THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
HCT-03-CV-CS-027-2023
(ARISING FROM ADMINISTRATION CAUSE NO.126 OF 2015)
MICHEAL JAMES KIRUNDA
(Administrator of the Estate
Of the Late Justin David Kirunda)
JESSICA MARJORIE KIRUNDA
(Administrator of the Estate of the
Late John Luwuliza Kirunda)::::::::::::::::::::::::::::::::::::::PLAINTIFFS
VERSUS
JESSICA KIRUNDA NGOBI
(Administrator of the Estate of the
Late Erukana Kirunda):::::::::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT
Civil Suit-
Held: The whole suit has no merit and it FAILS. It is accordingly dismissed.
BEFORE: HON. JUSTICE DR. WINIFRED N NABISINDE
JUDGMENT
The Plaintiffs brought this suit against the Defendant on the 2nd of June 2023 against the Defendant seeking for the following reliefs:-
A declaration that the Administration Bond executed for and on behalf of Jessica Kirunda Ngobi (the Defendant herein) in Administration Cause No. 126 of 2015 stands violated by the said Defendant and immediate payment thereon is due.
An order for revocation of the grant of Letters of Administration granted to the Defendant on the 21st August 2017 vides Administrative Cause' No. 126 of 2015.
An order requiring the Defendant to deliver up to this Honorable Court the above mentioned grant of letters of Administration.
A grant of the Letters of Administration jointly to the Plaintiffs for the Administration of the Estate of late Erukana Kirunda.
A permanent injunction restraining the Defendant from acting or holding out as an administrator of the estate of the late Erukana Kirunda and from undertaking any further dealings with the estate of the late Erukana Kirunda.
Costs of the suit.
Interest on (e) above at court rate from the date of filing this suit until full payment.
Any other and further relief as may seem meet to this Honorable Court.
REPRESENTATION
When this case came up for hearing before me, the Plaintiff was represented by learned counsel Miss. Nakato Linda of M/S. TFB Advocates & Legal Consultants the Defendant failed to appear and defend the suit despite all efforts to serve them, hence it proceeded exparte against her.
BACKGROUND
From my own analysis, the background of this case is that the Plaintiffs are the grandchildren of the late Erukana Kirunda; the defendant is a daughter of the late Erukana Kirunda and administrator of the suit estate The Defendant has dual citizenship and is majorly based in New York in the United States of America. The Defendant has never filed an inventory since 2017 to date.
BRIEF FACTS
The brief facts are that the Defendant sought and obtained Letters of Administration to the estate of the late Erukana Kirunda vide Administration Cause No. 126 of 2015. That During the Defendants process of application for the said letters of Administration, she sought and obtained the consent of the Plaintiffs and their other siblings who collectively are the children of the Defendant's siblings namely late Justin David Kirunda and late John M. M. Luwuliza-Kirunda respectively both of who are the other direct beneficiaries to the estate of late Erukana Kirunda. [A certified copy of grant of Letters of Administration made to the Defendant is hereto attached marked "A"]
The Plaintiffs are thus the grandchildren of the late Erukana Kirunda and in that capacity are the secondary beneficiaries of the Estate of Erukana Kirunda. It was and remains the understanding of the plaintiffs that the Defendant would administer the Estate of late Erukana Kirunda in the interests of the Beneficiaries of the Estate including the plaintiffs as children of deceased direct beneficiaries. The Plaintiff has however not fulfilled the duties required of her as an administrator of the estate
That the late Erukana Kirunda had three children namely the late Justin David Kirunda (born 1938), the late John Mikloth Magoola Luwuliza-Kirunda (born 1940), the Defendant Jessica Kirunda Ngobi (believed to have been born in 1942). It is within the knowledge of the Defendant that her two aforesaid elder siblings are deceased and that they each had children who would in their place or through their estates be the beneficiaries to the estate of late Erukana Kirunda.
