Court name
HC: Family Division (Uganda)
Case number
Miscellaneous Application 167 of 2021
Judgment date
23 November 2021
Title

Luseleka and Others v Namalwa (Miscellaneous Application 167 of 2021) [2021] UGHCFD 3 (23 November 2021);

Cite this case
[2021] UGHCFD 3
Coram
Khaukha, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA
(FAMILY DIVISION)

MISCELLANEOUS APPLICATION NO. 167 OF 2021

  1.           KYOBE JULIUS LUSELEKA
  2.           KISALU GLADYS ROBINAH
  3.                                                        ANN KYOBE         } =============APPLICANTS
  4.           WILLIAM KYOBE
  5.           DENNIS BOSSA
  6.           STEVEN LUTALO

VERSUS

AIDA NAMALWA=====================RESPONDENT

BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKIIA

RULING

Introduction

This ruling is in respect of an application by Notice of Motion brought under Section 98 of the Civil Procedure Act, Sections 14 and 33 of the Judicature Act and Order 52 Rules 1 and 3 of the Civil Procedure Rules. The application seeks orders;

  1. to direct the applicants to bury the body of their brother, the late Christopher Mayanja Kyobe at the family ancestral home/burial ground at Kakoola Local Council I, Sekamuli Parish, Bamunanika Sub County, Luwero District;
  2. to restrain the respondent or anyone claiming any rights through her from interfering with the said burial; and
  3. that each party bears its costs of this application.

Appearance and Representation.

When the application first came up for hearing on 8/11/2021, the applicants were in court and represented by Counsel Henry Kirunda of Kamahoro, Kiboome & Kirunda Advocates. The respondent was also present in court and represented by Counsel John Mwaya and Mr. Sempijja from Jingo, Sempijja & Co. Advocates. Counsel for the applicants and the respondent made oral submissions while citing authorities and the same have been considered in this ruling.

The application

The application is supported by the affidavit of the first appellant one Kyobe Julius Luseleka. The respondent filed an affidavit in reply while the second applicant Mrs. Gladys Robinah Kisaalu filed an affidavit in rejoinder. After the closure of the oral submissions by both counsel, the court found it necessary to hear from someone deemed to be competent on the matters of the “Ndiga” clan especially with regard to burials. The Katikiiro of Buganda was duly contacted and he assigned Kabaale Yusuf to attend court and gave evidence about the “Ndiga” clan. In addition, it was necessary to examine on oath the 1st and 2nd applicants as well as the respondent in order to obtain further information to assist the court in making an an informed decision.

Facts

The facts as deduced from the pleadings, submissions by counsel and oral evidence in court are as follows;

One Christopher Mayanja Kyobe (herein after referred to as the deceased) was one of the twenty children of the late Yulio Kyobe. The late Yulio Kyobe had a home in Kakoola village, Sekamuli parish, Bamunanika in Luwero District where he was

 buried. Yulio Kyobe and his descendants belong to the Ndiga clan one of the 52 clans in Buganda.

The deceased relocated to Switzerland in his youthful years and related with a Swiss lady with whom he fathered two children, a boy and a girl who are currently aged 46 years and 44 years respectively and are citizens of Switzerland. On 27th March the deceased married Aida Namalwa (hereinafter referred to as the respondent), a Muganda lady al Namirembe Cathedral with whom he lived until his death on 7th October 2021. The deceased and the respondent did not produce any children together.

The deceased and the respondent have since their marriage lived in Switzerland and occasionally came to Uganda to visit. Both the deceased and the respondent jointly acquired land comprised in Leasehold Register Volume 3064 Folio 8 Kyaggwe Block 193 Plot 771 where they built their matrimonial home.

the beginning of October 2021. the deceased fell sick while in Switzerland. Hc was subsequently hospitalized and sadly passed away on 7th October 2021. His remains were repatriated to Uganda by the respondent and are currently being kept at A Plus Funeral Home. Upon arrival of the deceased's remains, there arose a dispute as to where the remains of the deceased should be laid to rest between the applicants (half-brothers and half-sisters of the deceased) on the one hand and the respondent on the other.

The applicants contend that the deceased belonged to the "Ndiga" clan of the Baganda and espoused cultural norms and traditions which dictate that he should be buried at Kakoola village, Sekamuli Parish, Bamunanika Sub-County Luwero District, at the ancestral grounds/burial grounds where his deceased father is buried. According to the applicants, unless someone has expressly stated in a WILL to the cultural norms and he verbally expressed to her that he wished to be buried at his matrimonial home in Mukono. It is against this background that this application was brought to this honorable court.

