Wakilii

Tushemerirwe v Kyezi (Divorce Cause 4 of 2021)

High Court · [2023] UGHC 279 · 2023 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Divorce petition filed by wife in High Court Family Division on grounds of cruelty and desertion following customary marriage
Decision
Customary marriage dissolved by decree nisi. Matrimonial property divided with wife allocated Kasese properties and husband allocated Ibanda property. Wife granted custody of minor children with maintenance orders against husband. Permanent injunction and restraining orders issued protecting wife's property rights.

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 a valid customary marriage existed and was irretrievably broken down through cruelty and desertion. Divorce granted by decree nisi. Properties jointly acquired through direct and indirect contributions during the marriage constituted matrimonial property and were to be shared equitably. Wife awarded exclusive custody of minor children and allocated the Kasese properties; husband allocated the Ibanda properties. Permanent injunction issued restraining husband from interfering with wife's allocated properties.

Outcome

Customary marriage dissolved by decree nisi. Matrimonial property divided with wife allocated Kasese properties and husband allocated Ibanda property. Wife granted custody of minor children with maintenance orders against husband. Permanent injunction and restraining orders issued protecting wife's property rights.

Facts

The parties married customarily in 1995 and had five children (three adults, two minors). They initially lived in Lyantonde, later moved to Kasese and Kyampagara village in Kazo district where they established a family home and farm. In 2016 disagreements arose when the husband attempted to relocate the wife and children to the village to sell the Kasese property. The wife objected. From 2017 the husband physically assaulted the wife, closed her business in Kasese, married other wives, and moved to Ishongororo where he operated a bar and lodge, abandoning the wife and children in Kasese. The husband stopped paying school fees and maintenance and threatened to evict the wife from the Kasese houses. The wife reported assaults to local authorities and family reconciliation efforts failed.

Issues

  1. Whether divorce can be granted in this cause.
  2. Whether there are matrimonial properties or not.
  3. Whether the custody of minor children should be granted to the Petitioner.
  4. What remedies are available to the parties.

Orders

  • A decree nisi is issued dissolving the customary marriage between the Petitioner and the Respondent on grounds of cruelty and desertion.
  • The Petitioner is granted custody of the two minor children (aged 16 and 6 years), with the Respondent having visitation rights upon sufficient notice to the Petitioner.
  • The Respondent shall contribute towards the maintenance of the children including school fees, clothing, medical care and feeding.
  • The Petitioner shall take the properties at Kasese and the Respondent shall take the property at Ibanda.
  • The Petitioner and her children shall be given access to the family home and plantations at Kyampagara, Kazo district.
  • A permanent injunction is issued restraining the Respondent from accessing any of the two properties in Kasese town.
  • The Respondent is restrained from collecting rent from the Kasese commercial property with effect from delivery of this judgment.
  • A restraining order issues against the Respondent and his agents from selling the Petitioner's properties in Kasese.
  • No order as to costs.

Rules and key headnotes

Family Law — Customary Marriage — Validity — Requirements — Evidence
A customary marriage is valid if celebrated according to the rites of an African community as defined by Customary Marriages Registration Act Cap 248 s.1. Registration is not a requirement for validity. Where a respondent fails to cross-examine a petitioner on the existence of the customary marriage and admits the marriage when cross-examined, the marriage is accepted as valid.
Family Law — Divorce — Grounds — Cruelty — Test
For conduct to amount to cruelty within a matrimonial setting, it must be conduct of such character as to have caused danger to life, limb or health or as to give rise to a reasonable apprehension of such danger. The effect of the conduct rather than its nature is of paramount importance. The entire matrimonial relationship must be considered, including physical and mental condition of parties, their social status, and the impact of one spouse's conduct on the mind of the other.
Family Law — Divorce — Grounds — Mental Cruelty — Psychological Torture
Mental cruelty can be established by inference from cumulative circumstances of the case drawn from the parties' matrimonial life. Living in fear of the imminent sale of properties from which one derives sustenance constitutes psychological torture amounting to cruelty, even where no physical injuries are visible.
Family Law — Divorce — Grounds — Desertion — Elements
To establish desertion two things must be proved: first the factum of desertion (the outward and visible conduct of leaving the matrimonial home) and secondly the animus deserendi (the intention to bring the matrimonial union to an end). Desertion under Divorce Act Cap 249 s.4 requires the desertion to be for two years or more.
Family Law — Matrimonial Property — Definition — Joint Contribution
Matrimonial property is property which the parties chose to call home and which they jointly contributed to. Contribution may be direct and monetary or indirect and non-monetary. Indirect non-monetary contributions include domestic work, preparation of food, purchase of children's clothing, organising children for school, managing farms and businesses, and generally enhancing the welfare of the family. Such contributions entitle a spouse to a share in jointly acquired property.
Family Law — Matrimonial Property — Division — Equality and Justice Principles
Courts must ensure that men and women are treated in accordance with principles of equality and justice during and after dissolution of marriage under Constitution of Uganda 1995 Article 33(1). The proportion of property to which a spouse is entitled depends on his or her contribution towards the matrimonial property. Equality does not give automatic half share regardless of whether it was earned.
Family Law — Child Custody — Welfare Principle — Best Interests of the Child
Under Constitution of Uganda 1995 Article 31(4) and (5) and Children Act Cap 59 s.29, the welfare principle and children's rights are the guiding principles in any decision concerning children. A parent can only be denied the right to care for and raise children when it is clear and has been determined by a competent authority that it is in the best interest of the child that the child be separated from the parent. The welfare of the child should be looked at in the widest possible sense.

Legislation cited (10)

Cases cited (18)

  • Uganda Revenue Authority v Stephen Mabosi (Supreme Court Civil Appeal No. 26 of 1995)
  • Namukasa Joweria v Kakondere Livingstone (Divorce Cause No. 30 of 2010)
  • Rebecca Nagidde v Charles Steven Mwasa (Court of Appeal Civil Appeal No. 160 of 2018)
  • Uganda Association of Women Lawyers and 5 Others v Attorney General (Constitutional Petition No. 2 of 2002)
  • Veronica Habyarimana vs. Perfect Habyarimana [1980] HCB 139
  • Kasasa v Kasasa (Divorce Cause No. 13 of 1976)
  • Russel vs. Russel [(1897) AC 395]
  • Gakwavu vs. Mariana Gasengayire [1977] HCB 322
  • Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73
  • Lang V Lang (1954) 3 ALL ER 571
  • Habre International Co. Ltd v Ebrahim Alakaria Kassam and Others (Supreme Court Civil Appeal No. 4 of 1999)
  • Kagga v Kagga (Divorce Cause No. 11 of 2005)
  • Rwabinumi v Bahimbisomwe (Court of Appeal Civil Appeal No. 10 of 2009)
  • Muwanga v Kintu (Divorce Appeal No. 135 of 1997)
  • Kivuitu v. Kivuitu, (1990-1994) E.A. 270
  • Rwabuhemba Tim Musinguzi v Harriet Kamakume (Court of Appeal Civil Application No. 142 of 2009)
  • Sarah Kiyemba v Robert Batte (Divorce Cause No. 127 of 2018)
  • Re M (Supreme Court Civil Appeal No. 22 of 1994)

Full judgment

↓ Download PDF

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

Tushemerirwe v Kyezi (Divorce Cause 4 of 2021) [2023] UGHC 279 (20 April 2023)
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.