FAMILY

A family is capable of different defines depending on the context. A family may be

looked at as a basic society unit constituted by at least of two people (husband and wife)
whose relationship may fall with in blood relation that is to say Marriage for members of
a household or children. This definition is in consonance with Bromely’s family law 5 th
Edition at page 1. However, the husband and wife can be considered as a family even
before they get children or after their children have left home to establish their own
families. In some cases too, wife and husband or blood relatives for example Brothers,
sisters can form a family. There is need to distinguish between an English and African
family. English family is a nuclear consisting of husband, wife and children below
18years. The African family is an extended one, which cannot only consists of members
of a nuclear family but also other blood relatives or marriage or friendship.

FUNCTIONS AND RIGHTS OF A FAMILY

There are many rights and duties which crop out from a marriage relationship. For the
purpose of this course, we shall consider the following.

1. Contracting and annulment of marriage and the legal consequences.

2. Legal consequences of the break down of marriage in the event of separation or

divorce.

3. Properties and financial provisions. Here we consider those rights in property,

which are created and affected by membership of a particular family. It is too
important to consider the concept of marriage at length because not only does a
relationship of a husband and wife arise from it but also the legitimacy of children
which parents determines their legal relationship which in most cases depends on
whether their parents were married or not.

FUNCTIONS OF A FAMILY

A family has a protection role or function. This applies to vulnerable members of the
family example Children and wife. A family has a function of resolving disputes,
property adjustments and division especially in cases of divorce or death.

RIGHTS OF A FAMILY.

A family is protected under a constitution, for Uganda’s case Article 31 of the 1995
constitution protects all Ugandan families. Under this Article, courts protect family,
rights of marriage of persons of 18years and above. It also acknowledges equal rights
during the marriage and at dissolution of marriage. The Article further recognizes
parental rights over their children rights of inheritance.

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Read CORBET VS CORBET (1970) 2 ALL ER Page 33. The parties had entered into
a marriage. The petitioner knew that a respondent had been registered at Birth as female
sex and in 1960 undergone a sex- change operation consisting in removal of e testicles
and the scrotum to enable the formation of an artificial vagina in front of the anus. And
respondent had since then lived as a woman. 14 days later and petitioner filed for a
declaration that a marriage was null and void because and respondent was a person of a
male sex.

HELD: Marriage being essentially a relationship between a man and woman and validly
of the marriage depended on whether a respondent was or was not a
woman and the respondent being a biological male from birth, the so called marriage
was void.

DOMICILE
Domicile means habitation in a place with the intention of remaining there forever unless
some circumstances occur to alter the intention. It is also means a person’s legal home.
And it is indicated to mean that place where a man has his true fixed and permanent
home and principle establishment and to which whenever he is absent he has the intention
of returning to it. See Black’s law dictionary 6 th Edition at page 484. This definition of
domicile (lex domicilii) is here in concord with the one given in the case of FOX VS
STRIK 91970) 3 ALLER 7 meaning that it is settled law that “one has to dwell
permanently or for a considerable time to have one’s settled usual abode to live in a
particular place.”
Domicile differs from nationality which is acquired by operation of a law which it also
differs from were residence in a country without intention to stay there and one can be a
resident of more than one country but one can only have one domicile. Domicile is
important in determining a validity of a given marriage. This usually comes up when
looking at essential requirements to a marriage contract. It is also important in
determining a mutual rights which obligations and property arising from a marriage for
example It is important in determining a jurisdiction of court in annulment or divorce
proceedings and for parties wishing to marry must have their marriage bans announced
and published in the parish in which each of them resides. The meaning of domicile is
discussed by Lord Denning in the case of FOX VS STIRK (1970) 3 ALLER 7 as noted
above. There are 3 types of domicile.

1. Domicile of origin: This is acquired by birth. Therefore, children born in a

legally recognized marriage acquire a father’s domicile but if a child is
illegitimate, they acquire a domicile of the mother.

2. Dependant Domicile: This is acquired by children a married woman married

women acquired their husband’s domicile. However, if the children attain the age
of majority, they may change their domicile.
It must be noted that at common level a domicile of a legitimate child follows
that of his or her father and those of an illegitimate child follows that of his or her
mother. Read HENDERSON VS HENDERSON (1965) 1 ALLER 171

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On the other hand for a child whose parents are living apart they continue to retain the
domicile of their father. In case of the father dies, the children’s domicile automatically
changes to the one of their mother this is held in the case of PORTINGER VS
WIGHTMAN (1817) 3 ALLER 67.

3. Domicile of choice: This can be acquired if some one becomes of age of 16

this can only be done “animo et facto” meaning that such a person must assume
residence in the country in question and there are 2 essential requirements one
must satisfy before he or she is said to have acquired these domicile.
i). You must have the intention to stay in a place permanently.
ii) One must prove some “overt Act” to demonstrate this intention. See
Bromely’s family law at page 11

Read THORNIHILL VS THORNHILL (1965) EA 268.

Also DROOGENBROECH VS COOLEN A GIBBONS (1992) 4 KALR 18
In this case the husband petitioned for a divorce on ground of adultery. The marriage
was solemnized in Belgium. The petitioner had been resident for 2 ½years acquired 2
properties, which stated that he intended to permanently reside in Uganda while on a
business trip, the wife shared a master bed with the co-respondent. This was testified by
a house girl when the petitioner found the respondent a co-respondent in his house seeing
Television and asked what was going on, the respondent broke down crying and admitted
to having an affair with a co-respondent. Court held that the petitioner failed to prove
that he had acquired a domicile of choice in Uganda thus court lacks jurisdiction to
make the decree unless the petitioner was domiciled in Uganda.
34 (2) acquire - mis represents. This is case law with help in determining marriage.

Domicile for married woman at common law level automatically she acquires her
husband’s domicile on marriage and it is retained throughout her curvature. Read
HARVELY VS FARNIE (1882) 8 AC.43. However, this will not occur if the marriage
was void but it was avoidable the wife retains her husband’s domicile until the marriage
is nullified. Read RENEVILLE VS RENEVILLE (1948) 1 ALLER 56 or
,, ,, (1948) AC. 100

PROMISES TO MARRY.

Promises to marry refer to engagement at some future dates. The legal position is that
these promises can be enforced under certain circumstances. They do not have to be in
writing but they can be inferred from the conduct of parties. The plaintiff’s evidence must
be collaborated by letters, engagement rings, evidence of 3rd parties, birth of a child and
introduction ceremony or part payment of bribe price. At common law, promise to marry
amounts to contracts provided that there was an intention to enter into legal relationships

3
because of their being highly, personal and commercial nature they possessed certain
peculiar characteristics but as a general rule, they were governed by the general principle
of the law of contract. Consequently, if either parties withdraw from the contract without
lawful justification, the other party could sue for breach of contract.

In a case of WOODMAN VS WOODMAN (1891) 2 QB 534, evidence relied on in this

case was 3 letters of a plaintiff, a ring plus sex they had had in a hotel in addition to 100
pounds defendant had sent to her.
The promise may not be enforceable if it’s against public policy. However, there are
exceptions to this role.

1. The law will be not hold if a plaintiff did not know that a defendant was
married SHAW VS SHAW (1954) 2 ALLER 638.

2. A public policy law will not apply if a promise was made after a decree nisi
because during this period, there is a possibility of reconciliation.
Here read FENDE VS MIDMAY (1937) 2 ALLER 402 or Bromley at page 15 to 23

LAROK VS OBUOYA (1970) HCB. In this case, a plaintiff successfully sued and
defendant who promised to marry her and got pregnant. Damages were rewarded for
injured feelings and reduced chances of marriage to the plaintiff. This is enforceable
either when a termination has been communicated to the plaintiff or when the date of
marriage passes with no preparation for marriage and no indication that a marriage will
be held at a future date.

GIFTS BETWEEN ENGAGED COUPLES

At common law, a gift made by a party for an engagement to the other party in
contemplation of marriage could not be covered by the donor if even if he was in breach
of the engagement without legal justification he could not recover the engagement ring
but he does so if the woman was in breach of the contract.
Here read COHEN VS SELLAR (1926) 1 K.B 536
JACOBS VS DEVIS (1917) 2 K.B 532

PEMEDIES TO BREACH OF A PROMISE TO MARRY.

1. A successful party is not entitled to specific performance. However, damages for

injured feelings or reduced chances of marriage are awarded and these are called
general damages. Special damages for expenses incurred can also be awarded.

2. A party can be entitled to return the gifts especially if they are made by a plaintiff.
The gifts will not be returned to the donor if he is the one in breach of the
promise.
Here read SAMSON VS SAMSON (1960) 1 ALLER 653

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MARRIAGES AND HOW THEY ARE CONTRACTED

TYPES OF MARRIAGES RECOGNISED IN UGANDA.

1. Civil marriage.
2. Customary marriage
3. Islamic marriages
4. Hindu marriages

Since a marriage is an agreement between a man and a woman, it imposes rights and
duties between the two hence, a legal relationship between them. However, cohabitation
is an arrangement in which a man and a woman decide to live together as husbands and
wife but decide not to go through any form of marriage. These arrangements are not
recognized as marriage irrespective of length of time and couple may have stayed
together or the no of children they have.

HOW OTHER CONTRACTS DIFFER FROM MARRIAGE CONTRACTS

1. The Law related to capacity to contract a marriage is different.

2. Marriages can only be contracted if specified formalities have been complied
with.
3. You can be not discharge off a marriage by agreement, frustration or breach.
Marriage contracts can only be dissolved by death, divorce or by any decree
of court depending on the type of marriage.
4. Unlike other contracts, marriage contracts can affect rights and duties of 3 rd
parties for example Children.

CIVIL AND RELIGIOUS MARRIAGES.

The Civil and Religious are contracted under marriage Act. In this respect a registrar’s
Office and Churches are concerned in this matter. The Law provides no actual destination
between a two marriages. The marriage Act spells out requirements, which parties to an
intended marriage must satisfy prior to the marriage. Some requirements are substantive
and others are procedural.

1. Residence:
Under section 10 (a) of the Marriage Act Cap 251, at least one of the parties
of a marriage must have resided in a district, which a marriage would be
celebrated at least for 15 days.
2. Age:
Section 10 (b) and section 17 requires that each of a parties must be 21 years
and above or if below, then a party below age is required to obtain consent

5
 from a parent or guardians or court. But this requirement didn’t apply if a
party was a widow or widower. However, Article 31 of the 1995 constitution
of Uganda changed a capacity of age to 18years.

Provisions relating to consent for persons below age of marriage under section 17 –19 of
the Marriage Act Cap 251.

Read ROBERT VS ROBERT 1922 (2) KLR 6

3. Parties to an intended marriage shouldn’t be within a prohibited degree of

marriage. This arises either by marriage on blood. Section 10 (c) of the
Marriage Act Cap 251 provides for above.

4. Marriage Status:
None of the parties must be married either under customary Law or marriage
Act to any other person other than the intended spouse. Under Article 31. It
stipulates for free consent for both parties and lack of consent makes a
marriage void able Section10 (d) of the Marriage Act Cap 251

Notice:
Section 6 of the Marriage Act Cap 251 provides that one of parties to the
intended marriage is required to give notice to a registrar. The registrar then
enters notice of a marriage to the notice book, which is open for inspection
during Office hours (Section 9).

After a notice is lodged to the registrar’s he waits for 21 days before the parties can get
married. At a lapse of 21 days, if nobody objects to the intended marriage, then the
registrar will issue the parties with a certificate permitting them to marry Section 10 (I). It
should be noted under Section 11 of the Marriage Act Cap 251, after a notice of 21 days,
marriage should take place with in 3 months. After a 3 months if a marriage has not taken
place, a whole exercise has to be redone.

LODGING A CAVEAT

In Act however, when there are objections to the intended marriage under Section 13 of
the Marriage Act Cap 251, a caveat may be lodged against an intended marriage either by
persons whose consent is required or by persons who know a just cause why a marriage
shouldn’t take place.
Read MOHADERAN VS MOHADERAN (1902) 3 ALLER 1108.

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When a caveat has been lodged a registrar forwards a matter to court for reviewing.
Under Section 14 of the Marriage Act Cap 251, it is High Court to make a ruling, which
should be final. Under Section 15 of the Marriage Act Cap 251, if there are no valid
grounds for caveat, a Courts Orders cancellation of a caveat and also award compensation
for damages and costs under section 16 of the Marriage Act Cap 251. Registrar may
cancel a caveat with a word “Forbidden” in the marriage Notice Book in ink, and in
writing in the marriage Notice Book, immediately below that entry and cancellation, the
words “Cancelled by order of high court” and signing his or her name to the removal of
the caveat. The registrar shall then issue his or her certificate and the marriage may
proceed as if the caveat had not been entered, but the time that elapsed between the
entering and the removal of the caveat shall not be computed in the period of three
months specified in section 10 (1) of the Marriage Act Cap 251.

Under Section 12 of the Marriage Act Cap 251, a Minister has power to grant a licence to
marry. Under Sec. 21, a Minister and religious leaders are not required to celebrate
marriages without fulfillment of the above requirements (substantive and procedural).

Procedural requirement.
1. The marriage must be celebrated in a licenced place see section 20 (1), 21, 23 and 27
of the Marriage Act Cap 251.
2. The Act also requires that a marriage must be celebrated by a registrar of marriages or
recognized minister of the church. In the case of A VS B (1932) 14 KALR 109,
Marriage was celebrated by an authorized person; the court was petitioned to declare
the marriage null and void. It was held that because the parties were ignorant of this
fact, the marriage was good and valid.

Under Section 28 of the Marriage Act Cap 251, marriage can be celebrated in any other
place provided requirements therein have been complied with. The Marriage must be
celebrated in open doors See section 26 of the Marriage Act Cap 251, for registrar’s
Office it is 10:00am – 4:00pm and church from 8:00am – 6:00pm. See section 20 (2) of
the Marriage Act Cap 251. The marriage must be witnessed by at least 2 people see
Section 20(2) and 26, of the Marriage Act Cap 251. And Under section 24 and 27 of the
Marriage Act Cap 251., the Act requires that a registrar or church Minister should give a
parties a Certificate of Marriage which must be signed by 2 witnesses.

OFFENCES UNDER THE MARRIAGE ACT

For example if you go then more than one marriage ceremony, a penalty is 5 years
imprisonment, and the Offence is for Bigamy. (See Section 41 –50 of the Marriage Act
Cap 251).
Section 41- Bigamy – imprisonment not exceeding 5 years
Section 42 – Marriage with a person previously married – imprisonment not exceeding
5year.
Section 43 – making false declarations
Section 44 – false pretence of imprisonment to marriage.
45 – Unlawful ling performing marriage Ceremony.
46 –Will full neglect of duty to fill upon transmit Certificate of marriage.

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 47 -Personation in marriage
48 – Fictitious marriage
49 – Contracting marriage when already married
50 – Contracting marriage by customary law when already married under the
Act.

VOID AND VOIDABLE MARRIAGE UNDER THE MARRIAGE ACT

Qn. Under what circumstances can marriage be nullified?

The word void is defined by Black law dictionary 6th Edition at page 1573 to mean null,
ineffectual, nugatory or having no legal force or binding effect, unable in law to support
the purpose for which it was intended. On the same page voidable means something that
exists when an imperfection or defect can be cured by the act or confirmation of him who
would take advantage of it. Therefore it can be avoided or declared void.
This is where a marriage has been conducted but either a procedure on essential
requirements have not been fulfilled which a marriage is declared void hence it will be a
nullity and not registered by law. Where a marriage is declared voidable, there is a valid
marriage existing until it is declared a nullity by court.
Read DERENEVILLE VRS. DERENEVILLE (1948) 1 ALLER 56

The circumstances of marriages being void or voidable are spelt out under section 34 (1)
and (2) of the marriage Act Cap. 251.
Section 34 (1) provides that no marriage in Uganda shall be valid which, if celebrated in
England would be null and void on the ground of kindred or affinity or where either of
the parties to it at the time of celebration of the marriage is married by customary law to
any person other than the person with whom the marriage is had. And Also under Section
11 and 12 (1) (a) – (e) Divorce Act cap.249 gives grounds for degree of nullity.

For void marriage see section 34 (2) of the marriage Act Cap. 251. The marriage shall be
null and void if both parties knowingly and will fully acquiesce in its celebration-
a) In any place other than the Office of the Registrar of marriage or a licensed
place of worship, except where authorized by a Minister.
b) Under a false name or names
c) Without a Registrar’s Certificate of notice or Minister’s licence duly issued or
d) By a person not being a recognized Minister of same religious denomination
or body or a registrar of marriages.
Here read HAY VS HAY (1939) 16 KALR 29
A VS B (1932) 14 KARL 109

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Under a Divorce Act cap.249 Section 12(1) lays out other grounds on which a marriage
may be declared a nullity.
Here read ADEBEYI VS ADENJI (1990) KALR 36 (fraudulent representation)

PAROJEIC VS PAROJEIC (1951) 1 ALLER 1

In this case, the petitioner with her mother who had been in Yugoslavia left for England
where her father was living. Her father forced her to marry the respondent without her
consent. After the ceremony, the petitioner locked herself in a room in protest.
Subsequently, she petitioned for nullity of marriage on grounds of duress and mistake.
The issue in court was whether the petitioner’s father could induce her to go into
marriage without her consent.
Court held that although the petitioner had understood the nature of the ceremony, she
did not consent to the marriage but she was driven to go through the ceremony by terror
instilled in her by her father’s threat. The decree of nullity was therefore granted.

In K VS K (1960) EA. 717,the appellant petitioned for a decree of nullity of marriage on

a ground that a respondent had willfully refused to consummate the marriage. The
respondent entered an appearance but filed no answer and decree nisi was pronounced
exparte. The respondent insisted that a marriage had been consummated. It was
submitted that “Vera Copula” was never normal, full and complete, therefore there was
no consummation.

Read also S Vs S (1954) 3 ALLER 736.

In a case of impotent, there is permanent capacity to consummate a marriage, but if it is

shown that a defect can be corrected by operation, permanent capacity will not be held
unless a victim reused to have an operation.

Will full refusal by the Respondent. Here a situation may not be that one of a parties
are incapable of having sexual intercourse but the respondent has made a definite and
deliberate refusal to consummate a marriage without reasonable excuse.

Here read KAUR VS SINGH (1972) 1 ALLER 292

SCOTT VS SCOTT (1959) 1 ALLER 531

There is also lack of consent.

VALIER VS VALIER unreported. This case involved an Italian man who went to UK with
little knowledge of English. He was later tricked to go through a marriage ceremony with
an English woman at the registrar’s office. He petitioned court that he did not understand
clearly about a marriage. Court held that since his consent was obtained fraudulently the
marriage was nullity and there set aside. There was no consent since he did not
understand a language very well.

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Also read Mwangim Vs Mumbi (1967) E.A 639

Under Section 13 of a divorce Act cap. 249, with regard to child born in an annulled
marriage, such children will be considered legitimate children of a couple if a marriage
was contracted in good faith that is to say if there was a subsisting marriage, but later
shown that a parties contracted a marriage, believing that the other party is dead.

THE LEGAL EFFECT OF NULLIFYING MARRIAGE

1. The parties lose the right to consortium. Consortium has been defined by Black’s
law dictionary at page 309 to mean conjugal fellowship of husband and wife and
the right to each other to the company, society, co-operation, affection and aid of
the other in every conjugal relation. Therefore, parties to a nullified marriage will
stand to lose this right and each of them cannot sue for damages like if one of
them dies after the decree for nullity of their marriage. In this case parties lose the
benefit granted in the case of Jackson Vs Watson (1909) 2 K.B 193 Where the
plaintiff’s wife died of poisoning as a result of food supplied by the defendant to
the complainant and court of appeal held that he the husband and therefore the
plaintiff could recover for the loss of her service.
2. A party looses the right to maintenance.
3. Parties looses the right to agency of necessity which is a common law right and it
rises where the wife collects goods from a trader or shopkeeper for her
maintenance and under the law she is deem to be acting as an agent of husband
granted by the case of NAJUNKI GENERAL STORES VS MRS.
PETERSON. In this case a married woman living with her husband and keeping
house ordered from the merchant goods of precisely the description one would
expect a married person of situation in life to order for issue in the house hold.
The issue in court was whether the wife contracted otherwise than an agent. Court
held that the respondent a married person who at the relevant living with her
husband acted as an agent for and with the authority of her husband.

