FAMI - Uganda (1) .PDF FINAL 2020

Uganda
by
Zahara Nampewo, Patricia Atim P’Odong
Lecturer School of Law, Makerere University, Uganda
Harriet Diana Musoke

Senior Lecturer, Islamic University, Uganda
&
Kange Veronica
Clinic Advocate, Public Interest Law Clinic, School of Law,
Makerere University, Uganda
This monograph is up-to-date as of January 2020
2020
Family and Succession Law – Suppl. 105 (2020) Uganda – 1

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The monograph Uganda is an integral part of Family and Succession Law in the International
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Family and Succession Law was first published in 1997.
Nampewo, Zahara; Atim P’Odong, Patricia; Musoke, Harriet Diana & Veronica, Kange. ‘Uganda’. In
International Encyclopaedia of Laws: Family and Succession Law, edited by Walter Pintens. Alphen aan
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2 – Uganda Family and Succession Law – Suppl. 105 (2020)

The Authors
Zahara Nampewo is a Ugandan lawyer and law lecturer with

the School of Law at Makerere University in Uganda. She
also heads the Human Rights and Peace Centre (HURIPEC),
a research and advocacy centre of the School of Law at
Makerere. She has published in the areas of access to justice,
decentralization and disability rights.
She has also worked with the United Nations (UN) Women
in Liberia as a Gender Justice Advisor, and as the coordinator
of the Access to Justice Programme for Danida Human Rights
and Good Governance Office. She is Board Chair of Chapter
Four, a human rights non-governmental organization (NGO)
working for the protection of civil and political rights in
Uganda. She is also Board member of the African Centre for Media Excellence (ACME),
a media capacity building organization and Defend Defenders, a minority rights group
working in the East and Horn of Africa.
Zahara was the winner of the 2019 5th Women in Law Award for ‘Female Lawyer
Academic’, awarded by the Uganda Law Society on 7 March 2019.
Email: [email protected].
Ms Patricia Atim P’Odong holds a Master of Laws in Human

Rights and Democratization in Africa from the University
of Pretoria, South Africa, a Diploma in Legal Practice and
Bachelor of Laws from Makerere University, Kampala, Uganda.
She is a duly enrolled practicing advocate of the Courts of
Judicature in Uganda. She is currently an assistant lecturer
at the School of Law, Makerere University attached to the
Department of Public and Comparative Law. In addition,
she is also the Head-Clinical Legal Education in the Public
Interest Law Clinic (PILAC) project of the School of Law,
Makerere University.
Ms Atim’s professional and research interest is mainly
in International and Regional Human Rights Law, Administrative Law, Constitutional
Law, Family Law, Children’s Rights, Gender and the Law, Disability Rights and
Clinical Legal Education.

The Authors
Dr Harriet Diana Musoke holds an SJD from Emory University,

United States (US); an LLM (with Distinction) from Georgetown
University, US; a Post Graduate Diploma in Legal Practice
from the Law Development Centre, Kampala, Uganda and
an LLB (with Honours) from Makerere University, Kampala,
Uganda. She was awarded the rank of Senior Counsel in
March 2019.
She is a practicing advocate of the Courts of Judicature
of Uganda since 1985 when she was enrolled. Currently,
Dr Musoke is a Senior Lecturer at the Islamic University
in Uganda. Apart from the lecturing in educational institutions,
Dr Musoke has also carried out training for various organizations
including International Association of Women Lawyers, Uganda Chapter (FIDA (U)),
Law Development Centre, Uganda Law Society and the Uganda Medical Association,
among others.
Dr Musoke’s research interests are in Family Law, Children Rights, Reproductive
Health and Sexual Health Rights and International Human Rights Law and Practice.
She has published widely in her areas of interest.
Ms Veronica Kange is an advocate of the High Court of

Uganda and all Courts subordinate thereto. She practices
law in the Public Interest Law Clinic, a premier Legal Aid
Clinic at Makerere University, Kampala, Uganda. She is also
a partner in JW Advocates, a law firm in Kampala. She holds
a Bachelor of Laws from Makerere University, a Diploma
in Legal Practice from the Law Development Centre, Kampala
and a Master’s in Business Administration from Makerere
University. Kange is passionate about Legal Aid and works
mainly in an organization whose focus is to inculcate the
spirit of social justice in the next generation of lawyers.

Table of Contents
The Authors 3
List of Abbreviations 15
Preface 17
General Introduction 19
§1. GENERAL INTRODUCTION AND DEMOGRAPHIC DATA OF UGANDA 19
§2. CLIMATE AND POPULATION 20
§3. POLITICAL/CONSTITUTIONAL HISTORY 20
§4. BEFORE 1962 20
§5. INDEPENDENCE AND POST-INDEPENDENCE ERAS 21
§6. 1995 CONSTITUTION 23
§7. HISTORY OF FAMILY AND SUCCESSION LAW 25

I. Introduction 25
II. Succession Ordinance, 1906 27
III. Succession (Amendment) Decree, 1972 27
§8. SOURCES OF FAMILY AND SUCCESSION LAW 29

I. Constitution of the Republic of Uganda 29
§9. STATUTE SOURCES 29
§10. STATUTORY SOURCES OF MARRIAGE LAW 29

I. The Marriage Act 29
II. The Marriage and Divorce of Mohammedans Act 30
§11. THE HMDA, CAP 250 31
§12. DIVORCE LAW 32
§13. DIVORCE UNDER THE HINDU AND MA CAP 250 33

Table of Contents
§14. STATUTORY SOURCES OF SUCCESSION LAW 33
§15. CASE LAW 35
§16. INTERNATIONAL TREATIES AND CONVENTIONS 38
§17. COURTS ADMINISTERING THE LAW 39
§18. DIVORCE 39
§19. SUCCESSION 39
Part I. Persons 41
Chapter 1. The Status of a Person 41
§1. DEFINITION OF A PERSON 41
§2. ATTEMPTS TO PROCURE ABORTION 42
§3. PROCURING MISCARRIAGE 42
§4. SUPPLYING DRUGS, ETC. TO PROCURE ABORTION 42
§5. THE STATUS OF PERSONS 42

I. Corporations 43
II. Rights of Natural Persons 45
§6. CAPACITY 46
§7. MINORS 46
Chapter 2. Registration of Civil Status 47
§1. MODE OF REGISTRATION OF BIRTHS 48
§2. PRESUMPTION OF DEATH 49
§3. REGISTRATION OF MARRIAGE 49
Chapter 3. Personality Rights 50
Chapter 4. Names 51
§1. IMPOSITION OF A NAME 51

Table of Contents
§2. CHANGE OF NAME OF AN ADULT 51
§3. CHANGE OF NAME OF THE CHILD 51
Chapter 5. Nationality 53
§1. CITIZENSHIP OF FOUNDLINGS 53
§2. CITIZENSHIP BY REGISTRATION 53
§3. LOSS OF CITIZENSHIP BY REGISTRATION 54
Chapter 6. Domicile and Residence 55
§1. DOMICILE 55
Chapter 7. Persons with Disabilities 57
Part II. Family Law 59
Chapter 1. Marriage 59
§1. DEFINING MARRIAGE 59
§2. THE NATURE OF MARRIAGE 61
§3. THE CAPACITY TO MARRY 64
§4. FORMALITIES OF MARRIAGE 69
§5. LEGAL EFFECTS OF MARRIAGE 78
§6. MATRIMONIAL PROPERTY IN ISLAM 84
§7. VOID AND VOIDABLE MARRIAGES 86
§8. VOIDABLE MARRIAGES 90
Chapter 2. Divorce 91
§1. WHAT IS DIVORCE? 91
§2. HISTORY OF DIVORCE LAW IN UGANDA 91
§3. STATUTORY LAW ON DIVORCE UNDER CIVIL/CHURCH MARRIAGES 92

Table of Contents
§4. GROUNDS FOR DIVORCE 94

I. Cruelty as a Ground for Divorce 94
II. Physical Cruelty 95
III. Non-consensual Sexual Relations as Cruelty 96
IV. Mental Cruelty 97
V. Cruelty in Other Legal Regimes 98
§5. ADULTERY AS A GROUND FOR DIVORCE 100
§6. PROOF OF ADULTERY 102
§7. DESERTION AS A GROUND OF DIVORCE 102
§8. LEGAL EFFECTS OF DESERTION 105
§9. ADDITIONAL MARITAL OFFENCES 105
§10. EFFECTS OF STATUTORY DIVORCE 105
§11. BARS TO DIVORCE 106
§12. ABSOLUTE BARS 106
§13. DISCRETIONARY BARS 107
§14. JUDICIAL SEPARATION 108
§15. DIVORCE UNDER HINDU MARRIAGES 108
§16. DIVORCE UNDER CUSTOMARY LAW 108
§17. DIVORCE UNDER ISLAMIC LAW 110

I. Statutory Law on Divorce of Islamic Marriages 110
II. Qur’anic Teachings on Divorce under Islam 111
III. Failure to Reconcile as a Ground for Divorce 111
IV. Types of Divorce under Islam 111
V. Jurisdiction for Muslim Marriages and Divorces 113
VI. Procedure for Divorce in Uganda 113
VII. Divorce Procedure under the Civil Legal Regime 113
§18. FILING THE PETITION 114
§19. SUPPORTING DOCUMENTS TO THE PETITION 115
§20. SUMMONS 115
§21. RESPONDENT’S ANSWER TO THE PETITION 115

Table of Contents
§22. MEDIATION 115
§23. HEARING 116
§24. ORDERS GRANTED UPON A DIVORCE PETITION 116

I. Decree Nisi 116
II. Decree Absolute 116
§25. PROCEDURE OF DIVORCE UNDER ISLAMIC MARRIAGES 116
§26. REGISTRATION OF DIVORCE 117
§27. APPOINTMENT OF REGISTRARS 117
§28. PAYMENT DUES 117
§29. REMEDIES UPON DIVORCE 117
§30. REMEDIES TO DIVORCING PARTIES UNDER ISLAMIC LAW 118
§31. MAHR 118
§32. MAINTENANCE OF WIFE 118
§33. MAINTENANCE OF CHILDREN 118
§34. MUTA’AH (CONSOLATORY GIFT) 119
§35. EFFECTS OF DIVORCE UNDER ISLAMIC MARRIAGE 119

I. Remarriage 119
II. Woman as an Independent Personality 119
§36. PROPOSED REFORMS WITHIN STATUTORY DIVORCE LAW IN UGANDA 119

I. The Marriage Bill 2017 119
Chapter 3. Cohabitation Without Marriage 121
§1. WHAT IS COHABITATION? 121
Chapter 4. Filiation 123
§1. WHAT IS FILIATION? 123
§2. CHILDREN BORN IN WEDLOCK 123
§3. CHILDREN BORN OUT OF WEDLOCK 123

Table of Contents
Chapter 5. Adoption 124
§1. DEFINING ADOPTION 124
§2. JURISDICTION 125
§3. RESTRICTIONS OR PRE-CONDITIONS FOR ADOPTION ORDER 125
§4. ADOPTION BY A UGANDAN CITIZEN 126
§5. ADOPTION BY A NON-CITIZEN (INTER-COUNTRY ADOPTIONS) 128
§6. OTHER GENERAL REQUIREMENTS 129
§7. RESCISSION AND REVOCATION OF ADOPTION ORDER 132
§8. EFFECTS OF RESCINDING AN ADOPTION ORDER 132
§9. DUTIES OF THE ADOPTIVE PARENT 133
Chapter 6. Parental Authority 134
§1. UNDERSTANDING PARENTAL RESPONSIBILITY 134
Chapter 7. Guardianship 135
§1. DEFINING GUARDIANSHIP 135
§2. WHO CAN APPLY FOR GUARDIANSHIP? 136
§3. JURISDICTION 137
§4. JOINT GUARDIANSHIP 138
§5. CONDITIONS FOR GRANT OF GUARDIANSHIP 138
§6. EFFECTS OF A GUARDIANSHIP ORDER 139
§7. REVOCATION OF A GUARDIANSHIP ORDER 140
Chapter 8. Kinship and Relationships of Affinity 141
Part III. Matrimonial Property Law 143

Table of Contents
Chapter 1. Rights and obligations of Spouses 143
§1. DEFINITION OF MATRIMONIAL PROPERTY 143
§2. GENERAL PRINCIPLES 144

I. Equal Right of Ownership to Property 144
II. Spousal Consent 145
§3. FACTORS TO CONSIDER IN DIVISION OF PROPERTY UPON

DISSOLUTION OF MARRIAGE 146
§4. DETERMINING CONTRIBUTION OF THE SPOUSE TOWARDS MARITAL

PROPERTY 148
§5. HOUSEHOLD EXPENSES 155

I. Wedding Gifts 155
II. Bank Accounts 155
III. Matrimonial Home 155
IV. Cohabiting Couples and Property Rights 156
§6. TRANSACTIONS BETWEEN SPOUSES 157

I. Treatment of Joint Property 157
Chapter 2. Marriage Settlements or Prenuptial Agreements 159
§1. CUSTODY OF CHILDREN 159
§2. MAINTENANCE OF CHILDREN 160
§3. DIVISION OF PROPERTY 160
§4. DECLARATION OF PARENTAGE 161
§5. RECOGNITION OF PRENUPTIAL AGREEMENTS 161
Chapter 3. The Legal Matrimonial Regime 164
§1. MATRIMONIAL PROPERTY IN CUSTOMARY LAW 164
§2. MATRIMONIAL PROPERTY UNDER ISLAMIC LAW 164
Chapter 4. Conventional Matrimonial Regimes 169
§1. MARRIAGE BILL 2017 169
§2. THE ADMINISTRATION OF MUSLIM PERSONAL LAW BILL 170

Table of Contents
§3. COURT JURISDICTION 171
§4. CONCLUSION 171
Part IV. Succession Law 173
§1. BACKGROUND TO SUCCESSION LAW IN UGANDA 173
Chapter 1. Intestate Succession 178
§1. THE OPENING OF SUCCESSION 178

I. Death 178
II. Missing Persons and Absentees 179
III. Estates of Persons of Unsound Mind 180
IV. The Heir 181
V. Capacity to Succeed 183
§2. WIFE OR WIVES/SPOUSE 183
§3. CHILDREN OR LINEAL DESCENDANTS 184
§4. DEPENDENT RELATIVES 186

I. Commorientes 187
II. Unworthiness to Succeed 187
§5. THE SYSTEM OF DESCENT 189

I. The Classes of Heirs 189
II. Distribution Rules of Intestacy 189
III. Representation (Administration of Estates) 192
IV. Administration of Estates under the Administration of Estates
(Small Estates) (Special Provisions) Act 193
§6. ADMINISTRATION OF ESTATES UNDER THE SUCCESSION ACT 196
§7. POWERS AND DUTIES OF AN EXECUTOR OR ADMINISTRATOR 199
§8. REVOCATION OF PROBATE OR LOA 202
§9. ADOPTION 203
§10. THE RIGHT OF THE STATE ON THE BONA VACANTIA 203
Chapter 2. Testamentary Succession 204
§1. THE CAPACITY TO MAKE A WILL 206

Table of Contents
§2. DIFFERENT TYPES OF WILL 208
§3. OTHER TYPES OF WILLS 210
§4. REVOCATION AND ALTERATION OF A WILL 211
§5. PROVISIONS IN A WILL 213
§6. CONTENTS OF A WILL 214
§7. RESTRICTIONS ON THE POWER OF TESTATION 214

I. The Legation 214
II. Interpretation of Will 216
III. Construction of Wills 217
IV. Void Bequests 218
Chapter 3. Acts Inter Vivos Related to the Estate 219
§1. ESTATE PLANNING 219
§2. DONATIONS 220
§3. TRUSTS 220
§4. INSURANCE CONTRACTS 220
Chapter 4. Acquisition and Administration of the Estate 221
§1. THE SYSTEM OF ACQUISITION OF THE ESTATE 221
§2. THE ADMINISTRATION OF AN ESTATE 224
§3. GRANTS FOR LIMITED PERIODS 225
§4. GIFTS FOR SPECIAL PURPOSES 226
§5. THE ROLE OF THE ADMINISTRATOR GENERAL 227
Selected Bibliography 229
Table of Statutes 231
Table of Cases 235
Index 243

Table of Contents

List of Abbreviations
ACHPR African Charter on Human and Peoples’ Rights

ACRWC African Charter on the Rights and Welfare of the Child
CA Children Act
CAA Children (Amendment) Act
CEDAW Convention on the Elimination of all Forms of Discrimination Against
Women
CMRA Customary Marriage (Registration) Act
CPA Civil Procedure Act
CPR Civil Procedure Rules
CRPD Convention on the Rights of Persons with Disabilities
DP Democratic Party
HMDA Hindu Marriage and Divorce Act
KY Kabaka Yekka
LOA Letters of Administration
MA Marriage Act
NGO Non-governmental Organization
NIN National Identification Number
PCA Penal Code Act
PCAA Penal Code (Amendment) Act
PSWO Probation and Social Welfare Officer
PWDs Persons with Disabilities
SOB Sexual Offences Bill
UK United Kingdom
ULRC Uganda Law Reform Commission
UMSC Uganda Muslim Supreme Council
UN United Nations
UNCRC United Nations Convention on the Rights of the Child
UPC Uganda People’s Congress
URSB Uganda Registration Services Bureau
US United States

List of Abbreviations

Preface
Family Law, and generally, Domestic Relations is a subject that is highly relevant
and affects all persons in society, irrespective of age. After a number years of teach-
ing Family Law at the School of Law, Makerere University, it increasingly became
apparent that there was a need for a book on this vital subject, one that reflected the
Ugandan perspectives and understanding of Family and Succession Law. The books
that are in use are largely written by English scholars which are not well adapted to
address the issues in this area as the Law changes both in England and in Uganda.
The purpose of this monograph, therefore, is to fill the gap and provide both stu-
dents and practitioners with a Family and Succession Law book that is relevant to
the Ugandan context.
The book traces the history of Family and Succession Law and its development,
especially since the colonialism and explores how colonialism affected or influ-
enced indigenous understanding and perception of Family Law and Succession. It
goes on to discuss marriage and divorce law and the various rights of parties to a
marriage. The book pays particular attention to the jurisprudence coming from
Ugandan Courts and their interpretation of the Statutes governing the subject and
the different socio-economic realities of the day.
The book also discusses the rights of the child in the family context and impor-
tant aspects such as adoption and guardianship. The book then discusses Succession
law in Uganda today and the various challenges in the implementation of the law as
it is.
The book also suggests various areas for reform with the law that will bring it in
line with Uganda’s International Human Rights Commitments as well as the socio-
economic realities of the day.
It is hoped that this book will be an important resource for both present and future
generations of law students, practitioners and the general public.

Preface

1–3
General Introduction
§1. GENERAL INTRODUCTION AND DEMOGRAPHIC DATA OF UGANDA
1. Uganda is a land-locked country bordered to the east by the Republic of

Kenya; to the south, it shares a border with Tanzania partly through the wide
expanse of Lake Victoria. It is also bordered by Sudan in the north, the Democratic
Republic of the Congo in the west and Rwanda in the southwest.1 Uganda’s total
land area is 241,559 sq. km.2 About 37,000 sq. km of this area is occupied by open
water while the rest is land. The southern part of the country includes a substantial
portion of Lake Victoria, which it shares with Kenya and Tanzania.3 Uganda is
located on the East African plateau, averaging about 1,100 m (3,609 ft) above sea
level. The plateau generally slopes downwards towards Sudan, explaining the north-
erly tendency of most rivers flowing in the country. The Ugandan boundary follows
a set of boundary pillars joined by straight lines on an approximate bearing of 127°
to the south.4
2. Uganda is predominantly an agrarian society with a majority of the popula-

tion engaged in subsistence agriculture. According to the United Nations Develop-
ment index, Uganda’s human development is still classified as low.5 Its economic
rating is currently as a least developed country attempting to move to middle
income status under the 2040 country Vision.
3. The 1995 Constitution has gazetted more than fifty ethnic groups across the
country, although in recent years, some new ethnicities, most notably Indians, have
made an appeal to be recognized as ethnicity in Uganda. Uganda has undergone a
turbulent constitutional history with up to four constitutions since it gained inde-
pendence from Britain.6
1. State House of Uganda, ‘About Uganda’, available online at http://www.statehouse.go.ug/about-

uganda.
2. Second Schedule to the Constitution of the Republic of Uganda, 1995 as amended.
3. Supra note 1.
4. Second Schedule to the Constitution of Uganda, 1995 (as amended).
5. UNDP-Human Development Indices and indicators: 2018 statistical update accessed at hdr.undp.org/
sites/all/themes/hdr_theme/country-notes/UGA.pdf.
6. Uganda attained Independence on 9 Oct. 1962.

4–7 General Introduction
4. Uganda is a predominantly religious country with Catholics and Anglicans

making up the majority, followed closely by the Islamic faith. Because of this diver-
sity, the framers of the 1995 Constitution chose not to adopt a state religion for the
country.7 Nonetheless, the Ugandan Constitution recognizes the right to freedom of
worship, expression and other rights in the Bill of Rights.8
§2. CLIMATE AND POPULATION
5. Uganda’s elevation, soil types and predominantly warm and wet climate
account for the huge agricultural potential to the country. This explains the coun-
try’s large variety of forests, grasslands and wildlife reserves. Uganda has a total
population of 34 million people.9 Demographic studies suggest further that today
there are over 20 million young people in Uganda. Young people aged 18 years and
below constitute 54% of the total population. This youthful population is Uganda’s
greatest resource.10
§3. POLITICAL/CONSTITUTIONAL HISTORY
6. Uganda’s constitutional/political history is long and cluttered. It can best be

studied by categorizing it into three distinct eras: pre-independence, post-
independence, and post-1995 era. This breakdown is necessary as it speaks directly
into this monogram and the development of law as it is in Uganda today.
§4. BEFORE 1962
7. From the onset, it must be acknowledged that Uganda is a former British

Colony. Before the advent of colonialism, Uganda, as was with the other parts of
East Africa, operated on a system of kingdoms and chiefdoms. The territory had
three different indigenous political systems: the Hima caste system, the Bunyoro
royal clan system, and the Buganda kingship system.11 In 1894, Uganda became a
British Protectorate with Buganda as the administrative centre. In 1900, to further
consolidate their position and assuage with the Baganda, the British entered into the
famous 1900 Buganda Agreement with the then young King Daudi Chwa. Because
of his tender age, this agreement was signed on his behalf by his regents – Sir
Apollo Kaggwa, Stanislas Mugwanya and Zakaria Kisingiri – dividing the total land
7. Article 7, Constitution of the Republic of Uganda, 1995 (as amended).

8. Article 29.
9. Uganda Bureau of Statistics (UBOS) National Population and Housing Census 2014 UBOS: Kam-
pala.
10. UBOS, State of Uganda Population Report 2017.
11. Constitutional History of Uganda, available online at http://www.constitutionnet.org/country/
constitutional-history-uganda.

General Introduction 8–11
in Buganda between the British and the Kingdom, thereby affirming the official and
private mail to systems that persist till today.12
8. In order to tighten their hold on the country, the British established a British-
style high court of Uganda and an appeals court for all eastern African protectorates
in 1902 under the Order-in-Council.13 This law introduced the enforcement of Brit-
ish law in Uganda and the installation of a special commissioner to perform execu-
tive, legislative and judicial powers. Another order-in-council was issued in 1920 to
create the Legislative Council as the legislative arm of the government but without
African representation.
9. In 1962, Uganda held general elections. The Uganda People’s Congress

(UPC) won thirty-seven seats against twenty-four of the Democratic Party (DP)
excluding Buganda. Buganda region, which had opted for indirect election, nomi-
nated twenty-one representatives to the National Assembly.14 The Buganda repre-
sentatives, through the kingdom’s political party – Kabaka Yekka (KY), struck an
alliance with UPC to form a coalition government with Apollo Milton Obote as
Prime Minister. The DP, led by Ben Kiwanuka, formed the opposition. It is the
UPC/KY alliance government that received the instruments of Independence.15
§5. INDEPENDENCE AND POST-INDEPENDENCE ERAS
10. Uganda attained her independence from the British on 9 October 1962. The
first independence constitution of 1962 was promulgated based on a compromise of
various political interests, particularly the UPC and Buganda’s KY alliance to win
state power from DP.16 A federal arrangement for Buganda was entrenched in the
1962 Constitution. Under this arrangement, Buganda retained powers over the local
police, primary education, and local forests. The National Assembly was partly
elected and partly nominated. However, Buganda representatives to the National
Assembly continued to be directly elected by the Lukiiko. Executive powers were
vested in the then Prime Minister, Apollo Milton Obote. Soon thereafter, two cer-
emonial positions of President and Vice President were created, which saw Kabaka
Edward Muteesa and William Nadiope, the Kyabazinga of Busoga, assuming the
offices respectively.
11. From the onset, the 1962 constitution was greatly disruptive as it placed
Buganda in a superior position over the other regions. Buganda kingdom was given
12. Sections 2 & 3, Land Act 1998 (as amended).

13. George W. Kanyeihamba Constitutional and Political History of Uganda: From 1894 to the Present
(2010).
14. Supra note 1.
15. Kituo Cha Katiba Uganda: Key Historical and Constitutional Developments, available online at
http://www.kituochakatiba.org/sites/default/files/legal-resources/Uganda%20Key%20Historical%20
and%20Constitutional%20Developments%20.pdf.
16. Supra note 5.

more powers at the expense of the kingdoms of Ankole, Toro and Bunyoro, and dis-
tricts. The powers granted to the four kingdoms also handicapped the Parliament,
which was elected by direct universal suffrage, except for parliamentarians from
Buganda who were indirectly elected through the Council of Buganda.17 Apart from
the provision of holding periodic elections for representatives to the National
Assembly, the constitution also provided for a Cabinet drawn from and responsible
to Parliament and defined the powers of major government organs, civil service and
judiciary.
12. The 1962 constitution was abrogated by Prime Minister Milton Obote in
1966. Obote declared himself President under an Interim Constitution of 1966, the
pigeon hole constitution infamously drafted overnight and dumped into the parlia-
mentary pigeon holes without discussion. The then Parliament was constituted into
a Constituent Assembly and given the mandate to draft a new constitution for
Uganda. On 8 September 1967, the new constitution came into force. It extended
the life of the Parliament, declared the then sitting President Milton Obote, the
President of Uganda, for a term of five years, and abolished kingdoms.
13. The election of Members of Parliament remained by direct universal suf-

frage across the entire country, but the President was now elected indirectly by the
Parliament. Although the system of government had some democratic semblance,
democratic principles were hardly observed in practice, and Obote ruled basically
with army support. Shortly after the constitution of 1967, a state of emergency was
declared, and Uganda slowly shifted to one-party-rule under the UPC.
14. During this reign, there was a breakdown in the rule of law and the power
of the judiciary was not recognized as in the treatment and nature of court deci-
sions. One such case involved the mistreatment of five ministers who had been
arrested and deported to Karamoja under the Emergency Powers Ordinance. Much
as the High Court had declared the 1966 Interim Constitution unconstitutional, the
East African Court of Appeal upheld the contrary in conformity with the govern-
ment’s position. In the case of Exparte Matovu18 who had been arrested for calling
upon the central government to remove its capital from Mengo, the court was fright-
ened from declaring the 1966 Interim Constitution unconstitutional, instead opting
to rely on the Kelsian theory of revolutions.
15. General Idi Amin Dada seized power in 1971 and ruled the country through
constitutional decrees with the army as the main instrument of government. General
Amin, too, was however overthrown by a combination of Ugandan and Tanzanian
forces in 1971. In the following years, the Ugandan military continued to partici-
pate actively in the country’s political processes. Obote was again elected president
in 1980, but only to be deposed five years later by the Museveni-led National Resis-
tance Movement – a rebel movement that had been fighting the regime for years.19
17. Supra note 1.

18. Uganda v. Commissioner of Prisons, Ex Parte Michael Matovu [1966] 1 EA 514.
19. Kanyeihamba, supra note 13.

16. The National Resistance Council enacted Statute No. 5 of 1988 on 21

December which established the Uganda Constitutional Commission. The Commis-
sion was clothed with the responsibility to start the process of developing a new
Constitution through consultations of the people, which would result in making pro-
posals for a permanent democratic constitution based on national consensus. In its
final report of December 1992, the Commission stated that most Ugandans pre-
ferred a Constituent Assembly directly elected by the people in order to be as full
representative as possible and provide greater legitimacy. It proposed that an
Assembly should be composed of mainly directly elected delegates and represen-
tatives of some interest groups. The proposal was accepted by the government, and
thus the Constituent Assembly constituted. It consisted of 284 delegates elected by
universal suffrage representing 214 electoral areas designated plus additional rep-
resentatives of specific stakeholders. Nevertheless, some people feared that the del-
egates to the Constituent Assembly might tailor the constitution to suit their future
political ambitions.
17. The elections to the Constituent Assembly took place in March 1994. Every
registered voter who did not have a criminal record and could afford the required
nominators and the financial deposit was able to run for office. All provisions of the
draft Constitution apart from the decisions relating to national language, land, fed-
eralism and the political system were reached by consensus. The Constituent
Assembly also failed to address the land question in Uganda, which had emerged
when the British took land away from the communities and gave it to a few indi-
viduals. The debate about the political system, on the other hand, was rooted in the
bad experience of Ugandans with political parties in the post-independence era. On
this basis, a ‘no party’ politics, also known as ‘movement politics’, was proposed.
In this system, everyone had the right to run for any political office of his or her
choice. The introduction of individual merit as a mechanism for selecting political
leaders greatly affected contestants although political parties were permitted to exist
but prohibited from campaigning and sponsoring candidates in elections. Move-
ment politics were strongly opposed by supporters of the multiparty political sys-
tem. As a compromise, it was agreed that the movement type of governance be
extended for another five years, and thereafter a referendum would be held after
every five years for the people of Uganda to choose the political system to be
adopted. Overall, the constitution-making process in Uganda was highly participa-
tory and an exercise to reconcile the society, reinstitute democracy, the rule of law,
and to place limits on misuse of state power.
§6. 1995 CONSTITUTION
18. The Constituent Assembly adopted a new constitution on 27 September

1995 which established a quasi-parliamentary system of government consisting of a
President, Prime Minister, Cabinet, unicameral Parliament, Supreme Court and
Constitutional Court. The preamble states that the constitution shall be based on the
‘principles of unity, peace, equality, democracy, social justice and progress’ and
includes a long chapter on ‘National Objectives and Directive Principles of State

Policy’.20 Article one proclaims the sovereignty of the people and Article 2 pro-
vides that the constitution ‘shall have binding force on all authorities and persons
throughout Uganda’. The constitution also provides that fundamental rights and
freedoms of the individual are inherent and not granted by the State. It further guar-
antees specific rights and freedoms, including the freedom from discrimination,
freedom of religion, the prohibition from torture and slavery, the right to privacy,
assembly and association.
19. In contrast to the 1967 Constitution, the current constitution provides for
separation of powers among the President, Parliament and other constitutional bod-
ies. Amongst others, the presidential power of appointment regarding the Vice Presi-
dent and Ministers is subject to the approval of the Parliament and the appointment
of Permanent Secretaries and heads of departments have to be made upon the rec-
ommendation of the Public Service Commission.21
20. The Public Service Commission, moreover, has the power to appoint all
other civil servants and judicial officers other than Judges of the High Court, Court
of Appeal and the Supreme Court who are appointed by the Judicial Service Com-
mission. The 1995 Constitution reduced the powers of the executive significantly.
In particular, the President no longer has the power to dissolve Parliament, and in
the area of legislation, the Parliament can override the presidential veto by a two-
thirds majority. The executive’s powers to borrow money are also limited since Par-
liament now first has to approve borrowing.22
21. In 2000 and 2005, important referenda on the system of government took
place. The first referendum favoured a ‘no-party’ system of government but was
invalidated by a Supreme Court ruling on the ground of procedural shortcomings,23
whilst the second one restored a multiparty political system. Since then, the current
president H.E Yoweri Kaguta Museveni has won the 2006, 2011 and 2016 General
elections. Today, the Ugandan Government is made up of three branches, namely
the Executive,24 Legislature,25 and Judiciary.26 The national parliament is currently
made up of 426 Members of parliament. The executive currently operates with
thirty-one cabinet ministers and forty-nine ministers of state.
20. Constitution of the Republic of Uganda, 1995, Preamble, Objective iii.

21. Supra note 1.
22. Constitution of the Republic of Uganda, 1995, Art. 159(2).
23. Paul Kawanga Ssemwogere v. Attorney General, Constitutional Petition No. 3 of 1999.
24. Constitution of the Republic of Uganda, 1995, Arts 98–125.
25. Ibid., Art. 77.
26. Ibid., Art. 126.

§7. HISTORY OF FAMILY AND SUCCESSION LAW
I. Introduction
22. The Ugandan Family law system as akin to the rest of the legal system has
its roots in Indian and British law. Before the 1900 and 1902 Order-in-Council, the
various societies in Uganda operated administration of Justice at their cultural lev-
els. It is often said that the patriarchal nature of society made women a commodity
in the transaction of marriage. This fact was later to act as a stumbling block against
the British court’s recognition of many African marriages as legal. Each region had
its own unique customs and rites about the celebration of marriage. For instance, in
Buganda, marriage was celebrated in accordance with the customs of Buganda,
where the intending groom’s family would visit the bride’s family. Subsequently, an
introduction ceremony would be conducted to receive the Mutwalo27 and other
items of the bride price and official consent of the bride’s family to the Union.
23. In Bunyoro and the North, similar customs were celebrated and constituted
the celebration of marriage. By the 1902 Order-in-council, British Law – including
the Statutes of General Application became part of the law in Uganda. This system
of law is what came to be known as Common Law,28 a system of British law ema-
nating from customs and judicial precedents. The Order-in-Council came into force
with the famed repugnancy clause which allowed customary law to exist as long it
was not repugnant to the conscience of the English. For instance, under Common
Law, the courts recognized that Marriage, as understood in Christendom, might be
understood as the voluntary Union for life of one man and one woman to the exclu-
sion of all others.29 Common law would not, therefore, bless the union of Africans
under their customs because it was considered as wife purchase.
24. Under the Common law regime, in Rex v. Amkeyo,30 most African unions
were viewed as mere civil unions not amounting to marriage in the eyes of the law.
The question, in this case, was whether the relationship between the accused
(Amkeyo) and a woman was one of marriage. The courts at the time recognized that
whereas African marriages were the unions of man and woman, the element of bride
price and the potentially polygamous nature of these marriages fell short of the stan-
dard of Hyde v. Hyde.31 The court in Hyde v. Hyde held that Marriage, as under-
stood in Christendom, is the voluntary union for life of one man and one woman to
the exclusion of all others. The East African Court, therefore, regarded these mar-
riages as wife purchase and unworthy of the full recognition of the very conscious
common law. As such, the protections enjoyed under the law for spouses were found
not to apply to the accused Amkeyo when he was convicted based on the evidence
of his wife who would ordinarily have been competent but not compellable under
27. Luganda terminology to mean part of the bride price paid by the Groom to the bride’s family in some
Buganda culture.
28. Black’s Law Dictionary.
29. Hyde v. Hyde1866 [L.R] 1 P&D 130.
30. (1917) 7 EALR 14.
31. Hyde v. Hyde1866 [L.R] 1 P&D 130.

the law to testify against her husband under section 119 of Evidence Act – now sec-
tion 120 of the current Evidence Act Cap 6.
25. After Independence in 1962, the courts in Uganda were no longer bound by
decisions of the Privy Council and the Statutes of General Application. In Alai v.
Uganda,32 the court was called upon to decide an appeal from a conviction of adul-
tery by a Magistrate Grade II; the chief magistrate stated a case for the opinion of
the High Court on the point of law. The adulterer, adulteress and her husband (the
complainant) were all Muslims, and the marriage between the adulteress and her
husband was by Muslim rites. The issue of contention was whether the offence of
adultery (prescribed under section 150A of the Penal Code) applies to all types of
marriages or it is restricted to monogamous marriages only and does not apply to
potentially polygamous marriages (including Muslim marriages) because of the
definition of ‘husband’ and ‘wife’ in section 4 of the Penal Code.
26. Sir Udo Udoma C.J in deciding the case held that ‘any married woman’ in
section 150 of the Penal Code meant any woman married to any man irrespective of
the form of such marriage provided that such marriage has been conducted in one
of the forms recognized by the people of Uganda, including marriages according to
the customs of the people. The court further recognized that the phrase ‘married
woman’ was a term of art which conferred on any woman a specialized status in
society as distinct from an ‘unmarried woman’. He opined that the forms of mar-
riage recognized in Uganda would include those conducted in accordance with the
Marriage Act (MA),33 Marriage of Africans Act,34 Marriage and Divorce of
Mohammedans Act,35 Hindu marriage and Divorce Act (HMDA),36 and the mar-
riage contracted under or in accordance with the Customary Law recognized by the
Law of Uganda.37
27. Despite this important step by the courts, it was not until 1973 when the cus-
tomary marriage registration decree was enacted that polygamy and privileges of
the law were awarded to those married under customary law as married persons.
The post-independence courts have since worked to harmonize the common law
with the Ugandan situations as in Uganda Motors Limited v. Wavah Holdings Lim-
ited38 where the court found that the statutes of general application were no longer
applicable under Ugandan legal regime since their deletion from the 1967 Judica-
ture Act as Law applicable in Uganda.
32. 1967 EA 596.

33. Cap 211 Laws of Uganda.
37. Supra note 5.
38. Supreme Court Civil Appeal No. 19/91, available online at https://ulii.org/ug/judgment/supreme-
court/1992/1/.

II. Succession Ordinance, 1906
28. The origin of Uganda’s law of succession can be traced as far back as the
Succession Ordinance of 1906, which was adopted from English law.39 The Ordi-
nance introduced the British models of succession and inheritance into Uganda as
the law applicable to all cases of intestate or testamentary Succession.40 The Ordi-
nance, however, was limited in application. First of all, the Ordinance exempted the
estates of all natives and Moslems in the protectorate of Uganda from the operation
of Part V of the Ordinance. Part V of the Ordinance provided for the distribution of
an intestate’s property.41
29. Second, the Ordinance did not exhaustively provide for testate succession
and generally fell short on intestate succession especially with respect to the differ-
ent interests in an intestate’s property of the Ugandans who were left to apply cus-
tomary and cultural practices of succession in their imperfections.42 In its initial
state, the Ordinance did not recognize the rights of illegitimate children and rela-
tives. Instead, the law preferred legitimate children and relatives over the interests
of illegitimate children and would only be recognized if their reputation as relatives
had been recognized before the demise of the testator.43
30. Third, the law only recognized the right of men to make wills, appoint tes-
tamentary guardians over their bereaved children.44 In addition, a widow was only
entitled to a third of the estate while the bulk went to lineal descendants. By so
doing, the Ordinance maintained the application of religious and native customary
succession law by natives in succession matters. Consequently, a state of legal plu-
ralism emerged, and Mohammedans and African customary practices continued to
influence their decisions in handling succession matters. Africans could choose their
preference over customary succession law, and the British made statutory law45
while the courts continued to apply customary practices alongside the statutory law.
III. Succession (Amendment) Decree, 1972
31. In 1972, the Succession Ordinance was replaced by the Military regime of
Idi Amin 1906 through the pronouncement of the Succession (Amendment) Decree
of 1972 to provide among others, for succession to estates of Ugandans dying intes-
tate, restrictions on the disposal of property by will, recognition of the rights of ille-
gitimate and adopted children.46 The Succession Decree also codified the concepts
39. Uganda Law Reform Commission (ULRC), Study report on the review of laws on succession in
Uganda (ULRC, 2013).
40. Supra note 1.
41. General Notice of 22 Jan. 1906.
42. Supra note 1.
43. Succession Ordinance 1906, s. 87.
44. Ibid., s. 47.
45. Succession Ordinance 1906.
46. Succession Decree 1972, s. 3.

of polygamy, both customary and legal heir, dependent relatives as beneficiaries and
the preference of a male heir to the female.
32. The wife’s and children’s right of occupancy in the family home was pro-
tected during intestate succession while a widow’s share was reduced to 15% down
from the 30% in the Succession Ordinance of 1906.47 It further provided that each
category of lineal descendants, wives and dependent relatives would be entitled to
share their proportion of a deceased’s estate in equal proportions and that any child
of a deceased lineal descendant takes the deceased lineal descendant’s share if he
survives the intestate.48
33. Remarriage by a widow terminated her occupancy of the matrimonial home,

but in practice, the widower could maintain occupancy even after remarrying while
in the occupation of the matrimonial home.49 At the same time, preference was
given to the father’s side during the appointment of a statutory guardian of minor
children.50
34. It should be noted that many of the provisions in both the Succession Act
and Succession Decree largely discriminated against women based on sex alone.
The application of such provisions left women in an inferior position to that of the
men. Such provisions would later sow seeds of discontent among the women activ-
ists particularly after the coming into force of the 1995 Constitution of the Republic
of Uganda which introduced the principle of equality between men and women in
Uganda and later led to a number of constitutional jurisprudence building cases.
35. Also relevant is the decision of Sekandi J (as he then was) in Uganda v.
Peter Kato and 3 others51 where the court was called upon to determine whether a
customary marriage was indeed a marriage recognizable by law. The court estab-
lished a test for the existence of marriage as to whether the union is treated as a mar-
riage by the laws or customs of the nation, race or sect to which the parties belong.
From the records, the facts clearly indicate that there was a valid customary mar-
riage between the appellant and the respondent. The said marriage having been cel-
ebrated according to Kiganda customs to which the parties belonged. He, therefore,
entirely agreed with the submissions of Counsel for the appellant that the lower
court failed to exercise its discretion properly and refused the appellant’s evidence.
The learned Chief Magistrate, therefore, erred in law and in fact, in finding that
there was no valid marriage between the appellant and respondent. It is not only
wedded marriages that are recognized under the laws of Uganda. The second ground
of appeal, therefore, succeeds and is hereby allowed.

48. Ibid., s. 29.
49. Succession Decree 1972, Second Schedule.
50. Ibid., s. 47A(1).
51. [1976] HCB 204.

§8. SOURCES OF FAMILY AND SUCCESSION LAW
I. Constitution of the Republic of Uganda
36. Objective XIX of the 1995 Constitution recognizes the family as the natural
and basic unit of society and is entitled to protection by society and the State. It also
enjoins Parliament to establish efficient, fair and expeditious machinery for the
administration and management of the estates of deceased persons. In this regard,
the Constitution further states that the services of the department or organization
established for that purpose must be decentralized and accessible to all persons who
may reasonably require them and the interests of all beneficiaries adequately pro-
tected.52
37. It also provides for the Rights of the family and inheritance rights. It thus
states:
(1) Men and women of the age of 18 years and above have the right to marry and
to found a family and are entitled to equal rights in marriage, during marriage
and at its dissolution.
(2) Parliament shall make appropriate laws for the protection of the rights of wid-
ows and widowers to inherit the property of their deceased spouses and to
enjoy parental rights over their children.
(3) Marriage shall be entered into with the free consent of the man and woman
intending to marry.53
§9. STATUTE SOURCES
38. The Ugandan Parliament has enacted various laws that provide for family
and succession related matters.
§10. STATUTORY SOURCES OF MARRIAGE LAW
I. The Marriage Act
39. The MA provides for the general nature of prerequisites of civil and reli-
gious marriage in Uganda. It provides for grounds upon which the marriage may be
invalidated.54,55 The Act also prohibits polygamy in the forms of marriage it regu-
lates. It further requires the Minister to set up marriage districts all over Uganda56
52. Constitution of Uganda 1995, Art. 247.

53. Ibid., Art. 31.
54. Cap 251.
55. Ibid., s. 34.
56. Ibid., s. 2.

and to appoint registrars/deputy registrars for each designated district.57 It also pro-
vides for the gazetting of places of worship as places of the celebration of mar-
riages and these are supposed to be licensed by the Minister.58 The Act outlines the
requirements of marriage to include notice of intending marriage.59
40. The Customary Marriages (Registration) Act60 provides for registration of

all customary marriages within six months from the date of celebration of the mar-
riage.61 The parties to the customary marriage are required to register the details of
their marriage at the office of the registrar of marriages in the district where it took
place, with at least two witnesses to the marriage ceremonies. The Act recognizes
the polygamous nature of customary marriages.62
41. Section 11 of the Act provides for grounds upon which a customary mar-
riage may be invalidated. These include if:
(a) the female party to it has not attained the age of 16 years;
(b) the male party to it has not attained the age of 18 years;
(c) one of the parties to it is of unsound mind;
(d) the parties to it are within the prohibited degrees of kinship specified in the Sec-
ond Schedule to this Act, or the marriage is prohibited by the custom of one of
the parties to the marriage; or
(e) one of the parties has previously contracted a monogamous marriage which is
still subsisting.
42. Section 1363 prohibits parties to a customary marriage from contracting a

subsequent monogamous or Mohammedan marriage with another party. The Act
invalidates such subsequent marriage and preserves the validity of the first custom-
ary marriage.
II. The Marriage and Divorce of Mohammedans Act
43. The Marriage and Divorce of Mohammedans Act provides for the marriage
and divorce of Mohammedans.64,65 It provides for the validity of all marriages
between persons professing the Mohammedan religion, and all divorces from such
57. Ibid., s. 3.
58. Ibid., s. 5.
59. Ibid., s. 6.
60. Cap 248.
61. Ibid., s. 6.
62. Ibid., s. 4(2).
63. Ibid.
64. Cap 252.
65. Ibid., s. 1.

marriages celebrated or given according to the rites and observances of the Moham-
medan religion.66 Section 4 of the Act provides for the mandatory registration of all
marriages and divorces within the ambit of the Marriage and Divorce of Moham-
medans Act.
44. Section 5 of the Act further provides that:
(i) in the case of a marriage, by the husband, or in the event of his death before
the expiration of one month from the date of the marriage, by the widow; but
if either party whose duty it is to apply is a minor, the application shall be
made by his or her lawful guardian, and if the widow be a purdah-nisheen the
application shall be made by her personally or on her behalf by her duly
authorized vakil;
(ii) in the case of a divorce – (i) other than of the kind known as Khula, by the
man who effected the divorce; and (ii) by the parties to the divorce jointly,
but if the woman is a purdah-nisheen, the application may be made on her
behalf by her duly authorized vakil.
45. The act also allows a woman or if she is a purdah-nisheen, her vakil, or her
guardian to apply for the registration of marriage or divorce if the man fails to apply,
or a minor from so applying if his or her guardian fails to apply.67 It is important to
note that the Divorce Act of Uganda does not apply to marriages under this Act.
§11. THE HMDA, CAP 250
46. The HMDA defines a ‘Hindu’ as a person who is a Hindu by religion in any
form, including a Virashaiva, a Lingayat and a follower of the Brahmo, Prarthana
or Arya Samaj, or a person who is a Buddhist of Indian origin, a Jain or a Sikh by
religion.68 Section 2 of the Act prohibits marriage if:
(a) either party has a spouse living at the time of the marriage;
(b) both parties are of unsound mind at the time of the marriage;
(c) the bridegroom has not attained the age of 18 years and the bride the age of 16
years at the time of the marriage;
(d) where the bride has not attained the age of 18 years and the consent of her
guardian in marriage, if any, has not been obtained for the marriage;
(e) the parties are within the prohibited degrees of consanguinity unless the custom
governing each of them permits of a marriage between them.
where the former husband or wife of either party was living at the time of the
marriage and the marriage with that former husband or wife was then in force,
and section 153 of the Penal Code Act (PCA) shall apply in that case.69
66. Ibid., s. 2.
67. Ibid., s. 5(2).
68. Cap 250, s. 1.
69. Ibid., s. 6(1).

47. Section 4 provides that a marriage may be solemnized in accordance with

the customary rites and ceremonies of either party to the marriage with the Hindu
faith or where the customary rites and ceremonies include the Saptapadi (i.e., the
taking of seven steps by the bridegroom and the bride jointly before the sacred fire),
the marriage becomes complete and binding when the seventh step has been
taken.70 Where the marriage is solemnized in the form of Anand Karaj (i.e., the
going round the Granth Sahib by the bride and bridegroom together), the marriage
becomes complete and binding upon completion of the fourth round.71
§12. DIVORCE LAW
48. The Divorce law in Uganda has been governed primarily by the Divorce
Act.72 This Act is only applicable to marriages where the petitioner is domiciled in
Uganda at the time when the petition is presented or unless the marriage was sol-
emnized in Uganda.73
49. The courts in Uganda have jurisdiction to hear and determine divorce mat-
ters. Where all parties are Africans or where a petition for damages only is lodged
in accordance with section 21 of this Act, jurisdiction may be exercised by a court
over which presides a Magistrate Grade I or a Chief Magistrate.74 In all other cases,
it is only the High Court with jurisdiction to hear cases of divorce.75
50. Previously under this Act, a husband could apply by petition to the court for
the dissolution of his marriage on the ground that since the solemnization of the
marriage his wife has been guilty of adultery. A wife, on the other hand, could apply
by petition to the court for the dissolution of her marriage on the ground that since
the solemnization of the marriage:
(a) her husband has changed his profession of Christianity for the profession of
some other religion, and gone through a form of marriage with another woman;
or
(b) has been guilty of:
(i) incestuous adultery;
(ii) bigamy with adultery;
(iii) marriage with another woman with adultery;
(iv) rape, sodomy or bestiality;
(v) adultery coupled with cruelty; or
(vi) adultery coupled with desertion, without reasonable excuse, for two years
or upwards.
70. Ibid., s. 4(2).

71. Ibid., s. 4(3).
72. Cap 249.
73. Ibid., s. 2.
74. Ibid., s. 3(1).
75. Ibid., s. 3(2).

51. The Constitutional Court, however, found that section 4 of the Divorce Act
was unconstitutional as it created separate grounds for the different sexes and in
addition required more grounds if the applicant was a female. The court ruled that
all the grounds are now applicable to both sexes equally without exception.76
§13. DIVORCE UNDER THE HINDU AND MA CAP 250
52. The Divorce Act applies to the matrimonial causes under the HMDA subject
to section 8 of the Act. The Divorce Act applies to marriages and to matrimonial
causes relating to marriages. In addition to the grounds for divorce mentioned in the
Divorce Act, a petition for divorce may be presented by either party to a marriage
on the ground that:
(i) the respondent has ceased to be a Hindu by reason of conversion to another

religion; or
(ii) the respondent has renounced the world by entering a religious order and has
remained in that order apart from the world for at least three years immedi-
ately preceding the presentation of the petition.
53. A Hindu wife may also petition for divorce on the ground that her husband:
(i) at the time of the marriage was already married; or

(ii) married again before the commencement of this Act, the other wife being, in
either case, alive at the date of presentation of the petition.77
§14. STATUTORY SOURCES OF SUCCESSION LAW
54. The Succession Act78 provides for the enforcement of wills, the appoint-
ment of administrators and executors, intestate succession procedures and the gen-
eral succession related matters. It currently provides for the capacity to make a
will79 for both the privileged80 and unprivileged,81 and also makes adequate provi-
sion for dependants.82 This Act also makes provision for an applicant petitioning
court for letters of administration (LOA) or probate for estates whose value exceeds
UGX 50 million:
76. Uganda Association of Women Lawyers and Others v. Attorney General, Constitutional Petition No.
2 of 2003 [2004] UGCC 1 (10 Mar. 2004).
77. HMDA, s. 8(2)(a)-(b).
78. Cap 162.
79. Section 36 provides that a person who can make a Will should be of majority age, sound mind, nor
suffering an disability that impairs reasoning and proper judgement, and is acting of his own free
will.
80. Ibid., s. 52.
81. Ibid., s. 50.
82. Ibid., s. 37.

(a) The Administration of Estates of People (Small Estates) (Special Provisions)

Act83 as amended by the SI. 2084 & 2185 of 2009.
This Act provides for the management of estates below UGX 50 million. It also pro-
vides for the various courts allowed to deal with the said estates as:
(i) a Magistrate Grade 1 where the total value of the estate does not exceed UGX
20 million;86
(ii) a chief magistrate, where the total value of the estate exceeds UGX 20 mil-
lion but does not exceed UGX 50 million. 87
(b) The Administrator General’s Act88

This Act creates the Office of the Administrator General to regulate the manage-
ment of estates to which no executor was appointed. The Act provides for the duties
of the Administrator General primarily to include verifying beneficiaries of the
deceased to ascertain that they are entitled to a share as stated in the Succession
Registers, Issuing beneficiaries of the deceased with a Certificate of No Objection
to enable them petition for LOA to the deceased’s estate; administering the
deceased’s estate where the Administrator General is the administrator of the estate;
and distributing the deceased’s estate to his or her beneficiaries in accordance with
the distribution made in the Succession Register where the estate is administered by
the Administrator General.
(c) The Estates of Missing Persons (Management) Act89

The Estates of Missing Persons (Management) Act deals primarily with providing
for the estates of persons who are deemed missing. The Act defines a missing per-
son as a person who disappears from Uganda without making provision for the
administration of his or her estate and investigations have shown that his or her
whereabouts are not known for more than six months.90 It also provides the proce-
dure to be followed in applying for and administering the estate of such missing per-
sons.
83. Cap 156.

84. Administration of Estates of people (Small Estates) (Special Provisions)(Probate and Administra-
tion) (Amendment) Rules, 2009 SI No. 20.
85. Ibid., SI No. 21.
86. Ibid., SI No. 20, s. 2(a).
87. Section 2(b) Administration of Estates of people (Small Estates) (Special Provisions) (Probate and
Administration) (Amendment) Rules, 2009 SI No. 20.
88. Cap 157.
89. Cap 159.
90. Ibid., s. 1.

(d) Customary Marriage (Registration) Act, Cap 248

This Act defines a customary marriage to mean a marriage celebrated according to
the rites of an African community and one of the parties to which is a member of
that community, or any marriage celebrated under Part III of this Act.91
It places the minimum age of a female contracting to a customary marriage at 16
years and for the male party at 18 years.92 Customary marriages are potentially
polygamous.93 This position has been reaffirmed by the courts in John Tom Kintu v.
Myllious Gafabusa Kintu, where Justice S.B. Bossa (as she then was) stated that,
‘ … if a person married under customary law continues to marry more wives under
the same type of marriage, he doesn’t commit adultery thereby [the marriage is
polygamous]’.
(e) The Local Council Courts Act

The Local Government Act, 2006 governs customary marriages and disputes con-
cerning marriage, marital status, separation, divorce or the parentage of children and
disputes relating to the identity of a customary heir.
(f) The Trust Corporations (Probate and Administration) Act, Cap 163
This Act governs the administration of estates administered by trust corporations. It
allows the High Court to grant probate to a trust corporation where a trust is named
in a will as executor, whether alone or jointly with another person,94 or grant LOA
to a trust corporation, either solely or jointly with another person, and the corpo-
ration may act accordingly as executor or administrator, as the case may be.95
Other Acts include: the Trustees Incorporation Act,96 the Probate (Resealing)
Act,97 the Public Trustee Act,98 the Administration of Estates by Consular officers
Act,99 the Administration of Estates of Persons of Unsound Mind Act,100 the Church
of England Trustees Act101 and the Local Governments Act.102
§15. CASE LAW
55. There are several cases in the development of family and succession related
law in Uganda. The most significant ones are:
91. Customary Marriage (Registration) Act, s. 1(b).

92. Ibid., s. 11.
93. Ibid., s. 4(2).
94. Section 2(a).
95. Section 2(b).
96. Cap 165.
97. Cap 160.
98. Cap 161.
99. Cap 154.
100. Cap 155.
101. Cap 158.
102. Cap 243.

(a) Julius Rwabinumi v. Hope Bahimbisomwe.103 This was an appeal made against
the Court of Appeal decision on the basis that property belonging to either
spouse becomes matrimonial property upon the exchange of marriage vows.
The Supreme Court reversed the earlier judgment and held that a married spouse
is free to own personal individual property alone or in association with others
under Article 26 of the Constitution and that such property that is individually
owned cannot be treated as matrimonial property upon divorce. It is only mat-
rimonial property that may be equally be divided and shared to the extent pos-
sible and practicable at divorce.
(b) Kagga v. Kagga.104 In this case, the High Court established a principle, which
recognizes each spouse’s contribution to the acquisition of property, and this
contribution may be direct, where the contribution is monetary or indirect where
a spouse offers domestic services. When distributing the property of a divorced
couple, it is immaterial that one of the spouses was not as financially endowed
as the other as this case clearly showed that while the first respondent was the
financial muscle behind all the wealth they acquired, the contribution of the
petitioner is no less important than that made by the respondent.
(c) Mifumi (U) Ltd & Anor v. Attorney General & Anor.105 Here, the court estab-
lished that whereas bride price is not unconstitutional, it is unconstitutional to
use it as a precedent to marriage and to ask for a refund of bride price upon the
dissolution of marriage.
(d) Bruno Kiwuuwa v. Juliet Namazzi and Ivan Sserunkuma.106 Here, the learned
judge Kasule J relying on the Kiganda custom that forbade the marriage of per-
sons from the same clan denied the defendants leave for marriage after a caveat
had been lodged by their parents against their marriage on the ground that mem-
bers of the Ndiga (sheep) clan could not legally marry one another.
(e) Best Kemigisa v. Mable Komuntale and Another. In this case, the court held that
any custom which denied a widow the right to administration of the estate of
her husband was repugnant to natural justice and good conscience. The court
struck down the custom and held that women/wives could and should have the
first priority to administer the estate of their late husbands.
(f) In Nassanga v. Nanyonga.107 In this case, it was held that where the intending
parties to the customary marriage are of different tribes, the marriage ceremony
is celebrated according to the tribal customs of the lady in question.
(g) Uganda Association of Women Lawyers and others v. Attorney General.108 The
Constitutional Court, in interpreting section 4(1) of the Divorce Act, unani-
mously stated that all grounds of divorce are available equally to both parties to
the marriage and the provisions, so do the provisions apply to both women and
men who are parties to that petition:
103. Supreme Court Civil Appeal No. 10 of 2009.

104. High Court Divorce Cause No. 11 of 2005.
105. Constitutional Appeal No. 02 of 2014 [2015] UGSC 13 (6 Aug. 2015).
106. Civil Suit No. 56 of 2006.
107. [1977] HCB 314.
108. Constitutional Petition No. 2 of 2003.

(1) Law & Advocacy for Women in Uganda v. Attorney General of Uganda.109
The Court of Appeal, sitting as the Constitutional Court, was tasked to
determine whether certain provisions of the Succession Act were no longer
good law. The court struck down all the provisions in the Succession Act
petitioned against. It found that:
(i) Sections 2(n)(i)–(ii) of the Succession Act110 where the words ‘legal
heir’ are defined, the male heir is preferred to a female one was dis-
criminatory on the basis of sex and is, therefore, unconstitutional.
(ii) Section 27, which governs the distribution of the property of intestate
deceased persons, did not provide for female intestate. Court decided
that the section did not apply equally to properties of both female and
male and was therefore unconstitutional.
(iii) Court also pointed out that the percentage of distribution of property
is oblivious to the contribution of the wife to the wealth in the home
and is also unconstitutional.
(iv) On section 43,111 which provides for the appointment of the testa-
mentary guardian, the court found that it is only a father who by will
can appoint a guardian or guardians for his child during minority. The
law at the time did not make provision for a mother to appoint a
guardian for her child who was still a minor. This too was discrimi-
natory and unconstitutional.
(v) Section 44112 that governs the hierarchy of people who can be
appointed as statutory guardians leaves out female relatives and is,
therefore, unconstitutional.
(vi) Sections 15 and 16 that govern the domicile of a wife during the mar-
riage are discriminatory in that a husband may not take the domicile
of his wife while a wife is automatically assigned the domicile.
(vii) Finally, the court struck down sections 26 and 29 and Rules 1, 7, 8,
and 9 of Schedule 2 to the Act.113 The court found that occupancy of
the matrimonial home should be uniformly applicable to both the
widows and widowers if they choose to remarry. It is discriminatory
for only the man to remain unburdened at all if he chooses to remarry.
Other laws providing for marriage, succession and children related matters in
Uganda include:
– Succession Act, Cap 162.
56. The current Succession Act attempted to bring on board the aspirations of
the people of Uganda over time. It is largely a replica of the provisions of the Suc-
cession Amendment Decree with its gaps and anomalies as highlighted above. As a
109. Constitutional Petitions Nos 13/05 & 05/06.

