ISLAMIC UNIVERSITY IN UGANDA

COURSE UNIT FAMILY LAW II

LECTURER MUGISHA ISMAIL
Write the Brief Facts & Holdings on each case below as provided for in the
course outline.

1. The Law on Children (05 Cases)

2. Parentage (05 Cases)
3. Custody of Children (05 Cases)
4. Maintenance of Children (05 Cases)
5. Adoption of Children (05 Cases)
6. Guardianship of Children (05 Cases)
7. Other Court orders for Children (05 Cases)
CASES ON THE LAW ON CHILDREN

1. Fenzi Vs Nabbosa (Misc Appl. No. 06/2012), [2013] before Justice B.

Kainamura

Brief facts

⮚ The applicant, Julian Galton Fenzi and the respondent, Nabbosa

Natasha Marie were lawfully married, lived and cohabited with each
other
⮚ During their marriage they got two children: Jonathan Abel Galton Fenzi
17yrs and Jasper Julian Galton Fenzi 11yrs.
⮚ In April 2010 the applicant (then petitioner) petitioned Court for divorce
and requested for the dissolution of the marriage, custody of children
⮚ The respondent had failed to support the children financially yet she was
granted all the property valued at $1M.
⮚ In May 2010, the respondent filed a reply to petition wherein she denied
the alleged matrimonial offences.
⮚ The respondent filed a Cross Petition and stated that the marriage
between her and the applicant had irrevocably broken down and
requested for dissolution of the marriage and custody of the children of
the marriage with visitations rights to the older child of the marriage.

Parties didnt opt to pursue a lengthy litigation and thus on 17 th June, 2010 a
Decree Nisi was entered on the following terms:-

1. A Decree Nisi dessolving the marriage of the parties was thereby

entered
2. The Petitioner was thereby granted permanent custody of both
3. Ownership of matrimonial property comprised in Block 244 Plots 6118
and 7596 Muyenga Bukasa was thereby granted to the respondent
4. The resondent would be entitled to full visitation rights in respect of the
issues of the marriage including the right to call and talk with the
children from time to time

A Decree Nisi was made absolute on the 10th day of May 2011
The issues for determination were agreed as:-

1. Whether the applicant was entitled to the maintenance of orders as

prayed
2. Whether the court can make orders to split the property in order to pay
for the maintenance of the child

Holding

Justice B. Kainamura dismissed the application with costs since the resolution
of issue one above effectively resolves issue two.

2. Kiyemba Vs Batte (Divorce Cause No. 127/2018) [2019] before Hon.

Lady Justice Ketrah Kitariisibwa Katunguka

Brief facts

▪ Sarah Kiyemba (Petitioner) prayed that a decree Nisi be granted

dissolving the marriage between her and the respondent
▪ Custody of the children
▪ The respondent is ordered to pay maintenance and school fees for the
children
▪ Costs of the petition

Grounds

She and the respondent were lawfully married on the 6 th May, 2006 at Our
Lady Queen of Virgins, Kisubi.

❖ After the marriage, the petitioner and respondent cohabited at Kisubi

Nabugala in Kampala and were blessed with two issues: Arabella
Nanteza (13yrs) and Isaiah Ssozi (8yrs). Since the solemnization of the
marriage the respondent has committed several acts of cruelty against
the petitioner with denial of conjugal rights without explanation, shouts
at the petitioner in the presence of the children and the maid.
 ❖ The respondent has been committing acts of adultery with different
women including a one Nancy and Grace vide text love and sexual
messages and would send the petitioner x-rated messages meant for
someone else including calling her another woman’s name while in bed.
❖ Because of this adultery, they have cohabited for 4yrs.
❖ He barely spent time with the petitioner and her children.
❖ The respondent in his reply states that he was married to the petitioner
and that they had two children
❖ The marriage has irrevocably broken down but he denied all the rest of
the claims by the petitioner.
❖ There is no connivance or collusion

Holding

Justice Ketrah Kitariisibwa Katunguka held that the acts of the respondent
disserting the petitioner thereby withdrawing marital rights including conjugal
rights amounted to cruelty, a distinctive ground for divorce. The marriage
between the two had irretrievably broken down. For the welfare of the
children and stable lifestyle, the children needed to stay with their mother
where they have been for the last 4yrs but their father should stay in their
lives. Both Parents were gainfully employed and should meet the needs of the
children equally. The costs should be met by the respondent.