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CUSTOMARY MARRIAGES.

D VS P (1979) 3 ALLER 337

W VS W (1952) 1 ALLER 756
Section 1 (b) of a Customary Marriage Registration Act (cap 248) defines a customary
marriage as a marriage celebrated according to the rights of an African community and
one of parties is a member to that community. On any marriage celebrated under Part III
of the Act. It should be noted that there is no general customary law in Uganda and
customary law must not be contrary to natural justice, equity and good conscience.
Here read KAJJUBI VS KABALI 1944 (EACA) 34
MALE VS REGINA (1956 –59) 8 ULR 188

The law prohibits practices and customs and cultures against a welfare and dignity of
women and is others, which under mind their status. In case of any contentions,
witnesses can be called hence customary law should be proved that is to say Using facts
of culture, evidence by elders.
Here read KIMANI VS GIKANGA (1965) EA 735.

PRELIMINARIES OF CUSTOMARY MARRIAGE.

The Act does not spell out these preliminary hence they vary depending on a customs of
each community. However, there are certain general requirements, which have a legal
significance: -

1. Bride price: This is payment made by a bridegroom or his family on his

behalf to a family of a girl he intend to marry in consideration of her family
allowing him to marry their girl. The Act doesn’t spell out what form or
amount should be paid but at the end of the colonial period, there were efforts
to limits the form in quantity of bride price paid. Bride price depended on the
society, Economical status of the girl, influence, Morals and hand
workingness of the girl and the issue whether she had a child or not was
paramount. Here read;
UGANDA VS EDUKU (1975) HCB 204
KEMITUNGO VS KATURAMU (1992) 4 KALR 12
MPIRIRWE VS NINSABAM I (1994) 4 KALR 88.

The are times when half bride price can be paid. Where a balance of bride
price remains. It shows that the girl’s family either expressly or by acquiesce
waived their rights.

2. Age of Marriage: As far as tradition is concerned there was no uniform age

of marriage and capacity to many married. Under the customary marriage Act

11
 cap.248, Section 11(a) and (b) attempts to set a minimum age of marriage at
16 years for girls and 19 for boys respectively. However, under Article 31 of
the 1995 constitution of Uganda provides that persons of 18 years in above
have a right to marry. It is equally worth to note that under Article 2 (1) of the
1995 constitution of Uganda, it is provided that the constitution is the supreme
law of Uganda and biding to all authorities and persons through out Uganda,
actually Sub-Article (2) of this Article puts it clear that “if any other law or
any custom is inconsistent with any of provision of this constitution, the
constitution shall prevail, and any other law or custom shall, to that extent of
the inconsistency, be void”. This therefore leaves the age of 18 as the
marriage age in Uganda.

3. Prohibited degrees if marriage: The motion of prohibited degrees was

observed in all tribal community of Uganda. The extent to which they
prohibit the degree is provided for under Section11 (d) of the customary
marriage Act cap.248.

4. Consent: The consent of a girl was not always obtained in marriage. In most
community it was the parents who consented on behalf of their daughter.
Article 31 (3) of the 1995 constitution of Uganda resolves the issue of consent
and provides that the marriage shall be entered into with the consent of both
parties.

CELEBRATION OF A CUSTOMARY MARRIAGE

The Act doesn’t spell out the formalities of celebrating a customary marriage. These
marriages are celebrated according to the rights of a given community. The customary
marriage can be celebrated in any part of Uganda under Section 2 (1) of the customary
marriage Act cap.248. There are also other requirements under Section 6(1) of the
customary marriage Act cap.248.
Registering within 6 months in the registration[s Office with 2 witnesses. Under Section
7 of the customary marriage Act cap.248, at the time of registration, the registrar shall
upon payment of the prescribed fee issue the parties with a Certificate in the prescribed
form.

Under Section 9(2) of the customary marriage Act cap.248, the copy of such a record
certified by the registrar general as being a true copy shall be advisable as evidence in
any court proceedings and shall be prima-facie evidence of a settlement.

Under Section 10 of the customary marriage Act cap.248, such a certificate shall be
conclusive evidence of a marriage for all purposes in any written law.

EFFECT OF A NON-REGISTRATION OF A CUSTOMARY MARRIAGE

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Section 20 of the customary marriage Act cap.248, of the Act provided the parties for a
customary marriage who fail to registrar their marriage within a time specified in Section
6 of the customary marriage Act cap.248, commit an offence and they are liable to a fine
not exceeding 500shs. However, non-registration doesn’t invalidate a marriage.
Here read MUGISAH VS KAKURU (1994) 4 KALR 49, Where It was held that non
registration of a customary marriage doesn’t invalidate a marriage but such a marriage
fail to find a cause of action as it is incapable of proving it self. Under Section 18 of the
customary marriage Act cap.248, the registrar has powers to correct any errors made in
the Certificates.

CUSTOMARY MARRIAGES BETWEEN NON-UGANDANS AND UGNDANS

Part 2 of the of the customary marriage Act Section 21- 35 governs customary marriages
celebrated between non- Ugandans Sec. 21 of the customary marriage Act cap.248,
provides that only those persons who don’t belong to any indigenous tribes in Uganda but
wish to celebrate customary marriage can proceed under part III of the Act. It’s noted
under Section 35 of the customary marriage Act cap.248, that part III of the customary
marriage registration Act doesn’t apply to person who belong to any indigenous tribe in
Uganda. Read 25 (1) (a) – (c) of the customary marriage Act cap.248, conditions. It
should be noted that the preliminaries to such a marriage are similar to those under the
marriage Act.

VOID AND VOIDABLE MARRIAGE UNDER CUSTOMARY MARRIAGE ACT

The concept of void and voidable marriages was also recognized under customary law
and the grounds depended on different community for example the issue of witchcraft
would make a marriage void, Failure to pay bride price, a woman impregnated by another
man at the time of marriage.
The Act under Section 11 – 13 of the marriage Act cap 251, provided for grounds, which
would make a marriage void. It should be noted that Section 12 of the marriage Act cap
251 puts an exception for those marriages before this Act. (1/10/1973). Read also Article
21, 31, 33 of the 1995 constitution of Uganda. It should be noted under Section 4 (2) of
the marriage Act cap 251 that customary marriages are potentially polygamous.

ISLAMIC MARRIAGES.

This is one of the types of marriage recognized in Uganda and it is governed by the
marriage and divorce of Mohammedan’s Act cap 252, the constitution of Uganda .Article
129 (d), Islamic or Shariah law, which is comprised of the divine laws of Islam (Quran)
and also the Hadith. This law is applicable on the basis of Section 2 of the marriage and
Divorce of the Mohammedan’s Act and it provides that all marriages between persons
professing between marriages and all divorces of such marriages which are celebrated or

13
given to the rights or observance of the Mohammedan religion or the usual in that
particular sect shall be valid.
The Marriage Act and the Marriage of African Act does not apply to 2 parties who are
married under cap 252.

PROMISES TO MARRY UNDER ISLAM.

This concept is recognized under the Islamic law and is called KHUTBA. This is when a
man asks for a woman’s hand in marriage and the woman accepts. The woman can
accept this through an agent or in person. Once this happens, no any other man is
allowed to promise this woman knowing that she is already in the promise to be married.
For this process to be valid, the woman must be legible for marriage. You can’t promise
a woman in the period of Idat (4 months after the death of her husband).

PRELIMINARIES FOR ISLAMIC MARRIAGE.

They are not spelt out in the Act. Therefore by virtue of Section 2, we refer to
positions under the Shariah. For an Islamic marriage to take place there must be an
offer and acceptance and the person offering the accepting must meet the following
requirement:

1. Age: Both in the Act and under the Islamic Laws, age of marriage is not
specified. The determining factor is once the intending parties to marry have
attained puberty.

2. Mental state of marrying parties. The parties must be of sound mind. However,
even persons of unsound mind may in some circumstances be allowed to get
married which this should be based on a medical report certifying that a marriage
can help their faculty.

PROHIBITED DECREES OF KINSHIP.

Islamic Law also recognizes this motion and the source of this prohibition is in
the Qoran 4:23. This motion arises to different affinities and also as a result of
fosterage, which must have taken place during infancy. The extent to which the
degrees apply varies. However, the degrees do not apply between cousins.

MARITAL STATUS.
For a woman who intends to get married shouldn’t be in a subsisting marriage and
she should be eligible for the person she intends to get married to. The maximum
wives should be four.

MAHR.
This refers to a sum of payment either in form of money or property, which the
husband has to pay to the wife in consideration of her accepting to marry him.
(Chapter 4:4).

Chapter 4:4 give the woman by marriage their Mahr as free gifts. Mahr can be
paid before the marriage in part or a whole. But this is not bribe price. It is not an

14
essential for the validity of the marriage. Its non-payments doesn’t invalidate the
marriage. It is paid to the wife and not to her family. In addition she sets the
amount and form of payment. It can consist of anything that can be valued or
anything use full and also clean.

CELEBRATION OF ISLAMIC MARRIAGES.

There are no requirements for the celebration spelt out under the Act. Reference
is made to Section 2 of the Act. It will be celebrated according to those rites of
the different sects. The marriage can be celebrated anywhere provided the
perquisites have been adhered usually it is celebrated at the home of the bride’s
parents although some couple go to the Mosque basically for preaching and
guidance. There is no requirement, which the Act for a registrar of Marriages to
be present while the marriage is being contracted. Section 16 of the marriage and
divorce of Mohammedan Act Cap. 252.
There is a requirement for 2 witnesses to the marriage to be present. These
witnesses must either be 2 men or a man and 2 women. They must be same
adults, Moslems, acting on their free will and they must hear and understand the
offer and acceptance. see Section 3 of the marriage and divorce of Mohammedan
Act Cap. 252.

CONSORTIUM AND CIRCUMISTANCES WHEN MARRIAGE CAN BE

NULL AND VOID.

Consortium refers to conjugal fellowship of husband and wife and the right of
each to the company, society, co-operation affection and aid of the other in every
conjugal relation. See Black Law Dictionary 6th Edition at page 309.

Damages for loss of consortium are commonly sought in wrongful death actions
or when spouse has been seriously injured through negligence of another or by
spouse against third person alleging that he/she has caused breaking up of
marriage.

Cause of action for consortium occasioned injury to marriage partner is a separate

cause of action belonging to the spouse of the injured married partner and though
derivative in the sense of being occasioned by injury to spouse is a direct injury to
the spouse who has lost the consortium.

LOSS OF THE RIGHT TO CONSORTIUM.

The right to consortium can be lost in 4 ways first if:

1. The spouse agrees to live apart. The agreement must indicate each other
right. But once the agreement comes to an end the right will be
automatically revived.

15
2. A degree of indicial separation/a separation order relief the spouse of the
duty of cohabiting with the other and as long the order is in force the right
to consortium cases to exist.

3. Although a marriage is not legally terminated until a decree of absolute the

duty to cohabit will come to an end once a decree Nisi comes to force. At
this stage the marriage is dead infact and clearly neither party can allow
the other to cohabit until him/her.

4. Matrimonial misconduct will deprive the spouse misconducting him/her

self of the other consortium. Such conductor may include: adultery,
cruelty, desertion etc.

It was held in the case of R Vs. Algar (1953) 2 ALL ER 1381. That neither party
to a marriage can insist on cohabitation unless he/she is willing to perform a
martial duty inseparable for the marriage.

Facts of the case of R Vs. Algar (1953) 2 ALLER 1381

Criminal Law – evidence – wife –criminal Offence committed during marriage –
Admissibility of wife’s evidence after decree of nullity of marriage for impotence.

Facts: A husband was prosecuted for forging his wife’s name to a number of
cheques, thereby defrauding her bank. Before prosecution for place, the wife had
obtained a decree of nullity on the ground of the husband’s impotence. She was
called as a witness for the prosecution, and the husband was convicted of forgery.

On appeal by the man, court held that, a avoidable marriage was regarded as valid
and subsisting until it had been a voided at the suit of the aggrieved party,
according, a spouse who had been lawfully married, but who had subsequently
obtained a decree of nullity on the ground of the other spouse’s importance was
not a competent witness against that other spouse on his or her trial for a criminal
offence committed during the covertures and therefore the wife’s evidence was
inadmissible and the husband’s conviction must be quashed. Appeal was
allowed.
NOTE:
-A spouse remains incompetent to give evidence against the other and
incompetence continues after divorce in respected of matters arising during the
covertures.
-A divorced wife cannot be called to testify against her husband in respect of any
matters arising or conversation that passed during the marriage see this on page
1383.
-Case where spouse can be admitted to give evidence against another in criminal
offence but not to be compelled is set out in Halsbury’s law of England, Hailsham
edition. Volume 9 page 218 and 219 para. 304 –307. This is stated in the
judgment in the case of R. Vs. Alger (1953) 2 ALLER 1381 at page 1383. Lord
Goddard and other 2.

16
 And matrimonial offence committed by one spouse will deprive him/her of the
right to the other consortium however bad the other’s conduct may be hence a
husband is not bound to cohabit with his wife if the committed adultery are
though he have committed adultery too. Read Brooking Phillips Vrs. Brooking
Phillips (1913) p.80. Bellow here.

Divorce Practice- pleading –wife’s petition for restitution of conjugal rights –

answer alleging wife’s adultery Reply alleging husband’s adultery.

Facts: In answer to a wife’s petition for restitution of conjugal rights a husband

alleged that the wife had committed adultery but he asked for no relief. The wife
replied denying her adultery and alleging that the husband himself had been guilty
of that offence.

Held: 1. That where both husband and wife had committed adultery, and
neither could therefore obtain a divorce from the other.

2. That the wife’s recrimination of adultery was irrelevant and must

be struck out for her reply.
Appeal dismissed with costs.

BREACH OF DUTY TO CO-HABIT.

Although the right to consortium goes hand in hand with the duty to co-habit, this duty
breaks down and it is legal on forcible once either of them has committed a martial
offence. It can therefore lead to other consequences for instance it may result into
desertion which will enable the innocent party to petition for divorce or judicial
separation. And in case it is the wife in desertion, the husband ceases to under and
obligation to maintain her.

REMEDIES FOR INTERFERANCE WITH THE RIGHT TO CONSORTIUM.

At common law, a husband has a right to sue in trespass and can therefore obtain
damages against a defendant who has taken away his wife. However, presently the only
remedy available to the husband is damages for adultery against the correspondent who
had committed adultery with his wife.

1. LOSSS OF CONSENT DUE TO BREACH OF CONTRACT.

If as a result of breach of contractual duty owed by the defendant to the plaintiff the latter
losses the consortium of his/her spouse. He/she may recover for this loss by way of

17
damages for breach of contract. Provided the loss was a result of the breach and that it
was not too remote.
Thus in the case JACKSON VS. WATS & SONS (1909) 2 K.B.193
Where the plaintiff’s wife died of poisoning as a result of food supplied by the defendant
to the plaintiff the court of appeal held that he could recover for the loss of her service.

2. LOSS OF CONSORTUM DUE TO THE DEFENDANT’S TORT.

Where the defendant for example tells the plaintiff’s wife slander and the truth fully that
the plaintiff has committed adultery with another woman with the defendant’ intention of
inducing her to leave her husband and that this succeeds, the plaintiff would recover for
this loss in action of slander and the vise-visa is true.
Read Lampert Vrs. Eastern National Ominibus Ltd (1954) 2 ALLER 719.

-Negligence –damages – injuries causing serious disfigurement –loss of husband by

estrangement as a result of disfigurement.
-Husband and wife – Action by husband and wife for injuries to wife – estrangement of
husband allegedly during to wife’s disfigurement.

3. In case of elopement and adultery the husband has and action of/for damages
for harbouring his wife for loss of service he has lost. Normally there is
several of such cases eg.
a) In Uganda Vrs. Wodada & another (1972) ULR. 25
-Elopement
-No admission in charge that woman eloped with married man
-No reasonable belief proved on part of man that woman married – effect of
will full blindness as to whether woman married or not.
-No proof that man reassembly believed woman to be married effect of will
full blindness as to whether woman married or not.

Facts: The 2 accused where convicted of elopement by G.II. The man in mitigation said
that he had from the woman for only four days and the magistrate said that since
he had not known much about the woman he deserved and lesser sentence than
that of the woman. There was no admission in the charge against the woman to
the effect that the man was married.

On appeal Court.
Held: 1. The woman should not have been convicted since under S. 121A (2) of
PC.A a female only committed an offence if she eloped with a married man.
There was no admission that the man was infact married.

2. It was a defence under P.C.A if the offender genuinely believed on

reasonable grounds that the person with whom he/she eloped was unmarried. The
man should not have been convicted.

18
 3. If a man however, suspected that a woman was married and realized its
probability but refrained from obtaining the final confirmation because he wanted
in the events to deny knowledge, this was willful blindness, which would not
afford defence

Conviction was quashed and a retrial on property drafted charges ordered.

In Uganda Vrs. Nikolla (1966) E.A 345 (High Court of Uganda at Kampala (Sir Udo
Udoma,C.J) September 20 1966 criminal revision no. 426 of 1966
Criminal law – Adultery-Adulteror unmarried –Not known to adulteror that adulteress
was married – whether absolute liability- Penal Code, S 150A (U) . Criminal law-
charge- Adultery – Both adulteror and adulteress charged in one count-Mess rea-
Desirable that should be charged on two courts.

Facts:
N and M were jointly charged with “willfully and unlawfully” committing adultery
contrary to S. 150A of the Penal Code though these words do not appear in the
section. At the trial evidence was led that M. was married to T. in 1959 according to
native law and custom but that some years later she deserted her husband and rejoined
her brother and that she now lived with N. M. testified that she had deserted T. and
had lived with her brother for three years before her marriage to N. and that ever
since she had lived with N. as husband and wife.
N.’s defence was that he came to know M. for the first time when the brother offered
her to him in marriage as an unmarried woman and that he married her with her
consent according to native law and custom. The trial magistrate held that although
N. did not know that M. was married at the time he married her since M. had not been
legally divorced, N. and M. had committed adultery.
The case came before the Chief Justice on revision on the application of the acting
Chief Magistrate who reported that conviction was wrong in law because the charge
was bad for duplicity in that there were two distinct offences committed by the two
accused and that the two offences were lumped together in one count. In addition to
this point the learned chief Justice discussed the question whether S. 150A create any
absolute liability.

Held: (i) It is undesirable in adultery cases that both the man and the woman should
be charged, but if charged there should be separate counts because the mens rea in
each case is different;
ii) The charge as framed was not supported by the evidence to convict
either or both the accused person it was necessary to establish mens
rea;
iii) The absence of the word “knowingly” or “willfully” from the
provisions of s. 150A merely relieved the prosecution from providing
knowledge or willfulness on the part of the person charged with the
offence and it was plain that the section did not contain an absolute
prohibition of the offence of adultery, it was open to an accused person
to show that in fact he did not know that the woman was married to
any other person.

19
 Convictions and sentences set aside.

4. IMPAIRMENT OR INTERFERENCE OF CONSORTIUM

Read BEST VRS. FOX (1952) 2 ALLER. 394

Negligence in wife’ loss of consortium injury to husband causing sexual
incapacity –tort feasor’s liability to wife.
Husband and wife in consortium –right to consortium husband injured and losing
Sexual capacity owing to defendant’s negligence-defendant’s liability to wife.
The right of a husband to damages for loss of consortium against a person who
negligently injured his wife is an nomaly at the present day and should not be
extended to a wife in the case of a tort depriving her of the consortium of her
husband.