110. Cap 162.
111. Ibid.
112. Ibid.
113. Ibid.

result, the current succession Act necessitated a review to address the gaps and
anomalies that had existed for a long time. Over time, several studies have been
conducted in Uganda and recommendations for amendment of the law of succes-
sion have been made based on the identified gaps. Some of these studies include:
the Kalema Commission of Inquiry,114 Ministry of Gender and Community Devel-
opment study,115 Ministry of Women in Development, Culture and Youth, and the
Uganda Law Reform Commission (ULRC) studies on the law of Succession, and
on the Marriage Bill 2017.
57. Studies on this subject have established several challenges within the law
and practices of succession. Among these were: (1) that the law on succession is
largely unused as culture and tradition was predominantly relied upon to operate in
matters of succession;116 that the provisions in the law were evidently discrimina-
tory;117 that the actors involved in implementation of the Act were faced with chal-
lenges of implementation as the communities were largely unaware of the law and
only resorted to the formal institutions when customary procedures had failed;118
centralization of the Office of the Administrator General,119 light penalties in the
law; and the complex and expensive procedures for acquiring probate and LOA,
among others. It was on this premise that the study on domestic relations recom-
mended a comprehensive study on the reform of the law of succession in Uganda.
58. To date, these gaps and challenges have never been addressed in our laws of
succession.
§16. INTERNATIONAL TREATIES AND CONVENTIONS
59. Apart from domestic legislation, Uganda is a signatory to various interna-

tional and regional legal instruments that aim at promoting equality and non-
discrimination of persons. The government has an obligation to fulfil its
commitments to eliminate discriminatory provisions in its laws. Some of the instru-
ments include the Universal Declaration of Human Rights,120 African Charter on
114. Report of the Commission on Marriage, Divorce and Status of Women, 1965 (the Kalema Com-
mission Report).
115. See, Ibid., 14, quoting (who is the author?, A study of Women and Inheritance in Bushenyi District,
Project paper No. 4, July 1994.
116. The study established that customary clan structures that control the administration of property after
death were still firmly entrenched in the communities studied. As a result, even where a valid will
exists, the customary norms may supersede it. Domestic Relations Study Report, p. 272.
117. See, Domestic Relations Study Report, p. 301.
118. According to the Domestic Relations study report, formal institutions are only resorted to when the
informal customary mechanisms fail to resolve a dispute over administration. Supra note 114, at p.
278.
119. Ministry of Gender and Community Development Study of Women and Inheritance in Bushenyi
District, Project paper No. 4, July 1994.
120. Universal Declaration of Human Rights (General Assembly Resolution 217A (III)), Art. 10; Inter-
national Covenant on Civil and Political Rights (United Nations, Treaty Series, vol. 999, No.
14668), Art. 14, ratified by Uganda on 21 Jun. 1995.

Human and Peoples’ Rights (ACHPR),121 and the Convention on the Elimination of
all Forms of Discrimination against Women (CEDAW).122 The CEDAW requires
state parties not only to prohibit discrimination against women but also to take affir-
mative steps in order to achieve gender equality. This imposes an obligation on state
parties to reform laws that are in violation of the Convention. The ACHPR and the
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women (The Women’s Protocol to the ACHPR) similarly prohibit discriminatory
practice against women. Uganda’s laws of succession are not in compliance with its
obligations in the above-mentioned international and regional instruments.
§17. COURTS ADMINISTERING THE LAW
60. Generally, the courts will only handle a matter if it is within their territorial
jurisdiction and in all civil matters within the pecuniary jurisdiction of that court.
The High Court has jurisdiction to handle all civil claims exceeding UGX 50 mil-
lion while the subordinate courts handle subject matter below that amount.123 The
High Court has unlimited original jurisdiction in handling all civil cases in
Uganda,124 except those related to tax disputes.125
§18. DIVORCE
61. Section 207(2) of the Magistrates’ Court Act grants the Chief Magistrate and
Grade 1 Magistrates unlimited jurisdiction over divorce matters in purely custom-
ary marriages despite the value of any civil jurisdiction established by earlier pro-
visions of the Magistrates’ Court Act and the Magistrates’ Courts (Amendment) Act
2007. All other divorce cases follow the pecuniary jurisdiction of the High Court
and the Magistrates court.
§19. SUCCESSION
62. In all succession related matters in Uganda, jurisdiction is exercised by the

High Court and the Magistrates courts only. With respect to pecuniary jurisdiction:
121. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) entered into force on 21 Oct. 1986. Signed and ratified
by Uganda on 18 Aug. 1986 and 10 May 1986 respectively.
122. United Nations, Treaty series, Vol. 1249, p. 13 entered into force on 3 Sep. 1981 ratified by Uganda
in 1985.
123. Magistrates’ Courts Act, Act No. 7 of 2007, s. 207.
124. Constitution of Uganda, Art. 139(1).
125. This is illustrated in the caste of Uganda Revenue Authority v. Rabbo enterprises Uganda Ltd,
Mount Elgon Hardwares Ltd SCCA No. 12 of 2004, where the Supreme Court held that The High
Court has no original jurisdiction in Tax disputes but only has appellate jurisdiction arising from
the decisions of the Tax Appeals Tribunal.

(i) Where the estate does not exceed UGX 20,000,000, it shall be the Grade One
court.126
(ii) Where the value ranges between UGX 20,000,000 and 50,000,000, it shall be
the Chief Magistrate’s Court.127
63. Section 235 of the Succession Act limits the Jurisdiction to grant probate and
LOA to the High Court and a magistrate’s court.128 The Act also permits the grant
of administration of an estate below UGX 20 million Grade 2 Magistrate.129
126. Magistrates’ Courts Act, s. 207.

127. Ibid.
128. The Administration of Estates (Small Estates) (Special Provisions) Act, under s. 11, allows the High
Court jurisdiction to grant probate or letters of administration in respect of estates of persons hav-
ing no fixed place of abode in Uganda.
129. The Administration of Estates (Small Estates) (Other Provisions) (Amendment of Jurisdiction)
Order 2009, s. 2.

64–68
Part I. Persons
Chapter 1. The Status of a Person

§1. DEFINITION OF A PERSON
64. A person is defined to mean any individual, a personal representative, com-

pany, partnership, trust, fund, foundation or enterprise wherever located or incorpo-
rated.130 Black’s Law Dictionary also defines a person as a human being, a
corporation that is recognized by law as having the rights and duties of a human
being.131
65. The Registration of Persons Act132 enacted on 26 March 2015 to govern all
registration of persons in Uganda does not have an exhaustive definition of persons
in the country. It simply defines a person to mean an individual or natural person.
The Act does not, therefore, recognize non-human persons under its ambit. Non-
human entities are, therefore, not subject to compulsory registration under this Act.
The Act, however, also defines aliens as persons who are not citizens of Uganda.
This distinction is necessary as it confers a special status on citizens over foreign-
ers.
66. The law recognizes the right of unborn children as people. Article 22(2) of
the Constitution of Uganda provides for the protection of the right to life. It pro-
hibits the termination of the life of an unborn child without following due process
of law.
67. The Penal Code criminalizes any attempts, carrying out of, supplying drugs
to aid and otherwise inducing abortion of any female.133 It similarly criminalizes the
procuring of miscarriage.134
68. Under the Succession Act, an unborn child has as much right to inherit their
deceased parent’s estate as though they were born at the time of the demise of the
parent. Criminal law recognizes this right and establishes several offences relating
130. The Financial Transactions Act, Act No. 2 of 2004.

131. Black’s Law Dictionary (7th ed.).
132. Act 4 of 2015.
133. Penal Code Act, Cap 120, s. 141.
134. Ibid., s. 142.

69–73 Part I, Ch. 1, The Status of a Person
to the loss of life by unborn children. The Penal Code creates the offences of killing
unborn child by any person who, when a woman is about to be delivered of a child,
prevents the child from being born alive by any act or omission of such a nature
that if the child had been born alive and had then died, he or she would be deemed
to have unlawfully killed the child. This felony attracts imprisonment for life.135
69. Other offences related to the rights of an unborn child include the following:
§2. ATTEMPTS TO PROCURE ABORTION
70. Any person who, with intent to procure the miscarriage of a woman whether
she is or is not with child, unlawfully administers to her or causes her to take any
poison or other noxious things, or uses any force of any kind, or uses any other
means, commits a felony and is liable to imprisonment for fourteen years.136
§3. PROCURING MISCARRIAGE
71. Any woman who, being with child, with intent to procure her own miscar-
riage, unlawfully administers to herself any poison or other noxious things, or uses
any force of any kind, or uses any other means, or permits any such things or means
to be administered to or used on her, commits a felony and is liable to imprison-
ment for seven years.137
§4. SUPPLYING DRUGS, ETC. TO PROCURE ABORTION
72. Any person who unlawfully supplies to or procures for any person anything,
knowing that it is intended to be unlawfully used to procure the miscarriage of a
woman, whether she is or is not with a child, commits a felony and is liable to
imprisonment for three years.138
§5. THE STATUS OF PERSONS
73. From the foregoing, Uganda’s legal system recognizes persons under two
distinct heads: natural persons and legal persons. The concept of personality is
important as it confers rights and or obligations to an individual or group of indi-
viduals. Natural persons are all human beings subject to the territorial jurisdiction
of a country whereas legal persons include natural persons and all entities deemed
to have rights as natural human beings by certain statuses under the law. Personality
135. Ibid., s. 212.

136. Ibid., s. 141.
137. Ibid., s. 142.
138. Ibid., s. 143.

Part I, Ch. 1, The Status of a Person 74–76
status is imperative as it confers several rights under the current legal regime,
including the right to vote/stand for elective office, enforce a right before a court of
law,139 own land, marry,140 access protections of the law and other rights as are
accessible under the law.
74. In Uganda, a person has equal rights regardless of their ethnicity, back-
ground, colour, religion, creed, political, economic, social and cultural life and in
every other respect, and is enjoined to enjoy equal protection of the law.141 This fur-
ther highlights the importance of status under the law.
75. Regarding legal persons, it is, therefore, necessary to set forth the forms of
corporate personalities recognized by law.
I. Corporations
76. Corporations are classified as:
(a) Statutory corporations: These are bodies formed by specific Acts of parliament.
Some of these bodies include: the National Water and Sewerage Corporation,142
Coordinating Office for Control of Trypanosomiasis in Uganda,143 National For-
estry Authority,144 National Medical Stores,145 Law Development Center,146
National Planning Authority,147 among others.148 Such bodies are not governed
by the Companies Act.
(b) Incorporated company: A limited company may be either public or private and
may be limited either by shares or guarantee. The company must have a seal.
Incorporated companies149 enjoy the status of legal corporate personality150,
which distinguishes the shareholders from the liabilities acquired by the com-
pany in its name. These may be either local or foreign companies. It is impor-
tant to note that the doctrine of corporate personality is not absolute and may be
139. The Trustees of Rubaga Miracle Centre v. Mulangira Ssimbwa & Mulangira Ssimbwa a.k.a Afidra
Milton v. The Board of Trustees, Miracle Centre & Anor (Misc. Applications No. 576 of 2006 &
655 of 2005) (Misc. Applications No. 576 of 2006 & 655 of 2005).
140. Constitution of Uganda 1995, Art. 31.
141. Ibid., Art. 21.
142. Established by the National Water and Sewage Corporate Act, Cap 317 Laws of Uganda.
143. Established by the Uganda Trypanosomiasis Control Council Act, Cap 211.
144. National Forestry and Tree planting Act, 2003.
145. Statutory Instrument No. 8 of 2001; National Medical Stores Statute (Commencement) & National
Medical Stores Act, Cap 207.
146. Cap 132 Law of Uganda 2000.
147. National Planning Authority Act, 2002.
148. For full list of statutory corporations, available online at http://www.oag.go.ug/wp-content/uploads
/2016/08/Vol4-2009-2010-Statutory-Corporations.pdf.
149. Companies Act of Uganda, Act No. 1 of 2012.
150. Salomon v. A. Salomon & Co Ltd [1896] UKHL 1 [1897] AC 22 has been quoted with approval in
many Ugandan cases for the principle that a company is a separate entity from its owners.

dispensed within some established instances. In National Enterprises Corpora-

tion & 2 Ors v. Nile Bank Limited,151 the Supreme Court of Uganda found that
there are exceptions to this theory which could lead to the lifting of the corpo-
rate veil to attach individual shareholders. JSC Odoki held, inter alia, that:
I think that this is the right situation in which an exception to Salmon v.

Salomon (1897) A.C. 22 would be applied. It is clear from the evidence that
the percentage in NEC Bakery and Confectionary Ltd. However, although the
courts are in general precluded by Salomon’s case from treating a company as
the ‘alia, agent trustees or nominees’ of its members, they will nevertheless do
so if corporate personality is being blatantly used as a cloak for fraud or
improper conduct. There is a dictum which has been so influential in the United
States, for instance that when the notion of legal entity is used to defeat public
convenience, justify wrong, protect fraud or defend crime, the law will regard
the corporation as an association of persons. Courts will also do so where
agency can be established in fact, either in respect of transactions or even as
regards the whole of the company’s business. They are more ready to hold that
agency is established where the controlling shareholder is another company;
indeed there is evidence of general tendency to ignore the separate legal enti-
ties of various companies within a group and to look instead at the economic
entity of the whole group.152 Registered Charitable Trusts: Charitable organi-
zations can also apply for incorporation under the Trustees Incorporation
Act.153
(c) Limited Liability Partnerships as opposed to general partnerships which do not

enjoy corporate personality under the Partnership Act of Uganda, 2010.
(d) Sole proprietorships, although recognized as legal entities,154 do not enjoy cor-
porate personality. The owners are liable for all obligations incurred by the busi-
ness.
(e) Non-governmental Organizations (NGOs) established under Regulation 5(1)(c)
of the Regulations, 2009155 acquire corporate personality when registered first
with the Companies Registry. The NGOs registration, unlike in past legal
regimes no longer confers corporate personality on an entity on its own.156
151. Civil Appeal 17/1994) [1995] UGSC 22 (21 Jun. 1995).

152. Lawrence Gower, Modern Company Law, 208 (2nd ed.).
153. Cap 165, laws of Uganda 2000.
154. Cap 109, s. 2.
155. NGOs Registration Regulations, 2009.
156. Non-governmental Organisations Act, 2016.

Part I, Ch. 1, The Status of a Person 77–82
II. Rights of Natural Persons
77. The rights extend to citizenship and affect the tenure of land a citizen and
non-citizen may hold. In Uganda, a citizen may own any form of land tenure sys-
tem available under the Land Act157 and the 1995 Constitution of Uganda (as
amended).
78. A non-citizen can only hold land as a leaseholder for a period not exceeding
ninety-nine years.158 The Land Act 1998 recognizes a non-citizen as a person who
is not a citizen of Uganda as defined by the Constitution and the Uganda Citizen-
ship Act. The Act creates further distinction in its introduction of corporate person-
alities.
79. In the case of a corporate body, a corporate body in which the controlling
interest lies with non-citizens, and in the case of bodies where shares are not appli-
cable, where the body’s decision-making lies with non-citizens, a company in which
the shares are held in trust for non-citizens and a company incorporated in Uganda
whose articles of association do not contain a provision restricting transfer or issue
of shares to non-citizens.159
80. The Act states that for purposes of subsection (7), ‘controlling interest’
means:
(4) in the case of companies with shares, the majority shares are held by per-
sons who are not citizens; and
(5) in the case of companies without shares, a company in which decisions are
arrived at by the majority who are not citizens.
81. Specific legislation provides a specific definition of natural and corporate

persons and consequently, the conferring of treatment as citizens.
82. Section 9 of the Investment Code Act Cap 92 defines a ‘foreign investor’ to
mean:
a) a person who is not a citizen of Uganda;
b) a company, other than a company referred to in subsection (2), in which
more than 50 percent of the shares are held by a person who is not a citi-
zen of Uganda;
c) a partnership in which the majority of partners are not citizens of Uganda.
157. Land Act (as amended), 1998.

158. Ibid., s. 40(6); Companies Act Uganda 2012, s. 253.
159. Supra note 4

§6. CAPACITY
83. The law presumes that all persons have full rights and legal capacity in
Uganda unless clearly and expressly recognized as not having full capacity. Cur-
rently, the law recognizes as lacking full legal minors, lunatics, and in some cases,
adjudged bankrupts and convicted criminals.
§7. MINORS
84. The term minor in Ugandan law is not sufficiently uniform. What is synony-
mous, though, is the understanding that the term minors and the term child are used
interchangeably. The Constitution of the Republic of Uganda defines a child as a
person under the age of 18 years.160 The Customary Marriage (Registration) Act
(CMRA) states that a person below the age of 21 years in Uganda may not wed
without permission from their parents,161 The Law further provides that minors may
not vote,162 or enter into legally binding contracts.163 Minors may, however, enter
into contracts for their benefit and may repudiate the same before they are of major-
ity age.164 A minor can only sue or defend a suit through a next of friend165 and
guardian ad litem166 respectively as adults who are vested in the best interests of the
minor. Persons below 18 years similarly have no capacity to consent to sexual inter-
course. Any sexual act with such a person is considered as defilement and is pun-
ishable with life imprisonment.167 Sexual intercourse with a child below 14 years
attracts a maximum penalty of death.168 Minors can acquire property but may not
sell/transact in the same without a court order obtained by their guardian/parent/
next friend.169
160. Constitution of Uganda 1995 (as amended), Art. 34(5).

161. Customary Marriage (Registration) Act, s. 32.
162. Constitution of Uganda 1995, Art. 59(1).
163. Contracts Act 2010, s. 11.
164. Davies v. Beynan Harris [1931] 47 TLR 424 as cited with approval in Abdul Basit Sengooba and
4 Ors v. Stanbic Bank (U) Ltd (HCT – 00 – CC – CS – 0184 – 2001) [2006] UGCOMMC 31 (5
Jul. 2006), available online at https://ulii.org/ug/judgment/commercial-court/2006/31.
165. Order 32 r.1 CPR SI 71-1.
166. Order 32 r.3 CPR SI 71-1.
167. Penal Code Act (as amended), s. 129(1).
168. Penal Code Act (as amended), s. 129 (4)(a).
169. In Re Adriko Reuben (a Minor) (Miscellaneous Civil Application No. 0008 of 2016) [2016] UGH-
CFD 10 (13 Jul. 2016), available online at https://ulii.org/ug/judgment/hc-family-division/2016/10.

85–88
Chapter 2. Registration of Civil Status

85. Registration for births and deaths is provided for under the Registration of
Persons Act.170 This Act was enacted in 2015 to harmonize and consolidate the law
on the registration of persons, provide for the registration of individuals, establish a
national identification register, and to establish a national registration and identifi-
cation authority.171 Every child or adult in Uganda is required to register with the
National Registration Authority and acquire a birth certificate,172 National Identity
Card, and a National identification Number (NIN).
86. The Act provides for the mandatory use of national identification cards for
accessing national services at any department or agency of government or any other
institution providing a public service.173 Some of the services for which a person is
required to produce a national identification card or alien’s identification number or
alien’s identification card include: (a) employment; (b) identification of voters; (c)
application for, and issuance of a passport; (d) opening of bank accounts; (e) pur-
chase of insurance policies; (f) the purchase, transfer and registration of land by any
individual or any transaction connected with the purchase, transfer and registration
of land; (g) pension and social security transactions; (h) all consumer credit trans-
actions; (i) payment of taxes; (j) financial services; and (k) registration services
87. The Registration of Persons Act imposes duties on several persons regard-
ing the mandatory registration of children. Under the Act, a parent, the occupier of
a house174 or guardian has a duty to apply for registration of a child by providing
details to the Registration Officer in the area where a child is born or found as soon
as the birth occurs.175 In case the birth occurs in a prison, hospital, orphanage, bar-
racks or quarantine station, the officer-in-charge of the facility shall cause notifica-
tion of the birth to be made.176
88. The law makes no exceptions for children born to Ugandan citizens outside
the borders of Uganda.177 It provides that such application for registration shall be
accompanied by evidence of the birth – (a) a certificate of birth issued by the appro-
priate authority in the foreign country, with an English translation of the certificate
if it is not in English; or (b) if a certificate of birth is not issued in the foreign coun-
try, a certificate of the birth given by the doctor, midwife or other persons who
attended to the birth, with an English translation of the certificate if it is not in
English.
170. Registration of Persons Act 2015, ss 28 & 41.

171. Ibid., Preamble.
172. Ibid., s. 39.
173. Ibid., s. 66(1).
174. Ibid., s. 31.
175. Ibid., ss 29 & 30.
176. Ibid., s. 31.
177. Ibid., s. 33.

89–91 Part I, Ch. 2, Registration of Civil Status
89. The Act also provides for registration of foundlings and imposes an obliga-
tion on any person who finds the child whose parents are unknown or any person
who is given to take care of such a child shall report immediately to the nearest
police station or health centre and thereafter, the person in charge of the police sta-
tion or health centre as the case may be, shall cause to be registered such particulars
concerning the birth of the child to a registration officer in the registration area, in
which the child was found.178
90. The Family Law in Uganda prohibits the registration of a father as father of
a child in contested cases, such as:
(a) at the joint request of the father and mother of the child appearing physically
before the registration officer;
(b) or upon the production to the registration officer of DNA tests results; or upon
the production to the registration officer of a court order establishing pater-
nity.179 The applicant is expected by law to bear the costs of the DNA test.
§1. MODE OF REGISTRATION OF BIRTHS
91. A person giving notice of the birth of a child shall give the particulars pre-
scribed by law, which shall be entered forthwith by the registration officer in the reg-
ister, and the person notifying the birth shall certify to the correctness of the entry
by signing or by affixing a mark to the register. The registration officer shall require
of every person entering any information in the register, that the said person pro-
vides the following particulars:
(a) in respect of birth; the name, sex, date, disability if any weight at birth, place
and district of birth;
(b) in respect of the mother; the name, age, marital status, usual residence, nation-
ality, NIN or Alien Identification Number for citizens and Aliens respectively;
the level of education, profession or occupation, and previous births;
(c) in respect of the father; the name, age, marital status, usual residence, nation-
ality, NIN or Alien Identification Number for citizens and Aliens respectively;
level of education and profession or occupation; and (d) in respect of the infor-
mant, the name, capacity, nationality, NIN or Alien Identification Number for
citizens and Aliens respectively; signature of informant, and date of notifica-
tion.
178. Ibid., s. 33(2).

179. Ibid., s. 35.

Part I, Ch. 2, Registration of Civil Status 92–94
§2. PRESUMPTION OF DEATH
92. Where it is proved that a person has not been seen and heard of for seven
years by those who might be expected to have seen or heard of him or her if the
person were alive, there shall be a rebuttable presumption that the person is dead.
Where one is presumed dead, any person who would have been under a duty is
required to give notice of the death of the person being presumed dead and may
apply for an order of a presumption of death in a court of competent jurisdiction.
The order, once issued, shall be served upon the Authority and shall have the same
effect as a certificate of death issued under this Act. The Authority is required to reg-
ister presumed deaths and enter therein all orders issued by the court and served
upon the Authority in respect of presumed deaths.180
§3. REGISTRATION OF MARRIAGE
93. Article 18 of the Constitution imposes an obligation on the Government of

Uganda to register all marriages that occur in Uganda. This mandate is exercised by
the Uganda Registration Services Bureau (URSB), a Government Agency respon-
sible for this function. The URSB administers all the laws relating to marriage in
Uganda and receives marriage returns from all registered places of worship. All
marriages are registered at the office of the registrar of marriages at the district
where the marriage is celebrated.
94. To register a marriage, one must go with at least two witnesses that attended
the ceremony. This requirement applies to all marriages recognized by the laws of
Uganda. Section 6(1) of Customary Marriages (Registration) Act requires the reg-
istration of a customary marriage within six months of the ceremony. The failure to
do so amounts to a criminal offence. Non-registration does not invalidate a custom-
ary marriage. In Negulu v. Serugga,181 Justice Godfrey Namundi, relying on the
Court of Appeal decision,182 ruled that non-registration of a customary marriage is
not one of the grounds for invalidation of such marriage.
180. Ibid., s. 47.

181. (Civil Appeal No. 103 of 2013) [2014] UGHCCD 64 (30 Apr. 2014).
182. Steven Bujara v. Polly T. Buyara, Civil Appeal 81/2002 (2001–2005) HCB Vol. 3 62–63.

95–95
Chapter 3. Personality Rights

95. Not Applicable.

96–100
Chapter 4. Names
§1. IMPOSITION OF A NAME
96. The law in Uganda does not provide any expectation towards any naming
conventions. By the usual practice, according to the cultures and religious beliefs in
the country, many Ugandans have a religious name and a local/surname. Christians
usually have a bible-based name as a religious name which is usually given at bap-
tism to mark the conversion or initiation to Christianity. Muslims and other reli-
gious orders have Islamic/religious first names. It is also typical for most Ugandans
to have surnames depicting their cultural background, clans/totems, the order of
birth, status as twins, a period of birth, or depicting a relative they are named after.
In Toro and Bunyoro cultures of western Uganda, there is a use of pet names which
become part of the official names used by the subjects of those kingdoms. In fact,
there are no restrictions as to the types of names a child can be given, nor are there
any specific laws on the composition of names one may have.
§2. CHANGE OF NAME OF AN ADULT
97. The Registration of persons Act, 2015 allows for change of name in Uganda.
The law provides that ‘Any person, being over the age of 18 years or a widower,
widow, divorced person or a married person, who wishes to change his or her name,
shall cause to be published in the Gazette a notice (deed poll) in the prescribed form
of his or her intention to do so’.183 This provision, though silent, has been acted on
by wives taking on their husband’s names after marriage.
98. The person intending to change his or her name is required to apply in the
prescribed form to the registration officer of the registration centre in which his or
her birth is registered for an amendment or change of name in not less than seven
days after the publication of the notice.184
99. The registration officer shall, upon being satisfied that the requirements of
this section have been carried out and upon payment of the prescribed fee, amend
the register accordingly and shall sign and date the amendment.
§3. CHANGE OF NAME OF THE CHILD
100. The parents or guardian of any child under the age of 18 years may apply
in the prescribed form to the registration officer of registration centre in which the
183. Registration of Persons Act 2015, s. 36(1).

184. Ibid., s. 36(2).

100–100 Part I, Ch. 4, Names
birth of the child is registered to change the name of the child.185 The registration
officer shall, upon payment of the prescribed fee, amend the register accordingly and
shall sign and date the amendment.186
185. Ibid., s. 37(1).

186. Ibid., s. 37(2).

101–104
Chapter 5. Nationality
101. Citizenship can be acquired through birth,187 descent, naturalization,188 or
registration. Uganda currently permits dual citizenship according to the Uganda
Citizenship and Immigration Control (Amendments) Act 2009. The 1995 Constitu-
tion of Uganda confers citizenship by birth on every person born in Uganda to one
of the parents or grandparents who is or was a member of any of the indigenous
communities existing and residing within the borders of Uganda as on the first day
of February 1926.189 Citizenship by birth is also conferred on all persons born in or
outside Uganda, one of whose parents or grandparents were at the time of birth of
that person a citizen of Uganda by birth.190
§1. CITIZENSHIP OF FOUNDLINGS
102. A child of no more than 5 years of age found in Uganda, whose parents are
not known, shall be presumed to be a citizen of Uganda by birth.191
103. A child under the age of 18 years neither of whose parents is a citizen of
Uganda, who is adopted by a citizen of Uganda shall, on application, be registered
as a citizen of Uganda.192
§2. CITIZENSHIP BY REGISTRATION
104. Uganda’s immigration law also permits the persons to apply for citizenship
by registration if they meet the conditions below:
(a) Every person born in Uganda at the time of whose birth neither of his or her
parents and none of his or her grandparents had diplomatic status in Uganda,
and neither of his or her parents and none of his or her grandparents was a refu-
gee in Uganda.
(b) A person who has lived continuously in Uganda since the ninth day of October
1962, shall, on application, be entitled to be registered as a citizen of Uganda.
(c) Every person married to a Uganda citizen upon proof of the legal and subsist-
ing marriage of three years.
(d) Every person who has legally and voluntarily migrated to and has been living
in Uganda for at least ten years or such other period prescribed by Parliament.
187. Constitution of Uganda 1995, Art. 10(1).

188. Ibid., Art. 12(1). The law has not provided any guidelines on the implementation of this provision
since the promulgation of the constitution.
189. Kanyeihamba, supra note 13.
190. Ibid., Art. 10(1)(b).
191. Ibid., Art. 11(1).
192. Ibid., Art. 11(2).

105–105 Part I, Ch. 5, Nationality
(e) Every person who, on the commencement of this Constitution, has lived in
Uganda for at least twenty years.193
§3. LOSS OF CITIZENSHIP BY REGISTRATION
105. A person may be deprived of his or her citizenship if acquired by registra-

tion on the following grounds: (a) If the citizen voluntarily spies on Uganda, (b)
joins the armed forces or security forces of a country hostile to, or at war with
Uganda; (c) acquires Ugandan citizenship by fraud, deceit, bribery, or having made
intentional and deliberate false statements in his or her application for citizenship.194
193. Ibid., Art. 12.

194. Ibid., Art. 14(a)-(d).

106–109
Chapter 6. Domicile and Residence

§1. DOMICILE
106. Under Ugandan Law, Domicile refers to the country in which a person is
or presumed to be permanently resident, the place of a person’s permanent home. It
is determined based on the physical fact of residence and the intention of remain-
ing.195 The Succession Act provides for domicile for purposes of determining the
law applicable in Succession matters. The only estates subject to the succession law
belong to persons who are domiciled in Uganda.196 The Succession Act distin-
guishes between persons of legitimate birth and illegitimate birth, whereby the
legitimate children acquire the domicile of their fathers197 while illegitimate chil-
dren acquire the domicile of their mothers.198
107. Regardless of this distinction, the legal position in Uganda has since been
altered to disregard references to illegitimate children. This followed in Kabali v.
Kajubi199 where it was held that all illegitimate children in Buganda are regarded as
children of the deceased unless somebody claims otherwise. It was on this premise
that the definition of children in the Succession Act was expanded to read; ‘child’,
‘children’, ‘issue’ and ‘lineal descendant’ including legitimate, illegitimate and
adopted children.200
108. Domicile does not refer to nationality, which is the relationship between the
state and an individual. The difference between nationality and domicile is empha-
sized in Robinah Erina Kagaya Kiyingi v. Doctor Aggrey Kiyingi,201 where the
court stated that domicile must not be confused with nationality, for the latter is
rarely a relevant factor where family matters are concerned.
109. The types of domicile recognized by law are domicile by origin, choice and
dependence. Children, persons of unsound mind and wives share the domicile of
parent/guardian, administrator or husband, respectively. This is dependent domicile.
This, in effect, means that none of this category of persons can acquire a domicile
of choice. The domicile of such a person depends on and changes with the domicile
of the person on whom they are legally dependent. Currently, a wife follows the
domicile of her husband.202 A woman acquires the domicile of her husband by mar-
riage if she had not the same before.203 In Joy Kiggundu v. Horrace Awori,204
Horace – the husband of the petitioner – was living and a resident of Nairobi in the
195. Robinah Erina Kagaya Kiyingi v. Doctor Aggrey Kiyingi, High Court Civil Appeal No. 41 of 2004.
196. Succession Act, s. 4.
197. Ibid., s. 6.
198. Ibid., s. 7.
199. [1944] 11 EACA.
200. Succession Act, s. 2(b).
201. High Court Civil Appeal No. 41 of 2004.
202. Section 15, Cap 162.
204. High Court of Uganda at Kampala, Divorce Cause No. 8 of 1998.

110–111 Part I, Ch. 6, Domicile and Residence
matrimonial home of the couple. The wife filed for divorce proceedings against her
husband on the grounds of adultery and cruelty in the High Court in Kampala. The
court, in answering the issue of domicile, held that a wife, as long as she is not judi-
cially separated from the husband, still shares the domicile with that of her hus-
band. As a result, the petition was dismissed because the husband not being
domiciled in Uganda, clearly ousted the High Court’s power to hear the divorce
petition in Uganda. This position was, however, successfully challenged in LAW
(U) V A.G as will be thoroughly discussed in the later chapters.
110. Uganda, as a commonwealth country, derives a lot of its legal principles

from the British common law. This position appears to have been derived from the
holding in Lord Advocate v. Jaffery.205 In this House of Lords’ case, a husband and
wife were domiciled in Scotland when the husband contracted a bigamous marriage
in Queensland with the consent of the wife, while the wife remained in Scotland
where she died. Proceedings were brought in Scotland to determine the domicile of
the wife. The Court of Appeal and the House of Lords held that the wife was domi-
ciled in Queensland even though she had never visited there. It should be noted
however that this provision has been proposed for amendment in the Succession
Amendment Bill of 2011, that is currently before parliament.
111. It is apparent that domicile is an important factor in divorce law. Section 2

of the Divorce Act prohibits the court from making any decree of dissolution of
marriage unless the petitioner is domiciled in Uganda at the time when the petition
is presented.206
205. (1921) 1 AC 146.

206. Joy Kiggundu v. Horace Awori (2001) KALR 374.

112–117
Chapter 7. Persons with Disabilities

112. In Uganda, all protections and rights that accrue to persons and children
under marriage equally apply to all Persons with Disabilities (PWDs). Article 31 of
the Constitution of Uganda guarantees the right of men and women of the age of 18
and above to marry and found a family with an entitlement to equal rights at mar-
riage, during the marriage and at its dissolution.
113. Section 36 of the PWDs Act 2006 expounds further on the tenets of the
right to include the right to a home and a family, a right to experience one’s sexu-
ality and to have sexual and other intimate relationships, a right to marry a spouse
of his or her own choice and found a family, a right to equal rights at, in and at the
dissolution of marriage, the freedom to decide the number and spacing of children
and a right to guardianship, trusteeship and adoption of children under the relevant
laws. It should, however, be noted that currently, the PWDs Bill 2018 has been
passed and is pending presidential assent.
114. The law further expressly protects the right of parents with disabilities from
being separated from their children and the right of children with disabilities to be
raised with their families.207
115. The right to marry and found a family for PWDs is also enshrined in inter-
national and regional instruments. The ACHPR and the Maputo Protocol, all of
which Uganda is a signatory to, guarantee the right of all persons above the age of
18 to found a family and enjoins State parties to take positive steps towards the real-
ization of the same.208
116. The United Nations (UN) Convention on the Rights of PWDs, which
Uganda ratified in 2008, enjoins state parties to take effective and appropriate mea-
sures in eliminating discrimination against PWDs in all matters relating to mar-
riage, family, parenthood and relationships on an equal basis with others.209 It
should further be noted that the Universal Declaration on Human Rights, the Inter-
national Convention on Civil Political Rights and the International Covenant on
Economic, Social, and Cultural Rights which provide for the right to family equally
apply to PWDs.
117. It is, however, worth noting that the realization of the right to found a fam-
ily for PWDs is continuously challenged and constrained by stigma, discrimination,
cultural beliefs and practices in the country, which overshadow the equal applica-
tion of the laws.
207. Constitution of Uganda 1995, Art. 31(d).

208. Article 18, African Charter on Peoples’ and Human Rights and Art. 6, African Union, Protocol to
the African Charter on Human and People’s Rights on the Rights of Women in Africa.
209. Article 23, The UN Convention on the Rights of Persons with Disabilities.

117–117 Part I, Ch. 7, Persons with Disabilities

118–119
Part II. Family Law
Chapter 1. Marriage
§1. DEFINING MARRIAGE
118. The term marriage is not defined under Uganda’s laws, but different types
of marriage are recognized, including Christian and Civil marriages both governed
by the MA Cap,210 the Customary marriage governed by the CMRA,211 the Islamic
marriage governed by the Marriage and Divorce of Mohammedans Act,212 and the
Hindu Marriage governed by the HMDA.213 It is important to note that the pro-
posed Marriage Bill of 2017,214 which is currently shelved in Parliament, seeks to,
among others, consolidate the legal frameworks governing marriages in Uganda
into one document as stated in its long title.215
119. However, a marriage may be understood as the voluntary legal union

between a man and a woman that grants them the legal status of husband and wife
from which they derive legal rights, duties and responsibilities.216 On its part, the
Christian and English understanding of a marriage as expounded by Osborn’s law
dictionary is that a marriage is essentially the voluntary union for life of one man
and one woman to the exclusion of all others, subject to the rules as to consanguin-
ity or affinity and capacity to perform the duties of matrimony prevailing in the
place of domicile of the parties, and subject to the formalities required either by the
law of England or the place where the marriage takes place.217 Notably, the broader
definition of the concept of ‘marriage’ as stipulated by Black’s law dictionary
210. Marriage Act, Cap 251.

211. Customary Marriage Registration Act, Cap 248.
212. Marriage and Divorce of Mohammedans Act, Cap 252.
213. HMDA, Cap 250.
214. This Bill emanated from Marriage and Divorce Bill, 2009, which was originally the Domestic Rela-
tions Bill, 2003.
215. The Bill defines a marriage a union between a man and a woman for life or until it is dissolved in
a manner acceptable by that form of marriage, and which is recognized under the laws of Uganda.
216. See, for example, Brian A. Garner, Black’s Law Dictionary 1059 (9th ed., 1989).
217. Roger Bird, Osborn’s Concise Law Dictionary (7th ed., 1983). Also see, Hyde v. Hyde (1866) LR
1 P&D 130 in which Lord Penzance stated that a marriage, as understood in Christendom, is a vol-
untary union for life of one man and one woman to the exclusion of all others.

120–121 Part II, Ch. 1, Marriage
embraces the various characteristics of the different forms of marriages in Uganda

which may be monogamous or potentially polygamous by its nature and legal impli-
cation.218
120. In Uganda, the right to marry and found a family is guaranteed under
Article 31(1) and (3) of the 1995 Constitution. The cited provisions state:
(1) Men and women of the age of 18 years and above have the right to marry
and found a family and are entitled to equal rights in marriage, during mar-
riage and at its dissolution.
(3) Marriage shall be entered into with the free consent of the man and woman
intending to marry.
121. The above provisions emphasize the fact that a marriage in Uganda is het-
erosexual,219 is to be contracted between adults of 18 years and above,220 must be
entered into voluntarily by the contracting parties,221 and that both women and men
must be treated equally at marriage, during marriage and even after its dissolution
either by a lawful order of a competent court or death of one of the parties.222
218. As will later be discussed, the Christian, Civil and Hindu marriage are monogamous by law
whereas customary and Islamic marriages are potentially polygamous.
219. Article 31(A) of the Constitution prohibits same-sex marriages and ss 145–146 of the Penal Code
Act, Cap 120 makes it an offence for any person to have carnal knowledge of another person
against the order of nature. Also see, the Anti-Homosexuality Act, 2014 which has since been
declared unconstitutional by the Constitutional Court in the case Oloka Onyango and Others v. The
Attorney General, Constitutional Petition No. 8 of 2014.
220. Ugandan law criminalizes sexual acts performed with a person below 18 years, the penalty for
which is life imprisonment if not accompanied by aggravating circumstances such as the perpetra-
tor being HIV positive or a serial offender, or where the victim is a person with disability. See, s.
129 of the Penal Code Act, Cap 120 as amended by the Penal Code (Amendment Act, 2007).
221. This is in conformity with a number of International and regional conventions duly ratified by
Uganda including: the Universal Declaration of Human Rights (UDHR) (Art. 16); the International
Convention on Civil and Political Rights (ICCPR) (Art. 23); Convention on the Rights of the Child
(Art. 19); The International Convention on Economic, Social and Cultural Rights (ICESCR) (Art.
10); the Convention on Elimination of all Forms of Discrimination against Women (CEDAW) (Art.
16); Declaration on the Elimination of Violence Against Women (DEVAW); The African Charter
on Human and Peoples’ Rights (ACHPR) (Art. 18); the African Charter on the Rights and Welfare
of the African Child (ACRWC) (Art. 21(2)), among others. All these conventions have been rati-
fied by Uganda and under Objective XXVII (i) (b) of the National Objectives and Directive Prin-
ciples of State Policy (NODSP) and Articles 287 of the Constitution, Uganda undertakes to respect
and observe its international and treaty obligations and undertakings.
222. These provisions must be read together with other provisions in the 1995 Constitution like: Article
2 upholding the Constitution as the supreme law of the land and declaring null and void any cus-
toms or laws that are inconsistent with the Constitution; Article 20 on inherent rights of all human
beings; Article 21 on the right to equality and non-discrimination on any ground including sex, gen-
der or social or economic standing among others; Article 22 on the right to life; Article 23 on pro-
tection of personal liberty; Article 24 on freedom from torture, cruel, inhuman and degrading
treatment; Article 25 on protection from slavery, servitude or forced labour; Article 26 on the right
of every person to own property either individually or in association with others; Article 27 on the
right to privacy of person, home and property; Article 30 on the right to education for all persons;
Article 31(2) requiring Parliament to make laws for the protection of the rights of widows and wid-
owers to inherit the property of their deceased spouses and to enjoy parental rights over their chil-
dren; Article 32 that requires Government to adopt measures for affirmative action for marginalized

Part II, Ch. 1, Marriage 122–125
Despite the fact that the institution of marriage is highly recognized in Uganda,
nearly 64% of Ugandan couples live, raise children, and acquire property in cohabi-
tation relationships which are void of adequate legal protection.223 For example, as
will be discussed later, while a person within the context of a formerly contracted
marriage acquires interest in the matrimonial property, a cohabiting partner must
first prove that they made a substantial contribution to the property in order for them
to acquire any interest in otherwise matrimonial property.224
§2. THE NATURE OF MARRIAGE
122. Under common law and the understanding of marriage in Christianity, a

marriage is between only two parties – that is, a man and woman for life. This is
visible as earlier noted in the judgment of Lord Penzance in the English case of
Hyde v. Hyde,225 where he stated:
I conceive that marriage as understood in Christendom was the voluntary union

for life of one man and one woman to the exclusion of all others.226
123. Four conditions can be drawn from this definition, which constitute the
nature and framework of specifically Christian and Civil marriages even in Uganda.
These include:
(a) The Marriage Must Be Voluntary
124. Here, the aspect of consent is introduced, providing that parties must con-
sent to marry each other. Article 31(3) of Uganda’s Constitution is to the effect that
marriage shall be entered into by the free consent of the man and woman intending
to marry. Some churches today require consent letters from parents and even HIV/
AIDS test results of the couple intending to marry. Yet, these are not legally stipu-
lated requirements. In fact, this church practice is currently subject of a
constitutional petition in Michael Aboneka v. Watoto Church Limited.227
(b) The Marriage Must Be for Life
125. The Christian background characterizing the nineteenth century courts of

England greatly influenced their judgments. A case in point was that of Hyde v.
groups on the basis of gender, age, disability among others; Article 33 providing special recogni-
tion of the rights of women, that women shall be accorded full and equal dignity with men inter
alia; Article 37 on the right to practice once culture, tradition, creed or religion; Article 40 on the
right to work and equal payment of equal work without discrimination inter alia.
223. See, for example, the UBOS, Uganda National Census Report 2014, p. 16.
224. See, for example, Hajji Musa Kigongo v. Olive Kigongo, High Court Civil Suit No. 295 of 2015.
225. (1886) LR 1 P and D 130.
226. Ibid.

Hyde.228 This particular condition seems to be based on the Gospel of Jesus Christ
to the effect that ‘what God has put together, no man may separate or put asun-
der’.229 However, with the changing circumstances in society, the law too has
evolved, hence providing for the recognized grounds for divorce to aggrieved par-
ties. Under section 4 of the Divorce Act Cap 249, for example, either party to a mar-
riage can file an application to the court seeking for dissolution of the marriage. This
section provides:
(1) A husband may apply by petition to the court for the dissolution of his mar-
riage on the grounds that since the solemnization of his marriage, his wife has
been guilty of adultery.
(2) A wife may apply by petition to the court for the dissolution of her marriage
on the grounds that since the solemnization of the marriage:
(a) her husband has changed his profession of Christianity for the profession
of some other religion, and gone through a form of marriage with another
woman, or
(b) husband has been guilty of:
(v) adultery coupled with cruelty;
(vi) adultery coupled with desertion, without reasonable cause for two
years or upwards.
126. However, the constitutionality of the differential application of the above

grounds to men and women was successfully challenged in Uganda Association of
Women Lawyers and Others v. Attorney General230 on the grounds that it was con-
trary to Articles 2, 20, 21, 24, 31, 32 and 33 of the 1995 Constitution as well as the
various international and regional instruments ratified by Uganda. This means that
each of the grounds for divorce specified under section 4 of the Divorce Act is now
equally applicable to both husband and wife.
(c) Marriage Must Be Monogamous
127. On their part, both the Christian and Civil marriages are required to be
monogamous. Section 10 of the MA clearly spells out the prerequisites to be ful-
filled by parties intending to marry. Under section 10(d), a party intending to enter
into either a Civil or Christian marriage must not be a party to a subsisting marriage
228. Supra note 29.

229. The Gospel of Jesus according to Mathew, Ch. 19 verse 6. This scripture reiterates the spirit in Gen-
esis Ch. 1 verse 24, which describes the marital relationship ‘a man leaves his father and mother
and is united with his wife, and they become one’.

with any other person under any other law. In addition, while contracting the mar-
riage, the marriage celebrant as per section 26 is required to notify the parties mar-
ried that their marriage is monogamous and for life until dissolved by order of court
or by death, and that should any person to the marriage marry another person while
this marriage is still subsisting, then such person shall commit the offence of
Bigamy.231 It is imperative to quote the celebrant’s words verbatim as provided in
section 26 of the MA:
Know you that by the public taking of each other as man and wife in my pres-
ence, and in the presence of the persons now here, and by the subsequent attes-
tation of that taking by signing your name to that effect, you become legally
married to each other, although no other rites of civil or religious nature shall
take place, and that this marriage cannot be dissolved during your lifetime,
except by a valid judgment of divorce; and if either of you before the death of
the other shall contract another marriage while this remains undissolved, you
will be thereby guilty of bigamy and liable to punishment for that offence.
128. Further, section 34 of the same Act also makes a marriage null and void if
either of the parties was married to any other person at the time of the marriage.232
In Paul Kagwa v. Juliet Muteteri,233 the marriage between the two parties was nul-
lified under section 12 of the Divorce Act on the grounds that the respondent, Juliet
was still party to a subsisting marriage prior to her purported union with the peti-
tioner, Paul Kagwa. This is also buttressed by section 36 of the MA that makes any
person having a valid subsisting marriage under the MA incapable of contracting a
customary marriage with any other person.
129. This was also the case in Patrick Namenkere v. Florence Mwanja,234 where
the court found that the customary marriage contracted between the Respondent,
Florence Mwanja, and the deceased was void ab initio since the latter was already
married under the MA. Hence, the Respondent was not only guilty of bigamy but
also adultery. Consequently, it was held that she could also not claim that the dis-
puted property was a matrimonial home protected under section 39 of the Land Act
and sections 5 and 6 of the Mortgage Act. Irrespective of the years she spent cohab-
iting with the deceased under the erroneous belief that a customary marriage sub-
sisted between them, she was merely a girlfriend and not a wife.
231. Also see, s. 41 of the Marriage Act which states that any person who commits bigamy is liable to
imprisonment for a period not exceeding five years.
232. Also see, s. 12(d) of the Divorce Act on grounds that nullify a marriage to include inter alia, where
one of the parties to the marriage had a subsisting marriage with another person.
233. Matrimonial Cause No. 23 of 2005.
234. Civil Appeal No. 37 of 2004.

130. Just like the Civil and Christian marriage, Hindu Marriage is also monoga-
mous.235 This type of marriage is common within the Indian communities in
Uganda. There is limited literature about it within the Ugandan context.236
131. However, in Uganda’s legal, social, cultural and religious contexts, the
practice of polygamy, which connotes the ‘state or practice of having more than one
spouse simultaneously’,237 is recognized under customary and Islamic marriages.
The predominantly patriarchal traditional African society permits polygyny, that is;
a man to have more than one wife,238 as opposed to its equivalent practice of poly-
andry where it is the woman having more than one husband.239 Premised upon this,
section 4(b) of the CMRA, Cap 248 clearly states that ‘a customary marriage is
potentially polygamous’.240
132. Sharia law, which governs Muslim marriages, is similar to customary mar-
riage in as far as both allow a man to have more than one wife. Moslem men, how-
ever, cannot exceed the stipulated number of four wives as provided by verse 4:3 of
the Quran and must ensure fairness between all their wives.241
(d) Marriage Must Be Between a Man and Woman
133. Although same-sex marriages or unions are recognized in some countries

like South Africa, Argentina, Australia, Brazil, Belgium, Canada, Austria and some
Federal states in the United States (US), Uganda recognizes only heterosexual mar-
riages. Article 31(2A) of Uganda’s 1995 Constitution explicitly prohibits same-sex
marriages.
§3. THE CAPACITY TO MARRY
134. For a marriage to be considered valid, both parties to it ought to have the
capacity to marry. That is, they must be of marriageable age of 18 years and not
related by consanguinity or affinity. The capacity to marry is dictated by four
grounds as represented below.
235. Section 2 of the HMDA, Cap 250 provides that a Hindu marriage may be solemnized if neither
party to the marriage has a spouse living at the time of the marriage. Also see, s. 6 which creates
the offence of Bigamy.
236. Find detailed discussion on Hindu Marriage on below.
237. Black’s Law Dictionary, supra, p. 1277.
238. Ibid.
239. Ibid., p. 1278.
240. Section 1(b) of the Customary Marriages Act defines a customary marriage as one that is cel-
ebrated according to the rites of an African community and one of the parties to which is a member
of that community.
241. Quran, verse 4:129.

(a) Age
135. Article 31(1) of the Constitution guarantees the right to marry and found a
family to men and women of 18 years and above. Any marriage involving a party
below the age of 18 years is thus void. The contradictions presented in the MA
(under sections 10(1), (b) and 15–17,242 the HMDA (section 2(1)(c)243 and the
CMRA under section 11(a) and (b) largely permit marriage of persons below the age
of 18 years, as well as the varying age to marry by the different Islamic sects.244
According to Sewaya, in most Muslim countries, the marriageable age for boys is
eighteen and for girls is sixteen. He opines that, according to the Quran, Islam con-
siders the age when a person has the capacity of exercising choice in matters of
sexual liking or disliking.245 These variations in the legal provisions have all been
cured by Articles 31 and 2 on the supremacy of the Constitution, and Article 274
that calls for the need to modify all laws to conform to the Constitution.246
136. In addition, a number of other legislations do exist to curb sexual relations

or abuse of persons below the age of 18 years. Previously, section 129 of the PCA
criminalized sexual intercourse with a girl under the age of 18 years. This section
was recently repealed by section 2 of the Penal Code (Amendment) Act (PCAA)
which criminalizes sexual relations with a child under 18 years.247 It thus states:
(1) Any person who performs a sexual act with another person who is below
the age of 18 years, commits a felony known as defilement and is upon
confliction liable to life imprisonment.
(2) Any person who attempts to perform a sexual act with another person who
is below 18 years commits an offence and is on conviction, liable to impris-
onment not exceeding eighteen years.
(3) Any person who performs a sexual act with another person who is below
the age of eighteen years in any of the circumstance including where the
victim is below 14 years; where the offender has HIV; where offender is a
parent or guardian of or a person in authority over the victim; where the
victim is a person with disability; and where the offender is a serial
242. Sections 15–17 provides for the consent to marriage by a parent or guardian of a person below 21
years who is a party to an intended marriage. Also see, s. 32 of the CMRA on a parent giving con-
sent to a customary marriage for a minor under 21 years intending to marry.
243. Section 2(1c) provides for the age to marry for bridegroom as 18 years and for bride as 16 years.
244. The Marriage and Divorce of Mohammedans Act does not set out the age for marriage in Islam.
The Quran 4:6 provides marriage age with age of majority.
245. Muhamud Sewaya, ‘State of Muslim Family Justice: A Critical Examination of the Law Governing
Muslim Marriages and Divorce in Uganda’ in M. Nassali (ed.), The Politics of Putting Asunder:
The Family, Law and Divorce in Uganda 301 (2017).
246. Article 274 of the Constitution states that the operations of the existing laws after the coming into
force of this Constitution shall not be affected by the coming into force of this Constitution. But
the existing laws shall be construed with such modifications, adaptations, qualifications and excep-
tions as may be necessary to bring into conformity with this Constitution.
247. Also See, s. 2 of the Children Act which defines a child to mean a person below the age of 18 years.
The Children (Amendment) Act No. 9 of 2016 and the Domestic Violence Act of 2010 all empha-
size the right to protect children against any form of sexual abuse.

offender, commits a felony called aggravated defilement and upon convic-

tion by the High Court is liable to suffer death.248
137. Commendably, the legislators were awake to the fact that both boys and
girls can be sexually abused. This broadens not only the definition of sexual act, but
also the fact that it can be unlawfully occasioned upon both girls and boys who need
equal protection under the law, and in accordance with Articles 20, 21, 31 and 34 of
the 1995 Constitution as well as recognizing that perpetrators can be both male and
female. Sexual acts were defined to mean and include:
(a) penetration of the vagina, mouth or anus, however slight, of any person by
a sexual organ,
(b) the unlawful use of any object or organ by a person on another person’s
sexual organ.249
138. In addition to the PCA and the PCAA is the proposed Sexual Offences Bill
(SOB), 2015. As stated in its long title, the objective of the bill is to consolidate laws
that relate to sexual offences, combat sexual violence, provide for the punishment
of perpetrators of sexual violence, and provide for the procedure and evidential
requirements during the trial of sexual offences.
139. Like the Children Act (CA), Cap 59, the bill defines a child as any person
below 18 years.250 It also makes it an offence for a person to engage in any sexual
acts with a person incapable of giving consent. According to the SOB, a person is
incapable of giving consent where he or she lacks the capacity to choose whether to
agree to a sexual act or is unable to communicate such choice to another person.251
In addition, clauses 23 and 24 of the bill also provide for the offence of defilement.
Like the PCAA, the SOB guarantees protection of both girls and boys against the
offence of defilement and also creates the offence of aggravated defilement as well
as criminalizing defilement between children.252
(b) The Rules of Consanguinity and Affinity
140. Ugandan law prohibits marriage within the prohibited decrees of consan-
guinity, which are reflected especially in all the marriages. Under section 10(c) of
the MA, parties to an intended marriage should not have any impediments of kin-
dred of affinity or any other lawful hindrance to the marriage. For instance, in
248. Uganda v. Agitayo Gilbert, High Court Criminal Case No. 177 of 2014 where the accused teacher
was charged but not convicted for aggravated defilement of his 15 year-old pupil (who disappeared
during proceedings and there was no further corroborative evidence due to insufficiency).
249. Section 2(7) of the PCAA. Also see, Uganda v. Tangit Martin, High Court Criminal Case No. 288
of 2006, where a guardian was charged and convicted for aggravated defilement of his niece who
was only 14 years of age.
250. SOB, clause 1.
251. Section 9.
252. Section 25.

Bruno Kiwuuwa v. Juilet Namazzi and Ivan Sserunkuma,253 the High Court blocked
the defendant’s marriage on the grounds that they were from the same clan and as
such fell within the prohibited decrees of consanguinity and affinity.
141. Section 34 of the MA makes a marriage null and void if parties to the mar-
riage were within the prohibited degrees of kindred or affinity.254 Furthermore,
under section 149 of the PCA, sexual relations between related persons amount to
the offence of incest.255
142. In relation to customary marriages, section 11(d) of the CMRA makes a

marriage void if the parties to the marriage are within the prohibited degrees of kin-
ship as specified in the second schedule to this Act, or where the marriage is pro-
hibited by the custom of one of the parties to the marriage. The prohibited degrees
of kinship are also specified under section 149 of the PCA.
143. In Islam, the prohibition of marriage on the grounds of consanguinity and

affinity is provided for under the Quran 4:23. According to Sewaya, the females that
are prohibited for marriage under the Quran 4:23 are classed into three groups:
(a) Consanguinity (Nasab): This included mother, daughter, sister, paternal aunt,
and maternal aunt, niece either on the side of the brother or sister.
(b) Fosterage (Al-Rida): Marriage with a woman to whom a man is related by fos-
terage is forbidden. Foster mother includes her mother, her foster mother and
the foster mothers of one’s parents.
(c) Affinity (Al-Musaharah): Marriage with a woman to whom a man is related by
affinity is prohibited, such as the mother-in-law, step grandmother, daughter-in-
law and stepdaughter.256
144. If the parties intending to enter into a marriage do not fall under any of the
prohibited degrees, then they are fully capable of getting married and founding a
family as per Article 31(1) of the 1995 Constitution of Uganda.
253. High Court Civil Suit No. 52 of 2006.

254. Marriage Act, s. 34(1). Also see, s. 11(d) of the CMRA that nullifies customary marriage between
persons within prohibited degrees of marriage as per the Second Schedule to the CMRA.
255. Section 149 of the PCA provides that, any person who has sexual intercourse with another person,
with whom to his or her knowledge, any relationships exist commits an offence and is liable for
seven years imprisonment or if that other person is below 18 years of age, to imprisonment for life.
The section provides for a detailed list of incestuous relationships to include: mother, mother’s
daughter, daughter, father’s mother, mother’s father, son’s daughter, daughter’s daughter, sister,
wife’s mother, wife’s daughter, father’s sister, mother’s sister, brother’s daughter, sister’s daughter,
father’s brother’s daughter, mother’s sister’s daughter, son’s wife, father’s wife, father, father’s son,
father’s father, mother’s father, son’s son, daughter’s son, brother, husband’s father, husband’s son,
father’s brother, mother’s brother, brother’s son, sister’s son, father’s brother’s son, mother’s sisters
son, daughter’s husband and mother’s husband.
256. Sewaya, supra note 245, p. 297.

(c) Existence of a Subsisting Marriage
145. If a party to marry already has a valid subsisting marriage, then they are
not capable of getting married under civil and church marriages due to its monoga-
mous nature.257 However, in the case of customary and Islamic Marriage, the par-
ties are capable of marrying under customary law and Islamic doctrines to more
than one person as these allow polygamy on the part of the husband as earlier dis-
cussed.
(d) Mental Capacity
146. It is the general position of the law that a person of unsound mind cannot
be capable of conjuring up consent to validly contract marriage and as such, a mar-
riage on these grounds is null and void. In fact, section 12 of the Divorce Act pro-
vides that unsoundness of mind is a ground for nullity of a marriage.258
147. However, this provision is contrary to Article 23 of the United Nations

Convention on the Rights of Persons with Disabilities (CRPD),259 Articles 20, 21,
31 and 35 of the 1995 Constitution,260 as well as section 36 of the Person with Dis-
ability Act, 2006. The cited section of the Act states that:
(a) A person with a disability has a right to own a home and a family and shall
be entitled,
(b) At the age of 18 years and above, to marry a spouse of his or her own
choice and found a family
(c) To equal rights at marriage, during marriage and at its dissolution.
148. These provisions guarantee the rights of PWDs to marry and also enjoy
their sexual relationships and establish a family. However, the enjoyment of this
257. Sections 10(d) and 34(1) of the MA; and s. 12 of the Divorce Act. See also, Paul Kaggwa v. Juliet
Muteteri, Matrimonial Cause No. 23 of 2005.
258. The authors recognize that the use of the terminology ‘unsound mind’ with reference to persons
with mental disabilities is derogatory in view of the transformations ushered in by the CRPD. Use
of derogatory language was held to be unconstitutional by the Constitutional Courts of Uganda in
Centre for Health, Human Rights and Development (CEHURD) and Iga Daniel v. The Attorney
General, Constitutional Petition No. 64 of 2011.
259. Article 23 calls upon State parties to take effective and appropriate measures to eliminate discrimi-
nation against persons with disabilities in all matters relating to marriage, family, parenthood and
relationships on an equal basis with others, so as to ensure that: (a) The right of all persons with
disabilities who are of marriageable age to marry and to found a family on the basis of free and full
consent of the intending spouses is recognized.
260. Article 20 guarantees the fundamental human rights and freedoms to all human beings which must
be respected by both the State and Non-State actors. Article 21 provides for equality of all persons
and non-discrimination on various grounds including disability. Article 31(1) states that any person
above 18 years (including persons with disabilities) has the right to marry and found a family, and
in addition, Art. 35 recognizes the fact that persons with disabilities have the right to respect and
human dignity, and the State and society shall take appropriate measures to ensure that they realize
their full mental and physical potential.

right to PWDs in Uganda, as earlier noted, is affected by stigma, discrimination,

marginalization and isolation.261 This is further exacerbated by the derogative lan-
guage – such as ‘persons of unsound mind’ – used in various domestic laws that
perpetuate societal stigmatization and discrimination. For instance, section 130 of
the PCA criminalizes sexual intercourse with a woman or girl knowing such woman
or girl to be an idiot or imbecile.262 While it seems that the section is meant to pro-
tect women and girls with mental disabilities from sexual abuse, its derogative lan-
guage, inconsideration of men and boys with mental disability and equally
susceptible to sexual abuse and its blatant denial of the enjoyment of one’s sexu-
ality, it has been criticized by a number of disability rights scholars and activists.
149. In Centre for Health, Human Rights and Development (CEHURD) & Iga
Daniel v. The Attorney General,263 section 130 of the PCA, inter alia, was chal-
lenged for contravening Articles 20, 21, 24 and 35 of the Constitution. The Con-
stitutional Court rightly held that the words ‘idiot’ and ‘imbecile’ that appear in
section 130 of the PCA are in contravention of the Constitution by reason of their
being derogatory, dehumanizing and degrading and are accordingly struck them out
from the section.
§4. FORMALITIES OF MARRIAGE
150. As earlier noted, there are five types of marriages recognized in Uganda.
The procedural formalities followed to celebrate a valid recognized marriage
depends on the type of marriage parties are contracting as discussed below.
a. The Church and Civil Marriage
151. The formalities for these marriages are stipulated in the MA as aforemen-
tioned. First of all, any party to the intended church or civil marriage is required to
give written notice of their intention to marry to the licensed marriage celebrant (of
the religious denomination) or the marriage Registrar.264 The notice is then entered
in a Marriage Notice Book.265 The Marriage Registrar or Celebrant will then be
required to place a copy of the notice in a conspicuous place for public viewing for
a period of twenty-one days but not over three months.266 After the lapse of twenty-
one days, the Registrar grants to the parties a Registrar’s Certificate in FORM C as
261. Zahara Nampewo, We Have a Right to Love: The Right to Marry and Reproduce for Women with
Disabilities in Uganda, 24 E. Afr. J. Peace & Hum. Rights 65 (2018).
262. Section 130 states that, any person who, knowing a woman or girl to be an idiot or imbecile has
or attempts to have unlawful carnal knowledge of her under circumstances not amounting to rape,
but which prove that the offender knew at the time of commission of the offence that the woman
or girl was an idiot or imbecile commits a felony and is liable on conviction to imprisonment for
fourteen years.
264. Section 6.
265. Section 8.
266. Section 9(2).

prescribed by law and the parties can contract the marriage before the expiry of
three months.267 Where the marriage is not contracted within three months, a fresh
notice is extracted and presented to the Registrar.268 However, parties may apply to
the Minister of Justice and Constitutional Affairs with justifiable reasons for the
waiver of required notice.269 Following this, the parties can celebrate their marriage
in a licensed place, by an authorized marriage celebrant of the religious denomina-
tion or Registrar270 and within the official hours of 10:00 am–4:00 pm at the Reg-
istrar’s office271 and in the presence of at least two witnesses.272 The law makes no
provision relating to the qualification of the witnesses. However, it is presumed that
they should be adults who have the capacity to understand their purpose as wit-
nesses. After solemnization of the marriage, the parties are given a signed Certifi-
cate of Marriage which is conclusive evidence of the marriage and a copy of the
same is filed and kept in the Registrar’s Office or Church.273
152. It should be noted that any person with justifiable grounds to object to the
intended marriage can lodge a caveat in the Marriage Notice Book before the issu-
ance of the Registrar’s certificate or celebration of the marriage.274 The Registrar is
then mandated to forward the matter to the High Court for further proceedings, and
the marriage can only be contracted after removal of the caveat by the court.275
Where the court finds that the caveat was lodged unjustifiably or on insufficient
grounds, it can order payment of compensation and redress to the injured party.276
153. With no further impediments to the marriage, the parties are free to cel-
ebrate their marriage after paying the prescribed marriage fees. Currently, the Civil
marriage fee is UGX 200,000 (USD 55) for nationals and USD 150 for foreign-
ers.277 In the case of Church marriages, the fee varies from one church practice to
another.
b. The Hindu Marriage
154. The HMDA defines a Hindu to mean a person who is a Hindu by religion
in any form, including a Virashaiva, a Lingayat and a follower of Brahmo, Prarthana
or Arya Samaj, or a person who is a Buddhist of Indian origin, a Jain or a Sikh by
267. Section 10.

