In Re: Kyeswa a (minor untill 2030),Batwawula 9minor untill 2027)& Sebaduka (minor untill 2014) (Family And Children’s Cause No.32 of 2018) [2019] UGHCFD 10 (17 October 2019)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO

FAMILY AND CHILDREN’S CAUSE NO.32 OF 2018

IN THE MATTER OF AN APLICATION FOR A GUARDIANSHIP ORDER BY KITENDA JOHN (FATHER) FOR THE TRANSFER AND REGISTRATION OF LAND COMPRISED IN KYAGWE BLOCK 116 PLOT 3210 AND 1961

AND

IN THE MATTER OF LUKE THOMAS KYESWA (MINOR UNTIL 2030), JANE IMELDA ZOE BATWAWULA (MINOR UNTIL 2027) AND SEBADUKA THEODORE WALCOT

(MINOR UNTIL 2014)

BEFORE HON. LADY JUSTICE MARGARET MUTONYI, JUDGE HIGH COURT

RULING

This Ruling is in respect of an Application for legal Guardianship brought by way of Notice of Motion (exparte) under section 39 of the Judicature Act, Section 98 of the CPA and sections 3, 4, 5 and 6 of the Children Act CAP 59, order 52 rules 1 and 3 of the CPR seeking orders that;

1. A Guardianship Order be granted to the Applicant KITENDA JOHN to enable the transfer and registration of Kyagwe Block 166 Plot 1961 land at Nsube from LUKE THOMAS KYESWA (MINOR UNTIL 2030) to his sister JANE IMELDA ZOE BATWAWULA (a minor until 2027) and Kyagwe Block 166 Plot 3210 land at Nsube from SEBADUKA THEODORE WALCOT (minor till 2024) to his brother LUKE THOMAS KYESWA (MINOR UNTIL 2030).

2. Such Orders as the Court may deem fit to grant.

This Application is supported by the Affidavit of the Applicant JOHN KITENDA.

The brief background of the case is that the applicant JOHN KITENDA is the biological father of all the four minors who are the subject matter of this Application.

The children’s father (Applicant) lawfully purchased land comprised in KYAGWE BLOCK 166 PLOTS 1961 and 3210 and registered it in the names of two children LUKE THOMAS KYESWA vide Instrument number MKO-00008500 dated 16^th July 2014 and SEBADUKA THEODORE WALCOT vide Instrument number MKO-00004631 dated 21^st January 2014 land at Nsube.

He further purchased KYAGWE BLOCK 106 PLOT 722 and registered it in the names SEBADUKA THEODORE WALCOT vide MKO-00006961 on 5/05/2014 (All the certificates of title for the said land are attached to the affidavit in support of the application clearly indicating the said children as the registered proprietors of the land). Also attached are the birth certificates and school bank slips from Seeta Junior School belonging to all the minors.

He now seeks an order of this court to enable him evenly share the said properties amongst all three of his children as the share meant for JANE IMELDA ZOE BATWAWULA (a minor until 2027) was erroneously transferred by the land office to LUKE THOMAS KYESWA who already has his share in the same estate. And that it is this error that he seeks to rectify with the order and authorization of this court.

The children’s biological mother NAJJUKO THEREZA was present at the hearing and confirmed to this court that she does not object to this application and in fact she also wanted the guardianship order to be granted to her husband as this would enable him to equally share the properties amongst their three children.

Counsel MALIK BUYONDO who represented the Applicant filed written submissions on Court record pointing out several grounds to support the grant of this Application. The same have been duly analyzed and referred to while writing this Ruling.

ISSUE

Whereas Counsel for the Applicant raised two issues for determination, the only issue for this Court’s consideration in this kind of Application is;

Whether it is in the best interest of LUKE THOMAS KYESWA (minor until 2030), JANE IMELDA ZOE BATWAWULA (a minor until 2027) and SEBADUKA THEODORE WALCOT (minor till 2024) (the minors) to appoint JOHN KITENDA as their Guardian to enable him hold and manage the property on their behalf.

RESOLUTION

I have carefully perused Counsel’s written submission on record alongside the Applicant’s Affidavit evidence and all the accompanying documents and resolve as below;

IN RE: AN APPLICATION FOR GUARDIANSHIP BY WANDERA PETER FAMILY CAUSE NO.004 OF 2017 Justice Stephen Mubiru defined a Guardian and described his or her role in the following words:

“A person who is given the legal power to make decisions for another person because he/she is considered not competent to decide for him or herself. Guardianship is thus the legal relationship between a competent adult (Guardian) and a person who because of incapacity such as minority is incapable of taking care of his/her own affairs (the ward). The Guardian makes decisions on behalf of the ward. The Guardian by virtue of that status is authorized to make legal, financial, shelter, education, food and health care decisions for the ward but maybe required to seek Court’s approval for various decisions especially those regarding the investment and disposal of the property of the ward. A Guardian must always act in the best interest of the ward. In such cases, the Guardian will manage the ward’s finances and property and provide records to the Court.”

