Mumbere and 3 Others v Masika (Civil Suit 53 of 2022)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The court held that a surviving spouse who was lawfully married under church marriage is entitled to a share in the deceased's intestate estate even if separated at the time of death, where the separation was not permanent and did not result from the spouse voluntarily abandoning the household. Section 30 of the Succession Act, which purports to disentitle a separated spouse, is inconsistent with Article 26 of the Constitution regarding deprivation of property without compensation. The defendant was declared a beneficiary entitled to claim from the estate.

Outcome

Defendant declared a beneficiary of the deceased's estate with entitlement to claim therefrom; DNA test ordered to determine paternity of defendant's child

Facts

The deceased, Mbusa Augustine Bihuku, died intestate on 17 September 2021, leaving four adult children (the plaintiffs) from previous relationships and properties including customary land and a lock-up shop. The defendant claimed to be the deceased's lawful wife based on a church marriage on 24 December 2005, asserting entitlement to the estate. The plaintiffs denied her beneficiary status and took possession of the estate properties. The defendant produced a copy of the marriage certificate from the parish and alleged the plaintiffs withheld the original. Evidence showed the defendant lived with the deceased from 2005 until March 2021 when family members chased her from the matrimonial home while she was caring for the deceased during his illness. The deceased's in-laws sent a reconciliation letter dated 30 April 2021. The defendant also claimed to have a child with the deceased, which the plaintiffs disputed.

Issues

1. Whether the defendant is a beneficiary of the estate of the late Mbusa Augustine Bihuku who died intestate on 17/09/2021.
2. What remedies are available to the parties?

Orders

• Declaration that the defendant is a beneficiary of the estate of the late Mbusa Augustine Bihuku and has an interest to claim therefrom.
• The child that the defendant asserts belongs to the late Mbusa Augustine Bihuku shall be subjected to a DNA test to prove paternity within 30 days from delivery of judgment at the cost of the defendant.
• Should the DNA test results prove that the said child belonged to the late Mbusa Augustine Bihuku, the said child shall be a beneficiary of the estate.
• Each party to bear their own costs.

Rules and key headnotes

Legislation cited (6)

• Succession Act s.27
• Succession Act s.30
• Evidence Act Cap 6 s.101
• Evidence Act Cap 6 s.102
• Evidence Act Cap 6 s.103
• Constitution of the Republic of Uganda Article 26

Cases cited (3)

• Elizabeth Nalumansi Wamala v Jolly Kasande and 3 Others (Supreme Court Civil Appeal No. 10 of 2015)
• Samuel Kabagambe Ntungwa and 3 Others v Florence Kekibuga Ntungwa (Civil Suit No. 46 of 2021)
• In re Estate of John Kihara Njau alias Kihara John (Deceased) [2021] Eklr

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Namatovu & 2 Others v Nabukera & Another (Civil Suit 156 of 2023)

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