At the hearing of this application, counsel for the parties raised the following issues for determination by this honorable court;

/. Whether the deceased should he buried at the ancestral home in Kakoola Village, Luweero or at his home in Mukono.

2. Who has the right to determine where the deceased should be buried?

1 will consider each of the parties’ evidence and submissions before resolving the issues set out above.

Mr Kabaale Yusuf's evidence

In support of the applicant’s counsel’s submission, Mr. Kabaale Yusuf testified that according to the Ndiga Clan and other clans of Buganda, if someone died without a WILL stating the contrary, the person should be buried where the grand father is buried and it is called “lujja” in Luganda (ancestral home). Apart from the wishes of the deceased expressed in a WILL, he gave other exceptions such as passing on and being buried and or cremated in a foreign land or someone who disappears from home. He further explained that the “lujja” or ancestral home begins with the grandfather whereby one has to be buried where the grand father is buried. When asked why someone must be buried close to his grandfather and father, he stated that that the reason is to stop the ghosts from haunting those who remain. When cross examined and asked to confirm that burying someone away from the ancestral home is not an abomination, he hesitantly confirmed that it was not an abomination for

someone to be buried away from the ancestral grounds but hastened to add that it

would be good that the customs are followed so as to restrain the ghost especially

where there is no WILL.

Mr. Luseleka Julius' evidence

In support of the applicants. Mr Luseleka Julius (Hereinafter referred to as the 1st applicant) testified that he was the deceased’s half-brother; the deceased and him only shared a father. It was also his testimony that most of his lather’s children who have passed on are buried in Kakoola, Luweero District and that that is where their grandfather Muka Hossa was also buried.

The 1st applicant also testified to the fact that the deceased had lived abroad for so long. That the deceased first lived in Greece and later went to Switzerland where hc married and had two children who were both boys and that he had never seen the deceased’s children coming to Uganda. He also mentioned that hc did not know the mother of the deceased’s children and thought that she was dead.

The 1st applicant also testified to the fact that he had last seen the deceased last year in December at his home in Mukono but that also whenever the deceased came to Uganda, he would go to Kakoola, Luweero District to see where their parents were buried. It was also his testimony that hc did not know that the deceased was sick and only heard about his death. That in a year, he spoke to the deceased like about four (4) times and that they were friends.

However, upon being cross examined, the 1st applicant stated that his grandfather was buried at his own home called Kanyogoga which was seven miles away from Kakoola where his late father was buried.

During re-examination, the 1st applicant stated that the reason as to why his father was buried in a different place was because he left a will.

Ms Kisaalu Robinah Gladys’ evidence

Ms Kisalu Robinah Gladys (hereinafter referred to as the 2nd applicant) testified in favour of the applicants and stated that the deceased had two children, a boy and a girl who are aged about 46 and 44 years respectively and both live in Switzerland. She also testified to the effect that the mother of the deceased’s children was alive and lived in Zurich and that she is a Swiss.

The 2nd applicant also stated that she had last spoken to the deceased in August 2020 and that her subsequent attempts to speak to her brother were futile. In October 2021, she was told by the deceased’s wife that he had died. Upon getting to know of her brother’s death, the 2nd applicant travelled to Zurich and stayed with the deceased’s wife for five (5) days condoling with her and that is when the deceased’s wife insisted that she was going to bury the deceased and that the deceased’s wife was doing everything with her son, who was not the deceased’s biological son.

Upon cross examination, the 2nd applicant stated that their father was buried in Kakoola and their grandfather was buried in Kanyogoga.

The 2nd applicant also stated that the deceased had told everyone that he wanted to be buried in Namungoona.

Aida Mayan ja Kyobe’s evidence

Aida Mayanja Kyobe is the respondent and she testified in that capacity. She stated that she married the deceased on 27th March 1993 at Namirembe Cathedral.

It was also the respondent’s testimony that the deceased told her that he wanted to be buried at Namungoona Orthodox Church but unfortunately, when Archbishop Lwanga died, he was buried where the deceased wanted to be buried and that is when she and the deceased decided to be buried where they had built their house in Mukono. She also stated that the deceased wanted to be buried at the church and not in Kakoola where his family is because he was not treated well when he was young.

It was also the respondent’s testimony that her and the deceased used to come to Uganda every year and they were last in Uganda in 2017. She also stated that every time her and the deceased came to Uganda, they visited Kakoola because the deceased wanted to see his father.

The respondent further testified to the fact that she did not have any children with the deceased but at the time of their marriage, the deceased knew that the respondent had her own son and that she had met him in Switzerland and she knew that the deceased also had two children.

Upon cross examination, the respondent stated that the deceased fell ill for about a week before hc died and that she did not contact any of the deceased’s family members because she did not have their contacts and did not know that Ms Kisaalu Robinah was still in Geneva but informed her sister to inform the deceased’s relatives.

