Wakilii

Nyakoojo and Others v Kasiita and Others (Originating Summons 64 of 2024)

High Court · [2025] UGHC 1146 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by originating summons seeking determination of validity of competing wills and entitlement to certificate of no objection from Administrator General
Decision
Application dismissed for procedural incompetence; parties at liberty to pursue claims by ordinary plaint

Observed later treatment

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Holding

The High Court dismissed an originating summons seeking determination of the validity of two competing wills and entitlement to a certificate of no objection from the Administrator General. The court held that the application was incompetent under Order 37 of the Civil Procedure Rules because the matters raised were highly contentious, involved disputed facts requiring viva voce evidence, and the applicants failed to attach the wills central to the dispute. The court ruled that such complex issues must be pursued by way of ordinary plaint rather than originating summons.

Outcome

Application dismissed for procedural incompetence; parties at liberty to pursue claims by ordinary plaint

Facts

The late Byenkya Selevano died testate on October 4, 2021, survived by 38 children and four widows. Two competing wills allegedly made by the deceased emerged: one dated August 4, 2020, and another dated October 15, 2020. The 1st to 6th Respondents initiated High Court Administration Cause No. 25 of 2022 for probate based on the October 15, 2020 will, but the petition was declined on procedural grounds. A family meeting organized by the CAO of Bunyangabu District on September 20, 2022, purportedly selected the First Applicant to administer the estate. The Applicants sought a Certificate of No Objection from the Administrator General based on the August 4, 2020 will, but the Administrator General refused due to the existence of two conflicting wills and advised the Applicants to obtain a High Court determination first. The Applicants also alleged that the 1st to 6th Respondents were intermeddling in the estate by collecting rental dues from a lodge property.

Issues

  1. Whether the application is competent under Order 37 of the Civil Procedure Rules.
  2. Whether the Applicants have made out a case for determining the validity of the purported wills.
  3. Whether the Applicants are entitled to a Certificate of No Objection and relief restraining the Respondents from intermeddling in the estate.

Orders

  • The Originating Summons is incompetent and the application is accordingly dismissed in its entirety.
  • No determination is made on the validity of the purported Wills, the entitlement to a Certificate of No Objection, or the alleged intermeddling by the Respondents.
  • The Applicants shall bear the costs of this application.

Rules and key headnotes

Civil Procedure — Originating Summons — Competence — Contentious Matters Requiring Viva Voce Evidence
An originating summons under Order 37 of the Civil Procedure Rules is appropriate only for straightforward, non-contentious matters that do not require oral evidence beyond affidavit evidence. Where complex issues are raised involving disputed facts that require viva voce evidence and cross-examination, the appropriate mode of institution is by way of ordinary plaint, and the originating summons must be dismissed as incompetent.
Succession & Estates — Wills — Validity — Requirement to Produce Documentary Evidence
Where an application seeks judicial determination of the validity of competing wills, the failure to attach the wills to the application is fatal to the claim. Without the wills, the court cannot examine whether the statutory requirements for validity under Section 47 of the Succession Act were met, whether a later will revoked an earlier will, or whether either will is legally valid.
Civil Procedure — Originating Summons — Scope of Order 37 — Questions Affecting Rights of Beneficiaries
Order 37 Rule 1 of the Civil Procedure Rules permits originating summons for determination of questions affecting the rights or interests of persons claiming to be creditors, devisees, legatees, heirs, or legal representatives, and for directing executors or administrators to do or abstain from doing particular acts. However, this procedure is limited to matters that can be fairly determined on affidavit evidence without prolonged inquiry into disputed facts.

Legislation cited (8)

Cases cited (6)

  • Janet Ntanya v Saida Sebbaduka and 2 Others (Miscellaneous Application No. 221 of 2011)
  • Estate of James Ngengi Muigai (deceased), Nairobi High Court Succession Cause No. 523/1996
  • Zalwango and Another v Walusimbi and Another (Originating Summons No. 3 of 2013)
  • Ssesanga Robert v Asaba Paul (High Court Miscellaneous Cause No. 4 of 2022)
  • Mugerwa Ahmed and 4 Others v Gemstone International Ltd and 4 Others (High Court Miscellaneous Cause No. 17 of 2018)
  • Wakf Commissioners vs. Mohamed [1984] KLR 346

Full judgment

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

Nyakoojo and Others v Kasiita and Others (Originating Summons 64 of 2024) [2025] UGHC 1146 (16 October 2025)
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.