Facts: Appellant’s husband sustained physical injuries one resulting of which was that
he became incapable of sexual intercourse and in consequences the appellant
suffered in health. The appellant clamed for damages for the respondents for loss
of her husband’s consortium in that she was deprived of the opportunity of having
further children and of normal marital relations.

Held: There is no principle or authority in English law on which such an action could be
founded and the appellant was not entitled to succeed.

Appeal Dismissed:

Note Right to consortium see Halsbury Hailsham Edn. Vol. 16 pg. 610-612 Par. 950 –
960

5. Action for loss of consortium by wife.

6. Loss of consortium due to effect of death.

Read (a) BAKER Vrs. BOITON (18080 I.K.B. 493

(b) SHBANI KIBIRIGE VS. CRISPUS .D. JUKO (1972) ULR 33 PART I.

Tort – Negligence in road accident – whether established.

Tort – consortium and servitium, loss of- whether damages recoverable.

Facts: In the instant case plaintiff claimed damages from the defendant for loss, through
death of the service of the plaintiff’s wife allegedly caused by the negligence of the
defendant. The defendant contested the claim on the ground that such claim by husband
was only maintainable if the wife lived. The wife had only live this case for a few hours
after the accident.

20
Held: 1. The accident was caused by the negligence of the defendant.
2. The survival of the wife for only few hours after the accident constituted
and immediate death for the purpose of this claim.

5. Miscellaneous provision Act provided a remedy for the recovery of

damages in the case of injury, hurting in death were, but for the injured
person could have recovered damages for the injury, such Act was
inapplicable to these facts.

6. In Jackso vs. Watson, the court had discussed the grounds on which a
husband could claim damages successfully for loss of consortium
including servitium caused by the death of his wife. In that case it was
held that the husband was entitled to recover damages that the cause of
action lay in breach of warranty, the food being sold to the plaintiffs wife
being unfit for human consumption and the death of the plaintiff’s was
only an element in ascertaining the damages arising there from. The cause
of action was independent of the wrong causing death. Such was not the
case on the instant facts.

7. Where the husband based his claim for loss of consortium on the death of
the wife as the cause of action, he would not succeed. The claim for
damages for loss of consortium and sertitium would be dismissed.

PERCURIAM: Had been necessary to assess damages, the

following assessment would have been made. It was held in Hase Vrs.
Britain Transact commission (1950) I ALLER 578 that generous
compensation for loss of consortium should not be awarded. In this case
the plaintiff did not claim special damages for the loss of servants to do
the wife’s work. The plaintiff remarried in 1968 shs. 1,500 general
damages would have been awarded.

21
 THE ORIGIN OF THE CAUSE OF ACTION

The cause of action in fatal accident claims is a creature of statute namely,

the law Reform (Miscellaneous provisions) Act 1953. See Cap.74 laws of
Uganda, 1964 edition. This Act is based on the Fatal Accident Acts enacted
in England between 1846 and 1903 to overcome the common Law rule that
death could not give rise to a cause of action. This rule was first clearly laid
down in 1803 by Lord Ellenborough in the case of Baker Vs Bolton 10
Camp. 493 where he declared that “in a civil court the death of human
being could not be complained of as injury” this rule was approved by the
House of Lords more than one century later in the case of Admiralty
Commissioners Vs. America (1917)AC.38.

In Sabani Kibirige vs. Crispus D Juko4 Mead J stated that this principle has
been accepted in Uganda. The injustice of this common law rule became
apparent with the advent of railway and cars as a means of transportation
with the consequent increase in both fatal and non-fatal accidents. The effect
of this rule was that while a person who survived death could sue and
recover damages for injuries sustained, the dependants of a person who died
of the injuries were completely bereft of any remedy against the person who
caused his death. This led to the enactment in 1846 of the first English Fatal
Accident Acts also known as Lord Compbells Act5, which created a specific
and distinct cause of action for the benefit of the dependents and the estate
of the deceased in such cases. These English legislative reforms were
borrowed and enacted in part II of the Law Reform (Miscellaneous
Provisions) Act of Uganda.

Action for loss of Dependacy

The principal cause of action created by the Act on the event of death is for
loss of dependacy. Thus section 7 provides that whenever the death of a
person is caused by the wrongful act, neglect or default of another such as
would if death had not ensued, have entitled the person injured thereby to
maintain an action and recover damages in respect thereof, the person who
would have been liable if death had not ensued shall be liable to an action
for damages notwithstanding the death of the person injured and although
the death was caused under such circumstances as amount in law to a felony.

22
It is clear from the above provision that a condition precedent to any under
the Act that the deceased’s death should be attributable to defendant in such
circumstances as would have conferred a cause of act on the deceased
against the defendant if he had survived. This means that the dependants of a
deceased person have no cause of action if the death was not due to any
wrongful act of the defendant6, or if it is a result of the deceased’s own
conduct, for example, if the circumstances of the death was such that the
doctrine of volenti non fit injuria would apply or if it was entirely to the
deceased’s own negligence. However, if the deceased was only contributory
negligent, the effect is merely to reduce the amount damages in proportion to
the contributory negligence.

The beneficiaries of the Action: dependants

Section 8 of the Act provides that every action brought under the provision
of section 7 shall be for the benefit of the members of the family of the
deceased. Under section 2 of the Act “members of the family” has the
meaning as in the second schedule to the workmens Compensation Act
which Act has since been replaced and replaced by the work Compensation
Act 20007a Section 2 of this latter Act specifies following persons as
members of the family namely wife, husband, father, mother, grandfather,
step father, step mother, son, daughter, grand granddaughter, stepson,
stepdaughter, brother, sister, uncle, aunt, nephew, cousin and an adopted
child.

However in order for a member of the deceased’s family to qualify

beneficiary of an action under the Act, such person should have been
dependant of the deceased. In Uganda Electricity Board vs G. Musoke8 the
Supreme Court held that although the Act itself does expressly mention or
use the word dependants, the historical background the Act makes such a
qualification necessary.

Meaning of dependant

A dependant means a member of the family of the deceased who was

substantially dependant upon contributions from the earning of the deceased
for the provision of the ordinary necessaries of life suitable for a person of
his class and position9. In terms of the definition, dependency need not be
total it could be partial of minimal10.

23
However, subject to the definition of “member of the family” already given
above, dependency is a question of fact to be proved by evidence. However,
it is generally accepted that every able bodies adult should be dependent and
self-sufficient. For this reason except in cases of dependency based on some
infirmity, disability or old age, an adult is generally not eligible as a
dependant in an action under the Act.

The obvious and accepted categories of dependants are the spouse and
children of the deceased. In the case of spouses, it is perhaps necessary to
mention that contrary to generally held belief; it was held in Lubangira v
Akamba Bus Service11 that even a husband can be a dependant on his wife.
Therefore a claim by a husband under the Act for loss of dependant is
competent. However, in Sabiti Musoke & 20rs v. Uganda Co-operative
Saving Union12 ALLEN J appeared to place a restriction on the extent of the
income, the fact that his deceased wife used to contribute to the household
budget didi not make the husband a dependant entitling him to claim for loss
of dependency on the death of his wife. It is submitted that there is no
justification for such a restriction especially since dependency need not be
total but may be partial.

As far as children are concerned there appears to be a presumption that

dependency terminates upon attainment of majority. In Sebugwawo v, Kyayi
Mixed Farm13, the definition of a child in the Children Statute 1996 was
applied and it was consequently held that the age of majority is eighteen
years.

Previous to that decision the existing authorities were to the effect that the
age upon which dependency is presumed to terminate is, twenty one years in
the case of a male child or twenty five years or upon marriage in the case of
a female child14. Therefore, even in the case of a child there must be clear
evidence of continued dependency after majority. In Wamala v Shell & B, P
(U) Ltd15, the plaint listed among the claimants eleven children and a
mother-in-law. Some of the children were adults at the time of the
deceased’s death. However, there was no evidence as to whether all the
children were still dependant on the deceased and if so in what respects. It
was held that in the absence of such evidence it would be assumed that only
the minor children and hose who were still schooling and the mother-in-law
were dependants.

24
However, as long as there is evidence of dependency it was held in Kigongo
v. Attorney General16 that such dependency need not be total, it may be
partial or minimal. In that case the plaintiff who was a man of 24 years,
employed and had his own home and family was held to be a dependant on
his father on the basis of evidence that he used to receive money from his
father. Mr. Justice Odoki stated that the mere fact that a person has a house
of his own and family did not mean that he could not depend on another for
material and financial support and that in an African society where the
extended family is still strong it was not unusual for a married son to have
fatherly support from his father.

Who may Sue

The Act provides that the action may be brought either by the administrator
or executor or by all or any of the members of the family of the deceased 16a.
Two points need to be made regarding this action. The first is that whoever
commences the action does so in a fiduciary position for the rest of the
beneficiaries. Where the action is brought by the executor or administrator
of the estate of the deceased, the value of the judgement obtained does not
form part of the estate but must be held in trust for the beneficiaries of the
suit.

Secondly not more than one action shall be brought in respect of the same
death17. This means that one action must be brought for the benefit of all the
entitled beneficiaries. For this reason, if the plaintiff whether by design,
negligence or otherwise omits to include some of the beneficiaries in the
action, the latter are precluded from commencing separate proceedings
against the defendant. They only have a right of resource against the plaintiff
for breach of fiduciary duty. In Bukenya & Anor v. Mayanja & 20rs18, the
deceased left behind four widows and children. Two of the widows
instituted an action under the Act in which only themselves and their
children were mentioned as beneficiaries. The two other widows and their
children were not included and were not aware of the case until after
judgement was obtained awarding damages only to the plaintiffs and their
children. The other two widows then applied to court to set aside the
judgement so that they could as well be joined as parties in the suit. The
application was rejected and it was held that the proper course would have
been another suit against the plaintiffs in the original suit for fraud.

25
Limitation Period – 3 years

Under Section 4(1) (a) of the Limitation Act19, the general limitation period
for any action in tort is six years. However, a special limitation period
applies to fatal accident claims. Section 8 (2) (a) of the Law Reform
Miscellaneous Provisions Act20 initially provided that every action under the
Act shall be commenced within twelve calendar months after the death of
the deceased. This special limitation period was borrowed from earlier fatal
accident legislation in England from which as we have seen our own Act
was modelled21.

However, in line with similar reforms in England 22 this period was in 1958
enlarged to three years22a. In Uganda, unfortunately due to an omission
during the preparation of the 1964 Edition of the Laws of Uganda, this
amendment was not incorporated in the Act with result that the original one
year period was erroneously maintained. It is therefore, hoped that the Law
Reform Commission will rectify this omission in the next edition of the
Laws of Uganda.
Pleadings

The rules governing pleading generally are outside the scope of this
handbook. However, they apply equally to fatal accident claims. In addition
to the general rules of pleading, special care should be taken in preparing a
plaint in fatal accident claims to ensure that it complies with the following
specific requirements.

The Act must be Pleaded

Since fatal accident claims can only be based on the Law Reform
(Miscellaneous Provisions) Act, the plaint must contain a reference to the
Act preferably a specific averment that the suit is brought under the Act. In
Ali Mustapha vs. Sango Bay Bus Company23 failure to do so was held to
render the plaint open to be rejected under Order 7 rule 11(a) for not
disclosing a cause of action.

Particulars of the dependants

26
Section 10 of the Act requires that the plaintiff shall deliver to the defendant
together with the plaint full particulars of the person or persons for whom
and to whose behalf such action is brought and of the nature of the claim in
respect of which damages are sought to be recovered. The particulars to be
included are the names, ages and if need be the sex of the all the claimants
and their respective relationship with the deceeased 24. It is clear from the
wording “shall” in the above quoted section that the requirement is
mandatory. The effect of omitting to include particulars in the plaint depends
on the extent of the omission. Total failure to comply means that the plaint
does not disclose a cause of action and will be struck off. However, it
appears that where the omission is not very material the consequences may
be less severe.

For example in Amina Nalugya v. Uganda Transport company &

Another25, the deceased left a widow and five children whose names and
ages were given in the plaint.

It was held that in light of the mandatory the requirement in section 10 for
the plaintiff to deliver full particulars of the persons for whom the action is
brought those children whose names were not given would not be awarded
any damages, although they were considered in the amount to be awarded to
the widow.

Particulars of the deceased

Equally important is to give full relevant particulars of the deceased. The

most important are those particulars that are directly relevant to the
assessment of damages. These are the age, occupation and the income of the
deceased. As will be seen later, these particulars are essential in the
assessment of damages. Failure to include these particulars renders the plaint
fundamentally defective. Thus in Ali Mustapha v Sango Bays Bus Co.
Ltd25a it was held that the deceased’s income must be pleaded.

Special Damages – Funeral expenses

27
Again the general rule as to special damages is well established namely that
these damages must be specifically pleaded and proved. Of particular
relevance to fatal accident claims is funeral expenses. It is essential that
these funeral expenses must be pleaded. It is however, important to observe
the provisions of section 12 of the Act. Section 12 of the Act provides for
the recovery of funeral expenses of the deceased on condition that such
expenses have been “incurred by the persons for whose benefit” the action is
brought. This means that a claim for funeral expenses in a suit brought under
section 7 of the Act cannot succeed unless it is supported by evidence that
they were incurred by the deceased’s dependants for whose benefit the
action is brought.

This was emphasized in Zizinga & Another vs. U.C.B 26 where the plaintiffs
were minors who sued through their natural father as next friend for loss of
dependency upon the death of their mother who was run over and killed by
the defendants’ motor-vehicle. The plaint included a claim for funeral
expenses of Shs. 191,700. The court rejected the claim citing section 12 of
the Act because the evidence was that the funeral expenses were not paid by
the minor children but by their father who was husband to the deceased
However, he was not one of the beneficiaries of the action. Likewise in
Kigongo vs. attorney General27 the claim for funeral expenses was
disallowed for the same reason.
Aspects of evidence

Production of dependants in Court

In order for an action under the Law Reform (Miscellaneous Provisions) Act
to succeed, it must be proved by evidence that the claimants were financially
dependant on the deceased.

Apart from the oral and documentary evidence to prove the particulars and
facts in the plaint, the courts have insisted that all the claimants must be
physically produced in court for the court to see and verify their particulars.
The clearest statement of this requirement was made by Kiwanuka C. J. in
Lusiya v Kampala City Council28. The effect of failure to produce any of the
claimants is that no award can be made in respect of those claimsnts 29 unless
sufficient explanation is provided to the court.

This position has been consistently follwed30 and was recently rested by the
Supreme Court31.

28
 Police Traffic Accident Report

The majority of fatal accident suits in this country arise out of traffic
accidents involving motor vehicles. By law these accidents have to be
reported to the police32 who then visit the scene and prepare a report of the
accident that will almost always include a sketch plan of the scene of the
accident.

It is now the practice of the courts to accept these reports as proof of the
occurrence of the accident. For example in Hadija Nakibuka v. Attorney
Genral33 the Supreme court made an adverse conclusion regarding failure by
the plaintiff to produce such a report in evidence and consequently upheld
the decision of the High Court on the evidence available that the plaintiff
had not sufficiently proved that the alleged accident had in fact occurred. It
is therefore highly advisable to produce such a report especially where it is
available or can easily be obtained as an unexplained omission to do so
might lead to an adverse inference as happened in the above case. However,
failure to produce a police report per see should not always lead to the
conclusion that the plaintiff has failed to prove occurrence of the accident. In
Mukasa v Attorney General34 the plaintiff’s evidence was that he was
cycling along Entebbe – Kampala road and was carrying a passenger when
he was knocked from behind by the defendants’ motor-vehicle belonging to
the Ministry of Health. The plaintiff was removed from the scene of the
accident by the driver of the vehicle and taken to Mulago Hospital where he
spent a month. The passenger escaped unhurt.

This version of events was not contradicted by any other evidence to the
contrary. However, counsel for the defendant in her submission attacked this
evidence on the grounds inter alia of lack of an accident police report. In
rejecting this submission, Byamugisha J. noted that lack of police accident
report could not be blamed on the plaintiff alone especially as he was
seriously injured and was in fact removed from the scene of the accident by
the driver of the defendant and spent a month in hospital. He therefore, could
not have secured the report. The judge also pointed out that the driver of the
motor vehicle is by law required to make of a report of the accident and if he
made any. The defendant could have produced it to controvert the
allegations of the plaintiff.

Moreover since a fact can be proved by the testimony of a single witness35

the evidence of the plaintiff was accepted as sufficient proof of the
occurrence of the accident.

29
General Damages for Loss of Dependency

Section 8 (2) of the Law of Reform (Miscellaneous Provisions) Act provides

that in every such action the court may give such damages as it may think fit
proportioned to the injury resulting from such death to the parties
respectively for whom and for whose benefit such action is brought. It is
obvious that the section offers no guidelines whatsoever as to how such
damages should be assessed, the matter being left entirely to the discretion
of the court. The method of assessment now applied by courts in Uganda is
based on principles evolved by the English Courts in dealing with similar
legislation which as we have seen is the origin of the Uganda law.

It has been pointed out that the test that has since guided the courts in
assessing damages for loss of dependency was first laid down by Pollock C.
B. in 1858 in the case of Franklin v. South Eastern Railway36 in which he
stated that damages must be calculated in reference to “a reasonable
expectation of pecuniary benefit” as of right or otherwise from the
continuation of life. From this general mid-nineteenth century statement,
English courts have developed a methodology for assessment of damages for
loss of dependency. From the reading of the case, it is possible to state that
the courts now categorise loss of pecuniary benefit into two types namely
loss of financial support and loss of services. What follows is an outline
summary of the method of assessment of damages in respect to each of these
types of loss.

Loss of Financial Support

This type of loss occurs where the deceased was the breadwinner for his
family and other dependants. The principles governing the assessment of
damages in this type of case were clearly laid down in the middle of the
twentieth century in the English case of Davies vs. Powell Dyffryn
Associated Colleries37 particularly the judgement of Lord Wright where the
following principles are summarized. Firstly, that no consideration
whatsoever is taken of what may be called sentimental damage, bereavement
or pain and suffering and that it is strictly a hard matter of pounds, shillings
and pence subject to the element of reasonable future probabilities.

30
Secondly, that the starting point is the amount of wages which the deceased
was earning from which must be deducted an estimate of how much was
required or expended for his own personal and living expenses. Thirdly, that
the balance will give a datum or basic annual figure which will then be
turned into a lump sum by taking a number of years purchase. Finally, that
sum may be taxed down by having regard to the uncertainties of life.

The principles for assessment of damages in fatal accident claims contained

in the above case have been adopted and applied in Uganda in the case of
Kassam v. Kampala Aerated Water Co. Ltd38 which went on appeal from
High Court of Uganda to the Court of Appeal for Eastern Africa and finally
to the Privy Council of the House of Lords and is no doubt a leading
authority on this subject. In applying this method, the courts have in the
process evolved a fairly simple step by step mathematical formula which
was ably summarized in Amina Naugya v. Uganda Transport Co. Ltd 39 into
three stages. The first stage is an estimation of the lost earnings, that is, the
sum which the deceased would probably have earned but for the fatal
accident. The second stage is an estimation of he lost pecuniary benefit
which the dependants would have derived from the deceased’s lost earnings
which is then expressed as an annual sum called the multiplicand. The last
and final stage is a determination of the appropriate multiplier which is then
applied to the multiplicand to give the total amount of damages.

It is necessary to comment briefly on how the court deals with each of the
stages while assessing damages in a typical fatal accident claim. In particular
it should be borne in mind that at each of the stages the court has to take into
account what has variously been described as “imponderables” or the
“uncertainties of life” or unforeseen contingencies.

The Lost Earnings of the Deceased

The starting point is for the court to make an estimation of the lost earnings,
that is the amount that the deceased would probably have earned if he had
not died. In arriving at the estimate, the court relies on evidence of the
deceased’s income including its source, amount and regularity. As already
mentioned, these are matters that should be stated in the plaint and then
proved by evidence.