The respondent further stated that her and that late husband built their house in 1997 and that when the deceased gave his wish to be buried in Mukono, she was with his children.

Applicant’s submissions

 

It was pleaded in the application, supported by the affidavit of the 1st applicant and contended by counsel for the applicants in his submissions that in Buganda, the burial of a deceased person is a cultural affair. It is based on traditions, norms and customs which arc not only protected but also promoted by our laws including the constitution. Counsel further submitted that Uganda is constituted of many ethnic groups and the issue of how and where the deceased is buried is cherished by all tribes. According to him, the deceased is considered to be part of the family even when they depart to the other world. Therefore, all customs and traditions which are consistent with the fundamental rights and dignity should be promoted.

Counsel for the applicants further submitted that the deceased espoused the customs of the “Ndiga” clan and therefore should be buried according to those customs (buried at the ancestral home).

The appellant’s counsel also cited the authority of Mifumi (U) Ltd & others Versus Attorney General and Kenneth Kakuru Constitutional Appeal No. 02 of 2014 where the custom of bride price was discussed and taken judicial notice of. He invited court to take judicial notice of the burial custom of the Ndiga clan of the Baganda.

Counsel for the applicants further referred to the case of Nice Bitarabeho Kasango Versus Rose Kahise Eseza Miscellaneous Cause No. 17 of 2021 which dealt with a dispute between the widow of the late Bob Kasango and the mother as to where the late Kasango should be buried. In that case, the learned trial judge held inter alia, on page 10 paragraph 37;

It therefore does not matter that one loves their ancestry or not, is ashamed of it or not, knows or speaks their ancestral language or not, practices their ancestral

culture or not. We are born into our ancestry. We do not choose it. It is imparted by birth and it is a matter outside our discretion "

Respondent's submissions

The respondent's counsel on the other hand vehemently opposed the application and submitted that the applicants had not proved the purported customs of the Ndiga clan and called upon court to find that the same had not been sufficiently described. He contended that the applicants' affidavits did not prove the alleged culture.

He also submitted that contrary to what the applicants claimed, the deceased though a Muganda of Ndiga clan did not espouse the customs of the Ndiga clan. That whereas it is true that the deceased paid a visit to Kakoola every time he came to Uganda and whereas it is true he rehabilitated the father’s grave yard, it was out of respect and honor to his late father but not because hc wanted to be buried there.

The respondent's counsel further contended that marriage creates equal rights between men and women as per Article 31 (1) of the Constitution. Hc further argued that the applicants were half-brothers to the deceased and they had no close relationship with him. That the respondent was the only widow to the deceased, was very close to the deceased, single handedly nursed him, took it upon herself to repatriate the body and is currently bearing the expense of keeping the body at A Plus funeral Home. Counsel for the respondent also submitted, that the respondent being the closest person to the deceased, she is the best person to know what his wishes were and according to the respondent, the deceased wished to be buried at his matrimonial home in Mukono.

It was also the submission of counsel for the respondent that the applicants did not come with clean hands and were hiding under an oppressive custom of the Ndiga clan which denies widows from burying their husbands. He invited court to find that the

widow's rights over the deceased’s body supersedes any other rights and any customs, norms or traditions that deny a widow of that right is oppressive.

He argued that Ugandan jurisprudence has not evolved in this area but referred court to Kenyan authorities and invited court to consider them because though not binding, they are persuasive. Relying on the case of Ruth Wanjiru Njoroge Versus Jemima Njeri Njorogc and Another Kenya High Court Civil Case No. 330 of 2004, the respondent’s counsel submitted that it’s the widow’s rights to determine where the deceased’s husband should be buried. This was a case of a dispute between a lawfully married wife of the deceased though said to be estranged with the deceased’s brother on one hand and another woman who claimed to be a second wife married under customary law on the other hand. The dispute related to the burial place of the deceased. Whereas the former contended that under the kikuyu custom the deceased had to be buried in the ancestral home, the latter contended that the deceased had expressed wishes to her to be buried at a farm that he had purchased. In that case, it was held inter alia;

“... the fundamental issue that will resolve most of the claims in this application is marital status prior to the death of the Mr. Samuel Njoroge Muiruri..................................... the person

in social context prevailing in this country who is in the first line of duty in relation to the burial of any deceased person, is the one who is closest to the deceased in legal terms. Generally, the marital union will be found to be the focus of the closest chain of relationships touching on the deceased. Therefore, it is only natural that the one who can prove this fundamental proximity in law to the deceased, has the color of right of burial, ahead of any other claimant.... it follows that it is the marriage regime, rather than the succession regime, that should prevail in determining questions of burial. And on this principle, I would hold that the applicants claim to the body of the deceased in not nearly as strong and anthemic as the claim such as would be made by the respondents".

