Wakilii

Ssajabbi v Nabatanzi (Miscellaneous Cause 1 of 2020)

High Court · [2022] UGHCFD 35 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion seeking eviction order to enforce terms of a will
Decision
Application allowed. Respondent ordered to vacate first kibanja and move to second kibanja. First kibanja declared family home for all children and grandchildren under administrator's management.

Observed later treatment

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Holding

Court held that the deceased's will clearly directed the widow to reside on the second kibanja (usufruct piece of land) bequeathed to her biological children, not the first kibanja which was ancestral ground for all children and grandchildren. Preliminary objections that the matter was contentious, premature, or that the applicant lacked standing were all dismissed. Administrator's duty includes enforcing testamentary wishes. Respondent ordered to vacate first kibanja and move to second kibanja within sixty days.

Outcome

Application allowed. Respondent ordered to vacate first kibanja and move to second kibanja. First kibanja declared family home for all children and grandchildren under administrator's management.

Facts

The deceased Yowaana Bukenya died testate leaving two usufruct pieces of land at Kanyike. The applicant, his son and administrator of the estate, brought an application against the respondent (the widow and applicant's stepmother) to enforce the terms of the will. The will described the first kibanja as ancestral ground with a main house and servant's quarters, and stated both kibanja should benefit all children and grandchildren with no individual ownership. The will specifically bequeathed the second kibanja to the deceased's seven biological children (the respondent's children) and stated the widow should remain on the second kibanja taking care of the children but without ownership rights. Before death, the deceased built a house on the second kibanja. The respondent remained on the first kibanja where she had lived with the deceased and refused to move to the second kibanja despite efforts by the applicant including meetings with local authorities.

Issues

  1. Whether the respondent is entitled to stay on the 1st kibanja
  2. Whether the application was contentious in nature and could be brought by affidavit evidence
  3. Whether the application was prematurely brought before the court for lack of consensus as required by the will
  4. Whether the applicant as administrator lacked locus standi to bring the application in his individual capacity
  5. What remedies are available

Orders

  • The respondent Cate Nabatanzi shall vacate the home on the 1st kibanja within sixty days from the date of this Order and in any case not later than 1st June 2022.
  • The respondent together with her biological sons and daughters shall move to the home in the second kibanja which was bequeathed to them by the deceased.
  • The home on the first kibanja does not belong to the late Magadalene Balyowere as claimed by the applicant. It shall remain a family home for Yowaana Bukenya for the benefit of all his children and grandchildren as per the wishes of the deceased under the management of the Administrator.
  • The applicant shall take care of the home on the 2nd kibanja, respondent and his brothers and sisters borne by the respondent as instructed by the deceased in the will.
  • Each party shall bear its own costs.

Rules and key headnotes

Wills — Interpretation — Administrator's Duty to Execute Testator's Wishes
It is the paramount duty of an executor or administrator to execute the wishes of the deceased as expressed in a will.
Wills — Interpretation — Clear Testamentary Intent Must Be Respected
Where a testator clearly expresses wishes in a will regarding the occupation and use of property, those wishes must be respected by all beneficiaries and enforced by the administrator, even where family members disagree.
Administration of Estates — Locus Standi of Administrator
An administrator of an estate has locus standi to bring proceedings to enforce the terms of a will and execute the wishes of the deceased, acting in that capacity rather than in a personal capacity.
Preliminary Objections — Matter Not Contentious Where Requiring Interpretation of Will
A matter concerning interpretation of provisions in a will is not contentious and does not require a host of oral evidence where the issue is to ascertain and give effect to the clear wishes of the testator expressed in the testamentary document.
Wills — Consensus Requirement — Application Not Premature Where Consensus Unattainable
Where a will contemplates consensus among family members but such consensus cannot be achieved despite reasonable efforts including mediation and meetings with local authorities, an application to court for interpretation and enforcement is not premature.

Legislation cited (2)

Cases cited (2)

  • Zalwango Elvason and another v Dorothy Walusimbi and another (Originating Summons No. 03 of 2013)
  • Kulusumbai v Abdul Hussein (1975) EA 708

Full judgment

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

Ssajabbi v Nabatanzi (Miscellaneous Cause 1 of 2020) [2022] UGHCFD 35 (1 April 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.