31
In Akamba Public Road Services Ltd v. Aisha Babita 39a the Court of Appeal
held that where the evidence is unsatisfactory or non-existence the court may
take what it considers reasonable and realistic in the circumstances of the
case. This approach was also used by the Supreme Court in BAT (Uganda)
Limited Vs Mushongore39b.

The Datum or Multiplicand: The annual dependency

The next stage is to arrive at a reasonable estimate of the lost pecuniary

benefit to the claimants. This is the proportion of the deceased’s income that
was spent on his dependants. This is based on the presumption that not all
the deceased’s earnings were spent on the dependants. A portion would
ordinarily be spent by the deceased on himself and this must be deducted.
The amount arrived at in this manner is expressed as an annual sum called
the datum or the multiplicand.

The Multiplier

The multiplier is the number of years that constitutes the duration of the
dependency. It is usually the difference between the deceased’s age at the
time death and what the court considers to be his effective working age, that
is the age at which the deceased would have effectively stopped working or
in the case of children upon the attainment of majority age whichever is
earlier. Where there are several dependants with different durations of
dependency it is appropriate to take an average39c.

In arriving at the multiplier it is therefore necessary to first establish the age

of the deceased. Where a birth certificate is available this constitutes the best
evidence to prove age. However, despite the existence of an Act of
Parliament providing for the registration of births and deaths and the issue of
certificates therefore40, it is not a common practice. In general therefore, the
courts rely on the oral evidence of persons who knew the deceased for
example, the widow or widower.

However, in Lusiya v. Kampala City Council41 it was held that where such
oral evidence is unsatisfactory, then it should be supplemented by a
certificate from the doctor who examined the body as this can throw light on
the age of the deceased. In that case, the judge doubted the evidence of the
widow as to the age of her deceased husband because she did not know even
the ages of her own children.

32
With regard to the effective working age of the deceased, this is determined
on the basis of the circumstances of the deceased in each case. For example
the deceased’s occupation and his life style are relevant factors. However, in
general the courts have put the average working life expectancy in Uganda
at between 50 and 55 years. In the case of BAT (1984) (U) Ltd. v.
Mushongore42, the Supreme Court rejected attempts to reduce this figure
based on recent UNDP reports that the average national life expectancy has
gone down and is now in the region of 40 years. In light of the decision of
the Supreme Court in Mushongore, the recent decision of the High Court
(Byamugisha J) in Sebugwawo vs. Kyayi Mixed Farm43 that since the 1998
UNDP Uganda Human Development Report puts the average life
expectancy in Uganda at 50.9 years, then the average working life should be
put at 43 years, appears to have been made per incuriam.

However, it does not necessarily follow that a person who is over 55 years
has no effective working life. In Obwana vs. Aspro Ltd & Anor44 it was held
that where the deceased was over 50 years of age it does not follow that no
compensation at all was allowable to the dependants but the court had a duty
to make an estimate of the expectation of life in the particular case taking
into account the age, health and other circumstances of life of the deceased.
In that case a multiplier of 3 years was allowed for the deceased who was 57
years of age and employed as a security guard.

Also in Amina Musoni v. Akamba & Anor 45, a multiplier of 6 was

considered appropriate in the case of a deceased who was a self employed
businessman aged 54 years.

Imponderables and Uncertainties of Life

33
As was mentioned above, the total dependency is arrived at by multiplying
the annual dependency called the multiplicand by the multiplier. However,
the amount so arrived at is almost always reduced or taxed down to take into
account imponderables and the uncertainties of life. The assessment of
damages in fatal accident claims is based on certain assumptions relating to
the future prospects of both the deceased and the dependants. Thus, it is
assumed that the deceased would have lived and continued to earn the
income the he was earning at the time of his death and further that he would
have continued to support his dependants. In real life however, these
assumptions may not necessarily turn out to be the case. For example, the
deceased’s life could have been prematurely cut short by disease or his
income would have reduced. Moreover, it is possible that even the
dependants’ reliance on the deceased could cease altogether or reduce
through the death of the dependant or by the dependant becoming partially
or wholly self-reliant during the life time of the deceased. For this reason, in
the assessment of damages these uncertainties of life have to be taken into
account and this operates to reduce the amount of the award.

In particular, these imponderables and uncertainties almost always come into

play in determining the multiplier in that the balance of the deceased’s
working life is always scaled down to arrive at the appropriate multiplier
which as already mentioned, is then multiplied with the annual dependancy,
i.e., the multiplicand to arrive at the gross amount of the damages. However,
the amount so arrived at may further be reduced or taxed down on account
of the same said imponderables and uncertainties of life as well as the fact
that the amount is being paid in a lump sum.

The extent to which imponderables and uncertainties of life are taken into
account and their overall effect on the final amount of damages to be
awarded is entirely a matter for the discretion of the court in the particular
circumstances of each case.

Loss of Services

34
The method of assessment of damages outlined above was developed to deal
with the more usual type of claims for loss of financial support upon the
death of a family breadwinner. However, in some cases the claim is not loss
of direct financial support but for loss of services provided by the deceased.
This is usually the type of claim where the deceased was a mother, wife or
child to the claimants. Before the abolition of this type of claim in England
by the Administration of Justice Act 1982, English courts had developed
principles to deal with this type of claim. These principles are still of some
relevance in Uganda as no equivalent as no equivalent statutory alterations
to the law have been passed.

House-Keeping services of Wife or Mother

It was held that damages are recoverable for the loss of the house-keeping
services provided by a decreased wife or mother to the husband and children
and that the measure of damages is ordinarily what it would cost to replace
those services with hired help on the basis of market rates 46. These damages
are recoverable whether or not hired help is in fact employed 47. However, in
Mehmet v. Perry48 where the husband had to give up paid employment to
devote himself to looking after the children, the damages were assessed on
the basis of the lost salaries.

It should be pointed out that the Uganda case of Kibirige v. Juko49 in which
a husband’s claim for damages for the loss of services of his deceased wife
was dismissed on the ground of lack of authority was decided before Hays
v. Hugehs50 and it was bought under common law and not under the Law
Reform (Miscellaneous Provision) Act. It is submitted that a similar claim
coming becoming before the courts would now take into account the
principles laid down by the English Court of appeal in that case.

Parental Care and Guidance

As already seen above the original formulation of the principles of

assessment of damages in fatal accident claims contained in Daves v Powell
Duffryn Associated Collierries51 was that compensation was limited to “a
reasonable expectation of pecuniary benefit” and that damages could not be
awarded as solatum for injured feelings.

This essentially economic and material approach excluded any possibility of

compensation for loss of companionship or love of a spouse or even for loss
by minor children of parental love, care and guidance52.

35
However, English courts later made a break from this narrow approach.
Thus it was suggested for the first time in Hayes v Hughes53 that the loss of
a mother’s attention, care and guidance in the upbringing of her infant
children is a proper matter for the award of damages. Then in Regan v
Williamson54 which was decided a few months after Hay v Hughes55 it was
held that damages are recoverable for loss of parental care and guidance as
this is s service separate from the loss of a mother’s housekeeping services
and could not be replaced by hired house help. In that case therefore, the
dependency of the children was increased on this account from £12.50 to
£20 a week. This approach was followed in Mehmet v Perry56.

Loss of Services of a child

Many cases have come before the courts in this country in which a parent
seeks to recover damages for the death of a child as a result of the
negligence of a defendant.

Invariably in all these cases the claim is based on two aspects. Firstly, that
the parent has lost the services which the child used to provide within the
family and secondly, that the parent has lost future financial and other
material support that the child would have provided to the parent later on in
life during the parent’s old age.

The decisions of the courts in this matter appear to reflect a cultural conflict
between African and Western society which is that in a typical African
family household work is done by the members of the family themselves.
Where there are children, part of the household work falls upon them if they
are old enough. On the other hand in a typical Western family household
work used to be done by hired housekeepers.

36
In Muwanga v. Jiwani57 a case involving the death of a 13 year old girl, sir
Udo Udoma, the then chief Justice of Uganda in a bold judgement drawing
unmistakably from a strong African family background, held that the court
should take judicial notice of the fact that African children are usually
educated by their parents and guardians at considerable expense involving
more often than not, great personal sacrifice and that such children are
naturally expected to assist in domestic work at school and after school on
gaining employment to make contribution towards the maintenance of the
family, the term family being used here not in the European sense but in the
African sense which anthropologists usually refer to as the kindred or
extended family. On the basis of evidence that the deceased had been
serving not only her mother but also her grandparents when she was alive,
the Judge awarded damages for loss of service of shs. 5,400 to the mother
and shs. 2,700 to the grandparents which were quite substantial amounts at
the time. However, a few years later in Wilson Kabega vs. Uganda
Transport Company Ltd58 in a case concerning the death of a 13-year old
boy, Phadke J an English Judge no doubt looking at the matter through the
prism of a Western family rejected the principle laid down by Sir Udo
Udoma in Muwanga v. Jiwani59. He took the position based on section 55 of
the evidence Act that an African custom must first be proved by evidence
before a court can take judicial notice of it. He further held that the
household chores that a child performs were part and parcel of family lie and
did not have a pecuniary value.

Until the decision of the Supreme Court in Uganda Electricity Board v.

Musoke60 the decisions of the High Court oscillated between the position in
Muwanga v. Jiwani61 and that in Kabega v. Uganda Transport Co.62 with
the majority tending to follow the former.

37
However, the decision in Uganda Electricity Board v. Musoke tipped the
balance decisively in favour of the position in Kabega v. Uganda Transport
Co. Ltd. In the first place, the Supreme Court approved the decision in the
Kabega case that the ordinary household chores that a child performs in the
family context prima facie do not have pecuniary value unless there is
evidence that if the child had not done or performed them, someone else
would have been hired to do so. This raised the question as to what
constitutes what Phadke J in the Kabega case described as “small household
work”. In that case the catalogue of services performed by the deceased who
was a 13-year old boy included cooking (making tea for his brothers),
fetching water, making blocks, sweeping the house and courtyard, picking
coffee and cultivating potatoes. However, the claim for damages for loss of
services of the deceased all these services were performed by other members
of the family and that there was therefore no need to hire a servant.

On the other hand in the Musoke case the decision of the Supreme Court to
disallow the claim for loss of services was based on the fact that evidence of
the services provided by the deceased was obviously insufficient to found a
successful claim for damages. It is therefore clear that a lot turns on the
evidence in each particular case as to the nature of the services provided by
the child as well as the social and economic background of the family.

Secondly, with regard to damages for loss of prospective financial

assistance, the Supreme Court in the Musoke case also agreed with the
position taken by Phadke J. in Kabega’s case that it is erroneous to award
such damages solely on the supposed custom that African children educated
by their parents were in return expected to provide financial help to their
parents on completing school. Instead damages could only be awarded
where it is supported by evidence showing a reasonable prospect of
pecuniary benefit and not merely a fanciful probability.

The Court cited the observations in the English case of Barnett v Cohen63
that it was more of a fanciful probability to expect prospective financial
assistance in the case of a young child (in that case of 4 years) as such
prospect was always beset with doubts, contingencies and uncertainties
because of the risks of premature death through illness, disease, accident as
well as the fact that bringing up and educating a child is a heavy burden that
some parents may not be able to accomplish successfully.

38
On the whole, the decision of the Supreme Court in the Musoke case has
placed a very heavy burden of proof on any person seeking damages for loss
of services and prospective financial assistance upon the death of a child
especially if such a child is still relatively young. However, the whole matter
depends on the evidence in each case.

Deductions from Damages

In assessing damages in a fatal accident claim, the object is to compensate

the dependants for the loss of expected pecuniary benefit. This means taking
into account not merely losses but also the benefits accruing to the
dependants as a result of the death. As was stated by Lord Diplock in
Malyon v. Plummer64 this involves making two estimates; firstly what
benefit in money’s worth arising out of the relationship would have accrued
to the person for whom the action is brought from the deceased if the
deceased had survived but has been lost by reason of his death and secondly,
what benefit in money or money’s worth the person for whom the action is
brought will derive from the death of the deceased which would not have
enjoyed had the deceased lived. The difference between these two estimates
is the measure of damages recoverable. The benefits that are normally
deducted and taken into account in assessing the net pecuniary loss are
considered below.

Taxes

It was held in Stirling Civil engineering Ltd. vs. Margaret Kirumira 65 that
where the deceased was liable to pay tax on his earnings, the amount of the
tax should be deducted from the award. This is based on the logical position
that the award should be based only on the net earnings of the deceased.

Likelihood of Remarriage

39
The rule established by English courts was that likelihood of the remarriage
of a widow is a factor that had to be taken into account is assessing damages
under the Fatal Accident Acts. This rule was based on the common law
obligation imposed on a husband to maintain his wife. Thus, remarriage by
the widow had the effect of either reducing the award or terminating it
altogether as she would be dependant on her new husband. The courts
therefore had to estimate the prospects of remarriage and reduce the
damages accordingly66.

Where the widow has actually remarried at the time of the trial, the damages
had to be reduced67. In 1971 however, the Law Reform (Miscellaneous
Provisions) Act of that year specifically abolished the remarriage of the
widow or the prospects therefore as a factor to be taken into account in
assessing damages in fatal accident claims68.

In Uganda, the courts are still following the earlier common law position
that the prospects of remarriage have to be assessed and taken into account69.

Value of Deceased’s Estate

It was previously the view in English Courts that where the deceased leaves
property which is then inherited by the dependants, this devolution of the
property of deceased on the dependants was an “accelerated benefit” which
made the dependants better off after the deceased’s death. This led to an
approach whereby some deduction was made from the damages to take into
account this benefit.

However, this view progressively lost favour in England culminating in a

statutory amendment to the law expressly stating that such benefits shall be
disregarded in the assessment of damages70. Although in Uganda no such
amendment has been made, the state of the authorities supports the
conclusion that no such deduction should be made. The leading authority on
this is the case of Kasam vs. Kampala Aerated Water Co. Ltd71.

The above position was followed in Raja v. Kataria & Anor72. Again in
Gaffa v. HAtega73 it was stated that the modern view is that no automatic
deduction should be made for the value of the property inherited.

40
However, despite the above clear position, the old view that the amount of
the damages should be discounted on account of the acceleration of benefit
sometimes still rears its head in some of the decisions 74. Such a deduction
was made by the Court of Appeal in the recent case of Akamba Public Road
Services Vs Aisha Babita74a.

Action for Damages for loss of expectation of life

Apart from the claim for loss of dependency under section 7 of the Act, a
claim for loss of expectation of life is maintainable whether the deceased is
an adult or a minor. Section 13 (1) provides that on the death of any person
after the commencement of the Act, all causes of action subsisting against or
vested in the deceased shall survive against or as the case may be, for the
benefit of his estate.

At common law, a cause of action for loss of expectation of life ordinarily

vests in a plaintiff whose expectation of life has been reduced or diminished
as a result of personal injuries caused by the wrongful act of the
defenandat75. However, the general rule under common law was that any
cause of action in tort was automatically extinguished by the death of either
the victim or the wrongdoer. Therefore the effect of section 13 (1) is to keep
this cause of action alive even where the injuries result in death76.

As was pointed out in Paul Serwada & Anor v. Sewakiryanga 77, since the
cause of action under section 13 (1) is for the benefit of the estate of the
deceased, the proper person to bring such as action is the personal
representative of the deceased. It is therefore necessary that before initiating
an action for damages for loss of expectation of life, of a deceased person,
the plaintiff should take out letters of administration or probate as the case
may be. Otherwise a suit or claim in a personal capacity is liable to be struck
out or disallowed78.

41
Measure of Damages

The measure of damages in a claim for loss of expectation of life in the case
of a deceased person was discussed and elaborated by the Supreme Court in
the recent case of Uganda electricity Board vs. Musoke79. The Court
followed and applied the principles laid down by the House of Lords in
Benham vs. Gambling80 that the award of damages in cases of this nature is
made not on the basis of future pecuniary prospects but on the loss os
prospective happiness of the deceased as a result of the shortening of his life
and that moderate damages should be awarded whether in the case of an
adult or a child81.

It should be noted that Benham v. Gambling was decided against a

backdrop of inconsistent and generally escalating awards by English Courts
in claims of this nature and the House of Lords specifically set out to stem
the tide82. Thus an award of £1200 made by a lower court was reduced to
only £200 in the case of the death of a boy of two and a half years.
Following this decision, the position in England was that the average award
where the deceased was an adult was in the region of £300 to £400 and not
more than £200 in the case of a child.

It has been pointed out that in awarding damages for loss of expectation of
life of a deceased person, the courts were indirectly awarding compensation
for bereavement thereby circumventing the common law principle against
awarding damages as a solatium in case of death 83. In England, this type of
claim was rendered obsolete following express statutory provision for
compensation for bereavement under which the spouse of the deceased or
the parent of a minor who was never married can claim a fixed sum of
£350084.

In Uganda, the position is still that laid down in Benham v. Gambling. Thus
in Uganda Electricity Board v. Musoke, the Supreme Court was considering
an appeal from a decision of the High Court in which shs. 5.5 million had
been awarded as damage for loss of expectation of life in respect of a 14-
year old boy. The court following the post Benham v. Gambling approach
in English courts reduced this figure to shs. 1,000,000/= which was
considered adequate not only in that particular case but as a guide in future
awards in similar cases. Further in an apparent shift from the common law
position it was indicated that the element of bereavement should be
considered in awarding damages in this type of cases.

42
Exemplary and Aggravated Damages not Recoverable

Exemplary and aggravated damages are not recoverable in any suit in

respect of a fatal accident whether such suit is for the benefit of the
dependants of the deceased or of his estate. Section 13 (2)(a) expressly
excludes such damages where the action is for the benefit of the estate of the
deceased person.

Likewise where the suit is for the benefit of the dependants the methods of
assessment of damages, which has been discussed above is limited to only
quantifiable economic loss. The non-recoverability of exemplary damages
has also been echoed by the courts85. However, in Attorney General’s Vs
Musisi SPRy V. P. in a dissenting judgement expressed the view that
exemplary damages are recoverable under section 8 of the Act.

Appointment of Damages

Once the court has arrived at the amount of damages that represents the
estimated loss of dependency, its final role is to apportion these damages
amongst the dependants. This is a positive duty imposed on the court by
section 8 (2) of the Act and omission to do so is an error86.

In apportioning damages the court is guided by the circumstances of the

dependant in each case. However, in general it well established that when
apportioning damages amongst dependant children the ages of the children
are taken into account such that the younger children receive a larger sum
than the older ones on the ground that the period of dependancy is longer87.

It is also established that the widow is entitled to a substantial share of the

award on the ground that the dependency would have continued during the
entire life time of the deceased88 and further where there are minor children
the burden of maintaining them would fall on the widow89.

THE RIGHT TO MAINTENANCE.

Currently the is no statutory provision providing for maintenance in marriage ( that is

the provision in Uganda which is quite different in other jurisdiction).

43
However, under common the husband has a duty to look after his wife and therefore
the wife have the right to be maintained. Additionally under common the husband
has a duty to provide for martial home. The husband is therefore duty bound to
provide a roof over the wife’s head.

The right to maintenance under common is inferable under the law of Agency of
necessity. This principle can be exercised by the wife through a maintenance
agreement to that effect. It can also be enforced through a maintenance order issued
by a comp tent court of law.

AGENCY OF NECESSITY.
This is a common law right and arises where the wife collects goods from a trader for
her maintenance and under law sue is deem to be acting as an gent of husband. The
following condition must however, be satisfied.
1. The good collected must be a necessity of life that is according to the case of
CALLOT Vrs. NASH.

The case defines necessary of life to mean article, which are reasonable, needed
suitable to a situation to life and style of living fixed by the husband.
In the case NAJUNKI GENERAL STORES VS. MRS. PETERSON.
A married woman living with her husband and keeping house ordered from a
merchant goods of precisely the description one would expect a married pf situation
in life to order for and use in the house hold.