The Judge thereafter made orders as:

- Decree Nisi hereby issues

- Custody granted to the petitioner(Rwabuhemba Tim Musinguzi vs.
Harriet Kamakune)
- Respondent has right to see the children as and when he needs to after
prior notice to the petitioner, right to pick them and spend time with
them in holidays or other day with prior arrangement with the petitioner
- Both parties shall contribute 50% to the costs of bringing up their
children as medical, education, entertainment, shelter, clothing based
on the welfare principle.
 - The petitioner succeeds with costs borne to the respondent.

3. In Ochaya & Anor Vs Lamaro (Misc Civil App No. 0028/2017) before
Hon Justice Stephen Mubiru sitting at Gulu

Brief facts

● An application by which the applicants jointly sought an order of

adoption in respect of a child, Lamaro Lillie Ochaya, female Aged nearly
4yrs born on 15th January, 2014
● The applicants were husband and wife having solemnized their marriage
on 15th January, 2011 at Panorama House, Buili Tpos, New South Wales,
Australia.
● They were ordinarily resident in Bar Dege Division Plot 8 Lung Gulu
Road, Guku Municipality for 5yrs.
● The first applicant was a citizen of the Republic of Uganda and a
biological maternal uncle of the infant while the second applicant was a
citizen of Australia.
● Both were on 17th October, 2016 appointed by the court as the legal
guardians of the infant and had by virtue of a care order issued by the
Family and Children Court at Gulu on 9th January, 2015 under Care
Application No. 036 of 2014, had legal custody of the infant.
● The two applicants have biological children of their own; Zachariah
Ronald and Elijah Spencer Ochaya.
● The applicants were the proprietors of a project "Tamarinds" at Nwoya,
dealing in commercial farming and business development and were
registered as a CBO.
● Out of their activities, they earned a minimum of shs. 2,000,000/= per
month that was sufficient to meet their needs and those of their
children.
● The circumstances of the child, Lamaro Lillie Ochaya were that the
identity and whereabouts of his father were unknown.
● Her mother, Lalam Scovia, died a day after giving birth to the infant and
a death certificate to that effect had been presented to court.
Holding

The court was satisfied on the evidence before it that the applicants granted
the adoption order would ensure the welfare and protection of rights of the
child.

4. Nakalule Vs Kakooza (Civil Appeal No. 47/2008) [2014] before Hon

Justice Masalu Musene

Brief facts

This is an appeal from the judgment of the Chief Magistrate’s Court at Nakawa
by His Worship Deo Nizeyimana in a civil appeal No. 42 of 2006 delivered on
the 17th september, 2006 wherein.

a. The Chief Magistrate dismissed the appellant’s appeal brought on

grounds that the trial magistrate erred in fact and law when he
disregarded the welfare principle and ordered the Respondent’s children
and their mother to vacate the family home at Kawaala and relocate to a
house in Wakiso.
b. That the magistrate erred in law and fact when he relied solely on the
detriment of children.
c. That the trail magistrate erred in law and fact when he ordered the
appellant to find alternative accommodation thereby relieving the
respondent of his duty to provide his children with shelter

Issues for resolution:

1. The learned trial magistrate erred in law and fact when he made findings
that the respondent had a house in Wakiso
2. The learned trial magistrate erred in law and fact when he concluded
that the appellant was not legally married to the respondent.
3. The learned trail magistrate erred in law and fact when he disregarded
the evidence of the appellant and failed to evaluate the little he adopted
 4. The trail magistrate erred in law and fact when he concluded that
shifting the children of te respondent and the appellant to Wakiso was
in the best interest

Holding

Justice Wilson Massalu Musene allowed all the four grounds of appeal and in
the judgment in favour of the appellant ordered that the appellant and her
children be allowed to remain in their matrimonial and family house at Kawala.
He ruled that the first guiding principle provided that whenever the State, a
Court, a Local Authority or any person determined any question with respect
to upbringing of the child, the child’s welfare should be the paramount
consideration.

