The Excessive Court docket’s Household Division has outlawed the follow of males dispossessing their wives of matrimonial property by bestowing it to their sons of their Wills with out the partner’s authorisation.
Delivered on Friday, the judgment stems from a battle between Herbert Kolya and his grandmother Ekiriya Mawemuko Kolya over property present in Namirembe, Kampala, comprised in LRV 1338 folio 1 Kibuga block.
Herbert’s case is that his late grandfather, Israel Kokomeko Kolya, had given a portion of his land at Namirembe to his late father, Herbert Lukanga Kolya, whereupon he constructed a home they have been dwelling in on the time of his demise and different homes on the decrease a part of the mentioned plot for functions of producing rental earnings.
He additionally mentioned his late father had knowledgeable him that the mentioned land was bequeathed to him (Herbert Lukanga Kolya) by his late father Israel Kikomeko Kolya.
Apparently, after the demise of his father, Herbert mentioned his mom approached his grandmother Mawemuko and requested for a replica of the land title since they wished to place a second gate and a wall fence separating the 2 parts of the land however she refused to give up it, claiming that the late Israel Kikomeko Kolya’s home was her property.
This proof, Justice Godfrey Namundi, who presided over the case, mentioned was corroborated by the testimony of former Buganda Katikkiro Dan Muliika, who attested to the Will.
Mr Muliika confirmed that the late Israel Kikomeko Kolya executed a Will on January 2, 1997, and therein, he transferred his Namirembe property to his inheritor, Herbert Lukanga Kolya, the place he [Herbert Lukanga Kolya] had his private home.
In her protection, Ms Mawemuko, on oath, mentioned how she was married to Israel Kikomeko Kolya they usually had six kids by the point he died in 1997. She mentioned her husband had acquired the contested property previous to their marriage and that it had a small mud and wattle home.
Ms Mawemuko, who on the time was a midwife at Mengo hospital, mentioned collectively along with her husband, they constructed one other home and he or she participated in making bricks and setting up the constructing.
When her husband died, his Will was learn throughout his final funeral rights by Mr Muliika and therein the deceased had bequeathed the matrimonial property at Namirembe to Herbert Lukanga Kolya.
She insisted she didn’t agree with the Will as a result of her husband gave away the matrimonial dwelling, which she had contributed vastly to throughout building since Israel Kimomeko Kolya had inadequate funds again then.
Court docket findings
In his evaluation, Justice Namundi mentioned it’s crucial for the court docket to first decide whether or not the disputed property is a matrimonial property as claimed by Ms Mawemuko.
To settle this, the decide referenced two earlier judgments by Ugandan courts. The primary was by Excessive Court docket Decide Billy Kainamura within the case of Basheijja Vs Basheija and one other of 2013. He dominated that categorised property falls underneath 5 clusters and held that the house of the couple, no matter when it got here into existence, quantities to matrimonial property.
The second case referred to by Justice Namundi is the divorce case of Kagga Vs Kagga, the place Justice Eldad Mwanguya, then of the Excessive Court docket, noticed: “Our courts have established a precept which recognises every partner’s contribution to the acquisition of property and this contribution could also be direct, the place the contribution is financial or oblique, the place a partner gives home companies.
When distributing the property of a divorced couple, it’s immaterial that one of many spouses was not financially endowed as the opposite as this case clearly confirmed that whereas the primary respondent was that monetary muscle behind all of the wealth they acquired, the contribution of the petitioner isn’t any much less essential than that made by the respondent.”
With that, and having factored within the proof on-court file, Justice Namundi got here to the conclusion that the contested home in Namirembe was matrimonial property.
Quick ahead, Justice Namundi seemed into Israel Kikomeko Kolya’s Will and therein he acknowledged: “My land and principal house is talked about above at Namirembe, I give it to my inheritor, however my spouse has to remain there till she dies or except when she remarries then the inheritor is free to personal the entire property.”
His view, the assertion above, the deceased exalted the inheritor above the widow, Justice Namundi noticed.
“A cultural follow that the place the inheritor inherits matrimonial dwelling denying [ the] widow’s proprietary rights is discriminatory in nature, “Justice Namundi dominated. “In accordance with Article 32 (2) of the Structure, customs, cultures and traditions which are towards the dignity, curiosity or welfare of girls are prohibited.”
He added: “For the reason that Will purportedly made by the late Israel Kikomeko Kolya is flawed, court docket takes it that the deceased died intestate.”
Herbert’s declare that it was unlawful for his grandmother to acquire letters of administration with out attaching the Will was additionally dismissed. Underneath Part 25 of the Succession Act cap 162, the decide dominated, all of the property in an intestate devolves upon the non-public consultant of the deceased upon the belief of these individuals entitled to the property underneath this Act.
“The defendant being [a] widow (surviving partner), she was essentially the most acceptable individual to use for letters of administration,” Justice Namundi dominated and dismissed Herbert’s case with prices.