Nakalule v Kakooza (Civil Appeal No. 47 of 2008)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The High Court held that the Chief Magistrate erred in disregarding evidence regarding the suitability of the Wakiso house for the children and their mother, in finding no valid customary marriage existed between the parties, and in concluding that relocation to Wakiso served the children's best interests. The court emphasised that the welfare of children cannot be determined without regard to the comfort and wishes of their custodial mother, and that customary marriages are valid under Ugandan law. Appeal allowed; the appellant and her children were permitted to remain in the matrimonial home at Kawaala.
Outcome
Appellant and her children permitted to remain in the matrimonial home at Kawaala
Facts
The appellant and respondent were in a customary marriage under Kiganda customs, with bride price paid in May 1990. They had three children together. The respondent sought to relocate the appellant and children from the family home at Kawaala to a house in Wakiso. The trial magistrate granted this application, ordering the appellant and children to vacate Kawaala and move to Wakiso, with rent from the Kawaala property to fund the children's other needs. The Chief Magistrate's Court dismissed the first appeal, finding the appellant was not legally married to the respondent and had no right to dictate where the children should live. The appellant's evidence was that the Wakiso house was too far from her workplace at Owino Market, making transport unaffordable and inconvenient.
Issues
- Whether the learned Trial Magistrate erred in finding that the Respondent had a house in Wakiso without proper evaluation of evidence regarding its suitability
- Whether the learned Trial Magistrate erred in concluding that the Appellant was not legally married to the Respondent under customary law
- Whether the Chief Magistrate erred in disregarding the Appellant's evidence and failing to properly evaluate it
- Whether shifting the children and their mother to Wakiso was in the children's best interests
Orders
- Appeal allowed.
- All four grounds of appeal succeed.
- Judgment entered in favour of the Appellant.
- The Appellant and her children be allowed to remain in the matrimonial and family house at Kawaala.
- Costs awarded to the Appellant.
Rules and key headnotes
Legislation cited (11)
- Civil Procedure Act Cap 71 s.80
- Civil Procedure Act Cap 71 s.80(2)
- Customary Marriages (Registration) Act Cap 248 s.1(b)
- Children Act Cap 59 First Schedule
- Children Act Cap 59 s.3
- Children Act Cap 59 s.5
- Children Act Cap 59 s.6
- Judicature Act s.2(a)
- Judicature Act s.2(c)
- Judicature Act s.15(1)
- Constitution of Uganda Art 33
Cases cited (6)
- Henry Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)
- Bogere Moses & Another v Uganda (Criminal Appeal No. 1 of 1997)
- Banco Arab Espayol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
- Alai v Uganda [1967] E.A. 596
- Uganda v Peter Kato and 3 Others [1976] HCB 204
- Karanu v Karanu [1975] E.A. 18
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.