Wakilii

Mukwaya v Ssentamu and 7 Others (Civil Appeal No. 19 of 2021)

High Court · [2022] UGHCCD 5 · 2022 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal and cross-appeal from ruling of Rakai Chief Magistrate's Court ordering DNA testing in estate matter
Decision
Appeal and cross-appeal partly allowed; DNA relationship testing ordered for all alleged children at estate expense; exhumation order refused

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Holding

The High Court held that a beneficiary of an estate has locus to apply for DNA testing to protect the estate even without a grant of probate. Where a will refers ambiguously to 'siblings' without naming them, DNA relationship testing is appropriate to establish which alleged children are descendants of the deceased. Hearsay evidence regarding children being given to other men should not be relied upon absent direct testimony. The court ordered DNA relationship testing of all alleged children but declined to order exhumation, finding a relationship test sufficient to resolve ambiguity in the will.

Outcome

Appeal and cross-appeal partly allowed; DNA relationship testing ordered for all alleged children at estate expense; exhumation order refused

Facts

The late Nalaba Charles died testate, leaving three wives and nine children. One alleged son, Ssentamu Moses, applied in the Chief Magistrate's Court for DNA testing of himself and other alleged children, claiming some children's parentage was in doubt. The deceased's will referred to property being left to 'Muwanga and his young siblings' without naming the siblings. One respondent deposed that after the deceased's death in the 1980s, the deceased's partner gave some children to other men as theirs. The trial magistrate ordered DNA testing for the appellant only and ordered exhumation of the deceased's remains. Both the appellant and cross-appellant appealed, the appellant contending the cross-appellant had no standing and that hearsay was improperly relied upon, and the cross-appellant seeking DNA testing for all alleged children.

Issues

  1. Whether the cross-appellant had locus standi to apply for DNA testing to determine paternity of alleged children of the deceased.
  2. Whether DNA testing should be ordered for all alleged children of the deceased or only for the appellant.
  3. Whether the trial magistrate properly evaluated the evidence, including whether hearsay evidence was improperly relied upon.
  4. Whether an order for exhumation of the deceased's remains should be granted for DNA testing purposes.

Orders

  • Judgment and orders of the lower court set aside.
  • A DNA relationship test shall be conducted on all those presumed to be children of the late Nalaba Charles at the expense of the estate.
  • No order as to costs.

Rules and key headnotes

Standing to Apply for DNA Testing — Beneficiary's Right to Protect Estate
A beneficiary of an estate has locus standi to institute an action for the protection of the estate, including applying for DNA testing to determine paternity of alleged beneficiaries, whether or not the beneficiary holds a grant of probate.
Hearsay Evidence — Admissibility — Direct Knowledge Requirement
Where a witness deposes to information received from a third party who does not testify on oath, such evidence is hearsay and inadmissible under Evidence Act s.59, which requires oral evidence to be direct. Evidence is direct only where the witness testifies to facts within their own knowledge.
Wills — Ambiguity — Reference to Unnamed Siblings
Where a will bequeaths property to named beneficiaries and their 'siblings' without naming the siblings, this creates an ambiguity that can only be cured through DNA testing. Under Children Act s.71(7), express reference in a will to a person as a child is prima facie evidence of parentage only where the person is specifically named.
DNA Testing — Relationship Testing — Scope of Testing
Where an estate dispute centers on establishing which alleged children are related to each other and to a deceased person whose will ambiguously refers to unnamed 'siblings', a DNA relationship test of all alleged children is the appropriate means to resolve the issue without requiring exhumation of the deceased's remains.
Exhumation — Standard for Granting Order — Substantial Grounds Required
An order for exhumation of a deceased's remains for DNA testing purposes is granted only where substantial grounds are shown. Courts must respect the final resting place of the dead and grant exhumation orders cautiously. Where ambiguity in a will can be resolved through DNA relationship testing of living alleged children, this is not sufficiently substantial to warrant exhumation.
Grounds of Appeal — Drafting Requirements — Conciseness
Under Civil Procedure Rules Order 43 Rule 1(2), grounds of appeal must be set out concisely under distinct heads without argument or narrative. Repetitive, argumentative, or narrative grounds of appeal do not comply with this rule. Lawyers should draft grounds of appeal concisely and limit them to areas where a party has suffered a miscarriage of justice.

Legislation cited (6)

Cases cited (7)

  • Father Nanensio Begumisa and Others v Eric Tiberaga (SCCA No. 17 of 2000)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • Sserunjogi Charles and Another v Tony Nkuubii (OS No. 7 of 2019)
  • MW v KC (Kakamega Misc. Application No. 105 of 2004)
  • Elvaida Ndabahika v Adyeeri Hoe Florence (HCMA No. 69 of 2019)
  • Dougherty v. Mercantile Safe Deposit and Trust Company, 387 A.2d 244, 246-47 (Md. 1978)
  • Komakech Walter v Dr Okot Christopher (Civil Appeal No. 114 of 2018)

Full judgment

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

Mukwaya v Ssentamu and 7 Others (Civil Appeal No. 19 of 2021) [2022] UGHCCD 5 (19 January 2022)
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.