268. Section 11.
269. Section 12.
270. Sections 20–22.
271. Section 22.
272. Section 26.
273. Sections 24, 25, 26, and 27.
274. Section 13.
275. Sections 14 and 15.
276. Section 16.
277. See, Uganda Registration Services Bureau, available online at https://ursb.go.ug/civil-registration
-fees/. (Accessed 12 Mar. 2019).

religion.278 A Hindu marriage is, therefore, a marriage celebrated between Hin-

dus.279 For parties to contract a valid Hindu marriage, the following conditions must
be satisfied: (a) neither party has a spouse living during the time of the marriage,
(b) both parties are of sound mind at the time of the marriage, (c) the bridegroom
has attained the age of 18 years and the bride the age of 16 years at the time of the
marriage, (d) where the bride has not attained the age of 18 years, the consent of
her guardian in marriage, if any, has been obtained for the marriage,280 (e) the par-
ties are not within the prohibited degrees of consanguinity281 unless the custom gov-
erning each of them permits of a marriage between them.282 Once these
prerequisites have been fulfilled, a marriage may be celebrated in accordance with
the customary rites and ceremonies of either party to the marriage.283 Where the cer-
emony includes the saptapadi, that is, the taking of seven steps by the bridegroom
and the bride jointly before the sacred fire, the marriage becomes complete and
binding when the seventh step has been taken.284 Where the marriage is celebrated
in the form of Anand Karaj, that is, the going around the Granth Sahib by the bride
and the groom together, the marriage becomes complete and binding as soon as the
fourth round has been completed.285 In Piarasingh and Havinder Singh v. Sukveer
Kaur,286 the court found that there was a valid hindu marriage contracted by
Sukveer and her deceased husband in accordance with the hindu rituals and accord-
ingly went ahead to confirm the grant of LOA to her.
155. Section 6 of the HMDA makes a marriage void if a former husband or wife
of either party to the marriage was living at the time of the marriage and the former
marriage was still in force, and the party who violates this section commits the
offence of bigamy.287 Similar to the civil and church marriage, this section puts
emphasis on the monogamous nature of Hindu marriages.
156. A Hindu marriage may be dissolved by proving the grounds set out in sec-
tion 8(1) of the Divorce Act, and such additional grounds as stipulated by section
8(2) of the HMDA. In Thakkar v. Thakkar,288 a divorce order dissolving the mar-
riage as a result of the husband’s adultery and desertion of the matrimonial home
was granted.
278. Section 1(b).

279. Section 1(c).
280. This section should be modified to conform to Art. 31 of the Constitution as earlier noted.
281. Sections 2(2a-f) and 3 provides for the relationships that fall with the prohibited degrees of con-
sanguinity.
282. Section 3 provides for those who can be guardians to the marriage and provide consent where the
bride is below 18 years. These include: (a) the father, whom failing; (b) the mother, whom failing;
(c) the paternal grandfather, whom failing; (d) the paternal grandmother, whom failing; (e) the
brother of full blood, whom failing; (f) the paternal uncle of full blood, whom failing; (g) maternal
grandfather, failing whom; (h) maternal grandmother.
283. Section 4(1).
284. Section 4(2).
285. Section 4(3).
287. HMDA, s. 6(1).

(c) The Customary Marriage
157. Formalities to a customary marriage follow the African customary prac-

tices or rites of the parties to the intended marriage.289 Section 1(b) of the CMRA
defines a customary marriage as a marriage celebrated according to the rites of an
African community and can be celebrated in any part of Uganda.290 Where the par-
ties are from different tribes, the customary practices of the woman will be fol-
lowed, as stated in Nassanga v. Nanyonga.291 However, key elements of contracting
a valid customary marriage are the exchange of ‘bride price’ or ‘bride wealth’ –
presently preferred terminology is ‘bride gifts’ – from the family of the groom to
the family of the bride.292 For a customary marriage to be valid, there must be full
and effective ‘payment’ of the complete bride gifts except where there is a waiver
by the family.293 In Haji Musa Kigongo v. Olive Kigongo,294 the court held that no
customary marriage took place since there was no evidence of the exchange of bride
gifts; thus, the two were not legally married. Similarly, in Ceaser Okumu v. Hellen
Dhugira & Anor295 where the issue before court was whether a customary marriage
contracted in accordance with the Alur custom existed between the parties, Justice
Twinomujuni held that since there was no evidence that there was any meeting of
elders or relatives who witnessed the introduction of the boy to the girl’s parents,
and payment of bride price in full, cohabitation resulting into three children alone
was not sufficient to constitute a customary marriage.
158. Once all the rituals have been performed, the marriage is legally recog-
nized, and the law requires that parties register the customary marriage with the Dis-
trict Registrar of Marriages.296 Upon registering the Marriage, the Registrar is
required to issue the parties with a Customary Marriage Certificate,297 which cer-
tificate shall be conclusive evidence of a customary marriage.298 Notably, in
Stephen Bujara v. Polly Twegye Bujara,299 the court clearly held that non-
registration of a validly contracted customary marriage does not invalidate the mar-
riage but attracts a fine. Although customary marriages may be polygamous, it is
worth noting that where a person contracts a customary marriage and subsequently
contracts a monogamous or Muslim marriage with another person, the validity of
289. Section 1(b) of the customary Marriage Registration Act and s. 4(a) provides that a customary mar-
riage can be celebrated in any part of Uganda.
290. Section 4(1).
291. [1977] HCB 314.
292. Mifumi (U) Limited & Anor v. The Attorney General, Constitutional Appeal No. 2 of 2014.
293. Ibid.
295. High Court Civil Suit No. 1 of 1997 as cited in Jennifer Mussamali v. Stephen Musamali, High
Court Civil Appeal No. 1 of 2007.
296. CMRA, ss 6–8.
297. Section 7.
298. Section 10.

the customary marriage is not affected, but the subsequent monogamous or Muslim
marriage will be void.300 Hence, all subsequent marriages must be contracted cus-
tomarily to be valid.
(d) The Islamic/Muslim Marriage
159. The Marriage and Divorce of Mohammedans Act Cap 252 does not pro-
vide details on how a muslim marriage should be contracted. Section 2 of the Act
recognizes the validity of marriages performed according to the rites and obser-
vances of the Mohammedan religion. In Ayoob v. Ayoob,301 the appellant, a Sunni
muslim, and the respondent, a Shiite Muslim, were married under the MA of Kenya
and later, on the same day, went through a ceremony of marriage according to
Mohammedan law. Later, the husband purported to divorce the respondent by
‘talaq’ and accordingly petitioned the High Court of Kenya seeking a declaration to
the effect that his marriage was lawfully dissolved. In dismissing the petition, the
court held that the marriage in question was not a ‘Mohammedan marrriage’ within
the meaning of the Mohammedan marriage Act, and could, therefore, only be dis-
solved during the lifetime of the spouses by a decree of divorce under the Matri-
monial Causes Act of Kenya, not by a ‘talaq’. According to Spry, J.A., a mere
ceremony purporting to be a marriage according to Islamic or customary law, fol-
lowing a Christian or civil marriage between the same parties, is not a marriage and
cannot as such replace the actual marriage. Furthermore, the consequences of mar-
riage and the reliefs available to the parties depend, in Kenya, upon the form of the
marriage ceremony and not on the faiths held by the parties. Therefore, a change of
faith does not affect those consequences or reliefs.302
160. The main source of Islamic law in this regard is the direct commands of
Allah in the Holy Quran and the Sunnah of the Prophet of Islam, Mohammad.303
Sunnah means a way of practice or rule of life and refers to the exemplary conduct
or the model behaviour of the Prophet Mohammad in what he said, did and
approved.304 In Islam, marriage is an act of worship and must be taken by those who
are able. As Sewaya explains:
Marriage in Islam is therefore, viewed as a means of emotional and sexual

gratification; a mechanism of tension reduction; a means of legitimate procre-
ation; an approach to inter- family alliance and group solidarity; an act of piety
and a form of ibadah (worship). It is also regarded as means by which a man
and woman can achieve companionship and mutual gratification in a way that
protects the moral fabric of society. Most importantly, it is a means by which
men and women can find peace and worship Allah.305
300. CMRA, s. 13.

301. [1968] EA 72.
302. Ibid.
304. Ibid., p. 292.
305. Ibid., p. 294.

161. The marriage ceremony is referred to as Nikah and provided for in Quran
Verse 24:32 that, ‘and marry those among you who are single or the virtuous one
among yourselves, male and female. If they are in poverty, God will give them
means out of his grace’. In this regard, there are also a number of set prerequisites
for the solemnization of a valid Islam marriage and these include:
(a) Marriage Is Heterosexual
162. Marriage in Islam must be between a woman and a man. Homosexuality or

same-sex marriages are clearly prohibited and considered a sin. Quran verse 7:80
states that ‘have you become so shameless that you commit such indecent acts as
no one committed before you in the world. You gratify your lust with men instead
of women. Indeed you are a people who are transgressors of all limits’.306 In addi-
tion, verse 4:3 provides that marry women who seem good to you.
(b) Age of the Parties to the Marriage
163. The MDMA makes no stipulation as to marriageable age of the parties.

However, the Quran identifies marriageable age with the age of majority, and this
differs from country to country or even Islamic sect. Under Verse 4:6 of the Quran,
it is stated:
And go on observing and testing the orphans until they reach the marriageable
age. If then you find them of sound judgment, deliver over unto them their
property and devour it not by squandering and in haste lest they should grow
up to demand it.
164. Notably, in Uganda’s case, this is cured by Articles 2 and 31(1) of the Con-
stitution that places the marriageable age of both men and women at 18 years. Any
sexual relations with a person below the age of 18 years amounts to the offence of
defilement as stipulated under section 2 of the Penal Code Amendment (PCAA) Act
No. 8 of 2007.307
(c) Capacity to Marry of Man and Woman
165. Both parties must be Muslims and freely consent to the marriage. Verse
2:221 states that ‘Nor marry your girl to unbelievers until they believe.’ Again, in
respect to the women, Verse 5:6 provides that ‘lawful to you in marriage are not
only chaste women who are believers but chaste women among the people of the
306. Quran Verse 7:80.

307. Section 129 of the Penal Code Act, Cap 120 is replaced with s. 129 of the PCAA which provides
under subsection (1) that any person who performs a sexual act with another person who is below
the age of 18 years, commits a felony known as defilement and is on conviction liable to impris-
onment for life. Subsection (2) provides that any person who attempts to have sexual intercourse
with any person below the age of 18 years commits an offence and on conviction, liable to impris-
onment not exceeding eighteen years.

Book revealed before your time when give them dower and desire chastity and not
lewdness nor secrete intrigues’. Furthermore, Verse 60:10 states that ‘they are not
lawful wives for the unbelievers nor are unbelievers lawful husbands’.
166. In addition to this, according to the Quran Verse 4:3, the prospective hus-
band should not have more than four wives already. Hence, a man who already has
four wives has no capacity to contract any additional marriage. Furthermore, in the
case of the woman, she should not be observing her Iddah period, that is, the wait-
ing period in case of death or divorce of her previous husband. And not be a woman
married to another man.308 In the case of divorce, Islam prescribes three months
waiting period309 and in the case of death of husband four months and ten days.310
This period also allows a woman to determine whether or not she is pregnant with
a child from a previous husband. Also, the woman must not be in her menstrual
period.
(d) Consent of the Parties to the Marriage
167. Marriage in Islam is a civil covenant, and the consent of both parties is
essential to the marriage. Hence, the contracting parties must have the capacity to
freely and voluntarily consent to the marriage in accordance with Article 31 of the
Constitution as well as the Quran. The Holy Prophet said, ‘the widow and the
divorced woman shall not be married until order or ordained, and the virgin shall
not be married until her consent is obtained’.311
168. In Ayoob v. Ayoob, the court further observed that under Islamic law, mar-
riage is a civil contract, not a sacrament and Islamic law would recognize a valid
marriage contracted in accordance with the civil law, the essential requirements and
the consent of parties being satisfied.312
169. Besides, Clause 24(1)(c) of the Administration of Muslim Personal Law

Bill, 2008 also provides for free consent of the man and woman intending to marry.
(e) Consent of the Wali (Guardian)
170. A Wali is a person from the woman’s side who performs the function of
offering on the woman’s behalf.313 Although the Wali’s consent is vital for the valid-
ity of the marriage, it does not override or replace the consent of the woman intend-
ing to marry. The Wali may include the natural father, paternal grandfather, brother
of the same father and mother, brother of the same father, nephew of the same father

309. Verse 2:228.
310. Verse 2:234.
312. Ibid.
313. Ibid., p. 303.

and mother, paternal uncle of the same father, son of the paternal uncle and ruler.
One must take note of the patrilineal nature/lineage of the Wali.
171. Verse 4:25 of the Quran provides for the consent of the wali (Guardian) of
the woman. It states: ‘So marry them with their guardian’s permission and give them
the marriage portion as wives, they being chaste, not committing fornication or hav-
ing illicit friendships.’
172. In Ockba (Ali Omer) v. Ockba (Aziza binti Ali Omer),314 the court reaf-
firmed that a woman could not marry without the consent of the Wali. Hence, the
father was entitled to an injunction restraining the daughter from marrying without
his consent.
(f) Witnesses to the Marriage
173. For a Nikah to be valid, there must be at least two male witnesses or one
male and two female witnesses, and they should listen to the words of proposal and
acceptance (Ijab and Qabul) clearly.315 The presence of the witnesses is considered
obligatory. If the marriage is witnessed by only women, then it is not valid. Section
8(1) of the Marriage and Divorce of Mohammedans Act (MDMA) requires two wit-
nesses to the marriage, although it does not specify the gender of these witnesses.
The role of the witnesses is to testify to the observance of the essentials of the mar-
riage like age, consent as well as mahr.
(g) Payment of the Mahr (Dower)
174. Dower is the gift from the husband-to-be to the wife-to-be. As stated in
Verse 4:4 of the Quran, Mahr is a token of love that is offered by the bridegroom to
the bride while contracting marriage with her. Mahr is to be paid by the husband or
his representative to the wife or her representative. This payment must be observed
and witnessed by the two witnesses. The Imam solemnizing the marriage or the
Registrar has to ascertain the amount of the dower or any part of it or the gift which
was agreed upon but not settled at the time of solemnization of the marriage.
Although the Quran does not state the amount of the Mahr, it is dependent on the
station of life of the parties. Versus 2:26 of the Quran provides that the rich accord-
ing to his means, and the strained according to his means. However, it is obligatory
that the bridegroom pays mahr to his bride. Upon dissolution of the marriage, the
wife is required to return the Mahr, except where the husband is guilty of a matri-
monial wrong.
314. [1957] EA 675. Also see, Re Howison’s Application [1959] EA 568.

315. Verse 2:282.

175. It is important to note that unlike mahr, dowry (bride wealth) is a gift given
by the bridegroom or his family to the bride’s family and it is non-refundable as held
in Mifumi (U) Ltd & Another v. Attorney General & Anor.316
(h) Prohibited Degrees of Marriage
176. The MDMA does not spell out the prohibited degrees of marriage. How-
ever, Verse 4:23 of the Quran provides for fourteen kinds of women that a man is
prohibited from marrying. They are categorized into three groups, that are:
(1) Women to whom the man is related by consanguinity (Nasab). These include
mother, sister, daughter, paternal aunt, maternal aunt and niece;
(2) Women to whom the man is related by fosterage (Al-Rida); and
(3) Women to whom the man is related by affinity (Al- Musaharah). These include
mother-in-law, step grandmother, daughter-in-law and step daughter.317
177. In addition to this, a man is forbidden to marry two sisters at the same
time318 or a married woman.319 Nor can a man marry a woman during her waiting
period (Iddah), neither can he marry a non-muslim woman as per Verse 2:220 of
the Quran. Furthermore, the practice of wife inheritance is also prohibited in Islam.
Verse 4:19 of the Quran provides that ‘O ye who believe! Ye are forbidden to inherit
women against their will.’ Furthermore, Verse 4:26-28 provides that, marry not
women whom your father have married. For this is a shame, a hateful and evil
way.320
(i) Publicity of the Marriage
178. Marriage must be solemnized in public since it is a public undertaking by

the parties of their love, unity for procreation and legitimacy of children and ensure
that third parties have no right to interfere with the conjugal relations of the married
couple. Verse 4:24 of the Quran emphasizes the need for publicity that ‘taking them
in the marriage not fornicating nor taking them for paramours in secret’.321
(j) Polygamy
179. Islam also permits the practice of polygamy within certain confines of
Islamic law. In Verse 4:3 of the Quran, it is provided that:
And if ye fear that ye will not deal fairly with the orphans, marry of the woman
who seems good to you, two or three or four. And if ye fear that you cannot do
316. Constitutional Appeal No. 02 of 2014.

318. Verse 4:23.
319. Verse 2:235.
320. Verse 4:46-28.
321. Verse 4:24.

justice (to so many), then one (only) or the captive that your right hand pos-
sess. Thus it is more likely that you will not do justice.
180. The Quran restricts the number of wives to four, and one must be able to
treat them all fairly. In addition to this, Muslim jurists have laid down conditions
for someone who wishes to take on more than one wife. The conditions include:
– He should have enough financial capacity to look after the needs of the addi-
tional wives.
– He must be equal and just to them all; each wife should be treated equally in ful-
filling their conjugal rights and other rights.
– When the wife is suffering from serious disease; when the wife is proved barren
after medical examination.
– When she is of unsound mind.
– During the period of war when men are killed and women are left behind; and
– If the man feels that he cannot do without a second wife in order to satisfy his
natural desire which is very strong and has got means to support her.322
181. In Abdallah Mohamed v. Jasmena Zaludova,323 the petitioner, a Tanzanian

citizen, and the respondent, a Czechoslovakian, contracted a civil marriage. Subse-
quently, the two converted to Islam and celebrated an Islamic marriage. While liv-
ing together, the petitioner decided to marry a second wife, and the respondent
objected to this. The issue, inter alia, was whether the petitioner had the capacity to
contract another marriage. The court held, inter alia, that upon conversion, the par-
ties celebrated an Islamic marriage; one of the salient features of Islamic marriage
is that it allows a plurality of wives. A Muslim husband is allowed to marry up to
four wives provided that he can maintain them sufficiently and impartially. In con-
clusion, non-compliance with these requirements renders a marriage invalid or void
ab initio.
§5. LEGAL EFFECTS OF MARRIAGE
182. Upon contracting a valid marriage, parties are entitled to various legal
rights, duties and responsibilities. However, these legal effects are not provided for
in Uganda’s legal framework. They are deduced from common law principles and
applied by Ugandan Courts.
(a) The Status of Being Married
183. Upon marriage, the parties acquire the legal status of being husband and
wife and recognized by the law. In the case of civil and church marriages, the prin-
ciple of monogamy is applicable. As such, upon marriage, a person is not allowed
322. Sewaya Muhamud, General Principals of Islamic Family Law (2006). Paper presented during Pub-
lic Lecture at the Faculty of Law, Makerere University, p. 11.
323. [1983] TLR 314.

to marry another person unless a decree absolute terminating the subsisting mar-
riage has been granted by the court or upon the death of a spouse. In Patrick Namen-
kere v. Florence Mwanja,324 the purported customary marriage between Florence
Mwanja and her deceased ‘husband’ was found to be a nullity since he still had a
subsisting church marriage contracted before the customary marriage which had not
been dissolved by the time of his marriage to Florence Mwanja or even his death.
Hence, the court held that Florence Mwanja, the respondent, had committed the
offence of bigamy with her deceased ‘husband’ and further that Patrick Namekere,
the petitioner, could take possession of the disputed house which was not a matri-
monial home and not protected under section 39 of the Land Act.325
184. Again, in Ayoob v. Ayoob, the respondent husband converted to Islam and
then subsequently contracted a Muslim marriage. He purported to terminate the ear-
lier Christian marriage with the petitioner by pronouncing the Muslim talaq (pro-
cedure of divorce) three times. The court found that his talaq could not terminate
the Christian marriage that is governed by the MA and Divorce Act and his subse-
quent Muslim marriage was void abinitio since he still had a valid and subsisting
Christian marriage.326 However, the principle of monogamy does not apply to cus-
tomary or Muslim marriages that are potentially polygamous, as seen in section 4(b)
of the CMRA and Verse 4:3 of the Quran, respectively.
(b) Right to Use the Husband’s Name
185. Like at common law, the wife has the right to use the husband’s name if
she so wishes. Based on solely patriarchal society, this has come to be recognized
by law and is often times, judicially noticed. On divorce, however, a wife can con-
tinue using her ex-husband’s name, and he is allowed a relief of placing an injunc-
tion on her if she uses it for fraudulent purposes. In Dr Specioza Wandira Naigaga
Kazibwe v. Eng. Charles Nsubuga Kazibwe,327 where following the grant of decree
absolute and order of divorce, the wife Specioza Kazibwe continues to use her
ex-husband’s name, Kazibwe, to date.
(c) Domicile
186. At common law, upon marriage, a wife acquired the domicile of her hus-
band known as a dependent domicile. This is well illustrated in Joy Kiggundu v.
Horace Awori328 in which the petitioner, Ms Joy Kiggundu, filed for divorce in the
High Court at Kampala against her husband who was resident in Nairobi where they
had their matrimonial home. In deciding that the High Court in Kampala did not
324. Supra note 234.

325. Section 39 of the Land Act prohibits any transaction on land on which a person ordinarily resides
with his or her spouse and from which they derive their sustenance, except with the prior written
consent of the spouse.
327. Divorce Cause No. 03/2003.
328. (2001) KALR 374.

have jurisdiction over the matter, the court observed that a wife could not acquire a
domicile of her own separate from that of her husband during the lifetime of the
husband even if they live apart.
187. However, the concept of dependent domicile of the wife has since been
challenged and found to be in contravention of constitutional guarantees set out in
Articles 21, 31, 32 and 33 and other regional and international human rights instru-
ments to which Uganda is a party that guarantee the equal rights of both women
and men. In Law and Advocacy for Women Uganda v. The Attorney General,329 the
petitioners challenged various sections of the Succession Act for falling short of the
constitutional benchmarks. Among the impugned provisions of the Succession Act
that were successfully challenged is section 15, which restricts dependent domicile
to wives only. Hence, clause 8 of the Succession (Amendment) Bill seeks to repeal
section 15 of the Succession Act in order to introduce domicile by choice of a wife.
188. In Margret Hough v. David Hough,330 which was a petition for dissolution
of marriage on the grounds of adultery and cruelty, the court in deciding whether
the parties were domiciled in Uganda to grant court jurisdiction to hear the divorce
petition, stated inter alia that:
In Uganda the Constitution in Article 21(2) prohibits discrimination on

grounds of, inter alia, sex while Article 33(1) states that a man and a woman
have equal rights at and in marriage, during marriage and at its dissolution. The
common law concept of dependent domicile is untenable in the face of the pro-
visions of equality and non-discrimination between the sexes, which are
enshrined in our constitution. In my view a married woman is free to opt for
and acquire a domicile of her choice independent of that of her husband. To
hold otherwise would in my view, be discrimination against the woman which
is unconstitutional.
189. Hence, in Uganda’s context, the concept of dependent domicile is now nul-
lified, and a married woman can now acquire a domicile of choice different from
that of her husband.
(d) Legitimacy of Children
190. At common law, a child born during the course of the marriage is deemed
to be a legitimate child of the husband and as such, has rights to the property of his
parents. Often times, questions about the legitimacy of children born out of wed-
lock are raised as was the case in Preston-Jones v. Preston-Jones.331 In this case,
the husband was away from the United Kingdom (UK) from 17 August 1945 to 2
September 1946. On 13 August 1946, the wife gave birth to a normal child, and the
husband brought a petition for dissolution of marriage on the grounds of adultery,
329. Constitutional Petitions Nos. 13/05 & 05 of 2006.

331. [1951] AC 391 [1951] 1 AER 124.

the allegation being based on the fact that a period of 360 days had elapsed and,
therefore, that the child must have been conceived in adultery. The court noted,
inter alia, that at common law, the presumption of legitimacy of children could only
be rebutted by proof beyond a reasonable doubt. Proof of adultery in matrimonial
proceedings was to be beyond a reasonable doubt, and the proof of adultery against
a wife may have the effect of bastardizing a child.
191. Neither the CA Cap 59 nor the Children Amendment Act, 2016 have any
specific provision relating to the question of illegitimate and legitimate children in
Uganda. Hence, reliance is premised on progressive court jurisprudence as illus-
trated in Anne Asiimwe Ndyomugyenyi v. Immaculate Asiimwe.332 Here, the plain-
tiff, Ndyomugyehyi, applied for LOA following the death of her husband. The
defendant, Asiimwe, being a mistress of the deceased with whom she had two chil-
dren, lodged a caveat to the grant of LOA. The defendant’s children were subjected
to DNA testing, which results proved conclusively that they were the deceased chil-
dren. Holding in favour of the plaintiff who was the lawful wife to the deceased and
entitled to LOA, Her Lordship Justice Catherine Bamugemereire emphasized that:
The above notwithstanding, the law in this country recognises not just lawful
marriages but ALL children born in and outside of the marriage. As a result all
children must be treated equally. In an intestate situation the distribution por-
tions are well legislated. It is therefore the duty of the Administrator to ensure
and effect a fair and equitable distribution of the estate of the deceased in order
make certain that each child gets what they are entitled to irrespective of
whether they were born in or out of marriage.
192. As such, in Uganda’s context, there is no divide between legitimate and

illegitimate children. Once a child is determined to be one’s child, whether born in
or out of wedlock is immaterial. Such a child has a right to enjoy parental respon-
sibility as spelt out in Article 31(4)333 and 34 of the Constitution334 and sections 4–5
of the CA.335
(e) Consortium
193. As a married couple, both husband and wife are entitled to a consortium or
conjugal rights. Although the right is not stipulated under any statutory law, it is
well recognized in Uganda’s jurisprudence. For instance, in Teopista Mugenzi v.
Pascal Mugenzi and Anor,336 the court observed that:

333. Article 31(4) states that it is the right and duty of parents to care for and bring up their children.
334. Article 34(1) states that subject to laws enacted in their best interest, children shall have the right
to know and be cared for by their parents or those entitled to bring them up.
335. Section 4 provides for the child’s rights to stay with his or her parents. Section 5 states that its shall
be the duty of the parent, guardian or any person having custody of the child to maintain the child
and in particular, the duty gives the child a right to education and guidance; immunisation; and
adequate diet.

By marriage the husband and wife are one person in law. Upon this principle
of union of person in husband and wife, depends on almost all legal rights,
duties and disabilities that either of them acquire by marriage. As a conse-
quence of marriage, the husband and wife are entitled to consortium which
includes a duty to cohabit together and share all the facilities, rights and obli-
gations that go with it. Consortium connotes as far as possible the sharing of
a common home and a common domestic life.
194. A spouse can bring an action against a third party for interference with his
or her right to peaceful enjoyment of consortium. This was illustrated in Nyabay-
ango v. Kabasinguzi and Anor.337 Here, the plaintiff, Nyabayango, brought an
action against the two defendants for violating his right to family and peaceful
enjoyment of his consortium as enshrined in Article 31(1) of the Constitution. His
course of action rested on the fact that the second defendant, Bukenya, had had an
extra-marital affair with his wife, Kabasinguzi, and the affair resulted in a child. He
claimed for damages and restitution of conjugal rights. Prior to the hearing of the
merits of the case, the defendant counsel raised a preliminary objection on a num-
ber of grounds, inter alia, the plaintiff’s lack of a cause of action against the second
defendant, and the fact that the plaintiff ought to have filed for the remedy of divorce
as opposed to restitution of conjugal rights.
195. In dismissing the preliminary objection, the court ruled, inter alia, that:
Article 31 of the Constitution provides for the rights of the family including
right to marry and fond a family, and to enjoy equal rights in marriage … the
plaintiff in this case seeks to enforce rights spelt out in the Constitution and
other existing Marriage and the Divorce laws … that the plaintiff sufficiently
disclosed a cause of action against the defendants … . Finally, regarding the
issue of remedy of restitution of conjugal rights as opposed to divorce petition.
The court noted that both remedies are provided for under the Divorce Act, par-
ticularly section 20. The plaintiff has the right to choose the nature of case to
be filed against which party, depending on the nature of injury he/she has suf-
fered and what available legal remedy he/ she wished to pursue.
196. The restoration of conjugal rights is provided for under section 20 of the
Divorce Act, but an order of specific performance or execution may not be issued
since conjugal rights must be enjoyed voluntarily and without coercion, as seen in
Uganda v. Yiga Hamidu & Others.338
(f) The Right to Maintenance
197. Like at common law, the husband has an obligation to maintain his wife/
wives as the case may be. And, a wife can actually enforce this right if violated
through enforcing her right of agency of necessity.

338. Criminal Session Case 005 of 2002.

198. In Teopista Magenzi v. Pascal Magenzi & another,339 the court held that
both in law and Ugandan custom a man (husband) has a legal duty to provide a
home for his wife and children; a wife can thus obtain an injunction to stop him
from interfering with that right.
199. Besides, sections 23–25 of the Divorce Act previously permitted courts to
order payment of alimony upon the grant of divorce or separation order by the hus-
band to the wife. In Ajanta Thakkar v. Thakkar,340 the court granted an order of
divorce on the grounds of a change of religions and adultery by the respondent hus-
band as per section 8 of the HMDA and section 4 of the Divorce Act. The court fur-
ther ordered that the respondent husband would pay an annual sum of USD 1,800
as alimony to the petitioner for as long as she remained unmarried.
200. However, this section has since been declared unconstitutional in light of
Articles 21, 31(1) and 33 of the Constitution. It was argued that by providing for,
only the husband being liable to pay alimony to the wife upon divorce, the section
violated principles of equality of parties and non-discrimination at marriage, during
marriage and at its dissolution.341 Although no legislative reform has been under-
taken by Parliament, the current practice is that even husbands can now pray for ali-
mony from a wife. It is important to note that the Marriage Bill, 2017 seeks to adopt
the amended position and clause 151 recognizes the right of spouses to receive
maintenance and lose the right upon remarriage. It stipulates that the right of an
ex-spouse to receive maintenance shall cease immediately upon remarriage.
201. Such proposed reforms are premised in the guarantees of equal rights of
both men and women (husbands and wives) as set out in Articles 21, 31 and 33 of
the Constitution. However, in spite of the proposed and progressive reform, it is
uncommon for a husband to demand alimony or maintenance from his wife upon
separation or divorce and this is embedded in the dictates of our largely patriarchal
society.
(g) Right to the Matrimonial Home and Properties
202. Upon marriage, parties acquire an equal interest in the matrimonial prop-
erty, including the matrimonial home. In Kintu v. Kintu,342 courts defined the mat-
rimonial home thus:
Matrimonial property is understood differently by different people. There is

always property which the couple choose to call home. There may be property
which may be acquired separately by each spouse before or after marriage.
Then there is property which a husband may hold in trust for the clan. Each of

341. Uganda Association of Women Lawyers & Ors v. The Attorney General, Constitutional Petition No.
2 of 2003.
342. High Court Divorce Appeal No. 135 of 1997.

these should in my view be considered differently. The property to which each

spouse should be entitled is that property which the parties chose to call home
and which they jointly contribute to.343
203. This definition was subsequently adopted by the Supreme Court in the
landmark decision of Julius Rwabinumi v. Hope Bahimbisomwe344 where Justice
Kisakye held, inter alia, that:
In my view the Constitution of Uganda (1995), while recognizing the right to

equality of men and women in marriage and its dissolution, also reserved the
constitutional right of individuals, be they married or not to own property
either individually or in association with others under Article 26 (1) of the Con-
stitutional of Uganda (1995). This means that even in the context of marriage
the right to own property individually is preserved by our constitution as is the
right of an individual to own property in association with others who may
include a spouse, children, siblings or even business partners. If indeed the
framers of our Constitution had wanted to take away the right of married per-
sons to own separate property in their individual names, they would have
explicitly said so.
204. Kisaakya JSC went on to state:
Then the courts will continue to determine each case based on the Constitution
of Uganda, the applicable marriage and divorce law in force at the time in order
to make determination whether the property in question is marital property or
individual property acquired prior to or during the marriage and to determine
whether such property should be divided either in equal shares or otherwise, as
the facts of each case would dictate.
205. These decisions are anchored in Article 26 which guarantees the right to
own property individually or in association with others and Article 31(1) that calls
for the equal rights of married parties at marriage, during marriage and upon its dis-
solution. Hence, a number of recent decisions have followed the Supreme Court
decision and divide matrimonial property equally between spouses upon dissolution
of the marriage.345
§6. MATRIMONIAL PROPERTY IN ISLAM
206. With respect to Muslim marriages, the MDMA lacks guidance on the man-
agement of property during the marriage or the issue of sharing of the matrimonial
343. Ibid.
345. Basheija v. Basheija & Anor, High Court Divorce Cause No. 12 of 2005, Chris Bakiza v. Esther
Nanfuna, High Court Divorce Cause No. 22 of 2011.

property upon divorce. But, Islam recognizes the right of both women and men to
own property in their own right or jointly and derive earnings from it. Verse 4:32 of
the Quran states that:
unto men a fortune from that which they have earned, and unto women a for-
tune from which they have earned (envy not one another) but ask Allah of His
bounty.
207. Sewaya asserts that the verse cited above clearly indicates that both men
and women have absolute rights over the fortune they have earned. It implies that
a man or woman has the capacity to earn a living through their respective efforts.346
In the circumstances of exercising a wife’s right as an agent of necessity, Sewaya
explains that Sharia law permits a wife to spend her husband’s money on food and
clothing as are necessary for them and their children according to their means. The
wife cannot, however, waste things or sell them privately without the knowledge of
her husband.347
208. In summation, these legal effects of marriage are not a preserve of only the
Civil, Church, Hindu or Customary marriages alone. Although it is not stated in any
statutory law, the same rights and obligations are enjoyed by parties in a Muslim
marriage as well. Where the practice differs, especially in the case of Muslim mar-
riages, such practice or law must conform to Articles 2, 21, 26, 31, 32, 33 and 34
of the Constitution.
209. Sewaya reaffirms the existence of rights and obligations for parties in Mus-
lim marriages and thus observes:
Islamic marriage recognises the existence of mutual rights and obligations

between principals. Chief among these is its emphasis on the need for mutual
love and respect between a husband and wife. Peace and satisfaction in life of
the married couple mostly depend on their mutual good relationship. Men are
specifically commanded to treat their wives with respect and kindness.348
210. Premised upon this command is the duty of the husband to provide for his
wife and the wife to submit to her husband. It is also the duty of both parties to
ensure the absolute enjoyment of each other’s consortium. Verse 31:21 of the Quran
states that ‘He created for you mates from among yourselves that you may dwell in
tranquillity with them and He has put love and mercy between your hearts.’ Again,
Verse 7:189 provides that ‘He is who created you from a single being, and of the
same did he make that he might find comfort in her.’ Also, Verse 2:223 indicates
that ‘your wives are your tilth, go then unto your tilth, as you may desire’.

347. Ibid., p. 337.
348. Ibid., p. 311.

211. Sewaya further opines that there are various rights that must be enjoyed by
husband and wife and these include: the right to enjoy each other; the right to inherit
from each other; the right of confirmation of the lineage of their children; specific
to the husband is the right to be the head of the household; to have mutual relations
and to be notified prior to the wife leaving home.349
212. However, similar to the common law position of voluntary enjoyment of

conjugal rights and exercise of obligations,350 the enjoyment of conjugal rights in
Islam is not absolute and must not be exercised forcefully. There are circumstances
where even Islam permits the limitation on the enjoyment of these rights. These
include: during menstrual period of the woman;351 after the birth of a child until the
stoppage of blood; and during the hour of fasting from pre-dawn to dusk, with the
exception of night hours in the month of Ramadhan.352
§7. VOID AND VOIDABLE MARRIAGES
213. A marriage is a contract by nature and as such circumstances may arise that
make it void or voidable. Once a marriage is declared void by a court, it is regarded
as it never existed in the first place; it is ab initio and requires no court order for its
nullity. A voidable marriage, on the other hand, is one that is valid and subsisting
until it is nullified by the court.
214. As explained by Lord Greene MR in De Reneville v. De Reneville,353 ‘a

void marriage is one that will be regarded by every court in any case in which the
existence of the marriage is in issue as never having taken place, and can be so
treated by both parties to it without the necessity of decree of annulling it. On the
other hand, a voidable marriage is one that can be treated by every court as a valid
subsisting marriage until a decree annulling it has been pronounced by a court of
competent jurisdiction’.
215. In Uganda’s context, nullity of marriage was granted in Paul Kagwa v.

Juliet Muteteri,354 where at the time of the parties’ civil marriage in 1983, there was
still a valid and subsisting church marriage between the respondent and one Wilson
Karakire which was contracted in 1976. The respondent had alleged that the said
Karakire had died prior to the subsequent marriage, but there was no sufficient evi-
dence to prove that. Hence, the court found the marriage between the petitioner and
respondent void ab initio and granted the decree of nullity in accordance with sec-
tion 12(d) of the Divorce Act.
349. Ibid., p. 312.

350. See, for example, R v. Jackson [1981] QB 671 and R v. Reid [1973] QB 299 which held against the
forceful confinement of a wife for purposes of enforcing conjugal rights.
351. Verse 2:222 states that ‘it is an illness, so let women alone at such times, and go not unto them till
they are cleansed’.
353. [1948] 1 ALL ER 56.
354. High Court Matrimonial Cause No. 23 of 2005.

216. The grounds for a void or voidable marriage are deduced from statutory
law and court jurisprudence as will be discussed. However, it should be noted that
a voidable marriage may be approbated. Approbation occurs where one of the par-
ties has knowledge of the facts making the union voidable and proceeds to conduct
himself as though the other party is innocent. He may be estopped from revoking
the marriage. An example was the case in W v. W355 where the Court of Appeal
decided that adoption of the child jointly by the spouses constituted approval by the
husband of the marriage unconsummated because of the incapacity of the wife.
217. However, there is no law in Uganda that spells out the grounds for the
approbation of a marriage. Reliance is based on common law and judicial deci-
sions.
218. The grounds for void or voidable marriage may vary depending on the type
of marriage contracted by the parties and the law governing it as discussed below.
(a) The Church and Civil Marriage
219. The MA provides grounds upon which a church or civil marriage can be
null and void. These grounds are provided in sections 34–36 of the MA and sec-
tions 11 and 12 of the Divorce Act. Section 34(1) of the MA provides that:
1. No marriage in Uganda shall be valid which, if celebrated in England,
would be null and void on the grounds of kindred or affinity, or where
either of the parties to it at the time of celebration of the marriage is mar-
ried by customary law to any person with whom the marriage is had.
2. A marriage shall be null and void if both parties knowingly and wilfully
acquiesce in its celebration–
a) in any place other than the office of the registrar of marriages or a
licenced place of worship, except where authorised by the minister’s
licence;
b) under false name or names;
c) without the registrar’s certificate of notice or minister’s licence duly
issued; or
d) by a person not being a recognised minister of some religious denomi-
nation or body or a registrar of marriages.
220. With reference to the Divorce Act, a wife or husband can present a petition
in court praying for a declaration that their marriage is null and void.356 Section 12
of the Act then spells out the grounds for nullification of the church or civil mar-
riage. These include where:
a) the respondent was permanently impotent at the time of the marriage;
355. (1952) 1 AER 858 as cited by Dominick Losak Family Law Reform in England, 8(4) William and
Mary Law Review (1967), p. 596.
356. Section 11.

b) the parties are within the prohibited degrees of consanguinity, whether

natural or legal or affinity;
c) that either party was an idiot or lunatic at the time of the marriage;
d) that the former husband or wife of either party was living at the time of the
marriage, and the marriage with the previous husband or wife was then in
force;
e) that the consent of either party to the marriage was obtained by force or
fraud, in any case in which marriage might be annulled on this ground by
the law of England;
2) If the court finds that the petitioner’s case has been proved, it shall pro-
nounce a decree nisi declaring the marriage to be null and void.
221. Furthermore, section 13 of the CMRA makes any monogamous marriage

or Muslim marriage contracted during the subsistence of a valid customary mar-
riage null and void.
(b) Customary Marriage
222. With respect to customary Marriages, section 11 of the CMRA stipulates

that a marriage is void where:
(a) the female party to it has not attained the age of 16 years;357
(b) the male party to it has not attained the age of 18 years;
(c) one of the parties to it is of unsound mind;
(d) the parties to it are within the prohibited degrees of kinship, or the marriage is
prohibited by the custom of one of the parties to the marriage;
(e) one of the parties has previously contracted a monogamous marriage which is
still subsisting.
223. In Elizabeth Nalumansi v. Jolly Kasande and 2 others,358 the plaintiff

(appellant) brought an action for grant of LOA to the estate of Wilberforce Wamala,
her husband, who died on 2 February 2012. The plaintiff contracted a monogamous
marriage with the deceased in the UK in 1992, where they lived and had one child.
Subsequently, the deceased returned to Uganda and eventually in 1999 contracted a
customary marriage with the first defendant (respondent) with whom they had four
children. Sometime in 2010, the plaintiff and the deceased renewed their marriage
vows. Upon the death of the deceased, the plaintiff applied for LOA. The defen-
dants (respondents) lodged a caveat on the grounds that the plaintiff was not the
wife and widow of the deceased and hence, was not entitled to benefit from the
estate nor obtain LOA. The issues to be determined by the Supreme Court, inter
357. Note that s. 11(a) and (b) should be read together with Arts 2, 31 and 274 of the Constitution to
mean 18 years of marriage for both the girl and boy.
358. Elizabeth Nalumansi Wamala v. Jolly Kasande & 2 Others, Supreme Court Civil Appeal No. 10 of
2015.

alia, were whether the plaintiff (appellant) was the lawful wife of the deceased and
whether the customary marriage was valid.
224. Learned Justice Tibatemwa-Ekirikubinza, citing section 11(5) of the Cus-

tomary Marriages (Registration) Act, found that there was a valid marriage between
the plaintiff (appellant) and the deceased and the subsequent customary marriage to
the respondent was null and void. She held:
I have already made a finding above that a valid marriage existed between the
deceased and the appellant. It is not on record that the marriage between the
appellant and the deceased was dissolved prior to the deceased contracting a
customary marriage with the 1st respondent. It therefore follows that the
deceased did not have the capacity to enter a valid customary marriage with
the first respondent. In the circumstances, I find that the High Court and the
Court of Appeal were erroneous in law.
(c) Islamic Marriage
225. Although the MDMA does not clearly spell out the grounds for void or
voidable marriage, reliance is made on the dictates of the Quran and Sharia law.
Sewaya emphasizes that a Muslim marriage is void ab initio where all conditions
necessary for the validity of a Muslim marriage as above discussed are not com-
plied with.359 The concept and application of voidable marriage are unknown in
Islam.360
(d) Hindu Marriages
226. The HMDA spells out a few circumstances that may result in the nullifi-
cation of the Hindu marriage. Section 6(1) of the Act that provides for the offence
of bigamy also states that a marriage solemnized at the commencement of this Act
shall be void if the former husband or wife of either party was living at the time of
the marriage and the marriage of the former husband or wife was then in force. The
decree of nullity and declaration of void marriage may further arise where the con-
sent of the guardian was obtained by force or fraud.361
227. Interestingly, unlike the grounds provided in other forms of marriages, the
HMDA prohibits an order of nullification of marriage where the parties are within
the prohibited degrees of consanguinity unless the custom governing each party
does not permit a marriage between them;362 and, second, where a marriage existed

360. Interview with Sewaya conducted on the 17 Jan. 2019.
361. Section 8(3c).
362. Section 8(3a).

before the commencement of this Act, and the former wife or husband of either
party was still living at the time of the marriage, and the marriage with the previous
husband or wife was still in force.363
§8. VOIDABLE MARRIAGES
228. Except for Muslim marriages that have no recognition of the concept of
voidable marriages, the various laws that govern Civil, Church, Customary or Hindu
marriages recognize the notion of voidable marriage but do not spell out the cir-
cumstances under which such a marriage may be voidable. Hence, these grounds
are derived from common law jurisprudence and include circumstances where one
of the parties to the marriage does any one of the following:
a) Unreasonably refuses or is unable to consummate the marriage after its sol-
emnization;
b) Is permanently impotent, and the fact was unknown to the other innocent
party prior to contracting of the marriage.
c) One of the parties conceals a material fact which would have altered the
innocent parties’ interest in contracting the marriage;
d) Where there is a gross misrepresentation that vitiated the innocent parties’
consent to the marriage.
e) Where consent to the marriage was not obtained voluntarily in accordance
with Article 31(3).
229. Notably, the Marriage Bill 2017 proposes a codification of all grounds that
make a Civil, Church, Customary, Hindu and Bahia marriages void or voidable. In
the case of void marriages, the proposed grounds include: where all parties are
within the prohibited degrees of marriage; either party was of unsound mind at the
time of the marriage; either party at the time of the marriage had not attained 18
years; either party at the time of the marriage had a living spouse, and the marriage
with the living spouse is still subsisting; the consent of either party to the marriage
was obtained by duress or fraud; or where the intended marriage is between persons
of the same sex.364
230. In the case of grounds for a voidable marriage, the bill proposes that where
one of the parties to the marriage unreasonably refuses to consummate the marriage
for a period of three months from the time of the marriage; is unable to consum-
mate the marriage within six months of the marriage; is permanently impotent and
the fact was not known to the other party at the time of contracting the marriage or
conceals a material fact.365
363. Section 8(3b).

364. See, clause 37 on civil marriages; clause 57 for church marriage; clause 75 for customary mar-
riage; clause 94 for Hindu marriage; and clause 109 for Bahai marriage.
365. See, clause 38 on civil marriages; clause 58 for church marriage; clause 76 for customary mar-
riage; clause 95 for Hindu marriage; and clause 110 for Bahai marriage.

231–235
Chapter 2. Divorce
§1. WHAT IS DIVORCE?
231. While it is hoped that couples will be happy in a lasting marriage, the real-
ity is that sometimes marriages do not work out, and the spouses may choose to
separate or divorce. Divorce can be described as the permanent termination or dis-
solution of a legally valid marriage by a court of competent jurisdiction. It only
applies to legally recognized marriages. The divorce must be made during the life-
time of both spouses, and both parties must have equal rights during the dissolution
of marriage either by divorce or death.
232. Separation, on the other hand, is a situation where a husband and wife stay
away from each other for a given period either because they have agreed (Separa-
tion by Agreement) or because the court has ordered the separation (Judicial Sepa-
ration). Separation does not end a marriage, but only suspends certain rights of the
husband and the wife. The husband and wife are still considered to be married. Nei-
ther can marry another person during the separation.
233. Divorce in Uganda is governed by a fusion of legal regimes – civil/

Christian, customary, Islamic and Hindu – running simultaneously to each other.
The application of a particular regime is determined by the nature of the marriage
contracted by the parties. Divorce in Uganda was introduced into the law in 1904
by the Divorce Act Cap 249, the 1961 HMDA Cap 250, the 1906 Marriage and
Divorce of Mohammedans Act Cap 252, and the Customary Marriages (Registra-
tion) Act Cap 248. The focus of this section will majorly be on the Divorce Act Cap
249, although other legal regimes will also be touched upon.
234. It is important to note, however, that the various listed legal regimes are not
comprehensive and are supplemented by case laws arising from court’s application
of the legal principles set out by each law to the circumstances of each case and
largely influenced by Common Law. Resultantly, this section will also summarize
judicial precedents as they apply to divorce in Uganda. However, by allowing unfet-
tered judicial discretion, divorce law is quite turbulent and unclear. It is, therefore,
commendable that there are attempts to reform the law in this particular respect
through a Bill, the Marriage Bill 2017.
§2. HISTORY OF DIVORCE LAW IN UGANDA
235. The Divorce Act has got its origins in the Matrimonial Causes Act of 1857
of England as well as roots in the common law of England. According to these, a
valid marriage could only be terminated by the death of one of the parties to it or
by a divorce decree pronounced by a court of competent jurisdiction. The Matrimo-
nial Causes Act 1857 provides that a party to marriage could obtain a decree of
divorce on proving that the spouse had committed a matrimonial offence. The only

236–238 Part II, Ch. 2, Divorce
offence that entitled a husband to obtain the decree was adultery.366 For a wife, it
was not enough for her to prove adultery against her husband. She had to prove that
he was guilty of aggravated adultery (which meant adultery plus another offence,
e.g., incest, bigamy, cruelty, desertion, etc.), or he had changed his faith from Chris-
tianity to some other faith and gone through a form of marriage with another
woman.367
236. Despite the fact that the English have since reformed their law and aban-
doned the concept of divorce granted on the basis of proof of matrimonial offences,
the 150 years-old English Law is still intact and in force in Uganda. Interestingly,
section 3 of the Divorce Act requires that the courts of Uganda exercise their juris-
diction under the Act ‘in accordance with the law applied in matrimonial proceed-
ings in the High Court of Justice in England’.
§3. STATUTORY LAW ON DIVORCE UNDER CIVIL/CHURCH MARRIAGES
237. Divorce in civil or church marriages has always been severely restricted.
Under this type of marriage, although couples freely consent to marriage, they can-
not freely divorce unless and until the prescribed grounds of divorce have been
proved before a competent court. An action for divorce is founded on a breach of an
obligation arising out of the marriage contract (when grounds have been violated).
Hence, a divorce will not ordinarily be granted unless there exists a valid and sub-
sisting marriage between the parties at the time of the suit. The main law that regu-
lates divorce under civil/church marriages in Uganda is the Divorce Act, Cap 249.
238. Section 4 provides for the grounds upon which divorce can be procured. It
states as follows:
(1) A husband may apply by petition to the court for the dissolution of his mar-
riage on the ground that since the solemnization of the marriage his wife
has been guilty of adultery.
(2) A wife may apply by petition to the court for the dissolution of her mar-
riage on the ground that since the solemnization of the marriage–
(a) her husband has changed his profession of Christianity for the profes-
sion of some other religion, and gone through a form of marriage with
another woman; or
(b) has been guilty of–
(v) adultery coupled with cruelty; or
366. Sections 4 & 5 Divorce Act.

367. Section 5 Divorce Act.

Part II, Ch. 2, Divorce 239–243
(vi) adultery coupled with desertion, without reasonable excuse, for

two years or upwards.
239. This section provides different standards for men and women when seek-
ing divorce on the grounds of matrimonial offences. Whereas it is enough for a man
to petition for divorce on the basis of one offence, a woman is required to prove
adultery and another ground against her husband, except if he has been involved in
incestuous adultery or aggravated adultery.
240. The gender bias in this provision has, however, been addressed through the
decision in Uganda Association of Women Lawyers and 5 Others v. Attorney-
General.368 This decision challenged the constitutionality of section 4 on the
grounds of discrimination between men and women. Articles 21 and 31 of Ugan-
da’s constitution mandate equal treatment of men and women in marriage and at its
dissolution.
241. In this case, the five Justices of the Constitutional Court unanimously held
that section 4 discriminated on the basis of sex and declared them null and void. It
was further held that all grounds of divorce mentioned in section 4(1) and (2) of the
Divorce Act are available to both parties and apply equally to both women and men
who are parties to a marriage.
242. Twinomujuni JA, in his ruling, had this to say:
I have no doubt in my mind that the impugned provisions of our Divorce Act
are a result of the Englishman’s pre-20th century perceptions that a man was a
superior being to a woman and they could not be treated as equals in marriage.
It is, in my view, glaringly impossible to reconcile the impugned provisions of
the Divorce Act with our modern concepts of equality and non-discrimination
between the sexes enshrined in our 1995 Constitution. I have no doubt in my
mind that the impugned sections are a derogation to Articles 21, 31 and 33 of
the Constitution.369
243. Another judge, Mpagi-Bahigeine JA, stated:
It is in substance a colonial relic whereby the traditional patriarchal family

elevated the husband as the head of the family and relegated the woman to a
subservient role, of being a mere appendage of the husband, without a separate
legal existence. This concept of the family has been drastically altered in recent
decades. Marriage is now viewed as an equal partnership between husband and
wife. Still, the old ideas and patterns persist, as do their psychological and eco-
nomic ramifications. That notwithstanding, women are entitled to full equality
368. Constitutional Petition No. 2 of 2003 (2004) UGCC 1 (10 Mar. 2004).
369. Cited in Ssenyonjo 2008. (This is a wrong citation. Since it is the first time you are citing
Ssenyonjo, a full citation would be used here. Indicate as follows: author’s full names, title of pub-
lication, publisher, place of publication, year).

in respect of the right to form a family, their position within the functioning
family, and upon dissolution of the family, their position within the function-
ing family, and upon dissolution of the family, so proclaims Article 31(1) of
the constitution. In sum, I agree that the impugned sections of the Divorce Act
clearly violate and are inconsistent with the stated provisions of the 1995 Con-
stitution and are thus null and void.
244. Additionally, both Twinomujuni JA and another justice of the court, Okello
JA stated that all the grounds of divorce mentioned in section 4(1) and (2) are
equally available to both parties to the marriage.
245. By this decision, therefore, the court agreed that section 4 of the Divorce
Act was indeed discriminatory by holding a woman to a higher standard of proof
compared to her male counterpart. This section also contravened Article 16(1) of the
UN CEDAW, signed by Uganda on 22 July 1985 which provides for equality for
men and women.370
§4. GROUNDS FOR DIVORCE
I. Cruelty as a Ground for Divorce
246. The Divorce Act does not define cruelty. This has been left to the courts to
consider depending on each case. Cruelty in matrimonial life may be of unfounded
variety, which can be subtle or brutal, actual or probable. It may be words, gestures
or by mere silence, denial or deprivation, violent or non-violent, as well as physical
or sexual. Acts amounting to cruelty vary as widely as the reasons that cause
unhappy marriages. Therefore, there is no comprehensive list of acts amounting to
cruelty.
247. What is generally agreed according to the courts of law is that the act of
cruelty must be serious enough for the petitioner to feel threatened, grave and
weighty and such that the petitioner cannot reasonably be expected to put up with
it or to tolerate it. Case law has been used to grow the jurisprudence in this area on
what amounts to cruelty.
248. The leading authority in defining cruelty for purposes of divorce is

Colarossi v. Colarossi,371 whose definition was adopted by the Ugandan High Court
in Y. Mugoya v. T.N. Mugoya.372 Thereunder, it is provided that:
370. See also the Protocol to the African Charter on Human and Peoples Rights, on Rights of Women
(Maputo Protocol) which also makes strong provisions for equality of men and women in mar-
riage.
371. 1965 E.A 129.
372. 1975 HCB 95.

What constitutes legal cruelty is a matter dependent on facts of each particular

case. Courts will not regard acts found on mere trivialities or incompatibility
to prove it but the essential element is of the petitioner to prove actual or prob-
able injury to life, limb, or health.
249. In a later case of Kasasa v. Kasasa,373 it was further held that to constitute
cruelty, the conduct complained of must be higher than the ordinary wear and tear
of married life. Additionally, that it is the effect of the conduct rather than its nature
which is of paramount importance in assessing the ground of cruelty and it must be
proved that the respondent however mindless of the consequences has behaved in a
way which the petitioner could not in the circumstances be called upon to endure
and that such conduct caused injury to health or reasonable apprehension of it.374
II. Physical Cruelty
250. Progress in interpreting cruelty has evolved, expanding the understanding

of cruelty previously limited to physical violence of beating, to other cruel acts such
as beating, kicking and pulling hair.
251. Perhaps, the earliest judgment on cruelty illustrating initial judicial percep-
tion of cruelty as that amounting majorly to physical abuse is that of Habyarimana
v. Habyarimana, where the court held that:
there is no definition of cruelty in the Divorce Act but case law has established
that no conduct can amount to cruelty unless it has the effect of producing
actual or apprehended injury to the petitioners’ physical and mental health.
There must be danger to life, limb or health, bodily or mental or reasonable for
it to constitute cruelty.375
252. In this case, Justice Odoki ruled in favour of the petitioner when she suc-
cessfully proved the commission of cruelty against her by her husband. Here, the
husband often pulled the wife’s hair.
253. Justice Odoki also introduced an important aspect of physical cruelty, that
is, that the effect of the conduct rather than its nature is important in accessing the
charge of cruelty. This implies that when people are subjected to similar acts, some
may perceive them as cruelty while others may not. Thus, similar conduct by one
party may be met by indifference by their spouse, and yet for another couple, may
cause feelings of deep anguish and may lead to mental cruelty for the suffering
spouse.
373. 1976 HCB 348.

374. See also Rwabinumi v. Bahimbisomwe, supra note 103, where the judge ruled that failing to eat
food prepared by a spouse, jeering and name calling names amount to cruelty denial of sexual con-
jugal rights.
375. 1980 HCB 139.

