Wakilii

Sserunjogi & Another v Nkuubi (Originating Summons No. 07 of 2019)

High Court · [2019] UGHCFD 43 · 2019 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Originating summons by administrators of an estate seeking DNA test and related declarations arising from Administration Cause No. 149 of 2010
Decision
DNA test ordered to determine whether defendant is a beneficiary entitled under the will; if found not to be the deceased's child, the bequest to him will be void

Observed later treatment

No later-treatment classification is recorded for this judgment.

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.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that administrators of a deceased's estate have locus standi under Order 37 of the Civil Procedure Rules to bring an originating summons to ascertain the class of beneficiaries. Where a person is named in a will as the deceased's child but a third party claims paternity, and the administrators seek to fulfil their fiduciary duty, the court may order a DNA test to determine paternity. The presumption of legitimacy for children born in wedlock is rebuttable. DNA evidence is scientific proof of paternity. If the beneficiary is found not to be the deceased's child, the bequest is void as contrary to the testator's intention. Application granted; DNA test ordered.

Outcome

DNA test ordered to determine whether defendant is a beneficiary entitled under the will; if found not to be the deceased's child, the bequest to him will be void

Facts

The plaintiffs are administrators of the estate of the late John Sserunjogi Mukasa. The deceased's will bequeathed property to his children, including the defendant Tony Nkuubi, identified in the will as a child born to the deceased and Noelina Namaganda. After the plaintiffs obtained letters of administration and began distributing the estate, Mulindwa Yusuf approached the administrators and clan head claiming that the defendant was his son, not the deceased's. The plaintiffs requested the defendant to take a paternity test with Mulindwa Yusuf but the defendant refused without a court order. The plaintiffs brought this originating summons seeking an order for a DNA test and a declaration that the bequest to the defendant would be void if he is found not to be the deceased's child. The defendant opposed, asserting he was born to the deceased and Noelina and that the plaintiffs have no locus to challenge his paternity. Evidence showed the administrators had already registered the defendant as joint proprietor of property at Wattuba in accordance with the will.

Issues

  1. Whether the application by way of originating summons is properly before court under Order 37 of the Civil Procedure Rules.
  2. Whether the plaintiffs have locus standi to challenge the paternity of a beneficiary named in a will.
  3. Whether the court should order a DNA test to determine the paternity of a beneficiary named in a deceased's will.
  4. Whether a bequest to a person named as a child in a will is void if that person is subsequently found not to be the deceased's biological child.

Orders

  • Application granted.
  • A DNA/paternity test shall be carried out on the defendant and Yusuf Mulindwa.
  • The costs of this application shall be borne by the estate.

Rules and key headnotes

Originating Summons — Procedure for Determination of Questions Affecting Estate Administration
Administrators or executors may proceed by way of originating summons under Order 37 rule 1 of the Civil Procedure Rules to determine questions affecting the rights or interests of persons claiming to be legatees, including the ascertainment of the class of beneficiaries, without full administration of the estate.
Preliminary Objection — When It May Be Raised
A preliminary objection may be raised at any time before judgment but should be raised at the earliest point possible and should not be raised as an afterthought. A preliminary objection is a point of law that should be pleaded or arise by clear implication from the pleadings.
Administrators — Locus Standi to Challenge Paternity of Beneficiary
Administrators of an estate acting in their fiduciary capacity have locus standi to seek the guidance of court to determine whether a person named in a will as a child of the deceased is entitled to benefit from the estate, where the paternity of that person is called into question.
DNA Testing — Court's Discretion to Order Paternity Test
In exercising discretion to order a DNA test, the court must be satisfied that the application is made in good faith and is not designed to economically exploit, embarrass, or abuse the process of court. The court should balance the interests of the parties and consider whether DNA evidence is eminently needed for a just decision, and should not order such a test as a matter of routine.
Paternity — Presumption of Legitimacy and Rebuttal by DNA Evidence
Children born in wedlock are presumed to be legitimate, but this presumption is rebuttable. DNA test results constitute scientific proof of paternity and may be relied upon by the court to determine questions of paternity, particularly where administrators need to identify actual beneficiaries to perform their fiduciary duty.
Wills — Void Bequest Where Beneficiary Not a Child of Deceased
A bequest is void where it is made to a non-existent party. If a testator bequeathed property to a person in the belief that the person was his child, and it is subsequently established that the person is not his child, the bequest is void as contrary to the testator's intention.

Legislation cited (5)

Cases cited (11)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors [1969] EA 696
  • Major General David Tinyefunza v Attorney General (Constitutional Appeal No. 1 of 1999)
  • Kulsumbai Gulamhussein Jaffer Ramji & Another v Abdulhussein Jaffer Mohamed Rahim & Others [1957] 1 EA 699
  • In re Giles (1890), 43 Ch. D. 391
  • MW v KC Kakamega High Court Misc. Application No. 105 of 2004
  • Margaret Tumwine Tumushabe & 4 Others v Brian Asiimwe (Consolidated MA 125 and 132 of 2014)
  • Knowles v Knowles (1962) 1 All ER
  • Preston Jones v Preston Jones [1956] 1 All ER 124
  • MMM v ENW M.A No. 7 of 2016
  • BPs v CS Civil Appeal No. 6222 - 6223 of 2010
  • Administrator General v Teddy Bukirwa & Another (1992-1993) HCB 192

Full judgment

↓ Download PDF

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

Sserunjogi & Another v Nkuubi (Originating Summons No. 07 of 2019) [2019] UGHCFD 43 (18 September 2019)
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.