5. Ndyabahika Vs Adyeri (Misc Appl No.69/2019)

Brief facts

In the instant case leave to appeal is against the decision of court in

determining the paternity of the Respondent which is highly contested by the
Applicant Elvaida Ndyabahika a step mother.

Holding.

The application for leave to appeal was dismissed.

CASES ON THE LAW OF PARENTAGE

1. In Re: Jovan Ssenyonjo (Infant) (Family & Children Cause No. 331/2013)
by Lady Justice Catherine Bamugemereire.

Brief facts
Issues:

1. Luther Horn Wolff and Avery Cheves be appointed legal guardians of the
child Ssenyonga Jovan with full parentage rights/responsibilities
2. Be allowed to emigrate with the child to their home country to fulfill
their parentage responsibilities

Brief facts:

❖ The child had been living with his mother, Nanyondo Annet since his
birth on the 1st of March, 2013 in Busimba Villge, Kyengonza Parish,
Kyengonza Sub County, Gomba District.
❖ The Childs father, Mulevu Emmanuel died on the 6 th September, 2012
when Nanyomndo Annet was 3 months pregnant.
❖ Nanyondo was unemployed and had been receiving support and shelter
by the child’s paternal uncle Bulenga Peter.

Holding

Lady Justice Catherine Bamugemereire held that the child was not in need of a
home, had never been abandoned or mistreated by his care takers and was
not eligible for legal guardianship. The learned Judge relied on Section 4 of the
Children’s Act which provides that “a child is entitled to live with her parents or
guardians but where a competent authority determines in accordance with the
laws and procedures applicable that it is the best interest of the child to
separate the child from the parent the best substitute care available shall be
provided for the child.”

2. In Re: Matovu (Infant) (Family & Children Cause No. 286/2013) before
Lady Justice Persy Night Tuhaise

Brief facts
This application for legal guardianship brought by notice of motion under
articles 139(1) and 34(1) & 2 of the constitution; sections 1, 33, and 39 o the
judicature act cap 13 and sections 3, 4, & 5 of the children’s act. The appellant
is seeking the following orders:

1. Donna Ramos Holland be appointed legal guardian of Matovu John.

2. The child is allowed to immigrate to USA to live with Donna Ramos
Holland.
3. Costs of this application are provided for.

The following were the grounds:

1. The child is a single orphan having lost his mother, Nabukalu Ephrance in
May 2005 and the two had separated.
2. The father of the child, Matovu Godfrey was a peasant with no reliable
source of income to take care of him.
3. The surviving relatives of the child, Nanteza Ruth the maternal
grandmother cannot afford to take care of him
4. The child was admitted to the care of a children’s home, Ssubi Project by
the probation and social welfare officer upon the request of the
maternal grandmother
5. The applicant who knew Matovu John through Cheryl Sergeant, a
director at Ssbubi Project wished to provide the child with a home,
parental love and care.
6. She sought the court to grant her legal guardianship of the child and to
allow her to immigrate and live with him in the United States of America
(USA).
7. The application was for the welfare and benefit of the child.

Holding

Lady Justice Persy Night Tuhaise allowed the application and accordingly made
the following orders on the terms she considered fit for the welfare of the
child:

a. Donna Ramos Holland be appointed legal guardian of Matovu John.

 b. The child be allowed to immigrate to USA to live with Donna Ramos
Holland
c. The legal guardian shall was directed to obtain a Ugandan Passport for
the child using his current names.
d. The legal guardian should submit once a year photographs and a report
on the state of the child to the Registrar, Family Division of the High
Court of Uganda at Kampala until he attains the age of 18 (eighteen)
years of age or until ordered otherwise
e. The registrar of the High Court should furnish a copy of the orders in this
ruling, together with the address of the legal guardians in USA in
Kampala; the Embassy of USA in Kampala; and the Ministry of Justice
and constitutional Affairs of Uganda.
f. Costs of the application would be met by the applicant

3. In Re: Edema (Family & Children Cause) (No.03/2017) before Justice

Stephen Mubiru.