They further contended that the Defendant however has since obtaining Letters of Administration on 21st August 2017 acted as though she was a sole beneficiary of the estate of the late Erukana Kirunda and has both directly and through various agents sought to disenfranchise and disinherit the plaintiffs form their ancestral home and from their interest as beneficiaries to the estate of late Erukana Kirunda. The defendant has since obtaining Letters of Administration on 21st August 2017 failed neglected and refused to distribute the estate of Erukana Kirunda to the beneficiaries as required under the law. She has thus denied the plaintiffs of their entitlement in the estate.
The Defendant has willfully and intentionally without reasonable cause omitted to exhibit an inventory or account as required in accordance with Part XXXIV of the Succession Act (cap 162) containing a full and true estimate of all the property in her possession ever since she was granted the Letters of Administration.
The grant of Letters of Administration to the Defendant may thus be justly revoked under the provisions of Section 234 (2) (e) of the Succession Act (Cap 162). [A certified copy of court file record and proceedings in Administration Cause No. 126 of 2015 is hereto attached with documents marked "B10" clear showing no inventory or any other filing by the Defendant after the date of the grant on 21st August 2017].
They argued that upon perusal of the above said record in Administration Cause No. 126 of 2015, the plaintiffs have noted material irregularity on the record indicating that the proceedings by which the Defendant obtained the grant of letters of Administration to the estate of the late Erukana Kirunda were defective in substance.
PARTICULARS OF IRREGULARITIES
The Defendant did not personally appear for identification and was thus never properly identified before issuance of the grant in clear violation of the Consent Order on record dated 25th April 2017 requiring the identification of Ms. Jessica Kirunda Ngobi.
At the Purported Identification of the Defendant on 6th July 2017, the record shows that she was not present and was falsely presented for identification. Thereafter the identification form was signed by one Sarah Naigaga a holder of Power of Attorney by the Defendant. This was irregular and unlawful
The aforesaid Power of Attorney on record were not registered by the appropriate authority.
They argued further that the Defendant has since obtaining Letters of Administration on 21st August 2017 never filed in court final accounts relating to the estate of the late Erukana Kirunda showing the assets which have come to her hands and the manner in which they have been applied or disposed of.
i) The Defendant has mismanaged the estate of Erukana Kirunda within the meaning of Section 234 (2) () of the Succession Act (Cap 162) as amended under Section 47 of the Succession (Amendment) Act, 2022.
ii) The Defendant is domiciled in the United States, ordinarily resides outside Uganda and has been consistently out of touch with the estate of Erukana Kirunda making the grant become useless and inoperative through the circumstances within the meaning of Section 234 (2) (d) of the Succession Act (Cap 162) (as amended).
Further, that in view of the above violations the Administration Bond executed for and on behalf of the Defendant herein) in Administration Cause No. 126 of 2015 stands violated and immediate payment thereon is due The Defendant has acted abusively and in particular abused the 1st Plaintiff with all manner of vile and foul language and furthermore ordered him not to visit his ancestral home and all this as a reaction to a simple inquiry about the state of estate property.
That the Plaintiffs being aggrieved by the aforesaid circumstances now seek redress and justice from court.
The 1st Plaintiff sought and obtained a grant of Letters of Administration to the estate of the late Justin David Kirunda vide Administration Cause No, 0631 of 2014 and as such is fully empowered as legal representative of Justin David Kirunda to pursue the revocation sought herein, to seek accountability from the Defendant, and to demand for the equitable distribution of the estate of Erukana Kirunda to beneficiaries and enforcement of the rightful share of the estate of late Justin David Kirunda in the estate of Erukana Kirunda. [A certified copy of the Grant of Letters of Administration to the 1st Plaintiff in respect of the Estate of Justin David Kirunda is attached hereto marked "C"]
The Second Plaintiff sought and obtained a grant of Letters of Administration to the estate of the late John M. M. Luwuliza-Kirunda vides Administration Cause No. 1595 of 2022 and as such is fully empowered as legal representative of John Mikloth Magoola Luwuliza-Kirunda to pursue the revocation sought herein, to seek accountability from the Defendant, and to demand for the equitable distribution of the estate of Erukana Kirunda to beneficiaries and enforcement of the rightful share of the estate of the late John Mikloth Magoola Luwuliza-Kirunda in the estate of Erukana Kirunda. [A certified copy of the Grant of Letters of Administration to the 1st Plaintiff in respect of the Estate of John Mikloth Magoola Luwuliza-Kirunda is attached hereto marked "D"]
That the Plaintiffs have recently learnt that the Defendant attempted to process a renewal in her personal names of a leasehold interest for the land comprised in LRV 695 Folio 22 being Plot 51-59 Menya Wanume Road Busembatya previously vested in a company Kirunda and brothers Limited that was jointly owned by the late Erukana Kirunda together with the Applicants fathers (Justin David Kirunda & John Luwuliza Kirunda).