254. According to Justice Odoki, the Judge must consider the impact of the per-
sonality and conduct of one spouse on the mind of the other before coming to a con-
clusion, and all incidents between the spouses must be weighed from that point of
view. Therefore, courts should focus more on the effect rather than the nature of the
conduct, as this is experienced differently from person to person.
255. An earlier decision in Ruhara v. Ruhara376 also reiterated the emphasis of

cruelty being mainly physical. In this case, the court held that scalding a person with
burning oil was a cruel and most brutal act, a clear injury to life and limb, and con-
duct which gives rise to an apprehension of danger to life or limb.
256. Other physical acts that may amount to cruelty, taking into regard their
effect on the victim, include banishment and other acts that go beyond mere embar-
rassment and mistreatment. Nassuna Edith Zavuga v. Jasper Nimron Semwanga and
Haji Senyonjo377 provides a good example. In this case, the court found the respon-
dent to have committed cruelty when he threw the petitioner out of their bedroom
to sleep in the unfinished room or corridor and shutting her out of the house on her
return from work. Such an act of shutting the petitioner outside the house could
cause fear for life, as she may not know what could happen to her outside in the
dark.
III. Non-consensual Sexual Relations as Cruelty
257. As courts handled more marital cases on cruelty, there was evolvement
away from merely the physical to include also sexual and mental punishment or cru-
elty. The practice of non-consensual sexual relations in a marriage or marital rape is
rooted in the rubric of the family and premised on the social norm that gives a hus-
band the right and power to control marital intercourse. The basis for marital rape
in Uganda originates from traditional practices that subordinate the status of women
such as customary marriage which is concluded through the giving of bride wealth.
The practice of giving bride price exacerbates power relations in marriage, giving
more power to the husband to demand anything of his wife, including sex, which
leaves women with little autonomy or ability to refuse unwanted sexual intercourse.
In fact, in some cultures in Western Uganda, it is culturally believed that a man can-
not be denied sex, and in other parts of the country, that a woman’s ‘no’ is in actual
sense a ‘yes’.
258. The disparities between custom and law on the issue of marital rape are not
that far apart. The belief in common law was that upon marriage, a wife ‘gave’ up
her body to her husband, and with this, her irrevocable consent to sexual inter-
course. As such, the man could well do with her body what he wanted when he
376. 1977 HCB 86.

377. Divorce Cause No. 10 of 2003, p. 10.

chose. For instance, in R v. Miller,378 Lynskey J ruled that a husband had no case to
answer on a charge of rape to his wife.379
259. In Uganda, non-consensual sexual intercourse in marriage is only mini-

mally recognized as a specific criminal offence. The PCA does not recognize this
offence. It is only in the Domestic Violence Act in section 4.2, where sexual assault
is identified as a crime under the definition of domestic violence. Under this law,
the definition of domestic violence in relation to sexual violence applies in domes-
tic households to both legally married persons as well as cohabitees. Thus, a victim
of such occurrence can only make a claim under the general provision of rape in the
PCA or in this particular section of the Domestic Violence Act.
260. It should be noted that there has since been judicial progress in regard to
this issue. The ruling in Uganda v. Yiga Hamidu380 is an example of this progress,
and this was the first time that a court made a declaration protecting the rights of
married women from unwanted sexual relations. The judge in the case stated that
women were constitutionally entitled to equal rights in marriage and the right to
human dignity, and should not be obligated to submit to sexual intercourse against
their will.381
IV. Mental Cruelty
261. Mental cruelty, on the other hand, is expounded in the Ugandan case of
Kasasa v. Kasasa382 which held that there must be a danger to life, limb or health,
bodily or mental, or a reasonable apprehension of it in order to constitute legal cru-
elty. Therefore, for an act to amount to mental cruelty, the respondent must have
conducted himself or herself in such a way as to cause mental injury towards their
spouse, or to such an extent as to raise a reasonable apprehension that he or she
would either inflict actual injury upon them or cause her actual injury upon their
mental or bodily injury.
262. However, mental cruelty is even much harder to contemplate than physical
cruelty, because whereas the effects of the latter are easier to perceive to the human
mind, the ones from the former are not. In the case of physical cruelty, there is tan-
gible and direct evidence which can be easily reviewed by the court. Mental cru-
elty, on the other hand, may have no direct evidence and courts are then required to
go a step further and probe into the mental process and effect of incidents that are
brought out in evidence. This is not a simple task in itself because the same acts of
378. 1954 2 Q.B. 282.

379. See also RVR [1991] 4 ALL ER 418.
380. HCT Criminal Session Case 0055 of 2002.
381. Ruling of Justice Kibuuka Musoke.

cruelty may have different effects on different persons and what amounts to an
unhappy married life infinitely varies from one couple to the other. Thus, each case
must be taken on its own facts.
263. Another case that clearly illustrates mental cruelty is that of Monica Lub v.
Dirk Peter Lub,383 where the petitioner sought a divorce on the grounds of adultery,
cruelty and desertion. In regard to cruelty, the petitioner adduced evidence that the
respondent’s conduct clearly caused danger to life and limb. The respondent knew
that the petitioner was susceptible to a nervous breakdown. He, however, coolly told
her about his adulterous associations, and how it was better for her to get a divorce.
He then cut off communication with her. The petitioner who loved the respondent
dearly and had not committed any wrong was clearly affected by the latter’s cal-
lousness. The court found that this conduct went beyond the reasonable wear and
tear of marriage, having regard to the temperament character and habits of the
spouses, and all the circumstances of the case.
264. All in all, the courts must assess all circumstances of a case before reach-
ing any decision regarding the existence or not of cruelty, and this includes consid-
eration of the general state of matrimonial relations.384
V. Cruelty in Other Legal Regimes
265. There is progress in other statutory legislation that compliments jurispru-

dence on cruelty. The Domestic Violence Act385, in particular, provides a definition
of violence within the domestic setting that could actually amount to cruelty.
Domestic violence is defined as any act that occurs within a domestic relationship,
which harms or endangers the health of a victim, including sexual abuse. The Act
provides for various forms of violence including physical, sexual, emotional/
mental, verbal, harassment as well as economic violence. Whereas prosecutions
under this law are still rare,386 this law has the potential to change the terrain to
ensure better protection of victims of cruelty because of the clarity of its provisions
and expansive scope of what amounts to domestic violence.
266. It is also possible for victims of cruelty to make use of the torture law.
Uganda’s national legislation addressing torture – the Prevention and Prohibition of
383. Divorce Cause No. 47 of 1997.

384. Vivian Ntanda v. James Kayemba Divorce Cause No. 4 of 2007. See also Julius Rwabinumi v.
Hope Bahimbisomwe (Civil Appeal No. 30 of 2007) where court identified incidents such as
repeated use of abusive and derogatory language, persistent accusations of adultery and involve-
ment in witchcraft, refusal to eat food, persistent late coming back home between 3 am and 4 am
at night, as well as forceful ejection from the matrimonial home on baseless grounds to include cru-
elty.
385. Act No. 10 of 2009.
386. This Act is fairly new, having passed into law in 2010 and the regulations operationalizing it were
only adopted in 2016.

Torture Act387 – defines torture to mean any act or omission, by which severe pain
or suffering whether physical or mental, is intentionally inflicted on a person by or
at the instigation of, or with the consent or acquiescence of any person whether a
public official or other person acting in an official or private capacity for such pur-
poses as:
(a) obtaining information or a confession from the person or any other person;
(b) punishing that person for an act he or she or any other person has committed,
or is suspected of having committed or of planning to commit; or
(c) intimidating or coercing the person or any other person to do, or to refrain from
doing, any act.388
267. For purposes of this Act, ‘severe pain or suffering’ means the prolonged
harm caused by or resulting from:
(a) the intentional infliction or threatened infliction of physical pain or suffering;

(b) the administration or application, or threatened administration or application, of
mind-altering substances or other procedures calculated to disrupt the senses or
the personality profoundly;
(c) the threat of imminent death; or
(d) the threat that another person will imminently be subjected to death, severe
physical pain or suffering, or the administration or application of mind-altering
substances or other procedures calculated to disrupt the senses or personality
profoundly.389
268. Victims of cruelty can benefit from this law in view of the fact that torture
is defined as physical, mental and emotional. Additionally, when persons suffer cru-
elty, they might have also suffered torture.
269. The acts of cruelty are also covered under the PCA390 through the offences
of assault and battery, threatening violence and rape. Assault happens when one per-
son causes unwarranted fear to another, and it amounts to battery when the act
causes actual bodily harm to the other person.391 These two offences clearly relate
to cruelty which requires probable or actual harm, or fear for life, limb or health.
Threatening violence,392 on the other hand, is committed by a person who, with
intent to intimidate or annoy any person, threatens to injure, assault, shoot or kill
any person, or to burn, break or injure any parts of their body. Rape is also a serious
offence under the laws of Uganda.393 This is the unlawful carnal knowledge of a
woman or girl, without her consent, or with her consent, if the consent is obtained
387. Act No. 3 of 2012.

388. Prevention and Prohibition of Torture Act 2012, s. 2(1).
389. Ibid., s. 2(2).
391. These offences are prohibited under ss 235 and 236 of the Penal Code.
392. Section 81 Penal Code Act.
393. Section 123 of the Penal Code.

by force or by means of threats, intimidation, fear of bodily harm, or by means of

false representations. Victims of sexual cruelty can very well apply for legal rem-
edies under the penal law on rape.
270. The courts in Uganda are becoming more sensitive to the aspect of serious
crime and its close link to the domestic situation. Cases such as Uganda v. Fibo
Alex,394 where the accused stabbed his wife to death after a domestic misunder-
standing, and Uganda v. Aurien James Peter,395 where the accused shot and killed
his wife after a domestic quarrel, attracted serious penalties. In the former, the court
found the accused guilty of manslaughter and in sentencing him to ten years’ impris-
onment, the judge observed that ‘The wife-killing homicide through domestic vio-
lence is rampant in this country and this court takes very serious view of this
mischief which must be punished’.
§5. ADULTERY AS A GROUND FOR DIVORCE
271. The Divorce Act does not define adultery. Consequently, the Ugandan
courts have relied on English law and legal jurisprudence to interpret the Act. Adul-
tery is generally defined as the breach of the promise of fidelity towards each of the
spouses.396 The Ugandan case of Mayambala E v. W N Mayambala397 also defines
it as ‘voluntary sexual intercourse between a married person and person of the oppo-
site sex, the two persons not being married to each other’.
272. The Penal Code Cap 120 brings in an interesting angle to the matrimonial
offence of adultery by defining it differently for men and women. Section 154 of
the Penal Code states:
Any man who has sexual intercourse with any married woman not being his
wife commits adultery and is liable to imprisonment, or to a fine; and, in addi-
tion, the court shall order any such man on first conviction to pay the aggrieved
party a monetary compensation.
Any married woman who has sexual intercourse with any man not being her
husband commits adultery and is liable on first conviction to a caution by the
court and on a subsequent conviction to a term of imprisonment.
273. According to the above provision, it is only criminal for a man to have
sexual relations with married women. On the other hand, any sexual relations by
women outside marriage – whether involving married or non-married partners –
amount to adultery.
394. Crim. Case No. 98 of 2008, Judgment of 3 Mar. 2009.

395. Crim. Case No. 012 of 2010, Judgment Date: 28 Nov. 2010.
396. Rasmusen 2001.
397. High Court 1998. See also, Habyarimana v. Habyarimana (1980 HCB 139) which defines adultery
as consensual sexual intercourse during subsistence of a marriage between a spouse and a person
of the opposite sex, not being his/her spouse.

274. Consequently, therefore, adultery by the husband had no negative legal

consequences, except where it was proven that he had sexual relations with a mar-
ried woman. In effect, the law shielded the husband from any legal repercussions of
his adultery and yet created gender differences for men and women amounting to
discrimination within the marriage institution.
275. Additionally, section 5 of the Divorce Act required the husband to name the
co-respondent in a divorce petition on the grounds of adultery, with the exception
of whether the co-adulterer was a prostitute, was of unknown name or dead; with-
out imposing a similar burden on the wife. Moreover, the husband but not the wife
was afforded compensation from a co-respondent as well as costs for engaging in
sexual relations with his wife. According to section 21 of the Divorce Act, a hus-
band may claim damages from any person on grounds of having committed adul-
tery with his wife. This provision was not applicable to the wife in case of her
husband’s adultery.
276. Worse still, an adulterous woman would lose the alimony payable by a hus-
band to a wife, and therefore, her right of maintenance if found guilty of the offence.
In a sense, therefore, an adulterous husband suffered no legal repercussions from
divorce accruing out of his adultery, but a wife was punished with forfeiture of her
property for the benefit of the husband or children of the marriage, or both, under
section 26 of the Divorce Act. In regard to the above, therefore, a wife was pun-
ished for adultery while a husband was not.
277. It should be noted, however, that the position of the law recounted above
has since been reversed by the progressive decision in Uganda Association of
Women Lawyers v. The Attorney General,398 where the Constitutional Court found
that section 154 of the PCA was unconstitutional because it holds women to a higher
standard of proof compared to their male counterpart, thereby constituting discrimi-
nation based on sex and a clear violation of Article 31 of the Constitution on equal-
ity during marriage and at its dissolution. This case challenged the single ground of
adultery for a husband seeking divorce while a wife had to prove both adultery and
an additional ground such as desertion, apostasy or cruelty.
278. Following from this decision, just as is the case with cruelty, the other
grounds including adultery and desertion now constitute a distinctive ground upon
which a decree Nisi may be issued to both men and women on equal grounds. The
decision in Dr Specioza Wandira Kazibwe v. Engineer Charles Nsubuga Kazi-
bwe399 reiterates this position. In the Kazibwe case, the court held that both adultery
and cruelty are distinctive grounds, each in its own right, upon any of which a
decree nisi may issue. Courts may also look at the facts in totality to determine
whether a marriage has irretrievably broken down.


§6. PROOF OF ADULTERY
279. The law requires proof before adultery can be admissible as a matrimonial
offence. In this case, it would be preferable to use direct evidence, which is when
the petitioner has seen the respondent in the act of sexual intercourse. However,
direct evidence of adultery is rare. At best, the evidence is mostly circumstantial. As
such, the courts have accepted the use of circumstantial evidence to prove adultery,
such as in cases of pregnancy. In Ruhara v. Ruhara,400 it was held that in proof of
adultery, the court will look for corroborative evidence.
280. In George Nyakairu v. Rose Nyakairu,401 Ntabgoba, PJ, commented thus:
In allegations of adultery, it is not necessary to prove the direct fact of adultery

for that fact is almost to be inferred from circumstances as a necessary con-
clusion since it is indeed very rare that parties are ever captured during the
direct act of adultery.
281. That as it may be, adultery must be proved to the satisfaction of the court.
It is not enough for a petition for divorce to state that ‘the respondent was living an
adulterous life with a number of men unknown to the petitioner who used to pick
her from the matrimonial home while the petitioner was away on work related trips’,
as was in the case in the Nyakairu matter. The judge emphasized that a petitioner
had to adduce evidence of facts on the basis of which considering circumstances,
the court can conclude that adulterous sexual intercourse took place. Such evidence
should be akin to that required of circumstantial evidence in criminal cases. The
exculpatory facts should be incompatible with the innocence of the spouse and inca-
pable of explanation upon any other reasonable hypothesis than that of sexual inter-
course having taken place. The circumstances must be such as to produce near
moral certainty, to a standard above mere preponderance. It is necessary before
drawing the inference of adultery from circumstantial evidence of that nature to be
sure that there are no other co-existing circumstances which would substantially
weaken or destroy the inference.
282. In the instant case, the only evidence adduced by the petitioner was of
rumours or information he received from third parties that the respondent would
from time to time stay out late at night with some foreign students from Canada.
Not only was this not proved as a fact, but also of its own was considered insuffi-
cient to support an inference of adultery.
§7. DESERTION AS A GROUND OF DIVORCE
283. Desertion relates to physical withdrawal or leaving. It is an actual, wilful

and unjustified abandonment or breaking off of matrimonial cohabitation, by either
400. 1977 HCB 86.

401. [1979] HCB 261.

of the parties and a renouncing or refusal of the duties and obligations of the rela-
tion, with intent to abandon or forsake entirely and not to return or resume marital
relations … .402
284. The five elements of spousal desertion are:
(1) a cessation of cohabitation;

(2) the lapse of a statutory period;
(3) an intention to abandon;
(4) a lack of consent from the abandoned spouse, and
(5) a lack of spousal misconduct that might justify the abandonment.
285. The concept was explained further by Lord Porter in Lang v. Lang,403
where he stated:
286. To establish desertion, two things must be proved: first, there should be cer-
tain outward and visible conduct – the factum of desertion, and second, the ‘animus
deserendi’ – the intention underlying this conduct to bring the matrimonial union to
an end. In ordinary desertion, the factum is simple: it is the act of the absconding
party in leaving the matrimonial home. The contest in such a case will be almost
entirely as to ‘animus’. Was the intention of the party leaving home to break it up
for good, or something short of, or different from, that?
287. As to the animus, there must be proof of a lack of intent to return and
resume the marital relationship. The respondent against whom desertion is alleged
may testify as to intent but cannot evade the effect of his or her conduct. The court
ascertains the respondent’s intent by considering all of the facts and circumstances.
The passage of time in and of itself cannot constitute an intention to desert. Inten-
tion to leave home and break it up for good is to be determined in each case from
all the evidence on the record. The circumstances must disclose some definite act(s)
showing an intention to desert. Such an intention must be shown by clear and sat-
isfactory evidence.
288. Another factor constituting desertion includes the fact that it happens with-
out justification and consent of the other party. According to section 4(2)(b) of the
Divorce Act, a wife may petition the court for dissolution of marriage on the
grounds of adultery, coupled with desertion. The cessation of cohabitation should
be for the statutory period of two years or more.
289. Desertion may be direct or constructive. In the former, the deserting party
takes the physical step of leaving the matrimonial home or otherwise withdrawing
from cohabitation. Constructive desertion, on the other hand, is where one spouse
virtually drives the other from home or behaves in such a repulsive way that the lat-
ter can no longer be reasonably expected to live with him or her. In this case, it is
402. Black’s Law Dictionary 211 (2009).

403. [1954] 3 ALL ER 571.

the spouse remaining in the matrimonial home who is in desertion. This was ascer-
tained in Irumba v. Irumba,404 where the court recognized that the party truly guilty
of disrupting the home is not necessarily or in all cases the party who first leaves it.
The party who stays behind may, by reason of conduct, make it unbearable for the
other to stay.
290. Desertion has typically been relied upon as a basis for divorce when the
party who is left behind petitions the court based on the other party’s withdrawal
from the matrimonial home, as happened in Erume v. Kyomugisha405 where the wife
disappeared without a trace, and the husband was granted a divorce on the grounds
of desertion. As stated by the judge:
“In my view since the petitioner has never consented to the respondent leaving
the matrimonial home as submitted by counsel for the petitioner and the fact
that there is no reasonable cause whatsoever for the respondent withdrawing
from cohabitation, this court finds that the petitioner has proved desertion on
the part of the respondent and since no rebuttal has been made to the petition.
I accordingly do hereby allow the petition and since the marriage has irretriev-
ably broken down, grant Decree Nisi, to be made absolute after six months
from today.”
291. Similarly, in Namuyimbwa v. David Ralph Pace,406 the court considered

not only the fact of desertion but also the entire matrimonial relations between the
parties in totality. Here, the parties had agreed to return to Uganda, having lived
away in China for some years, and the respondent reneged on this arrangement. The
court looked at the evidence in totality, including the uncontroverted evidence that
the respondent had abandoned and deserted the petitioner, depriving her of conjugal
rights, and categorically telling her he no longer loved her. The respondent had also
committed adultery with another woman with whom he was currently living. The
court declared the desertion on the part of the respondent unreasonable by virtue of
his refusing to return to Uganda in accordance with the arrangement between them,
consequently depriving the petitioner of her conjugal rights as his spouse.
292. With the decision in Uganda Association of women Lawyers & 8 others v.
Attorney General407 in mind, it should be noted that desertion as a ground of divorce
specified in section 4 of the Divorce Act is available equally to both the husband
and the wife and the import of the law is that desertion is a distinctive ground on its
own right upon which a decree nisi may issue.

405. Divorce cause No. 9 of 2014.

293. However, there is a lacuna in the Divorce Act as a result of the expunged
sections which have not yet been replaced. Thus, there is a need for a statutory law
that promotes equality between men and women, especially on aspects of family
and marriage.
294. That said, it is noteworthy to mention that desertion has not often been
relied upon as a ground for divorce in Uganda in comparison to cruelty and adul-
tery. This is partly due to the history of the Statutory law of divorce in Uganda,
where for a long time, it was sufficient for a man to divorce his wife on the grounds
of her adultery alone without the need to include another ground.
§8. LEGAL EFFECTS OF DESERTION
295. The notion of desertion does not legally dissolve the marriage. It leaves
many unresolved issues in regard to the marital union, distribution of property, cus-
tody of children, and so on. Upon desertion, marriage continues to subsist until a
judicial pronouncement is made.
296. After two years, innocent spouses can bring an action for judicial separa-
tion. A spouse who deserts is not free to remarry, and any subsequent remarriage
would amount to bigamy and be null and void. Thus, desertion is not really a com-
plete answer to the problems subsisting in a marriage and a resort to the courts of
law is more advisable.
§9. ADDITIONAL MARITAL OFFENCES
297. There are additional marital offences covered under sections 149–155 of
the PCA. They include fraudulent pretence of marriage, bigamy, fraudulent mar-
riage ceremony, desertion of children, neglecting to provide food and child stealing.
These may also be admissible grounds for dissolution of marriage.
298. Other offences under the MA which may attract dissolution of marriage
include bigamy,408 impersonation,409 falsifying status of marriage by making a false
declaration.410
§10. EFFECTS OF STATUTORY DIVORCE
299. Generally, the effect of divorce is that it returns the spouses to the status
quo before the marriage took place. Section 128 of the Divorce Act spells out the
effect of judicial separation to include suspension of matrimonial rights and duties,
408. Marriage Act, s. 41.

409. Ibid., s. 47.
410. Ibid., s. 43.

except the duty to maintain. Previously, this duty fell on the husband to maintain
the wife through the provision of alimony. However, this position has long been
altered through the decision in Uganda Association of Women Lawyers v. AG dis-
cussed in the previous chapters.
300. Other effects of divorce include the sharing of family property and custody
of children. Catherine Leku v. Jack Leku411 is an illustration of the possible rem-
edies to parties under divorce law in Uganda. In this case, the respondent was found
to have committed adultery and cruelty, and the marriage had been characterized by
general mistreatment and embarrassing the petitioner in the presence of relatives,
visitors, friends and children. The appellant/petitioner was granted the relief of judi-
cial separation. Court further held that she should be left in the matrimonial house
and be paid alimony of UGX 500,000412 per month for her necessities.
§11. BARS TO DIVORCE
301. The law places legal bars to securing a divorce as one of the steps of dis-
couraging parties from terminating the marital relationship. These include absolute
and discretionary bars to marriage.
§12. ABSOLUTE BARS
302. The absolute bars, commonly referred to as the three Cs, are connivance,
condonation and collusion, the purpose being to ensure that the petitioner comes to
court with ‘clean hands’ and does not benefit from his or her own wrongdoing.
303. Condonation means knowingly forgiving a matrimonial wrong and restor-

ing the offending spouse to the same position as he or she occupied before the mat-
rimonial wrong. Three elements are essential to condonation: (1) knowledge, (2)
forgiveness, and (3) revival of conjugal rights. The bar of condonation is founded
on the principle that one cannot both approbate and reprobate.413
304. Connivance, on the other hand, was defined in Churchman v. Church-

man414 as a situation where a party to a divorce case has a ‘corrupt intention of pro-
moting or encouraging either the initiation or the continuance of the spouse’s
adultery’. It is where the adultery of one spouse has been caused or has been know-
ingly permitted by the other spouse. In this case, the other spouse is an accessory to
the adultery.

412. Equivalent to USD 150.
413. See Howard v. Howard (1962) 2 ALL ER 543.
414. 1945 P 44.

305. Collusion means that the spouses worked collaboratively for one of them
to commit a matrimonial offence with the intention of obtaining a divorce. Put dif-
ferently, the husband and wife collaborate to fabricate evidence with the intention
of obtaining a divorce. Some of the examples include agreeing to a matrimonial
offence that will form part of the divorce petition or paying money to the petitioner
to initiate a divorce. However, in a situation where a spouse changes his or her mind
before the divorce is concluded, that spouse can use collusion as a defence to pre-
vent the divorce.
306. Section 6 of the Divorce Act obliges the court to inquire into whether the
petitioner was an accessory to the adultery or had condoned it. Section 7 makes it
mandatory for the court to dismiss the petition if it is proved that the petitioner
either condoned, connived or colluded to the adultery. The duty to inquire into the
application of absolute bars is mandatory irrespective of whether the petition is
defended or not, or whether or not the respondent pleads the absolute bars as a
defence.
307. Thus, before pronouncing a decree nisi for the dissolution of the marriage,
the court should be satisfied that there is no condonation, collusion or connivance
between the parties. In Y. Mugonya v. Trophy Nakabi Mugonya,415 it was stated that
proof of condonation requires evidence of forgiveness and reinstatement of the rela-
tionship, although the further commission of matrimonial offences revives the con-
doned offence. As to the standard of proof required to establish that the ground for
divorce has been condoned, it was held by Lord Denning in Blyth v. Blyth416 that:
So far as the bars to divorce are concerned, like connivance or condonation,

the petitioner need only show that on balance of probability he did not connive
or condone as the case may be.
§13. DISCRETIONARY BARS
308. Discretionary bars are bars where the court is given the liberty to either
refuse or grant the divorce. Under section 8(2) of the Divorce Act, the court has the
discretion to grant a divorce in situations where the petitioner is guilty of unreason-
able delay, has also committed a matrimonial offence, or wilfully or by neglect con-
ducted adultery. Nonetheless, although the court’s discretion is unfettered, it must
not be exercised arbitrarily but judicially taking into account the rights of the par-
ties, the interests of society and public morality.
415. [1975] HCB 297.

416. [1966] AC 643.

§14. JUDICIAL SEPARATION
309. Separation requirements serve a useful purpose. They may serve as an indi-
cation of the irretrievable breakdown of the marriage. More positively, however,
separation requirements promote opportunities for reconciliation and force the par-
ties to take time to think their decision over. They also allow more room for better
bargaining for property, maintenance and child custody.
310. Section 14 of the Divorce Act Cap 249 provides as follows:
A husband or wife may apply by petition to the court of law for judicial or
separation on the grounds of cruelty, adultery or desertion without reasonable
excuse for two years or upwards and the court on being satisfied that the alle-
gations of the petition are true and that there is no legal ground why the appli-
cation should not be granted, may decree judicial separation accordingly.
311. A legal separation relieves both parties of their matrimonial rights and obli-
gations. But parties are free to resume their marriage if they so wish.
§15. DIVORCE UNDER HINDU MARRIAGES
312. The HMDA, under section 8(1), provides that the Divorce Act shall apply
to marriages and to matrimonial causes relating to marriages. This, therefore,
implies that the jurisdiction provided for in the Divorce Act as already discussed
above is applicable.
§16. DIVORCE UNDER CUSTOMARY LAW
313. The Constitution of Uganda recognizes culture as one of the mechanisms

of enhancing the dignity and well-being of the person. Objective XXIV of the
National Objectives and Directive Principles of State Policy outlines the cultural
objectives. Consequently, the state commits itself to ‘promote and preserve those
cultural values and practices which enhance the dignity and well-being of Ugan-
dans’. Similarly, the ACHPR, under Article 29(7), promotes ‘positive cultural val-
ues … in a spirit of tolerance, dialogue and consultations to contribute to the
promotion of the moral well-being of society’. By this, only positive cultural
attributes of aspects such as customary marriage and divorce are permitted under
the law.
314. Customary divorce in Uganda is regulated by the CMRA. However, the Act
is not detailed enough to provide any guidance on how to conduct or dissolve cus-
tomary marriages, but merely states that marriage and divorce should be according
to one’s culture.417
417. Section 1(2).

315. There is a judicial notice that in most traditional societies in Uganda,

divorce is characterized through the return of the bride price. ‘Bride price’ is any
gift or payment in money or other kinds of property, including livestock, to a parent
or guardian of a female person on account of a marriage of that person which is
intended or has taken place.418 The family of a woman who initiates or causes a
divorce is expected to refund the bride price to the husband’s family as a symbol of
cessation of the marriage. Emmy Ndyamureeba v. Eva Namanya419 describes the
process of divorce in Ankole to involve the return of bride price.
316. Customary divorce was and still is infrequent largely due to the inability or
unwillingness to refund the bride price. For instance, while the Baganda (central
Uganda) applied the concept of irretrievable breakdown of the marriage, divorce did
not necessarily close the relationship because of many of the rituals that were cel-
ebrated to solemnize the marriage. Similarly, under the Lugbara (north western
Uganda), one respondent attested that while a woman could go away for even more
than ten years, in her old age, she was at liberty to return to that very home and be
buried there.420
317. However, the practice of exchange of bride wealth and its refund upon
break up of a marriage comes with some negative connotations and has attracted
negative international response. The CEDAW committee has noted in general Rec-
ommendation No. 21 that allowing a marriage to be arranged for payment or pre-
ferment is a violation of women’s right to freely choose their spouse. A case in line
with this position is that of Mifumi (U) Ltd and 12 Others v. Attorney General and
Kenneth Kakuru421 which challenged the constitutionality of bride price but which
refused to give a blanket nullity to this customary practice.
318. In the Mifumi case, the petitioners challenged the constitutionality of the
customary practice of demand for and payment of bride price. They alleged that the
payment of bride price as a condition precedent to a customary marriage and
demand for a refund of bride price as a condition precedent to the dissolution of
marriage violated the constitutional principles of gender equality, freedom from dis-
crimination and equality at marriage during marriage and at its dissolution.
319. Justice L.E.M. Mukasa-Kikonyogo DCJ, (as she then was) in her judgment
recognized that bride price could lead to social ills such as domestic abuse and that
in some cases bride price plays a factor in domestic abuse and women being treated
as inferiors. She was also in agreement with the view 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
418. NigeriaOnline, ‘Bride Price Payment in Nigeria’, available online at http://www.onlinenigeria.com

/marriages-in-nigeria/Bride-Price/, (Accessed 15 Apr. 2019.
419. HCDEC No. 001 of 2006.
420. Uganda Parliamentary Hansard on Marriage and Divorce Bill Debate 2013, p. 6742.
421. Constitutional Petition No. 12 of 2007. See also the cases of Aiiya v. Aiiya Divorce Cause No.
08/1973, and Kintu v. Kintu, Divorce Appeal No. 135 of 1997 [2001] UGHC 46 which discuss pro-
cedure on customary marriages in Uganda.

Article 32(2) of the Constitution. Moreover, the demand for a refund violates a
woman’s entitlement to equal rights with the man in marriage, during the marriage,
and at its dissolution. However, she declined to hold that the practice was uncon-
stitutional on such grounds.
320. Hon. Justice Twinomujuni J.A (RIP), in his dissenting judgment, stated:
[The] Court should be able to take judicial notice of a notorious fact that the
practice of bride price has caused untold suffering to thousands of women
throughout Uganda. That under the custom of bride price, women are not
treated as human being but as chattels. They are priced so low that they are
exchanged for a cow or a few cows, a pig or a few pigs or a goat or a few goats.
Their price is fixed without reference to them. Many young men cannot marry
because they have no property to pay for young women. A young woman is
not at liberty to choose a man of her heart because if he has no property, she
has no chance to marry him.
321. He further stated that:
Bride price helps to perpetuate a belief in society that a man is superior to a

woman, that once he buys a woman, he can batter her, humiliate her and treat
her as he likes. The custom of paying bride price in a customary marriage vio-
lates all the Constitutional provisions which were enacted to give protection to
women, and is repugnant to good conscience. The practice has become purely
commercialised and highly exploitative and humiliating to women and that it
is high time that the custom is abolished and the woman should be set free.
322. Whereas the court, in this case, acknowledged the significant rights of par-
ties, especially women, to enter into marriage freely, it made no declaration that the
practice of exchanging bride gifts was unconstitutional. It, however, held that the
custom and practice of demand for and refund of bride price after the breakdown of
a customary marriage is unconstitutional and that it should be prohibited.
323. It should be noted that many cases of customary marriages have resorted to
the formal courts for their dissolution or to seek other remedies, and most often, the
courts have applied the customary norms applicable to the parties.
§17. DIVORCE UNDER ISLAMIC LAW
I. Statutory Law on Divorce of Islamic Marriages
324. In Uganda, marriages and divorces of Muslims are regulated by The Mar-
riage and Divorce of Mohammedans Act Cap 252 Laws of Uganda. The Act affords
recognition to marriages solemnized under Islamic law, provides for the registration

of Muslim marriages and divorces and instructs the application of the principles of
personal law applicable to the parties involved, without substantive codification of
that law.
325. It should be noted that this Act is not detailed enough to cover every con-
dition or formality necessary for conducting or dissolving Muslim marriages. If one
is to marry or divorce, he or she is to look for legal provisions from the Holy Quran
and Sunnah. The Act was enacted in 1906, and it has never been amended up to day.
II. Qur’anic Teachings on Divorce under Islam
326. Islam disapproves of divorce immensely and thereby sets stringent steps to
be followed before termination of marriage can be granted. If a dispute arises
between a husband and wife and their living together becomes difficult, Islam
directs that all efforts be made for reconciliation between the two disputants through
two arbitrators, one from each party’s family. In appointing arbitrators, preference
is given to close relatives of the parties having knowledge of the circumstances of
their case.
III. Failure to Reconcile as a Ground for Divorce
327. Neither in the Quran nor in the Hadith are the grounds for divorce enumer-
ated. Under Islamic Law, it may be pointed out that the only guidelines for proving
breakdown is the failure of the parties to reconcile themselves.
IV. Types of Divorce under Islam
328. The Marriage and Divorce of Mohammedans Act does not provide details
on the divorce process. Section 2 of the same Act merely states that the method of
divorce to be carried out has to be in conformity with the ‘rites and observance of
the Mohammedan religion’. This implies that a Muslim should refer to the primary
sources of the Quran and Sunnah.
329. Marriage under Islamic Law may be dissolved in four ways: by the hus-
band through Talaq (outside court); by mutual agreement of the spouses (Khul); by
judicial order of separation in a suit that may be raised by either of the spouses
(Fask), and Lian-divorce by oath.
330. Under Talaq, a husband may pronounce ‘divorce’ to his wife during the
marital life three times, once every month for three months. For the first two times,
the husband has the right to revoke the pronouncement and can continue the usual

marital relationship. Divorce is final when the husband gives the talaq exercising
his third time right.422 During these three months, a woman is allowed to remain
within the matrimonial home.
331. Fask is a decree by the Khadi after careful consideration of an application

by the wife to end a marriage. According to Muslim jurists, the grounds for Fask
can include disease and physical defect resulting into mental illness or impotency,
failure of a husband to provide maintenance, desertion, failure of consummation for
a period of four months and more, imprisonment for a period of three years or more,
association with people of evil repute, obstruction in the observance of a wife’s reli-
gious obligations and cruelty.
332. Fask is at the disposal of the wife, but there must be a consensus between
the husband and wife to divorce each other. Second, there must be evidence or
admission of two witnesses.
333. Khula, as a form of divorce, is at the instance of a wife. A man has no right
to revoke it. It may be initiated by the wife on the basis of cruelty or habitual mal-
treatment, desertion, non-fulfilment of the terms of the marriage contract, insanity,
incurable impotence, and any other similar causes which in the opinion of the court/
Khadi justifies a divorce. This form of separation, however, demands that the wife
gives something in return for being granted divorce by her husband. Where the
amount of the payment is not agreed upon by the parties, the Khadi may assess in
accordance with Sharia, and taking into consideration the status and the means of
the parties. However, if the woman agrees to remarry the same man, she can do so
with the consent of the man.
334. Lian is divorce on oath. It occurs where either party makes slanderous
accusations against the other. In this case, the Quran lays down the procedure under
Surrat 24:6-7 and 24:8-9. If a husband accuses his wife of adultery, he has to bring
four witnesses to prove his case. However, if he fails to do so, he has to swear four
times by God that he speaks the truth and fifth that the curse of God be on him if
he be a liar. Against this, the wife also swears four times by God that her husband
was telling a lie and, fifth, that she invokes the wrath of God on her if her husband
was speaking the truth. In a technical sense, an oath is an utterance accompanied by
the invocation of the name of Allah for purposively stating something over a matter
which will not be easily proved. There is evidence from the Quran, which proves
that the oath is an acceptable means of proof.423
422. Qur’an 2:229.

423. Quran 16:91.

V. Jurisdiction for Muslim Marriages and Divorces
335. Article 129(1)d of the Constitution of Uganda lists courts of judicature to

include Qadhi courts for marriage, divorce, the inheritance of property and guard-
ianship. The operationalization of these courts requires an Act of parliament that
establishes them. To date, there is no substantive law establishing Qadhis or Sharia
courts to handle muslim personal law matters. Instead, such matters have been
handled by an agency, the Uganda Muslim Supreme Council (UMSC) through its
Sharia Court as one of the organs under the Directorate of Sharia. However, there
have been contentions over the competency of this court in handling cases of
divorce.
336. Although the Qadhi Courts have not been specifically provided for in the
act of Parliament, they are considered to be functional since they are provided for
both in the Constitution and the Mohammedan marriage law. In Sumaya
Nabawanuka v. Med Makumbi,424 the issue was whether the Sharia Courts were
courts of competent jurisdiction to hear matters in matrimonial proceedings under
the Marriage and Divorce of Mohammedan Act. The Court held that although
Article 129(1)(d) of the Constitution had not been operationalized by an Act of Par-
liament, the Qadhi courts were by virtue of Article 274 of the Constitution compe-
tent courts to handle divorce matters under the Mohammedan law.
VI. Procedure for Divorce in Uganda
337. The procedure for divorce depends on the type of marriage that the parties
contracted. As such, there are different legal procedures for civil/Christian mar-
riages as well as those for Islamic and customary marriages. The proper legal pro-
cedures have to be followed in order for a divorce to be valid and for the marriage
to be permanently finished. Leaving or chasing away a spouse does not amount to
divorce or put a legal end to a marriage.
VII. Divorce Procedure under the Civil Legal Regime
338. The procedure for divorce proceedings is contained in section 30 of the

Divorce Act which provides that all proceedings under the Act are to be regulated
by the Civil Procedure Act (CPA) and Civil Procedure Rules (CPR), subject to the
provisions of the Divorce Act in respect of certain matters. The CPR emphasizes
dual representation of sides named in a cause, in the interest of justice, and for the
sake of a fair hearing.
424. High Court Kampala, Family Division Divorce Cause No. 39 of 2011 (unreported).

339. The standard of proof required in proof of the various grounds of divorce
varies according to the gravity of the accusation. Lord Denning in Blyth v. Blyth425
stated that:
So far as the grounds for divorce are concerned, the case, like any civil case,
may be proved by a preponderance of probability, but the degree of probability
depends on the subject matter. In proportion as the offence is grave, so ought
the proof to be clear.
340. For example, in Bater v. Bater,426 the wife petitioned for divorce alleging
cruelty. It was held by the Court of Appeal that it had not been a misdirection for
the trial court to require the petitioner to have to prove her case beyond a reason-
able doubt. ‘A high standard of proof’ was required because of the importance of
such a case.
341. Also, in civil cases, the case may be proved by a preponderance of prob-
ability, but there may be degrees of probability within that standard. The degree
depends on the subject matter. A civil court, when considering a charge of fraud,
will naturally require a higher degree of probability than that which it would require
if considering whether negligence was established. It does not adopt so high a
degree as a criminal court, even when it is considering a charge of a criminal nature,
but still it does require a degree of probability which is commensurate with the
occasion. For that reason, it was held in Kakunka Edward v. Aliet Yudesi Kyoy-
anga,427 Ruhara v. Ruhara428 and Habyarimana v. Habyarimana429 that the stan-
dard of proof of adultery and cruelty in matrimonial cases is above the ordinary
preponderance of evidence but not as high as beyond reasonable doubt.
§18. FILING THE PETITION
342. Proceedings for divorce are brought by petition to the court as provided for
under section 4 of the Act. Under section 11 of the Divorce Act, it is provided that
a husband or wife may present a petition for divorce to court praying for the mar-
riage to be dissolved. Any person who is a resident in Uganda may file a petition
for divorce. In Anne Musisi v. Herbert Musisi & Anor,430 it was observed that
divorce proceedings are commenced with a petition for dissolution of marriage by
divorce, setting out the grounds on which the prayer for orders as to divorce relies.
425. [1966] AC 643.

426. [1951] P 35.
427. [1972] HCB 208.
428. [1977] HCB 86.
429. [1980] HCB 139.

343. Section 31 of the Divorce Act states that every petition shall state, as dis-
tinctly as the nature of the case permits, the facts on which the claim is based, and
shall be verified as if it were a plaint, and may at the hearing be referred to as evi-
dence.
§19. SUPPORTING DOCUMENTS TO THE PETITION
344. The petition must be supported by a Summary of Evidence, list of docu-

ments, witnesses and authorities that the petitioner intends to rely on. The requisite
filing fees for filling a petition (UGX 6,000) must be paid in the bank and evidence
of payment attached to the petition.
§20. SUMMONS
345. The petitioner then extracts summons from the court requiring the respon-
dent to either file a defence or appear in court on a day specified therein and serves
it together with the petition on the respondent within twenty-one days after court
issues the summons. Proof of service of the petition and summons is crucial as is
the case in normal civil proceedings. Once the summons is served on the respon-
dent, the petitioner must file an affidavit of service in court clearly stating how
he/she served it on the respondent.
§21. RESPONDENT’S ANSWER TO THE PETITION
346. On the basis of Order 8 Rule 1 of the CPR, upon receipt of the summons
and petition, the respondent is required to file an answer to the petition within fif-
teen days from the date of receipt of the summons. The answer to the petition must
be supported by a summary of the evidence, list of documents, witnesses and
authorities that the respondent intends to rely on. The answer to the petition and all
its accompaniments must be served on the petitioner by the respondent. The parties
to the petition will then be referred to mediation by the court.
§22. MEDIATION
347. Rule 4 of the Judicature Mediation Rules makes mediation a mandatory

requirement in any civil matter. The Family (Mediation) Rules oblige conflicting
parties to go through mediation. To date, many divorce cases are being settled by
the signing of consent judgments on the basis that the marriage has irretrievably
broken down. It is only when the mediation fails that the case proceeds to a sched-
uling conference where the parties agree on the issues to be resolved by the court.
Here, the petitioner and respondent file a Scheduling Memorandum. After the
scheduling conference, the petitioner sets down the case for hearing by giving a
Hearing Notice to the respondent.

§23. HEARING
348. In scenarios where the respondent fails to file an answer to the petition
within the fifteen days, the petitioner may set down the suit for hearing ex parte
where the court will only hear the petitioner’s case. At the hearing, the court will
receive evidence from the petitioner with respect to his/her petition and the respon-
dent with respect to his/her answer to the petition. After hearing from both parties
or from only the petitioner where the respondent does not file an answer in reply,
the court will go ahead to grant a decree nisi as per section 8 of the Divorce Act.
349. Divorce proceedings may be held in camera. This was confirmed in

Kirungi v. Mugabe,431 where the court permitted the hearing to be conducted in
camera, noting that matters of divorce warrant meticulous privacy. This is com-
monly so because parties to divorce proceedings are susceptible to public humili-
ation. This is in light of section 35 of the Divorce Act.
§24. ORDERS GRANTED UPON A DIVORCE PETITION
I. Decree Nisi
350. Section 37(1) of the Divorce Act is to the effect that after the lapse of six
months from the date on which the decree nisi is issued, the petitioner then applies
for the grant of a Decree Absolute.
II. Decree Absolute
351. A grant of a decree absolute is permanent and completely dissolves the

marriage.
§25. PROCEDURE OF DIVORCE UNDER ISLAMIC MARRIAGES
352. Upon the occurrence of marital disputes, a party to the marriage can report
the matter to the Registry of the Sharia Court at the UMSC. After receipt of the
complaint and the relevant supporting documents, the Registrar issues summons to
the respondent to appear within two weeks to answer to the charges. The respon-
dent is also allowed to file a written defence. Failure of a respondent to turn up after
several summonses may result in the court making a ruling based on available evi-
dence.
353. Experienced sheikhs (teachers) of Sharia law conduct the proceedings in

camera except for witnesses and close family members, following rules of natural
justice. During the hearing, the court always carries out counselling and mediation

of the parties. Failure of reconciliation results into the issuance of a ruling (written)
and divorce certificate. The court may also make orders in regard to maintenance,
accommodation, matrimonial property and custody of children.
§26. REGISTRATION OF DIVORCE
354. The Marriage of Mohammedans Act Cap 252 provides for the registration
of marriage and divorce conducted under Islamic law. Section 5(1) provides for the
registration for marriage and divorce to be made within one month from the date of
the marriage or divorce. Before doing this, the registrar has to make inquiries on the
validity of the divorce under section 6 of the Act. This requires the identification of
the parties and the authenticity of the document pertaining to the said divorce. This
may lead to the production of a Talaq document/certificate from the Directorate of
Sharia at the UMSC. If the registrar is satisfied, he may make entries into the reg-
ister under section 7.
§27. APPOINTMENT OF REGISTRARS
355. The second regulations under the Act – The Marriage and Divorce of
Mohammedans (Appointment of Registrars) Order (Statutory Instrument 252-1) –
provides for the appointment of all Resident District Commissioners as registrars
for the purpose of the Act. Registration of Islamic divorces may also be undertaken
by the URSB under section 3 of the URSB Act Cap 210. One of the functions of the
Bureau is to carry out all registration required under the relevant laws. It should be
noted that religious leaders or Imams who solemnize Muslim marriages are
excluded in the registration process.
§28. PAYMENT DUES
356. Registration of divorce has to be paid for. The third regulations under the
Act – The Marriage and Divorce of Mohammedan (Fee) Order SI 252-2) – provide
for the registration fees for divorce of UGX 50,000.432
§29. REMEDIES UPON DIVORCE
357. The Act does not prescribe the remedies of the parties upon divorce, but
the relief is given by the court. Section 18 of the Act specifically provides that the
Divorce Act shall not be applicable to parties who married under Muslim Law and
any relief to be given should be under Muslim law. The cited section states as fol-
lows:
432. This is equivalent to USD 15.

Nothing in the Divorce Act shall authorize the grant of any relief under that
Act where the marriage of the parties has been declared valid under this Act
but nothing in this section shall prevent any competent court from granting
relief under Mohammedan law; and the High Court and any court to which
jurisdiction is specially given by the Minster by statutory instrument shall have
jurisdiction for granting that relief.
§30. REMEDIES TO DIVORCING PARTIES UNDER ISLAMIC LAW
358. These may include the following:
§31. MAHR
359. Where the Mahr (a mandatory gift to wife by husband upon marriage) was
not paid, the wife upon divorce is entitled to its payment, since it is regarded as a
debt against the husband. This right is based on Quran 4:4.
§32. MAINTENANCE OF WIFE
360. The responsibility of the husband to maintain the wife after the dissolution
of marriage is provided under Quran 4:65. This also includes a right to accommo-
dation.433 This obligation applies within the three month period of pronouncing
Talaq. The wife should be maintained in the same way as before the divorce. If the
woman is pregnant at the time of divorce, the husband is expected to support her
until she delivers. The Sharia does not specifically state how much the husband can
spend on the woman. However, it gives guidance depending on one’s financial abil-
ity.434
§33. MAINTENANCE OF CHILDREN
361. After the divorce, the man is obliged to continue maintaining the children
of the marriage.
433. Quran 65:1.

434. Quran 65:7.

§34. MUTA’AH (CONSOLATORY GIFT)
362. Muta’ah is a gift which is laid down by Islamic law to be paid where a
divorce has not been caused by any defect on the part of the wife, or by an appli-
cation for fask for a defect or fault of the husband. It is payable not only in the case
of talaq by the husband but also in the case of Khul.435
§35. EFFECTS OF DIVORCE UNDER ISLAMIC MARRIAGE
I. Remarriage
363. One of the major consequences of divorce is the freedom to remarry. Under
Islam, the divorced parties are offered every possible opportunity to remarry one
another. However, divorced parties become free at the end of the waiting period to
marry whomever they wish.
II. Woman as an Independent Personality
364. In Islam, a woman is an independent personality who can contract or tes-

tament in her own name. The Quran gives a woman an absolute right to own, sell,
gift or manage her property which may include the property acquired by her as
Mahr. Her husband cannot take it back.436
§36. PROPOSED REFORMS WITHIN STATUTORY DIVORCE LAW IN UGANDA
I. The Marriage Bill 2017
365. The Marriage Bill 2017 proposes to make several changes within the law
and procedure on divorce in Uganda. These include the following:
i. Consolidation of the Legal Regime on Marriage and Divorce
366. The current divorce legislation in Uganda is found in several statutes

including the CMRA, the Marriage and Divorce of Mohammedans Act, the Divorce
Act, and the HMDA. The Marriage Bill seeks to repeal these existing laws and enact
one consolidated legislation on marriage and divorce in Uganda. This is partly in
response to the UN Convention on Elimination of all Forms of Discrimination
against Women (CEDAW) Committee Concluding Observations to Uganda’s 10th
periodic report (2010) where the Committee raised concern about the multiple mar-
riage regimes that apply in the country and urged the country to complete its law
reform in the area of marriage and family relations in order to bring its legislative
435. Quran 2:231, 2:241, 2:236, 33:49.

436. Quran 4:20.

framework into compliance with Articles 15 and 16 of the Convention. To this end,
the Committee called upon the government to review and amend, as necessary, the
existing fragmented laws on marriage and divorce.
ii. Irretrievable Breakdown of Marriage
367. Another proposal in the Marriage Bill 2017 is to move away from a fault-
based divorce. From the discussion above on grounds for divorce under the Divorce
Act Cap 249, it is clear that irretrievable breakdown of a marriage is not provided
for as one of the grounds for divorce in the Divorce Act. Irretrievable breakdown of
a marriage may be defined as the situation when either or both spouses are no longer
able or willing to live with each other, thereby destroying their husband and wife
relationship with no hope of resumption of spousal duties. Irretrievable breakdown
of a marriage is not provided for as one of the grounds for divorce in the Divorce
Act. Rather, parties are required to provide proof of marital wrongdoing. This is
referred to as ‘fault divorce’, or adversarial divorce. This is one which requires a
showing of the wrongdoing of either party through evidentiary proceedings before
a marriage can be terminated.
368. Section 24 of the Marriage Bill 2017 recognizes that marriage may break-
down with no blame on either spouse. Section 26 further states that a petition for
divorce shall be on the sole ground that the marriage has broken down irretrievably.
Of recent, courts in Uganda are increasingly relying on this condition to nullify mar-
riages. For instance, in Kiggundu v. Kiggundu,437 the court noted that it could not
foresee any realistic improvement materializing and that the denial of conjugal
rights for so many years was a serious matter, particularly where the respondent was
unable to give credible and reasonable explanation. The court went ahead to dis-
solve the marriage. Following in the same footsteps, the court reached a similar
decision in Julius Chama v. Specioza Rwalinda Mbabazi438 and stated that court
might also look at the facts in totality to determine whether a marriage has irretriev-
ably broken down.
369. In taking up with this position, courts view divorce as a regrettable, but
necessary, the legal definition of marital failure where often the factors leading to
the marriage breakdown were caused by the parties’ incompatibility and irreconcil-
able differences.
370. However, the Marriage Bill 2017 is yet to be passed into law, and there is
an urgent need to do this in order to consolidate and strengthen marriage and
divorce law in Uganda.
437. 2008 3 BLR 442 HC.


371–374
Chapter 3. Cohabitation Without Marriage

§1. WHAT IS COHABITATION?
371. Cohabitation is often referred to as a living arrangement in which an

unmarried couple lives together in a long term relationship that resembles a mar-
riage. Unless a man and woman undergo the procedures necessary for a valid mar-
riage as discussed above, the law does not recognize them as married, even if they
live together or have children together. This is important because the law avails cer-
tain rights and obligations to people who are legally married, such as the rights to
inheritance, property and family maintenance. Unfortunately, nearly 64% of Ugan-
dan couples live in cohabitation relationships.439 Many couples are victim to the
misconception that through cohabitation, they gain marital status, and yet such rela-
tionships have no legal protection.
372. For instance, in Jenifer Musamali v. Stephen Musamali,440 it was held that
although the appellant and the respondent had cohabited for years and had sired six
children, the essential requirements of a customary marriage – that is, negotiation
for dowry, payment of dowry and Gisu rituals to bless the marriage – were not sat-
isfied for the relationship to amount to a customary marriage. As such, the plaintiff
(Appellant) could not demand that the defendant (Respondent) provides her with a
matrimonial home.
373. This, however, does not in any way do away with the legitimate property
rights of such cohabitees (subject to proof) as provided for under the relevant laws
of Uganda relating to land, partnerships among others. This is illustrated in Mable
Sanger v. Efren Guerra441 where the court found that the party had a void marriage
ab initio since the defendant husband had contracted a second marriage with the
plaintiff, yet he still had a subsisting Christian marriage in Greece. The court noted
that such property acquired by the parties should not be distributed in accordance
with the laws of marriage, but in line with the laws governing the manner in which
the petitioner and the respondent acquired it.442
374. However, a slight progress has been made by the courts to protect cohab-
iting partners’ right to property. In the landmark decision of Haji Musa Kigongo v.
Olive Kigongo,443 the court found that no legally recognized marriage was present
between the two parties as there was no evidence of customary marriage that had
been contracted between the two parties. But rather, the two had cohabited for
nearly twenty-six years and had two children. As a result, the suited property could
439. UBOS, Uganda National Population and Household Census Report 2014 (2016), p. 16.
440. High Court Civil Appeal No. 1 of 2001. Also see, Ceaser Okumu v. Helen Dhugira & Ben Alex
Opar, HCCS No. 1 of 1997.
442. This may include the relevant land laws, company laws or partnership laws.

375–375 Part II, Ch. 3, Cohabitation Without Marriage
not constitute matrimonial property. However, in relation to sharing interest in prop-

erty, the court employed judicial activism and the principles of equity and promis-
sory estoppel, and held that since Musa Kigongo was estoppeled from denying
Oliver Kigongo an interest in the suited property since he held her out as his wife
and she too made contributions to the construction of the said property believing it
to be her ‘matrimonial home’. However, while the gains of this case are being cel-
ebrated, it should be noted that this landmark decision is currently a subject of an
appeal.
375. To further address the plight of cohabiting couples, especially in relation

right to property acquired during cohabitation, the ULRC is drafting a proposed
Cohabitation Bill.444 This is premised on the fact that the clauses relating to the divi-
sion of property in cohabitation relationships have been removed from the Marriage
Bill 2017. Previously, clause 155(1) of the Marriage and Divorce Bill 2009 pro-
vided that:
Where cohabitation terminates or a marriage is in the process of being dis-

solved, the court that determines property rights of spouses, may make an order
to equitably distribute property jointly acquired during the cohabitation or mar-
riage without regard to the reasons of breakdown of the marriage.
444. Interview with Officer ULRC on 17 May 2019.

376–379
Chapter 4. Filiation
§1. WHAT IS FILIATION?
376. This is the condition or fact of being a child of a certain parent.
§2. CHILDREN BORN IN WEDLOCK
377. These are children born to a couple during the course of their marriage.445
The presumption is that they rightfully belong to both the husband and wife.
§3. CHILDREN BORN OUT OF WEDLOCK
378. These are children born out of wedlock as those born of parents who were
not married at the time of birth.446 In Uganda, there is no differentiation between
children born in or out of wedlock.
379. As held by learned Justice Catherine Bamugemereire in Anne Asiimwe

Ndyomugyenyi v. Immaculate Asiimwe,447 that ‘all children are children of the law,
whether born in or out of wedlock’.
The law emphasizes that all children born in or out of wedlock have rights to
know and be provided for by their parents, as well as the right to inherit their par-
ents’ property even where a parent dies intestate. If an illegitimate child (child born
out of wedlock) is included in a will, they can rightly claim the property. This posi-
tion was first emphasized in Kajubi v. Kabali, where it was held that although no
valid marriage existed, the Kiganda custom recognized that both legitimate and ille-
gitimate children were entitled to inherit from or share in the estate of their deceased
father.448
445. Collins English Dictionary, available online at https://www.collinsdictionary.com/dictionary/

english/born-in-out-of-wedlock. (Accessed 12 Mar. 2019).
446. Ibid.
448. (1944) 11 EACA 34.

380–382
Chapter 5. Adoption
§1. DEFINING ADOPTION
380. Prior to the enactment of the Children Statute (now CA Cap 59) in 1996,
the law relating to children in Uganda was found in the Adoption of Children’s Act
Cap 216, Adoption of Children Rules 1997 and the Affiliation Act of 1964.449 The
efforts to reform the law on children in Uganda also dates back to the Kalema Com-
mission, which reviewed the laws of marriage, divorce, children and inheritance,
and made some recommendations for reform to improve the status of women.450
The reforms in relation to children were very limited and related to affiliation, legiti-
macy of children and their maintenance.451
381. Today, the laws governing matters relating to children, including adoption
in Uganda, are the 1995 Constitution, the CA Cap 59 and the Children (Amend-
ment) Act (CAA) 2016. It is the primary role and duty of parents to care for and
bring up their children.452 However, circumstances may arise where the parents are
unable or unwilling to care for the child, or it is not in the child’s best interest to
live under certain conditions. In such circumstances, the law allows for the options
of granting orders of custody, guardianship, adoption or foster care placement to
another person or persons or organization willing to take care of the child or chil-
dren in need of care. Article 34(1) of the Constitution provides:
Subject to the laws enacted in their best interest, children shall have the right
to know and be cared for by their parents or those entitled by law to bring them
up.
382. Adoption is the process by which parental rights and responsibilities of the
biological parents of a child are transferred by way of a court order to the adoptive
parent or parents of a child. The legal effects of adoption are stipulated in section
51 of the CA, which states that:
Upon an adoption order being made

a) All rights, duties, obligations and liabilities of the parents and guardian in
relation to the future custody, maintenance and education of a child, includ-
ing all rights to appoint a guardian and to consent or give notice of consent
to marriage, are extinguished; and
449. Irene Mulyagonja -Kakooza, Family Law Reform in Uganda: A Tale of Bitterness and Crocodile
Tears, (2001). A Paper presented at the Zimbabwe Regional Workshop on Family Law Reform, in
Harare between 12–15 January.
450. Irene Mulyagonja, supra note 114 p. 3.
451. Ibid., p. 6.
452. Constitution of Uganda 1995, Arts 31(4-5) & 34(1).

Part II, Ch. 5, Adoption 383–385
b) there shall vest in and be exercised by, and enforceable against the adopter
all such rights, duties, obligations and liabilities in relation to future cus-
tody, maintenance and education of the child as would vest in him or her
if the child were the natural child of the adopter born to him or her in law-
ful wedlock
383. In the Matter of Natalie Matama (Infant), Justice Tuhaise stated that in all
matters of adoption by granting the adoption order, it places the adoptive parent in
the ‘shoes’ of the child’s parent. As a result, an adoptive parent should be free to
move with the child anywhere like any parent would unless it is not in the child’s
best interest.453 Again, in the Matter of the Adoption of Victoria Babirye Namutosi
by Johnny Walters and Cheryln Walters, the court observed that adoption is the cre-
ation of a parent-child relationship by judicial order between a child and the adop-
tive parent.454
§2. JURISDICTION
384. The jurisdiction for grant of an adoption order is placed in the Magistrate
Courts where both the child and the adopter are Ugandans and in the High Court
where the child or the adopter is a non-Ugandan.455 In the Matter of Natalie
Matama, Justice Tuhaise observed that inter-country adoptions could only be
granted by the High Court.456 It is important to note that in Uganda, a child need
not be a Ugandan citizen to be adopted. What is vital is whether the child was found
within the geographical jurisdiction of Uganda.457
§3. RESTRICTIONS OR PRE-CONDITIONS FOR ADOPTION ORDER
385. An application/petition for an adoption order can be made by any respon-

sible adult – whether a Ugandan citizen or not – capable of undertaking parental
responsibility for a child. For instance, in the Re: Owen case, the Americans pro-
vided proof of their identity and financial capability by adducing letters of employ-
ment and passports to prove their suitability to adopt the infant.458 However, the law
provides for a number of prerequisites to be fulfilled by both a citizen (section 45)
and non-citizen (section 46) before the order of adoption can be granted.
453. Adoption Cause No. 289 of 2013.

454. High Court Adoption Cause No. 09 of 2017.
455. Section 44(1a and b).
457. Section 44(2).
458. Family Cause No. 20 of 2010.

386–390 Part II, Ch. 5, Adoption
§4. ADOPTION BY A UGANDAN CITIZEN

(a) Individual or Joint Applications
386. An application for adoption can be granted to the sole/individual person or

jointly to spouses.459
(b) Spousal Consent
387. Where an application is being made by an individual spouse, the consent

of the other spouse is required except where such spouse cannot be found or is inca-
pable of giving consent or it is clear that the parties are living apart or separated.460
(c) Age of Applicant
388. The applicant or at least one of the applicants in joint applications must
have attained 25 years and is at least 21 years older than the infant.461
(d) Existence of Exceptional Circumstances
389. The law prohibits the award of an adoption order is favour of a sole male
applicant with respect to a female child, and the sole female applicant with respect
to a male child unless the court is satisfied that there are special circumstances that
justify, as an exceptional measure, the making of an adoption order.462 In The Mat-
ter of Mirembe Nansamba Claire (A Minor), both parents of the child consented to
the grant of an adoption order to the uncle of the child. Although the applicant was
only 16 years older than the infant, he was providing the necessaries, and in that
regard, there were exceptional circumstances that warrant the grant of the adoption
order. Besides, the applicant is a maternal uncle of the child, has no criminal record
and understands the implication of the adoption order.463
(e) Foster Care Period
390. Originally, the law required that the applicant should have fostered the
child for a period of thirty-six months (three years) under the supervision of the Pro-
bation and Social Welfare Officer (PSWO) before the adoption could be granted.464
However, the CAA reduced this period to twelve months (one year).465 This fol-
lowed active judicial criticism that the three years period denied other children the
possibility of living in a more family or homely environment. For instance, In The
459. Section 45(1).

