Wakilii

Namukasa v Kakondere (Divorce Cause 30 of 2010)

High Court · [2015] UGHCFD 211 · 2015 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance petition for dissolution of customary marriage and ancillary relief
Decision
Customary marriage dissolved by decree nisi; custody of four children granted to petitioner; matrimonial property divided with petitioner receiving three properties absolutely and one jointly with children; respondent ordered to pay monthly maintenance of Shs. 500,000; permanent injunction issued restricting respondent's contact with petitioner and children for eighteen months.

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Holding

Court held that a valid customary marriage subsists where bride price has been paid according to custom, notwithstanding religious differences. Customary marriages can be dissolved under the Divorce Act following the Supreme Court decision in Mifumi outlawing return of bride price. Where a spouse proves cruelty through violence, desertion, and threats to life, matrimonial offences are established. Matrimonial property acquired during marriage is jointly owned regardless of whose name the property is registered in, and both direct financial contributions and indirect domestic contributions are recognized. Court granted custody to the mother, dissolved the marriage, divided matrimonial property, and issued a permanent injunction protecting the petitioner and children from contact with the respondent.

Outcome

Customary marriage dissolved by decree nisi; custody of four children granted to petitioner; matrimonial property divided with petitioner receiving three properties absolutely and one jointly with children; respondent ordered to pay monthly maintenance of Shs. 500,000; permanent injunction issued restricting respondent's contact with petitioner and children for eighteen months.

Facts

The petitioner and respondent married under custom on 20 August 1999 at Rwashamire Trading Centre in Ntungamo District after the respondent paid bride price of Shs. 200,000 and three cows to the petitioner's family. Four children aged between 13 and 17 years were born of the marriage. During the marriage, the parties jointly acquired several properties in Rwashamire, Rukungiri, and Kampala from the proceeds of businesses they ran together including wholesale retail shops and car sales. The petitioner complained of persistent physical and psychological abuse throughout the marriage. On 30 June 2010, the respondent hacked the petitioner with a panga causing serious injuries. He was subsequently charged, tried, and convicted at Buganda Road Court for causing grievous harm and threatening violence. The respondent thereafter deserted the matrimonial home, removed merchandise from the petitioner's shop in Ntinda, and continued to threaten her life. Since 2010, the petitioner has been solely responsible for the children's upkeep and education. The respondent filed a cross-petition denying the marriage and claiming he was better suited to have custody, but failed to appear at the hearing despite proper service.

Issues

  1. Whether there is a valid customary marriage between the petitioner and the respondent?
  2. Whether the respondent committed a matrimonial offence?
  3. Whether the petitioner is entitled to the custody of the children and if yes what is the reasonable contribution the respondent should make?
  4. Whether the parties have matrimonial property and if yes, whether the petitioner is entitled to a share in the matrimonial property?
  5. What remedies are available to the parties?

Orders

  • A decree nisi is granted dissolving the marriage between the petitioner and respondent.
  • Custody of the children is granted to the petitioner.
  • The petitioner shall take absolutely the houses in Nateete and Rwashamire Trading Center both which shall be registered in her name.
  • The petitioner shall own jointly with the children of the marriage the property in Kiwatule.
  • The petitioner is in addition granted the land at Nyakibanga Cell 1, Kakiika Parish, and Bwongera purchased from F. Mugondo in 2004.
  • The petitioner shall retain the two properties at Nyakibanga, Kakiika Parish that she purchased herself.
  • The respondent retains and owns all the other properties raised in evidence whether purchased jointly with the petitioner or on his own.
  • The petitioner is to utilize the rent collected from the two properties at Nateete and Kiwatule to cater for the needs of the children for as long as they remain in school.
  • The respondent shall make a contribution of Shs. 500,000 per month to assist the petitioner maintain the four children until the youngest has completed their formal tertiary education.
  • The petitioner shall hand over to the respondent all the original agreements of purchase for those properties granted to him within 14 days of this judgment.
  • The respondent is directed to hand over to the petitioner all the goods that were taken from the shop in Ntinda.
  • A permanent injunction is issued restricting the respondent from accessing any of the properties given to the petitioner, or having any contact with the petitioner or the children of the marriage until as hereafter ordered.
  • The respondent is restricted from collecting rent from the properties at Kiwatule and Nateete with effect from the date of this Judgment.
  • The order restricting contact with the children shall remain in force for eighteen months from the date of this judgment.
  • After eighteen months, the respondent may apply for access to the children only after evaluation by a Probation and Social Welfare Officer.
  • The respondent permits the petitioner with protection of the police to collect her personal belongings remaining in the family's residential house in Ntungamo and/or in the custody of the respondent.
  • Costs of the petition are granted to the petitioner.

