Court name
HC: Civil Division (Uganda)
Judgment date
10 January 2013

Mukholi v Waswa (HCT-04-CV-CR-2012/19) [2013] UGHCCD 1 (10 January 2013);

Cite this case
[2013] UGHCCD 1

THE REPUBLIC OF UGANDA

IN THE  HIGH COURT OF UGANDA

AT MBALE

HCT-04-CV-CR-0019/2012

 

MICHEAL MUKHOLI …………………………….…….                                                                                                                                   APPLICANT

VERSUS

WASWA JOSEPH   …………………………….……                                                                                                                                 RESPONDENT

 

BEFORE: THE HON. MR. JUSTICE STEPHEN MUSOTA

 

REVISION ORDER

This  file is before me for a possible Revision order.  The matter was forwarded through the Chief Magistrate Mbale by the Magistrate Grade one Bubulo.  The background  is contained in the forwarding letter by the magistrate Grade One Bubulo dated 19th  October, 2012.  I will quote here below the contents of the said letter:

Reference is made to the above matters which are before me for execution of orders by the Grade Two Magistrate for refund of dowry.


It is my humble opinion  that these judgments and orders are null  following the decision of Her  Lordship Justice Mukasa Kikonyogo DCJ as she then was in the Constitutional Petition No. 12 of 2007  MIFUMI (U) LTD& 12 OTHERS VS- THE ATTORNEY GENERAL AND KENNETH KAKURU, which  she stated that:

“………..the customary practice of the husband demanding a refund of the bride price in the event of dissolution of the marriage demeans and undermines the dignity of a woman and is in violation of Article  33 (6)  of the Constitution .  Moreover, the demand of a refund violates a woman’s entitlement to equal rights with the man in marriage, during marriage, and at its dissolution (see Art. 31 (1).

 

Further, a refund demand fails to honour the wife’s unique and valuable contributions to a marriage.  A woman’s contributions in a marriage cannot be equated to any sum of money or property, and any refund violates a woman’s constitutional right to be an equal co-partner to the man.”

 

Therefore , for this court to go ahead with the execution of these orders in my view would be sanctioning an illegality and as such I  forward to you the above files for your further  handling and guidance.

 

Nakyazze Racheal

Magistrate Grade One”

 

The learned Chief Magistrate endorsed the views expressed by the Magistrate Grade One.  I agree with the opinion of both the magistrate Grade One and Chief Magistrate that an order for a refund of dowry is unconstitutional in view of the decision in Constitutional Petition No 12 of 2007  Mifumi (U) Ltd  & 12  others vs Attorney General  and Kenneth  Kakuru. In that  petition it was held inter alia  that;

 

“The customary practice of the husband demanding a refund of the bride price in the event of dissolution of the marriage demeans and undermines the dignity of a woman and is a violation of Article 33 (6) of the Constitution moreover, the demand of a refund violates a woman’s entitlement to equal rights with the man in marriage and at its dissolution See Art 31 (1).

 

Further, a refund demand fails to honour the wife’s unique and valuable contributions to a marriage.  A woman’s contribution in a marriage cannot be equated to any sum of money or property, and any refund violates a woman’s constitutional right to be an equal co-partner to the man.”

The learned  trial magistrate was absolutely right to decline sanctioning execution for a refund of dowry in the  head suit of 2 heads of cattle and  2 goats  plus costs of  100,000/=.  To do so would be tantamount to sanctioning an illegality.

 

The decision of the Magistrate Grade II Bubulo  will be quashed and set aside since  the original claim lacked a cause of action.

 

I so order.

 

Stephen Musota

Judge

10.1.2013.