The issue before court was whether the wife contracted otherwise than an gent?
It was held that the respondent a married woman who at the relevant living with her
husband acted as an gent for and with the authority of her husband. Alternatively that
the goods where necessaries and suitable station in life.

NB. 1 Courts will not understand a set standard of good normally purchased in a
home by a man.

2. Court will normally “lift the vail” to discover behind the incomes of the
Man/Wife.

IN BUTTERFIELD VS. BUTER FIELD.

Court noted as a principle that where a wife has means approximately greater that
of the husband and there is no children and special circumstance such as
involving heavier expenditure she can not expect obtain a court order for
maintenance.

2. The husband must have failed to supply the wife with the necessity of life.

44
 1. The wife must not have committed any matrimonial offence such as
adultery.

2. A trader must show that he/she gave the goods to the wife as an agent and
not in her right.

OTHER INSTANCES WHICH CAN RENDER MARRIAGE NULL AND VOID.

1. If one of the parties is a lunatic, idiot

2. If the marriage is obtained without consent.

(a) Read the case of parajoic Vs. Parajoic (1951) I ALLER 1

FACTS:
The petitioner with her mother who had been in Yugolasovia left for England where her
father was living. He father forced her to marry the respondent without consent. After
the ceremony the petitioner locked her self in a won in a protest. Subsequently she
petitioned for nullity of marriage on the ground of duress and mistake. The issue before
court was whether the petitioner’s father could enduce her to go into a ceremony of
marriage without her consent.
Court held that though the petitioner had understood the nature of the ceremony, she did
not consent to the marriage but she was driven to go through the ceremony by terror
instilled in her by her father threat. The decree of nullity was therefore granted.

In the case of VALIR VS VALIR.

The matter involved an Italian man who went to England and met and England woman.
He knew very little English. The woman told him some thing he did not understand and
they went through a ceremony of marriage at the registrar’s Office. While at the Office,
he did not know what was going on he later learnt in the evening that he had got a wife.
In petition for nullity of the marriage. Court held that since his consent was obtained
fraudulently, the marriage was a nullity and it was set aside.

In the case of SPIRE VS SPIRE.

Held: That a void marriage can be declared so if never after the death of one of the
parties.

In HARTHAN VS HARTHAN (1948) 2 ALLER 639

Nullity – impotence – petition by impotent spouse – competency –need of repudiation of
marriage by potent spouse.

45
An appeal by a husband dismissing the petition to nullity on the ground of his wife’s will
full refusal to consummate the marriage or alternatively on the ground of his own
impotence. Appeal allowed and decree nisi granted on the ground of impotence.
It was held that a void marriage can be repudiated at the instance of either party where as
avoidable marriage can only be repudiated at the instance of the innocent party.

“That impotence merely render marriage voidable but not void” see page 652 of this
instance case”.

APROBATION OF VOIDABLE MARRIAGE.

This is said to occur if the parties to the marriage fully a wear of the defect making their
marriage voidable conduct themselves as husband and wife if ever after learning of this
defect.
In the case of K vs. K (1944) 12 KLR 23.
In this case the parties where married for 14 years. The wife petitioned for nullity of
marriage on the ground that the marriage had never been consummated owing to the
husband’s impotence.
It was held that despite the fact that the wife delayed for 14 years before she presented
her petition for nullity, her conduct could not a mount to a probation.

In the case D Vs. ……. (1945) 1 ALLER 58.

In this case the husband accepted to adopt a child when his wife could not deliver. Later
the husband left the wife and presented a petition for nullity of marriage on the ground
that wife was in able to con
Court held that in absence of evidence that a time of adoption, the husband was an a wear
of his legal rights. If the wife was incapable of consummating the marriage in.

And the legal consequences of adoption of a child and in the absence of proof that the
husband initiated the adoption with the help of the wife. There was a circumstance
provided which implied on the part of the husband recognition of the existence of
marriage has to render contrary to public policy if he was allowed to challenge it.

In the case of K Vrs. K

The issue was whether partial penetration as would have appeared to have take
can be said to have been consummation of the manage in the legal sense.
Court held that sexual intercourse in the proper meaning of legal term is ordinary
and complete. It doesn’t mean in partial or imperfect, it can not legally speaking
be termed at…………

46
It was therefore held that there was no marriage since consummation had never
taken place.
In the case of S. Vrs. S.

The wife was incapable of consummation the marriage of a thin hymen.

It was held that the wife had not come to a settle and definite decision and the
husband had failed to prove that she had will fully refused to consummate the
marriage. The husband’s petition was dismissed and the wife was granted
divorce on the grounds of her husband adultery.

Morgan Vrs. Morgan.

An impotent petition for the nullity of his marriage. It was held that the husband
was not entitled to the decree of nullity on the grounds of his impotence having to
made compassion agreement and the age of the parties ie. 67 for the man and
64 for the wife at the time of the marriage. Court further noted that it would be
contrary to justice and public policy for a man to plead his own impotence.

In addition S. 13 of the Divorce Act provides other instances such permanent

impotence at time of marriage therefore rendering the marriage null and void
abintio.

RECOGNITION OF FOREIGN MARRIAGES.

A marriage will be recognized in Uganda if it certifies the definition of marriage provided
in the case of Hyde Vs. Hyde.
Each of the parties must have capacity by the relevant law of their Domicile. The proper
test to apply in such circumstances was laid down in the case of Chini Vs, Chini
Where justice Simon notices it. That “What I believe to be the time test is whether
marriage is so offence to the conscience of the English court that it should refuse to
recognize and give effect to the English law. In deciding that question court would seek
to exercise common sense, good manners.
In the above case court gave recognition to a marriage between a uncle and nice which
wad valid by the law of the parties domicile in Egypt though it would have void in other
jurisdiction such as Uganda.

In the case of NACHIMSON VS. NACHIMASON.

47
Court held that a marriage held in Russia and intended to be for life came within the
definition of Hyde vs. Hyde not withstanding the fact that it would be dissolve by mutual
consent declared before the register at the will of either spouse by the judicial process.
It would however not have been regarded as a marriage had been a mere causal sexual
relationship to be dissolved in the next day or if it had confirmed no status on the parties.

It should however be noted that courts in Uganda and East Africa in general would not
recognized a union between 2 parties of the same sex or a child marriage. This is because
these kinds of marriages are illegal by virtue of the constitutional provision.

MATRIMONIAL PROPERTY.

This includes land, houses, bank accounts, insurance policies, and household properties,
marriage deeds. Currently there is no specific statutory law in Uganda governing
property acquiring by couples before and after marriage. Under common law, the
husband acquirers a proprietor interest in the property of his wife acquired during the
subsistence of the marriage. The wife therefore has no power to dispose off her property
during the subsistence of marriage without the husband’s consent. (This is the same
position with the customary law). In addition, under common law the wife cannot dispose
off property after engagement without the consent of the husband to be. If she does this,
the transaction will be void on the grounds that it was done fraudulently without the
consent of husband.

COMMON RIGHTS OF MARRIED WOMEN.

Under common law, a wife acquired no interest in her husbands property but if she
survived him, she is entitled to a third of his estate provided she had got a child with him.
However, over time courts have developed certain rules to counter injustices resulting
from this position. This includes: -

1. The concept of the wife separate property.

Where the property have been given to the wife for her separate use, she retain the
same right to dispose it off as if was un married.

2. Restraint upon anticipation.

This was a complementary rule to the first one. It prevents a wife from a signing
her beneficial interest in her separate property without her husband knowledge
because he is meant to guard the temptation of his wife and other family member
from disposing property.

These rules were developed by courts but later incorporated in legislation eg. The married
home property Act of 1888. This Act provided for the right of married women to retain
all their property owned by themselves at the time of marriage as their separate property.

In the case of UGANDA VS. JANE NACHANDA.

Court held that the married women Property Act recognized the right of women in
Uganda to own property on their independent of their husband.

48
However, this position was challenged in the case of WAVAMUNO VS. UGANDA
MOTORS.
Where it was held that the married women property Act and other were statutes of
general application and therefore no longer applicable in Uganda.

Each party must give consideration to the agreement by foregoing his or her right to
the other consortium. Read: Re- Wston (1900) 2 ch. 164.
Such agreement Relating to the maintenance of the wife and children, the custody of the
children as well as the division and use property which constitute the matrimonial home.
In such cases it is always advisable that such agreement is reduced into writing by way of
a “ separation deed”.

Where a deed is intended to be executed, the parties usually enter into a biding prim
nary building agreement known as Articles of separation

THE LEGALITY OF SEPARATION AGREEMENT.

At the beginning of the Evolution of the common law, separation agreements were
considered illegal and therefore unenforceable. The basis for this was that such
agreements tended to undermine the social structure of state and where therefore contrary
to public policy. However, it was later realized that by adopting this attitude the courts
were merely closing their eyes to common practice and refusing to accept the fact that
where a marriage has clearly broken down and there is virtually no immediate possibility
of the parties continuing to leave together in harmony, it is better for all the concerned
parties and the society as a whole that they should be able to settle their differences
outside court other than dragging their matrimonial quells into the open. This position
was clearly laid down by the House of Lords in the case of WILSON VS WILSON
(1848) 1. H.L.538. In this case it was pointed out among others that there was nothing
illegal for the parties to have a separation agreement. However, for the separation
agreement to be recognized according to this case the marriage must have already broken
down therefore were spouse who are using together enter into an agreement regulating
their rights in case they separate in future such an agreement is contrary to public policy
and therefore void.
Read also HINDLEI VS WESTMENTH (1827) 6.H.L. 200.
The is one exception to this rule that is if the spouse are living a part and they enter into
agreement which is supposed to govern their reconciliation such parties can make
provisions in the agreement regulating their position in case their attempt to leave again
proves unsuccessful consequently since such an agreement is intended to promote their
reconcilation, and resume co-habitation it would not be void a separation in future, it
would be legally for cable incase they separate again in future.
Here read the case of RE-MEYRICK’S SETTLEMENT (1921) I.CH. 311.

49
VOID AND VOIDABLE SEPERATION AGREEMENT.
A separation agreement may be void or voidable for the same reason as any other
contract. This, separation agreement may be void on ground of mistake.
According to the case of GALLOWAY VS GALLOWAY (1914) 30.T.L.R. 531.
It was held that a separation “deed” entered on the assumption that the parties were
married validly when in fact the marriage was Bigamous was itself void for mistake.
Similarity a separation agreement may be voidable for fraudulent or innocent
misrepresentation or for an due influence eg. Telling the girl one is intending to marry
that he is holding various edification like LLB. Matters in law or PhD yet it is false.

A separation agreement may be void for other reasons for example if one of the parties is
guilty of having committed a matrimonial offence such as adultery. Here read the case of
FEARON VS ALYESFORD (1884) 14 Q.B.D. 792.

COMMON TERMS (FEATURES) IN A SEPARATION DEED.

As already pointed out separation agreement may vary from simple oral agreement to
leave a part to complex separation deeds.

It is therefore quite impossible to intimate what a standard form agreement will contain.

However, the following are some of the terms, which will appear in many agreements
1. Agreement to leave a part. This is the basic term in all separation agreements by which
each spouse is realized from the duty of co-habiting with the other.

2. The non-molestation clause. This is a frequently used term, which implies that neither
spouse will not molest, interfere, annoy or in any way mistreat the other. In order to
amount to molestation there must be some act done by the spouse/on his/her authority
and the nature of the act was described in the case of Featon Vs AlyledFord (1884) 14
Q.B.D. 792. Where it was alleged that a wife had failed to observe a covenant not to
molest her husband. It was held by Bett M.R. this Test fore Molestation case “I am of the
opinion that the act done by the wife or by authority must be an act which is done with
intent to annoy and does in fact annoy or which in fact an annoyance--- or an act done
by her with the knowledge that what she is doing will annoy her husband or annoy a
husband with ordinary and reasonable feeing”. This is the test for molestation case
therefore it must be consideration while handling separation deed agreements.

50
The facts of this case where that the spouse entered into a separation agreement in which
the wife covenanted not to molest her husband. She later lived in adultery and as a result
of this adultery intercourse a child was born which the husband alleged that was being
held out as his son (holding the child in pretentious way). It was held that the wife’s
committing adultery could not amount to molestation of her husband because it was done
to annoy him but to gratify her sexual needs and consequently the birth of the child which
was the natural result of the adultery could not amount to molestation that the act which
has caused it.

On the other hand her holding the child (pending) out as the legitimate child of her
husband would clearly amount to molestation as by this definition. Similarly the parties
subsequently petitioning for divorce will not amount to a breach of non-molestation
clause. This is because they are considered together.

3. It should be provided for in a separation agreement that the husband shall

make periodical payment eg. Monthly to the wife or to the agent on her behalf.
Great case should however, be take to define precisely the extent of the husband’s
liability and therefore the financial capacity of the husband should also be taken
into consideration. The modern tendency disregard the provision of the wife as
that such a provision should last as long as the wife leaves.

Read: RE-LINDINGTON VS.THOMAS AND OTHERS (1940) 3 ALL ER. 600

BEFORE FARWELL. J.
Will – family provision –wife entitled to annuity under separation deed. Sum of money
paid to some one annually 4 the rest of life. Annuity ceasing on death of husband – wife
having custody of infant children – “I have nothing whatsoever to my wife” –
inheritance.

FACTS: By the will dated June 30,1936, the testator made no provision foe his wife,
which fact was expressly stated in the will. The value of the estate was
about pound 2,000. The testator left a life interest in a quarter share of his
estate entirely outside the family. By a separation deed dated June, 1,1937, the
testator covenanted to pay “during the continuance” of the deed an annual sum
of his and to contribute forwards the maintenance of the infant children of
whom his wife have the custody.

Issues 1. Whether the wife was entitled to receive the payment under the deed after
the death of the testator.
2. Whether the wife was so entitled to ask for an order for court for
reasonable provision for her maintenance pursuant to inheritance.

Held: 1. On the construction of the separation deed as a whole, the payment made
there under cased on the death of the testator.
2. The application lay within the act and an order should be made that, until
further order, the plaintiff should be paid 2/3 of the income of the

51
 intestate as a whole. She under taking to maintain the
children during infancy. The testator’s disposition of the life
interest in a quarter of the estate should remain untouched. However,
in case she commits a matrimonial offence the covenant to her
maintain ceases to apply. In case her husband dies it is or had been
held in some cases that such a covenant may be enforced against the
husband’ executors.

Read also KIRK VS. ……………..(1937) 2 ALLER. 417.

NOTE: The amount to be included in the maintenance clause must be perfectly

reasonably according to the husband’s financial abilities and in case there is a change in
the financial position, the amount must be also adjusted accordingly.

4. DUMCASTA CLAUSE.
The fact that the husband may remain liable on his covenant to maintain his wife
whatever may happen in future the law imposes an equal obligation on the wife to lead a
“chaste life”. Therefore the husband will not remain under any contractual duty to
maintain his wife if she subsequently commits adultery.
According to FEARON VS ALYES FORD (1884) 14.Q.B.D. 792. It was held by the
English court of appeal that such a clause will not be implied if it is not expressly
provided for in the agreement.

5. CUSTODY AND MAINTENANCE OF CHILDREN.

At common law agreement by which a parent does to himself in the custody of the
children was considered to be contrary to public policy and therefore void. However,
with regard to separation agreement, the situation was different and it was therefore
governed by the guardianship Act of 1973. Under this Act it was provided that a spouse
may give up in whole or in part in his or her right an authority in relation to custody and
up bringing of his or her children in a separation agreement.
However, courts will not enforce such an agreement if it is not in best interest of the
child. If one spouse is given custody or case and control of the children it is usual to
provide that the other shall have access to them and also that he or she shall pay
periodical sum by way of maintaining for the. Member of Parliament for Kassanda North
was dragged by his wife Rose Namatta to court in 2004. See daily Monitor for May 30,
2004 at page 17.

It must be noted that S.6 (1) of the children Act cap.59 and S. 7(1) of the 1996 children
statute, the supreme instruments governing all aspects about children and protection
stipulate, “Every parent shall have parental responsibility for his/her child”. Therefore
if it is the woman who is well off and the case goes to court, the judge may rule that the
woman meets of taking case of the children.

In consideration for this, the spouse with custody frequently undertakes to be liable for
educating and maintaining them. However, in case of change in circumstance, which

52
may affect the well fare of the children, either spouse may apply to court to alter the
agreement.
Welfare principal must be noticed for example Children of tender years with the mother,
Moral bound.
Here Court ask children question if there are of a reasonable age.

Note: For custody of a child see a Ugandan case of Dr. Speciosa Wandira Naigaga
Kazibwe Vs. Eng. Charles Nsubuga Kazibwe a divorce cause No. 3 of 2003 (un report
case) in the High Court of Uganda at Kampala per judgment of V.F. Musoke – Kibuuka J
at page 10 where in regard to S. 29 of divorce Act cap. 249 out of the 4 children produced
by the parties here in this case, the 16 years old minor Julian Luutu Kizza was given to
the petitioners custody but with visitation rights to the respondent to visit Julian at school
during school term, and to host him at the respondent’s home for part of the duration of
school holidays.
NOTE: Points 1-5 above answers the question what are features of a separation deed or
agreement.

Read the following cases for custody of children.

NAKAGGWA VS KIGGUNDU (1978) HCB 315.
HABYARIMANA VS HABYARIMANA (1980) HCB 139.
GEORGE NYAKAIRU VS ROSE NYAKAIRU (1979) HCB 261.

For example Simon and Sara are in the process of having a divorce. They have children
aged 2,10 and 18. Simon, the more financially stable of the two, would like to have
custody of the children and he claims Sara is not a good mother because she is
adulterous. Sara claims that Simon drinks too much and as a result he some times beats
up the children. They both think they each have a reason enough to have custody of the
children. Well, solution is bellow.

Article 31(4) of the 1995 constitution of Uganda provides that “ it is the right of parents
to care for and bring up their children”. This provision therefore gives parents the right to
be with their children and to raise them. The issue of custody, however, arise where
parents live apart or are going through divorce proceedings, or have an illegal marriage or
are married or when one of the parents dies.
Custody of children in simple terms is about who is better placed, mentally and
financially, to take care of the children should the circumstances listed above arise. In
order to determine who will have custody of children, an application is made to a court of
law and a number of factors will then be considered, the guiding principle being the
child’s welfare. Welfare is defined to mean the circumstances facing the well being and
upbringing of a child. Children of tender age in most stay with their mother, unless she is
not fit and not a proper person. This means that she has to show more than a mother’s
natural desire to be with the children to convince the court to give her custody of the
children. Despite the fact that the child’s welfare is the paramount consideration, the
court have also to consider other circumstances, for example who of the spouses is to

53
blame for the breaking up of the marriage and who of the spouses is more financially
stable to look after the children’s interests and which of the spouses can provide a
comfortable home. This is what is termed as unveiling or uplifting skirt in legal filed.

It should however, be noted from the case GEORGE NYAKAIRU VS ROSE

NYAKAIRU (1979) HCB 261 that immorality on the part of the father is not sufficient
justification for interfering with the father’s right to the custody of his children, unless
such immorality is coupled with other habits injurious to the child, for example cruelty.
In this case it was noted that cruelty on the part of George towards Rose had been
proved thus implying he was partly responsible for the breaking up of the marriage,
although Rose was guilty of adultery. Rose was granted custody because of his cruelty.
This is in consonance with wise words of SPRY J who noted in the case of CHRISTINA
D/O OMARI (1963) E.A 463 at page 464 that in absence of special circumstance, it is
generally in the interest of every young child to be in the custody of their mother.

