THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT PORTAL

CIVIL SUIT NO. DR. MFP 6 OF 1991

(From Probate and Administration cause No. MF 11/91)

FLORENCE KEMITUNGO::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

- VERSUS –

YOLAMU KATURAMU::::::::::::::::::::::::::::::::::::::::::::::::::::::;:::DEFENDANT

BEFOR THE HONOURABLE MR. JUSTICE I. MUKANZA

RULING

This is an application by notice of motion brought by the applicant/plaintiff under order 37 rule 1
and order 48 rules I and 2 of the Civil Procedure Rules seeking for an order from this court for a
temporary injunction to restrain the respondent/defendant from taking or in any way disposing of
the stock which is in this shop which used to belong to the late David Kiiza, collecting and
receiving rents from the tenants at Rwengoma, cutting bunches of Matooke from the plantation
at Rwengoma, cutting eucalyptus trees from the tree plantation at Rwengoma, using money
accruing from the estate of the late David Kiiza, and finally that the respondent/defendant be
retrained in any way from interfering with the estate of the late David Kiiza until further orders
of this court.

In her affidavit in support of the application the applicant/plaintiff deponed as follows:-

“That she is the widow of the late David Kiiza who died intestate on 22nd February, 1991. On
10th April 1991 she applied to the High Court at Fort Portal for letters of administration to be
granted to her. On 17th April 1991 the defendant purportedly laid a caveat against the said
application by her. In consequence the estate of the deceased remains without a legally
appointed administrator.
That one Richard Sabiiti and Moses Kandole both brothers of the deceased were interfering with
the estate. The said Sabiiti had since the death of the deceased run the shop and sold off most of
the stock and that was likely to continue. The defendant was not only supporting the acts of
Sabiiti and Kandole but also benefits from them.

That the Caveat entered by the defendant/respondent was intended to maintain the status quo. As
a result of the status quo the stock in the shop has been greatly reduced from Shs. 1,940,000/= as
it was originally at the time of Kiiza’s death to about Shs. 200,000/= or less presently. That since
the death of the deceased about ten eucalyptus trees have been cut down from the plantation at
Rwengoma and that now more are likely to be cut by her sister in law with full backing of the
respondent/defendant. Since the death of the deceased she has not been provided with any money
to look after the children of the deceased.”

In his submissions to this court the learned counsel representing the applicant read the affidavits
in support of the applications. I do not therefore have to reproduce his submission.

The learned counsel appearing for the respondent/defendant submitted that the main issue there
is the mutual relationship between the applicant and the respondent. By issuing a temporary
applicant the honourable court would be determining the issue of the relationship between the
applicant and the respondent because that would be indicating that the applicant has beneficiary
interest or otherwise in the estate of the late Kiiza and the court would be deciding the main issue
and thus disposing of the same. A temporary injunction cannot be granted where the effect could
be to dispose of the main issue. He referred me to the case of Muslim Supreme Court .V.
Mulumba and others 1980 HCB P. 11 A temporary injunction is also issued where there is a
likelihood of irreparable injury caused to the applicant if the grant of such injunction were not
made. He referred me to the case of Rwenzori Tea Co. Ltd vs. Kelsale ULR Vol. 8 Page 204.

He continued it was the contention of the defendant/respondent that the applicant had no
beneficiary interest or otherwise in the estate of the deceased. Therefore she could not benefit
from an order made by this court in this suit of the estate of the late Kiiza. She has nothing to
suffer, if the deceased’s estate was put to waste as she alleges. The purpose of the provisions of
order 37 of the Civil Procedure rules were not meant to benefit persons without any interest in
the property allegedly being protected. The mere fact that the applicant had children with the
deceased was not enough. That did not entitle her to a share in the estate of the deceased, I was
referred to the case of Christine Male & Another .V. S.M Namanda & another 1982 HCB
Page 140.

The learned counsel further submitted that following the death of the late Kiiza the family
members appointed a committee to care take the Estate of the deceased. What the applicant is
alleging in the application is meant to maintain the estate and look after the whole family of the
deceased’s children. In this Case what the respondent and other committee members were trying
to do was to preserve the estate of the deceased until a proper person could apply to administer
the estate. That the deceased was survived by 10 children. Therefore the said committee is using
the estate left by the deceased to maintain the welfare of the deceased’s children. The family
could not wait until the person has been appointed to administer the estate so as to look after the
welfare of the children. In other words the learned counsel commended that the family
committee has taken effective control and administer the estate of the late Kiiza as deponed by
the applicant in her affidavit.

In reply the learned counsel representing the applicant/plaintiff submitted that his learned friend
should have concentrated on the law and not on evidence because he should have submitted an
affidavit in reply. He prayed that the Honourable court does not attach any weight to part of his
reply to the applicant’s affidavit.