That this was a fraudulent and dishonest action in which the Respondent was only prevented from succeeding by the providential action of the Jinja District land board which noted the discrepancy and rejected the Respondents Application.
The Defendants good faith as an administrator to the estate of the late Erukana Kirunda is thus highly questionable. They further averred that the Defendant willfully and in bad faith neglected to rectify and update the records Kirunda & Brothers Limited which clearly show the interest held by the estates late Justin David Kirunda and late John M. M. Luwuliza Kirunda jointly with their father late Erukana Kirunda and illustrate the clear distinction between their estates.
The Plaintiffs assert that if the Defendant is not restrained from managing the estate of the late Erukana Kirunda, the said estate will go to a waste and squander to the detriment of the Plaintiffs. The Plaintiffs are fit and proper persons to be granted letters of Administration under the Act, within the meaning of Section 234 (5) of the Succession Act (Cap 162) as amended under Section 47 of the Succession (Amendment) Act, 2022 to jointly administer the estate of the late Erukana Kirunda.
The Plaintiff undertake that upon receiving a grant of letters of Administration to the estate of Erukana Kirunda they shall distribute the same equitably to the beneficiaries including the Defendant and shall file a record of this distribution on the court record within the time required by law as shall be ordered by court. They prayed that a default Judgment be entered against the Defendant.
ISSUES
The following are the issues of this case:-
Whether the Plaintiffs have given valid grounds for the revocation of a grant of Letters of Administration?
Whether the Plaintiffs deserve to be granted Letters of Administration?
What remedies are available to the parties?
THE LAW
The position of the law and the burden of proof in Civil Cases; it is well settled per Sections 101, which provides that;
“(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.
Section 102 provides that;
“The burden of proof in a suit or proceeding lies on that person who would fail if at all were given on either side.”
Section 103 further provides that;
“The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
The above was solidly reinforced in the case of Dr.Vincent Karuhanga t/a Friends Polyclinic vs. National Insurance Corporation & Uganda Revenue Authority, HCCS No.617 0f 2002 (2008)ULR 660 at 665, cited with approval by the Court of Appeal in Takiya Kaswahili & A’ nor vs. Kajungu Denis, CACA No.85 of 2011, it was held, inter alia, that;
“…The general rule is that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. When that party adduces evidence sufficient to raise a presumption that what he asserts is true, he is said to shift the burden of proof that is, his allegation is presumed to be true unless his opponent adduces evidence to rebut the presumption.”
On the other hand, the balance of probabilities is discharged/satisfied if there is greater than 50 per cent that the proposition is true and not 100 percent. Lord Denning, in Miller v Minister of Pension [1947] All E R 373 described it simply as “more probable than not”. For the above reason, errors omissions and irregularities that are too minor and do not go to the root of the matter and occasion a miscarriage of justice may be disregarded. See Dr. Vincent Karuhanga vs National Insurance Corporation & Anor H.C.C.S No. 617/2002 and Sebuliba v Co-Operative bank (1982) HCB 129.
Further, in the proof of cases, unless it is required by law, no particular form of evidence (documentary or oral) is required and no particular number of witnesses is required to prove a fact or evidence as per Section 58 Evidence Act and Section 133 Evidence Act.
Section 234 of the Succession Act (as amended) provides for;-
“Revocation or annulment for just cause
(1) The grant of probate or letters of administration may be revoked or annulled for just cause.