In this particular case, the respondents were allowed to bury the deceased at the ancestral home in honor of the 1st respondent’s position as the legally recognized wife.

Counsel for the respondent further relied on a Kenyan authority of Jacinta Nduku Masai Versus Leonida Mueni Mutua and 4 others Kenya HCCA No. 139 of 2018 in which the Learned Judge cited John Omondi Oleng and Anor Versus Sueflan Radal (2012) Eklr where it was held inter alia;

"... when it comes to the disposal of the body of a married man or woman, the spouse should take a leading role. It would be better if the relatives of the deceased can sit down and agree on how to give their loved one a dignified exit. When they fail to agree and approach the court for solution, the court has no option but to step in.

In the above case of Jacinta Nduku Masai, the learned Judge relied on an article LEGAL APPROACHES TO BURIAL RIGHTS OF A SURVIVING WIFE BY DR REMIGIUS N NWABUEZE where it was opined that;

“Most western legal systems recognize the right of a surviving wife to control the disposition of the remains of her deceased husband. In the USA, the surviving wife is the appropriate person to determine the time, manner and place of burial of the deceased husband. Although she is expected to take the wishes of other members of the family’ into consideration, her own sepulchral wishes are controlling and paramount in the event of conflict.

In this way, the prioritization of a widow's right to bury her deceased husband reinforces her pre-eminent status as the closest person to the deceased (at least formally). It also gives acme expression to the binding character of marriage and the precedence it attracts in family relations. But the American widow is not given a priority at all cost and in all circumstances. For instance, a widow's priority is subject to the burial wishes of her deceased husband. If the deceased's sepulchral wishes are ascertainable and clear, American courts will enforce them. Accordingly, the widow's priority is lost where the deceased husband gave particular directions regarding the disposition of his remains. Whether these mortuary directions were actually given and what their contents are would always remain questions of fact and the answer would depend on the surrounding circumstances of each case.

Applicants' submissions in Rejoinder

In rejoinder, counsel for the applicants rebutted the evidence brought by the respondent's counsel.

Counsel pointed out that the respondent's Annexure C ( statement of search) did not disclose when the matrimonial home was established. That before, the said matrimonial home, the deceased had roots in Kakoola. Luweero District. Counsel also pointed to the fact that the said land upon which the matrimonial home was established was a leasehold of 88 years.

Counsel for the applicants further pointed to the fact that the consent of the deceased's children lacked evidential value as it was not dated, its contents were hearsay and the same document was not notarized even when it was made in Switzerland and just sent to Uganda and the same does not refer to any burial grounds. Counsel further stated that the deceased's children's passports clearly show that the said children are not only permanent residents of Switzerland but that they are also Swiss citizens and he emphasized that they had only been to Uganda once.

 On the issue of financial suffering, counsel for the applicants reiterated paragraph, 7 and 8 of the affidavit in rejoinder.

As regards to issue of custom, counsel for the applicant stated that the respondent had not demonstrated how the custom is repugnant to the laws cited and stated that what the applicants were seeking was for court to observe that the burial in Buganda follows the patriarchal lineage.

Counsel for the applicants stated that the Kenyan authorities cited by counsel for the respondent were not applicable to our traditions and norms and that the wishes of the deceased in the cases cited were discernable contrary to our case where the deceased’s wishes were not stated anywhere in the respondent's affidavit. As such the cases were distinguishable. Counsel in that regard cited the Kenyan case of Virginia Edith Wamboi Othieno Versus Johash Ochieng Ougo and Another HCCC No. 4873 of 1986 as a persuasive decision in line with the Bob Kasongo case (cited earlier) where it was stated that burial should follow the patriarchal nature.

Upon studying the application and its supporting affidavits and after the submissions of both counsel, it was my view that the burial customs, norms and traditions of the “Ndiga” clan were not sufficiently clear. In the interest of justice, I found it necessary to invite someone from the Buganda Kingdom deemed competent in the customs of the Ndiga clan to attend court and assist court in understanding the Ndiga clan. A letter was then written to the Katikiiro of the Buganda Kingdom to identify someone for that purpose. Kabaale Yusuf was identified and he attended court and was examined on oath.

Resolution of the issues

I will resolve both issues together because the answer to either of them resolves the other.