460. Section 45(1b) and (2).
461. Section 45(1a).
462. Section 45(3).
463. Miscellaneous Cause No. 25 of 2012.
464. Section 45(4).
465. Section 13 of the CAA.

Matter of Nicholas Mwanja & Anor (Children), which was an application for legal
guardianship by a foreign couple who did not satisfy the requirement for adoption
in Uganda but sought to obtain guardianship orders in Uganda and then eventually
adopt the child when in US, Justice Egonda-Ntende, in granting the guardianship
order to the foreign applicants, decried the legal constraints presented by adoption
laws under section 46 of the CA and stated inter alia that:
Before I take leave of this matter, I wish to draw the attention of the Govern-
ment to the unsatisfactory state of the law with regard to guardianship of chil-
dren and inter-country adoption. Based on the increasing frequency and
volume of applications for guardianship by non- residents and non-citizens of
this country in our courts, it is apparent that this is so because of the stringent
nature of the law with regard to inter-country adoptions that makes it virtually
impossible adoptions of children born and living in Uganda by non-citizens not
residents in Uganda … It appears to me that in effect Section 46 of the CA
effectively denies children the possibility of adoption and care, at times, of the
only adoptive parents available to them … In doing so, this may not be in the
best interest of those children in distress with no parents to look after them and
no offer from local adoptive parents. In such cases, it may well be that Section
46 of the CA runs counter to Article 34 of the Constitution that requires, inter
alia, laws relating to children to be in their best interest … . It is time to
reform this aspect of our law by making inter-country adoption possible where
there are no suitable local adoptive parents in order to ensure that all our chil-
dren grow up in the loving care of their natural parents or adopted parents and
are able to develop their full potential. This brings the law in line with not just
the Constitution but also international obligations.466
391. Consequently, In Re: Michael Benjamin Pietsch, where the applicants for
adoption order had fostered the child for thirty five months with only one year in
Uganda, Justice Egonda-Ntende granted the adoption order and further stated that:
If the provisions of section 46 of the CA are read as only directory and not
mandatory, it is then possible in appropriate cases, where the best interest of
the child in question militate towards waiving the remaining period, for this
court to grant an order for adoption notwithstanding the fact that a petitioner
or petitioners have fostered an infant for less than three years.467
392. The courts have in a number of cases waived the requirement for fostering
of the child for twelve months where exceptional circumstances exist and where it
is in the best interest of the child to do so. In the Matter of the Adoption of Victoria
Babirye Namutosi by Johnny Walters and Cheryln Walters, an adoption order was
granted although the petitioners had not fostered the child or lived in Uganda for
one year.468 In another case of Sidney Harper & Wendy Harper and Musinguzi
466. In Re Nicholas Mwanja & Anor (Children), Family Cause No. 0078 of 2009.
467. In Re: Michael Benjamin Pietsch, Family Cause No. 0102 of 2008.
468. Adoption Cause No. 009 of 2017, p. 3.

Davis (an Infant), the court granted an adoption order to the petitioners although
they had lived in Uganda for four years but only fostered the child for nine months.
The court exercised its powers to waive the requirements in exceptional circum-
stances as stipulated in section 14 of the CAA and in the child’s best interest.469
(f) Probation Report
393. The report of the PSWO is intended to guide the court in decision-making
regarding the grant of the adoption.470 However, the court may require any other
person or local authority to furnish the court with additional information.471
§5. ADOPTION BY A NON-CITIZEN (INTER-COUNTRY ADOPTIONS)
394. In the case of inter-country adoptions where the adopter is a foreigner, the
law expands to the prerequisites beyond those enshrined in section 45.472 These
include:
(a) Residence
395. The intended adopter should have stayed in Uganda for at least one year as
stipulated in section 14(a) of the CAA. This section amended section 46(1a) of the
CA, which required the applicant to have stayed in the country for three years. The
concept of residence or staying in the country was discussed by the courts in RE M
(An Infant) where it was held that the petitioners for adoption who lived partly in
Uganda and partly in Australia were not residents in Uganda within the meaning of
section 4(5) of the Adoption of Children’s Act Cap 216 and dismissed the petition.
On appeal, the justices of the Supreme Court held that residence must be given a
liberal interpretation to ensure the best interest of the child and granted the order.473
(b) Foster Care
396. The applicant should have fostered the child to be adopted for one year
before the order is granted.474 This was also a reform from section 46(1b) of the CA
that provided for a foster period of three years.
469. Adoption Cause No. 0001 of 2018, p. 3. Also see, In Re: Milly Muhairwe. Family Cause No. 0100
of 2008; In the Matter of An Application of An Adoption Order by Michelle and Thomas
Nikundikwe; Adoption cause No. 0005 of 2004, in which Justice Musoke-Kibuka held that in spite
of the fact that the applicants had only fostered the children for two years it was in the best inter-
ests of the infants that the adoption order be granted.
470. Section 45(5).
471. Ibid.
472. Section 46(3).
474. Children (Amendment) Act, s. 14(b).

(c) Criminal Record and Country Recommendation
397. The applicant must also prove to the court that he or she does not have a
criminal record and has a recommendation from his or her country of origin, con-
firming the suitability to adopt the child. Such a recommendation can be given by
the PSWO of the country of origin or any other competent authority.475 However,
additional information to guide the court and protect the best interest of the child
can also be sought from an advocate or a guardian ad litem for the child.476
(d) Recognition of Order by Foreign Country
398. The applicant must further prove that his or her country of origin will rec-
ognize the adoption order granted by the Ugandan courts.477 For instance, Justice
Mubiru, in In the Matter of Sydney Harper & Anor and Musinguzi Davis (An
Infant),478 while granting the adoption order recognized that the applicants had fur-
nished a twenty paged report about their suitability as parents to adopt the child and
also a confirmation that their country would recognize the adoption order if granted.
399. Suffice to note that the law allows the court in exceptional circumstances to
waive any of the requirements stated in section 46 if it is in the best interest of the
child.479 Furthermore, inter- country adoptions are to be used as a matter of last
option available to orphaned, abandoned or legally relinquished children, along a
continuum of comprehensive child welfare services.480 The continuum of child wel-
fare services refers to a broad range of preventive services and community-based
family-centred alternative care options which may include: family preservation, kin-
ship care, foster care and institutionalization.481
§6. OTHER GENERAL REQUIREMENTS
400. There are other additional requirements to the adoption order besides those
set out in sections 45 and 46 of the CA and section 14 of the CAA. These are:
(a) Consent
401. Where a child is to be adopted, the consent of the child’s parent where such
parent is known and can be found is necessary before the grant of the adoption
order.482 In the Matter of Adoption of Victoria Babirye Namutosi, the consent to the
475. Ibid., s. 46(1c & d) & 46(2).

476. Ibid., s. 14(5).
477. Ibid., s. 46(1e).
478. High Court at Arua, Adoption Cause No. 0001 of 2018, p. 3.
479. Section 14(4).
480. Section 14(6).
481. Section 14(7).
482. Section 47(1).

adoption order was granted by her biological father to the adoptive parents. In this
case, although both parents could be found, they were unfit to execute their parental
responsibilities towards the child. The father was an alcoholic while the mother suf-
fered from a mental illness that hindered her ability to care for her children.483 How-
ever, a parent who gives consent can before the pronouncement of the adoption
order withdraw his or her consent to the adoption.484 Where a child has no parent,
any person or organization having parental responsibility for the child can give their
consent to the adoption.485 In the Matter of Natalie Matama, the grandmother gave
her consent to the adoption of the child by the paternal aunt who had dual citizen-
ship of Uganda and the US but lived in the latter country where she wished to live
with the infant. Both biological parents of the child were deceased, and the child
was under the care of her grandmother.486
402. However, where the parent’s consent to the adoption is obtained under
fraudulent circumstances, the court can set aside the adoption order. This was the
case in the Matter of Peter Ssebuliba, where the mother’s consent to the adoption
of her son was not obtained, and she brought an application for a writ of habeaus
corpus.487
(b) Functions of the Court
403. Before granting the adoption order, the court must satisfy itself that:
(i) every person whose consent is required and is not dispensed with has con-
sented and understands the nature and effects of the adoption, namely that it
will permanently deprive the person of parental rights over the adopted child
neither the adopter nor the parents of the child/children have not received a
reward in money or non-monetary form for the adoption;488
(ii) the order if made will be for the welfare of the child, due consideration being
given to the wishes of the child having regard to his or her age and under-
standing;489
(iii) the applicant has not received or agreed to receive, and that no person has
made or agreed to make the applicant any payment or other rewards in con-
sideration of the adoption;490 and
(iv) the applicant or any person on behalf of the applicant has not paid or agreed
to pay money or anything in place of money to the parents, guardian or any
person in charge.491

484. Section 47(1).
485. Section 47(7).
487. Miscellaneous Cause No. 37 of 2009.
488. Section 48(a).
489. Section 48(b).
490. Section 48(c).
491. Section 48(d).

(c) Best Interest of the Child Principle
404. In all matters concerning children, the best interest principle is of para-
mount consideration. Section 3 of the CAA is to the effect that the most important
factor in determining issues of children whether, by a court, a tribunal, a local
authority or any person is the welfare and best interest of the child.492 The Act fur-
ther sets out the considerations that should be made by the court in ensuring that the
welfare principle is observed. Section 3(3) states that the court or any other persons
shall have regard to:
(a) the ascertainable wishes and feelings of the child concerned with due regard to
his or her age and understanding;
(b) the child’s physical, emotional and educational needs;
(c) the likely effects of any changes in the circumstances;
(d) the child’s age, sex, background and any other circumstances relevant in the
matter;
(e) any harm which the child has suffered or is at risk of suffering; and
(f) where relevant, the capacity of the child’s parents, guardian or any person
involved in the care of the child, and in meetings the needs of the child.
405. In a Petition by Elvanson Rovincer Gentry To Adopt The Infants,493 the

petitioner, Elvanson Rovincer Nantongo, was granted an adoption order for the
adoption of three infants as she was viewed as being fit to ensure the welfare and
protection of the rights of each of the infants. Similarly, In The Matter of Mukisa
Owen (Infant),494 the courts emphasized the importance of section 3 of the Chil-
dren’s Act Cap 59.
406. Furthermore, in the Matter of the Adoption of Victoria Babirye Namutosi

by Johnny Walters and Cheryln Walters, the court, in emphasizing the need for an
open adoption framework as opposed to a closed one between the biological par-
ents, child and adoptive parent, noted that:
when making decisions concerning children the welfare principle is para-

mount. As earlier mentioned, emotional welfare is critical and as important as
any other tenet of welfare. Unlike children who are very young and may not
recall anything about their birth parents, an 11-year-old child cannot simply
erase her background and family ties out of her mind.
407. It is vital to note here that the welfare or the principle of the best interest
of the child is also emphasized in both the United Nations Convention on the Rights
of the Child (UNCRC)495 and the African Charter on the Rights and Welfare of the
492. Section 3(1).

495. Article 3.

Child (ACRWC).496 Uganda domesticated these two instruments by enacting a law

on children.497 The court in, in the Matter of Hodkins Andrews (An Infant) noted
that, in all matters concerning children, the best interest of the child should be the
primary consideration. This principle is enshrined in Article 34 of the Constitution,
section 3 of the CA and the second schedule to the same Act, as well as various
international conventions concerning the rights of children.498
§7. RESCISSION AND REVOCATION OF ADOPTION ORDER
408. The adoption order, as has been noted, has the effect of transferring the
rights and responsibility of the child or children from the biological parents or
guardians to the adoptive parent.499 However, unlike its predecessor, the CAA pro-
vides for grounds where an adoption order can be rescinded or revoked. Section
46A states that:
1. The court may, in exceptional circumstances, rescind an adoption order on
an application by–
a) the adopter
b) a parent of the adopted child or another person who was a guardian in
respect of the child immediately before the adoption
c) the adoptive parent of the child
d) a person who consented to the adoption
e) the minister in the case of an inter-country adoption or
f) any other person with justifiable reasons.
2. However, an adoption order can only be rescinded only if:
a) it is in the best interest of the child, or
b) The order was obtained through fraud or misrepresentation
§8. EFFECTS OF RESCINDING AN ADOPTION ORDER
409. Where an adoption order is rescinded, the adoption shall cease to apply in
respect of the child concerned, and all other responsibilities, rights and other mat-
ters which had been previously terminated by the adoption order in respect of the
child shall be restored.500 In rescinding the adoption order, the court is required to
make an appropriate placement order in respect of the child concerned.501 In this
case, the court may order that the child be kept in temporary safe custody until an
496. Article 4.
497. Section 4(II) provides that Every child shall have the right to exercise, in addition to all the rights
stated in the Act, the rights set out in the UNCRC and the ACRWC with appropriate modifications
to suit circumstances in Uganda that are not specifically mentioned in this Act.
499. Section 51.
500. Section 46A(3 a & b).
501. Section 46A(4a).

appropriate placement order can be made,502 or it can make an ancillary order where
necessary for the restoration of the child.503
§9. DUTIES OF THE ADOPTIVE PARENT
410. In addition to obtaining parental rights and responsibilities over the adopted
child, the adoptive parent is obliged to ensure that the adopted child is a beneficiary
in his or her testament like all the other biological children.504 Where the adopter
dies intestate, the adopted child will still acquire an interest in the Estate of the
adoptive parent.505 Where such child is denied an interest, he or she can bring an
action in court for enforcing his interest.506 It is important to note, however, that
where the natural parents of the adopted child or children die intestate, such chil-
dren are prohibited from inheriting from the natural parent’s estate.507
411. The adoptive parent is further required to disclose the fact of adoption to
the adopted child when the child is of understanding age unless such disclosure is
not in the best interest of the child.508 In the Matter of the Adoption of Victoria
Babirye Namutosi by Johnny Walters and Chery in Walters, the court stated that
although the Ugandan law only recognizes a closed adoption, in light of the special
circumstances of the case – where the 11-year-old child knew her parents and sib-
lings and her alcoholic father had consented to the adoption whereas her mother was
mentally ill and unable to care for the children – ordered that the adoptive parent
keeps an open adoption framework with the biological parents of the child. It stated
that the adoptive parent must comply with section 54 of the CA and disclose all
information and facts of adoption to the child.509
502. Section 46A(4b).

503. Section 46A(4c).
504. Section 53.
505. Section 52(1).
506. Section 52(2).
507. Section 52(3).
508. Section 55.

412–413
Chapter 6. Parental Authority

§1. UNDERSTANDING PARENTAL RESPONSIBILITY
412. Parental authority or responsibility is defined to mean all rights, duties,

powers, responsibility or authority which by law, a parent of a child has in relation
to the child.510 All parents or guardians have parental responsibility for a child.511
Where natural parents are deceased, parental responsibility shifts to the relatives of
either parent or an approved home, or to a foster home.512 The parents have a duty
to provide for and live with their child or children.513 It is also the responsibility of
any parent, guardian, or person having custody of any child to maintain the child
and provide for their education, immunization, clothing, shelter, medical attention
and protect them from any form of discrimination, violence or abuse.514
413. Parental authority was explained by Hon. Mr Justice V.A.R Rwamisazi-

Kagaba In The Matter Of Alicia Mirembe (Minor) that:515
Because a child is incapable of exercising his rights due to the incapacity

caused by his tender age, the law has put in place mechanisms to enable the
child to have and enjoy those rights. It is with that incapacity in mind that a
person who may be a parent or guardian of the child is duty bound to avail
those rights to the child under the legal duty of parental responsibility.
510. Section 1(0) of the Children (Amendment) Act.

511. Section 6. Note that s. 5 of the CAA amends s. 6(1) to include ‘or a guardian’ to have parental
responsibility.
512. Section 6(2).
513. Article 31(4 and 5). Also see, Article 34 of the Constitution and s. 4 of the CAA on the rights of
children that must be observed and protected by parents and all other persons.
514. Section 5.
515. Misc Application No. L 49 of 2003.

414–416
Chapter 7. Guardianship
§1. DEFINING GUARDIANSHIP
414. Section 1(k) of the CA defines a guardian as a person having parental

responsibility for a child. Parental responsibility refers to all rights, duties, powers,
responsibilities and authority, which by law, a parent of a child has in relation to the
child. The guardian may be appointed by the court at its discretion, by the child or
the biological parents of the same child. Such guardian assumes parental responsi-
bility for the child, but unlike in the case of adoption, guardianship does not extin-
guish the natural parental rights and obligations over the child.516 In the Matter of
Hodkins Andrews (An Infant), the court stated that:
A guardian must be a person who is ready to place himself/herself, in relation

to the child, in loco parentis for purposes of its care and welfare. A guardian
should have the child in his/ her charge and actually look after it. He/ She
should be able to exercise powers of control over the child. While ensuring that
the physical well-being of the child is cared for, a guardian should also ensure
that its legal rights are protected. A Guardian should be a person who can rea-
sonably be expected to take whatever action may be necessary or desirable on
behalf of an infant.517
415. Just as is the case with adoption, the welfare principle must be adhered to
when granting guardianship orders. In The Matter Of Alicia Mirembe (Minor),518 an
order of guardianship was granted as the court believed that the applicant was in a
position to provide for the welfare of a child who was abandoned to die prior to liv-
ing with the applicant. Here, there was an application for guardianship brought
under section 16 of the judicature Statute, section 101 of the CPA, Rules and Order
48, Rules 1 and 3 of the CPR and the provisions of the children Statute.
416. In the Matter of Mukisa Owen (Infant),519 Guardianship was discussed in

an adoption application, where the court had to determine whether the American
citizens were suitable guardians for the 2-year-old child. Furthermore, in the Matter
of Moses Mukisa (An Infant), the court granted guardianship orders to two foreign
applicants. The application for guardianship was consented to by the child’s grand-
parents, who were unable to take care of him. In finding the applicants suitable per-
sons and granting the order, the court relied on the welfare principle and stated that:
In the circumstances, I am of the considered view that it is in the best interest

and welfare of this child that this order is made. The applicants are in a better
position to provide the infant with a better future and basic needs since they
516. Section 6 of the CA emphasizes that parental responsibility is placed on a parent or guardian of a
child.
518. Miscellaneous Application No. 49 of 2003.

417–420 Part II, Ch. 7, Guardianship
can afford to offer the same. They can afford to offer good education, shelter,
medication and love. They have demonstrated to court that they are able and
willing to offer the same to the infant. I will therefore answer this issue in the
affirmative.520
417. It should be noted that prior to the enactment of the CAA, the CA had no
clear ground or criteria for consideration before granting of the guardianship order.
The applications were largely subject to the best interest of the child principle and
the discretion of the High Court. Today, the CAA introduces various types of guard-
ianships, clarifies who can apply for guardianship, the question of court jurisdic-
tion, and lays out a number of prerequisites to be satisfied before the grant of a
guardianship order as herein discussed.
§2. WHO CAN APPLY FOR GUARDIANSHIP?
418. To begin with, an application for guardianship can only be made by a per-
son above 18 years.521 By constitutional standard, such a person is an adult with
capacity to found a family.522 In the Matter of Application of Guardianship by Rod-
rigo Boniface, the court stated, inter alia, that:
a guardian can be anyone: relative, friends of the family, or other people suit-
able to raise the child … For an applicant to qualify as a guardian, he or she
must be an adult of sound mind, should have genuine interest in the child’s
welfare, there must not exist any conflict of interest between the applicant and
the child, and the applicant must be physically able to fulfil the responsibili-
ties, must be able to handle the physical demands of raising a child, must have
enough time to care for the children, must not be likely to exploit or abuse the
children … should have values or morals the court should feel comfortable
with.523
419. However, it should be noted that the CAA prohibits the grant of guardian-
ship orders to foreigners. Section 43A (2) prohibits a non-Ugandan citizen from
applying for legal guardianship. Indeed, in the Matter of Emanuel Kisakye (Child),
the court noted that although the CAA barred foreigners from obtaining guardian-
ship, the law does not act retrospectively. Hence, in the circumstances of this case
where the matter was filed before the coming into force of the CAA and in the best
interest of the child, the guardianship order was granted.524
420. There are three categories of guardianship recognized by the law. These
are:
520. Family Cause No. 003 of 2012, p. 5. Also see, In the Matter of Application of Guardianship by
Rodrigo Boniface, Family Cause No. 0003 of 2017.
521. Section 43B of the CAA.
522. Article 31(1) of the Constitution.

Part II, Ch. 7, Guardianship 421–424
(a) Legal Guardianship
421. The law prohibits non-Ugandan citizens from obtaining a guardianship

order. Section 43A on legal guardianship states that:
(1) This part applies to the guardianship of children in Uganda by citizens of

Uganda.
(2) A person who is not a citizen of Uganda shall not be eligible to apply for legal
guardianship.
(b) Customary Guardianship
422. In recognition of the extended family fabric in our African society, as well
as to avoid lengthy legal processes, the law permits family members to appoint a
guardian of a child in accordance with the customs, culture and traditions of a given
family. Such customary guardianship may arise in circumstances where:525 (a) both
parents of the child are deceased or cannot be found, (b) the surviving parent is inca-
pacitated, or (c) the child has no guardian or any other person having parental
responsibility for him or her.526 In this case, the family need not go to court. How-
ever, the customary norms followed must comply with Article 2 of the Constitution
that guarantees the practice of customs that are not inconsistent with the Constitu-
tion, which is the supreme law of the land.527
(c) Guardianship by Agreement
423. Here, the natural parents of the child may, by agreement or deed, appoint
any person to be a guardian.528 However, for such agreement to be recognized, it
must be dated and signed by the parent and witnessed by the PSWO and a Local
Councillor at LC 1 level.529
§3. JURISDICTION
424. Applications for guardianship order must be made before the High Court
and must be accompanied by the report of the PSWO.530 In the Matter of Nassuna
Suzan (An Infant), the High Court granted guardianship orders and relied on the
525. Section 43C(4) defines customary guardianship to mean parental responsibility of a Ugandan child
by a Ugandan citizen resident in Uganda in accordance with the customs, culture or traditions of
the respective people.
526. Section 43C(1).
527. Also see, Art. 37 which grants the right to culture.
528. Section 43D(1).
529. Section 43D(2).
530. Section 43B(b) and (d).

reports by the PSWO, a Cousin to the infant, who had custody of the infant at the
material time and also a report from the Local Council chairperson.531
§4. JOINT GUARDIANSHIP
425. The court may appoint any two or more persons to be joint guardians of
the child and where the joint guardians disagree on any matters relating to the wel-
fare of the child, they can apply to the court for its guidance and discretion.532
§5. CONDITIONS FOR GRANT OF GUARDIANSHIP
426. The courts make a guardianship order upon consideration of the following
factors:
(a) there is no known relative of next of kin of the child;

(b) the relatives or next of kin are unwilling or unable to take parental responsibil-
ity of the child;
(c) all alternative care options available to the child have been exhausted;
(d) the child is suffering or likely to suffer significant harm under the present cus-
tody;
(e) considerations have been given to the wishes of the child, having regard to the
age and understanding of the child, where in the view of the court, the child is
able to understand the guardianship proceedings; and
(f) where the child is 12 years of age or above, his or her consent to the guardian-
ship has been obtained, unless it is impossible for the child to express his or her
consent.533
427. The court must further satisfy itself under Section 43F(2) that the appli-
cant:
(a) has continuously lived in Uganda for at least three months;

(b) does not have a criminal record (this can be proved by furnishing a certificate
of good conduct obtained from Interpol if the applicant in Ugandan);
(c) has a recommendation concerning his or her suitability as a guardian from a
PSWO or other competent authority in Uganda or in the applicant’s country of
residence.
428. Furthermore, the court must also satisfy itself that the applicant has not
made or agreed to receive any reward in consideration of the guardianship.534 In the
Matter of Emayu (An Infant), the guardianship order was granted on the basis of the
531. High Court Family Cause No. 199 of 2010.

532. Section 43E.
533. Section 43F.
534. Section 43F(3).

Part II, Ch. 7, Guardianship 429–431
report of the Local Council leaders and the social worker, and the applicant proved
that they had received no reward in consideration of the guardianship applica-
tion.535 And that the consent of any relevant person has been obtained, except where
circumstances can permit the court to dispense with such consent.536 The court’s
decision can also be guided by the report of the PSWO, the local council authority,
or any other person competent to make a report before it.537
§6. EFFECTS OF A GUARDIANSHIP ORDER

(a) Parental Responsibility
429. The guardianship order vests parental responsibility of the child in the
guardian and remains in force until the child attains 18 years.538 However, where
the guardian dies or suffers from an infirmity of body and mind that hinders their
competence to undertake parental responsibility, the guardianship order shall
cease.539
(b) Property Management
430. Besides, a guardian also has the right to administer the property of the
child. While executing this mandate, the guardian holds the property in trust for the
child.540 For instance, in the Matter of Elijah Amumpaire and Elisheba Nsiimire
(Infants), an application was made by the infants’ biological parents for grant of
guardianship orders to enable the parents to obtain a loan and mortgage it with prop-
erty registered in the names of the infants. The guardianship order was granted as
it was in the best interest and welfare of the infants.541
431. Again, in the Matter of Application of Guardianship by Rodrigo Boni-

face,542 Justice Mubiru stated, inter alia, that:
A guardian by virtue of that status, is authorised to make legal, financial, shel-

ter, education, food and health care decisions of the ward, but may be … in
case the guardian will manage the ward’s finances and property and provides
records to the court. The guardian acts as a legal parent of the ward for the
entirety of the guardianship. Although the guardian has the same responsibility
to care for the ward as the parent would, a guardianship order does not sever
the legal relationship that exists between the child and his or her biological par-
ent. Instead, it co-exists with that legal relationship.

538. Section 43H(1) and (2).
539. Section 43H(3).
540. Section 43C(2).
541. Family Cause 155 of 2015.

432. Furthermore, in the Matter of An Application for Guardianship by Wan-

dera Peter, the court, in granting guardianship order to the biological father of the
4-year-old child for the management of her property, stated, inter alia, that:
Since the child has real property in her name, the guardianship in this instance
will involve management of the child’s property. For that reason the applicant
must meet additional requirements: he should be capable of taking control over
the child’s real and personal estate, and make decisions in the best interest of
the child. His interest should not be adverse to those of the child, in the estate
for which he proposes to act as a manager. He should be able to keep safely
the property of the child. He must be capable of not permitting any unneces-
sary waste or destruction of the real property, nor make a sale of such property
without the order of the court, but must so far as it is in his powers, maintain
the same, with its buildings and appurtenances, out of the income or other
property of the estate, and deliver it to the child or the successors of the child
at the close of his guardianship, in as good condition as he received it.543
433. It is an offence for any person to misappropriate the property of a child.

Any person convicted of committing such acts is liable to imprisonment for a period
not exceeding five years or a fine not exceeding one hundred and fifty currency
points.544
§7. REVOCATION OF A GUARDIANSHIP ORDER
434. An application for the revocation of a guardianship order can be made to

the High Court by the PSWO or a relative of a child.545 The court may revoke the
order where it is established that the guardianship order was obtained by fraud or
misrepresentation; or where the guardian has not complied with the conditions
issued by the court in respect of the child. It can also be revoked where the guard-
ian has neglected the parental responsibility for the child.546 In the event of such
revocation, the court shall exercise its discretion and place the child under alterna-
tive care subject to the submissions of the Minister of children affairs.547

544. Section 43C(3). Also see, s. 43M which makes it an offence for an administrator of the estate of a
child to neglect, misappropriate, waste or occasion loss or damage to any asset forming part if the
estate of the child.
545. Section 43K.
546. Section 43K (2a-c).
547. Section 43K (3).

435–439
Chapter 8. Kinship and Relationships of Affinity

435. Kinship, according to Black’s Law Dictionary, means a ‘relationship by
blood, marriage, or adoption’.548 On the other hand, affinity refers to a relationship
by marriage, i.e., ‘the relation that one spouse has to the blood relatives of the other
spouse’.549
436. There is no specific statutory law governing relationships by kinship or

affinity. However, legal recognition of kinship and affinity arises in customary law,
marriage laws, succession law and penal laws in relation to prohibited degrees of
marriage, bequeaths and inheritance, and the offence of incest respectively. Under
customary law, persons belonging to the same clan are prohibited from marrying
each other as doing so amounts to incest.550 This was the case in the matter of
Bruno Kiwuwa v. Juliet Nammazzi & Anor.551
437. As earlier discussed, the Second Schedule to the CMRA also spells out a
number of kinship and affinity relationships that, if violated, amount to incest.
Under the MA, as already discussed, a marriage is void where the parties to it are
related by consanguinity, kindred and affinity.552
438. Also, under Islamic law, persons related are barred from marrying each
other. On its part, the MDMA does not spell out the prohibited degrees of marriage.
However, Verse 4:23 of the Quran provides for fourteen kinds of women that a man
is prohibited to marry. These are categorized into three groups:553
– First, women to whom the man is related by consanguinity (Nasab). These

include: mother, sister, daughter, paternal aunt, maternal aunt and niece.
– Second, women to whom the man is related by fosterage (Al-Rida).
– Third, women to whom the man is related by affinity (Al- Musaharah). These
include: mother-in-law, step grandmother, daughter-in-law and step daughter.
439. Furthermore, under section 149 of the PCA, it is criminal to have sexual
relations with a person with whom one is related. The Act further outlines a number
548. Black’s Law Dictionary, supra, p. 949.

549. Ibid., p. 67.
550. The Second Schedule to the CMRA also spells out a number of incestuous relationships.
552. Section 34 of the Marriage Act.
553. Muhamud Sewaya, ‘State of Muslim Family Justice: A Critical Examination of the Law Governing
Muslim Marriages and Divorce in Uganda: in The Politics of Putting Asunder. The Family, Law
and Divorce in Uganda’ in Maria Nassali (ed.), Fountain Publishers 297 (2017).

440–440 Part II, Ch. 8, Kinship and Relationships of Affinity
of relationships by kinship or affinity that are covered by the law.554 In addition,

incestuous adultery is also a ground for divorce.555
440. The law on succession also recognizes kinship and consanguinity. It defines
kindred or consanguinity as the connection or relation of persons descended from
the same stock or common ancestor.556
554. Section 149 these relationships include: a mother, mother’s daughter, daughter, father, father’s
mother, mother’s mother, son’s daughter, daughter’s daughter, sister, wife’s mother; wife’s daugh-
ter, father’s sister, mother’s sister, brother’s daughter, sister’s daughter, father’s brother’s daughter,
mother’s sister’s daughter, son’s wife, father’s wife, father, father’s son, son, father’s father, moth-
er’s father, son’s son, daughter’s son, brother, husband’s son, husband’s father, father’s brother,
mother’s brother, brother’s son, sister’s son, father’s brother’s son, mother’s brother’s son, daugh-
ter’s husband, mother’s husband.
555. See, s. 4(2)(b)(i) of the Divorce Act.
556. Succession Act, Cap 162, ss 19–23.

441–443
Part III. Matrimonial Property Law
Chapter 1. Rights and Obligations of Spouses

§1. DEFINITION OF MATRIMONIAL PROPERTY
441. The importance of determining what the matrimonial property is and how
such property should be distributed between spouses upon dissolution of marriage
cannot be over emphasized. Disputes arising from family wrangles relating to shar-
ing matrimonial property have the potential to escalate not only into domestic vio-
lence but also death.557 This, therefore, creates the need to focus on this aspect of
matrimonial property as a key factor in the health of the social relationship of mar-
riage, especially at its dissolution.
442. There is no statutory definition of matrimonial property. However, case law

has attempted to remedy this. In Hope Bahimbisomwe v. Julius Rwabinumi,558 the
matrimonial property was defined as property that is owned by reason of spouses
having been married to each other. It includes all the composite property which the
couple refers to as their matrimonial home, where they live and stay, bring up chil-
dren, as well as land from which they earn a living or on which their home is situ-
ated.
443. In an earlier case of Muwanga v. Kintu,559 the presiding judge attempted to

develop guiding principles for determining what amounts to marital or matrimonial
property. In this case, Justice Bbosa observed that:
Matrimonial property is understood differently by different people. There is

always property which the couple chose to call home. There may be property
which may be acquired separately by each spouse before or after marriage.
Then there is property which a husband may hold in trust for the clan. Each of
these should be considered differently.
557. Atim Patricia, ‘The Shield Is Still Porous: The Protection of Spousal Interest in Matrimonial Prop-
erty in Uganda’ in Maria Nassali (ed.), The Politics of Putting Asunder. The Family, Law and
Divorce in Uganda (2017).
558. Civil Appeal No. 10 of 2009 of March 2013.
559. High Court Divorce Appeal No. 135 of 1997.

444–447 Part III, Ch. 1, Rights and Obligations of Spouses
444. This chapter focuses on matrimonial property and the rights and obliga-
tions of spouses in that regard. It will focus on the legal principles governing the
same within the different legal regimes in Uganda.
445. There are several laws governing the distribution of matrimonial property
upon dissolution of marriage. The key legislations in this regard are: the Divorce
Act Cap 249, the Marriage and Divorce of Mohammedans Act Cap 252, the Land
Act of 1998, Cap 227, and the Succession Act Cap 162. This section will majorly
discuss the Divorce Act, as aspects of property under the succession law will be dis-
cussed in the preceding section. The focus will also be made to the principles gov-
erning matrimonial property upon dissolution of customary and Islamic marriages.
Case jurisprudence emanating from the interpretation of all these aspects in the dif-
ferent laws will also be highlighted.
§2. GENERAL PRINCIPLES
I. Equal Right of Ownership to Property
446. The right to property is a constitutionally guaranteed right. Article 26(1) of

the Constitution of Uganda provides that ‘every person has a right to own property
either individually or in association with others’. This constitutional provision
allows parties to a marriage – both women and men – equal rights to own matri-
monial property individually or jointly with their spouses or with other people.
447. Furthermore, the Constitution under Article 21 provides for equality of all
persons before the law in all spheres of life and provides for their equal protection
under the law. This was reiterated by the Court of Appeal in Kabandize and 20 Oth-
ers v. Kampala Capital City Authority,560 where it was held that all parties are equal
before the law. Article 31 further provides for equal rights of men and women at
marriage, during the marriage, and at its dissolution. The Constitution prohibits any
laws, customs, cultures and traditions that treat women unfairly or deny women the
same opportunities as men.561 This extends to unfair practices that may deny women
access to matrimonial property. Other statutory laws that contain affirmative actions
clauses that protect women’s right to the property include the Land Act,562 the Mort-
gage Act563 and Bankruptcy Act.564 It should, however, be noted that there is a Mar-
riage Bill in the offing which will correct the position of married women with regard
to matrimonial property rights. Parts of the said Bill will be discussed I later sec-
tions.

561. Article 32.
562. 1998 as amended by Land Amendment Act 2014. See ss 38A and 39 on protection of matrimonial
property.
563. Cap 229, s. 6.

Part III, Ch. 1, Rights and Obligations of Spouses 448–449
II. Spousal Consent
448. The Land Act specifically protects the property rights of married people.
This legislation preserves the right of both husbands and wives to use and live on
family land. In this regard, family land is defined as land where the family home is
situated; that helps sustain the family (such as land for used for agriculture or land
from which the family earns an income), or land that according to the family’s
norms, custom or tradition is called family land.565 Both spouses – husbands and
wives – must seek the approval of the other spouse before carrying out any trans-
action on family land. Such transactions include sale, exchange, mortgage or lease.
Enid Tumwebaze v. Mpereirwe Stephen & another566 emphasized that the provi-
sions of section 39 of the Land Act on spousal consent are mandatory and cannot be
circumvented.567 The family land, in this case, included a homestead and a banana
plantation. Hon. Justice Bashaija opined that even transacting in family land on
which a banana plantation was, in this case, would necessitate spousal consent as it
formed part of ‘land on which the person ordinarily resides’. Section 38A of the
Land Act, which replaced section 39 gives every spouse security of occupancy in
family land, which means a right to access and right of residence therein.
449. The Mortgage Act, 2009 is an accessory to the Land Act in providing for
the requirement of spousal consent before the property can be mortgaged. Accord-
ing to section 5 of the Act, a mortgage of a matrimonial home will be valid if
assented to by the mortgagor and his or her spouse(s) living therein. Section 6
obliges an intending mortgagee to inquire whether there has been informed and
genuine consent of the spouse and their signature confirming that they have not only
assented but also fully understood the terms and conditions of the mortgage.568 The
same requirement applies to customary land.569 This principle was illustrated in
Alice Okiror & Anor v. Global Capital Savings 2004 & Anor,570 where the court
nullified the mortgage transaction on the grounds that ‘no written consent was
adduced in evidence to prove that the 2nd Plaintiff consented to the mortgaging of
the property’. The property in question was regarded as family land within the
meaning of sections 39 and 38(A) of the Land Act.571
565. Land Act 1998, as amended.

566. HCCA No. 039 of 2010.
567. Section 39 provides for the requirement of spousal consent in dealing with land upon which the
marital home is or land that sustains the family. It is to the effect that a spouse is not permitted to
sell, exchange, transfer, pledge or lease family land without prior consent. Section 39 was subse-
quently amended by s. 20 of the Land (Amendment) Act 2004 which introduced s. 38A and further
substituted s. 39. The amended s. 39 stipulates that ‘no member of the family shall sell, exchange,
transfer, pledge, mortgage or lease of any family land or entered into any contract for the sale
exchange, transfer, pledge, mortgage or lease of any family land’.
568. Wamono v. Equity Bank & Another; Agnes Bainomugisha v. DFCU Ltd., HCT-00-CC-MA-0435-
2007.
569. Section 7 of the Mortgage Act.
571. Ibid.

§3. FACTORS TO CONSIDER IN DIVISION OF PROPERTY UPON DISSOLUTION OF

MARRIAGE
450. Notably, there is no formula in Uganda setting out how assets are to be split
upon divorce. All assets are identified and valued as part of the process of working
out what there is to divide up. The home and any other property are included on the
list regardless of whose name the property is in. In this regard, therefore, the courts
determine each case of dissolution of property between spouses based on the law
applicable in force at the time, as the facts of each case dictate. In distributing prop-
erty at the time of divorce, the courts are guided by the following rules.
i. Contribution/Share
451. The basis of entitlement to the matrimonial property by spouses in Uganda

is Article 31 of the Constitution which provides that men and women of the age of
18 years and above have a right to marry and have a family and are entitled to equal
rights at marriage, during and at its dissolution. As a matter of right and in the nor-
mal course of things, a spouse to a marriage in case of a breakup of that marriage
is entitled to share equally in that property which both spouses have contributed to
and have chosen to refer to ‘as their own’.572 The extent of the share is decided upon
by court depending on the context of the individual contribution of each spouse in
all or part of the property.
452. This position is a long journey of progress from what Uganda inherited as
its property law upon colonization in 1900. According to common law, a woman
was regarded as the property of her husband and thus totally incapable of acquiring
and holding property independently. The law presumed all property in the matrimo-
nial home to belong to the husband. The English case of Gissing v. Gissing573
affirmed this when it ruled that indirect contributions such as the purchase by the
wife of furniture and household expenses were not substantial enough to acquire an
interest in the matrimonial home. This was also reflected in the East African case of
Lalai v. The Queen.574 Later decisions, however, began to recognize that women
could hold property in their own right. This position was transformed through the
passing of the Married Women’s Property Act in England in 1882.575 Resultantly, in
572. Married Womens’ Property Act 1882, in Atim Patricia supra note 557.
573. 1970 2 ALL ER 780.
574. 1956 23 EACA 609.
575. According to the Act, married women could own property in their own right separate from their
husbands, and could dispose of it as they wished. Previous to this, women were dominated by men
and marriage was not an option but a necessary means to survival. All that belonged to the wives
belonged to their husbands.

order for a spouse to acquire an interest in the property, they had to demonstrate sub-
stantive financial contribution as evidenced in cases such as Petitt v. Petitt576 and
Re Nicholson.577 Jenina Kyanda also cited the 1882 Act and its applicability in
Uganda.578
453. The above cases set a precedent that was later to be followed by the courts
in Uganda as witnessed, for instance, in the ruling in Edita Nakiyingi v.
Merekizedeki579 which protected a woman’s right to the home through the doctrine
of equitable estoppel where she had made substantial contribution to property on the
encouragement of her partner. In this case, the court held that the matrimonial home
was owned and jointly held by both partners.
454. There is now more clarity on the aspect of contribution as has been eluci-
dated upon by the Supreme Court in Julius Rwabinumi v. Hope Bahimbisomwe.580
Here, Supreme Court Justice Kisakye observed that while Article 31(1) of the
Uganda Constitution (1995) guarantees equality in treatment of either the wife or
husband at divorce, it does not necessarily require that all property, either individu-
ally or jointly acquired before or during the subsistence of a marriage, should in all
cases be shared equally upon divorce. As she states:
In my view the Constitution of Uganda, while recognizing the right to equality

of men and women in marriage and its dissolution, also reserved the consti-
tutional right of individuals, be they married or not to own property either indi-
vidually or in association with others under Article 26 (1) of The Constitution
of Uganda (1995). This means that even in the context of marriage the right to
own property individually is preserved by our constitution as is the right of an
individual to own property in association with others who may include a
spouse, children, siblings or even business partners. If indeed the framers of
our Constitution had wanted to take away the right of married persons to own
separate property in their individual names, they would have explicitly said so
… .581
455. The above position is hinged on the fact that by providing for the equality
in marriage, the 1995 Constitution also reserved the right of individuals, be they
married or not, to own property either individually or in association with others
which may include a spouse, children, siblings or even business partners.582 As
such, the claimant may have to prove that he or she contributed to the acquisition
of the said property either through direct monetary or non-monetary contribution.
This could be either through the payment of the purchase price or mortgage instal-
ments or indirectly through payment of other household bills and other family
576. [1969] 2 WLR 966.

577. [1974] l WLR 476.
578. 1977 HCB 11.
579. 1978 HCB 107.
580. Esther Kisakye JSC, in Rwabinumi v. Bahimbisomwe, cited in Atim Patricia supra note 557.
581. Ibid., in Atim, The Shield is Still Porous, supra note 557.
582. See, Art. 26(1).

requirements such as child care and maintenance and growing food for feeding fam-
ily. Mayambala v. Mayambala583 is illustrative in this regard.
456. What is clear from these facts, therefore, is that not every property acquired
by either spouse during the subsistence of the marriage constitutes matrimonial
property. There is a need to ascertain the contribution by the claiming party before
she or he can gain an interest in the contested property. Thus, in the absence of statu-
tory provision, there can be no suggestion that the status of marriage per se results
in any common ownership or co-ownership of property.
457. This principle borrows from common law which recognizes contribution in
different ways to the acquisition of property. The contribution may be either direct
or indirect. The English case of Falconer v. Falconer584 stated that financial con-
tribution might be direct, whereby a particular party actually contributes towards a
property through financial instalments. Indirect contribution, on the other hand,
could be in the form of housekeeping while the other party goes to work outside the
home. Similarly, in Gissing v. Gissing,585 Lord Reid explained that when the wife
makes direct contribution to the purchases by paying something either to the vendor
or to the building society which is financing the purchase, she gets a beneficial inter-
est in the house although nothing was ever said or agreed about it between her and
her husband. In this way, the wife’s contributions are indirect by way of paying a
sum of money which the husband would otherwise have had to pay towards acquir-
ing the property.
§4. DETERMINING CONTRIBUTION OF THE SPOUSE TOWARDS MARITAL

PROPERTY
458. The courts have looked at the contribution of each spouse to set a yardstick
in determining how to divide and distribute matrimonial property. The courts in
Uganda have held that the contribution of the spouse towards the marital property
may be direct and monetary or indirect and non-monetary. In Muwanga v. Kintu,586
Bbosa, J. adopted a wider view of non-monetary indirect contributions by follow-
ing the approach of the Court of Appeal in Kivuitu v. Kivuitu.587 In Kivuitu’s case,
the wife took out summons seeking among other orders, that the matrimonial home
be sold, and property be shared between her and her spouse. Court found that the
wife indirectly contributed towards payments for household expenses, preparation
of food, and purchase of children’s clothing, organizing children for school and gen-
erally enhanced the welfare of the family and that this amounted to a substantial
indirect contribution to the family income and assets which entitled her to an equal
share in the couples’ joint property. Likewise, Justice S. B Bossa in the Kintu case

584. 1970 3 ALL ER 440.
585. Gissing case supra note 573.
587. [1990 – 1994] E.A. 270.

explained that the spouse is also entitled to share in the property and the extent of
the share to be decided upon by court depending on the extent of the individual con-
tribution of the spouse.
459. This is a move away from the earlier cases such as the decisions in May-
ambala v. Mayambala and Edita Nakiyingi v. Merekizedeki which are older cases
which followed the principle in the English cases of Gissing v. Gissing and Petitit
v. Petitt on the need for proving direct monetary contribution and substantial non-
monetary contribution for a spouse to acquire interest. With the emergence now of
later cases, such as of Kivuitu v. Kivuitu, Muwanga v. Kintu and now Rwabinumi v.
Bahimbisomwe comes the recognition of the non-monetary contribution of spouses
to matrimonial homes, giving rise to an interest in the matrimonial property hence
a 50/50 divide. An even more recent decision in Katuramu v. Katuramu588 adds an
interesting dimension to the principle of non-monetary contribution. In this case, the
judge stated that even love making that gives the husband the best relaxation and
peace of life is regarded as a contribution to the matrimonial home.
460. In his words, the Judge had this to say:
It is not tenable that the Respondent having not contributed monetarily,

because contribution does not only have to be monetary but can be in other
forms. These include cooking, opening the gate, caring for children, attending
to the sick, receiving visitors, fetching water, making tea and washing clothes,
tiling land, grazing animals and above all making love, which is the climax of
a man’s happiness on earth.
461. However, the principle of substantial monetary or indirect substantial mon-

etary contribution still holds in case of spouses wishing to acquire an interest in
another spouse’s property which does not qualify as matrimonial property.589
462. Thus, based on the principle of contribution, there can be no presumption

that any or all property acquired during the subsistence of the marriage must be
treated as being jointly owned by the parties, that is, common ownership or
co-ownership. The general practice of courts in presuming common ownership or
co-ownership of property is in respect of such property that is registered in the
names of both spouses or property registered in the names of one spouse but in
respect of which there is evidence of the other spouse’s contribution to the purchase
of the property. In such cases, the spouses will be considered to be equal owners or
in some other proportions. This is illustrated by the decision Pettitt v. Pettitt,590
where Lord Upjohn opined, thus:
588. HCT – 01 – CV – MA No. 026 of 2017.

589. See case of Basheija v. Basheija HC Divorce Cause No. 12 of 2005 where the court, before grant-
ing petition for divorce clustered the property which qualified as matrimonial property and that
which did not.
590. Supra note 576 at p. 991 para. H.

But where both spouses contributed to the acquisition of property, then my own
view (of course in the absence of evidence) is that they intended to be joint
beneficial owners, that is so whether the purchase be in the joint names or in
the name of one. This is a result of an application of resulting trust.
463. It is, therefore, fully possible for property rights of parties to the marriage
to be kept entirely separate. All in all, determination of whether spouses should be
considered to be equal owners or in some other proportions depends on the circum-
stances of each case.591
464. In cases involving contribution to property, the burden of proof is upon the
person claiming an interest in the property under question. This position was
explained in Kimani v. Kimani592, which was cited with approval in Kamore v.
Kamore593 that:
It was for the Appellant to prove on a balance of probabilities that she directly
or indirectly contributed towards acquisition of the properties in respect of
which she claimed to be entitled to a share without losing sight of the fact that
in regard to indirect contribution, the same was invariably to be considered in
its own special circumstances.
ii. Equality
465. One of the guiding principles in the distribution of matrimonial property

following a divorce is equality. In White v. White,594 it was observed as follows:
‘from the poverty stricken to the multi-millionaire. But there is one principle
of universal application which can be stated with confidence. In seeking to
achieve a fair outcome, there is no place for discrimination between husband
and wife and their respective roles. Typically, a husband and wife share the
activities of earning money, running their home and caring for their children.
Traditionally, the husband earned the money, and the wife looked after the
home and the children. This traditional division of labour is no longer the order
of the day. Frequently both parents work. Sometimes it is the wife who is the
money-earner, and the husband runs the home and cares for the children dur-
ing the day. But whatever the division of labour chosen by the husband and
wife, or forced upon them by circumstances, fairness requires that this should
not prejudice or advantage either party … relating to the parties’ contributions
… to make to the welfare of the family, including any contribution by look-
ing after the home or caring for the family’. If, in their different spheres, each
contributed equally to the family, then in principle it matters not which of them
591. See Rimmer v. Rimmer [1953] 1 QB 63.

592. (1997) LLR 553.
593. [2000] 1 EA 80.
594. [2001] 1 AC 596; [2000] 3 WLR 1571.

earned the money and built up the assets. There should be no bias in favour of
the money-earner and against the home-maker and the child-carer.
466. As a general guide, therefore, equality should be departed from only if, and
to the extent that, there is a good reason for doing so.
467. The Marriage Bill, 2017 has attempted to remedy the possible contentions
of this position of the law. Section 146 provides that distribution of joint property
shall be in equal shares but shall not be less than a third of the value of the jointly
owned property. This position attempts to provide a middle ground from one
advanced in an earlier version of the marriage Bill in 2009 where the provisions on
division of property allowed parties, especially women, to easily share in their
spouses’ property without having contributed to it directly.
468. The 2017 Bill allows courts to consider factors such as duration of the mar-
riage, maintenance of the property, economic circumstances of each spouse at the
time of distribution of the property, age of a spouse, and the right of a spouse with
custody of children to stay in the matrimonial home. In this way, the Bill provides
a more protective position for women, who are in most circumstances likely to be
less economically endowed and yet retain custody of the children. This position sta-
bilizes the family for child nurturing and protects women from rapid changes in
their way of life, factors that would be inevitable if women were forced to leave
their marital homes with their children abruptly. A good case in point is in Nakalule
Christine v. Kakooza,595 where the court allowed the wife and children to remain in
the matrimonial home in town close to the children’s school.
469. On the aspect of equality in Uganda, mention should be made of section 26

of the Divorce Act, which directly impinges this principle. The cited section 26
states:
When a decree of dissolution of marriage or judicial separation is pronounced

upon account of adultery by the wife, and the wife is entitled to any property,
the court may, notwithstanding the existence of the disability of coverture,
order the whole or any part of the property to be settled for the benefit of the
husband, or of the children of the marriage, or both.
470. Unfortunately, a simple reading of this clause implies that it does not ben-
efit wives whose husbands are involved in similar adulterous circumstances. This
deters equal application of dissolution of matrimonial property between spouses by
virtue of the act of adultery but only against one party the wife, which is unfair. And,
in fact, this position was later declared unconstitutional.596

596. See Uganda Association of Women Lawyers et al v. AG, supra note 108.

iii. Fair Distribution
471. Whilst distributing property between spouses at the dissolution of mar-

riage, the court was cognizant of the principle of fair distribution. Previously, the
courts focused on making provision for the financial needs of the claimant, usually
the wife, during the process of divorce. However, the principle of fair distribution
also extends to the period after the dissolution of the marriage, to ensure fairness to
both parties, and this is through the concept of alimony.
472. Alimony conceptualizes spousal support as compensation earned by the

economically disadvantaged spouse (normally the wife) through marital invest-
ments and as a means of eliminating distorting financial incentives in marriage, as
well as a way to relieving financial need. Under section 24(1) of the Divorce Act,
the court may on a decree absolute declaring a marriage to be dissolved, order the
husband to secure to the wife such sum of money as, having regard to her fortune,
if any, to the ability of the husband, and the conduct of the parties, it thinks rea-
sonable. Alimony provides a secondary remedy and is available where economic
justice and the reasonable needs of the parties cannot be achieved by way of an
equitable distribution of the matrimonial property. The purpose of alimony is not to
reward one party and punish the other, but rather to ensure that the reasonable needs
of the person who is unable to support herself through appropriate employment are
met. It is an order designed to afford economic justice between the parties.
473. In Ayiko v. Lekuru597 where two parties had applied for divorce, the court
awarded alimony to the wife on the grounds that she did not have adequate
resources to meet her reasonable needs and the petitioner, her husband, had the abil-
ity to pay, based on his accumulation of the property within a short time and with
little indirect financial support from the activities of the respondent. Although in the
instant case the decree nisi had been obtained by the husband rather than the wife,
the court found the husband at fault when he engaged in inappropriate marital con-
duct by way of abandonment, indignity, and mistreatment of the respondent in the
circumstances leading to the divorce, which exerted considerable mental and emo-
tional stress on the respondent, whose effects were visible to court when she broke
down during her testimony. The respondent gave up her plans of pursuing further
education by reason of their marriage. She invested over a year of her time in the
attempt to have a successful marriage. An award of alimony was made on the basis
that choices made during the marriage had generated great future needs on the part
of the respondent.
474. In this regard, therefore, the court in Ayikoru’s case ordered the petitioner
to pay rehabilitative alimony to the respondent as a one off payment, to cover rea-
sonable expenses during readjustment to the wife’s new life, especially in obtaining
597. Divorce Cause No. 0001 of 2015 (2017).

additional education, job skills, or training, as a way of becoming more self-

sufficient as an unmarried woman. The decreed amount598 had to be paid within a
period of three months from the day the decree absolute declaring this marriage
finally dissolved was issued.
475. Additionally, section 27 of the Divorce Act allowed a husband to make pro-
vision for his wife upon dissolution of the marriage, a concept originating from
common law and assuming that the husband was the bread winner of the home. This
provision was meant to compensate the wife for any financial disadvantage she had
suffered from the breakdown of the marriage especially if the marriage was for a
short period of time and to allow her to continue to live in the fashion to which she
had become accustomed during the subsistence of the marriage.
476. However, the previous sections 24, 26 and 27 of the Divorce Act were only
intended to favour the wife and not the husband. There was no equivalent clause
benefitting the husband to receive alimony or other settlement from a wife.
477. It should be noted then that the above highlighted provisions were nullified
by the decision in Uganda Association of Women Lawyers and 50 others v. The
Attorney General (FIDA case).599 Here, the petitioners contended that sections 26
and 27 of the Divorce Act were inconsistent with, and in contravention of Articles
21(1) and (2), 31(1) and 33(1) and (6) of the constitution which guaranteed equality
between men and women. In this case, the five Justices of the constitutional court
unanimously held that these provisions discriminated on the basis of sex and
declared them null and void.
478. In overturning the discriminatory provisions of the Divorce Act, one of the
judges, Honourable Lady Justice A.E.N. Mpagi-Bahigeine explained:
It is well to remember that the rights of women are inalienable, interdependent

human rights which are essential in the development of any country and that
the paramount purpose of human rights and fundamental freedoms is their
enjoyment by all without discrimination … The concept of equality in the
1995 Constitution is founded on the idea that it is generally wrong and unac-
ceptable to discriminate against people on the basis of personal characteristics
such as their race or gender.600
479. Therefore, the decision in the FIDA case overrides the above-mentioned
sections of the Divorce Act and affirms the constitutional guarantee of equality
between spouses at marriage and its dissolution. In view of this decision, the law
applicable in Uganda with regard to the division of matrimonial property or nuptial
settlements upon divorce is that the court regards all parties as equal. As such, where
the husband has been involved in adulterous circumstances, the courts may order
598. Total amount decreed was UGX 20 million equivalent to USD 1,800.
599. Constitutional Petitions Nos. 13/05 & 05/06 [2007].
600. Ibid.

the whole or any part of the property to be settled for the benefit of the wife, or of
the children of the marriage, or both. Similarly, on nuptial agreements, the court
may honour these agreements or vary them to the application of the whole or part
of the settled property for either or both spouses and/or the children for the benefit
of either.
480. All in all, the progressiveness of the FIDA decision does away with the
archaic nature of the law and allows the law to respond to the needs of each society
at a time. Such progress is reiterated in Porter v. Porter,601 where Sachs LJ observed
that discretionary powers enable the court to take into account ‘the human outlook
of the period in which they make their decisions’. In the exercise of these discre-
tions, ‘the law is a living thing moving with the times and not a creature of dead or
moribund ways of thought’.
481. English law elucidates on the aspect of fair distribution to include fairness
to the party, making a settlement to the other. In McFarlane v. McFarlane,602 the
court was of the view that the court must consider the feasibility of a ‘clean break’.
Implicitly, the courts must exercise their powers so as to achieve an outcome which
is fair between the parties. Therefore, the financial provisions made on divorce by
one party for the other, should not be in the nature of largesse. It is not a case of
‘taking away’ from one party and ‘giving’ to the other property which ‘belongs’ to
the former. The claimant is not a suppliant. When the marriage ends, each party is
entitled to a fair share of the available property. Fairness requires that the assets of
the parties should be divided primarily so as to make provision for the parties’ hous-
ing and financial needs, taking into account a wide range of matters such as the par-
ties’ ages, their future earning capacity, the family’s standard of living, and any
disability of either party. Most of these needs will have been generated by marriage.
482. Relatedly, the modern approach is for the court to order a lump sum pay-
ment rather than periodic continuing payments. In the words of Lord Scarman in
Minton v. Minton,603 ‘ … parties are encouraged to put the past behind them and
to begin a new life which is not overshadowed by the relationship which has broken
down’. According to him, a lump sum payment represents a financial closure of a
failed marriage. It draws a line under the past. Periodical payments represent the
opposite. Future earnings and future payments lie in the future. They are a continu-
ing financial tie between the parties.
483. Also, fairness not only considers the treatment of parties to the marriage
but also includes the welfare of any children of the marriage. It should be noted that
under section 28 of the Divorce Act, no order shall be made at the expense of the
children for the benefit of the parent or either of them. Instead, the court may
appoint trustees to whom money may be paid in respect of such settled property.
Unfortunately, this is not implemented in Uganda.
601. [1969] 3 ALL ER 640, 643–644.

602. (1970) 3 ALL ER 452.
603. [1979] AC 593, 608.

§5. HOUSEHOLD EXPENSES
I. Wedding Gifts
484. Ugandan law follows common law with regard to the division of wedding
gifts. The leading case on this is Samson v. Samson.604 The House of Lords held
that property which is given at a time of the wedding to one’s spouses or other might
become joint property. In this case, a married couple disagreed as to ownership of
their wedding gifts including some gifts of cash. The appellant denied the respon-
dent any share in the gifts and maintained that no gifts had been given. Court held
that the gifts were to be shared in equal terms. The latter case of Rwabinumi v.
Bahimbisomwe605 also restated this principle on marriage gifts being owned jointly.
In the instance of gifts from one spouse to another, the proposal made in the Mar-
riage Bill 2017 is that there is a rebuttable presumption that the property belongs to
the receiving spouse.606
II. Bank Accounts
485. Sharing of monies on bank accounts is also guided through common law.
The leading case here is Jones v. Maynard607 in which the court held that regardless
of their differences in contribution and withdraws, parties are equally entitled. In the
case in question, both parties operated a joint business and opened a joint bank
account for it. It did not matter that the respondent had taken all the money in the
bank account and had also taken three quarters of all the equipment from the busi-
ness. The court premised its decision on the evidence adduced that the business was
jointly owned by both parties as a family enterprise and that both parties pulled their
incomes and placed them in a common fund.
III. Matrimonial Home
486. The matrimonial home is that which the parties choose to call home. This
definition was made by Justice Bbosa in Muwanga v. Kintu,608 a decision that was
followed in Julius Rwabinumi v. Hope Bahimbisomwe.609 The principle is that the
matrimonial home can be shared equally by married parties, although the court may
take into consideration the actual contributions of each spouse to the home.
487. In Rwabinumi’s case, the Supreme Court emphasized tangible financial

contribution –direct or indirect – which is clearly provable, towards the acquisition
of the property in dispute. For instance, for a wife-to-be entitled to a share of the
604. (1960) 1 WLR 190.