(2) In this section, “just cause” means—
(a) that the proceedings to obtain the grant were defective in substance;
(b) that the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case;
(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though the allegation was made in ignorance or inadvertently;
(d) that the grant has become useless and inoperative through circumstances; or
(e) that the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with Part XXXIV of this Act, or has exhibited under that Part an inventory or account which is untrue in a material respect”.
RESOLUTION OF THE ISSUES
Whether the Plaintiffs have given valid grounds for the revocation of a grant of Letters of Administration?
The Plaintiffs had a single witness PW1, Michael Kirunda who basically reiterates the facts as put down in their Plaint to which I have not found necessary to repeat as I have already summarized them in the brief facts above.
Letters of Administration for the estate of the late Erukana Kirunda were granted by this Honourable Court, to Jessica Kirunda Ngobi (daughter) on 21st August 2017. The Plaintiffs claim that the Defendant since obtaining Letters of Administration has acted as though she is a sole beneficiary of the estate of late Erukana Kirunda and has directly and through various agents sought to disenfranchise and disinherit the Plaintiffs from their ancestral homes and ostracize the Plaintiffs from their interests as beneficiaries; has never filed an inventory.
The Plaintiffs seek revocation of the Letters of Administration granted to the defendant on account of the irregularities on identification of the Defendant by the court in in Administration Cause No.126 of 2015.
The claim by the plaintiffs is not only against the process before the grant but also by the failure by the defendant to file an inventory after the grant and this court is to determine if they warrant revocation.
Paragraphs 5(e)-(g) of the Plaint reproduced here read;
“(e) They further contended that the Defendant however has since obtaining letters of administration on 21st August 2017 acted as though she was a sole beneficiary of the estate of the late Erukana Kirunda and has both directly and through various agents sought to disenfranchise and disinherit the plaintiffs form their ancestral home and from their interest as beneficiaries to the estate of late Erukana Kirunda. The defendant has since obtaining letters of administration on 21st August 2017 failed neglected and refused to distribute the estate of Erukana Kirunda to the beneficiaries as required under the law. She has thus denied the plaintiffs of their entitlement in the estate.
(f) The Defendant has willfully and intentionally without reasonable cause omitted to exhibit an inventory or account as required in accordance with Part XXXIV of the Succession Act (cap 162) containing a full and true estimate of all the property in her possession ever since she was granted the letters of Administration. The Grant of letters of administration to the Defendant may thus be justly revoked under the provisions of Section 234 (2) (e) of the Succession Act (cap 162). [A certified copy of court file record and proceedings in Administration Cause No. 126 of 2015 is hereto attached with documents marked "B10" clear showing no inventory or any other filing by the Defendant after the date of the grant on 21st August 2017]
(g)They argued that upon perusal of the above said record in Administration Cause No. 126 of 2015, the plaintiffs have noted material irregularity on the record indicating that the proceedings by which the Defendant obtained the grant of letters of Administration to the estate of the late Erukana Kirunda were defective in substance”.
PW1 testified that they was no inventory filed and a lot of procedural irregularities as the Defendant didn’t personally appear for identification proceedings before the Learned Deputy Registrar before granting of the Letters of Administration.
I have had occasion to examine the original file in respect of Administration Cause No.126/2015 as recovered from the Court archives. The record reveals that identification of the Petitioner for Letters of Administration took place on 4/4/2017 and that it was M/S. Naigaga for the Applicant (Holder of Power of Attorney who appeared before the Learned Deputy Registrar His Worship Jesse Byaruhanga (as he then was) and Mr. Kakaire holding brief for counsel Bitebekezi for the Respondents.
The record also shows that the two Respondents Winfred Kirunda and Michael Kirunda who filed the caveat to deny the Defendant grant in respect of the estate of Erukana Kirunda her father did not appear together with their counsel.
The matter was adjourned to 25/04/2017 and this time, Mr. Kakaiare appeared for the caveators and Mr. Bukulu for the Petitioner and still, MS Naigaga for the Applicant (Holder of Power of Attorney) appeared for the Petitioner.