In the case before me, the following is not disputed;

  1. that the deceased and the respondent jointly owned a matrimonial home in Mukono;
  2. that the deceased was born in the “Ndiga” clan and it is therefore his ancestry;
  3. that the deceased died intestate and therefore did not expressly indicate where he should be buried and how his earthly affairs should be managed in his absence;
  4. that the deceased was lawfully married to the respondent and she is the only widow of the deceased;
  5. that deceased and the respondent resided in Switzerland until the deceased’s demise on 7th October 2021 but they occasionally visited Uganda at least once a year;
  6. that the deceased had two children, a male and a female aged 46 years and 44 years respectively born by a Swiss mother and they are also Swiss citizens;
  7. that the deceased and the respondent never had any issues during the substance of their marriage;

(viii) that the deceased’s father the late Yulio Kyobe was buried at Kakola, Bamunanika in the Luweero District while his grandfather was buried at Kanyogoga in Luwero District; and

(ix) that the deceased only shared a father with the applicants and as such he was their half-brother.

The following questions will also be used to guide me in resolving the issues being raised and reaching a logical conclusion of this case;

” What is the law applicable in Uganda in determining contestations over burial grounds for a person who dies intestate?

  1. Who has priority rights over burial of a person who dies intestate?
  2. Are the Baganda cultural practices regarding burial paramount and under what circumstances can the said cultural practices be deviated from?
  3. Whose rights, if any, would be violated if the said cultural practices/customs are enforced?

What is the law applicable in Uganda in determining contestations over, burial grounds for a person who dies intestate?

In Uganda, there is no express law that determines burial grounds for a person who dies intestate. Any person that wishes to be buried in a particular place must state that wish either in a will or some other document that can be used to ascertain his/her wishes easily and clearly.

However, laws have been put in place to help courts on how to resolve such matters when they arise such as; the Constitution of the Republic of Uganda, 1995 (as amended), the Succession Act, Cap. 162, The Administrator General's Act Cap 157, the Judicature Act, Cap. 13, Civil Procedure Act, to mention but a few.

Section 14 (1) and (2) of the Judicature Act empower the High Court with unlimited jurisdiction over all matters that are in conformity with; written law, common law and the doctrines of equity.

Section 14 (2) (c) in particular provides that subject to the Constitution and this Act, the jurisdiction of the High court shall be exercised- where no express law or rule is applicable to any matter in issue before the High Court, in conformity with principles of justice, equity and good conscience.

Section 98 of the Civil Procedure Act provides that nothing in this Act shall bejoined to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the court.

Thus, in absence of a specific law, this court shall exercise its powers in determining the issues before it while applying the principles of natural justice, equity and good conscience.

Who has priority rights over burial of a person who dies intestate?

As earlier stated above, the wishes of the deceased ate found in the WILL deceased person. Those wishes are in most cases executed bv the executors always appointed by the deceased and named in the WILL. The executors should therefore enforce the wishes and or the rights of the deceased person. These may include the burial place, the burial arrangements and management of property, etc.

Section 5(1) of the Administrator General provides that;

“No grant shall be made to any person, except an executor appointed by the will of the deceased or the widower or the widow of the deceased or his or her lawful attorney duly authorized in writing, authorizing that person to administer the estate of the deceased person, until the applicant has produced to the court proof that the Administrator General 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 added]

 

trying a purposive interpretation to the above provision of the law, I find thatupon death of a Person, a number of rights accrue to different individuals in thefollowing order of priority;

  1. The rights and or wishes of the deceased take priority and that is why the will is given first mention;
  2. The widower or widow (the widower and the widow are given the same weight);
  3. The deceased’s lawful attorney duly authorized in writing;
  4. Administrator General
  5. Any other person with consent of the Administrator General.

Whereas number one (i) and three (iii) arise from the wishes of the deceased person either by a will or written authorization by the deceased, the second (ii) arises from the rights that accrue to the marriage parties upon marriage. Therefore, by law and in practice if you are not an executor, widow or widower of the deceased person, no Letters of Administration can be granted to you without a Certificate of No Objection from the Administrator General. Whereas an executor named in the WILL only needs to prove the authenticity of the will and whereas a widower or widow will only need to confirm the existence of a marriage between him/ her and the deceased, the rest of the world including close family members like parents and children of the deceased will require a Certificate of No objection from the Administrator General before court can grant them Letters of Administration to administer the deceased’s estate.

Section 201 of the Succession Act Cap 162

The above section provides for the order in which

which connections are entitled to administer. It provides thus;

"When the deceased has died intestate, those who are connected with the deceased either by marriage or consanguinity are entitled to obtain Letters of Administration of his or her estate and effects in the order and according to the provisions hereafter contained” Section 27 thereof provides for the distribution of the estate of an intestate. Whereas the wife is specifically provided for and the percentage she is entitled to, half siblings are not provided for unless there is no wife, no lineal descendants and no dependent relatives.