Brief facts

This was an ex-parte application for Legal Guardianship of three children,

Laurent Kabila, Dominika Mundrua and Sabina Viola Iziku, all the children of
the late Mr. Vundruku Andrew (father) and Ms. Minike Vundru Angelina
(mother) who both died on 11 th April, 2007 in an ambush at the hands of the
Lord's Resistance Army. The applicant was their paternal uncle.
Holding

Justice Stephen Mubiru considered each of the points in the welfare principle
checklist and found no alternative options available to best meet the children’s
future upbringing and mindful of the duty to afford paramount consideration
to the children’s welfare, Mr. Rodrigo Boniface Edema of zone B Villagein
Mutungo ward, Nakawa Division and also of Edua village, Elenderea parish ,
Moyo Town Council as the legal guardian of Laurent Kabila aged 17 years,
Dominika Mundrua aged 12 years and Sabina Viola Iziku, aged 12years all the
children of the late Mr. Vundruku Andrew, the father and Ms Minike Vundru,
the mother of Elendrea parish, Moyo Town Council. The applicant was ordered
to meet the costs of the application

4. Sserunjogi & Anor Vs Nkuubi (Originating Summons) No. 07 OF 2019,

before Lady Justice Ketrah Kitariisibwa Katunguka.

Brief facts

✔ The suit was brought by Sserunjogi Charles Musoke and Katamba John
Ssemakula, under Order 37 rule 1(a), (b), and (g) and r.8 of the Civil
Procedure rules S.I. 71-1 by originating summons seeking declarations
and/or orders that paternity test was taken out by the defendant and
Mulindwa Yuuf;
✔ The bequest in the will of the late John Ssserunjogi Mukasa was void;
✔ Costs for the suit or incidental thereof are awarded to the applicants.
✔ The plaintiffs are the biological children of and administrators/executors
of the will of the estate of the Late John Sserunjogi Mukasa;
✔ The deceased bequeathed his property to his children with the belief
that they were his biological children;
✔ The plaintiffs upon obtaining grant of Letters of Administration vide
Administration Cause No. 149 of 2010 distributed the estate according
to the will of the deceased;
✔ Before the administrators finished the distribution and execution of the
deceased’s will, Mulindwa Yusuf approached them and the clan head
claiming the defendant Tony Nkuubi was his son and not a son of the
deceased;
✔ The plaintiffs requested the defendant to take out a paternity test with
the said Mulindwa Yusuf but he declined to do so unless compelled by a
court order;
✔ The plaintiffs are constrained to give the defendant his share of the
estate without ascertaining his paternity;
✔ The plaintiffs now seek a paternity test to be carried out on the
defendant and Mulindwa Yusuf.

Issues:
 1. Whether this application is properly before the court
2. Whether the application has merit

Holding

The court ruled that the application has merit and therefore succeeded and in
granting the application, the following orders were made:

1. The application is granted

2. A DNA/paternity test shall be carried out on the defendant and Yusuf
Mulindwa
3. The costs of the application shall be borne by the estate

5. Yusuf Amili Vs Babirye Civil Appeal No. 109/2013, before Lady Justice
Elizabeth Ibanda Nahamya

Being an appeal from the interim order of His Worship Imalingat Robert
Magistrate Grade 1 in Family Cause No. 17 of 2013 delivered on 3.9.2013