The law under S. 87 of children’s Act CAP. 59 provides that “where the court during
divorce, separation or nullity proceedings finds that the child is suffering or is likely to
suffer significant harm as a result of both parents being unfit to have custody of the,
court shall place the child in the custody of a fit person, but both parents shall be
allowed to have reasonable access to the child unless it is not in the best interest of the
child”. Therefore, when one parent is given custody of the child, the other parent should
seek a court order to allow him or her see the children.
According S. 84(1) of children’s Act CAP. 59 in all cases of divorce or separation, both
parents shall continue to maintain and educate the child and joint consolation between the
parents a bout bring up the child shall take place where possible. However it is not
guarantee that once custody is given it cannot be taken away, as a court order for custody
may be revoked when it is proved that the parent is willfully neglecting and mistreating a
child. This is in concord with S. 85 of children’s Act CAP. 59.

54
 THE REPUBLIC OF UGANDA

IN THE MATTER OF THE DIVORCE ACT CAP. 249

AND
IN THE MATTER OF SEPARATION DEED

SEPARATION DEED BEWEEN MR. X AND MRS. Y

Whereas unhappy differences have arisen between Mr. X and Mrs. Y by reason whereof
they are unable to live harmoniously together and they are desirous of separating the one
from the other upon the terms hereinafter expressed: -

1. That the parties hereto shall henceforth live separate and apart one from the other
and neither of them shall during the continuance of this deed at any time or in any
manner directly or indirectly molest, disturb or interfere with the other of them or
any person or persons with whom he or she may be residing for the time being.

2. That husband will during the continuance of this deed pay to the said wife by equal
monthly payments in advance the sum of Ug. Shs…………………per annum
without any deduction for any income tax or any other deduction whatsoever for the
maintenance and support the first of such payments to be made when the wife
vacates the said premises No. ………….. Mukudo Crescent Road. Provided always
that if the said wife shall at any time be guilty of scandalous or unchaste conduct or
commit any serious or persistent breach of any stipulation on her part herein
contained all liability of the said husband under this clause shall cease and
determined with immediacy.

3. That the husband agrees that the wife shall have the custody of the.
children……………of the marriage the husband to have reasonable access to the
child………………………..at all time reasonable periods at reasonable time with a
maximum of one-half of each school holiday and one month during each alternative
Christmas.

4. That the husband is also to have access to the child…………………………. For

at least one week-end in every month and for one day in each week and further for
the same access as in the case of ………………………… so soon as
………………shall attend boarding school, which not be before he or she reaches
the age of ……………………….

5. That the husband further is to have full control of the choice of schools and
education for the children but shall not choose a day school for the
chilld…………..that is not situate conveniently near the place the wife may be
living.

55
6. That no any of the parties in this deed shall be allowed to take either of the said
children out of the country without the consent of the other party.

7. That the husband agrees to pay all the school fees for the said children and further
to pay to the wife the sum of Shs. ………………………… per week or month for
the child ……………………….. whilst he or she on holiday and residing at home
to be provided by the wife and also the sum of ………………. Per month or week
in Advance for the child ………………………the payment of such sum to
commence from the date of …………………….

8. That the husband will during the continuance of this deed pay all proper fees
incurred for the medical attendant but the husband to approve first of such
medical attention except in emergency. The wife in this connection undertaking to
notify immediately the husband in the case of any such illness and to give all
reasonable and proper access during such illness at reasonable times to such child
or children apart from the access hereinbefore provided for.

9. That the wife will during the continuance of this deed keep certain chattels and
certain other things, and she undertakes to provide for herself and the said
children a home which is not to be at or with any of the wife’s immediate
relations such home to be consistent with her income under this deed.

10. That the wife shall not at any time during the continuance of this deed contract or
purport to contract any debt as agent for the husband or under any circumstances
so as to expose the said husband to any liability for such debts.

11. The wife shall not nor shall any person or persons on her behalf at any time
hereafter molest or disturb the said husband or by any means either by taking out
or process or by instituting any action or in any other manner compel the
husband to cohabit with the wife or endeavor to enforce any restitution of
conjugal rights or to compel the husband to allow her any maintenance further
than provided for by the deed.

56
AGREEMENT RELATING TO PROPERTY
The spouse may make provision with respect to property, which constitute the
matrimonial home. However, in practice there is no law regulating matrimonial property
in the event of separating or divorce. The issue of property will then depend on the
parties involved as well their financial abilities. This should be subject to article 33 of
the 1995 constitution of Uganda which provide for equal right during marriage and at its
dissolution.

EFFECTS OF A SEPARATION AGREEMENT

The principal effect of a separation agreement is that the spouse release each other from
the duty of co-habiting with each other this will prevent either side from alleging is on
desertion. It may also mean that a husband who has sexual intercourse with his wife
without her consent will be guilty of rape contrary to S. 123 of P.C.A. cap 120. If the
agreement contain the non-molestation clause.

Read R VS. MILLER (1954) 2 ALLER. 529

Criminal law – rape – by husband on wife – no separation agreement or order in force –
divorce petition presented by wife.
Criminal; aw assault occasioning actual bodily harm – enforcement of husband’s
marital right – mental injury – offences against person Act.

Facts: Plaintiff sued the husband she had left the husband, but did not apply for a
separation order or for an order of judicial separation and there was no separation
agreement between the parties. The wife presented a petition for divorce on grounds of
adultery. On May 21, 1953 before the petition was heard the husband had intercourse
with her against her wish. He too used force hence causing on her nervous condition
after wards. The husband was charged on indictment with rape and with assault
occasioning bodily harm. On a submission by the defence that there was no case to
another.

Court held: (i).That the fact that the wife had left the husband and had presented a
petition for divorce did not amount to a revocation of the consent to
marital intercourse impliedly given by her at the time of the marriage and
as the implied consent had not been revoked either by an act of the parties
or by any order or decree of a court, the husband could not be guilty of
rape.

ii) That assault occasioning actual bodily harm include an assault

which resulted in an injury to the state of a person’s mind for the
time being although the husband had a right to marital

57
 intercourse, the violence for the purpose of exercising that right
and if he did he was guilty of an assault,

Verdict: Not guilty on the first court guilty on the second court.

N.B. Archibald’s criminal pleading evidence and practice 32nd edition Page 959 define
bodily harm- “ ……. To include any hurt or injury calculated to interfere with the health
or comfort of the prosecutor…”. A part from that the general duty is placed on both sides
to respect their respective covenant within the agreement.

DISCHARGE OF SEPARATION AGREEMENT

1. Discharge by agreement – the agreement may be effectively being discharged in

accordance with its terms. Read NEWSOME VS NEWSOME (1871) L.R. 2.
Where the wife promised to be bound by the agreement only if her husband
remained true to her.

2. Resumption of co-habitation. When the parties resume co-habitation the

separation agreement automatically comes to an end. And the parties are no longer
bound to obey its covenant. However, with respect to the husband’s common duty to
maintain his wife, the husband will still remain liable as long as she has not committed
adultery. In the case of BATEMAN VS BATEMAN (1813) 1 LR.61
It was held among others by Lord Eldon that there is a presumption that obligation
imposed on spouses in a separation agreement cease to have effect on resumption of co-
habitation.

3. Discharge by breach – a repudiation of the agreement by one of the spouse will

automatically give the other right to treat it as discharge if he/she wishes to do so.

In the case of PARDY VS. PARDY (1939) 3 ALL ER 779

Divorce – Desertion –Separation deed-Husband’s failure to pay – repudiation of deed –
acceptance of repudiation by wife.

Facts: The petitioner was married to the respondent on September, 24,1928. They lived
at the house of the husband’s partners. The marriage was a failure almost from the
commencements, the husband staying out at right and drinking heavily. In May 1932 the
spouses executed a separation deed and thereafter lived apart. Under the deed, the
husband agreed to pay to the wife pound 1 per week, for her maintenance. The husband
made payment under the deed until September, 1932 but after that date only pound 2 was
paid in all; no payment was made again from them on words. The husband wrote to her 2
letters asking for forgiveness and promising help to which no answer was made by him.
The parties met in 1937 in a spirit of neutrality to discuss the future, but without result.

It was held among others Lord Greener matter of Lords pointed out among others that the
innocent party is not bound to inform the spouse in breach that he has accepted
repudiation. It is sufficient if there is other evidence in that he has not insisted upon

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performance of the terms but he has treated the agreement as a deed letter and neither
party regards it as still in force nor can they rely on it to justify the continued separation
for instance mere failure on the husband’s part to pay maintenance to his wife will parse
(on face of it) amount to repudiation if it is proved that it has been deliberately done.

Appeal was allowed and decree nisi granted.

3. Subsequent matrimonial proceedings. A separation agreement will automatically

come to an end after a court of competent jurisdiction had passed a decree of
nullity or divorce.

REMEDIES FOR BREACH OF SEPATION AGREEMENT.

1. ACTION FOR DAMAGES – defined by black’s law dictionary page 389 as a

pecuniary compensation /indemnity, which may be recovered in the courts by any person
who has suffered loss, determent or injury whether to his person, property, or rights,
through the unlawful act or omission or negligence of another.

Under common law damages are one of the relief available to an innocent party in case
there is a breach of contract or agreement.

2. SPECIFIC PERFORMANCE.
This may be sought in 2 cases.
a) By either party refusing to execute a deed of separation to which he/she is a
party.
b) If the agreement involved a contract to create a trust the husband may be
ordered to transfer property or funds to trustees in accordance with terms of
his promise example Refusing to transfer a plot to the trustees for the use or
maintenance of his children.

NB. The remedy of specific performance compels. The wrong does to carry out his
contractual obligations. Thus he can be forced to compete the transfer of the land rather
than offer damages. See the law of contract in East Africa by R.W Hodgin at page 218.

3. AN INJUNCTION.
This may be granted to prevent a breach of a negative example the breach of the non-
molestation clause.

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 JUDICIAL SEPARATION
A decree of judicial separation is a pronouncement by court upon the petition of one of
spouses ordering the parties to withdraw from co-habitation. It may be on the same
grounds as for divorce that is adultery and for the wife it may be coupled with other
grounds such as desertion without reasonable excuse for 2 years, crudity incestuous
adultery, bigamy with adultery, Sodom, rape, bestiality etc. See Section. 14 of Divorce
Act cap. 249)
It may be done where the parties have been married for not less than 3 years or where
they don’t wish to go through divorce proceedings. However, it should be noted that
judicial separation de Jure does not end the marriage. For all intend and purpose
however the marriage de facto comes to an end up on the decree of judicial separation.

EFFECT OF THE INDICIAL SEPARATION.

The decree of judicial separation has one major effect on the marriage such that the
petitioner is relied from the duty of co-habiting with the respondent. This means that so
long as it is in force and the parties have not reconciled, neither spouse can be in
dissention and also if the husband have sexual intercourse with his wife against her will
be guilt of rape Contrary to section 123 of P.C.A cap. 120.

Read also R VS. CLARKE (1949) 2 ALL ER 448

Criminal law –rape –by husband on wife –separation order in force.
FACTS:
The accused (husband) was charged on indictment by first court with rape of his wife and
2nd court with an assault on her occasioning bodily harm on the same date.
The 2 were married on Oct. 8, 1938 and on March 2, 1949 the wife obtained a separation
order containing the usual clause providing that she was no longer bond to co-habit with
the accused. The wife had not resumed co-habitation at the time of the alleged offence.
On a motion to quash the first commit of the indictment on the ground that it disclosed no
offence know to the law.
Court held as per Byrne J. that as a general proposition of law husband can not be guilty
of a rape on his wife, but where justices had made on order containing a provision that a
wife be no longer bound to co-habit with her husband the consent to marital intercourse
impliedly given by the wife at the time of the marriage was revoked there by and the
husband was not entitled to have intercourse without her consent with the result that he
could be guilty of rape.
NB. As to rape by husband on wife see Halsburry, Hailsham edition Volume 9 page
476 para.815.

According to S. 14 of the Divorce Act cap. 249 it is provided that a husband/wife may
apply to court by petition for judicial separation on the grounds of cruelty, adultery etc.
And court on being satisfied, that the allegation of the petition are true and that there is no
legal ground why the application should not be granted by decree judicial separation
accordingly.

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OTHER EFFECTS OF THE SEPARATION:
Under S. 15 of the Divorce Act cap. 249 where judicial separation has been granted the
wife shall from the date of the decree be considered as un married with respect to
property which she may acquired and she may dispose it off as if where un married
woman.
Under section 18 of the divorce Act cap. 249 court is supposed to make protection orders
in respect of the wife’s property where the husband may have acquired an interest by
virtue of the marriage in case he deserts her court is supposed to make an order to protect
any property which she may have acquired after desertion. Under section 16 of the
Divorce Act cap. 249, the wife shall be personally liable for contracts, wrongs and
injuries and of suing and being sue in any civil proceedings and the husband.
Under section 20 of the Divorce Act, court has powers to make an order of restitution of
conjugal rights. However, whatever is pleaded in answer to a petition for restitution of
conjugal rights shall not be a ground for judicial separation.

DIVORCE AND SEPARATION

Separation is an agreement between a husband and wife to live a part from each other for
a given time. This agreement can be made between the parties themselves or they can go
to courts of law to be separated by court order. The intention is for the parties to suspend
sexual intercourse or sexual relations but not to end the marriage. Separation by
agreement is when couples agree to live a part from each other when arrangement as to
who shall live with the children provide for their food, clothing shelter, education and
medical attention. Judicial separation is when court orders the parties to separate from
one another after one of them has opened a case of adultery, cruelty, desertion without
reasonable execute. Divorce is the permanent termination of a legal or valid marriage by
the court of law (see. 14-19 Divorce Act CAP. 249)
Under Section. 14 of the Divorce Act CAP. 249, a husband or wife may apply by petition
to account for judicial separation under a ground of cruelty, adultery, desertion without
reasonable cause for 2 or more years and the court on being satisfied that the allegations
of petition are the may grant a judicial separation accordingly. Under section 15 of the
Divorce Act CAP. 249, under that type of separation, although the marriage is still
subsisting, the wife is treated as unmarried with regard to the property she acquired from
a date of the decree of separation. This is in respect to property of every description,
which she may acquire before final disposal of their marriage.

Under section 16 of Divorce Act CAP. 249, it pursues more less the same approach with
regard to contracts wrongs and injuries when the separation still exists. The wife can sue
of be sued in her own names. The husband is not liable.

Under Section 17 of Divorce Act CAP. 249, the separation can be reversed on application
by the husband or wife if one of the parties shows for example was absent during the

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granting of the separation or if it was because of desertion, the other party may prove that
there was reasonable excuse for desertion. Here read the case of:
COLLAROSSI VS COLLAROSSI 1965 E.A 129.
BUHARA VS BUHARA (1977) HCB 86.

DIVORCE
There are 3 types of divorce recognized by law namely: - Statutory divorce – Customary
Divorce – Divorce under the sharia law.
Statutory Divorce applied to a church or civil marriage the some times to a customary
marriage. The law requires that before a couple can apply for divorce, they must have at
least been married for 3 years. However, in some situation there are circumstances
making it impossible for the couple to continue living together then a divorce can be got
as soon as possible.

Customary divorce occurs when a couple married under customary law decides to end the
marriage. There is not set procedure for this divorce but it is conducted according to the
customs the practice of the community to which the couple belongs.

Divorce under the Sharia law depends on the religious sect to which the parties belong
and the instances are as follows:-

1. A husband can divorce a wife by pronouncing after pronouncing the word

“Talak” 3 times at ago after which the marriage will be dissolved.
2. A husband can pronounce with the word “Talak” once a month for 3 months and
the 3rd time is a separation.
The divorce has to be registered with the Registrar of Marriage and Divorce of
Mohammedans.

Before the area of Divorce was littered with another of provisions that discriminate
against women, this was contrary to the guarantee of equality under Article 21 of the
1995 constitution of Uganda.

Sec. 4 of the Divorce Act provides for ground of divorce by either husband or wife under
Sec. 4 (1) a husband may apply by petition to the court for the dissolution of her marriage
on the ground that since the solemnization of marriage, her wife has been guilty of
adultery. Sec. 4 (2) A wife may apply by petition to the count for the dissolution of her
marriage, on the ground that since the solemnization of the marriage
a) Her husband has changed his profession of Christianity for the profession of
another religion and gone through a form of marriage with another woman
b) He had been guilty of incestuous adultery, bigamy with adultery, Marriage with
another woman with adultery, rape, sodomy or bestiality, Adultery coupled with
cruelty or adultery coupled with desertion with out a reasonable excuse for 2
years or upwards.
Strictly proving these grounds by the petitioner, there is fortification by the law. This
epitomized under section 8(1) of the Divorce Act Cap. 249 that provides that; “if the

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court is satisfied that the petitioner’s case has been proved and not find that the
petitioner has been accessory or has connived at the going through of the form of
marriage or adultery, or has connived at or condoned it or that the petition is presented
or prosecuted in collusion, the court shall pronounce a decree nisi for the dissolution of
the marriage”

1. ADULTERY Matrimonial adultery refers to sexual intercourse between a married

spouse and another person of the opposite set to whom he/she is not married.

See also Halsbury laws of England 3rd edition para. 444 page 235 – 236 or Habyarimana
Vs. Habyarimana (1977) HCB 139 for more emphasis.

In various cases, it has been held that to constitute adultery as a ground for divorce, there
needs to be full penetration of a woman. Proof of adultery rests on person alleging it there
being presumption of innocence Galler Vs Galler (1954) page 252. In the same it is
noted that proof of adultery rests on person alleging it there being presumption of
innocence.
In the case of DENNIS VS. DENNIS (1955) 2 ALL ER the court of appeal held that
some degree of penetration of a woman must be proved to have taken place although
sexual intercourse need not to be complete. Therefore in DENNIS case, an attempt to
commit adultery, penetration having not taken place does not constitute grounds for
divorce. However, partial penetration will constitute adultery and it’s a sufficient ground
for divorce.
In some other legal systems, artificial insemination has been held to constitute adultery.
Therefore it seems to be the case under the decision of Dennis’ case.

PROOF OF ADULTERY
One requires direct evidence that is to say where the parties are caught read-handed or
“franganto delicto”. However, indirect evidence can be relied upon. Adultery can be
injured from the circumstances of the case for instance that the parties had the
opportunity to commit adultery e.g. if they are caught locked up in a hotel room say for
one hour. In such circumstances, evidence of the waiter or waitress may be admissible in
court. Also to prove adultery photographs, exhibits of adultery and showing of children
fathered outside wedlock can be admissible in court. See DR. SPECIOSA WANDERA
NAIGAGA KAZIBWE VS ENG. HARLES NSUBUGA KAZIBWE DIVORCE
CASE NO. 3 OF 2003 (unreported) at page 6 of judgment of Musoke – Kibuuka judge
of High Court of Uganda held at Kampala.
Cruelty can too be proved by admission on the part of the party against whom it has been
alleged this in consonance with holding in the case of PAN AFRICAN INSURANCE
CO. VS UGANDA AIRLINES CORPORATION (1985) HCB 53 where it was noted
that “a plaintiff is entitle to judgment only in well stipulated situations namely, by
consent of parties or entering appearance or defence, by consent of parties, on admission
of the plaintiff’s claim by the defendant, after trial of issues of law and after hearing the
suit”. This was too applied in the case of DR. SPECIOSA WANDERA NAIGAGA

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KAZIBWE VS ENG. CHARLES NSUBUGA KAZIBWE (supara) at page 8 of the
judgment
In Ugandan case of BUHARA VS RUHARA (1977) HCB 86, it was held that adultery
must be proved beyond reasonable doubt although the extent is not as the one required in
criminal cases and the burden of proof lies on the petitioner. In addition, to establish
adultery the act must be voluntary hence if a married woman is raped she doesn’t
committee adultery similarly a person committing the act must appreciate what the act is
for example If he or she is unsure at the time of the act, then there is no adultery that is
committed.
In another case of RAPSIN VS RARSIN (1953) 2 ALLER 412,
The husband admitted to his wife that he had committed adultery and showed her
hotel bail. She filed a petition for divorce on the ground of her husband’s adultery at
the hotel with unknown woman. At the hearing the waiter gave evidence and the
hotel register was produced. Court held that if even where there was back ground for
adulterous association, court was always prepared to make a finding of adultery
where hotel bills and registers was produced and a waiter called upon to give
evidence in the circumstance of the present, court was satisfied that the husband had
committed adultery and the wife was entitled for a degree of divorce. It must be
pointed hence here that circumstantial evidence must lead the court to believe that
adultery was actually committed.