Both sides presented their arguments and by consent, of the parties and their respective Advocates, property comprised in Plot No. 40 Muvule Crescent, Jinja Municipality measuring 0.041 Hectares and land at Block 33, Plot 315 Kyadondo Mutundwe was excluded from the Administration Cause No.126/2015 as not being part of the estate of the late Erukana Kirunda.
The caveat was accordingly vacated and the Applicant to be identified.
Again on 6/7/2017, the Petitioner is recorded as present with M/S. Naigaga; and M/S. Naigaga went on record that “Upon the caveators agreeing wihth the Petitioner on the aspect regarding land on Plot No. 40 Muvule Cresnt, Jinja Municipality measuring 0.041 Hectares and land at Block 33, Plot 315 Kyadondo Mutundwe that it be excluded from the estate envisaged under Administration Cause No.126/2015, I do present the Petitioner for Identification”.
Court ruled that “The Petitioner has filed all the requirements for a Grant including the consent with the caveators. I do accordingly identify her and forward the file to the Hon. Judge for consideration of the grant”.
Signed________________“Byaruhanga Jesse Rugyema, Deputy Registrar.”
From the above original and authentic record, it is clear that the Plaintiffs’ allegation that the Defendant was not properly identified, is false as the record proves otherwise.
Secondly, since it is clear that the Petitioner who was the donor of the contested Powers of Attorney appeared in person as proved by the court record, then it is irrelevant whether this was duly registered with the Registrar of documents or not; what is important is that the donor of the Powers of Attorney was present in person during the Identification Proceedings before the Court in Administration Cause No.126/2015 and there is no doubt that she is indeed the Petitioner in that case.
In the result, I have found no merit in the evidence led by the Plaintiffs.
My decision is that the plaintiffs, therefore, have not proved any irregularities that go to the root of this case to that can be attributable to the Defendant.
This issue is resolved in favour of the Defendant/Petitioner.
I shall now resolve the issue of whether the Plaintiffs have proved that the Defendant did not file inventory.
The law provides that an inventory ought to be made and presented to this court and filed and recorded on the file for Administration Cause No.126 of 2015 from which this suit originates. The Plaintiffs did not present proof in the form of certified copies of the record of Administration Cause 126 of 2015 to show that the inventory was not filed.
A grant for Letters of Administration is a Court Order and for it to be revoked court must be satisfied that it has not been complied with on whether an inventory had been filed or not and stated that the certified copies of the record showed that no inventory had been filed by the Defendant in that case.
I have therefore, had the opportunity to peruse and found that the Plaintiffs have proved that the defendant has never filed such true inventory or true account of the properties of the estate.
The fact that the Defendant has never filed a true inventory and account in respect of the late Erukana Kirunda, as per the court record of AC 126/2015 In the matter of the Estate of Erukana Kirunda from which the instant suit arose.
I’m alive to the law that requires an inventory to be filed in Court within 6 months from the date of issuing the grant, however I’m also alive to the fact that no proof has been furnished by the Plaintiffs that the Petitioner has wasted the estate property or disposed off it in any way to her own benefit.
It is clear that that the Minutes made before the Administrator General at the commencement of the Petitioner’s Petition for the grant of her father’s estate (which form part of the record in AC 126/2015 In the matter of the Estate of Erukana Kirunda under Minute 4 reveals that the late Erukana Kirunda was survived by only three children , two of whom were already deceased and that left the Petitioner/ Defendant as the only surviving biological child and therefore a direct descendant of the late Erukana Kirunda.
In the same Minute, it is clearly revealed that the Plaintiffs in this matter are not direct descendants to the estate of the late Erukana Kirunda, but are grand children to the late Erukana Kirunda.
The above means that the Defendant/ Petitioner in AC 126/2015 In the matter of the Estate of Erukana Kirunda has more leverage as a direct descendant to be granted the Letters of Administration in respect of her late father’s estate.
Thirdly, the evidence led in this case reveals that the Defendant is not resident in Uganda but lives abroad.
The cumulative effect of the above is that the justice of this case demands that the Defendant should be allowed more time to comply with the condition for filing an inventory since the Grant of Letters of Administration she is holding are still valid it is not affected by the Succession (Amendment Act 2022) which requires Courts to issue grants with an expiry date. The strict conditions that govern this law does not apply retrospectively.