Brief facts

⮚ The respondent herein who was the mother of an infant, Yusuf Amili
sued the appellant for custody and maintenance orders of the child
Yusuf Amili aged 5 years.
⮚ The Respondent’s case was contained in an affidavit that the she
cohabited with the Appellant from 2009 to 2012 and begot two children
out of that relationship, Hammie Yusuf aged 5 years and Yusuf Amili
aged 1 year.
⮚ They were staying in different homesteads though the Appellant had
access to the children.
⮚ Sometime in April 2012 the Appellant picked the child Hammie Yusuf
from the Respondent’s home as he normally used to do but later denied
the Respondent subsequent access and custody of the child.
 ⮚ She deposed that the Appellant’s mother who was supposed to take
care of the child lives in America
⮚ The child was left in the hands of a house help.
⮚ The appellant denied in an affidavit and affirmed that the respondent
had abandoned the children since 2008 when Hammie Yusuf was two
months old and singularly with his mother took care of and maintained
them.
⮚ The Trial Magistrate entered an Interim Order for the Respondent in
respect of which he granted the custody of the infant Hammie Yusuf to
the Respondent pending a DNA test and its outcome.
⮚ The Appellant being aggrieved lodged the appeal.

Holding

Grounds for appealed as contained in the Memorandum of Appeal filed on the

2nd October, 2013 were five (5) paraphrased as:- That;

1. The learned Trial Magistrate erred in la and fact when he made an order
in favor of the respondent for the custody of the child, Hammie Yusuf,
who was in the custody of the Appellant yet before hearing the
Appellants case, the Respondent abandoned the child at the age of 2
months leaving the appellant to struggle with the child from the age of
two months up to date.
2. The learned trial magistrate erred in law and fact when he granted
custody of the child Hammie Yusuf to the Respondent pending a DNA
test and its outcome yet there was no applicant for a declaration of
parentage to the court.
3. The learned magistrate erred in law and fact when he failed to apply the
guiding principles for considering custody of a child.
4. The trial magistrate erred in law and fact when he decided the Parties
had agreed that the child be taken to the Turkish Academy and that
other orders should await DNA test which was not true.
5. The learned trial magistrate erred in law and fact when he granted
custody of the child to one parent whilst denying access to the other
parent
Court held that the interim order issued by the Trial Magistrate was issued
erroneously and should be cancelled. The appeal was incompetent and should
be struck out and ordered that:-

a. The appealed thereby dismissed

b. A trial be held for the final disposition of the main application
c. Costs awarded to the Respondent

Cases on the law of Custody of Children

1. Baguma Vs Mbabazi HCT-00-CV-CA-No. 03/2016 [2017] before Justice

Oyuko Anthony Ojok.

Brief facts

a. The two had a misunderstanding which led to the arrest of the

Respondent.
b. The Appellant evicted the above children and took them to the
Respondent’s relative.
c. The Respondent was later released but could not go back to her original
residence because the Appellant had abandoned the same and had
locked up the place.
d. The Respondent then instituted a matter by a Complaint on Oath for
custody, shelter, and maintenance, of the children.
e. The lower Court granted custody to the Respondent for 4 years and 9
months and to be looked after in the house which the Appellant resided
with his other children.
f. The Court ordered for eviction of the Appellant and his other children
from the house within 10 days from the date of judgment

Holding

The Judge held that he found no fault in what the trial magistrate did and the
welfare of the children was taken care of as he was mindful of the fact that the
children’s needs especially when children were asked whom they wished to
stay with and expressly state their preference for the Respondent. The
decision of the lower courtwas upheld and the appeal dismissed without costs
for purposes of harmony.

Further orders granted the appellant visiting rights over the weekends and
during holidays if so wishes and that should be done with prior notice to the
Respondent

2. Kasingye Vs Kasingye Civil Appeal No. 096/2014 [2019]

Brief facts

a. Kasingye Emmanuel and Genevieve Kasingye were lawfully married.

b. During the subsistence of the marriage they were blessed with four
children
c. They lived together first then the respondent sought an Order for
judicial separation
d. She also sought an Order for maintenance and custody of the couple’s
children.

Holding

Grounds:

1. The learned trial magistrate erred in law and fact when she
misconstrued a judicial separation to be a divorce.
2. The learned trial magistrate erred in law and fact when she failed to
evaluate the evidence before her which resulted in to a gross
miscarriage of justice to the respondent and the children
3. The learned trial magistrate erred in law and fact when she did not
consider the substantiality of the DNA evidence produced in court that
led to her erroneous decision and orders against the appellant.
4. The learned trial magistrate erred in law when she erroneously ordered
custody of only four children of the five to the petitioner, disregarding
the youngest.
 5. The trial magistrate erred in law and fact when she ordered all the
matrimonial property including their matrimonial home to be sold
without considering the welfare principle.