The above provisions therefore recognize the rights of the widower and the widow as the most entitled persons to apply for Letters of Administration of the deceased's estate. Brothers and sisters will only come in where there is no widower, widow and children or where the children are still minors.

Section 277 of the Succession Act.

This section provides for the funeral of the deceased. It provides that,

“It is the duty of the executor to perform the funeral of the deceased in a manner suitable to his or her condition, if the deceased has left property sufficient for that purpose ”

The above provisions empower the executor of the deceased to perform the funeral. Whereas it does not specifically mention an administrator, it is trite that the administrator plays the exact same role as an executor.

Counsel for respondent submitted that the respondent has the right to determine where the deceased to be buried by virtue of the marriage relationship. He relied on Article 31(1) of the Constitution which provides;

 

"men and women of the age of eighteen years and above, have a right to marry and to found a family and are entitled to equal rights in marriage, during marriage and at its dissolution”

This in my view means that, upon marriage, men and women have the right and are expected to live independently and exclusively of any other person (s) including their parents and or brothers and sisters and clan members at that. I also find that this is in line with the Biblical principle in Genesis 2: 18, 24 which counsel for the respondent further relied on. That portion of scripture states thus, “the Lord said ‘it is not good for man to be alone. I will make him a helper suitable for him’... For this reason, a man will leave his father and mother and be united with his wifc_and they will become one flesh”. This same principle was re-echoed by Jesus Christ in Matthew Chapter 19 verse five (Matthew 19: 5).

1 am mindful of the fact that Uganda is a secular nation and does not have a state religion but I am also alive to the fact that Christianity as one of the recognized religions in Uganda has the Bible as the major source of guiding principles, norms, values and standards. In the instant case, the respondent and the deceased both practiced the Christian religion and chose to get married at Namirembe Cathedral which is the Anglican church/ Church of Uganda. My considered view is that by doing this, they chose to be bound by the biblical principles which are taught in church. I therefore do not find it out of order to cite the Bible.

From the above constitutional provisions, marriage creates rights, duties, obligations and responsibilities among the married couple to the exclusion of others including parents and children. That provision of the constitution also anticipates dissolution and provides for equal rights at dissolution. That explains why even in divorce matters, it is a matter between a husband and wife and no one else is involved. The may only come in as witnesses if they have any relevant information to the matter

Article 31 (2) of the Constitution further provides that;

“parliament shall make appropriate laws for the protection of the rights of widows and widowers to inherit the property of their deceased spouses and to enjoy' parental rights over their children”. This provision envisages the abuse of the rights of a surviving spouse upon the demise of another and that is why it calls for parliament to make laws that specifically protects the rights of a surviving spouse. It does not make mention of any other person(s).

Whereas parliament has not complied and or responded to the above provision by coming up with the law as provided, I am of a considered opinion that what is available in our succession laws is sufficient to resolve disputes of this nature.

Applying the marriage and the succession laws already alluded to in this ruling, I find that in the absence of a will by the deceased stipulating where he should be buried, the next person in the order of priority to determine how the affairs of the deceased should be managed including where and how hc should be buried is the widow (respondent) as opposed to half-brothers and half-sisters. As already observed above, the intentions of the framers of the law were to ensure that the person who is closest to the deceased by law and in actual sense when they lived, should be given the first priority and the rest would follow.

I also need to mention that actual closeness and proximity to the deceased in enforcing the deceased’s rights must not be ignored because the law does not ignore it. In this case, the first applicant by the names of Julius Luseleka Kyobe inform court that he was aged 87 years as at the time of testifying in court.

He further informed court that hc did not know the age of his deceased’s brother but he stated that they were mostly likely the same age. As 1 put questions to him, 1 realized that he knew almost nothing about his deceased brother. For example, when he was asked about the deceased’s children, hc informed court that they were both male but he has never seen them (there is evidence that the children arc male and female), hc also said he has never seen the mother of those children but she was a Muganda who has since died (there is evidence from the 2nd applicant and the respondent that the mother of the deceased’s children is Swiss and she is still alive). He also stated that he spoke with the deceased at least four times a year.

In my considered view, whereas it is not denied that the deceased was a half-brother to the 1st applicant, my interaction with the 1st applicant gave me an impression that existed no close relationship between them because he knew almost nothing about his brother. He gave wrong answers to almost all the questions. He only confirmed that the deceased has spent all his adult life away from Uganda. My question would be, if someone is so distant from you when you lived, are they the rightful people to manage your dead body and or any affairs upon your death? 1 would answer that question in the negative.