606. Section 121 Marriage Bill 2017.
607. (1951) Ch 572.
608. High Court Divorce Appeal No. 135 of 1997 (unreported).
609. Rwabinumi case supra note 103.

property registered in the name of the husband, she may have to prove financial or
monetary contribution towards the acquisition of the property. However, newer case
law such as the Katuramu decision already cited above, leans more to indirect con-
tributions such as cooking, caring for children and providing sex as forms of con-
tribution towards the matrimonial home.
488. Informed by the Supreme Court decision in Julius Rwabinumi v. Hope

Bahimbisomwe,610 the court in Mboijana v. Mboijana recognized the wife’s sub-
stantial contribution to the purchase and development of the matrimonial home and
the husband’s supervisory role and shared the home at a ratio of 70%: 30% to the
wife and husband respectively, and that in any case of sale the proceeds should be
shared accordingly.611 These decisions clearly consolidate the achievements that
were realized pursuant to the passing of the 1995 Constitution by allowing parties
to share in the matrimonial home.
489. However, in the absence of statutory law on matrimonial property,

decision-making is left to judicial discretion which may be subject to abuse depend-
ing on the attitudes and biases of particular judicial officers with the potential to
occasion injustice to a litigant. For instance, in Nakalule v. Kakooza,612 the mag-
istrate exercising her judicial discretion denied the appellant and her two children to
the marriage access to the matrimonial home but ordered that they live further away
from the children’s school and the appellant’s work place.
490. This was, however, corrected on appeal. In granting the appeal, the learned
judge decried the magistrate’s reasoning stating that:
I find the reasoning of the Magistrates very absurd and in total disregard of
gender policies and generally the law on equality of men and women, hus-
bands and wives as enshrined in the constitution and other enabling law … .
IV. Cohabiting Couples and Property Rights
491. Cohabitation is when a woman and man live together as husband and
wife.613 This status is devoid of the formalities of marriage, such as licensing and
certification. As such, cohabitation has no legal recognition under the law. For
instance, section 2 of the Succession Act defines a spouse as a person who, at the
time of the intestate’s death, was validly married to the deceased according to the
laws of Uganda or another country and recognized as valid by that country’s law.614
610. Ibid.
611. Monica A. Mboijana v. Kenneth Mboijana, FPT-00-CV-MA-037 of 2014, Fort Portal Chief Mag-
istrate Court.
612. Nakalule Christine v. Kakooza Herbert, HCCA No. 47 of 2008.
613. Section 3, Marriage and Divorce Bill, No. 19 of 2009.
614. Succession Act, s. 2(k) i and ii, and (w) i and ii.

This legal requirement does not take into consideration the length of time that an
unmarried couple stays together or the number of children they have.615
492. Unfortunately, the property interest of cohabiting couples or partners is not

protected under the law. Settlements of property between partners are only legally
enforceable if they were married formally. Because of this, there are no legal effects
of such partnerships on dissolution and no security to property rights to men or
women in this form of relationship. The effects of this legal dilemma are direr for
women in such relationships, especially if their contribution was indirect through
taking care of the home and the children rather than through financial payments.
493. This position is reflected in the courts’ interpretation of the law. In Uganda
v. Kato,616 the court considered the issue of whether cohabiting women were
entitled to the property. It was held that it is only those who had been married under
recognized laws of Uganda that could take property. A similar decision was reached
in Christine Male and Another v. Mary Namanda.617 Here, the plaintiffs in the suit
were the widow and sister of the deceased, whilst the defendants were the mother
of four of the deceased’s children and his mother. The plaintiff applied for LOA,
and it was objected to by the defendants. The court had to determine who the legal
wife was. The court held that the defendant had never been married to the deceased;
hence, she was never a wife.
494. See also, the decisions in Erinesti Babumba & Ors v. Nakasi Kizito,618 and
Patrick Namenkere v. Florence Mwanja.619 Cited in earlier sections which
re-emphasize the non-recognition of property rights for cohabiting parties.
§6. TRANSACTIONS BETWEEN SPOUSES
I. Treatment of Joint Property
495. With regard to joint property which is not matrimonial property, the legal
position is that a spouse is entitled to his or her share in the property in proportion
to the contribution that he or she made towards its purchase. In Kagga v. Kagga,620
for example, Mwangusya, J. observed that:
Our courts have established a principle which recognizes each spouse’s con-
tribution to acquisition of property and this contribution may be direct, where
615. Cohabitation is generally regarded as immoral and against public policy, especially by the religious
community.
616. 1976 HCB 204.
617. (1982) HCB 140.
618. HCCS No. 173 of 1987 HCB.
619. Court of Appeal Civil Appeal No. 37 of 2004. See also, Wamono v. Equity Bank (Ug) Ltd. & Anor
which holds a similar ruling.

the contribution is monetary or indirect where a spouse offers domestic ser-

vices. … When distributing the property of a divorced couple, it is immaterial
that one of the spouses was not as financially endowed as the other as this case
clearly showed that while the first respondent was the financial muscle behind
all the wealth they acquired, the contribution of the petitioner is no less impor-
tant than that made by the respondent.
496. The court proceeded to order for the registration of 50% interest in the par-
ties’ matrimonial house, and for the transfer of several other houses in favour of the
wife, despite the Judge’s finding that the wife had only rendered domestic services
as opposed to the respondent husband who was ‘the financial muscle behind all the
wealth’.
497. The decisions of the Ugandan courts on the distribution of joint properties
are consistent with English cases such as Chapman v. Chapman,621 where the wife
was held to have acquired an equal share in the property although she had not made
an equal cash contribution to the acquisition of the property in question. The court
found and held that the husband and wife had put all their financial resources into
the pool to purchase their house without reserving any special interests.
498. It is also worth noting that the contributing spouse’s share is not restricted
to a maximum of 50% share either in the matrimonial home or in other jointly held
property. In some other cases, the court awarded a higher percentage share either in
the matrimonial home or in some other properties. For example, in Mayambala v.
Mayambala,622 the wife’s interest in the matrimonial home was established at a 70%
share. Similarly, in Kagga’s case (supra), the court awarded the wife several other
houses and properties, in addition to the 50% share she received in the parties’ mat-
rimonial home.
621. [1969] All E.R. 476.

622. High Court Divorce Cause No. 3 of 1998. It is important to note, however, that Mayambala’s case
is an old decision that was held at the time when the courts only looked at the aspects of substantial
contribution of a spouse to the property in order to acquire an interest.

499–502
Chapter 2. Marriage Settlements or Prenuptial Agreements

499. Marriage settlements or antenuptial agreements refer to a written agree-
ment regarding matters of support, custody, property division and visitation rights
upon a couple’s divorce.623 Following separation or dissolution of marriage, Ugan-
dan law permits couples to execute agreements relating to the custody and main-
tenance of their children, division of property and visitation or access rights of the
parent not having legal custody of the child or children of the marriage. However,
where parties fail to execute amicable settlements, recourse can be made to the
court. It should also be recalled that in all matters involving children, the best inter-
est or welfare principle of the child must be of paramount consideration by the par-
ents, the courts or any other person making a decision relating to the child or
children.624 This is in addition to protecting all the rights of the child as elucidated
in the Constitution and section 4 of the CAA as well as other international and
regional conventions.625
§1. CUSTODY OF CHILDREN
500. Article 31(4) of the Constitution guarantees the right of parents to care for
and bring up their children. In addition, Article 31(5) prohibits the separation of
children from their families or persons entitled to bring them up with consent except
in accordance with the law. Parental responsibility is primarily placed on the par-
ents of the child or children. Section 1(0) of the CA clearly states that ‘Parental
responsibility means all rights, duties, powers, responsibility and authority which by
law a parent of a child has in relation to the child’.626
501. Remarkably, parental responsibility continues even after separation or

divorce of the parents or spouses.627 Section 73B(1) of the CAA permits parents to
enter into a written agreement with respect to the custody of a child or children. The
courts will further enforce such agreement unless there is evidence of duress, fraud,
or where the agreement is not in the best interest of the child.628
502. However, where there is no agreement, a party may apply to the court for
custody order premised upon the wise discretion of the court.629 The parent who is
623. Merriam Webster Law Dictionary, available online at https://www.merriam-webster.com/legal/

marriage%20settlement. (Accessed 14 Mar. 2019).
624. Welfare of Best interest Principle is elucidated earlier in s. 3 of the CAA.
625. The Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and
Welfare of the African Child (ACRWC).
626. Section 1(k) defines a guardian to also mean a person having parental responsibility of a child or
children.
627. In the Matter of Ayla Mayanja (An Infant) Misc Application No. 20 of 2003; Rwabuhema Musin-
guzi v. Harriet Kamakume, Civil Appeal No. 142 of 2009; Nakalule Christine v. Kakooza Herbert,
HCCA No. 47 of 2008; Julian Fenzi v. Nabbosa, FCMC No. 6 of 2012.
628. Section 73B(2) and (3).
629. Section 73 of the CA and s. 73A of the CAA.

503–506 Part III, Ch. 2, Marriage Settlements or Prenuptial Agreements
not granted custody of the child has the rights to access or visit the child or children
within reasonable hours as well as provide for their welfare.630 The court further has
powers to vary the custody order granted in case it is in the best interest of the child.
Section 85 provides:
Where the court is satisfied on information of a probation and social welfare

officer, or an official of the local government that a parent who has custody of
the child is wilfully neglecting or mistreating the child, custody shall be
granted to the other parent.
503. However, where the court finds that both parents are unfit to ensure the wel-
fare of the child, the court shall place the child under the care of a fit person, but the
parents shall be permitted to have reasonable access to the child unless it is not in
the child’s best interest.631
§2. MAINTENANCE OF CHILDREN
504. Any parent of a child or any other person having custody of the child has
the right to apply for maintenance of the child from the child’s mother or father.632
However, in case of separation, divorce or nullification of marriage, both parents
shall continue to maintain and educate their children.633 In Hope Bahimbisomswe v.
Julius Rwabinumi,634 following the divorce petition and the finding that the child
was the respondent’s son, the court granted custody orders to the petitioner (wife)
and further ordered that the respondent contributes towards the general mainte-
nance, medical treatment and education of the child by paying half of the costs since
both the parents where gainfully employed.
505. The court further noted that even in separation, divorce or nullity of mar-
riage, parents should maintain joint consultation in matters pertaining to bringing
up their children where the circumstances permit.635 Also, the court has powers to
vary the maintenance orders, as the case shall be.636
§3. DIVISION OF PROPERTY
506. As discussed above, there is no statutory law governing matrimonial prop-

erty relations in Uganda. Reliance is placed on progressive court jurisprudence and
Article 26 of the constitution on the right to own property either individually or in
630. Section 84(2).

631. Section 87 of the CA.
633. Section 84(1) of the CA.
635. Section 86.

Part III, Ch. 2, Marriage Settlements or Prenuptial Agreements 507–509
association with others.637 Spouses may, however, execute prenuptial agreements

prior to the marriage638 or antenuptial agreements during separation, divorce or nul-
lity of marriage and such agreements will be enforced by the courts if void of duress
or fraud.639
§4. DECLARATION OF PARENTAGE
507. Where a dispute arises with respect to the paternity of the child or children
to the marriage, the aggrieved party may apply to the court for proof of parent-
age.640 Once an order for declaration of parentage has been made by the court, the
order will have the effect of establishing blood relationship between the father and
child, or mother and child, accordingly, and the child shall be in the same legal posi-
tion towards the father or mother as a child actually born in lawful wedlock.641
However, a declaration of parentage does not confer custody automatically to the
declared mother or father of the child.642
§5. RECOGNITION OF PRENUPTIAL AGREEMENTS
508. The Oxford dictionary defines prenuptial agreements as an agreement made

by a couple before they get married in which they specify how their money and
property is to be divided if they get divorced.643 The ownership, management and
distribution of property between spouses or cohabiting spouses has always been a
controversial issue in Uganda. There is no statutory law in Uganda that governs the
management or distribution of property between spouses.
509. However, through case laws, courts have demonstrated the recognition and
enforcement of prenuptial agreements executed by parties. In Margret Hough v.
David Hough,644 the petitioner, Margret Hough, petitioned for dissolution of mar-
riage against her husband Allan Hough, the respondent, on the grounds of adultery
and cruelty. Both are British citizens, lived in the UK, and got married on 12
December 1997. They executed a prenuptial agreement dated 24 November 1997,
which was intended to govern their property rights before, during and after mar-
riage and for other eventualities. They moved to Uganda on 11 January 2003 and
started living in Kasusu, Kabarole District.
637. Julius Rwabinumi v. Hope Bahimbisomwe, supra.

638. See, s. 3.2.5.
639. Nampijja Margret v. Stanley Kaggwa, High Court Divorce Cause No. 2 of 2012.
640. Section 67 of CA. In the Matter of an Application for Custody and Maintenance by Tsehayalem,
Family Cause No. 224 of 2014; Mpirirwe v. Nsambimana [1994] IV KALR 89.
641. Section 72(1) of CA.
642. Section 72(2).
643. Oxford Learners Dictionary, available online at https://www.oxfordlearnersdictionaries.com/
definition/english/prenuptial-agreement. (Accessed 14 Mar. 2019).
644. Margaret Hough v. Allan David Hough, High Court Divorce Cause No. 1 of 2006.

510–514 Part III, Ch. 2, Marriage Settlements or Prenuptial Agreements
510. The court dealt with a number of issues, including whether the prenuptial
agreement executed by the parties was valid. There was no dispute about the exist-
ence of the agreement, and the parties agreed that they jointly executed it. There was
no suggestion of fraud or coercion by any party thereto. In enforcing the prenuptial
agreement, the court stated that:
Where there is no disagreement that the prenuptial agreement is valid and

therefore binds the parties signatory thereto … . Parties must be bound by the
terms of their contracts which they freely enter into. Hence the prenuptial
agreement is valid.645
511. Notably, the Marriage and Divorce Bill 2009 – now the Marriage Bill 2017
– attempts to make proposals towards the formal recognition and enforcement of
prenuptial agreements in Uganda. Clause 16 of the Bill grants the parties to an
intended marriage the right to execute a prenuptial agreement. It states:
(1) A man and a woman in contemplation of marriage may make an agreement

with respect to ownership of:
(a) separate property of each spouse;
(b) property acquired during marriage;
(c) distribution of property acquired during the marriage.
(2) The agreement may include the settlement of any differences that may arise
regarding the property owned by either, or both spouses.
512. The law further proposes that such agreement should be signed by the par-
ties in the presence of two witnesses, signed and sealed with the Registrar of docu-
ments.646
513. Clause 144 of the Marriage Bill 2017 provides that:
(1) Courts shall have jurisdiction to inquire into prenuptial agreements made
under the Clause (16) at the dissolution of the marriage.
(2) A spouse or any person with interest in the subject matter of the prenuptial
agreement referred to in subsection (1) may, on reasonable grounds, apply to
the court for an inquiry.
(3) Where an application for an inquiry has been requested by a spouse or any per-
son with interest, the court may make a declaration that the agreement shall
have effect in whole, in part, or be set aside if satisfied that the interest of any
party has been materially prejudiced by the action of any party to the agree-
ment.
514. The proposed law further permits the court to set aside any prenuptial
agreement and grant other orders for the distribution of the property as it deems fit
between the parties. Such prenuptial can be set aside where the agreement was
645. Ibid., p. 18.

646. Clause 16(4).

Part III, Ch. 2, Marriage Settlements or Prenuptial Agreements 514–514
entered into by duress, undue influence, fraud, misrepresentation, illegality, lack of

full disclosure of assets or any other vitiating factor.647
647. Clause 145 of the Marriage Bill.

515–518
Chapter 3. The Legal Matrimonial Regime

§1. MATRIMONIAL PROPERTY IN CUSTOMARY LAW
515. Customary law in Uganda varies from place to place. However, as a patri-
lineal system, ownership of the property for most customary groups in Uganda fol-
lows the male lineage. In many cultures in Uganda, most or all property belongs to
men, even if a wife had it before marriage or was the person who bought or paid for
it. According to customary law, women cannot individually own property. This is
especially in relation to land, which is regarded as the most important communal
asset for all indigenous groups in the country. This restriction is based on the
asserted grounds that women move between families, and any individual women’s
ownership of property would involve a loss from one family to another, as a daugh-
ter moves away from her father’s home to that of her husband.648
516. According to the guiding principles developed in 1997 by Justice Bbosa in

Muwanga v. Kintu, what amounts to marital property in customary marriage
depends on many factors, including the customs of the husband. A property which
is held by the husband in trust for the clan is not marital property, and upon the
demise of the husband, such property does not form part of his estate.
517. It should be noted, however, that all laws and practices must conform to
the constitution.649 In fact, as earlier mentioned, any customary norms that discrimi-
nate women contravene the constitutional principle of equality of the two gen-
ders.650 Therefore, any customary practices that deny women access to and
ownership of property would fail if challenged in the courts of law.651 A leading case
on this issue from the region is Ephrahim v. Pastory and Kaizilege,652 where the
constitutional court declared the customary law that barred women from selling clan
land unconstitutional and against human rights principles of equality.
§2. MATRIMONIAL PROPERTY UNDER ISLAMIC LAW
518. Islam is a religion and a way of life based on the commandments of Allah
contained in the Holy Quran and the Sunnah (practices) of the Prophet of Islam,
Muhammad (S.A.W). Every Muslim is under an obligation to fashion his or her life
in accordance with the dictates of the Quran and Sunnah. It is these two that guide
on the Islamic way of life or path, also known as Sharia. Regarding divorce, the key
legislation in this regard is the Marriage and Divorce of the Mohammedans Act Cap
648. Following the cultural set up in most communities in Uganda, women move away from their par-
ent’s homes to their husband’s home. It is hard, therefore, for women to make claim to ancestral
land which they have left behind at their parent’s homes. Instead, this property is often left for the
use of sons, who are perceived to be the ones that continue the family heritage.
649. Article 2 of the Constitution.
650. Constitution of Uganda 1995, Arts 21 & 32.
651. Articles 31 and 32 of the constitution.
652. (2001) AHRLR 236 (TzHC 1990).

Part III, Ch. 3, The Legal Matrimonial Regime 519–523
252. The Divorce Act Cap 249 and its remedies do not apply to Muslim mar-
riages.653 It should be noted, however, that Islam does not provide guidelines for
distribution of property upon divorce. The guidelines on the distribution of property
between husband and wife are only provided for in instances of death of either party,
and each has respective shares as provided under the Quran 4:12.
519. Thus, the Marriage and Divorce of Mohammedans Act Cap 252 lacks guid-
ance on the issue of sharing matrimonial property upon divorce. The Supreme Court
is yet to handle any Muslim divorce case on the issue of matrimonial property. The
majority of Muslim family law cases are not reported, although Qhadi courts handle
a substantial number of family disputes. It is common practice that in the absence
of clear laws or court jurisprudence on any aspect of Islamic faith, practitioners of
the Islamic faith turn to the Quran or Sunnah for guidance on the distribution of
matrimonial property upon divorce. But, it appears that there is no explicit injunc-
tion also in the Quran regarding the same. Instead, Islam looks at one’s personal
property and jointly acquired property to be distributed between spouses.
520. In case of contestation on the division of property, evidence of contribution

or purchase is needed for a party who is claiming a share in the property. Where
there is a dispute on ownership, parties are encouraged to take the oath to strengthen
their claim. Normally, the court looks at the joint acquisition of property rather than
the basis of a marriage contract.
521. Most of the authorities seem to suggest that when the property has been
acquired with joint efforts or contribution, then the property can be distributed
among the spouses. It is suggested by some jurists that if there are any joint ven-
tures between husband and wife to have these in a written agreement to avoid prob-
lems that may arise in future.
522. Unlike customary law, Islamic marriage does not generally affect the per-
sonal status of a Muslim woman. She retains her individual property, and any wages
or earnings acquired or gained by her belongs to her. She is entitled to sue in her
own name in respect of her property and in respect of a contract entered into by her.
523. In Islam, a woman is an independent personality. She can enter into busi-
ness, make contract or testament in her own name. She is entitled to inherit as
mother, wife, sister and daughter.654 The Quran gives a woman absolute right to
own, sell, gift or manage her property. It includes even the property acquired by her
as Mahr. Her husband cannot take it back. It is indicated in the Quran 4:20:
653. Section 18 of the Marriage and Divorce of Mohammedan Act specifically excludes the application
of the Divorce Act in granting reliefs under that Act where the marriage between the parties has
been declared valid under the Marriage and Divorce of Mohammedans Act.
654. Mohammad Iqbal, ‘Siddique, in Muhamud Sewaya, State of Muslim Family Justice: A Critical
Examination of the Law Governing Muslim Marriages and Divorce in Uganda, The Politics of Put-
ting Asunder. The Family, Law and Divorce in Uganda’ in Maria Nassali (ed.), Fountain Publishers
(2017).

524–530 Part III, Ch. 3, The Legal Matrimonial Regime
But ye decide to take one wife in place of another, even if ye had given the
latter a whole treasure for dower, take not the least bit it back would you take
it by slander and manifest wrong.
524. Also, Quran 4:32 states:
Unto men a fortune from that which they have earned, and unto woman a for-
tune from which they have earned (envy not one another) but ask Allah of His
bounty. Lo! Allah is ever knower of all things.
525. The said verses clearly indicate that men and women both a fortune they
have earned. It implies that a man or woman has the capacity to earn a living
through their respective efforts.
526. Misappropriation of a husband’s property was discouraged by Prophet

Muhammad. In his Farewell Sermon, he said:
No woman shall spend anything from the house of her husband without her
husband’s permission. He was asked: O Messenger of Allah! nor food? He
replied: That is the best of our properties.655
527. It is not lawful for wives to spend anything from the house of their hus-
band except with their permission. But if they know that the husband won’t be dis-
pleased with a thing spend or given in alms or their implied permission can be
gathered, it can be spent lawfully.656
528. In cases where a husband is a miserly fellow, the Sharia also permits wives
to spend on food and cloth as are necessary for them and their children according
to means. Women cannot, however, waste things or sell them privately without
knowledge of the husband.
529. In Hadith narrated by Abdullah bin Abbas, the Holy prophet said that a
woman who steals and acts dishonestly towards her husband’s property is cursed by
seventy thousand angels.657
530. The case of Sumaya Nabawanuka v. Med Makumbi658 provides some guid-
ance with regard to the treatment of matrimonial property during divorce. In this
case, the petitioner, Sumaya, filed the petition before the High Court seeking for a
decree nisi dissolving her marriage with her husband, the respondent. The marriage
was contracted in accordance with Muslim law. She wanted custody of the child,
maintenance of the child, alimony, the share of the matrimonial property and costs.
The respondent filed his reply refuting the allegations in the petition and by way of
655. Haddith Tirmidhi. In Sewaya, ibid., p. 337.

656. Muhammad Imran, ibid. in Sewaya supra note 654, p. 337.
657. Shahih Muslim, p. 37 in Sewaya, ibid.
658. High Court Kampala, Family Division Divorce Cause No. 39 of 2011 (unreported).

Part III, Ch. 3, The Legal Matrimonial Regime 531–535
a preliminary objection applying that the petition be dismissed because it was res
judicata since the matter before the court had been finally determined by the Sharia
Court of the UMSC.659
531. Counsel for the respondent raised a preliminary objection to the effect that
the matter before court was res judicata and relied on section 7 of the CPA660 which
is to the effect that a matter is res judicata if the issue before court is directly and
substantially the same as an issue between the same parties which has already been
determined by a court with competent jurisdiction to try the suit. He argued that a
Sharia Court is a court of competent jurisdiction as provided for under Article
129(1)(d) of the 1995 Constitution.661 He further contended that the Sharia Court of
the UMSC is such court that is envisaged under the Marriage and Divorce of
Mohammedans Act.
532. He urged further that the petition was incompetent in as far as it sought
reliefs under the Divorce Act Cap 249 even though the marriage between the parties
was celebrated under Mohammedan law. He relied on section 18 of the Marriage
and Divorce of Mohammedan Act which specifically excludes the application of the
Divorce Act in granting reliefs under that Act where the marriage between the par-
ties has been declared valid under the Marriage and Divorce of Mohammedans Act.
533. The Learned Counsel for the petitioner refuted the assertion that the Sharia
Court of the UMSC was a court of competent jurisdiction as envisaged under Article
129(1)(d) of the Constitution. She urged that parliament has not yet operationalized
Article 129(1)(d) of the Constitution which requires parliament to establish Qadhi’s
courts and that if there are such courts in operation, they are operating outside the
dictates of Article 129 and are consequently incompetent.
534. Hon. Justice B. Kainamura held that whereas indeed it was true that Qadhis
Courts envisaged under Article 129(1)(d) of the Constitution are yet to be estab-
lished; he did not agree with the petitioner’s view that the Sharia Courts currently
operating are doing so outside the law. His Lordship based his position on Article
274 of the Constitution which provides:
Subject to the provisions of this article, the operation of the existing law after
the coming into force of this Constitution shall not be affected by the coming
into force of the Constitution but the existing law shall be construed with such
modifications, adaptations, qualifications and exceptions as may be necessary
to bring it into conformity with this constitution.
535. He noted that the Sharia Courts of the Muslim Supreme Council are oper-
ating within the law and are competent courts to handle divorce cases and grant
659. UMSC Divorce Cause No. SC/MDO 65/10/2011.

661. Article 129 of the Constitution provides for the creation and operation of Shariah/Islamic courts.

536–537 Part III, Ch. 3, The Legal Matrimonial Regime
relief. From the pleadings, it was on record that the Sharia Court of the Muslim
Supreme Council considered this divorce662 and made its findings.
536. His Lordship further held that the matter was heard and determined by a
competent Court and an attempt to resurrect the matter in the High Court would
surely run afoul of section 7 of the CPA. Accordingly, the matter was res judicata.
The reading of section 18 of the Marriage and Divorce of Mohammedans Act
empowered the Sharia Court to handle divorce matters under the Act, and the law
applicable in such cases must be Mohammedans law. The court also noted that since
the orders sought from the court by the petitioner were not in line with section 18;
thus, the petition for divorce was incompetent. As a result, the preliminary objec-
tion succeeded, and the petition was dismissed with costs.
537. From this case, it is clear that the distribution of property upon divorce can
be handled by Sharia Courts and practitioners of Islam look towards the Quran and
Sunnah for this.
662. UMSC Divorce Case No. SC/MDO65/10/11.

538–542
Chapter 4. Conventional Matrimonial Regimes

538. In light of the challenges facing the matrimonial property legal regime in
Uganda, steps have been taken to remedy the current status quo through the devel-
opment of new legislation. This includes the Marriage Bill 2017 as well as the
Administration of Muslim Personal Law Bill 2008. Both of these are still Bills and
yet to be enacted into law.
§1. MARRIAGE BILL 2017
539. Though not yet passed into law, the Bill contains detailed provisions about
the property rights of married men and women. The Marriage Bill applies to all mar-
riages in Uganda, except Muslim marriages. The Marriage Bill is supposed to give
effect to Article 31 of the Constitution, which gives men and women equal rights in
getting married, during the marriage, and if and when they decide to end the mar-
riage.
540. Among other things, the Bill defines matrimonial property to include the
matrimonial home (or home where the family lives), the household property in the
matrimonial home, any property acquired before or during the marriage which both
the spouses agree is shared to be matrimonial property, property towards which a
spouse has made a contribution, and seed money a spouse provided to start a busi-
ness.663 It clarifies further that matrimonial property excludes the ancestral property
and that any transaction on the matrimonial property shall be with the consent of
both spouses. It guarantees equal access to matrimonial property and the right to use
and benefit from this property, including the right to share income from disposal of
the said property.664
541. Regarding men and women’s property during the marriage, the Marriage
Bill states that both the man and woman have the right to own individual property
while they are married. Where either of them helps the other to improve their indi-
vidual property (bought before or during the marriage), then the person gets an
interest in the property. Gifts that spouses or cohabitees give each other during mar-
riage or cohabitation are assumed to be the property of the receiver.665
542. The Bill further illuminates on liability incurred before marriage. Accord-
ing to it, liability incurred by a spouse before marriage relating to separate property
shall, after the marriage, remain the liability of the spouse who incurred it, except
where such property becomes matrimonial property.666 The Bill is also particularly
helpful on the aspect of contribution to matrimonial property which is a very con-
tentious issue especially because it has implications on how much each spouse is
663. Marriage Bill 2017, clause 114.

664. Ibid., Clause 116.
665. Ibid., Clause 112.
666. Clause 117.

543–546 Part III, Ch. 4, Conventional Matrimonial Regimes
entitled to upon dissolution of a marriage. It states that where a spouse acquires

property before or during the marriage and the property does not fall within the
meaning of ‘matrimonial property’, but his or her spouse makes a contribution
towards the improvement of that property, be it monetary or in kind, the spouse
without the interest shall acquire a beneficial interest equivalent to the contribution
she or he made.667 This clarification is useful in providing guidance on how prop-
erty may be divided when parties fall out of marriage.
543. With the above in mind, it is clear that the Marriage Bill attempts to clarify
on women’s property rights and thereby avert the injustices created by the patriar-
chal cultural and religious practices that deny women a share in the matrimonial
property upon the dissolution of a marriage or separation. Clause 115 confirms the
fact that spouses may own property separately and that this does not form part of
matrimonial property. It also goes further ahead to define the separate property. In
this regard, therefore, wages and earnings acquired or gained by a woman during
marriage in any employment, occupation or trade; any money or other property
acquired by her during marriage through the exercise of any skill or by way of
inheritance, legacy, gift, purchase or any other lawful means; and all savings and
investments of such wages, earnings and property are her own. If a husband has
more than one wife, matrimonial property acquired by the husband and the wife
shall be held in joint ownership.
544. Unfortunately, with all its merits, the Bill which has on various occasions
been placed before Parliament for debate has since been stayed. Following heated
debate around the law, especially in as far as it provided for ‘contentious issues’
including inter alia the property rights of cohabiting couples, the Bill is yet to see
the light of day.
§2. THE ADMINISTRATION OF MUSLIM PERSONAL LAW BILL
545. Though not yet passed into law, this Bill is intended to regulate marriage,
divorce, separation, the inheritance of property, and other related matters for prac-
titioners of the Muslim faith in Uganda based on principles of Islamic Law as laid
down in the Quran and Sunnah. The Bill is also based on Article 129(1)(d) of the
constitution which states that ‘Judicial power in Uganda shall be exercised by the
courts of judicature which shall consist of … qadhi courts for marriage, divorce,
inheritance of property and guardianship … .’
546. The proposed Bill spells out the property rights of men and women in
Islamic marriages. A married woman has the right to the property she got before the
marriage as well as the right to get her own property during the marriage. Addition-
ally, a married woman’s salary or income of every kind (e.g., savings, investments)
belongs to her to do with as she considers proper. In Islam, a married woman has
the absolute right to own, sell, give away or manage her property. This property
667. Clause 118.

Part III, Ch. 4, Conventional Matrimonial Regimes 547–548
includes the gift given to her by her husband at the time of marriage. This gift is
called a mahr. The husband has no rights over the mahr at all and cannot take it
away from his wife. A husband and wife can acquire property together during the
marriage.
§3. COURT JURISDICTION
547. The High Court of Uganda has unlimited original jurisdiction, which means
that it can try any case of any value regarding property rights. However, the lower
courts – magistrate courts, Qadhi Courts and Local Council Courts – also have juris-
diction in matters of the breakdown of marriage and division of property. Suffice to
note that although most people have access to the lower courts, especially the Local
Council Courts, they are bedevilled with the challenges of patriarchal attitudes,
ignorance of the law and financial limitations that result into poor record keeping
and corruption to mention but a few. Hence if not well guided, adjudication of prop-
erty matters in these courts simply perpetuates abuse, especially to women.
§4. CONCLUSION
548. The continued absence of matrimonial property law in Uganda hinders

practical enforcement of the constitutional guarantees of equality of men and
women in marriage and at its dissolution. While enacting such law would not nec-
essarily or immediately translate into substantive equality between men and women,
it has the potential to offer a firm basis upon which the promotion of non-
discriminatory treatment would be developed and safeguarded in Uganda with
regard to marital property law. As such, there is an urgent need to pass a law regu-
lating property rights of both married and cohabiting parties in Uganda.

548–548 Part III, Ch. 4, Conventional Matrimonial Regimes

549–551
Part IV. Succession Law
§1. BACKGROUND TO SUCCESSION LAW IN UGANDA
549. Succession law in Uganda deals with the management and distribution of
property, including assets and liabilities of a deceased person. The management and
distribution of the deceased person’s property may either be in accordance with the
statutory laws enacted by Parliament if the person died without leaving a valid Will
(intestate succession) or in accordance to the deceased person’s wishes which were
stated in a valid Will (testate succession). Estates of deceased persons are either big
estates or small estates. An estate is considered a big estate if its value is over UGX
50 million and it’s a small estate if it is below UGX 50 million.
550. The law applicable to succession in Uganda is both customary law and/or
statutory law. Before the advent of the colonialists, succession to a deceased’s estate
was in accordance with customs and cultures of the area. Uganda has over fifty eth-
nic groups, and each had its peculiar way of dealing with the deceased estate. The
British colonial masters enacted the Succession Ordinance of 1906 to deal with suc-
cession matters in Uganda. Under this Ordinance, it introduced the British model of
how to deal with a deceased’s estate in Uganda. Although the Ordinance provided
for both testate and intestate succession, it fell short in providing for them exhaus-
tively in that the Ordinance did not provide for interests in an intestate’s property of
the Ugandan natives who then resorted to customary practices of succession.668 It
discriminated against illegitimate children and provided that only legitimate chil-
dren would inherit in an estate.669
551. In the same Ordinance, the Governor of the colony had powers to exempt
any group of people from the application of the whole or part(s) of the Ordinance.
The Governance passed the Succession (Exemption) Order whereby Uganda Afri-
cans and estates of Mohammedans were excluded from the application of the Suc-
cession Ordinance and Part V of the Ordinance respectively.670 This meant,
therefore, that different regimes of the law were applicable to Uganda Africans and
668. Okumu J. Wengi, ‘Women and the Law of Inheritance in Uganda’ in P. Tuhaise et al. (eds), Women
and Law in East Africa (2001).
670. General Notice 22/1/1907.

552–554 Part IV, Succession Law
Mohammedan on the one hand and the colonialists and foreigners on the other. Cus-
tomary and religious law continued to apply to Uganda Africans and Moham-
medan, respectively. In relation to testate succession, the Ordinance provided that
the husband would make a Will providing for his wife and children671 and would
also appoint a testamentary guardian for his children.672 Women were not consid-
ered capable of making Wills. Under the Ordinance, the widow of an intestate was
entitled to only one-third of the estate and the remaining two-thirds were for lineal
descendants.
552. In 1966, this changed when the Attorney General by the powers given to
the office in section 334 of the Succession Act revoked the statutory instrument that
exempted Uganda Africans and Mohammedans from the application of the Succes-
sion Ordinance. This, however, did not do away with the application of customary
laws. The application of customary law remained since the majority of Ugandans
were not very conversant with statutory law.
553. Under section 3 of this Decree, the application of customary law in succes-
sion matters had to be in conformity with the principles of natural justice, the doc-
trines of equity and good conscience. Later, the applicability of customary law
under this section was repealed by the Succession Act (Amendment) Decree, Decree
No. 22 of 1972. This, therefore, meant that the application of customary law in suc-
cession matters was done away with. The only instances where customary law could
be applied were provided in section 28(3) of the Decree in situations where all the
dependants of the deceased consented to the application of customary law or with
the order of Court.
554. This thus brought to an end the application of customary law to both testate
and intestate succession and the application of statutory law to succession matters.
Although this is the legal position, still some aspects of customary practice are still
observed. For example, the installation of the eldest son as customary heir to the
deceased, thus taking over the responsibility of looking after the family. The dis-
tribution of the property of a deceased according to custom is also still prevalent. In
The Administrator General v. George Mwesige Sharp,673 the court held that the legal
position as at 1962 was that all Africans of Uganda origin were exempted from the
operation of the Succession Act by reason of section 2(1) of the Succession Act
(Exemption) Order, Statutory Instrument 139-3. In this case, the deceased passed on
in 1962, and his estate was distributed in accordance with the Tooro customs.674 The
estate was distributed by the Tooro elders. Some of the beneficiaries were not sat-
isfied with the distribution. As a result, in 1985, they applied to the Administrator
General for the office to administer the estate. Indeed, the Administrator General

672. Ibid., s. 47.
673. Court of Appeal case No. 6 of 1997.
674. The Batooro is one of the ethnic groups/tribes in Uganda. It is found in the western part of Uganda.
They have a monarchy.

Part IV, Succession Law 555–557
obtained the Grant of LOA and purported to try and redistribute the estate accord-
ing to the law. The respondent appealed against this redistribution contending that
the estate had already been distributed according to custom. The court held that
since the estate had already been distributed according to custom, the Administrator
General had no powers to redistribute.
555. Similarly, in Sewava v. Kaggwa and Others,675 the court held that once the
distribution of the estate has been settled and expressed in formal certificates of suc-
cession, the Kabaka (King) and the Lukiiko (Cultural parliament) were functus offı-
cio. They cannot then attempt to redistribute the estate neither can the Administrator
General.676
556. Unlike the Ordinance, the Decree recognized illegitimate and adopted chil-
dren as being entitled to benefit in a deceased’s estate. The Decree defined a child
to include legitimate, illegitimate and adopted children.677 It also introduced a new
category of beneficiaries, that is, dependent relatives.678 It also recognized
polygamy,679 the concept of male preference to the female, and also recognized the
concept of legal heir680 and customary heir. It further provided for the distribution
of an intestate’s estate and the proportions to be shared.
557. The current Succession Act attempted to bring on board the aspirations of
the people of Uganda over time.681 It is largely a replica of the provisions of the
Succession (Amendment) Decree which it adopted with its gaps and anomalies. As
a result, the succession regime necessitated a review to address the gaps and anoma-
lies that have persisted over time. Several studies have been conducted, and recom-
mendations for amendment of the law of succession have been made based on the
identified gaps and inconsistencies. Some of the studies include the Kalema Com-
mission of Inquiry,682 Ministry of Gender and Community Development
675. [1954] EACA 30.

676. Misc. Application No. 42 of 1952. In this case, the issue for determination was whether a certifi-
cate of succession once issued could be altered or recalled by the Kabaka or the Lukiiko. The court
held that until the time of the issuance of a certificate of succession, the clan and the Kabaka or the
Kabaka acting on his own could vary the choice of succession and distribution of the estate. How-
ever, after the issuance of the certificate of succession, the Kabaka could not cancel a certificate of
succession as he and his Lukiiko were functus offıcio.
677. Succession Decree, s. 3.
678. Ibid., s. 3.
679. The Decree defined a ‘senior wife’ as a wife who was married first in time to the deceased intes-
tate, in polygamous marriages.
680. Section 2(n) Succession Decree defines a legal heir.
681. Okumu-Wengi, supra note 676.
682. Report of the Commission on Marriage, Divorce and Status of Women, 1965 commonly known as
the Kalema Report. This Commission was set up to examine and make recommendations on mar-
riage, divorce and the status of women in Uganda. In its para. 240, the Commission recommended
that the widow ‘should take a life-interest in one-third of the self-acquired property of the deceased
spouse’. Its reasoning was that such interest should be limited to a life interest or up to the time
when the widow remarries. This was to deter unscrupulous men from taking advantage of the wid-
ows to marry them solely for their property.

558–561 Part IV, Succession Law
Study,683 Ministry of Women in Development, Culture and Youth and the ULRC
Study on the law of succession, alongside the study on the Domestic Relations Bill.
558. The studies established several challenges within the law and practice of
succession. Among these were: (1) that the law on succession is largely unused as
culture and tradition was predominantly relied upon to operate in matters of suc-
cession,684 (2) that the provisions in the law were evidently discriminatory685 and
that the actors involved in implementation of the Act were faced with challenges of
implementation as the communities were largely unaware of the law and only
resorted to the formal institutions when customary procedures had failed,686 (3) the
centralization of the Office of the Administrator General,687 (4) light penalties in the
law, (5) complex and expensive procedures for acquiring a Grant of Probate or
LOA, among others. It was on this premise that the Domestic Relations study rec-
ommended a comprehensive study on the reform of the law on succession in
Uganda. To date, no amendments have been made by Parliament on the Succession
Act. However, the proposed amendments contained in the Succession (Amend-
ment) Bill, Bill No. 16 of 2018 signify a positive development in this regard.
559. There are a number of legislations in place that deal with succession in
Uganda. All the applicable laws deal with both intestate and testate succession. The
laws are: The Succession Act of 1906 Chapter 139; The Administrator General’s
Act, Chapter 157; Probates (Resealing) Act, Chapter 160 and the Rules thereto; the
Estates of Missing Persons (Management) Act, Chapter 159; The Administration of
Estates of Persons of Unsound Mind, Chapter 155; The Administration of Estate
(Small Estates) (Special Provisions) Act, Chapter 156; The Administration of
Estates (Small Estates) (Special Provisions)(Probate and Administration) Rules and
the amendments thereto; and The Administration of Estates(Small Estates) (Special
Provisions) Amendment of Jurisdiction of Magistrates Courts –Order SI 20 OF
2009.
560. Succession being a branch of the law that falls under civil law, the legis-
lations applicable to the civil procedure are thus applicable. These include: the CPA,
Chapter 71; The CPR and the Evidence Act, Chapter 6. Apart from these procedural
laws, other branches of the law that fall in the civil arena are applicable depending
on the subject of concern in relation to the estate.
561. Other laws related to succession but not applicable due to inoperation or
that the provisions have become obsolete are Administration of Estates by Consular
683. Ministry of Gender and Community Development: A study of Women and Inheritance in Bushenyi
District, Project paper No. 4, July 1994.
684. The study established that customary clan structures that control administration of property after
death were still firmly entrenched in the communities studied. As a result even where a will exists,
the customary norms may supersede it. See, Domestic Relations Bill Study, p. 272.
685. For example, the definition of a legal heir. See, Domestic Relations Bill Study, p. 301 by the
Uganda Law Reform Commission.
686. Ibid., p. 278.
687. Ministry of Gender, supra note 683.

Part IV, Succession Law 561–561
Officers Act, Chapter 154; Trust Corporations (Probate and Administration) Act,
Chapter 163; Trustees Incorporation Act, Chapter 165; Public Trustees Act, Chapter
161; and Church of England Trustees Act, Chapter 158.

562–566
Chapter 1. Intestate Succession

§1. THE OPENING OF SUCCESSION
562. As the literal meaning provides, succession is where the descendants of a

person take over the administration, management and possession of a deceased per-
son’s property. No descendant can take possession and administration until the
deceased passes on. This is because, under the Uganda Constitution, a person has a
right to own property.688 That ownership can thus only be succeeded once a person
dies.
563. When a person dies without making a Will, a person is said to have died
intestate, and it is only the beneficiaries that have a claim to the estate. Beneficiaries
under this type of succession are in accordance with the law. Section 27 of the Suc-
cession Act, which has been declared unconstitutional in some aspects (as will be
discussed under the section on the Capacity to succeed), clearly mentions those
entitled to succeed. These are the widow or widows, the children, the customary
heir, and dependent relatives.
564. On the other hand, a person is said to have died testate if he/she leaves
behind a valid Will. In instances where a person leaves a valid Will but does not
include some of his property, that property left out will be administered in accor-
dance with intestacy law. This is what is referred to as partial intestacy. In Uganda,
therefore, recognized intestacy can either be total or partial. The former applies
where there is no valid Will left behind, while the latter applies in instances where
some of the property is not included in the Will or where the testator had no capac-
ity to make a valid Will. It is very common for people to die intestate in Uganda. It
is not because they do not know about Will making, but it is because of the suspi-
cions people have that once one makes a Will, it will hasten one’s demise.
I. Death
565. The death of a person is the first prerequisite for succession to commence.
Under the Ugandan laws, there is no clear definition of death. Thus, death is con-
sidered to have occurred when the person’s physical organs have shut down, and
the person buried. Once a person passes on, the death must be reported to the office
of the Administrator General. Under section 2 of the Administrator General’s Act,
this is the only office created under the law to receive reports of the death of people
in Uganda. The report of death is made by filing in Form A from the office of the
Administrator General.
566. The form requires the informant to state the particulars of the deceased,
including: name; age; occupation; marital status; residence and cause of death;
688. Article 26(1) provides that ‘Every person has a right to own property either individually or in asso-
ciation with others’.

Part IV, Ch. 1, Intestate Succession 567–569
whether the deceased left a Will; whether the deceased left widow(s) or widower,
children or dependants; the persons well acquainted with the deceased’s property;
the property left behind; and the person who intends to apply for a Grant to admin-
ister the estate. When filing the form, the informant must attach proof of death. The
Registration of Persons Act, Act 4 of 2015 was passed in order to issue official
Death Certificates. Such Death Certificate is prima facie evidence of proof of death.
567. Although the Certificate of death is proof of death, usually a letter of the
local area authorities is also required to prove further that the deceased was a resi-
dent of the area. In some exceptions, and depending on the facts of the case, an affi-
davit sworn by a person who has personal knowledge of the demise of the deceased
can be accepted as evidence of death.
II. Missing Persons and Absentees
568. As noted above, a person is proved to be dead where a short death Certifi-
cate is issued from the hospital where the person will have died or if died from
home, then a letter of the local area authorities proving so. The short death Certifi-
cate is what is presented to the National Identification Registration Authority to
issue a long death certificate that is then conclusive evidence of the death of the per-
son. However, there are instances where a person is missing. According to the Evi-
dence Act689 and the Registration of Persons Act,690 a person is presumed to be dead
after a period of seven years. Under the Estates of Missing Persons (Management)
Act,691 the law that deals with estates of missing persons, the presumption of death
is three years. This latter Act makes provision for the administration of estates of
persons who are missing. Section 2 of the Act defines a ‘Missing person’ to mean
‘a person who disappears from Uganda without making provision for the adminis-
tration of his or her estate and investigations have shown that his or her where-
abouts are not known’.
569. Once a person is not heard from for a period of six months and did not
make provision for the administration of his estate or the maintenance of his or her
dependant relatives, then any relative of the missing person can apply to manage
his estate. The application must be made with the concurrence of the family of the
missing person. However, where twelve months lapse after the time of the disap-
pearance of the missing person and no relative has applied to manage the estate of
the missing person, then the Administrator General, if it is in public interest, may
apply to manage the estate of the missing person. The application is made to the
High Court by way of petition. Evidence must be adduced that the person is miss-
ing and his whereabouts cannot be traced. The petitioner must also prove that the
alleged person did not make provision for the management of his estate and the
maintenance of his relatives.
689. Evidence Act, s. 108 Evidence Act.

690. Ibid., s. 47.
691. Estates of Missing Persons Act, s. 20.

570–573 Part IV, Ch. 1, Intestate Succession
570. In Dr John Kiyimba Kitto v. Godfrey Sebuunya,692 the court held that ‘as
long as the applicant’s whereabouts remain unknown and no provision is made for
the management of his estate then such estate falls within the ambit of section 18 of
the Missing Persons (Management) Decree No 20 of 1973’.693
571. Once the court is satisfied that the person is missing, it shall grant a Man-
agement Order to manage the estate of the missing person. The Manager so
appointed does not have the power to distribute the estate nor sale it except with the
order of the court.694 The Manager only has the power and duty to manage the estate
of the missing person. Such Manager must file accountability with the court after
six months of obtaining the Management Order. Thereafter, the Manager must fur-
nish to the court annually or otherwise as directed accountability of how the estate
is managed. In the event that the missing person reappears, then the court will make
an order re-vesting the property to the person.695
572. When three years lapse and still the missing person has not been heard
from, the missing person will be presumed to be dead. Hence, the Manager shall
file a report with the Administrator General and accountability of how the estate has
been managed.696 At this time, the Management Order shall be returned to the court
for revocation. The Order shall be returned to the same court that issued it. Since
the person will be presumed dead, the procedure to administer an estate of an intes-
tate will then commence. If, however, a Will is discovered, then the procedure to
obtain Probate will commence. The procedure for both testate and intestate succes-
sion will be discussed later in the chapter.
III. Estates of Persons of Unsound Mind
573. Apart from the physical absentee as a missing person, there are also situ-
ations where a person is absent due to the unsoundness of mind. The Administra-
tion of Estates of Persons of Unsound Mind Act was passed to cater to such
situations. A person is declared to be of unsound mind under The Mental Treatment
Act, Chapter 279. Under that Act, an application for a person to be declared to be
of unsound mind is filed in the Chief Magistrate’s Court. Evidence from two quali-
fied medical practitioners is required before a person can be declared to be of
unsound mind.697 No order to manage the estate of a person of unsound mind can
be made until the person has been declared so. It is noteworthy, however, that the
Act has now been amended and some of the terminology has now been changed to
comply with international standards as set in the CRPD.698
692. Misc. Cause No. 29 of 1989.

693. It is important to note that this is now an Act.
694. Estates of Missing Persons Act, ss 20 & 21.
695. Ibid., s. 19.
696. Ibid., s. 21.
697. At the time of writing this monogram, a Mental Treatment Bill, 2015 is being prepared.
698. Convention on the Rights of Persons with Disabilities. Adopted on 13 Dec. 2006 and entered into
force on 3 May 2008.

574. In the matter of Khalid Latiff (Person of unsound mind),699 the Court was
guided by the Administration of Estates of Persons of Unsound Mind (Procedure)
Rules and sections 2, 3 and 4 of the Mental Treatment Act. Under those sections,
the procedure to adjudicate a person to be of unsound mind is that the Magistrate’s
Court must make an inquiry including interviewing the suspected person to be of
unsound mind and the acquisition of medical certificates from two medical practi-
tioners appointed by the court. In this case, only one medical certificate was pre-
sented before the court. The court held that it was premature for the applicant to
apply for a management order when the person had not yet been declared to be of
unsound mind. The importance of the inquiry by the Magistrate and the two medi-
cal certificates was also emphasized in In the matter of the estate of Kiggundu James
(A person of unsound mind).700
575. In both cases of managing an estate of a missing person or person of

unsound mind, the managers to who the Grant is given are not allowed to distribute
the estate. This is due to the possibility that the missing person will be found or the
person of unsound mind will regain his or her sanity and will be able to manage his
or her estate again.
576. When the court is considering who to appoint a Manager, the court should
be satisfied that the person is a fit and proper person to manage the estate of the per-
son of unsound mind who at that point is exposed to exploitation. The court must
be satisfied that the person is capable of preventing any neglect, exploitation or
abuse of the person of unsound mind; is capable of taking control of the persons
personal and real estate; has the best interests of the person of unsound mind and
his or her dependants; is an adult of sound mind and has no adverse interests in the
estate he or she wants to manage.701
IV. The Heir
577. Under Ugandan law, two types of heirs are recognized, that is, the custom-
ary heir and the legal heir. A customary heir is one who is installed as heir in accor-
dance with the customs of the deceased. Where the deceased is a man, the
customary heir in most circumstances will be the eldest son. The customary heir’s
role is that he stepped in the shoes of the deceased and, therefore, had the respon-
sibility to take care of the widow(s) and children of the deceased and generally be
responsible for the furtherance of the clan lineal line. That was the reason why
daughters would not be customary heirs to their fathers. It was argued that once she
got married, the children born would be of another lineage and hence would end
her father’s lineage.
699. Civil Misc. Application No. 026 of 2017.

700. Civil Misc. Application No. 18 of 2015.
701. Aseru v. Anjoyo, Civil Misc. Application No. 0001 of 2016.

578. In Onesforo Ngaaga and Another v. Matovu and Another,702 the court held
that:
being customary heir is a cultural function which does not bestow legal author-
ity on a person to deal with property of deceased, but it essentially meant for
someone to ‘step into the shoes’ of the deceased, as it were, solely for cultural
functions. However, when it comes to the deceased’s property and its admin-
istration the customary heir must first obtain legal authority even if he or she
may be a beneficiary; in absence of which he or she invariably becomes an
intermeddler in the estate of the deceased.
579. Once a customary heir is installed, he can only be removed in accordance

with custom. In Paulo Kaweesa v. The Administrator General and two others,703 the
clan leaders of the Ffumbe clan purported to remove the plaintiff as the customary
heir to his father. The court held that:
Once the Kabaka (King) of Buganda had ultimately confirmed the plaintiff as
the customary heir to Serwanga Muyunga, nobody in Buganda had the author-
ity to undo what the Kabaka had done. Doing so would amount to contempt of
the Kabaka who possessed ultimate authority in those matters. The clan lead-
ers of the Ffumbe clan had no jurisdiction to remove him.
580. However, due to the evolution in cultures, there are instances where a
deceased person, in his Will can appoint the daughter as his customary heir.704 This
is still a matter of contention, and in some tribes, such provision is considered void.
581. The legal heir is a statutory creation. Under the Succession Act, section
2(n), a legal heir is defined as the living relative nearest in the degree to an intestate
person under the provisions of Part III of the succession law which deals with con-
sanguinity. Uganda being a patrilineal society, the consanguinity is patrilineal as
only male descendants are considered. This particular section was declared uncon-
stitutional in Law and Advocacy for Women in Uganda v. Attorney General705 in as
far as it preferred a male heir to a female one. It was declared unconstitutional on
the basis of sex.
582. Neither the customary heir nor the legal heir has the automatic right to
administer the estate of the deceased. If it is testate succession, the executors shall
have the right to administer the estate after obtaining a Grant of Probate from a court
of competent jurisdiction. If it is intestate succession, the administrator of the estate

704. The proposed amendment to the Succession Act gives a definition of customary heir to include cus-
tomary heiress. It is proposed that the role of the customary heir or heiress should strictly be cul-
tural and that they should not be involved in the administration of the deceased’s estate.

will depend on who has been appointed by the family and has the Certificate of No
Objection from the Office of the Administrator General as well as the LOA issued
from a court of competent jurisdiction.
V. Capacity to Succeed
583. Capacity to succeed in intestate succession is by statute. Section 27 of the

Succession Act provides that the classes of persons to benefit in an intestate’s estate
are the widow, the children or lineal descendants, the customary heir and dependent
relatives.
§2. WIFE OR WIVES/SPOUSE
584. The spouse or wife referred to under the law is a person married under the
laws of Uganda. The recognized marriages are civil, church, customary, Hindu or
Muslim marriages as dealt with in Chapter Two of the monogram. Cohabitation and
same-sex partners are not recognized forms of marriage. Merely getting children
with a deceased person does not make one a wife and does not entitle a woman to
benefit in the estate.706 A widow was defined in Christine Male & Anor v. Sylvia
Mary Namanda & Anor707 as a person lawfully married under the laws of Uganda.
The court further held that merely having children with a woman does not entitle
her to have a share in the estate of the deceased.708
585. Much as marriage confers a beneficial interest to a widow, the court in

Masitula Nantongo Mugisha v. Enock Kakuru and others709 held otherwise. In that
case, the plaintiff and the deceased were married customarily, but they never reg-
istered their marriage. The plaintiff attempted to apply for LOA, but it was caveated
by the defendants. The issue, in this case, was the effect of section 5(1) (now sec-
tion 6(1) of the Act) and section 10 of the Customary Marriages Registration Decree
(now an Act). Section 5(1) reads:
(1) The parties to a customary marriage shall, as soon as may be, but in any event
not later than six months after the date of completion of the ceremonies of
marriage, attend at the office of the registrar of the marriage district in which
the customary marriage took place, with at least two witnesses to the marriage
ceremonies, to register details of the marriage.
706. Erinesti Babumba and 2 others v. Nakasi Kizito [1992] 2 HCB 75. The court further held that when
considering grant of Letters of Administration, the widower or widow of the deceased takes pre-
cedence. However, such widow or widower must prove that there was a valid marriage.
707. [1982] HCB 140.
708. Also see, Florence Kemitungo v. Yolamu Katuramu [1992–1993] HCB 155.

(2) The two witnesses to the registration of the marriage may be the parents,
brothers, sisters, uncles or aunts of either of the parties, chiefs, clan heads or
other persons of standing.
586. Section 10 reads:
A certificate of a customary marriage issued under the Act or a certified copy

of the certificate shall be conclusive evidence of the marriage for all purposes
in any written law.
587. The court, in this case, held that although section 10 of the Decree (now an
Act) does not render a marriage void for failure to register, on principles of the law
of contract, parties under a non-registered customary marriage cannot found a cause
of action as it is incapable of proof. This was also reinstated in Margaret Oyika
Wadri v. Stephen Andrama and 4 others.710 In those cases, the supposed widow was
denied a beneficial interest in the deceased’s estate for failing to prove customary
marriage not registered.
588. This law is also applicable to widowers. In Lazaro Lubangira v. Akamba

Bus Service,711 the husband of the deceased wife brought an action for damages on
behalf of his deceased wife’s estate. The issue for determination, in this case, was
whether the husband could bring an action on behalf of the estate since he was not
dependent on his wife. The court held that a husband was dependent on the wife
considering section 3 of the Succession (Amendment) Decree. Under that section, a
dependent relative is defined to include ‘a wife or husband who is wholly or sub-
stantially dependent on the deceased’.
§3. CHILDREN OR LINEAL DESCENDANTS
589. In regard to children, legitimate, illegitimate and adopted children are

entitled to a share in the estate. In Kajubi v. Kabali,712 the court took judicial notice
of the fact that getting children out of wedlock was widespread and common in the
Ugandan community; hence discriminating between legitimate and illegitimate chil-
dren would be detrimental to a vast majority of children. In this case, the deceased
had seven children with his legally wedded wife and forty three other children with
different mothers. The children of the legally wedded wife claimed that they were
entitled to a bigger share than the other children. The clan elders, in distributing the
estate, divided it equally among all the children hence the case. The court further
held that for purposes of succession, children – whether legitimate or illegitimate –
are all entitled to equal shares in the deceased estate. It further observed that for pur-
poses of succession, only illegitimate children recognized or accepted by the
deceased were the only ones entitled to a share in the estate.
710. High Court Administration Cause No. 12 of 1997 (Judgment was delivered in 2016).
711. [1979] HCB 20.
712. [1944] EACA 14.

590. Adopted children are equally entitled to the share in the estate of a deceased
person. An adopted child must be one who has legally been adopted in accordance
with the CA713 and the Family and Children Court (Adoption of Children) Rules.714
Under section 51 of the CA, the effect of adoption is that all the biological parents’
rights and obligations are extinguished, and they are bestowed on the adoptive par-
ent. Section 52(1) further provides that when an adopter dies intestate, his or her
property shall devolve in all aspects to the adopted child as if such child was the
biological child of the adopter. Section 52(2) provides that:
If it appears to the High Court on a claim made, that the disposition of prop-
erty devolving on an intestacy has been exercised unfairly against an adopted
child, the court may order such provision as the court thinks equitable to be
made for him or her out of the property devolving on the intestacy in accor-
dance with the law.
591. Where the adoptive parent makes a Will and does not provide for the
adopted child, that child has a right to go to court and pray that provision be made
for him or her.715 There is a provision to this section that the adopted child shall not
be entitled to share in both the natural and adoptive parents’ estate.716
592. Age is not an issue with regard to succession. Children – whether minors
or adults –are all entitled to a share in the deceased’s estate. Where children are of
minority age, their capacity to deal with their estate is limited and can only be
through their legal guardian appointed by the courts. Guardian for this purpose is
provided for in sections 43 and 44 of the Succession Act. Under section 43, a father
may appoint a guardian in his Will who will be responsible to cater to the interests
of the child. That guardian is referred to as the testamentary guardian. Although
these sections are still in our statute books, they were declared unconstitutional in
LAW (U) v. Attorney General.717
593. Under section 44 of the Act, the court can appoint a statutory guardian to
cater to the interests of the child where no guardian is appointed by Will or the
guardian appointed refuses to act. Once a guardian is appointed, he or she is subject
to the law of trusts and holds the property of the child for the benefit of the child.
Where the mother of the child is still living, then the guardian shall jointly act with
the mother to cater to the interests of the child.718 The amendment to the Act seeks
to remove the words ‘father’ and insert ‘parent’ such that also the mother can
appoint a guardian of the children.
713. Chapter 59 of the Laws of Uganda, Part VII.

714. Statutory Instrument No. 52 of 1997.
715. Children Act, s. 53(1).
716. Ibid., s. 53(3).
718. Section 46(2) of the Succession Act.

594. This type of guardianship should be distinguished from the guardianship

provided for in the CAA. According to this law, there are three types of guardian-
ship: Legal guardianship that is granted by the High Court and only to Ugandan citi-
zens; customary guardianship that is appointed in accordance with the customs and
cultures of the child; and Guardianship by Agreement where the parents agree to
give guardianship to a third party. Under that law, the guardianship relationship ter-
minates on the death of the guardian or is suffering from infirmity of body or mind
or when the child attains the age of eighteen.719
595. The law is, however, silent on what happens to the share of a deceased child
who precedes his or her parents. The law, that is, the CA nor the Succession Act, is
also silent about children begot as a result of surrogacy or artificial insemination.
§4. DEPENDENT RELATIVES
596. Dependent relatives also have the capacity to succeed. Section 2 of the Suc-
cession Act defines a dependent relative to include:
(i) a wife, husband, a son or daughter under 18 years of age or a son or daughter
of or above 18 years of age who is wholly or substantially dependant on the
deceased;
(ii) a parent, a brother or sister, a grandparent or grandchild who, on the date of
the deceased’s death was wholly or substantially dependant on the deceased
for the provision of the ordinary necessaries of life suitable to a person of his
or her station.
597. This definition is vague and ambiguous. Its interpretation is subject to the
facts of each case. In order to cure this, in the proposed amendment to the succes-
sion law, it defines a dependant relative to:
include a parent, a brother or sister, a niece or nephew, a grandparent or grand-

child who, on the date of the deceased’s death, was wholly or substantially
dependant on the deceased for the provision of the ordinary necessaries of life
suitable to a person of his or her station.
598. The amendment seeks to remove wife, husband and children from the defi-
nition but introduces niece and nephew. The catch words here are ‘wholly and sub-
stantially dependant on the deceased’. The interpretation of wholly and substantially
dependant has been left to the courts and is dependent on the facts of each case. In
the Kenyan case of Gachigi v. Kamau,720 which case is followed in Uganda as good
law, court held that in order to qualify as a dependent relative and hence a benefi-
ciary to the estate of an intestate, the person must prove that she was the deceased’s
719. Section 43H of the Children (Amendment) Act, Act 9 of 2016.