The judge in conclusion held that the appellant succeeded in four out of five
grounds of appeal raised. She accordingly allowed the appeal and made the
following orders, that:

i. The decision of the lower court to terminate the marriage between

the appellant and the respondent was set aside
ii. The marriage between the appellant and the respondent legally
subsists.
iii. Costs of the appellant were awarded to the appellant

3. Kayhul Vs Kayhul Divorce Cause No. 123/2016 [2020] before Justice

Godfrey Namundi

Brief facts

❖ The Petitioner petitioned court for dissolution of marriage which had

irretrievably broken down following the Respondents conduct of cutting
communication with Petitioner
❖ They started living in separate rooms with no communication.
❖ The Respondent stopped the Petitioner from visiting her country
Lesotho.
❖ This was a petition for divorce filed by Amelia Setai Kayhul against David
Kayhul for a decree that the marriage between her and the respondent
be dissolved and order as:

● That the custody of issues of the marriage Kayhul Carol, Kayhul Tracy
and Kayhul Patricia be granted to the Petitioner
● For sole custody of the issues of the marriage and the Respondent to be
given access.
 ● That the matrimonial property or any property acquired during this
marriage be shared equally to wit; land at Namulonge
● That the Respondent contributes Ug.shs 35,000,000/= towards the
construction of a house on the land at Namulonge
● That the Respondent pays costs and any incidental to this petition
● That any such further and other relief(s) in the premises as to the
Honorable Court may deem fit

The Petitioner and Respondent were married and they lived in Lesotho and
moved to Uganda in 2003 Then Petitioner and Respondent lived and cohabited
and they got three children Kayhul Carol, Kayhul Tracy and Kayhul Patricia.

Holding

The Judge accordingly made orders as follows:

● A Decree Nisi was thereby entered dissolving the marriage bewween the
Petitioner and the Respondent.
● The petitioner was granted Primary custody of the minors Kayhul Carol,
Kayhul Tracy and Kayhul Patrica with the Respondent having visitation
rights upon sufficient notice to the Petitioner.
● The Respondent shall provide maintenance of the children which
includeschool fees, clothing, medical, feeding and others
● The Petitioner and the Respondent shall share the land at Namulonge
equally
● The Respondent shall contribute Ug shs. 35,000,000/= towards the
construction of the house on the Petitioners share on the land at
Namulonge
● That being a family matter, the Judge made no order as to costs.

4. In the Matter of Twesiga (Infant) (Misc App No. 0004/2008) before

Justice Chigamoy Owiny-Dollo

Brief facts
Dawn and Dustin Pittman, (herein after the Applicants), nationals of the United
States of America (USA), are a married couple; and residents of 601 East Park
Street Olathe Kansas, 66061, USA. They moved the Court in an application
seeking an order vesting in them jointly, legal guardianship of one David
Twesige whose mother is Night Margaret; a Ugandan minor; and for the said
David Twesige to become a member of the Applicant’s family and live with
them at their home in the United States of America.

The application sought the courts order authorising the applicants to

thereafter pursue adoption proceedings in Uganda or USA with regard to David
Twesige.

The grounds are:

a. The said minor was in need of care and assistance that would provide for
his psychological, physical and educational needs.
b. The minor was at present under the care of his biological mother; who
lacks the means and capacity to adequately cater for the basic needs
and education of the minor.
c. The Applicants were desirous of formally taking up the parental
responsibility over the aforesaid minor; and to relocate the minor to the
USA to live with the Applicants; so as to effectively cater for his social,
educational, psychological and other need; which in the present
circumstances, the parent of the minor cannot afford
d. There was need to certify that there was no adverse claims with regard
to the child; and thereby enable the applicants take the child to live with
them in the USA