This now becomes a benchmark that where there is evidence that the 2 were together in a
hotel, as per the above case it is sufficient to include that there was adultery.
It should also be noted that the motive, which induces the respondents to commit
adultery, is irrelevant. Also read;
MUSINGA VS MUSINGA (1993) 6 KALR 160
OWENS VS OWNS (1959) EA. 909
MWANJE VS MWANJE (1982) HCB 136
KAHAWA VS KAHAWA DIVORCE NO. 2/97

2. CRUELTY
This refers to conduct of either party, which leads to the other to sustain actual injury or
apprehend danger to the other. It can be therefore physical assault, threats or abusive
language. This is quite a different notion and various trends of conduct may amount to
cruelty to entitle a spouse to petition for divorce.

In the case if HABYARIMANA VS HABYARIMANA (1980) HCB 139.

It was pointed out that in determining whether somebody’s conduct amounts to cruelty
the general rule as was stated. In Halsburry’s laws of England vol. 12 at page 270 – 271

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is that the whole matrimonial relationship must be considered. In determining what
amounts to cruelty regards must be heard to the circumstance of a case keeping in mind
the physical or mental conduct of the parties their, character and social status.

In the case of CORALOSS VS CORALOSS (1965) E.A. 129. The husband who was
too quarrelsome, at one point threaten to smash his wife sue petitioned for judicial
separation on the ground of cruelty. It was held by Justice Crabb that the conduct of the
applicant was one of those occasional outbursts of temper which was past of a reasonable
wear and tear of marriage. Having regard to the temperament character of the spouse and
of the circumstance of the case the conduct of the respondent was not so serious to
amount to cruelty. The petition was therefore dismissed.

Cruelty is a conduct, which causes reasonable apprehension of danger. It should be

persistent and one act alone, unless its nature is actually grave may not surface
RUHARA VS RUHARA, supara the wife found a husband with a girl and the husband
denied this. Thus the husband subsequently burnt her suitcase and clothes following the
wife’s allegation that she found him in bed with a house girl. He attacked her with a
harmer and hurt her. The wife petitioned court for relief. It was held that the action
mentioned above would be the most cruel injury to life and limbs in addition to damage
to property which is another version of cruelly. The conduct, which causes reasonable
apprehension of danger to life and limits, is cruelly and judicial separation may be
granted.

In the case of NOBLO VS NOBLE 1964) ALLER 377, the husband in a divorce suit
made a charge of adultery and cruelty against his wife. Adultery was based on written
statements by the co-respondent, which the husband had extracted on the promise of not
asking for damages against the co-respondent. The wife denied adultery and cruelty and
she cross-prayed for divorce on the grounds of husbands’ collusion with the co-
respondent. The court made important holdings with respect to tests to be applied for
cruelty and it found out that:
To amount to cruelty, its important to establish or prove either;
a) That the conduct in which is sufficiently grain weighty to warrant and
description of being cruel
b) That the act caused injury to health or reasonable apprehension of injury to
health.

In the case of SHIELDON VS SHIELDON (1966) 2. AllER 78, one husband’s return
from Scotland he refused to have sexual intercourse with the wife. However, the wife
wished to have children consequently, she became ill and her health was gravely affected.
She petitioned for divorce on grounds of cruelty. It was held that the husband’s persistent
refusal to have sexual intercourse over a long period of time with out a reasonable excuse
caused a grave injury to the wife’s health and this amounted to cruelty. According to
Lord Denning “ as far as cruelty is concerned, it is not necessary to show an intention to

65
injury or inflict misery nor is necessary to show a guilt mind. What is essential is injury
to the health of innocent spouse”.
In the case of LAONDER VS LAUNDER (1949) ALLER 76 the husband refused to
talk to his wife, ignoring her for days. He did this both privately and before people the
upset the wife and cumulative effect was on her emotional instability. It was held that a
persistent cause of harsh, irritating conduct un accompanied by actual violence but
carried to such a point as to endanger the petitioner health legally constituted cruelty.
Read also,
-KASASA VS KASASA (1976) HCB. 348
-COLBECK VS COLBECK (1961) E.A .431

3. PREGANCY OUTSIDE WEDLOCK.

For example in the case of HADHAM VS HADHAM

The husband was a surviving soldier having last co-habited with his wife on the
28/08/1944 went over seas and remained there until the 7th July 1945. The wife gave
birth to a child on the 12 th, 08,1945. That is 349 days after the husband had left her. The
husband petition for divorce on grounds of adultery with an unknown man basing on the
abnormal length of the pregnancy. Medical evidence was however adduced at the hearing
of the petition to proof that it was not impossible for the husband to be the father of the
child.
In the circumstance court held that it wouldn’t infer that the wife had committed adultery
and the petition was therefore dismissed.

In the case of Kahawe vs Kahawe (Divorce cause No. 2 of 1997

It was held among other that adultery must be proved on a balance of probabilities. In
this case, the husband who had separate with wife, found her in a right address on a bed
with a man in a vest (prima-facie evidence).

4. DENIAL OF SEX

In the case of SHELDON VS. SHELDA (1966) 2. AllER 78,

The coupled was living together happily but after 8 years in marriage, the husband was
transferred from England to Scotland for a year. Upon his return, they continued to live
together but he refused to have sexual intercourse with his wife though they slept
together. As a result, the wife fell sick and the husband knew that his refusal to have
sexual intercourse with her was affecting her health as had been explained to them by the
doctor. She left him and later petitioned for divorce on the ground of cruelty.

HELD: The husband’s persistent refusal to have sexual intercourse with his wife without
reasonable excise had caused grave injury to his wife’s health and it therefore
amounted to cruelty. She was accordingly, granted divorce.

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In another case of EVANS VS EVANS, the couple lived together but the wife later
withdrew from sexual intercourse on the ground of unwillingness. The husband
petitioned for divorce on the ground cruelty.

HELD: The conduct of the wife as indicated was unjustified. It had advised effects
on the husband’s health and consequently amounted to cruelty upon
which a decree of divorce could be granted.

5. DESERTION:
Desertion refers to unjustifiable withdrawal from cohabitation without the consent of the
other spouse and with the intention of remaining separated permanently. It therefore,
follows that in a case of desertion four elements must be proved.

i). the defacto separation of the parties

ii) Animis diserend that is to say Intention on the part of the spouse in desertion to
remain separated permanently.
iii) Absence of consent on the part of the desertion spouse.
iv) Absence of any reasonable cause or Excuse for withdrawing from the co-
habitation on he part of the deserting spouse.

In the case of MEACHER VS MEACHER, it was pointed out that the petitioner who
intends to rely on the ground of desertion must show that the marriage has irretrievably
broken down by proving that the respondent had deserted the petitioner for a continuous
period of two years immediately before the presentation of the petition (Refer to section
5,3,4,5,and 6 of the Divorce Act CAP. 249).
It should be noted that the party who takes the physical step of leaving the matrimonial
home or otherwise withdrawing from cohabitation is the deserting spouse.
Read: Bromine’s Family Law.

It must be noted here that in proving the above 5 grounds for divorce (matrimonial
matters), the standard of proof required is higher than what is ordinarily required in other
civil matters although not as high as beyond reasonable doubt as required in criminal
cases. This is noted in the case GOWER VS GOWER (1950) 1 ALLER 804 and
BATER VS BATER (1951) Probate) 35 and later in Uganda in case of DR.
SPECIOSA WANDERA NAIGAGA KAZIBWE VS ENG. HARLES NSUBUGA
KAZIBWE (supara) at page 9 of the judgment of Musoke Kibuuka (Judge). So the
plaintiff or petitioner must meet this requirement.
This brings a question that when can the petition for divorce be granted by court? The
answer is that in proving any of the a above grounds for divorce, if the court is satisfied
that the petitioner’s case has been proved and does not find that the petitioner has been
accessory to or has connived at the going through of the form marriage or the adultery, or
has connived at or condoned it, or that the petition is presented or prosecuted in collusion,

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the court shall pronounce a decree nisi for the dissolution of the marriage. See section 8
(1) of the Divorce Act cap.249.

The Bars to Divorce:

There are the factors which court may consider to refuse to grant divorce, they include
absolute bars and discretionary bars (5,7,8,9,and 10 of the Divorce Act). Absolute bars
include:-
Condo nation :
It Morley vs. Morley it was pointed out among others, that forgiveness is an essential
element of condo nation.

In the case Burch vs. Burch (1958) I ALLER 848

The parties were married and had a baby civil the husband who was in the army, went on
leave, traveled to another country from his wife wrote to him informing him that she was
pregnant and that she had an association with a U.S.A. solider. On coming back to
England, the husband forgave her but the wife persisted with the adultery.

The husband petitioned for divorce and the wife pleaded condenation. Court held that
there was condenation because the wife’s confession, the husband had not been aware of
any fact relating to adultery. The circumstance where such that the husband had taken
the wife such that the husband had taken the wife back regardless of whether she had
been guilty of adultery or not.

BARS TO DIVORCE.
Before court can grant orders to divorce or judicial separation. It must establish claims
made by a petitioner and court also examines conduct of the petitioner. For the petitioner
may have condoned the mis-conduct or forgiven the offender.

Under Section 7 and 8 (1) of cap. 249, if the court is satisfied that the petitioners case
had been proved and does not find that the petitioner has been an accessory to or has
connived at the going through of the form of marriage or the adultery or has connived at
or condoned it or that the petition is presented or prosecuted in collusion, the court shall
pronounced a decree nisi for the desolution of the said marriage. See judgement of V.F
Musoke Kibuuka J. in a divorce cause No. 3 of 2003 of Dr.Specioza W. Naigaga
Kazibwe Vs. Engineer Charlse Nsubuga Kazibwe (un reported) at page 8.

The following are some of the bars to divorce.

1. CONNIVANCE:

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Black’s Law Dictionary 6th Edition at page 303 defines it as plaintiffs corrupt consent
expressed or implied to offence charged agent the defendant.
It therefore here follows to mean consent to matrimonial wrongs. In connivance, there
must be a corrupt intention that the respondent commits a matrimonial wrong. The
complainant or petitioner must have consented to the adultery or willfully provoked it.
To prove connivance, it is necessary to show not only that the complainant acted in such
a manner that adultery might result but also it should be proved that it was his or her
intention that adultery results. What may be important is that consent may be indirect.

In the case of GORST VS GORST, the wife couldn’t have sexual intercourse with the
husband and the husband became adversely affected. The wife gave a general consent to
the husband’s adultery but specifically with Miss. N. However, the husband began
adultery with Miss. N. but later the wife withdrew her consent in her erroneous belief that
the husband had stopped his adulterous nature, the wife forgave him. However the
husband continued to commit adultery and this was discovered by the wife who filed a
petition for divorce. The issue before court was whether a petitioner could give consent
to adultery excluding a person or class of persons hence escaping the findings of
connivance. It was held that adultery with a person when there has been connivance
excludes all relief in respect of the subsequent adultery with another person if court found
connivance, it must investigate all the circumstances including the lapse of time between
the adulteries and then decide whether or not connivance had spent itself before the
subsequent adultery had been committed.

Connivance precedes (comes before) the event. In the case of RICHARDMOND VS

RICHARD MOND (1952) 1 ALLER 838, the 2 spouses went on holiday with Mr. And
Mrs. The husband committed adultery with Mrs. B and the wife with Mr. B. Each spouse
knew of the adultery of the other. On returning home, the wife gave up her adulterous
relationship with Mr.B. Subsequently Mrs. B gave birth to a child which Richardmond
admitted paternity, the husband then left the home and went to live with Mrs. B he never
returned or paid maintenance to the wife. The wife petitioned court for redress on the
basic of adultery, desertion a willful neglect. The issue before court was whether the
wife’s connivance to the husband’s adultery had spent its self at the time of the
subsequent adultery, which the wife complained of. It was held, the wife wasn’t entitled
to divorce on the ground of the husband’s adultery – court wasn’t able to find that the
adultery had been condoned continued in existence because she did not take any steps to
prevent the adultery. In this case, the wife consented to the husband’s adultery with
unknown woman while at the same time she consoled herself by committing adultery
with that very woman’s husband.

In the case of DOUGHLAS VS DOUGHLAS, In this case, the husband suspected the
wife to have committed adultery to which she denied. In an attempt to prove this, the
husband arranged a speaking apparatus in the kitchen so that he could hear what the wife
and the co-respondent were taking. He also engaged injury agent and later made an
excuse to absent himself from the house so that the agents could watch. The agent
confirmed that they saw the wife committing adultery in the husband’s absence. There
was no evidence to show that the husband had done anything to bring about the adultery.

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It was held that his search for proof did not amount to connivance to the adultery; nor
did it create an opportunity to the adultery because he wasn’t consenting to it but seeking
proof for its existence. To obtain the proof court observed that the husband was entitled
to do all this and that there was no corrupt intention to his part. In addition, the husband
did not intend to encourage or promote adultery by absenting himself on false excuses
but he was merely seeking proof of what he had already believed to exist and he was
entitled to redress from court.

2. CONDONATION.
Black’s Law Dictionary at page295 defines it as conditional remission or forgiveness by
means of continuance or resumption of marital cohabitation by one of the married parties
of an known matrimonial offence that would constitute cause of divorce. It therefore
means connoting pardone of the offence voluntarily, over looking the offence or implied
treating the offender as if the offence has not been committed. If one forgives the
offending spouse, the forgiver is bound by the forgiveness; therefore he or she shall not
repeat the offence. To constitute a valid defence in divorce, it must be free, voluntary,
not induced, not under duress or fraud.

Condo nation may be by implication of consent of the plaintiff against the acts of the
defendant to a matrimonial offence. The innocent spouse must have the knowledge of
the material facts of the offence and must have the intention of forgiving the offence. In
condonation, a forgiven spouse must be reinstated in total see CHRISTINA D/O
HAMIS VS OMARI (1962) EA. 463. In this case the appellant was married to the
respondent under Christian faith. The respondent married a second wife under Islamic
Law. The first wife had stayed with the respondent for some time during his second
marriage she later left the home for about a year and petitioned for divorce on ground of
the husband’s adultery. The trial judge found for the husband, holding that there was
condonation. The wife appealed.

It was held that there was adultery between the husband and the second wife since the
marriage ceremony was valid. The wife’s condonation related only to the adultery,
which had taken place prior to her departure and not after her departure. Therefore she
did not condone the subsequent adultery after her departure.
Condonation is conditional upon a guilty spouse committing no further offence.
Here read BURCH VS BURCH (1958) 1 ALLER 848. :

CRAMP VS CRAMP.
Note: In above case it is clear that for condonation to be used as defence there must be
forgiveness and reinstatement to form mental petition and both parties should reconcile

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and forget the past. Holding No. 2 in MYANGA VS FROPLY MANAGE (1975) 295.
But where the guilty party fails to consent to being forgiven then there is no condonation.
Here read ROE VS ROE (1956) 3 ALLER 478

4. COLLUSION:
Black’s Law Dictionary at page 265 defines it as an agreement by husband and wife that
one of them shall commit or appear to have committed or be represent to court as having
committed matrimonial offence for purposes of securing divorce. This refers to an
agreement between husband and wife that one of them shall committee or shall appear to
have committed to be represented in court and having committed acts constituting a cause
for this. It also means conspiring the intention to divorce.

In the case of CHUCHWARD VS CHURCHWARD.

This case gives us two kinds of collusion: -
a) Where parties put forward facts to form the basis of the judgment.
b) Where parties put forward facts, which are true but have been corruptly re
consented to, to form the basis of the judgment.
It was further held in this case that collusion is an agreement between the parties so that
one appears to have committed an act of adultery in order that the other may obtain a
remedy. At law when collusion is proved, court cannot grant any remedy this is because
courts of law will only decide cases of controversies

In the case of HONT VS HONT the husband had been guilty of a conduct that
conducted the wife’s adultery. He induced the wife to retrain from defending the suit by
promising not to place costs against the co-respondent. It was held that this was collision
and court noted that if a party to suit of this kind by agreement with others procures the
withdrawal from the notice of the courts, facts, which are relevant for the charge, imputed
against him or her that amount to collusion. Read also,
NOBLE VS NOBLE (1964) 1 ALLER 577
COLBECK VS COLBECK (1961) E.A. 431
HEAD VS COCKS (1964) 1 ALLER 776

71
 THE LAW OF SUCESSION

a) Law applicable
1) The 1st Law is after
2) Statuary Law
Under Statuary Law we have got acts.
1. Succession Act clap 139 as amended by decress 22/72.
2. Administrator General Act Cap 140
3. The Administration of estates (small estates) special provision
13/1972.

Case Law
1. Hadja .V. Idi (1974) E.A.50

72
 2. Mohinder Singu chadha & Anor .v. Mohinder Singh Chadha (MSC)
(1961) EA 637.
3. Raphad public Trustee .V.R (1972) EA 522.
4. Amina w/o Umedchi S. Alani Vs Umedchi Shandi (1972) 142 R 68
5. Re Sulaimani Samanga deceased (1972) 142 R 122
6. Juwanita Kagwa .V. Oliver Kagwa (1972) 142 R 129
7. Olive & Miriakanyma (1972) 142 R 126.
8. Maria Naluvumbo .V. Isaac (1977) HCB 71
.V. Hategyekimad
9. Muhamed Fabet S. Rr. Mahita .V. Muhamad Rager (1966) E.A 35
10.The Administrator General of Zanzibar .V. Khalifa (1963) E.A 230
11.L.Stephens (deceased, B. Bettman. V. James (1952) 1 ch probate 323
12.B Loga .V. Bhoja (1967) EA 217
13. Re Clibiogo (1972) E.A 179
14.Re GRILES .V. Criles (1972)Ch 544
15.Re Cuffe (1908) 2 Ch. 500
16.Thum Hill .V. Thorn Hill & Avov (1965) EA 268
17.Re Bird (deceased ) (1970) E.A 289
18.Fario .V. Batumbusha (1978) HCB 44
19.Be rekabira .V. Kamanya (1972) 24 LR 166
20.Nager .V. Na. (1974) EA 322
21.Kajubi .V. Kabali (1974) EACA 34

b) Introduction
The law of succession determines what portion a person in dispose of his
property by will to what extent he can disherit to his children & dependents.
The will is regulated by law. It is the law which determines what law is
determine & if the will is regarded as if its made by law then it is
investigated.
If the will is intestate, the distribution can be dealt with in another way.

73
Succession under C/law
This is governed by a different …………. Obtaining in different parts of the
country & the will which determines can be found from local ……….. C/R
Kabali .V. Kajubi

However, A would appear with coming into face of decree 22/72 part 5
section 27-34 most of these customs are to be disregarded & as the decree on
provide for the distribution of the person into dices intestate.
d) Testate & Intestate
Testate: A person is said to die testate if he makes a will recognize by law as
valid. This ensures that the wishes of the deceased are respected if he is has
made the will recognize by law.

Some people urged that a person who has after making a valid will his life
will rest in peace for what he by strange for.

Intestate (Intastacy).
A person is said to die intastate if he does so without making a will or if he
makes that which is not recognized by law. Section 25 of the decree as
needed. His people will go to his personal representative in a person who is
appointed by the law to administer estate (he becomes the deceased). It is
only upon trust for those persons who me be entitled to those property.

Distribution of the Intestate

This is regulated by part 5 of the succession Act as rendered section 27 -34
but you should not that U/S 28 (3)dependents relatives can make other
managements as far as the distribution or presentation is concerned. The
purpose of part is to protect the family of the decreased from the malicious
of tection of some people who must deprive the family of dependant what is
turn

There 5 parts scheduled 2.the family which is residential is protected.