Rules and key headnotes

Customary Marriage — Validity — Proof by Payment of Bride Price
A valid customary marriage is established where the prospective husband and his family pay bride price to the bride's family and a ceremony is held according to the customs of an African community. Payment of the full bride price requested by the bride's family is proof that a customary marriage has been celebrated. There is no restriction under the Customary Marriages Registration Act against Muslims or persons professing any religion contracting a customary marriage; what is required is that the couple celebrate the marriage according to the culture and norms of any indigenous tribe of Uganda.
Customary Marriage — Dissolution — Applicability of the Divorce Act
Following the Supreme Court decision in Mifumi (U) Limited v Attorney General outlawing the practice of return of bride price as demeaning to the dignity of women and incompatible with the Constitution, the ground known in custom for ending a customary marriage has been eliminated. Since the Customary Marriages Registration Act makes no provision for dissolution of customary marriages and the Divorce Act does not exclude customary marriages from its application, customary marriages can be dissolved under the Divorce Act.
Divorce — Grounds — Cruelty — Standard of Proof
Cruelty as a ground for divorce requires conduct that has the effect of producing actual or apprehended injury to the petitioner's physical and mental health. There must be danger to life, limb, or health, bodily or mental, or reasonable apprehension of it. Cruelty is established where a spouse inflicts persistent physical violence including battery during pregnancy causing miscarriage, hacking with a panga causing grievous harm, making threats to kill, and hiring persons to kill the other spouse.
Equality — Divorce Grounds — Gender Discrimination
Following the Constitutional Court decision in Uganda Association of Women Lawyers v Attorney General (FIDA case), the provisions of Section 4 of the Divorce Act are unconstitutional insofar as they required women to prove many grounds for divorce as opposed to men who were required to prove only one. All the grounds of divorce mentioned in Section 4(1) and Section 4(2) are now equally available to both parties to a marriage.
Custody — Welfare Principle — Best Interests of the Child
In determining custody, the paramount consideration is the welfare and best interests of the child, taking into account all circumstances affecting the well-being and upbringing of the child. The court must do what a wise parent acting in the best interest of the child ought to do. Custody of children of tender age and young adolescents is ordinarily granted to the mother where she has shown the capacity to care for them and the father has demonstrated cruelty, violence, and unwillingness to provide for the children.
Matrimonial Property — Division — Recognition of Non-Monetary Contributions
Matrimonial property includes property acquired jointly or individually by spouses during the marriage from the proceeds of businesses or activities to which both expended time and effort. In dividing matrimonial property, it is immaterial that one spouse was not financially endowed as the other. The unmonetized contribution of a spouse who offers domestic services and actively participates in acquiring and maintaining properties is recognized as a tangible contribution to matrimonial wealth. Property solely acquired and paid for by one spouse during the marriage is jointly owned, and the other spouse acquires a spousal interest in it.
Burden of Proof — Failure to Cross-Examine — Adverse Inference
Where a party declines to avail himself of the opportunity to cross-examine a witness on essential and material aspects of the case, it follows that the party believed the testimony could not be disputed. Failure to rebut serious allegations through cross-examination or by adducing contrary evidence supports the inference that the allegations are true.

Legislation cited (8)

Cases cited (17)

  • Alai v Uganda [1967] EA 596
  • Aggrey Awori v Rosette Tagire (Civil Suit No. 178 of 2000)
  • Uganda v Olinga and Another [1974] HCB 87
  • Mifumi (U) Limited and 12 Others v Attorney General and Another (Constitutional Petition No. 12 of 2007)
  • Nemezio Ayiiya Pet v Sabina Onzia Ayiiya (Divorce Petition No. 8 of 1973)
  • John Kintu Muwanga v Myllious Gafabusa Kintu (Divorce Appeal No. 135 of 1997)
  • Uganda Association of Women Lawyers and Others v Attorney General (Constitutional Petition No. 2 of 2003)
  • Masiko Gershom v Masiko Florence (Divorce Cause No. 8 of 2011)
  • Habyarimana v Habyarimana [1980] HCB 139
  • Habre International Co. Ltd v Ebrahim Alakaria Kassam and Others (Civil Appeal No. 4 of 1999)
  • In the Matter of Ali Issa and F. Yusuf (Miscellaneous Application No. 904 of 1999)
  • Pulkeria Nakagwa v Dominiko Kiggundu [1978] HCB 310
  • Samwiri Massa v Rose Achen [1978] HCB 297
  • In the Matter of Ayla Mayanja (Miscellaneous Application No. 20 of 2003)
  • Rwabinumi v Bahimbisomwe (Civil Appeal No. 10 of 2009)
  • Muwanga v Kintu (Civil Appeal No. 135 of 1997)
  • Kagga v Kagga (Divorce Cause No. 11 of 2005)

Full judgment

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Namukasa v Kakondere (Divorce Cause 30 of 2010) [2015] UGHCFD 211 (10 April 2015)
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.