720. [2003] EA 69.

wife and that the children belonged to the deceased. In addition, they must prove
that they were wholly and substantially dependent on the deceased.
I. Commorientes
599. This is where two or more persons die in the same disaster.721 In many
instances, determination of who died first might be difficult. The law in Uganda is
silent about this matter. In the absence of any written law, common law is appli-
cable. The position of common law is that when two persons die in the same disas-
ter and the order of death cannot be ascertained satisfactorily; neither is deemed to
have survived the other. It means, therefore, that their estates cannot benefit from
each other. However, in many common law jurisdictions, there is a presumption that
the older is presumed to have died before the younger. In Uganda, where such a sce-
nario happens, the law of succession in relation to administration of the estate will
apply.
II. Unworthiness to Succeed
600. There are instances where although a person is entitled to succeed in an

estate, circumstances may preclude him or her from succeeding. This unworthiness
is applicable both in testate and intestate succession.
601. A widow might be disqualified from succeeding in the estate of her hus-
band if she had been separated from the deceased six months prior to the deceased’s
death.722 This section deals with those cases where, although the legal relationship
between the intestate deceased and his partner was that of husband and wife at the
time of death the parties were not living as members of the same household. This
separation, however, is not applicable to where parties are living separately due to
a court order.
602. In Elizabeth Nalumansi Wamala v. Jolly Kasande and two Others,723 the
appellant and the deceased were married in the UK in 1992, and they had one child.
In 1999, the deceased returned to Uganda and married the first respondent custom-
arily, and they begot four children. The appellant remained in the UK but in 2010
returned to Uganda briefly, and they renewed their vows. After, the appellant
returned to the UK and only returned in 2012 on the death of the deceased. The
appellant applied for a grant of LOA as a widow, but the same was caveated by the
first respondent, who claimed to be the legal wife, the second respondent, the daugh-
ter of the deceased, and the third respondent, the brother of the deceased. At the
trial, the High Court held that the appellant (who was the plaintiff) was not a fit and
proper person to administer the estate of the deceased as her marriage had not been
721. http://legal-dictionary.thefreedictionary.com/commorientes.
722. Section 30 of the Succession Act.

registered in Uganda and also that being that she was living in the UK, she could
not keep a hands-on of the estate. The appellant was dissatisfied with the decision,
and she appealed to the Court of Appeal. The Court of Appeal upheld the decision,
and she appealed to the Supreme Court.
603. On a majority of 4 to 1, the Supreme Court held that lack of registration of

the marriage in the UK did not invalidate the marriage. Rather, registration of the
marriage in Uganda would have been for evidential purposes only. The court fur-
ther held that because the appellant was living and working in the UK, she was sepa-
rated from the deceased and was not a member of the same household hence she
was not entitled to a share in the estate of the deceased as stipulated in section 30
of the Succession Act. As such, therefore, she was not a fit and proper person to get
a grant to administer the deceased’s estate.
604. However, section 30(2) and (3) creates exceptions to the general rule. The
exceptions are: if the spouse has been absent on an approved course of study; and
if a court has on application by the spouse, declared that subsection (1) should not
apply.
605. In Mboijana James v. Mboijana Prophine,724 Court held that the widow
had been separated from the deceased for over twenty years and she could not have
been wholly or substantially dependent upon the deceased. Court further held that
the question of what leads to the separation of the parties does not arise. In Rwa-
baganda Farasia v. Donato Bahemurwusha,725 the court found that no spouse of an
intestate is to share in the estate of the deceased if at the time of the death of the
intestate the spouse was separated from the intestate as a member of the same
household. In Nyendwoha Lucy v. Nyendwoha Robert,726 the wife left the husband
at their home on 21 May 1982 due to the insecurity in the area. The husband was
killed on 2 June 1982. In this case, the Court held that the separation referred to in
section 30 did not mean any physical separation for a given reason. The separation
had to be when the wife is no longer a member of the same household. What
amounts to the ‘same household’ has to date not yet been interpreted by the court.
606. The amendment to the Succession Act attempts to define separation to

mean:
Separation for a period of at least six months consecutively either –
(i) by agreement, where the parties consent to suspend the marriage in writ-
ing, and the consent is witnessed by at least one representative of each
party; or
724. [1990–1991] HCB 10.

725. [1978] HCB 68.
726. [1989] KALR 108.

(ii) by judicial order, where one or both parties petition court asking for a sus-
pension of the marriage on evidence that the parties can no longer live
together.
This definition, however, still falls short of defining the ‘same household’.
607. Another category of persons who cannot inherit in a deceased’s estate is if

such person(s) caused the death of the deceased. Although this category is not spe-
cifically provided for in the law, common law is applicable. Since common law is
applicable to Uganda, thus, the principle that one should not benefit from their own
wrongdoing applies. What is not clear though is whether the person should first be
convicted of the murder of the deceased or that mere suspicion can suffice. It is also
not clear whether if one caused the death during self-defence or if of unsound mind
a person forfeits their interest in the estate. Unfortunately, the proposed amendment
to the Act is also silent about it.
§5. THE SYSTEM OF DESCENT
I. The Classes of Heirs
608. The order of priority of succession in a deceased’s estate is determined by

law. As will be discussed later, the Succession Act does not specifically provide for
the order of priority to inherit in an estate. Case law has settled this matter as will
be discussed later. However, such order of priority to obtain a grant is provided for
in the Administration of Estates (Small Estates) (Special Provisions) (Probate and
Administration) Rules. Before the latter legislation is discussed later in the chapter,
I wish to point out that in the proposed amendment to the Succession Act, it is pro-
posed to amend section 204 and provide thus:
609. Entitlement between members of the same class.
610. Where there are two or more persons who are entitled to the same propor-
tion of the estate, they shall be equally entitled to administration, and a grant may
be made to one or some of them jointly after a citation has been issued and pub-
lished in the manner prescribed in this Act.
II. Distribution Rules of Intestacy
611. As discussed earlier, the classes of persons to benefit in an intestate’s estate

are the widow, the lineal descendants or children, the customary heir and dependant
relatives. Section 27 of the Succession Act provided thus:

(i) Where the intestate is survived by a wife, customary heir, lineal descendants,
and dependant relatives the property is distributed as follows: the Customary
heir gets 1%; the Wife or wives get 15%; the dependant relatives get 9%, and
the Lineal descendants get 75%.
(ii) Where the deceased is survived by neither a wife nor a customary heir, 100%
of the property goes to his lineal descendants. The lineal descendants rank
equally, regardless of sex and whether they are legitimate, illegitimate or
adopted children.
(iii) Where the intestate person is survived by a dependant relative, a customary
heir and a wife, the Wife gets 50%; the dependant relatives get 49%, and the
Customary heir gets 1%.
(iv) Where the intestate person is survived by a wife or dependant relative and a
customary heir only, the Wife or dependant relative gets 99%, and the Cus-
tomary heir gets 1%.
(v) Where the intestate person is survived by a customary heir only, the estate is
distributed equally to the relatives nearest in the degree to the deceased.
(vi) Where there is no customary heir, dependant relative, lineal descendant nor
wife, the property shall belong to the legal heir.
612. This section was among those in the Succession Act declared unconstitu-
tional in LAW (U) and Others v. Attorney-General.727 In that petition, the petition-
ers sought from the Constitutional Court to declare some sections of the Succession
Act as discriminatory against women. The Constitutional Court held that section
2(n) that provides for legal heir was discriminatory on the basis of sex; section 2(l)
that defines illegitimate child was discriminatory in as far as classifying children;
sections 15 and 16 that govern the domicile of a wife during marriage are discrimi-
natory in that a husband may not take the domicile of his wife while a wife is auto-
matically assigned a domicile; section 23 that provides for mode of computing
degrees of Kindred; section 26 that provides for devolution of residential holdings;
section 27 that provides for distribution on the death of a male intestate section 29
that provides for reservation of a principal residential holding from distribution; sec-
tion 43 that grants rights of appointment of testamentary guardianship to only the
father, and section 44 that provides for appointment of Statutory guardians only
upon death of a father and not the mother of the Succession Act are inconsistent
with Articles 20, 21, 24, 26, 31, 33 and 44 of the 1995 Constitution.
613. The court also struck down Rules 1, 7, 8 and 9 of the Second Schedule to
the Act that provided for the right of occupancy of a residential holding. The court
found that occupancy of the residential holding should be uniformly applicable to
both widows and widowers if they choose to remarry. It was discriminatory for only
the man to remain in occupancy when he remarried and yet remarriage terminated
the woman right of occupancy.
614. To date, no amendment to the law has been made by Parliament. This has,
therefore, left a gap as to the percentage of entitlements by beneficiaries. This,

though, has not affected those entitled to benefit. At the time of writing this chapter,
a proposed law, The Succession (Amendment) Bill No. 16 of 2018, is in the offing
and has already been gazetted. In that Bill, it is proposed that the distribution of the
estate of an intestate should be thus:
(a) where the intestate is survived by a spouse, a lineal descendant and a dependent
relative, (i) the spouse shall receive 50%; (ii) the dependent relatives shall
receive 9%; and (iii) the lineal descendants shall receive 41% of the whole of
the property of the intestate;
(b) where the intestate leaves no surviving spouse or dependent relative under para-
graph (a)(i) or (ii) of this paragraph capable of taking a proportion of his or her
property, that proportion shall go to the lineal descendants;
(c) where the intestate is survived by a spouse and a dependent relative but no lin-
eal descendant (i) the spouse shall receive 80%; and (ii) the dependent relative
shall receive 20%, of the whole of the property of the intestate;
(d) where the intestate is survived by a spouse or a dependent relative but no lineal
descendant, the spouse or the dependent relative, as the case maybe, shall
receive 100%, of the whole of the property of the intestate;
(e) where the intestate leaves no person surviving him or her, capable of taking a
proportion of his or her property under paragraph (a),(b),(c) or (d), the estate
shall be divided equally between the relatives nearest in kinship to the intestate;
(f) where the intestate leaves no person surviving him or her, capable of taking a
proportion of his or her property under paragraph (a), (b), (c), (d) or (e), the
whole of their property shall be managed by the Administrator General in accor-
dance with the Administrator General’s Act.
615. The share of the widow is applicable to both monogamous and polyga-
mous marriages. If, for example, four widows are left behind, they will share the
15% equally. The current law is however silent about widower’s entitlements. This
is because, at the time of enacting the Succession Act in 1906, it was presumed that
widows did not own property; hence, nothing for widowers to inherit. Circum-
stances have, however, changed and women/widows also own property. Until the
succession laws are amended, a reference to widower’s entitlement is made to
Article 31(1) of the 1995 Constitution, which provides that:
Men and women of the age of 18 years and above have the right to marry and
to found a family and are entitled to equal rights in marriage, during marriage
and at its dissolution.
616. Since death terminates a marriage, then the rights of widows are the same
as of widowers.
617. This proposition is opposed by the faithful of the Islamic faith on the
ground that succession under Islam is provided for in the Quran. Furthermore, there
is a proposed law on the Muslim Personal Law Bill, which specifically provides for
succession under Islamic law. The impasse is yet to be determined.

618. As can be noted from the current law and the proposed amendments,
dependent relatives get a small percentage of the deceased’s estate. They only get a
substantial amount if there are no surviving spouses or lineal descendants.
III. Representation (Administration of Estates)
619. The jurisdiction for Administration of an estate of an intestate or testate will

depend on the value of the estate. If the estate is below UGX 50 million, the pro-
cedure will be in the Magistrates Court, and the law applicable will be the Admin-
istration of Estates (Small Estates) (Special Provisions) Act and The Administration
of Estates(Small Estates)(Special Provisions)(Probate and Administration) Rules. If
the estate is above UGX 50 million, then the application for LOA shall be in the
High Court. As was held in Nakedde Imelda Ndiwalungi v. Roy Busulwa Nsereko
and Anor,728 LOA which are granted by a court without jurisdiction is a nullity. In
both cases, the residence of the deceased shall determine the court where to apply
for the LOA.
620. Apart from the consideration of residence, the domicile of the deceased is
equally important. If the deceased was domiciled in Uganda, then the Ugandan
Courts have jurisdiction to grant LOA. Section 4(1) of the Act provides that the laws
of Uganda shall be applicable to all immovable property of the deceased if the
deceased was domiciled in Uganda. However, if the property is moveable, then sub-
section (2) provides that the law at which the person was domiciled shall apply. A
person is said to have been domiciled in Uganda if the person was ordinarily resi-
dent in Uganda two years preceding his or her death or if he or she is survived by
a spouse or child who was at the time of the deceased’s death ordinarily resident in
Uganda.
621. The law further provides that for purposes of succession to one’s moveable
property, a person shall have only one domicile.729 The Act makes it clear that one
does not acquire domicile in Uganda just because of residence due to work, consul
or representative of another country. One must specifically go through the proce-
dure of acquiring domicile as provided in section 10 to the Act.
622. If not domiciled in Uganda, then a grant can be obtained from the country
where the deceased was domiciled and then resealed in Uganda to give it effect.
This resealing process is provided for under The Probate Resealing Act and the Pro-
bate Resealing Rules. According to this Act, where a grant is given in any part of
the Commonwealth in any foreign country or a British court in a foreign country,
that grant can be resealed in Uganda. A copy of the grant is deposited in the High
Court, probate fees paid and any security as required by the court and the grant will
be resealed. The court may require that the application to reseal be advertised in the
local newspapers to give notice to the public on any person who would want to
728. [1997] HCB 73.


oppose the resealing. Once the reseal is done, the grant will have the same effect
and force as if it was granted by the courts of Uganda.
IV. Administration of Estates under the Administration of Estates (Small

Estates) (Special Provisions) Act
623. The Act provides for the jurisdiction of small estates of deceased persons
and other matters related thereto. The jurisdiction of the Magistrate’s Court was
enhanced in 1990 when the Act was amended.730 Under section 2(3)(b), a magis-
trate’s court cannot make a grant for LOA ‘in respect of an estate of a deceased per-
son who at the time of his or death had no fixed place of abode within the
jurisdiction of the court’. In Uganda, as already discussed in the Introductory chap-
ter, the jurisdiction of magistrate’s court is both pecuniary and geographical. The
demarcations are provided for in the Magistrates Courts (Magisterial Areas) Instru-
ment.731 Where an estate does not fall in the geographical area of the magistrate,
any grant given in that area cannot be used in another magisterial area. Also, if the
value of the estate is bigger than that of the magistrate’s court, the grant given by
that court is a nullity.732
624. Furthermore, in section 10(5), the Act excludes the application of section 5
of The Administrator General’s Act which is concerned with the application of a
Certificate of No Objection. This exclusion makes the procedure process quicker as
it does away with the tedious process before the Administrator General. However,
the court is obliged to make an inquiry as to the truthfulness of the applicant and
the estate before giving the Grant. This inquiry takes the form of the court exam-
ining the applicant on oath or affirmation; inquiring whether the applicant has a right
to apply for the grant; whether the Will is a valid Will; get more particulars about
the identity of the deceased and the applicant, and summoning all persons men-
tioned in the petition for grant to appear before the court to find out whether they
approve of the applicant to be given the grant. No grant with the Will annexed shall
be given within fifteen days of the death of the deceased, and no grant for the LOA
shall be issued within thirty days of the death of the deceased.733
625. Under Rule 11 of the Rules made under the Act,734 the order of priority for
grant in cases of intestacy is:
(a) the children of the deceased;

(b) the surviving spouse;
(c) the father or mother of the deceased;
730. Magistrate’s Courts (Amendment) Act, 2007.

731. Statutory Instrument No. 45 of 2007.
732. Nakedde Imelda Ndiwalungi v. Roy Busulwa Nsereko and Anor [1997] HCB 73.
733. Rule 5 to the Administration of Estates (Small Estates) (Special Provisions) Act.
734. Statutory Instrument No. 156-1.

(d) brothers and sisters of the whole blood, or the issue of any deceased brother or
sister of the whole blood who had died during the lifetime of the deceased and
any persons entitled by virtue of any enactment to be treated as if they were the
children of the deceased; or
(e) the issue of any such child of the deceased, except that any person entitled to a
grant of LOA under paragraphs (a) to (d) of this sub rule may, with the consent
of persons entitled in the same degree in writing, authorize any person entitled
in the next degree under those paragraphs to apply for the grant.
626. If no person in any of the classes mentioned in sub rule (1)(b) to (d) of this
rule has survived the deceased, then, the persons hereafter described shall be
entitled to a grant in the following order of priority:
(a) brothers and sisters of the half blood or the issue of any deceased brother or sis-
ter of the half-blood who had died during the lifetime of the deceased;
(b) grandparents;
(c) uncles and aunts of the whole blood, or the issue of any deceased uncle or aunt
of the whole blood who had died during the lifetime of the deceased; or
(d) uncles and aunts of the half blood or the issue of any deceased uncle or aunt of
the half-blood who had died during the lifetime of the deceased:
(1) In default of any person entitled to a grant under this rule, the Administrator
General shall be entitled to a grant if he or she claims bona vacantia on
behalf of the State.
(2) The personal representative of a person in any of the classes mentioned in
sub rules (1) and (2) of this rule shall have the same right to a grant as the
person whom he or she represents.
(3) When a person who is entitled to a grant under this rule fails to apply for
the grant within three months after the death of the deceased, then, the per-
son entitled in the next degree may apply for the grant.
627. Although the law provides so, the issue of priority to obtain LOA has been
settled by case law where Courts have held that the person with the greatest share
of an intestate’s estate has priority to administer the estate. In Florence Kemitungo
v. Yolamu Katuramu,735 the court held that a widow is the most suitable person to
obtain a grant to her deceased husband’s estate as she is in ‘normal course of events,
the person who would rightly, properly and honestly safeguard the assets of the
estate for herself and the children’. This same position was reiterated in Zena Nkusi
Kaboyo and Anor v. Kyomuhendo Creaven and Anor736 where the court held that
the widow has priority to apply for a grant of LOA.
628. The next class of people are the children, but if they are minors, then a
paternal relative of the deceased is next in line. That person applies for the grant as
the guardian of the minor children. In the alternative and if there is no paternal rela-
tive, then the court can order the Administrator General to administer the estate.
735. [1992] IV KALR 12.


Where the decision has to be made between lineal descendants who have the same
right, the court in Neena Patel v. Harish Patel737 held that both lineal descendants
should be given the grant. That since both parties were in conflict, it would not be
in the interest of the estate to have only the two of them administer the estate, so the
Administrator General was joined a co-administrator.
629. As earlier noted, the court has the duty under Rule 5 to make such inquir-
ies about the deceased, the deceased’s estate and the applicant before granting the
LOA. Once a grant of LOA has been granted under the Seal of Court, ‘no person
other than the holder of the grant may sue or otherwise act as representative of the
deceased, until the grant is revoked’.738
630. Although the Act specifically provides for administration in small estates,
the provisions of the Succession Act, unless specifically excluded, apply to small
estates. The court in Jackson Oyuk Kasede v. William Odoi Nyandusi739 had to
determine whether the provisions of the Succession Act were binding upon the
administration of both small and big estates. The court held that the provisions of
both the Succession Act and the Administration of Estates (Small Estates) (Special
Provisions) Act were to be construed as one as the provisions of both Acts comple-
ment each other. Court further held that where the provisions of the Succession Act
are not applicable, it was specifically stated. Thus, the provisions of the Succession
Act are applicable to both small and big estates.
631. Section 2(4) of the Act stipulates that a ‘grant of Letters of Administration
may be revoked, altered or annulled for just cause, and any errors appearing in the
grant of probate or letters of administration may be rectified by the court’. ‘Just
cause’ was defined in the Succession Act and will be discussed later in the chapter.
632. The procedure to obtain LOA is that the Applicant fills Form 1B of the First
Schedule to the Rules to which must attach evidence of proof of death. In the form,
the Applicant must state the name of the deceased and his or her address; date of
death; the relationship of the Applicant to the deceased; the names of the family and
other relatives to the deceased together with their addresses; the property left behind
by the deceased and the estimated value of the estate.
633. Before the court can give the grant, the applicant must sign an administra-
tion bond undertaking to administer the estate for the benefit of the beneficiaries.
The Form is found in Form 7 of the First Schedule to the Rules.
737. HCCS No. 1067 of 1996.

738. Section 4.
739. HCCS No. 104 of 2013.

§6. ADMINISTRATION OF ESTATES UNDER THE SUCCESSION ACT
634. These are estates whose value is above UGX 50 million. The procedure for
application is provided for in sections 244 and 246 of the Succession Act for peti-
tioning for Probate and LOA respectively. Under the Act, administration of a
deceased estate may either be granted to an executor named in the Will by way of
Grant of Probate or to an Administrator where no Will is left behind or if Will left
behind but no executor named therein by way of Grant of LOA or Grant of LOA
with the Will annexed.
635. LOA may be granted to more than one person. However, no such grant can
be given to a minor or a person of unsound mind.740 The application for a grant is
by way of petition verified741 and accompanied by a Statutory Declaration and a
Notice of Application. The Notice of Application is advertised in the local gazette
or newspaper of wide circulation for fourteen days. The purpose of this notice is to
call upon any person who objects to the grant of LOA to lodge a caveat.742 In Sse-
bowa Sarah and 5 others v. Peter Ssebowa,743 the court held that the statutory
period of fourteen days for publication after the application for a grant must be com-
plied with. Once a caveat is lodged, then no grant can be given. Instead, the peti-
tioner will file a suit praying that the caveat be removed.744 The petitioner will be
the plaintiff and the caveator the defendant. The procedure was discussed in In the
Matter of the Estate of Musa Kyakonye Misango (Deceased) where the court
emphasized the provisions of section 265 of the Succession Act that provides that:
In any case before the High Court in which there is a contention, the proceed-
ings shall take, as nearly as may be, the form of a regular suit according to the
provisions of the law relating to civil procedure in which the petitioner for pro-
bate or letters of administration, as the case may be, shall be the plaintiff and
the person who may have appeared to oppose the grant shall be the defendant.
636. Again, in Nkwakwa v. Kyomugyemo,745 the court held that the lodging of a
caveat to an application for LOA makes it contentious. Therefore, the procedure
under the Administration of Estates (Small Estates) (Special Provisions) (Probate
and Administration) Rules must be followed. The contending party has to file a
plaint, and then the normal service of the court documents follows.
637. Documents that must accompany the petition are proof of death, a Mar-
riage Certificate (if a widow or widower), Birth Certificate of the children, docu-
mentary evidence of the deceased property and a Certificate of No Objection from
the Administrator–General’s office. It is only the widow and executor of a deceased
740. Section 190 of the Succession Act. A minor for purposes of this Act is defined as a person who has
not attained the age of 21 years.
741. Sections 247 and 248 of the Succession Act.
742. Section 254 of the Succession Act provides the format for the caveat.
743. [1991] HCB 95.
745. [1976] HCB 291.

person who are not required to obtain the Certificate of No Objection. This is
because the widow has the priority to administer her husband’s estate.746
638. This position was spelt out in the Kenyan case of Re Kibiego,747 which case
has been cited as good law in Ugandan courts that the widow is the proper person
to obtain LOA to her husband’s estate particularly where the children are under age.
This was further emphasized in Juliet Kalema v. William Kalema and Rhoda
Kalema748 where the court held that a widow has the mandate to make decisions
concerning her late husband’s estate for her own benefit and those of her children.
However, in Elizabeth Nalumansi Wamala,749 the court made it clear that being a
widow does not, per se, give the widow priority to be appointed administrator of
the estate. In this case, the widow – Nalumansi Wamala – had a civil marriage with
the deceased in the UK where they were living. The deceased later returned to
Uganda and underwent a customary marriage with the respondent. They got chil-
dren. The widow then came to Uganda briefly, and they renewed their vows with
the deceased. Later, she returned to the UK. She only came back to Uganda upon
the death of the deceased. Court held that the fact that the widow was not living in
Uganda, she could not be able to administer the estate of the deceased properly.
639. Although the widow has priority, where there are other children not born
by her, courts have held that it is prudent for her to be joined with a
co-administrator. In Gladys Ella Felster Omella v. Nicholas Etieng and Another,750
the court held that:
While the widow of the intestate is the proper person who should apply for let-
ters of administration to the estate of her deceased husband, in the instant case
there were other children of the deceased not begotten from the applicant wife.
The fact causes doubt as to whether the estate may be preserved for the benefit
of all concerned, particularly the children begotten from other women. There-
fore a clan elder would be joined to co-administer the estate with the applicant.
640. In another scenario where the priority of the widow may be limited is when
a testator has left a Will. In Stella Maris Amabilis and Another v. Esther
Nabusakala,751 the facts were that the deceased left a Will naming the plaintiffs as
executors of his Will. The executors/plaintiffs applied and obtained a grant of Pro-
bate. The defendant, his widow, also applied for LOA, and they were granted. The
issue for determination for the court was which grant would take priority taking into
account that no one estate should have more than one grant. The court held that
since the estate was testate, the grant of probate took precedence over the widow’s
LOA. The widow’s LOA was cancelled.
746. Sections 201 and 202.

747. [1972] EA 179.
748. [2004] UGCA 15.
750. [1994] KALR 98.

641. All other applicants/petitioners for LOA, for example, children, grandchil-
dren, parents, friends, creditors or any person who wants to administer an estate of
the deceased must first obtain a Certificate of No Objection from the Administrator
General. This requirement is mandatory. In Komakech Sam v. John Bayi,752 the son
of the deceased applied for LOA without first obtaining a Certificate of No Objec-
tion. The court held that the application for the grant was premature as it did not
comply with section 6 of the Administrator General’s Act. The court held that the
section providing for a Certificate of No Objection is mandatory and no grant will
be made without compliance with it unless the applicant is a widow, widower or an
executor appointed in the Will. This was also reiterated in Philip Okot Lalobo v.
Elizabeth Lalobo and Another.753
642. The Administrator General’s office is a creation of The Administrator Gen-

eral Act.754 The main role of the Administrator General is to act as a public trustee
and ensure rightful succession to the property left by deceased persons who die
intestate and those who die testate but without naming an executor. The office has
the full powers to vet persons intending to apply for LOA and LOA with the Will
annexed. Section 5 of the Administrator General’s Act provide for the categories of
persons not required to obtain a Certificate of No Objection, that is, the executor,
the widow or widower.
643. The purpose of the Certificate of No Objection is two-fold; one, that the
Administrator General, who is second in hierarchy to obtain LOA to a deceased’s
estate, has no objection to the applicant obtaining the LOA; and two, that the
intended applicant has been vetted by the Administrator General and found to be a
fit and proper person to administer the estate. The Certificate of No Objection is not
a guarantee that the Court will issue the LOA automatically. A dissatisfied benefi-
ciary can still caveat the application. Where the application for the LOA is made
jointly by the widow and another person, still the Administrator General has to issue
a Certificate of No Objection to the other applicant.
644. In Christine Male & Anor v. Sylvia Mary Namanda and Anor,755 the widow
together with the sister of the deceased jointly applied for LOA. The sister’s appli-
cation was rejected due to the absence of a Certificate of No Objection from the
Administrator General. Similarly, in The Administrator General v. Teddy Bukirwa
& Esther Bukirwa,756 the court held that failure to obtain the Certificate of No
Objection from the Administrator General’s office before applying for a grant was
fatal and such application was incompetent.
752. High Court Administration Cause No. 7 of 1999.

753. High Court Administration Cause No. 1 of 1991. Also see Christine Male and Another v. Mary
Namanda and Another [1982] HCB 140.
754. Section 2 Administrator General’s Act.
755. [1982] HCB 140.

645. However, the Administrator General should not withhold issuance of the
Certificate arbitrarily. In The Administrator General v. Joyce Akello and Anor,757 the
court held that the powers and duties of the Administrator General are not absolute
or exclusive over the next of kin in management of intestate estates. Furthermore,
in Muyingo and Anor v. Administrator General,758 the applicants sought a Certifi-
cate of No Objection from the Administrator General, but the Administrator Gen-
eral did not issue it. They brought an action for an order of Mandamus to compel
the Administrator General to give the Certificate of No Objection. Court held that
section 5 of the Administrator General’s Act requires the Administrator General to
issue Certificates of No Objection declining to administer the estate. From the pro-
visions, the Administrator General has a statutory duty to issue Certificates of No
Objection. Mandamus is used to compel the performance of statutory duty. It is used
to compel public officers to perform duties imposed to them by Act of Parliament.
The Administrator General is a public officer with the duty to issue Certificates of
No Objection. The court issued the order of Mandamus.
§7. POWERS AND DUTIES OF AN EXECUTOR OR ADMINISTRATOR
646. These powers and duties are statutory and provided for in Parts XXXIII and
XXXIV of the Succession Act. These are:
1. Legal Representatives of the Deceased
647. Once Probate or LOA have been granted, the holder becomes the legal rep-
resentative of the deceased and gives title to the holder against all the property of
the deceased. Sections 270 to 292 stipulate the powers and duties of an adminis-
trator. These include, among others, the power to distribute the estate of deceased to
the rightful beneficiaries, collect all the debts of the estate and pay out any debts by
the estate, and sue and be sued on behalf of the estate.
648. However, such powers and duties must be exercised for the benefit of the
beneficiaries. Where the legal representative acts contrary to the interests of the ben-
eficiaries, such beneficiaries can sue the administrator. In Mariya Nanyonga v.
Administrator General,759 the widow sued the Administrator General, the holder of
the LOA, for selling her late husband’s house without consulting her. The court held
that even though the Administrator General had the power to sale off the property
by virtue of section 17 of the Administrator General’s Act, this power was subject
to the wishes of the beneficiary/widow. She had to be consulted. In Joyce Nsubuga
and two Others v. Christine Nsubuga,760 the court cited with approval Jonah
Senteza Kanyerezi and Another v. Chief Registrar of Titles and 2 others761 that the
757. Supreme Court Civil Suit No. 15 of 1993.

758. Misc. Application No. 1 of 2016.
761. High Court Misc. Application No. 919 of 1997.

principle of the law is that an administrator must administer the estate of a deceased
for the best interest of the beneficiaries. That the duty to administer the estate
includes the duty to account for all the proceeds obtained and expended from the
deceased’s estate.
2. File an Inventory in Court
649. One of the most important duties of the administrator of an estate is to file
an inventory after six months of obtaining the LOA. The purpose of the inventory
is to render an account of how the administrator has dealt with the estate. Section
278 mandates an executor or administrator of a deceased’s estate to provide
accountability of the estate to the beneficiaries. The accountability must be done and
filed within one year after obtaining the grant. The court cannot enforce this duty
until such time when the time has lapsed.762 This duty to file an inventory and
account is mandatory and cannot be waived.763 Where the inventory filed is not suf-
ficient and does not provide for how the estate was dealt with, a party can apply to
the court to nullify the inventory. This was the position in Isumba v. Bulya764 where
the court nullified an inventory for failing to give a true record of the estate.
650. As will be discussed later, one of the grounds for the court to revoke the
LOA is a failure to file an inventory. This amounts to ‘just cause’ to revoke a grant.
3. Distribute the Estate of the Deceased to the Beneficiaries
651. Another duty of the administrator is to distribute the estate of the deceased
among the beneficiaries. Before section 27 of the Succession Act was declared
unconstitutional, distribution of a deceased’s estate was clear as the percentages
were provided. However, with the section no longer applicable, distribution is left
to the discretion of the administrator. However, in order to avoid conflicts, distri-
bution is usually done in consultation with the beneficiaries. Matters to take into
account include the length of stay in the marriage, the age of the children, the nature
of the contribution made to the accumulation of the property and any other.
4. Perform the Deceased’s Funeral
652. Section 277 of the Succession Act provides that it is the duty of the execu-
tor to perform the funeral of the deceased in a manner befitting the status of the
deceased if the deceased has left sufficient property to do so. It is important to note
that this duty is only applicable to executors and not administrators. The reason for
this is that upon death, the executor will be known and has his or her duties take
immediate effect. Unlike in intestate succession, the administrator is unknown until
such time when the beneficiaries meet and choose the administrator.
762. Joyce Nsubuga Supra note 760.

764. Misc. Application No. 170 of 2014.

5. Collect and Pay Off all the Debts of the Deceased Estate
653. The executor or administrator has the duty to collect all the debts due to
the deceased at the time of his or her death.765 They too have the duty to pay off all
the debts that the deceased owed. In paying off such debts or expenses, the Act pro-
vides the priority in payment. The funeral expenses, medical expenses and boarding
fees have priority over any other expenses.766 This is followed by payments for the
costs to obtain a grant of Probate or LOA, which may include any costs incurred as
a result of judicial proceedings in respect to the administration of the estate.767 Next
in line to be paid are the wages768 and all other debts follow. The other debts are to
be paid equally and rateably.769
654. The Succession Act allows for more than one person to be granted LOA.
Where such letters are granted, the powers of the administrators are exercised by
the decisions of all the administrators. In Dan Byamukama and Anor v. Peace
Rwomwiju,770 the first plaintiff and defendant were co-administrators. The former
was administering the estate solely because the latter resides in the US. The first
Plaintiff sold property and signed transfer forms. The defendant refused to sign. The
plaintiffs brought the suit to order the defendant to sign or else for the court to order
the Commissioner for Land Registration to transfer the land using the signature of
only one administrator. The court held that section 272 was binding to the
co-executrix.
655. Where one of the administrators is not cooperative, or there is a disagree-

ment, then the matter will be referred to the Registrar of the High Court, Family
Division. The administrators can apply to the court to have the grant of LOA
amended or altered by striking off the uncooperative administrator. The procedure
is not specifically provided for. However, the court is moved by ordinary letter
accompanied by an affidavit stating the grounds for the amendment or alteration or
by Notice of Motion accompanied by an affidavit. On receipt of the letter and affi-
davit or the notice of motion and affidavit, the Registrar will summon the uncoop-
erative administrator to show cause why his or her name should not be removed
from the grant. Once the Registrar is satisfied that the name should be removed, the
Registrar shall give a ruling and then forward the file to the Judge to take action.
656. The LOA is conclusive evidence of the powers and duties of the adminis-
trator over all the estate of the deceased in Uganda, moveable and immoveable. The
Letters, however, do not give powers to the administrator to deal with the estate
arbitrarily. Once the administrator acts negligently, such administrator shall be made
liable to make good the waste. Proof of such negligence must, however, be proved

766. Ibid., s. 280.
767. Ibid., s. 281.
768. Ibid., s. 282.
769. Ibid., s. 283.

as was held in Richard Babumba and 13 Others v. James Ssali Babumba, Admin-
istrator of the Estate of the late Dr Eria Muwanga Babumba.771
§8. REVOCATION OF PROBATE OR LOA
657. Section 234 of the Succession Act provides that LOA may be revoked or
annulled for ‘just cause’. ‘Just Cause’ was defined in section 234(2) to mean:
(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 reason-
able 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.
658. Just cause must be proved. Once proved, Court shall revoke the grant and
a fresh one to the new administrators issued. The previous administrators shall be
required to give full accountability on the position of the estate. Just cause will
depend on the facts of the case. The procedure for revocation of a grant is by way
of ordinary suit. This is because the matter is contentious. In Ezra Yiga v. Esinemu
Mutiibwa and Another,772 the court held that where a party seeks to challenge the
validity of a Will or revoke the grant of probate or LOA, that party raises conten-
tious issues which have to be resolved in an ordinary suit. This is because the par-
ties need time to prepare their cases and also adduce evidence. Also, see Rehema
Nalwanga v. Hadija Nassimbwa and Another773 and Francis Ddiba Nduga v. Rita
Nansikombi and Others.774
771. HCCS No. 78 of 2012.

772. High Court Misc. Application No. 700 of 1997.
773. [1998] 11 KALR 73. The court held that s. 233(1) of the Succession Act provides that a grant of
Probate or Letters of Administration may be annulled for just cause and just cause includes obtain-
ing a grant fraudulently by making a false statement concerning something material to the court. It
also provided that a Will is not invalid merely because it has named one person as beneficiary of
the estate as long as it is not alleged that any dependent was left out of the Will.
774. [1980] HCB 79. In this case, the court held that failure to file an inventory can lead to a grant being
revoked. However, the failure to file the inventory must be ‘wilful and without reasonable cause’.
The plaintiff must prove the wilful and without reasonable cause. The court interpreted the word
wilful to mean ‘deliberate’ or ‘intentional’. In this case, the plaintiff failed to prove that failure to
file the inventory was deliberate or intentional hence the grant was not revoked.

§9. ADOPTION
659. An adoption order has an effect on the estate of a deceased person. Section
52(1) of the CA provides that where an adopter dies intestate, his or her property
shall devolve in all respects as if the adopted child were the natural child of the
adopter. This is supplemented by section 1(b) of the Succession Act that defines a
child to include an adopted child. For a child to be considered adopted, the adoptive
parents must have fulfilled all the conditions and prerequisites for adoption as pro-
vided in Part VII, sections 44–55 of the CA, Chapter 59 of the Laws of Uganda.
§10. THE RIGHT OF THE STATE ON THE BONA VACANTIA
660. Where a person dies in Uganda and is domiciled in Uganda but has no rela-
tives, his or her estate will be taken over by the State. Bona vacantia is a legal con-
cept associated with the ownerless property.775 See generally the Administrator
General’s Act for guidance on this aspect.
775. https://en.m.wikipedia.org (Accessed 20 Feb. 2019).

661–664
Chapter 2. Testamentary Succession

661. Testate succession is a recognized form of succession in Uganda. It refers
to a way of succession where a deceased person passes on having left behind a state-
ment or document expressing his or her wishes and desires regarding his family and
property. Testate succession in Uganda is contained in the Administration of Estates
(Small Estates) (Special Provisions) Rules; The Succession Act and the Adminis-
trator General’s Act.
662. Testamentary freedom to make a Will is regulated by law, and it aims to

balance the interests of the testator, his or her family and the interests of the com-
munity. Making a Will is the surest way on how a deceased’s property will be dealt
with and how his/her family will benefit. In order for one to die testate, one must
have made a valid Will. In Administrator General v. Teddy Bukirwa and Esther
Bukirwa,776 the court held that the ‘Will has two basic meanings.’ The first meaning
is that the testator has made clear his or her wishes on how his or her property
should be dealt with at death, and the second meaning is in regard to the document
itself. This document, the Will, must be in writing, signed by the maker (the testa-
tor) and witnessed by two or more witnesses.
663. The signature must be made by the testator in the presence of two wit-
nesses or more who must be present together at the same time and must attest to the
Will in the presence of the testator. In Haji Sulaiti Habibu Jjumba and others v.
Hajati Safarani Sanyu,777 the court held that it is necessary to have an attestation
clause indicating that the requirements of section 50 of the Succession Act have
been complied with. That although failure to have the attestation clause will not
invalidate the Will, the requirement for the attesting witnesses to be present is man-
datory. The reason for the presence of the witnesses when the testator is signing the
Will is to enable the witnesses to see the testator affix his or her signature and be
able to testify they saw or had the opportunity of seeing his or her signature. Court
further held that where a will is prepared and executed in circumstances that are sus-
picious, such a Will should not be declared valid by the court unless the party rely-
ing on it proves that the testator knew and approved the contents of the document.
664. Another case was of The Administrator General v. Norah Nakiyaga and
Others,778 where the court held that a will proved to have been signed by the
deceased was held invalid because it was not attested to as required by section
50(i)(c) of the Succession Act. Also, in John Masanyalaze v. Rita Nanono and oth-
ers,779 the court held that the attesting witness must be present when the testator is
signing. Where the witness finds that the testator had already signed and only
endorses, this Will should be rejected. In James Ruteete and Anor v. Fiona Mbabazi


Part IV, Ch. 2, Testamentary Succession 665–667
and 2 others,780 the court held that sections 66 and 67 of the Evidence Act show
that a document which is required by law to be attested cannot be used in evidence
until at least one of the attesting witnesses has been called to prove its execution. In
Banks v. Good Fellow,781 the court held:
It is essential that a testator shall understand the nature of the act and its effects;
shall understand the extent of the property of which he is disposing; shall be
able to comprehend and appreciate the claims to which he ought to give effect;
and with a view to the latter object, that no disorder of the mind shall poison
his affections, prevent his sense of right, or prevent the exercise of his natural
faculties – that no insane delusion shall influence his Will in disposing of prop-
erty and bring about a disposal of it which, if the mind had been sound would
not have been made.
665. A Will takes effect only after the death of the testator. In that case, a Will
can be altered any time before the death of the maker. Such alternation must be
made in writing. It can either be done by the maker making a completely new Will
or by way of Codicil. Once the testator opts to make a new Will, then it is prudent
to have a paragraph in the Will which reads thus:
This is my last Will and testament and it revokes any other Wills made by me.
666. Where the testator opts for a Codicil, then he or she will only alter the pro-
visions required, and the rest will be applicable. The Codicil will be read together
with the Will.
667. The court in Richard Babumba and 13 others v. James Ssali Babumba,
where the respondent was the Administrator of the estate of the late Dr Eria
Muwanga Babumba,782 had this to say about a codicil:
A codicil is defined in section 2(c) of the Succession Act as an instrument

explaining, altering or adding to a will and which is considered as being part
of the will. A codicil is a supplement or addition to a will, not necessarily dis-
posing of the entire estate but modifying, explaining, or otherwise qualifying
the will in some way. Each codicil must conform to the same legal require-
ments as the original will, such as the signature of the testator and, typically,
two or three disinterested witnesses. A codicil effectuates a change in an exist-
ing will without requiring that the will be re executed. The maker of the codi-
cil identifies the will that is to be changed by the date of its execution. The
codicil should state that the will is affirmed except for the changes contained
therein. The same formalities necessary for the valid execution of a will must
be observed when a codicil is executed. Failure to do so renders the codicil
void.
780. [2001] UGHC 97.

781. [1870] 5 QB 549.

668–671 Part IV, Ch. 2, Testamentary Succession
668. Once a Will is made and duly witnessed by two or more witnesses, it must
be kept in a safe place. It can either be kept with a trusted friend; or the executor;
or in the Bank; or in the High Court.783 Since the Will is the mouth piece for the
deceased person, it is prudent to make more than one copy of it.
§1. THE CAPACITY TO MAKE A WILL
669. For a Will to be valid, the testator must have the capacity to make such
Will. Under section 39 of the Succession Act:
(1) Every person of sound mind and not a minor may by Will dispose or his or
her property.
(2) A married woman may by Will dispose of any property which she could alien-
ate by her own act during her life.
(3) A person who is deaf or dumb or blind is not thereby incapacitated from mak-
ing a Will if he or she is able to know what he or she does by it.784
(4) A person who is ordinarily insane may make a Will during an interval in which
he or she is of sound mind.
(5) No person can make a Will while he or she is in such a state of mind, whether
arising from drunkenness or from illness or from any other cause that the per-
son does not know what he or she is doing.
670. Considering the above section, two things can be implied. First, a minor
cannot make a Will. A minor is defined in section 2 of the Succession Act to be a
person who has not yet reached the age of 21 years.785 Second, such a person must
be in such a state of mind to understand the nature and effect of his or her actions.
Old age or physical disability cannot bar a person from making a Will. What is
important is the soundness of mind.
671. In Uganda, every person of maturity age is considered to be of sound mind

unless evidence is brought to the contrary. In Abbass Magunda and Another v.
Sulaiman Senoga and others,786 the court held that the law presumes every person
sane and capable of knowing what he is doing. The onus of proving that the testator
was of unsound mind or that he was incapable of knowing what he was doing at the
time of making the Will is on the person who alleges and wants the court to believe
him or her.787 This holding is in line with section 36(5) of the Succession Act which
provides that where for any cause any person is incapable of knowing what he is
783. Section 337 Succession Act.

784. Do note that the terminology used in the section on persons with disabilities is what is still on our
statute books. However, the proposed amendment to the succession laws do away with this lan-
guage and instead adopted the language used in the Convention of the Rights of Persons with Dis-
abilities.
785. This however is inconsistent with Art. 31 of the Constitution of Uganda 1995 which defines ‘minor-
ity’ to be a person below the age of 18 years.
786. [1995] IV KALR 172.
787. Also see, s. 103 of the Evidence Act.

doing, then that person’s testamentary power fails and a will by such a person will
no longer be under the guidance of reason.
672. Because a person is considered to be of sound mind, it is thus presumed

that all actions are done without any duress, force or coercion from any person.
Where there is evidence that there was any undue influence, the Will is suspect, and
the aggrieved party can apply to the court for its revocation. This was held in Ruth
Nsubuga & Others v. Peter Nsubuga788 where the court held that a Will or any part
of it, the making of which was caused by coercion or fraud that took away the free
will of the testator is void.
673. Although the testator has testamentary freedom when making a Will, sec-
tion 37 makes it mandatory for the testator to make provisions for his or her depen-
dant relatives. If the testator fails to do so, then the court has powers to order
payment to the dependant relatives out of the estate of the deceased.789 Such pay-
ments can be periodical payments or a share in the estate. In making this mainte-
nance order, regard shall be had on the nature of the property, the conduct of the
dependant relative who was not provided for in the Will and any other matters that
the court may deem necessary.
674. When making a Will, there are no specific words that should be used. The
important thing is to use words that are simple and easy to understand. The use of
vague words that may be interpreted to mean otherwise is discouraged as this may
lead to fights among the beneficiaries.
675. The Succession Act, under sections 61–75, provides for situations where
uncertainty in relation to the testator’s intention may rise. Furthermore, the Will is
said to be void if:
(a) It was made by a minor.

(b) It was made by a person of unsound mind.
(c) It was made under duress, coercion or fraud.
(d) It was not signed by the testator.
(e) It was signed by the testator but not witnessed or witnessed by only one person;
or
(f) It was vague, and the intention of the testator cannot be apprehended.
676. When making the Will, a testator can adopt the form of the Will as pro-
vided in the Fourth Schedule to the Succession Act. The salient features provided in
the form are: the name and address of the testator; the names of the executors;
appointment of an heir; the names of the guardians of the young children; the dis-
tribution of the testator’s property; the signature of the testator and that of his or her
witnesses.


677. What is lacking in this form is that it does not mention the name(s) of
spouses; names of the children and yet all children of the maker irrespective of age
are entitled to a share in the estate of the deceased; the burial ground; and the per-
formance of last funeral rites. These aspects are important in the Ugandan setting in
order to avoid any family in fights.
678. As earlier alluded to, the testator must make provision for his or her depen-
dant relatives. Such bequests must be specific, and sections 80–98 of the Succes-
sion Act provides for the interpretation of the various types of bequests.
Furthermore, in sections 99–105 of the Succession Act, it provides for void
bequests. These include:
(a) Bequests to non –existent person at the time of the testator’s death.
(b) Bequests to a person who does not answer the description as stated in the Will.
(c) Where the vesting of the property bequeathed may be delayed beyond the life
time of the persons living at the time of the testator’s demise.
(d) Bequests to a class of persons that may be in operative due to the provisions of
the Act.
(e) Bequests in the same Will but intended to take effect after or upon the failure of
such prior bequest.
(f) Bequests for direction to accumulate income arising from any property.
(g) Bequests to religious or charitable causes without making provisions to any
nearer relatives.
(h) Bequests upon an impossible condition; and
(i) Bequests upon a condition the fulfilment of which would be contrary to moral-
ity or law.
§2. DIFFERENT TYPES OF WILL
679. The Succession Act provides for only two types of Will, that is, the unprivi-
leged Will and privileged Wills. An unprivileged Will is a formal document written
down by a person of sound mind stating his or her wishes on how he or she wants
his or her estate to be dealt with after death. On the other hand, a privileged Will is
an informal Will made only by armed men and women in actual warfare or mari-
ners at sea. It need not be written down nor signed, but it will be valid.
680. The Succession Act does not define a Will, but it defines a Codicil to mean
‘an instrument explaining, altering or adding to a Will and which is considered as
being part of the Will’. Although there is no statutory definition of a Will, case law
has defined what makes a Will valid. More so, the law goes ahead and provides how
an unprivileged Will can be executed. The law provides that for a Will to be valid,
the following requirements are mandatory:

1. The Will Must Be in Writing
681. A testator shall sign or affix his or her mark to the Will, or the Will shall be
signed by some other person in the presence and direction of the testator. This
implies that the Will must be deduced in writing. The language of the Will does not
matter. A testator is free to use any language. However, if the Will is in any lan-
guage other than English (the official language in Uganda), then it will have to be
translated in English at the time for petitioning for a Grant of Probate or LOA with
the Will annexed. Rule 6 of the Administration of Estates (Small Estates) (Special
Provisions) (Probate and Administration) Rules provides thus:
682. Where the Will is written in any language other than English, there shall be
a translation of the Will annexed to the application by a translator of the Court, or
by any person competent to translate it; and the translation shall be verified by that
person in the following manner:
I … … … … … … … … ., declare that I read and perfectly understand the

language and character of the original, and that the above is true and accurate
translation of the original.
2. The Will Must Be Signed
683. The Act further provides that the signature or mark on the Will shall be that
it intends to give effect to the writings in the Will. In Rev. James Kyamukama and
Another v. Catherine Zaribwede and Another,790 the court held that:
Where several sheets constituting a connected disposal of property are found

together, the presumption is that they all formed the Will of the deceased.
Where a Will consists of several sheets, though desirable, there is no legal
requirement for the testator to sign all of them, so long as at the time of execu-
tion all the sheets are attached in the same way.
3. Will Must Be Witnessed
684. The signature or mark shall be witnessed by two or more witnesses. This is
a mandatory failure to which renders the Will invalid. The witnesses must have seen
the testator sign or fix the mark. However, it is not a requirement that both wit-
nesses have to be present at the same time. The law is not restrictive on who can be
a witness to the Will. Thus, any person above 18 years and of a sound mind can be
a witness to the Will.

685. However, under section 54 of the Succession Act, once a beneficiary in a

Will witnesses the signature of the testator, that bequest to the beneficiary becomes
void. This, however, shall not affect the validity of the other provisions of the Will.
Similarly, the provisions of the Will shall not be invalid just because an executor
has witnessed the signature of the testator. More so, a Will shall not be rendered
invalid just because the testator has included in the Will property not belonging to
him or her. According to section 36(1) of the Succession Act, a person can dispose
of his or her property. The property that can be disposed of must be owned by the
testator, or the testator should have an interest in it. Any attempt to dispose of prop-
erty not belonging to him or her will pass no bequest to the person bequeathed, as
no one can give away what does not belong to him or her. The result will be that the
bequest is of no effect, but the Will remain valid.791 Furthermore, in Rehema Nal-
wanga v. Hadija Nassimbwa and Another,792 the court held that a Will is not invalid
merely because it has named one person a beneficiary of the estate as long as it is
not alleged that any dependant was left out of the Will.
686. From the above discussion, it is clear that recorded voice intentions on
video or any other device are not an acceptable form of unprivileged Wills.
687. Privileged Wills are provided for in sections 52 and 53 of the Succession
Act. Section 52 provides for persons who can make privileged Wills, that is, mem-
bers of the armed forces employed in an expedition or engaged in actual warfare; or
a mariner at sea. These persons must be 18 years and above. Such Wills may either
be in writing or oral. If written, the Will can either be signed or not. If not written
by the testator in his or her own handwriting or if written by another person on the
instructions of the testator and signed by the testator, it need not be attested to; if
not written by the testator but by another person on the instructions of the testator
and yet not signed by the testator, it will be considered a Will if it is proved that it
was written on the directions of the testator; and if the testator instructs a person to
write the Will but before it is prepared the testator dies, it too can amount to a valid
privileged Will so long as it can be proved that the instructions and content were
intended to be the Will of the testator. The law further provides that an oral Will
shall expire after one month when the testator ceases to be entitled.
§3. OTHER TYPES OF WILLS
688. The succession laws in Uganda do not specifically provide for other types
of Wills. However, the applicability of these other types of Wills is due to the fact
that Uganda still applies common law principles where no statutory provisions are
available. The other types of will applicable in Uganda are:
791. Also see, James Katende and others v. Dan Byamukama, High Court Administration Cause No. 201
of 1992.
792. [1998] II KALR 73.

1. Joint Wills
689. This is a type of Will which is executed by more than one person giving
their intentions on how their property will be dealt with in respect of each person.
Such Wills are usually executed by married couples.793
2. Mutual Wills
690. Like joint wills, mutual Wills are executed by more than one person stating
how their property should be dealt with upon the death of the other. The difference,
however, is that such wills are contractual in nature and the parties must intend the
Will to be irrevocable.794
3. Conditional Wills
691. These are Wills made by a testator providing that the Will only take effect
after a condition has occurred. It is sometimes referred to as a Contingent Will.
Although the Succession Act does not specifically provide for this type of Wills, it
provides for contingent bequests in sections 111 and 112. Sections 113–124 of the
Act provides for conditional bequests. Under these sections, the Act provides for
such bequests that will be void.
4. Religious Wills
692. These are Wills made by the testator specifying how that person wants to
be treated religiously upon death. These are sometimes referred to a restful Wills.795
693. Uganda’s law on succession does not provide for joint Wills. The applica-
tion of joint Wills in Uganda can only be considered under the principle of common
law that is applicable to Uganda.
§4. REVOCATION AND ALTERATION OF A WILL
694. As noted earlier, a person can write a Will expressing his or her wishes on
how he or she wants his or her estate administered after death. In the same view, the
law allows a person to revoke or alter his or her Will.
695. The Act provides for scenarios which revoke an unprivileged Will. These
include:
(a) Marriage of the testator.
793. http://en.m.wikipedia.org (Accessed 20 Feb. 2019).

794. Ibid.
795. Ibid.

(b) Making of another Will or Codicil which must have been executed following
the procedure to have a valid Will.
(c) Any writing declaring an intention to revoke the Will or codicil. This writing
must follow the requirements for the execution of a valid Will.
(d) Burning, tearing or otherwise destroying the Will or Codicil by the testator or
by another person in the presence of the testator.
(e) Section 59 of the Act provides that a privileged Will shall be revoked, one, when
the testator of an army personal is no longer at warfare and if a mariner is no
longer at sea; two, when the testator expressly states his or her intention to
revoke the Will; and three, by burning, tearing or otherwise destroying the privi-
leged Will or council.
(f) By order of the court. Section 234 of the Succession Act provides for the
grounds to revoke a grant. Where the estate is a small estate regulated by the
Administration of Estates (Small Estates) (Special Provisions) Act, the revoca-
tion, except in special circumstances can only be revoked or amended on the
application of a concerned person or with the consent of the person having the
grant.796 In all the above scenarios, the testator must do an act that shows inten-
tion for the Will to be revoked.
696. The procedure for revocation of a grant by court differs depending on the
size of the estate. Where the estate is small, the provisions of the Administration of
Estates (Small) (Estates) (Special Provisions) (Probate and Administration) Rules
shall apply. In this case, the person who wants the grant revoked shall apply for a
citation to have the legal representative holding the grant to return it to court. The
form of citation is contained in Form 4A to the Rules. It is accompanied by a State-
ment on oath stating the reasons why the grant should be revoked. On receipt of the
application, the Registrar will issue the citation calling upon the legal representative
to return the grant. Once a citation is issued, the authority of the LOA is suspended
till the final disposal of the suit to revoke the grant. The aggrieved party will then
proceed with the main suit and adduce evidence to prove just cause.
697. A citation is not applicable to big estates regulated by the Succession Act.
This is illustrated in Joyce Nakire and Another v. Charles Mpanga Kaggwa,797
where the Deputy Chief Registrar of the High Court issued a citation against the
respondents to return the grant of LOA issued to them. This was for purposes of
revocation of the grant. The objection, in this case, was that the citation procedure
was unknown in law and therefore should be struck out. The court held that cita-
tions do not issue under the Succession Act and the procedure for its issuance must
be strictly followed.
698. Where the estate is a big estate, the provisions of the Succession Act are
applicable. No citation is issued, but the aggrieved party files a suit to have the grant
revoked. In Were Crispus and Anor v. Administrator General and Others,798 the
796. Section 27.

797. [1991] HCB 102.

plaintiffs brought an action by way of Originating Summons seeking for the orders,
among others, revocation of the grant to the Administrator General and redistribu-
tion of the estate. The defendants contended that the matter was contentious and the
procedure was wrong. The court relied on Vincent Kawunde t/a Oscar Associates v.
Kato799 where it was held:
Such procedure by way of Originating Summons was intended so far as we can

judge to enable simple matters to be settled by the court without the expense
of bringing an action in the usual way. It is not to enable the court to determine
matters which involve a serious question.
699. The matter was considered contentious hence the application was dis-
missed. Court further held that since the issue of revocation is contentious, the best
procedure is by way of the plaint. The parties alleging must prove just cause.800 In
Sanyu Lwanga Musoke v. Sam Galiwango,801 the appellant was the daughter of the
respondent. In a Will made in 1984, the respondent’s mother made depositions to
certain people in the presence of witnesses, and the depositions were reduced in
writing and signed. After her death, a document said to be a Will was read in a fam-
ily meeting which was attended by the respondent. After the meeting, the respon-
dent applied for a Grant in the Magistrates court stating that no Will was left behind.
The appellant applied to the High Court for the grant to be revoked on the ground
that it was obtained by concealing to the court the fact that there was a Will and
also that the court lacked jurisdiction. On appeal, the court revoked the grant in that
the Magistrates Court lacked jurisdiction to give the grant and also that the respon-
dent was fraudulent.
700. Section 60 of the Succession Act provides for the revival of unprivileged
Wills. The revival of the Will be considered to have been done if the testator
re-executes the unprivileged Will or codicil or by a codicil executed in accordance
with the required requirements and clearly showing the intention to revive the Will
or codicil.
§5. PROVISIONS IN A WILL
701. The law regulates how a testator is to dispose of his property. Whereas the
1995 Constitution of Uganda gives a person the right to own property, how it is dis-
posed of at death is regulated. Domicile is an important aspect when it comes to dis-
posing of property in succession. Sections 4 and 18 of the Succession Act provide
for succession in movable property. The domicile applicable is that at the time of
death. Sections 4 and 5 are reinforced by section 18 that emphasizes succession to
the moveable property to be regulated by Ugandan law if a man dies domiciled in

800. This was illustrated in Dharamsy Morarji and Sons Ltd v. Suman Naresh Kara, Supreme Court
Civil Appeal No. 41 of 1995.

Uganda. It is noteworthy here that this section refers to a ‘man’ only and not a
woman. The issue of domicile was earlier discussed in Chapter One of this mono-
gram.
§6. CONTENTS OF A WILL
702. As was discussed earlier, a Will can be written in any language. There are
no precise words to be used, but it is important to use simple language in order to
avoid any ambiguities. A Will should try and cover as much information and inten-
tion of the testator as possible. It is therefore not possible to cover all areas to be
contained in the Will. However, a typical Will in Uganda should have the following
contents, although the list below is not exhaustive:
(1) The name and address of the testator.

(2) The parents of the testator.
(3) The clan, if applicable.
(4) The marital status of the testator. If married, then to include the name of the
wife or wives.
(5) The children of the testator. If bore by different mothers, then to state so.
(6) The property owned by the testator. This may include land, cars, houses, bank
accounts, and personal effects.
(7) Distribution of the property. It must be noted that the male testator must pro-
vide for his children and wife. Otherwise, the provisions of the Will may be
contested.
(8) Desired place to be buried and whether would want the last funeral rites to be
performed.
(9) Guardians of the children.
(10) Executors of the Will.
(11) Signature of the testator and the date of signing.
(12) Two witnesses attesting to the Will.
§7. RESTRICTIONS ON THE POWER OF TESTATION
I. The Legation
703. Legation simply refers to the legitimacy to a deceased person’s estate.