Holding

The Judge granted the order vesting in the Applicants, Dawn Pittman and
Dustin Pittman, jointly the legal guardianship of Twesiga David, and to exercise
the right to live with the said David Twesiga in the USA or any other place the
Applicants may be domiciled in. The grant of legal guardianship was made on
the following strict terms and conditions; that:-

❖ The grant of legal guardianship should be in force until the child had
attained the age of majority-18yrs
❖ The legal guardian shall have the right to live with the child in the USA or
any other place of their domicile
❖ The legal guardians should avail their addresses and contact to the
Registrar, High Court Fort Portal; the probation and social welfare officer
for Kabarole District; the ministry of Foreign Affairs Uganda, Kampala
and the Embassy of Uganda at Washington D.C. in the USA
❖ The legal guardians should submit a report on the child every six months
to the officials mentioned in (iii) immediately therein above.
❖ ChristAid Uganda should follow up the progress of the child; make
Independent periodic reports to the Registrar High Court Fort Portal and
the district Probation and welfare officer Kabarole
❖ The District probation and welfare officer kabarole should make similar
periodic reports to the Registrar High Court Fort Portal; of his findings
and information regarding the progress of the child.
❖ The legal guardians should ensure the child was accorded the
opportunity to come to Uganda at least once a year before attaining the
age of 18yrs
❖ Any application for the adoption of the child should be pursued in
Uganda

Applicants should meet the costs of the application

5. Sahabo Vs Kaneza (Misc App No. 524/2019) [2020] before

Justice Ketrah Kitariisibwa Katunguka

Brief facts

✔ The applicant and respondent are married in June, 2011and have one
child aged 7years, Stella Sahabo.
✔ The parties developed misunderstandings and separated
✔ After the separation the applicant obtained a court order from the
Magistrate’s Court wherein he and the respondent granted joint custody
 of the child staying with him during school term and in first term holiday
and then spending two school holidays with the respondent
✔ The respondent appealed the decision to the High Court
✔ The High Court granted joint custody to both parties but altered the
duration of physical custody of the child with the child spending school
time and half of the school holidays with the respondent and the
applicant spending half of the school holidays with the child
✔ The applicant will suffer substantial loss when the High Court order is
implemented as he will be deprived of time to bond with his daughter
✔ It is in the best interests of the child that the application is granted

Holding

The application was dismissed with costs to the Applicant as all grounds were
not satisfied.

Cases on Maintenance of Children

1. In Namukasa Vs Kakondere Divorce Cause No 30/2010 before Lady

Justice Eva Luswata

Brief facts

The Petition, Namukasa Joweria sought the following:

▪ The dissolution of her customary marriage to the Respondent.

▪ Custody and maintenance of for the four issue of the marriage
▪ A portion of the matrimonial wealth
▪ A claim to the property she obtained as an individual during the
marriage
▪ An order to protect her entitlements from interference by the
respondent
 ▪ Restraining order to protect her and the issue of the from physical
contact with the respondent
▪ An order of judicial separate

Grounds:

The Petitioner and Respondent were customarily married and they got four
children. The Petitioner complained of extreme physical and psychological
abuse by the Respondent which on many occasions resulted into serious
physical harm and eventual desertion by the respondent when he left the
matrimonial residence all allegations the Respondent denied.

Holding

The petition succeeded on all four issues and judgment was entered in favour
of the Petitioner on the following terms:

a. A Decree Nisi was granted dissolving the marriage between the

petitioner and respondent
b. Custody of children was granted to the petitioner
c. Matrimonial property was divided in the terms court set
d. The Petitioner should hand over to the respondent all the original
agreements of purchase for those properties granted to him within 14
days of that judgment
e. The respondent was directed to hand over to the petitioner all the goods
that were taken from the shop in Ntinda
f. A permanent injunction was issued restricting the respondent from
accessing any of the properties given to the petitioner, or having any
contactwith the petitioner or the children of the marriage until as
thereafter ordered. That order specifically restricted him from the
properties at Kiwatule and Nateete with effect from the date of that
judgment
g. Order No. 6 above with respect to the children should remain in force
for eighteen months from the date of the judgment. Should at the
expiration of that period the respondent require to visit the children or
 obtain access to them he should first go through the probation and
social welfare officer within the jurisdiction of their residence. That
officer should after such evaluation make a recommendation on
whether such access was suitable or not and whether it should be allow
with or without supervision.
h. The respondent permits the petitioner with protection of the police to
collect personal belongings remaining in the family’s residential house in
custody of the respondent
i. Costs of the petition were granted to the petitioner