About the marital status of the, applicant the learned counsel submitted that both in the
application for letters of administration and in the present application the applicant leaves no
doubt that she was married to the deceased the owner of the estate. The same fact features in the
plaint it was up to the respondent to swear an affidavit showing that the applicant/plaintiff was
not married to the deceased.

I have had the occasion to peruse the affidavit in support of the application and also listened to
the lengthy submission of the learned counsels representing the parties. The conditions for the
grant of interlocutory injunctions was laid down by Spray v P in the case of Giella vs Casman
Brown and Co. Ltd [1973] EA P.358 as follows:-
“To begin with the applicant must show a prima facie case with the probability of success.

Secondly an interlocutory injunction will not normally be granted unless the applicant might
otherwise suffer irreparable injury which would not adequately be compensated by an award of
damages.

And finally if the courts is in doubt it will decide the application on the balance of convenience
See also E.A. Industries vs Truffods [1972] EA 420, Nsubuga v Anor vs Mutawe [1974] EA
487.”

In the instant case the applicant swore an affidavit to the effect that she is the widow of the late
Kiiza David and had some children as a result of that union. The learned counsel representing the
respondent submitted that the applicant is not a beneficiary to the estate of the deceased and that
the mere fact that she had children with the deceased that alone, did not entitle her to administer
the estate of the deceased. What was contained in the affidavit was evidence. The respondent
never swore an affidavit in reply to controvert the applicant’s affidavit. The learned counsel
submitted that there was a family committee appointed to care take the estate of the deceased. It
is not known who the members of the committee are and their relationship with the deceased.
The learned counsel submitted that the committee looks after the 10 children of the deceased. It
is not clear whether the ten children include the issues of the applicant or they are children from
other women. The respondent should have resolved the matter by filing an affidavit in reply. As
far as this court is concerned there is evidence that the applicant was the widow/wife of the
deceased and this in my considered opinion presupposes a valid marriage between the applicant
and the late David Kiiza. Therefore under S. 201 of the Succession Act Cap 139 as amended by
section 1 (p) of the Succession Amendment Decree 22 of 1972 she is entitled to grant of letters of
administration. In the end the applicant had shown a prima facie case with the probability of
success.

Be that as it may the estate of the late David Kiiza appears to have substantial assets. There are
houses from which the respondent and his agents are collecting a lot of rent. There is a shop
whose stock was worth over a million at the time the deceased passed away. The stock has now
depleted to bare Sh.200,000,/=. Matooke in banana plantations are being cut down at random and
even eucalyptus trees are being cut from the shamba of trees. If at all the temporary injunction is
not granted the applicant might suffer irreparable damage which would not adequately be
compensated by an award of damages. It would be very difficult to measure damages that would
be granted to the applicant in case the temporary injunction was not granted.

I am of the opinion that the applicant had put a strong case for the grant of a temporary
injunction. I do not therefore think it is necessary to consider the last ingredient upon which the
court has to consider when granting the interlocutory injunction. That is when in doubt the court
would decide the application on balance of convenience.

I think it is appropriate at this stage to comment upon some of authorities cited by the learned
counsel representing the respondent in support of his submission. In the case of Christine Male
& Anor .V. S.M Namanda & Anor Supra There the court considered about the grant of letters
of Administration where the deceased left a legal wife, concubine and young children with
different mothers. The court held that the only person entitled to grant of letters of administration
was the legal wife. The facts of that Case is distinguishable from the instant case. In that in the
instant case only a wife is involved whereas in Christine case there were more than one. Also in
the instant case there is no evidence to show that the applicant was not the legal wife of the late
David Kiiza. With regard to the other 2 authorities referred to me i.e. Rwenzori the Estate &
Muslims Supreme council. I have not been able to find a copy of HCB 1980 and the ULR
Volume 7 and even the counsel failed to provide me with the authorities. Nonetheless I am
satisfied that the applicant made up a strong case which entitles her to grant of a temporary
injunction.

In the premises the applicant is granted a temporary injunction to restrain the

respondent/defendant his servants and or agents from selling taking in any way disposing of the
stock which is in the shop which used to belong to the late David Kiiza, collecting and or
receiving rents from the tenants at Rwengoma, cutting bunches of matooke from the plantation at
Rwengoma, cutting eucalyptus trees from the tree plantation at Rwengoma, using money
accruing from the estate of the late David Kiiza, Also the respondent his servants and or agents
are restrained in any way from interfering with the estate of the late David Kiiza until further
order by this court. Costs of this application are provided for.
I. MUKANZA
J U D GE
30/7/91