Although the law does not specifically provide for giving property to dependants of
a deceased person, restrictions are made in relation to maintenance of the depen-
dents. In the same vein, a father is given powers to appoint a testamentary guardian
by Will for his children who are still of minority age.802 However, where a father
802. Section 43.

does not appoint such a guardian, the court has powers to appoint one.803 Such
guardian acts as a trustee to the children and has all the powers over the estate and
the person of the child.804
704. In disposing of his property, the testator must make maintenance provision
for his dependants. Where the testator does not make reasonable provision for the
maintenance of his or her dependants, then such dependants can apply to the court
to order payment for their maintenance out of the deceased’s estate.805 In making
such an order of maintenance, the court shall take into account the conduct of the
dependant in relation to the deceased and relation between the deceased and the
dependant; the past, present and future income of the dependant and also that of the
deceased estate and any other matters that will assist court in making the deci-
sion.806
705. Such application must be made within a period of six months from the date
on which representation in regard to the estate of the deceased is first taken out or
if beyond that time, then with leave of court.807 Section 38(2) gives guidance on the
various orders for maintenance that the court can award. These include:
Periodical payments where the estate produces an income. Such periodical

payments have a termination date. If the payment is to be made to a hus-
band or wife, it will terminate on remarriage; if the payment is in case of a
daughter who is unmarried or is mentally or physically challenged, such ter-
mination will occur if she marries or where her disability ceases, whichever
comes first; if it is in relation to an infant son or son who is mentally or
physically challenged, then termination will occur if the infant son attains
the age of 21 years or at cessation of the disability, whichever comes first;
and if the payment is in favour of a dependant relative, then on the relative
attaining the age of 21 years. In all the above cases, the order will cease on
the death of the person to whom it was made out to.
706. A share in the deceased’s estate in case the estate does not produce any
income. This share will be given taking into account section 27 of the Succession
Act, which deals with the distribution of an intestate’s estate.808 The court also has
powers under section 42 to award interim orders during an application for mainte-
nance. The court will make such interim orders if in its opinion:
(a) The applicant is in urgent need of financial assistance.

(b) The property forming part of the estate is available to cater to the needs of the
applicant.
803. Section 44.

804. Section 46.
805. Section 38(1).
806. Section 38(5).
807. Section 38(2).
808. This section was declared unconstitutional and hence no longer applicable.

II. Interpretation of Will
707. There are no specific words that should be used in a Will. However, as
noted earlier, as much as a possible simple language should be used to indicate the
intentions of the testator and to avoid any ambiguities. Part XI of the Succession
Act provides for Construction of Wills. The Rules for interpreting a Will are thus:
(a) Where there are one or more objects or subjects mentioned in the Will which
creates ambiguity, the court shall take into account the material facts relating to
the subjects claiming an interest in the estate, and the property being claimed;
and also the circumstances of the testator and his or her family.809
(b) Where there is a misdescription of an object, such mistake shall be corrected by
the description of the object or corrected by name.810
(c) Where any words that are material to connote the full meaning of the expres-
sion are missing, the full meaning may be obtained from the context of the
Will.811
(d) Where a testator sufficiently describes a bequest, but some parts of the descrip-
tion are not applicable to the bequest, such parts not applicable shall be rejected
and the bequest prescribed shall take effect.812
(e) Where the Will provisions mention several circumstances descriptive of a par-
ticular property and circumstances exist defining a particular property, the
bequest shall be limited to that particular property. The bequest shall not be
rejected just because more descriptive circumstances have been put in the
Will.813
(f) Where the will provision is not ambiguous, but the provision makes application
to only one such property, extrinsic evidence may be adduced to show the tes-
tator’s intention as to which of the applications was intended.814
(g) The provisions of a Will shall be read together and construed with reference to
each other. Thus when considering the provisions of the Codicil, they will be
read together with the Will.815
(h) Where a provision of the Will has two interpretations, one of which has an effect
and another none, the one which has an effect will be preferred.816
(i) No provision in a Will shall be rejected if possible construction and meaning
can be made out.817
(j) If in the Will, a word(s) is used in different parts of the Will provision, that
word(s) shall be given the same interpretation unless where its use gives a dif-
ferent contrary intention.818
809. Section 62.

810. Section 63.
811. Section 64.
812. Section 65.
813. Section 66.
814. Section 67.
815. Section 69.
816. Section 71.
817. Section 72.
818. Section 73.

(k) The testator’s intentions must be given effect to its full extent and should not be
set aside arbitrarily.819
(l) Where a Will or bequest has no definite intention, then its void for uncer-
tainty.820
(m) Where a bequest in a Will has no word limitations, then the property bequeathed
to any person shall be for the exclusive enjoyment of that person unless the con-
trary is shown.821
(n) Where a bequest is made in favour of a person but with an alternative to another
person, then the bequest shall be for the benefit of the first named person, if
alive. If dead, then the bequest shall be for the benefit of the alternative other
persons.822
(o) Where a bequest is made to a person, but other words are added to describe a
class of persons, such bequest goes to the person earlier described unless the
contrary is shown.823
(p) Where in a Will reference is made to a child, it applies only to lineal descen-
dants in the first degree.824 However, this is further qualified in section 87 that
any reference to a ‘child’, ‘son’ or ‘daughter’ includes an illegitimate child and
an adopted child. Although ‘legitimate’ is not expressly provided for in this sec-
tion, this is cured by the interpretation in section 2(n) that also includes legiti-
mate children.
III. Construction of Wills
708. Section 88 provides for rules that will be used in the construction of a Will
where two bequests are made to the same person. These are:
(i) If a specific property is given to a person in the Will twice or in a Will and
also a codicil, that person is entitled to that specific property only.
(ii) If the same property is bequeathed to the same person twice in the same Will
or twice in the same codicil, then that person will be entitled to only one such
property.
(iii) If different properties of unequal amount are given to the same person in the
same will or same codicil, that person is entitled to both bequests.
(iv) If different properties (whether equal or unequal) are given to the same per-
son, one by the Will and another by the codicil or different codicils, then that
person is entitled to both properties.
819. Section 74.

820. Section 75.
821. Section 82.
822. Section 83.
823. Section 84.
824. Section 86(1)(a).

(v) Where in the Will the testator bequests property to two persons, and one dies
during the lifetime of the testator, the surviving person shall be entitled to the
whole property bequeathed.825
(vi) Where a bequest is made in favour of a child or other lineal descendant, and
that child or lineal descendant dies during the lifetime of the testator, such
bequest shall lapse. However, such bequest shall not lapse if the child or lin-
eal descendant left children. The bequest shall survive and shall take effect as
if the deceased child or lineal descendant had died after the death of the tes-
tator.826
IV. Void Bequests
709. In addition to the provisions of construction of Wills made by the Act, it

also provides for a certain bequest to be considered void. Bequests are void where:
(i) A bequest is made, and there is no person in existence at the testator’s death
who answers such a description.827
(ii) A bequest is made to a person not in existence at the time of the testator’s
death subject to a prior bequest contained in the later bequest.828
(iii) The vesting of the thing bequeathed may be delayed beyond the life time of
one or more persons living at the testator’s demise.829
(iv) A bequest made to a class of persons, with regard to some of whom it is inop-
erative by reason of the provisions of the above two provisions.830
(v) Any bequest contained in the same will and intended to take effect after or
upon the failure of such prior bequests.831
(vi) A direction to accumulate income arising from any property.832
(vii) No person having a nephew, niece or nearer relative shall have the power to
bequeath his property to religious or charitable uses except by a Will executed
not less than twelve months before his death and deposited within six months
from its execution in some place provided by law for the safe custody of the
Wills for living persons.833
(viii) A bequest upon an impossible condition, and
(ix) A bequest upon a condition the fulfilment of which would be contrary to law
or morality.
825. Section 93.

826. Section 96.
827. Section 99.
828. Section 100.
829. Section 101.
830. Section 102.
831. Section 103.
832. Section 104.
833. Section 105.

710–714
Chapter 3. Acts Inter Vivos Related to the Estate

710. The Succession Act provides for gifts given by a person in contemplation
of his or her death. The Act provides that a man who believes that he is about to die
may give away his movable property in contemplation of his death. The moveable
property referred to here is a property that the man has the power to dispose of by
Will.834 This gift in contemplation of death can be done when the following circum-
stances exist:
(1) The gift must be moveable property.

(2) It is made by a man in contemplation of death.
(3) The man must be ill and expects to die shortly of that illness.
711. The problem with section 179 of the Succession Act is that makes refer-
ence only to a ‘man’ and a ‘woman’ is presumed not to be able to give away such
gifts.
712. The section further provides when the gift will revert to the maker. The gift
in contemplation of death will not take effect if the donor recovers from the illness
or if the donor survives the person to whom the gift was earlier made. It must be
shown that the donor intended to give away the property as a gift. The property
capable of being given away must be movable property. In addition to section 179,
sections 161–163 also provides for gifts of annuity835 and residuary gift.836 The sec-
tion provides that where there is both a gift of an annuity and a residuary gift, the
former will first be satisfied from the testator’s estate before the latter can be paid.
713. Acts Inter Vivos take various forms as will be discussed below. Although
some of these acts are not specifically provided for in the law, their applicability is
through the common law principles applicable to Uganda.
§1. ESTATE PLANNING
714. This refers to the preparation of tasks that help to manage a person’s assets
in the event of his or her death or incapacitation. The estate planning includes the
bequests of property to the beneficiaries and the settlement of the estate taxes.837 An
estate plan should, among others, include a Will, a power of attorney, beneficiary
designations, letter of intent, health care, and guardianship designations.838 Apart
from making Wills, the other aspects are not common in Uganda. It is, therefore,
834. Section 179 Succession Act.

835. Gift annuity is a contract between a donor and a charity whereby the donor transfers cash or prop-
erty to the charity in exchange for a partial tax deduction. See, http://en.m.wikipedia.org (Accessed
20 Feb. 2019).
836. This refers to a gift in a Will whereby the testator leaves all the property not distributed in the Will
to a person. See http://en.m.wikipedia.org (Accessed 20 Feb. 2019).
837. http://www.investopedia.com/terms/e/estateplanning.asp (Accessed 27 Mar. 2019).
838. Ibid.

715–718 Part IV, Ch. 3, Acts Inter Vivos Related to the Estate
safe to state that although the law provides for Wills, there is no specific legislation
providing for estate planning and in practice, it is negligible.
§2. DONATIONS
715. A donation is a gift for charity, or to benefit a cause.839 Donations take a

number of forms, and it is dependent on the giver. Donations are not specifically
provided for in the law of succession in Uganda. However, a testator making a Will
can make donations in his or her Will. This should, however, be done after making
provision for his dependent relatives, that is, the wife and children. If the testator
does not provide for them, then the beneficiaries can apply for maintenance under
sections 37 and 38 of the Succession Act.
§3. TRUSTS
716. Gifts in contemplation of death can also be made in the form of settlements
or trusts under the Trustees Act. However, the details on how these settlements and
trusts are created and managed are beyond the mandate of this chapter and thus will
not be discussed here.
717. A trust is defined as a three-party fiduciary relationship whereby the trustor

or settler transfers property to another party known as the trustee for the benefit of
another party known as the beneficiary.840 As earlier noted, Uganda has laws in rela-
tion to trusts. However, these are largely inoperative with no existing machinery in
place.
§4. INSURANCE CONTRACTS
718. Although insurance contracts are recognized in Uganda, they are largely
inoperative in Uganda.
839. http://en.wikipedia.org/wiki/Donation.
840. http://en.wikipedia.org/wiki/Trust_law.

719–722
Chapter 4. Acquisition and Administration of the Estate

§1. THE SYSTEM OF ACQUISITION OF THE ESTATE
719. When a person dies, he or she is incapable of dealing with his or her estate.
Hence, the estate of the deceased person must be administered by his or her legal
representative. One becomes a legal representative after getting a Court order
appointing such person. Where a person dies testate and has named an executor, that
person is an executor and is granted a Grant of Probate. Probate will only be granted
to an appointed executor.841 The appointment of an executor by a testator can either
be express when stated in a valid Will or by necessary implication.842 However, Pro-
bate cannot be granted to a minor or a person of unsound mind.843 According to the
Administrator of Estates (Small Estates) (Special Provision) (Probate and Admin-
istration) Rules, Rule 25:
where one of two or more executor is an infant, probate may be granted to the
other executor or executors not under a disability, with power reserved of mak-
ing the like grant to the infant on his or her attaining the age of 21 years.
720. This implies, therefore, that Probate cannot be granted to a person below
the age of 21 years. Once the person attains that age, then the grant will be amended
to include the infant, now of majority age. The Rule further provides that no person
can renounce executorship on behalf of the infant. Rule 24 provides that where the
person to whom the grant should be made is an infant who has not attained the age
of 21 years, such grant shall be given to the guardian of the infant or where there
is no guardian but the infant has attained the age of 16 years, then to that person
appointed by the infant. The person is appointed by the infant must be the next of
kin for the infant and shall exercise such powers as if it is the infant exercising it.
721. If an executor named in a Will obtains Probate but dies before completing
administering the estate, a new representative may be appointed by the court for the
purpose of administering the remaining part of the estate.844 When such person
applies to administer the remaining part of the estate, that person need not prove the
Will since it will already have been proved.845 This section must be read together
with section 230 which provides that in granting LOA of an estate which is not fully
administered, the court shall be guided by the same provisions and procedures used
to apply for original grants. The court shall grant the LOA to only those persons
whom the original grants might have been made.
722. Sections 230, 203 and 194(1) of the Succession Act also provide for the
principle of bonis non administrates. This principle provides that a grant cannot be

842. Ibid., s. 183.
843. Ibid., s. 184.
844. Section 229.
845. [1992] II KALR 75.

723–725 Part IV, Ch. 4, Acquisition and Administration of the Estate
given if there is a surviving chain of executors that has not been broken. This prin-
ciple was discussed in John Kyeswa v. Administrator General.846
723. Where a person dies testate but does not name an executor in the Will, the
person is granted LOA with the Will annexed. The person so appointed is the legal
representative of the estate and must administer the estate in accordance with the
Will. Where a person dies intestate, then the person who is appointed the legal rep-
resentative is given a Grant of LOA and will administer the estate in accordance
with the law. According to section 194(1), when a person is appointed an executor
and has not renounced the executorship, LOA shall not be granted to any other per-
son who applies until after a citation had been issued by the court calling upon the
executor to accept or renounce his or her executorship.847
724. Section 242 states that a grant for Probate or LOA has an effect on all the
property of the deceased in that the appointed executor or administrator holds the
property in trust for the beneficiaries. A testator can appoint more than one execu-
tor. If an executor appointed in the Will is not ready and willing to administer the
estate, he or she has the option to renounce this role.848 The procedure for renun-
ciation is that the executor shall write to the court of competent jurisdiction
renouncing executorship. Since the procedure is not clearly provided for, the renun-
ciation is by way of a letter. Under the same section, renunciation can also be made
orally in the presence of a magistrate, commissioner for oaths or justice of the
peace.
725. Probate can only be granted to a person who has been appointed as an
executor in a Will.849 Where a testator appoints more than one executor, then a
Grant of Probate can be granted to all of them once or at different times.850 Such a
scenario can happen in situations where one of the appointed executors has not yet
attained the age of 21 years or is outside jurisdiction. Where a grant of Probate is
given to several executors, and one of them dies, the surviving or living executors
will continue with the administration of the estate.851 The living or surviving execu-
tors are required to notify the court that issued the Grant of the death of the execu-
tor. In this case, then, the Grant shall be amended to remove the name of the
deceased executor. However, if one of the named executors dies before Probate is
granted, then the surviving executor(s) can proceed and apply for a grant of Pro-
bate. This was discussed in Micheal Oscar Kajemba v. James Mulwana and 3 oth-
ers.852
846. High Court Misc. Application No. 232 of 2009 arising from Administration Cause No. 039 of
2008.
849. Section 182.
850. Section 185.
851. Section 273.

Part IV, Ch. 4, Acquisition and Administration of the Estate 726–729
726. Section 194 provides that once an executor has been named in a Will, and
until such executor renounces, no Grant of LOA with the Will annexed can be given.
Before a grant of Probate is given out, the Will must be proved. In Administrator
General v. Bukirwa and Another,853 the court noted that in all administration causes
where a Will has been executed and has to be proved, the best evidence acceptable
by the court to prove the Will is that of the witness who attested to the Will. The
only exception to the court accepting secondary evidence is where the witness can-
not be found or is outside jurisdiction, and it would be very expensive to procure
his or her presence. The same principle was upheld in Beatrice Asire Malinga v.
Jonathan Obukunyang Malinga.854
727. Where a person dies intestate or dies testate but without naming an execu-
tor, an administrator can be appointed and given a Grant of LOA or LOA with the
Will annexed respectively. Persons who can be given LOA include:
(a) The widow or widower.

(b) Children or lineal descendants.
(c) Creditors – where there is no person related to the deceased either by marriage
or consanguinity.
(d) Any person so appointed by Court. The court can only appoint such person if,
in its opinion, there is no executor willing to act; the executor is resident out-
side Uganda; or that it would be convenient to appoint such a person. When
making such appointment, the court takes into account consanguinity, amount
of interest to the estate, how safe the estate is and also the probability that the
person will administer the estate.855
728. The Administrator General is not precluded from being given a grant. How-
ever, the court will take into account the circumstances of the estate. In Adminis-
trator General v. Joyce Akello Otti,856 the court held that a widow could apply for
and obtain Probate without reference to the Administrator General. The court fur-
ther held that the Administrator General had no absolute rights under the Admin-
istrator General’s Act to administer or to obtain LOA to every deceased’s estate.
That the Administrator General’s powers to administer the estate could only be
derived from the circumstances listed in section 5(3) of the Administrator General’s
Act. Even where such circumstances were present, the court could refuse to make
the grant to him if there were more deserving relatives of the deceased.
729. Before the court can appoint the administrators, the persons are required to
sign an Administration Bond857 with one or more surety or sureties. The purpose of
the bond is for the person to bind himself or herself to the court that they will faith-
fully administer the estate for the benefit of the beneficiaries. Where the person fails

855. Section 224.
857. Section 260.

to administer the estate properly, then any interested person can sue in the very court
that gave the Grant for revocation of the grant.858 As earlier stated, once a person is
appointed an administrator/executor of the estate, that person becomes the legal rep-
resentative of the estate. The Succession Act provides for the powers and duties of
an executor or administrator.859 These include:
(a) Power to dispose of the property of the deceased. Such disposal must be for the
benefit of the beneficiaries.860
(b) The executor to perform the funeral of the deceased. This will be done if the
property of the deceased can be able to cater for the funeral expenses.861 It is
noteworthy that this duty is only for the executor. This is because, at the time of
the demise of the deceased, the executor is identifiable. On the other hand, if
the person died intestate, the administrator has no such duty because, at the
demise of the deceased, such administrator is not yet known. The administrator
can only be known after the Grant is made.
(c) Distribution of the deceased’s estate. This must be done in accordance with the
Will or by law in case of intestate succession.
(d) File an inventory after six months from the date of Grant. The inventory gives
an account of how the administrator or executor has dealt with the estate during
the six months.862 Failure to file such inventory amounts to an offence under the
PCA.863 Apart from it being an offence, failure to file the inventory is ground to
revoke the Grant. The inventory must include the property that came into the
hands of the administrator or executor; all the credits and debts and how the
property has been dealt with.
(e) File accountability on how the estate has been administered. This must be done
within one year from the Grant. Usually, it is filed to show the final accounts of
the estate.
(f) Collect all the property and debts due to the estate.864
(g) Pay off all expenses due to the estate. These expenses include funeral expenses,
medical expenses board and lodging of the deceased, expenses to obtain the
Grant and any other expenses. Section 283 of the Succession Act provides for
the priority on how debts should be paid.
§2. THE ADMINISTRATION OF AN ESTATE
730. Once a Grant of Probate or LOA is given, then they have full effect on the
estate of the deceased. If a person has not yet acquired the grant, no property or any
858. Section 261 of the Succession Act and Rules 28 and 29 of the Administration of Estates (Small
Estates) (Special Provisions) (Probate and Administration) Rules.
859. See, Parts XXXIII and XXXIV.
860. Section 270.
861. Section 277.
862. Section 278.
863. Section 278(4).
864. Section 279.

part thereof shall vest in that person.865 This section negates locus standi to claim
any interest in the property of an intestate without getting the grant. It protects an
intestate’s estate from claims from persons that have not been established as ben-
eficiaries. This is illustrated in Tarema Justus v. Kiteteyi Robina and 2 others,866
where the court held that section 191 negates locus standi until LOA has been
granted to a person in respect to the deceased’s estate.
731. The court further observed that ‘The law thus seems to protect an intes-
tate’s estate from claims from persons that have not been established as beneficia-
ries thereof.’ However, in Israel Kabwa v. Martin Banoba Musiga,867 the court
recognized the legitimate beneficiaries’ right to protect their interest in an intes-
tate’s estate. In that case, the respondent was the son and customary heir to an intes-
tate and had developments on the suit land. Although he had not yet obtained LOA,
he was able to successfully institute legal proceedings for the cancellation of the
appellant’s certificate of title. This was only possible because the respondent was a
legally recognized beneficiary to the estate of the intestate by virtue of section 27 of
the Succession Act.
732. Further, in Vincent Tamukedde v. Serunjogi,868 the court held that a benefi-
ciary is not precluded or barred from filing a case for the purpose of protecting his
or her interest in the estate or for the purpose of preserving the estate or keeping
together the property. A person is barred if they want to deal with the estate by way
of selling or giving it away. The cases of Aisha Nantume Tifu v. Ddamulira Kitata
James869 and Gordon Wavamunno v. Sekyanzi Sempijja870 are illustrative in this
regard.
§3. GRANTS FOR LIMITED PERIODS
733. The law provides for such situations where a Grant may be given for a lim-
ited duration or for special purposes. A grant is given for a limited duration where:
(a) The original Will is misplaced and cannot be found. The court can give the
Grant against a draft Will or a copy of the Will that had been preserved. The
865. Section 191.

869. High Court Civil Suit No. 77 of 2007. In this case, court held that a person who has not yet obtained
a grant of Letters of Administration cannot deal in the estate of a deceased person.
870. High Court Civil Appeal No. 27 of 2010. In this case, court held that inheritance and obtaining a
grant of Letters of Administration were two different things. That the latter is just a legal process
to legally become the legal representative of the deceased whereas inheritance is about acquiring
the property of the deceased on death. Furthermore, that one can obtain a grant without inheriting
from an estate of a deceased person.

Grant will only be valid until such time when the lost original Will has been
found and produced before the court.871
(b) The original Will, the draft Will or any copy have been lost or destroyed; the
court shall give a Grant based on the contents of the Will. The contents must
first be proved by the evidence adduced before the court.872
(c) The original Will is kept by a person residing outside Uganda, but the person
has sent a copy of it to the executor, then the court will give Probate limited till
the time when the original Will is produced before the court.873
(d) There is reason to believe that there is an original Will, but such Will cannot be
found, then LOA will be granted and limited until such time when the Will is
produced.
§4. GIFTS FOR SPECIAL PURPOSES
734. A grant is given for special purposes where:
(a) The Will appointed an executor for a limited purpose.874

(b) The appointed executor gives authority to his or her attorney, then the LOA with
the Will annexed given to such attorney shall be for only that special purpose
that the executor gave to the attorney.875
(c) A person is appointed by the court to deal with a particular property to which
the deceased had or did not have a beneficial interest.876
(d) The Grant is to enable a person to represent the deceased in a particular suit.
The special purpose grant will only be applicable to represent the deceased till
a final decree is given and execution of the decree completed.877
(e) The Grant is given to enable a person to represent the executor or administrator
in a suit. This Grant is only given after the expiry of twelve months, and the
executor or administrator is resident outside Uganda. It is for the special pur-
pose to represent the executor or administrator in the suit until execution is
finalized.878
(f) Where the court, in its discretion, appoints a person to administer the estate to
avoid it going to waste.879
871. Section 208.

872. Section 209.
873. Section 210.
874. Section 219.
875. Section 220.
876. Section 221.
877. Section 222.
878. Section 223.
879. Section 224.

§5. THE ROLE OF THE ADMINISTRATOR GENERAL
735. As earlier discussed, the office of the Administrator General plays a very
important role in intestate succession. Section 5 of the Administrator General’s Act
allows the court to grant LOA to the Administrator General where:
(a) The office of the Administrator general has been appointed sole executor in a
Will.
(b) No executor has been appointed in a Will.
(c) The named executor has renounced probate.
(d) The named executor has predeceased the testator.
(e) A person has died intestate.
(f) No grant has been made within two months from the death of the testator.
736. The Administrator General’s Act provides for powers and duties of the
office of the Administrator General. These include:
(a) Receive reports of death.

(b) Arrange family meetings in order to determine the person nominated to obtain
the Grant. Thereafter to issue a Certificate of No Objection authorizing the
nominated person to proceed and apply for the Grant.
(c) Power to order the arrest of a person who is intermeddling in the estate of the
deceased person.880
(d) Order any person, firm or company to furnish to the office any detail salary,
wages or remuneration due to the deceased person.881
(e) Power to dispose of the property of the deceased.882
(f) Power and duty to file an inventory and account of a deceased’s estate.883
(g) Power to distribute the estate of the deceased.
(h) Duty to collect all debts due to the estate and pay off all creditors of the estate.
(i) Not required to sign an administration bond or give security or produce sureties
before a Grant is given.884
(j) Power to apply to the court to give the office any directions on how to deal with
an estate.885
(k) Settle disputes or any claims in respect of an estate.886
(l) Administer an oath on any person where the office needs an answer to any ques-
tion of fact in relation to the estate.887
(m) Power to file an interim account in relation to an estate which the office is
administering.888
880. Section 11 of the Administrator General’s Act.

881. Section 13.
882. Section 16.
883. Section 17.
884. Section 29.
885. Section 30(1).
886. Section 30(3).
887. Section 31.
888. Section 34.

(n) Deal with an estate on behalf of the Government of Uganda where the deceased
had no surviving beneficiaries.
(o) Power to deal with enemy’s property or property found in enemy’s territory.889
737. It is important to note that under section 36 of the Administrator General’s

Act, the provisions of the Succession Act do not supersede the rights, powers, duties
and privileges of the Administrator General. Also, the Administrator General’s Act
does not affect the intestacy distribution provisions made by the Uganda Peoples’
Defence Forces Act.890
889. Section 40.

890. Section 39.

Selected Bibliography
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George W. Kanyeihamba, Constitutional and Political History of Uganda: From
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Lawrence Gower, Modern Company Law, 2nd Edition.
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Dominick Losak, Family Law Reform in England, 8(4) William and Mary Law
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Irene Mulyagonja -Kakooza, Family Law Reform in Uganda: A Tale of Bitterness
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Muhamud Sewaya, State of Muslim Family Justice: A Critical Examination of the
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Okumu J. Wengi, Women and the Law of Inheritance in Uganda, in P. Tuhaise et al.
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Selected Bibliography
Domestic Relations Study Report Ministry of Gender and Community Develop-

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Collins English Dictionary: https://www.collinsdictionary.com/dictionary/english/
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Companies Act of Uganda, Act No. 1 of 2012.
Contracts Act 2010.
Customary Marriages (Registration) Act, Cap 248.
Divorce Act, Cap 249.
Domestic Violence Act No. 10 of 2009.
Family (Mediation) Rules.
Hindu Marriage and Divorce Act, Cap 214.
Hindu Marriage and Divorce Act, Cap 250.
Judicature Mediation Rules.
Land Act (as amended), 1998.
Law Development Centre, Cap 132 Law of Uganda 2000.
Marriage and Divorce of Mohammedans Act, Cap 252.
Married Women’s Property Act in England in 1882.
Matrimonial Causes Act of 1857 of England.
Marriage of Africans Act, Cap 212.
Marriage Act, Cap 211.
Marriage and Divorce of Mohammedans, Cap 213.
National Forestry and Tree planting Act, 2003.
National Medical Stores Statute (Commencement) & National Medical Stores Act,
Cap 207.
National Planning Authority Act, 2002.
National Water and Sewage Corporate Act, Cap 317 Laws of Uganda.
NGOs Registration Regulations, 2009.
Non-Governmental Organisations Act, 2016.
Persons with Disabilities Act 2006.
Prevention and Prohibition of Torture Act No. 3 of 2012.
Probates (Resealing) Act, Chapter 160 and the Rules thereto.
Public Trustees Act, Chapter 161.

Table of Statutes
Registration of Persons Act 2015.

Sole Proprietorships Act, Cap 109.
Succession Act (Amendment) Decree, Decree No. 22 of 1972.
Succession Decree 1972.
Succession Ordinance 1906.
The Estates of Missing Persons (Management) Act, Chapter 159.
The Administration of Estate (Small Estates) (Special Provisions) Act, Chapter 156.
The Administration of Estates (Small Estates) (Special Provisions)(Probate and
Administration) Rules and the amendments thereto.
The Administration of Estates by Consular officers Act, Cap 154.
The Administration of Estates of Persons of Unsound Mind Act, Cap 155.
The Administration of Estates of Persons of Unsound Mind, Chapter 155.
The Administration of Estates(Small Estates) (Special Provisions) Amendment of
Jurisdiction of Magistrates Courts –Order SI 20 OF 2009.
The Administrator General’s Act, Chapter 157.
The Church of England Trustees Act, Cap 158.
The Domestic Violence Act of 2010.
The Financial Transactions Act, Act No. 2 of 2004.
The Local Governments Act, Cap 243.
The Public Trustee Act, Cap 161.
The Succession Act of 1906, Cap 139.
Trust Corporations (Probate and Administration) Act, Chapter 163.
Trustees Incorporation Act, Cap 165, laws of Uganda 2000.
Trustees Incorporation Act, Chapter 165.
Uganda Citizenship and Immigration Control (Amendments) Act 2009.
Uganda Trypanosomiasis Control Council Act, Cap 211.
Bills
Succession Amendment Bill of 2011.
Sexual Offences Bill (SOB), 2015.
Marriage Bill, 2017.
Administration of Muslim Personal Law Bill, 2008.
Persons with Disabilities Bill 2018.
International Instruments
Universal Declaration of Human Rights, Universal Declaration of Human Rights
(General Assembly Resolution 217A (III)), Article 10; International Covenant on
Civil and Political Rights (United Nations, Treaty Series, Vol. 999, No. 14668),
Article 14, ratified by Uganda on 21 June 1995.
The Convention on the Elimination of all Forms of Discrimination against Women
(CEDAW). United Nations, Treaty series, Vol. 1249, p. 13 entered into force 3
September 1981 ratified by Uganda in 1985.
African Charter on Human and Peoples’ Rights (ACHPR), CAB/LEG/67/3 rev. 5,
21 I.L.M. 58 (1982) entered into force on 21 October 1986. Signed and ratified
by Uganda on the 18 August 1986 and 10 May 1986 respectively.
International Convention on Civil Political Rights.
International Covenant on Economic, Social, and Cultural Rights.

Table of Statutes
Protocol to the African Charter on Human and People’s Rights on the Rights of
Women in Africa.
African Charter on the Rights and Welfare of the African Child (ACRWC).

Table of Statutes

Table of Cases
Juliet Kalema v. William Kalema and Rhoda Kalema [2004] UGCA 15.
Abbass Magunda and Another v. Sulaiman Senoga and others [1995] IV KALR
172.
Abdallah Mohamed v. Jasmena Zaludova [1983] TLR 314.
Abdul Basit Sengooba and 4 Ors v. Stanbic Bank (U) Ltd (HCT – 00 – CC – CS –
0184 – 2001) [2006] UGCOMMC 31 (5 July 2006); available online at https://
ulii.org/ug/judgment/commercial-court/2006/31.
Administrator General v. Joyce Akello Otti, Supreme Court Civil Appeal No. 15 of
1993.
Administrator General v. Teddy Bukirwa and Esther Bukirwa, High Court Civil Suit
No. 208 of 1992.
Agnes Bainomugisha v. DFCU Ltd., HCT-00-CC-MA-0435-2007.
Aiiya v. Aiiya, Divorce Cause No. 08/1973.
Alai v. Uganda, 1967 EA 596.
Alice Okiror & Anor v. Global Capital Savings 2004 & Anor, High Court Civil Suit
No. 149 of 2010.
Anne Asiimwe Ndyomugyenyi v. Immaculate Asiimwe, Civil Suit No. 104 of 2013.
Anne Musisi v. Herbert Musisi & Anor, Divorce Cause No. 14 of 2007.
Aseru v. Anjoyo, Civil Misc. Application No. 0001 of 2016.
Ayiko v. Lekuru, Divorce Cause No. 0001 of 2015 (2017).
Ayoob v. Ayoob [1968] EA 72.
Banks v. Good Fellow [1870] 5 QB 549.
Basheija v. Basheija, HC Divorce Cause No. 12 of 2005.
Basheija v. Basheija & Anor, High Court Divorce Cause No. 12 of 2005.
Bater v. Bater [1951] P 35.
Beatrice Asire Malinga v. Jonathan Obukunyang Malinga, High Court Civil Suit
No. 0013 of 2013.
Best Kemigisa v. Mable Komuntale and Anor.
Blyth v. Blyth [1966] AC 64.
Bruno Kiwuuwa v. Juliet Namazzi and Ivan Sserunkuma, High Court Civil Suit No.
52 of 2006.
Bruno Kiwuuwa v. Juliet Namazzi and Ivan Sserunkuma, Civil Suit No. 56 of 2006.
Catherine Leku v. Jack Leku, Divorce Cause No. 8 of 2009.
Ceaser Okumu v. Helen Dhugira & Ben Alex Opar, HCCS No. 1 of 1997.
Ceaser Okumu v. Hellen Dhugira & Anor, High Court Civil Suit No. 1 of 1997.

Table of Cases
Centre for Health, Human Rights and Development (CEHURD) and Iga Daniel v.
The Attorney General, Constitutional Petition No. 64 of 2011.
Chapman v. Chapman [1969] All E.R. 476.
Children Court (Adoption of Children) Rules. Statutory Instrument No. 52 of 1997.
Chris Bakiza v. Esther Nanfuna, High Court Divorce Cause No. 22 of 2011.
Christine Male and Another v. Mary Namanda and Another [1982] HCB140.
Christine Male and Another v. Mary Namanda (1982) HCB 140.
Churchman v. Churchman, 1945 P 44.
Colarossi v. Colarossi, 1965 E.A 129.
Dan Byamukama and Anor v. Peace Rwomwiju, Civil Suit No. 514 of 2001.
Davies v. Beynan Harris [1931] 47 TLR 424.
De Reneville v. De Reneville [1948]1 ALL ER 56.
Dharamsy Morarji and Sons Ltd v. Suman Naresh Kara, Supreme Court Civil
Appeal No. 41 of 1995.
Dr John Kiyimba Kitto v. Godfrey Sebuunya, Misc. Cause No. 29 of 1989.
Dr. Specioza Wandira Naigaga Kazibwe v. Eng. Charles Nsubuga Kazibwe,
Divorce Cause No. 03/2003.
Edita Nakiyingi v. Merekizedeki, 1978 HCB 107.
Elizabeth Nalumansi v. Jolly Kasande and 2 others, Supreme Court Civil Appeal
No. 10 of 2015.
Emmy Ndyamureeba v. Eva Namanya, HCDEC No. 001 of 2006.
Enid Tumwebaze v. Mpereirwe Stephen & another, HCCA No. 039 of 2010.
Ephrahim v. Pastory and Kaizilege (2001) AHRLR 236 (TzHC 1990).
Erinesti Babumba & Ors v. Nakasi Kizito, HCCS No. 173 of 1987 HCB.
Erume v. Kyomugisha, Divorce cause No. 9 of 2014.
Ezra Yiga v. Esinemu Mutiibwa and Another, High Court Misc. Application No. 700
of 1997.
Falconer v. Falconer, 1970 3 ALL ER 440.
Florence Kemitungo v. Yolamu Katuramu [1992–1993] HCB 155.
Francis Ddiba Nduga v. Rita Nansikombi and Others [1980] HCB 79.
Gachigi v. Kamau [2003] EA 69.
George Nyakairu v. Rose Nyakairu [1979] HCB, 261.
Gissing v. Gissing, 1970 2 ALL ER 780.
Gladys Ella Felster Omella v. Nicholas Etieng and Another [1994] KALR 98.
Habyarimana v. Habyarimana, 1980 HCB 139.
Haji Musa Kigongo v. Olive Kigongo, High Court Civil Suit No. 295 of 2015.
Haji Sulaiti Habibu Jjumba and others v. Hajati Safarani Sanyu, High Court Civil
Suit No. 718 of 1995.
Hajji Musa Kigongo v. Olive Kigongo, High Court Civil Suit No. 295 of 2015.
Howard v. Howard (1962) 2 ALL ER 543.
Hyde v. Hyde 1866 [L.R] 1 P&D 130.
In a Petition by Elvanson Rovincer Gentry To Adopt The Infants, Adoption Cause
No. 3 of 2005.
In the matter of the Adoption of Victoria Babirye Namutosi by Johnny Walters and
Cheryln Walters, High Court Adoption Cause No. 09 of 2017.

Table of Cases
In Re Adriko Reuben (a Minor) (Miscellaneous Civil Application No. 0008 of 2016)

[2016] UGHCFD 10 (13 July 2016); Available online at https://ulii.org/ug/
judgment/hc-family-division/2016/10.
In Re Nicholas Mwanja & Anor (Children), Family Cause No. 0078 of 2009.
In Re: Michael Benjamin Pietsch, Family Cause No. 0102 of 2008.
In Re: Milly Muhairwe. Family Cause No. 0100 of 2008.
In Ssebowa Sarah and 5 others v. Peter Ssebowa [1991] HCB 95.
In Stella Maris Amabilis and Another v. Esther Nabusakala, High Court Civil Suit
No. 0072 of 2007.
In The Matter of Alicia Mirembe (Minor), Misc Application No. L 49 of 2003.
In the Matter of an Application for Guardianship by Wandera Peter Family Cause
No. 0004 of 2017.
In the Matter of an Application for Custody and Maintenance by Tsehayalem, Fam-
ily Cause No. 224 of 2014.
In the Matter of an Application of An Adoption Order by Michelle and Thomas
Nikundikwe; Adoption cause No. 0005 of 2004.
In the Matter of Application of Guardianship by Rodrigo Boniface Family Cause
No. 0003 of 2017.
In the Matter of Ayla Mayanja (An Infant) Misc Application No. 20 of 2003
In the Matter of Elijah Amumpaire and Elisheba Nsiimire (Infants) Family Cause
155 of 2015
In the Matter of Emanuel Kisakye (Child) Family Cause No. 2 of 2016.
In the Matter of Emayu (An Infant) Family Cause No. 01 of 2015.
In the Matter of Hodkins Andrews (An Infant) Family Cause No. 222 of 2013.
In the matter of Khalid Latiff (Person of unsound mind), Civil Misc. Application
No. 026 of 2017.
In The Matter of Mirembe Nansamba Claire (A Minor). Miscellaneous Cause No.
25 of 2012.
In the Matter of Nassuna Suzan (An Infant) High Court Family Cause No. 199 of
2010.
In the Matter of Natalie Matama (Infant), Adoption Cause No. 289 of 2013.
In the Matter of Peter Ssebuliba Miscellaneous Cause No. 37 of 2009.
In the matter of the estate of Kiggundu James (A person of unsound mind). Civil
Misc. Application No. 18 of 2015.
In the Matter of the Estate of Musa Kyakonye Misango (Deceased).
Irumba v. Irumba, Supreme Court Civil Appeal No. 45 of 1995.
Israel Kabwa v. Martin Banoba Musiga, Civil Appeal No. 52 of 1995.
Isumba v. BulyaMisc., Application No. 170 of 2014.
Jackson Oyuk Kasede v. William Odoi Nyandusi, HCCS No. 104 of 2013.
James Katende and others v. Dan Byamukama, High Court Administration Cause
No. 201 of 1992.
James Ruteete and Anor v. Fiona Mbabazi and 2 others [2001] UGHC 97.
Jenifer Musamali v. Stephen Musamali, High Court Civil Appeal No. 1 of 2001.
Jenina Kyanda 1977 HCB 11.
Jennifer Mussamali v. Stephen Musamali, High Court Civil Appeal No. 1 of 2007.
John Kyeswa v. Administrator General, High Court Misc. Application No. 232 of
2009 arising from Administration Cause No. 039 of 2008.

Table of Cases
John Masanyalaze v. Rita Nanono and others, Civil Appeal No. 86 of 2008.
Jonah Senteza Kanyerezi and Another v. Chief Registrar of Titles and 2 others, High
Court Misc. Application No. 919 of 1997.
Jones v. Maynard (1951) Chapter 572.
Joy Kiggundu v. Horrace Awori, High Court of Uganda at Kampala, Divorce Cause
No. 8 of 1998.
Joyce Nakire and Another v. Charles Mpanga Kaggwa [1991] HCB 102.
Joyce Nsubuga and two Others v. Christine Nsubuga, High Court Civil Suit No. 007
of 2014.
Julian Fenzi v. Nabbosa, FCMC No. 6 of 2012.
Julius Chama v. Specioza Rwalinda Mbabazi, Divorce Cause No. 25/2011.
Julius Rwabinumi v. Hope Bahimbisomwe, Supreme Court Civil Appeal No. 10 of
2009.
Juliet Kalema v. William Kalema and Rhoda Kalema [2004] UGCA 15.
Kabali v. Kajubi [1944] 11 EACA.
Kabandize and 20 Others v. Kampala Capital City Authority, Civil Appeal No. 28
of 2011.
Kagga v. Kagga, High Court Divorce Cause No. 11 of 2005.
Kajubi v. Kabali, 1944 11 EACA 34.
Kakunka Edward v. Aliet Yudesi Kyoyanga [1972] HCB 208.
Kamore v. Kamore [2000] 1 EA 80.
Kasasa v. Kasasa 1976 HCB 348.
Katuramu v. Katuramu HCT – 01 – CV – MA No. 026 of 2017.
Kiggundu v. Kiggundu, 2008 3 BLR 442 HC.
Kimani v. Kimani (1997) LLR 553.
Kintu v. Kintu, Divorce Appeal No. 135 of 1997 [2001] UGHC 46.
Kintu v. Kintu, High Court Divorce Appeal No. 135 of 1997.
Kirungi v. Mugabe, Divorce Cause No. 48 of 2013.
Kivuitu v. Kivuitu [1990–1994] E.A. 270.
Komakech Sam v. John Bayi, High Court Administration Cause No. 7 of 1999.
Lalai v. The Queen, 1956 23 EACA 609.
Lang v. Lang [1954] 3 ALL ER 571.
Law & Advocacy for Women in Uganda v. Attorney General of Uganda, Constitu-
tional Petitions Nos 13/05 & 05/06.
Lazaro Lubangira v. Akamba Bus Service [1979] HCB 20.
Lord Advocate v. Jaffery (1921) 1 AC 146.
Mable Sanger v. Efren Guerra, High Court Divorce Cause No. 37 of 2010.
Margaret Oyika Wadri v. Stephen Andrama and 4 others, High Court Administra-
tion Cause No. 12 of 1997 (Judgment was delivered in 2016).
Margret Hough v. David Hough, High Court Divorce Cause No. 1 of 2006.
Mariya Nanyonga v. Administrator General, High Court Administration Cause No.
107 of 1983.
Masitula Nantongo Mugisha v. Enock Kakuru and others, High Court Civil Suit No.
161 of 1993.
Mayambala E v. W N Mayambala, High Court Divorce Cause No. 3 of 1998.
Mboijana James v. Mboijana Prophine [1990–1991] HCB 10.
McFarlane v. McFarlane (1970) 3 ALL ER 452.

Table of Cases
Michael Aboneka v. Watoto Church Limited, Constitutional Petition No. 19 of 2018.

Micheal Oscar Kajemba v. James Mulwana and 3 others, High Court Civil Suit No.
749 of 1997.
Mifumi (U) Limited & Anor v. The Attorney General, Constitutional Appeal No. 2
of 2014.
Mifumi (U) Ltd & Anor v. Attorney General & Anor, Constitutional Appeal No. 02
of 2014) [2015] UGSC 13 (6 August 2015).
Mifumi (U) Ltd and 12 Others v. Attorney General and Kenneth Kakuru, Consti-
tutional Petition No. 12 of 2007.
Minton v. Minton [1979] AC 593, 608.
Monica A. Mboijana v. Kenneth Mboijana, FPT-00-CV-MA-037 of 2014.
Monica Lub v. Dirk Peter Lub, Divorce Cause No. 47 of 1997.
Mpirirwe v. Nsambimana [1994] IV KALR 89.
Muwanga v. Kintu, High Court Divorce Appeal No. 135 of 1997.
Muyingo and Anor v. Administrator General, Misc. Application No. 1 of 2016.
Nakalule Christine v. Kakooza, Civil Appeal No. 47 of 2008.
Nakalule Christine v. Kakooza Herbert, HCCA No. 47 of 2008.
Nakedde Imelda Ndiwalungi v. Roy Busulwa Nsereko and Anor [1997] HCB 73.
Nampijja Margret v. Stanley Kaggwa, High Court Divorce Cause No. 2 of 2012.
Namuyimbwa v. David Ralph Pace, Divorce Cause No. 14 of 2017.
Nassanga v. Nanyonga [1977] HCB 314.
Nassuna Edith Zavuga v. Jasper Nimron Semwanga and Haji Senyonjo, Divorce
Cause No. 10 of 2003.
National Enterprises Corporation & 2 Ors v. Nile Bank Limited, Civil Appeal
17/1994) [1995] UGSC 22 (21 June 1995).
Neena Patel v. Harish Patel, HCCS No. 1067 of 1996.
Negulu v. Serugga (Civil Appeal No. 103 of 2013) [2014] UGHCCD 64 (30 April
2014).
Nkwakwa v. Kyomugyemo [1976] HCB 291.
Nyabayango v. Kabasinguzi and Anor, High Court Civil Suit No. 121 of 2012.
Nyendwoha Lucy v. Nyendwoha Robert [1989] KALR 108.
Ockba (Ali Omer) v. Ockba (Aziza binti Ali Omer) [1957] EA 675.
Oloka Onyango and Others v. The Attorney General, Constitutional Petition No. 8
of 2014.
Onesforo Ngaaga and Another v. Matovu and Another, High Court Civil Suit No.
107 of 2003.
Patrick Namenkere v. Florence Mwanja, Civil Appeal No. 37 of 2004.
Paul Kagwa v. Juliet Muteteri, High Court Matrimonial Cause No. 23 of 2005.
Paul Kagwa v. Juliet Muteteri, Matrimonial Cause No. 23 of 2005.
Paul Kawanga Ssemwogere v. Attorney General, Constitutional Petition No. 3 of
1999.
Paulo Kaweesa v. The Administrator General and two others, High Court Civil Suit
No. 918 of 1993.
Petitt v. Petitt [1969] 2 WLR 966.
Philip Okot Lalobo v. Elizabeth Lalobo and Another, High Court Administration
Cause No. 1 of 1991.

Table of Cases
Piarasingh and Havinder Singh v. Sukveer Kaur, High Court Civil Suit No. 52 of
2012.
Porter v. Porter [1969] 3 ALL ER 640, 643–644.
Preston-Jones v. Preston-Jones [1951] AC 391/ [1951] 1 AER 124.
R v. Jackson [1981] QB 671.
R v. Miller 1954 2 Q.B. 282.
R v. Reid [1973] QB 299.
Re Howison’s Application [1959] EA 568.
Re Kibiego [1972] EA 179.
RE M (An Infant) Supreme Court Civil Appeal, No. 22 of 1994.
Re Nicholson [1974] l WLR 476.
Re: Owen case Family Cause No. 20 of 2010.
Rehema Nalwanga v. Hadija Nassimbwa and Another [1998] II KALR 73.
Rev. James Kyamukama and Another v. Catherine Zaribwede and Another, High
Court Civil Suit No. 1144 of 1997.
Rex v. Amkeyo (1917) 7 EALR 14.
Richard Babumba and 13 Others v. James Ssali Babumba, Administrator of the
Estate of the late Dr Eria Muwanga Babumba. HCCS No. 78 of 2012.
Rimmer v. Rimmer [1953] 1 QB 63.
Robinah Erina Kagaya Kiyingi v. Doctor Aggrey Kiyingi, High Court Civil Appeal
No. 41 of 2004.
Ruhara v. Ruhara, 1977 HCB 86.
Ruth Nsubuga & Others v. Peter Nsubuga, High Court Civil Suit No. 1081 of 1988.
RVR [1991] 4 ALL ER 418.
Rwabaganda Farasia v. Donato Bahemurwusha [1978] HCB 68.
Rwabuhema Musinguzi v. Harriet Kamakume, Civil Appeal No. 142 of 2009.
Salomon v. A. Salomon & Co Ltd [1896] UKHL 1 [1897] AC 22.
Samson v. Samson (1960) 1 WLR 190.
Sanyu Lwanga Musoke v. Sam Galiwango, Supreme Court Civil Appeal No. 48 of
1995.
Sewava v. Kaggwa and Others [1954] EACA 30.
Sidney Harper & Wendy Harper and Musinguzi Davis (an Infant), Adoption Cause
No. 0001 of 2018.
Steven Bujara v. Polly T. Bujara, Civil Appeal 81/2002 (2001–2005) HCB Vol. 3
62–63.
Sumaya Nabawanuka v. Med Makumbi, High Court Kampala, Family Division
Divorce Cause No. 39 of 2011 (unreported).
Tarema Justus v. Kiteteyi Robina and 2 others, High Court Civil Suit No. 001 of
2017.
Teopista Mugenzi v. Pascal Mugenzi and Anor, High Court Civil Suit No. 166 of
1992.
Thakkar v. Thakkar, High Court Divorce Cause No. 3 of 2002.
The Administrator General v. George Mwesige Sharp, Court of Appeal case No. 6
of 1997.
The Administrator General v. Norah Nakiyaga and Others, High Court Administra-
tion Cause No. 544 of 1990.

Table of Cases
The Administrator General v. Teddy Bukirwa & Esther Bukirwa, High Court Civil
Suit No. 208 of 1992.
The Administrator General v. Joyce Akello and Anor, Supreme Court Civil Suit No.
15 of 1993.
The Trustees of Rubaga Miracle Centre v. Mulangira Ssimbwa & Mulangira Ssim-
bwa a.k.a Afidra Milton v. The Board of Trustees, Miracle Centre & Anor (Misc.
Applications No. 576 of 2006 & 655 of 2005) (Misc. Applications No. 576 of
2006 & 655 of 2005).
Uganda Association of Women Lawyers and Others v. Attorney General, Constitu-
tional Petition No. 2 of 2003 [2004] UGCC 1 (10 March 2004).
Uganda Association of Women Lawyers and others v. Attorney General, Constitu-
tional Petition No. 2 of 2003.
Uganda Motors Limited v. Wavah Holdings Limited Supreme Court Civil, Appeal
No. 19/91; Available online at https://ulii.org/ug/judgment/supreme-court/1992/
1/.
Uganda Revenue Authority v. Rabbo enterprises Uganda Ltd, Mount Elgon Hard-
wares Ltd, SCCA No. 12 of 2004.
Uganda v. Agitayo Gilbert, High Court Criminal Case No. 177 of 2014.
Uganda v. Aurien James Peter, Crim. Case No. 012 of 2010, Judgment Date: 28
November 2010.
Uganda v. Commissioner of Prisons, Ex Parte Michael Matovu [1966] 1 EA 514.
Uganda v. Fibo Alex, Crim. Case No. 98 of 2008, Judgment of 3 March 2009.
Uganda v. Kato, 1976 HCB 204.
Uganda v. Peter Kato and 3 others [1976] HCB 204.
Uganda v. Tangit Martin, High Court Criminal Case No. 288 of 2006.
Uganda v. Yiga Hamidu & Others, Criminal Session Case 005 of 2002.
Vincent Kawunde t/a Oscar Associates v. Kato, High Court Civil Suit No. 4 of 2007.
Vincent Tamukedde v. Serunjogi, High Court Civil Suit No. 85 of 1995.
Vivian Ntanda v. James Kayemba Divorce Cause No. 4 of 2007.
W v. W (1952) 1 AER 858.
Were Crispus and Anor v. Administrator General and Others, High Court Civil Suit
No. 001 of 2015.
White v. White [2001] 1 AC 596; [2000] 3 WLR 1571.
Y. Mugonya v. Trophy Nakabi Mugonya [1975] HCB 297.
Y. Mugoya v. T.N. Mugoya 1975 HCB 95.
Zena Nkusi Kaboyo and Anor v. Kyomuhendo Creaven and Anor, High Court Civil
Suit No. 970 of 1995.

Table of Cases

Index
The numbers here refer to paragraph numbers.
Absolute bars, 302–307 Decree absolute, 183, 185, 350, 351, 472,
Administrator, 646–656, 735–737 474
Adultery, 271–282 Decree Nisi, 220, 278, 290, 292, 307, 348,
Affinity, 140–144, 435–440 350, 473, 530
Aggravated adultery, 235, 239 Decree of divorce, 159, 235
Alimony, 199–201, 276, 299, 300, Dependant relatives, 569, 597, 611, 673,
471–474, 476, 530 678, 705
Assault and battery, 269 Desertion, 283–297, 310, 331, 333
Discretionary bars, 301, 308
Bank accounts, 86, 485, 702 Divorce, 43–45, 48–53, 61, 231–370
Bars to divorce, 301, 307 Divorce Act, 45, 48, 51, 52, 55, 111, 125,
126, 128, 146, 156, 184, 195, 196, 199,
Bigamy, 50, 125, 127, 129, 155, 183, 226,
215, 219, 220, 233, 235–237, 241–243,
235, 238, 296–298 245, 246, 251, 271, 275, 276, 288, 292,
Bill, 365–370, 539–546 293, 299, 306, 308, 310, 312, 338, 342,
343, 348–350, 357, 366, 367, 445, 469,
Capacity, 83, 134–149, 583, 669–678 472, 475–479, 483, 518, 532
Child, 100, 361, 377–379, 500–505, Domestic violence, 259, 265, 270, 441
589–595
Citizenship, 102–105 Equality, 18, 34, 59, 118, 200, 203, 242,
Codicil, 665–667, 680, 695, 700, 707, 708 243, 245, 277, 293, 318, 447, 454, 455,
Cohabitation, 121, 157, 283, 284, 288–290, 465–470, 478, 479, 490, 517, 548
371–375, 491, 541, 584 Executor, 646–656
Collusion, 302, 305, 307
Condonation, 302, 303, 307 Fair distribution, 471–483
Connivance, 302, 304, 307 Family, 22–37, 118–440
Constructive desertion, 289 Fask, 329, 331, 332, 362
Contribution, 458–483 Fault-based divorce, 367
Court, 60, 547 Foundlings, 102, 103
Cruelty, 246–270
Custom, 22, 23, 26, 35, 41, 46, 55, 142, Grounds for divorce, 246–270, 327, 339,
154, 157, 198, 222, 227, 258, 320, 321, 367
322, 379, 422, 447, 448, 516, 550, 554,
577, 579, 594 Heterosexual, 121, 133, 162
Customary heir, 54, 554, 556, 563, Household expenses, 484–494
577–580, 582, 583, 611, 731 Husband, 24, 25, 44, 46, 50, 53, 55, 97,
Customary Marriage Registration Decree, 109, 110, 119, 125, 126, 131, 154–156,
27 159, 166, 174, 183–191, 193, 197–202,

Index
207, 209–211, 220, 223, 226, 227, 232, Name, 96–100

235, 238, 239, 243, 252, 257, 258, 272, Non-consensual sexual relations, 257–260
274–277, 290, 292, 299, 305, 310, 315,
319, 326, 329–334, 342, 362, 364, 367, Parent, 410–413
373, 377, 443, 448, 452, 454, 457, 459, Personal representative, 64, 626
465, 472, 473, 475, 476, 479, 487, 488, Persons, 64–117, 568–576
490, 491, 496, 497, 509, 518, 521, 523, Physical cruelty, 250–256, 262
526–530, 543, 546, 551, 588, 596, 598, Polyandry, 131
601, 605, 612, 627, 637–639, 648, 705 Polygamous, 24, 25, 40, 54, 119, 131, 158,
184, 615
Incest, 50, 125, 141, 235, 238, 239, 436, Polygyny, 131
437
Post-independence, 10–17
Independence, 6, 9–17, 25, 27
Irretrievable breakdown of marriage, Pre-independence, 6
367–370 Probate, 54, 63, 561, 572, 582, 608, 619,
622, 631, 636, 640, 647, 657–658, 696,
Joint property, 458, 467, 484, 495–498 719–721, 724–726, 728, 730, 733, 735
Judicial separation, 232, 296, 299, 300, Proof of adultery, 190, 279–282, 341
309–311, 469
Jurisdiction, 335–336, 384, 424, 547 Rape, 50, 125, 238, 257–259, 269
Remarriage, 33, 200, 296, 363, 613, 705
Khul, 44, 329, 333, 362 Residential holding, 612, 613
Letters of administration (LOA), 54, 631, Separation, 232, 309–311

635, 639 Separation by Agreement, 232
Lian, 329, 334 Sharia, 132, 207, 225, 333, 335, 336,
352–354, 360, 318, 528, 530, 531,
Mahr, 174–177, 359, 364, 523, 546 533–537
Maintenance of children, 361, 504–505 Sheikh, 353
Maintenance of wife, 360 Solemnization, 50, 125, 151, 161, 174,
Marital offences, 297–298 228, 238
Marriage, 39–45, 93–94, 118–230, Spousal Consent, 387, 448–449
237–245, 312, 324–325, 335–336, Statutes of General Application, 23, 25, 27
352–353, 363–375, 450–457, 499–514,
Succession Decree, 31, 34
539–544
Summons, 345
Matrimonial, 206–212, 441–548
Matrimonial home, 486–490
Matrimonial offence, 235, 236, 239, 272, Talaq, 159, 184, 329, 330, 354, 360, 362
279, 305, 307, 308 Threatening violence, 269
Matrimonial property, 206–212, 441–548 Torture, 18, 266, 268
Mediation, 347, 353
Mental cruelty, 253, 261–264 Uganda Registration Services Bureau
Minor, 84 (URSB), 93, 355
Monogamous, 25, 41, 42, 119, 127, 130,
145, 155, 158, 221–223, 615 Wedding gifts, 484
Muta’ah, 362 Wife, 360, 584–588

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Uganda

Harriet Diana Musoke

This monograph is up-to-date as of January 2020

Family and Succession Law – Suppl. 105 (2020) Uganda – 1

Sold and distributed in North, Central and South America by:

Printed on acid-free paper.

This title is available on www.kluwerlawonline.com

2 – Uganda Family and Succession Law – Suppl. 105 (2020)

Zahara Nampewo is a Ugandan lawyer and law lecturer with

Ms Patricia Atim P’Odong holds a Master of Laws in Human

Family and Succession Law – Suppl. 105 (2020) Uganda – 3

Dr Harriet Diana Musoke holds an SJD from Emory University,

Ms Veronica Kange is an advocate of the High Court of

4 – Uganda Family and Succession Law – Suppl. 105 (2020)

§1. GENERAL INTRODUCTION AND DEMOGRAPHIC DATA OF UGANDA 19

§2. CLIMATE AND POPULATION 20

§3. POLITICAL/CONSTITUTIONAL HISTORY 20

§4. BEFORE 1962 20

§5. INDEPENDENCE AND POST-INDEPENDENCE ERAS 21

§6. 1995 CONSTITUTION 23

§7. HISTORY OF FAMILY AND SUCCESSION LAW 25

§8. SOURCES OF FAMILY AND SUCCESSION LAW 29

§9. STATUTE SOURCES 29

§10. STATUTORY SOURCES OF MARRIAGE LAW 29

§11. THE HMDA, CAP 250 31

§12. DIVORCE LAW 32

§13. DIVORCE UNDER THE HINDU AND MA CAP 250 33

Family and Succession Law – Suppl. 105 (2020) Uganda – 5

§14. STATUTORY SOURCES OF SUCCESSION LAW 33

§15. CASE LAW 35

§16. INTERNATIONAL TREATIES AND CONVENTIONS 38

§17. COURTS ADMINISTERING THE LAW 39

Chapter 1. The Status of a Person 41

§1. DEFINITION OF A PERSON 41

§2. ATTEMPTS TO PROCURE ABORTION 42

§3. PROCURING MISCARRIAGE 42

§4. SUPPLYING DRUGS, ETC. TO PROCURE ABORTION 42

§5. THE STATUS OF PERSONS 42

Chapter 2. Registration of Civil Status 47

§1. MODE OF REGISTRATION OF BIRTHS 48

§2. PRESUMPTION OF DEATH 49

§3. REGISTRATION OF MARRIAGE 49

Chapter 3. Personality Rights 50

§1. IMPOSITION OF A NAME 51

6 – Uganda Family and Succession Law – Suppl. 105 (2020)

§2. CHANGE OF NAME OF AN ADULT 51

§3. CHANGE OF NAME OF THE CHILD 51

§1. CITIZENSHIP OF FOUNDLINGS 53

§2. CITIZENSHIP BY REGISTRATION 53

§3. LOSS OF CITIZENSHIP BY REGISTRATION 54

Chapter 6. Domicile and Residence 55

Chapter 7. Persons with Disabilities 57

Part II. Family Law 59

§1. DEFINING MARRIAGE 59

§2. THE NATURE OF MARRIAGE 61

§3. THE CAPACITY TO MARRY 64

§4. FORMALITIES OF MARRIAGE 69

§5. LEGAL EFFECTS OF MARRIAGE 78

§6. MATRIMONIAL PROPERTY IN ISLAM 84