This relationship if created in essence puts the Guardian in a fiduciary relationship with the minor with fiduciary duties. This calls for the management of the property by the Guardian on behalf of the minor with the best interest of the minor.

In determining the suitability of an Applicant to be appointed as Guardian for a child, the court is guided by the Welfare Principle as stipulated in sections 3 and 4 of the Children Act. In that regard therefore; a Guardian has to have these four main duties in mind;

1. To act only in the best interest of the minors in this case LUKE THOMAS KYESWA, SEBADUKA THEODORE WALCOT and JANE IMELDA ZOE BATWAWULA.

2. To manage the property and any activities thereon with utmost care.

3. To keep the money and property of the minors separate from his own.

4. To keep good records pertaining to the properties as he is accountable to the Court because he becomes an agent of Court with regards to the children’s properties.

As a fiduciary, one must be trustworthy, honest and always act in good faith and in the best interest of the minor (s) and once the Application is granted, the Applicant must report to Court regularly and be ready to answer any questions pertaining to the Guardianship.

Even those dealing with the guardian in respect of the property must know and be mindful of the fact that he is executing the contract (s) if any on behalf of the minors and for the minors’ best interest.

This Court had the opportunity to examine and assess the Applicant when he appeared for the hearing. He is the biological father of the minors and together with his wife, they purchased properties and chose to register them in the names of their minor children with further plans of developing the same with rentals in a bid to secure the future welfare of these minors.

In paragraphs 4 to 7 and 11 of his affidavit in support of the Application, he clearly details the need for this order as the only way to rectify an honest mistake on his part in a bid to execute cross transfers for the minor’s properties which steps had been started without a Guardianship order and thus could not be completed.

The children’s mother one NAJJUKO THEREZA also attended Court on the date of hearing and emphasized that she had no objection to this Application. She further told court that as parents who have the best interests of their children as their priority, this Guardianship order if granted to her husband was only going to serve the best interests of their minor children. She was in total support of the Application.

This Court perceived the same to mean that at all material times, the children’s mother is going to be present to oversee all the dealings on the various properties and to ensure that the same is protected and only utilized to the best interest of the minors.

Court has no doubt that these children will be the direct beneficiaries to these developments as their parents willingly purchased the properties and voluntarily elected to register them in their names as registered proprietors and the same parents have even gone further to pursue an equal distribution of the properties amongst the said minors to curb any possibility of future conflict. This can only be done by a selfless loving parent who has his children’s best interests at heart.

Court is therefore satisfied that the Applicant’s desire to transfer and register the two properties in the names of the minors is definitely in the best interest of these minors. This is in line with the welfare principle where the best interest of the child is paramount.

The Applicant has exhibited high level of responsibility towards all his children by buying and registering property in their names. The intention is not to alienate property belonging to the minors but to correct an error in land office.

This Court is satisfied with the grounds for the Application.

In the result, the Application is granted with the following Orders;

1. A Guardianship order is granted to JOHN KITENDA in respect of LUKE THOMAS KYESWA, SEBADUKA THEODORE WALCOT and JANE IMELDA ZOE BATWAWULA.

2. JOHN KITENDA is authorized to secure the transfer and registration of Kyagwe Block 166 Plot 1961 land at Nsube from LUKE THOMAS KYESWA (MINOR UNTIL 2030) to his sister JANE IMELDA ZOE BATWAWULA (a minor until 2027) and Kyagwe Block 166 Plot 3210 land at Nsube from SEBADUKA THEODORE WALCOT (minor till 2024) to his brother LUKE THOMAS KYESWA (MINOR UNTIL 2030).

3. JOHN KITENDA is to file the relevant copies of the executed transfers and other relevant documents with the Registrar of this court within 3 months of this execution.

4. This Guardianship Order is limited to the transfers in this Application and shall lapse upon execution of the said transfers or the minors herein attaining maturity age whichever is earlier.

I so order.

Dated this 17^h day of August 2019.

____________________________

Hon. Lady Justice Margaret Mutonyi

RESIDENT JUDGE

MUKONO HIGH COURT.