(e) The making of a will

74
Under testate succession

There are 2 types of will and they are

i) The privileged will
ii) Un privileged will
The privilege wills:- these are governed by part 9 of the act ss. 52. and 53.
This are wills which are made by the members in expedition or who are
employed in actual war fare, love 18years.
Mariners - who are at sea can also make privileged will & they should be
above 18yrs

Who armed forces in Uganda

Members of UNLA & Air force.

How Privileged wills are made

Police provided by Section 53 of the Act, they can be
1. In written or can be oral. If it is written by the testator himself it does
not need to be signed or attested –but there should be some body who
know his house wife.

2. If written by notice person wholly or in part on the in struction of the

testator them it must be signed by the testator.

3. If the will is written by another & not signed by the testator & then
that he gives instructions & he recognized them it will be regarded on
his will.

4. If the testator writes his instruction for the preparation of the will but
he dies before the instruction are arrived out then that is his will.

5. Likewise if he gives verbal instructions before 2 witnesses & these are

reduced in writing while he is still alive it is his will.

75
 6. He can make his will by word of health benefit to people but such an
oral will becomes will after 1 month if writing ceased.

Unprivileged wills
These are government by section 50 & 51 of the Act. This type is the
majority in Uganda. And such is made by any person who does not fall
within the 1st will & who wishes to make a will.

Procedure
1. The testator must sign or place his mark to the will.
2. It can be signed by some other person but in his physical
presence.
3. Such signature or mark must be placed in such away that
it appears that there is intention of giving effect to that
will.
4. It must beattested by two or more witnesses
5. All these witnesses must have seen the testator sign or
put his mark on the will or he must see that the will has
been signed or both or the 2 must also sign the will in the
presence of the testator.

Section 50 (1) (c) both witness must see the testator having signed but it is
not necessary for both of them to sign at the same time??

REVOCATION
Unprivileged wills
1. Every will automatically has to have effects as soon as the
testator marries.
2. If the testator makes another will or a codicil (something in
additional to the will).
3. If the testator by some writing declares intention to reverse the
will & that writing is also attested.

76
 4. By burning or tearing or destroying it by any other means and
has got an intention to revoke it. It can be done so by himself or
other person but should be in his presence.
5. If a will is revoked it can not be revived unless these is re-
section

Privileged wills
This can be revokate by the testator if he makes unprivileged will or if he
makes a codicial. And also revocate it by an act of intention. It can be by
burning, destroying, tearing. If it is by word of mouth then it to become a
will & void after one month.

KEEPING OF WILLS
3 ways in which wills are kept basically.
1. Personal safe keeping
This kept by himself or another person it is disadvantageous
because a person who wants to get the property can kill or plan
for his ……………………..of his life.
2. Offices of Registrar & Deputy of Registrar of the High
Commissioner. That is if the person is still living section 337 of
the Act.
3. Advocates chambers The testator may leave it with his family
lawyer to keep it.

Competence (y) to make a will/who can make a will

Part 7 of the Act from section 46-48
1. A person must be of sound mind & must not be a minor section
3 of the decrees is a person who has not attained the age of 21.
(18 is used in K)
2. A married woman can also make a will comprising of
properties which she can give when she is still alive. If she is
incapable of giving properties when she is still alive then she
cannot make.
But if she can have some personal properties like dresses then
she can make a will.

77
 3. A deaf or dump person or blind can make a will if he is able to
know what he is doing.
4. An in sane person make a will ding his
…………………………… in which he is sound mind.
5. If a person he is in a such of mind arising in state of
drunkardness or illness or other cause he can’t make a will.

PROTECTION OF THE FAMILY

6. When a person is making a will he is at liberty to deposit to any
person. Ie to charity or sell or all his properties But decree
22/72 it is non imposed to a testator to make reasonable
provision for the .

PROTECTION OF THE FAMILY

When a person is making a will he is at liberty to deposit to any person. ie to
charity or sell or all his properties But decree 22/72 it is non imposed to a
testator to make reasonable provision for the maintenance of his dependent
relatives.

1. If he does not make reasonable provision a dependent can apply to

court to see what provision ought to been.
2. If the state produces an income periodic payments can be ordered to
be paid to these dependents but this stop:-
1. Where the wife/husband remarries
2. If it is unmarried daughter when she marries or if she was
not capable of looking after herself either because of
physical or mental disability.
3. If it is an infant son or any either son who is incapable of looking
after himself because of physical and mental disability then he reaches
the age of 21yrs. And other dependents when they also reach the age
of 21yrs or when they die.

INTESTACY
Decree 22/72 attempted to reform the will law of this country b…….. did
not make reasonable provision for dependents relatives so it bring this under

78
part V of this Act. This are when distributing the properties section 28 for
the distributing the properties of the male (deceased, ) the % each one is
suppose to get.

1. Every person related or dependent to the deceased is entitled to

share the property. Dependent relatives (wife, son or daughter
who are under 18yrs)
2. Brothers, Father. All children whether legitimate & illegitimate
but illegitimate children might have been recognized by the
deceased.
3. The family have is to protect as separate from state of the
deceased & his for enjoyment of the wife, husband of the
decease children under the age of 21yrs.

Once he had quate probate or letters Administrator it has got overall effect
over the property. This property relates to all the properties of the deceased
person however it may be in Uganda & it is conclusive evidence of the
respresentative title against all letters of the decreased & people who hold
property belonging to him.

And all letters who pay their debts can get full identity all those who bring
back his property.

2 APPLICATION
Probate can only be quated to an executor who has been named in the will
and this appointment on either be express by necessary on either be express
by necessary implication. Probate can not be quated to any person who is a
minor or of unsound mind. If there are sexual executes named in the will the
after can apply & obtained the probate. But if one of them die the remaining
one’s will preset the will of the executor. When it is quated any acts done as
greater becomes valid.
Section 196 (read).

LETTERS OF ADMINISTRATION

79
This can be quated to person who is sound mind of …………… & once this
are grated entitled to Administrator to rights belonging to the interest right
from the time of his death but the letters do not render validing intermidate
of the Administrator which damaging or making less value of the testator or
not to his estate.

How application are made

Probate:
1. This must be made by a petition & it is must be written in the English
language & the will must beattached to the petition & it must state.

1. The time of the testator’s death.

2. That the writing attached is his will & testament & was
property executed.
3. Amount of the assets which are likely to come to the petition’s
Act.
4. That the petitioner is the executor’s named in the will & if the
petition is giving to the Dist, Delegate then it must state that it
is with the first …………. Place of ……… property situate
within the Delegate District. And if it is written in mother
language it must be translated.
2. Letter of Administration
It must also be made by petition in the English language & the
petition must state the time & place of the deceased death the family
& relatives of the deceased.
3. The right in which the petitioner claims.
4. That the deceased left some property with the jurisdiction of the H/C
OR District delegate to see the application is made.
5. The amount of the assets which are likely to come to the petition leads
& if it is the District delegate you add the place of abode of the
deceased person.

80
 And both petitioner must be signed by the petitioner or his advocates
if any & must be verified.

REVOCATION: (U/S 233) of the Act

I/P can only be revoked or marked for just cause this means:
1. That the proceedings to obtain grant was defective in substance.
2. That the grant was obtain fraudulently by making false suggestion can
be revoked or if it is cancelled in the count.
3. That the grant was obtained by rears of enhance allegation or facts
which are essential then it can be revoked. Even if those allegation are
made in …………… or mistake of fact still can be revoked.
4. That the grant has become useless in a operating in circumstances. A
person who is vertally given a letter of Administration must exihibit in
inventory or …………. Without reasonable cause then the grant will
be revoked. (look at part xxxiv) of the Act. Section 279-294 for the
duties of the execute.

(Also section 4)
C/R 1. [1972] ULR 161
2. [1920 - 24] 34 LR 26
3. [1980] HCB 65 REVOLATION OF GRANT.
4. [1980] HCB 79

ADMINISTRATION CAUSE

VASILA…………………. Petitioner
1920 – 24
SOPHIA ………………… Respondent 3 ULR 26

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FACTS:
This is a petition b Vasila (petitioner) the widow of Murjan Habash who
died in 1916 for letters of Administration to the estate of Mohamed Habash
who died in 1906. The object of the petition is to settle whether the crown
lease of a plot in Kampala granted to Mohamed Habash in 1903 passed to
Murjan as his heir or otherwise, or whether as the respondent Sophia alleges
the plot was originally bought and the buildings thereon erected out of
moneys supplied by the facts independently of her husband and so belongs
to her solely.

ISSUE:
Whether to what I am Government the succession to lease holds among
Mohammedans in Uganda.

NOTE
I order to deal with this court substituted “ Native of the protectorate” for the
words “Mohammedans and Gentoo in habitants”.

Therefore a part from the succession of deviance 1906, the law of

inheritance for …………….. was English Iam (that for movable depending
on domicile) as far as regards foreignness and natives customs as far as
regards natives of the protectorate.

HELD
1. This case falls to be determined according to English
rules of succession.
2. On the death of Mohamed the plot become divisible
equally between Morjan and Sophia in accordance with
the English. I am governing the descent of lease hold 3.
3. The proper cause will therefore be to grant letters of
Administration of the estate of Mohammed to Sophia and
Vasila, jointly unless they both consent to a grant to some
3rd party.
The last of the parties will be paid out of the state before diversion.

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PROCEDURE FOR APPLYING FOR LETTER OF
ADMINISTRATION
1. Obtain a death certificate/letter from L.Cs of the area confirming the
death of the decreed.
2. Marriage certificate where the widow or widower apply for letter of
Administration.
3. Submit identification papers ie identify cards.
4. After that one fills in a form in which a fee is paid.
5. The Administrator General will offer a certificate of no objection to
the applicant.

The applicant the advertise in prominent local news paper (New vision,
monitor, Bukedde). After 14 days of the Advert, put an application in court
applying for letter of Administration.
And after some letters of Administration is granted.
a) The administrator should manage the estate of the deaced.
b) Should give an inventory every after 6 months.
c) He/She should lias with the executors & manage the family of the
deceased. All the papers of the will must be singed by the testator &
the witnesses

6. Should state the name of the children & wife (wives).

7. It must show the distribution of property.
8. The name & addresses of the people when you are leaving property &
children to.
9. Your debtor & credits.
10.Your bank account
11.The will must be dated.

However, a document doesn’t have to be described as a will to be a will.

What is important is the intention of the person making a will & his/her
intensions operate after his/her death.

83
Milnes Vs Fodent (1890) 15 P.D 105

In this case it was held that where an intention can be shown either in a
document itself or in the surrounding circumstances that the document was
intended to take effect from death, such a document is a valid will that can
be allowed in probate.

For a will to be valid to must meet the following requirements.

1. Must be intended to be the lact intention or wish of the deceased. On

how his/her estate should be handed after her/his death.
2. It must be made voluntary. The testator must be in sound & in full
position of his/her sense.
3. The will must be written.
4. It should be signed by at least 2 other people who are witness in the
will. This should not be the beneficial of the will.

THE CONTENTS OF A WILL

1. Personal detail of Testator
- Name, age, sex, Date of birth, mental status, clean village,
Tribe, District, occupation address.
2. If married give are spouse detail as above
3. Children’s names, age, Date of birth, your own children and those
adopted.
4. Dependants.
5. Description of your property (immrable) property physical location.
If the immorable have the title who have the title
6 House effects
7. Hire stocks
8. Person effects like suits, watches and were they are.
9. Bank account No & money there on
10. The names of executors

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N.B For all these see 4th schedule of succession Act cap.162

TESTATE SUCCESSION:
This refers to situation where a deceased person maker a testumentaly
succession of his estate though a will.

A will is a document or a last statement a person maker before his/her death

dissecting how his/her property & other affairs should be taken care of.

There are some essential elements of will. They are as follows:-

1. The winer expressed in a urail are intended to take effect on
death. A will operate as a declaration of intent & a will is
revocable.

It should be noted that if provisions of a document are to take

effect, some times before death of the deceased, that is not will.

In some cases a will may contain some provisions of which are

intended to operate on death while others operate before death.
It should also be noted that a will can have different
supplements before one dies. A supplement to a will is called a
codicil see its meaning at S.2 of the succession Act cap. 1:62

MARITAL PROPERTY
The law generally allows both husband and wife to own property. Act-26
provides that every person has a right to own property either indurdualy or in
association with others property in a marriage may have different
dimensions & various issues may a rise from these different dimensions.
There is property that may be acquired jointly by the spouses and for a joint
use, it may also be acquired by one spouse out the other having interest in it.
It may also be property in which tittle is rested in one panty but the other
panty can carry on improvements originally women could not own property
and then own rights of the counts were very strict against women in such
cases which have involved clans over marital property. Even in cases in
which it was clear that property vested in a woman, it was very easy for her

85
to forfeit such property as provided under sec- 26 of the divorce Act It
provides. “If divorce is due to the death of the wife, her property may be
sold off on settled of in favour of the husband or children. However, there is
no similar section that accrues to men.
The legal position that women can not own property in their own rights has
now changed. They can now acquire property freely in their own rights
regard lees of their marital status.
In ………….JANE NAKYANDA 1977 H/CB
The H.C of Uganda recognized that a woman regard less of her marital
status can own property in her own rights.
In the case of PETTIT or PETTIT (1969) 2 All CR385 the wife bought a
matrimonial home registered it in her names. The husband did some
improvement on the said home i.e. decorating the bungalow making a
garden a wall in some work out side the home. No agreement was made to
this effect. The 2 subsequently separated. The issue was whether the
husband had acquired some interest in the property. It was held by the house
of lord unaumouity that the husband acquired nothing hence he cannot claim
anything on those grounds

In the case of RE-NICHOESON the husband Instanced accentual heating

gad jet which cost 189 in the premises which were north 6000.
It was held that the installation of accentual heating gad jet was substantial
contribution. A panty can only acquire interest of the contribution towards
the property is substantive.

In the case of EDTTA NAKIYIGI MEREKIZIDEKI 1978 HCB, 107, in this

case, the matrimonial home for yrs. The husband in the divorce proceedings
sought to evict her. It was held that since the husband had a duty to provide
the wife in a home and that now he wanted to evict her, he must find her an
alternative home. And since the husband is the one who terminated the
marriage, in the eyes of equity, he could not chase the wife from the house to
which she substantially contributed. Could also explained that by merely
spending money on another one’s property, it does not agenile give the other
spouse a proprietary interest there in.
The Doctrine of equitable stopped subsists there in. such cases wire owner
encourages the other to spend on his property he is stopped from defining his
or her proprietary interest so acquired. In this case, count emphasized that as

86
long as he (she made substantial contribution to the property, proprietary
invest is acquired.

In the case of GISSING v s GISSING (1970) 2 All E R 780, in this case the
husband bought a matrimonial home and put it in his names i.e. wife brought
furniture and house hold expenses The issue was whether or not the wife
was entitled to the beneficial interest in the matrimonial home. It was held
that there was no woman interest in the matrimonial home and there was no
express agreement to that effect count further noted that their contribution is
indirect, it is difficult to determine how much was contributed. In that case,
land Dearing made important descending opinions, “where a person made
subrfantial contribution, she should acquire interest there in esp’ women
who do a lot of indirect contributions”

HOUSE – HOLD PROPERTY

It is possible for one spouse to sell goods to the other and property will pass
on to the buyer even if those goods are to remain in the house for one to
prove ownership, there must be an agreement or document to that effect.
MANJI v R (1957) AC 126
R6 – COL6 (1963) 3 AILER
CASE v RUHURU 1970 EASS

87
DEPENDANT RELATIVES

This are defined under S. 2(g) 1 and 2 of the succession Act CAP. 162 to include a wife,
husband a son or daughter under eighteen years of age or a son or daughter above
eighteen years of age who is wholly or substantially dependant of the deceased and a
parent, brother or sister, grandparent or grandchild, who at the time of the deceased death
who wholly or substantially dependant on the deceased for the provision of ordinary
necessaries of life suitable to a person of his or her station.
In the case of LUBAYIRA VS. AKAMBA BUS SERVICES. It was pointed that a
husband can be a defendant relative.

LINEAL DESENDANTS:
These are children of the deceased the law does not make any distinction between
litigmate and illegitimate children. Here read the case of MAKO KASUBI VS.
KALAMINA (1944) EACA. 34. Where it was pointed by justice Sir John Giray as he
was then that there is nothing repugnant either to morality or injustice in a custom which
allows an illegitimate child to share to share in his fathers estate and confers upon a head
of a clan more or less un fettered discretion to determine the mode of distribution of an
interstate estate.

SCHEME OF DISTRIBUTION OF PROPERTY OF THE DECEASED

(PERCENTAGES).

The case of Cissy Nabaka Katinti vs. Nakalema SC. No. 84/1991 by justice.
Hebert Ntagoba P.J.

The case of Nyendhoha vs. Nyendroha also deals with the same issue
In the above case, the issue was whether the plaintiff and her husband were legally
separated at the time of his death.

The judge in his holding, made very clear that the Act does not define separation and he
knew of no case that attempted to intercepted S. 31 of the succession Act as a intended.
He therefore resorted to the dictionary definition, which define separation as cession of
cohabitation for husband and wife by a mutual agreement or in the case of judicial
separation by a decree of court. He went a head to hold that for a husband or a wife of a
intestate to be disentitled the matrimonial relationship must ceased to exist and this does
not mean physical separation for one reason or the other as it was in the instant case.
Therefore the intention of the parties at the time of separation and the surrounding
circumstances must be looked at before making a decision on the issue of separation.
For the case of a widow read Re Kibengo (1972) EA. 179 Where it was pointed among
others that a widow is fit and proper person to be granted letters of Administration.
Also Read Florence Kemutungo vs. Loramy Katuramo (1992) HCB 155.

88
Under the Act the customary heir is defined as a person recognized by the right and
custom of a particular tribe of the deceased person as being a customary heir of that
person. A wife is defined as a person validly married to the deceased at the time of his
death.

In the case of CHRISTINE MALE AND ANOTHER VS. MARY NAMANDE AND
ANOTHER (1982) HCB 140
It was held among others that the plaintiff was the widow of the deceased since they
where validly married. The first defendant had never been a wife of the deceased
although she had 4 children by him. Consequently, the plaintiff was the only person who
could apply for letters of Administration.
It was further pointed that the mere fact that some body had children with a woman does
not entitle her to have a share in the estate of the deceased. In addition though validly
married a wife must not at the time of the death of the intestate be separated from him.
Otherwise she looses her interest in the estate. In the case of BOIJANA JANE VS.
BOIJANA PRAINE SC NO. 879/1990
It was held by justice Tessekoko that although the defendant was a lawful wife of the
deceased, she had separated from the deceased for 30 years and she could therefore have
been substantially dependant on the deceased at the time of his death. As regards here
claim to letters of Administration she was disqualified by the provision of S. 31 (1) of the
succession Act as amended which stipulated that a wife separated from the deceased as a
member of the same house hold was not entitled to any interest in the estate.

Also Read Nyendiroha Vs. Nyandiroha.

DUTIES OF EXCUTORS/ADMINISTRATORS.
The duties of both executors and administrators are provided for under S. 279- 294 of the
succession Act CAP. 162. They are the same irrespective of the nature of the estate and
include: -
-Paying expenses for obtain letters of administration
-Paying wages for services rendered to the deceased person within 3 months to his death.
-Exhibiting in court and inventory after very six months from the grant of the probate or
Letters of Administration.
-Distribute the deceased property among the beneficiaries and file a final account to
Court.

In ISREAL KABWA VS MARTIN BANOBA MUSEGA SCCA NO. 52 OF 1995. It

was held that the respondent who had no letters of administration was entitled to sue for
trespass on his land, because in terms of S.28 (i) (a) and S. 23 (2) of the succession Act as
amended, the respondent could very well be entitled to 26% or more of the estate of his
father. He is thus defending his said interest as in the estate. The respondent’s rights
therefore to deceased’s land and his developments there on did not depend on letters of
administration see page 5-8 of the judgment.

89
90