However, the 2nd applicant Mrs. Kisalu seemed to have a relatively close relationship with the deceased because she knew his residence in Zurich, she knew that the deceased’s children were male and female, she knew their mother was a Swiss and not a Ugandan and from her evidence, she occasionally visited the deceased and the respondent in their home in Zurich. She also knew that the deceased wished to be buried at the Orthodox church in Namungoona. This in my view is how a normal relationship between a brother and a sister should be. Be that as it may, in the order of precedence as to who has more rights over the deceased’s body and any other of his affairs as per the cited succession laws, the respondent would still take precedence as a widow.

The respondent who was the closest in proximity to the deceased before he died testified to the fact that her deceased husband had never wished to be buried in Kakoola, Bamunanika, Luweero where the applicants insist he should be buried. According to the respondent, the deceased had wished to be buried at the Orthodox church Namungoona, Kampala, Uganda (which position the 2nd applicant continued in her evidence on oath) but this position changed when the Archbishop died and was buried in the same place where he had wished to be buried together with his wife. This leaves no doubt in my mind that at no time did the deceased wish to be buried at Kakoola despite the fact that the deceased had rehabilitated the grave of his late father.

The respondent contended in her affidavit that if it was not for the wishes of the deceased to be buried in his ancestral home in Mukono, she would never ha\e incurred the cost of repatriating his body from Switzerland to Kampala. She would have buried him in Switzerland. I am so inclined to believe the respondent's testimony because the deceased who was over eighty years by the time of his death, he must have been thinking about how he should be laid to rest and he must have had sepulcher wishes. And if he did which I believe he did, who would be the best person to know them and be able to testify about them? My view is that it is the respondent, who lived with him in Switzerland and, was with him in hospital until he breathed his last breath. 1 have no reason to doubt her because clearly the respondent was the only closest person to the deceased even on his death bed.

Therefore, I find that in this case, the person who has burial rights over the deceased is the widow, Aida Namalwa.

 

Are the Baganda cultural practices regarding burial paramount and under what circumstances can the said cultural practices be deviated from?

Article 37 of the 1995 constitution of Uganda provides for a person’s right to practice and enjoy his or her culture. This right can be enjoyed individually or in association with others. The National objectives and Directive Principles of State Policy also recognize the need to uphold cultural values and practices. Article 29 thereof also guarantees a person the right to association.

However, even when the above stated is so, the right to culture and association are not absolute rights that cannot be deviated from, like those stipulated under Article 44 of the 1995 Constitution of Uganda.

From the evidence presented in court, it is not denied that the deceased belonged to the “Ndiga” clan and that is his ancestry. Whereas I agree with the learned Judge in the Bob Kasango case cited above, that we are born into our ancestry and make no choices as to whether we want to belong to a particular clan or not, 1 hasten to add that upon attaining the age of maturity, we make independent decisions without consulting our clans and ancestry. 1 should also emphasize that upon marriage, we share our lives with the people we many or get married to more closely than our ancestry and clans even close family such as parents and this the constitution of the Republic of Uganda recognizes in Article 31(1).

The scenario is very well confirmed by the facts of the instant case as follows: The deceased has lived all his adult life in Switzerland as confirmed by the 2nd Applicant Mrs. Robinah Gladys Kisalu, a young sister to the deceased. She informed court that she was told that the deceased left Uganda when she was only three years old and has lived there since then (she is now 60 years old). While in Switzerland, the deceased found a Swiss lady with whom he fathered two children, male and female aged 46 years and 44 years respectively. The children are Swiss Citizens and came to Uganda only once. The daughter is said to be married with children while the son is unmarried.

 

The deceased later met the respondent while in Switzerland, married her in Uganda in 1993 and the two went back to live in Switzerland until the deceased passed on in Switzerland on 7th October 2021. Therefore, whereas the deceased remained a man of the “Ndiga” clan as his ancestry’, he appears to me as a man who upon attaining maturity, started making decisions that were not backed by the dictates of the clan. For example, if he was a person who espoused the customs and the culture of the ‘Ndiga’ clan as was claimed in this application, would he let his own children especially his only son to take on the Swiss citizenship and culture and abandon his own culture which he cherished? My answer to that question is in the negative.

