole custody awarded to mother, maintenance orders made against father, property ordered to be sold with 60/40 division in favour of mother, and DNA test ordered

Observed later treatment

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Holding

Where a respondent fails to file an affidavit in reply despite service, the petitioner must still prove all facts alleged. The court granted the mother sole custody of four children aged 7 to 17 years where the father abandoned them for seven years, and ordered maintenance contributions from the father including 80% of school fees and 50% of accommodation and medical costs. The court ordered partition by sale of jointly owned property with the mother receiving 60% of proceeds (including 10% compensation for displacement) and the father 40%, and directed a DNA test at the father's expense to establish paternity of the youngest child.

Outcome

Petition granted with sole custody awarded to mother, maintenance orders made against father, property ordered to be sold with 60/40 division in favour of mother, and DNA test ordered

Facts

The petitioner and respondent cohabited and had four children aged 17, 16, 14 and 7 years. In 2016, while the petitioner was pregnant with their fourth child, the respondent abandoned her and their three sons. The parties jointly owned property at Block 263 Plot 939 in Ssenge, Wakiso District with a house constructed on it. During COVID-19 restrictions in 2020, the petitioner was unable to return home from her workplace at Naalya market. When restrictions lifted, she found the respondent in possession of the house and he denied her access. Local council mediation directed that both parties should have access, but the respondent continued to deny the petitioner access. The respondent also denied paternity of the youngest child, Karema Eliana Mercy. The respondent was served with the petition on 28 February 2023 after several attempts, but failed to file an affidavit in reply. The matter proceeded exparte.

Issues

  1. What is the legal implication of the respondent not filing an affidavit in reply?
  2. Whether it is in the best interest of the children that the petitioner be granted full custody and maintenance orders?
  3. What other remedies are available to the parties?

Orders

  • The petitioner is granted sole custody of the four children with visitation rights of once a month over the weekend to the respondent.
  • The petitioner shall pay for the food and clothing for the children.
  • The respondent shall contribute 50% towards the children's accommodation and medical care.
  • The respondent shall contribute 80% of the children's school fees and the petitioner shall contribute 20%.
  • The respondent shall cover the expenses of the children's school requirements.
  • Any other miscellaneous needs of the child shall be covered by the petitioner.
  • A DNA test shall be carried out on the respondent and the child Karema Mercy Eliana.
  • The respondent shall avail himself for sample collection at DGAL Wandegeya within seven days and results transmitted to court within one month.
  • The costs of the DNA test shall be borne by the respondent.
  • Where Eliana Mercy Karema is found not to be the respondent's child, all orders for maintenance and custody shall not apply regarding this child.
  • The property comprised in Block 263 Plot 939 Busiro, Mengo, land at Ssenge jointly owned by the parties shall be valued and severed by sale.
  • The petitioner is entitled to 60% of the proceeds of the sale and the respondent is entitled to 40%.
  • Costs are awarded to the petitioner.

Rules and key headnotes

Civil Procedure — Exparte Proceedings — Effect of Failure to Reply — Burden of Proof
Where a respondent fails to file an affidavit in reply despite proper service, the respondent is presumed to have conceded to the application, but the petitioner still has to prove all facts alleged as required by section 101 of the Evidence Act.
Family Law — Child Custody — Best Interests of the Child — Welfare Principle
The welfare of the child is the paramount consideration in determining custody, meaning a process whereby when all relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare, ruling upon or determining the course to be followed.
Family Law — Child Custody — Abandonment by Parent — Grounds for Sole Custody
Where a parent has wilfully abandoned children for seven years without providing any support, guidance or care, and the other parent has consistently provided for their needs and maintained a stable and nurturing environment, custody shall remain with the parent who has demonstrated ongoing commitment to the children's well-being, as it is in their best interests to continue living with that parent.
Family Law — Child Maintenance — Parental Duty — Apportionment of Responsibility
The responsibility for the financial care of children falls equally upon both parents regardless of custodial arrangements, and where one parent has single-handedly borne the financial burden, it is just that the other parent contributes to the ongoing needs of the children ensuring their welfare, education and overall development.
Land & Property — Joint Tenancy — Severance — Partition by Sale
A joint tenancy may be severed where the course of dealing between joint tenants leads to the inevitable conclusion that their interests are severed, and where one joint tenant denies the other access to jointly owned property, partition by sale may be ordered without requiring the consent of the joint tenant who has excluded the other from the property.
Land & Property — Partition by Sale — Division of Proceeds — Compensation for Displacement
Where one joint tenant has been deprived of access to jointly owned property and forced to bear the financial burden of paying rent elsewhere despite legal co-ownership, the court may adjust the equal division of sale proceeds to award compensation for rental payments and displacement to the excluded co-owner.
Family Law — Paternity — DNA Testing — Court-Ordered Test
Where a parent denies paternity of a child despite prima facie evidence such as a birth certificate, the court may order a DNA test to prove parentage at the expense of the parent denying paternity, with all custody and maintenance orders conditional upon the outcome of the test.

Legislation cited (11)

Cases cited (8)

  • Kaggwa Micheal v Olal Mark & 6 Others (Civil Appeal No. 0010 of 2017)
  • Namukasa Joweria v Kakondere Livingstone (Divorce Cause No. 30 of 2010)
  • Julius Chama v Specioza Rwalanda Mbabazi (Divorce Cause No. 25 of 2011)
  • Birungi Nicholas v Kakyo Pamela (HCCA No. 32 of 2022)
  • [2008] UGHCFD 1
  • J v C [1970] AC 668
  • Williams v Hensman (1861) 1 J & H 546
  • Zachary Olum v Bongomin Odora (Civil Appeal No. 120 of 2015)

Full judgment

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

Lugwaro v Karema (Family Cause 67 of 2021) [2024] UGHCFD 50 (26 August 2024)
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.