My decision therefore is that the Plaintiffs have not satisfied Court that cautioned that there are valid grounds at this point in time for the revocation of a grant of Letters of Administration.
Instead, I find it fair and just that the Defendant is cautioned and granted six (6) more months within which to file the Inventory in this Honorable Court.
However, I also alive to the fact that the evidence on record has not been challenged or rebutted by the Defendant as the Plaintiffs have proved that she does not reside in Uganda.
Whether the plaintiffs deserve to be granted Letters of Administration in respect of the estate of the late Erukana Kirunda?
I have critically analyzed this issue and it is clear that the Plaintiffs admit that indeed they consented to the Defendant to obtain Letters of Administration in respect of her late father vide the Family Consent Ref. BSG/AC/2905/2014 and that is also confirmed by a copy of the Certificate of No Objection on record.
While they now however now seek to remove the Grant of Letters of Administration from the Defendant on allegations by PW1’s in paragraph 19 witness statement that:-
“We have learnt that that the Defendant attempted to process a renewal in her personal names of a leasehold interest for the land comprised in LRV 695 Folio 22 being Plot 51 -59 Menya Wanume Road Busembatya previously vested in a company: Kirunda and Brothers Limited as Lessee. This Company was jointly owned by the late Erukana Kirunda together with my father Justin David Kirunda & the second Plaintiff’s father - John Luwuliza Kirunda). This action by the Defendant was a fraudulent and dishonest action in which the Defendant was only prevented from succeeding by the providential action of the Jinja District land board which noted the discrepancy between the Applicant for renewal and the sitting lessee and rejected the Defendant's application. The Defendant's good faith as an administrator to the estate of the late Erukana Kirunda is thus highly questionable”.
I’m also alive to the provisions of Section 5(1) of the Administrator General’s Act which provides;
‘No grant shall be made to any person, except an executor appointed by the will of the deceased or the widower or widow of the deceased, or his or her attorney duly authorized in writing, authorizing that person to administer the estate of a deceased person, until the applicant has produced to the court proof that the Administrator-General or his or her agent has declined to administer the estate or proof of having given to the Administrator-General fourteen clear days’ definite notice in writing of his or her intention to apply for the grant (emphasis Mine).
The above means that for the Plaintiffs or anybody else for that matter to deserve grant of Letters of Administration, they must have been vetted by the Administrator-General except in specific circumstances provided under S. 222 of the Succession Act (as amended).
I have not found the specific circumstances above fulfilled by the Plaintiffs in this case.
For the reasons I have given in this Judgment, it is the final decision of this court that the Plaintiffs do not deserve to be appointed as Administrators of the estate of the late Erukana Kirunda especially without taking into consideration the Defendant who holds the grant currently and any other surviving beneficiaries who may have an interest in that estate; and more so without following due process.
My decision is that the Plaintiffs have failed to satisfy this Honourable Court that they deserve any of the remedies they are seeking or that they are acting in good faith. I therefore decline to grant them any of the reliefs they are seeking.
Judgment is therefore entered for the Defendant against the Plaintiffs with the following Orders:-
This whole suit is found to have no merit and it FAILS. It is accordingly dismissed.
The Letters of Administration vide HCT-00-CV- AC No.126 of 2015 granted to the Defendant Jessica Kirunda Ngobi in respect of the estate and credits of Late Erukana Kirunda remain valid.
The Defendant is however cautioned and compelled to furnish an Inventory in this Honourable Court within six (6) months from the delivery of this Judgement.
The parties shall bear their own costs of this suit.
I SO ORDER
__________________________________________
JUSTICE DR. WINIFRED N NABISINDE
JUDGE
19/03/2024
This Judgment shall be delivered by the Honorable Magistrate Grade 1 of the High Court Jinja attached to the Chambers of Justice Dr. Winifred N. Nabisinde who shall also explain the right of appeal against this Judgment to the Court of Appeal of Uganda.
_________________________________________
JUSTICE DR. WINIFRED N NABISINDE
JUDGE
19/03/2024
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