This buttresses my argument that when we attain maturity, we live our lives independent of our parents. That is why the deceased's children have also taken an independent path from their father’s. I strongly doubt that the deceased's children who came to Uganda once during their father’s life time (during their very early ages) will ever be buried in Kakoola, Bamunanika in Luweero District where their grandfather Yulio Kyobe is lying as the customs, traditions and the culture of the Ndiga clan seem to dictate and yet that does not stop them from being referred to as people of the “Ndiga” clan. It was also undisputed evidence that the deceased’s grandfather was buried at his home in Kanyogoga, Luweero district; the deceased’s father was also buried at his home in Kakoola, Luweero District and these are different places. It would therefore not be out of order for the deceased to also be buried at his home in Mukono. Clearly, this family has not been strictly following the alleged ancestral burial norms of the “Ndiga” clan.

the fact that the deceased and the respondent occasionally visited the deceased’s father's burial grounds in Kakoola, Luweero District does not necessarily indicate that he wished to be buried there. I am inclined to believe that the deceased visited the burial grounds out of the respect he had for his late father otherwise, there would be no reason as to why the deceased had always made it known to everybody that he wanted to be buried in Namungoona as attested to by his sister Ms. Kisalu Robinah Gladys and was not contested by any of the applicants.

Also, Mr Kabaale was asked to confirm that whether burying someone away from the ancestral home was an abomination, he stated that it was not an abomination for someone to be buried away from the ancestral grounds but that it was just good to do so to keep ghosts from haunting the ones alive.

Therefore, in the circumstances and for reasons given above, I find that the Baganda practices can be deviated from where a person chooses to do so and this is one of the instances where certain cultural practices or customs can be deviated from.

Article 2 (2) of the 1995 Constitution provides that if any other law or any custom is inconsistent with any of the provisions of this constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void. Traditions, custom and norms that deny a widow rights to determine how her deceased husband should be buried is my view inconsistent with Article 2(2) and Article 31 (1) the Constitution, oppressive and discriminatory.

I therefore find that all the laws cited above are in favour of the widow/respondent and denying her the right to bury the deceased would not only be contrary to nature justice but would also be discriminatory in nature as it would subjugate the widow to a marked inequality in the rights afforded to men and those afforded to women upon the death of their spouses if the case were decided in favour of the applicants. I want to believe that had the deceased been in the respondent’s position, this suit would not be in court as a widower would likely be able to determine the location of his wife's burial since the woman becomes a member of her husband’s family upon her marriage. It would go against justice, equity and good conscience if I denied the respondent the right to bury the deceased in a situation where even the supreme law of our land provides for equality between men and women in all spheres of life.

I would like to take note of the fact that since it is not in dispute that the respondent is the only widow of the deceased and since she has been identified by this court on the several occasions she has attended court for this matter, I hereby use the discretion given to me under the to issue letters of administration to her.

Section 235 (1) of the Succession Act, Cap 162 provides that the jurisdiction for grant of Probate and Letters of Administration to be the High Court.

Section 33 of the Judicature Act, Cap. 13 grants the High Court power to grant all such remedies as any parties to the cause or matter is entitled to in respect of any legal or equity claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided.

Ordinarily, under Section 247 of the Succession Act, the respondent would have been required to formally petition this Honorable Court for Letters of Administration whereupon she would have to under the rigorous process, of identification among others with the attendant costs. However, in order to avoid a multiplicity of suits and in the spirit of administering justice without delay and at less cost to the respondent,

 

I find that it is not detrimental and would not occasion any miscarriage of justice to any of the parties if the respondent is granted Letter of Administration in this application since I have already discussed at length that she is most entitled to obtain Letters of Administration.

Obita Dictum

Before I take leave of this matter, I must emphasize that there is absolute need to encourage the masses to adopt a culture of writing WILLS. This will enable individuals to clearly slate their intentions regarding not just property distribution but also their burial rights. By doing so, it would reduce cases of this nature, contribute towards reducing case backlog and workload but above all, promote peaceful co-existence between persons related by kinship or consanguinity and affinity and help the surviving spouse, children or lineal descendants and relatives recover less stressfully from the loss of their loved one and eventual peaceful closure.

Conclusion

In light of the above, I find that this application lacks merit and I accordingly disallow it and make the following orders;

  1. That the respondent Aida Namalwa has burial rights over the deceased Christopher Mayanja Kyobe and as such she is allowed to bury the deceased at their matrimonial home in Mukono.
  2. The applicants and or any other person are restrained from claiming any burial rights over the deceased and or interfering with the burial.
  3. That the applicants are allowed to attend the burial of the deceased at his matrimonial home in Mukono, if they so wish;
  1. That the respondent is hereby granted Letters of Administration to administer the estate of the deceased late Christopher Mayanja Kyobe in accordance to the laws of Uganda;
  2. That the respond shall execute a non cash Administration Bond of Uganda Shillings Ten Million (UGX 10m) before the Registrar of this court in respect of the Letters of Administration in accordance with Sections 260 and 261 of the Succession Act.
  3. That each party shall bear their own cost of this application.

Dated at Kampala this 23rd day of November 2021.

Alice Komuhangi Khaukha

Judge.

23rd November 2021