2. In Wafula Vs Wanyoto & Anor (Civil Revision 17/2014) [2015] before

Justice Wilson Masalu Musene

Brief facts

▪ The Applicant brought an application bb Notice of Motion

▪ He sought Orders that the judgment, Decree and Orders made in the
family cause No. 291 of 201 be revised
▪ A declaration that the 2nd Respondent acted illegally and irregularly
when it indebted the Applicant’s account A/C N. 1035200642895 at
Equity Bank Katwe Branch with a sum of 150,000,000/=
▪ An Order to direct the Respondents jointly and severally to credit the
Applicant’s account with a sum of Ug. shs. 150,000,000/=
▪ Costs of the Application

Holding

Court dismissed the application and ordered that each side meets their own
costs given the circumstances of the case
 3. In Ayo Vs Ojambo (Family and Childrens Cause No. 28/1999) [2000]
before Hon Justice D.N. Maniraguha

Brief facts

● This was an application for maintenance and contribution order

● The applicant alleged that the respondent was the father of one David
Omollo born in 1977.
● From then to the present the applicant had had to spend on his school
fees, medical charges, school uniforms, scholastic materials, etc
expenditures all amounting to Ug. shs. 12,594,000/=.
● The respondent contributed only once in March, 1998 when he bought
Omollo clothes, beddings and paid school fees for two terms only.

Holding

Court held that the preliminary objection succeeded and the application was
struck out with costs to the respondent

4. In Basheija Vs Basheija & Anor (Divorce Cause No. 12/2005) [2013]

before Justice B. Kainamura

Brief facts

● The Petitioner contracted a marriage with the Respondent

● Previously the parties lived and cohabited together
● The Petitioner and the Respondent had five children to the marriage
● All the children were born out of the relationship between the Petitioner
and Respondent.
● On 17th June 2005, the Petitioner filed this petition against the
Respondent and Co-Respondent
● Sought dissolution of the marriage, custody of one child who was still a
minor
● Sharing of property equally, permanent alimony and costs of the suit

Grounds:
 a. Cruelty, desertion and adultery

Holding

The Judge applied the principles laid down by the Supreme Court to each
property in issue and divided properties in clusters. Courts held that it was
irrespective of whether the claimant proves that he or she contributed to the
acquisition of the said property either through direct monetary or non-
monetary contribution towards payment of the purchase price or mortgage
instalments or its development or indirectly through payment of other
household bills and other family requirement including child care and
maintenance and growing food for feeding family. Each party to meet its own
costs

5. Sutton Vs Sutton (Divorce Cause No. 63/2013) [2015] before Lady

Justice Persy Night Tuhaise

Brief facts

⮚ The Petitioner/Respondent (Nigel Sutton) and the Cross Petitioner

(Slowey Shauna Sutton) were married at St Mary Church Newton Forbes
County Lonford in the republic of Ireland
⮚ They cohabited in Uganda since 1995 and were blessed with two issues:
Ciara Kayleigh Sutton age 11yrs and Cian George Sutton aged 10yrs.
⮚ Slowey Shauna Sutton petitioned for Divorce against Nigel Sutton (cross
petitioner/respondent) and for a decree of dissolution of Marriage
⮚ An order of custody of the children of the marriage with visitation rights
to the respondent
⮚ An order maintaining the cross petitioners current financial contribution
towards maintenance
⮚ Alimony at Euros 1,500/= per month Costs of the petition
⮚ Sharing of property
⮚ Settlement of debts and costs
The petition was opposed by the cross petitioner who included a cross petition
in his reply to the petition. He prayed for:

⮚ Dissolution of marriage
⮚ Joint custody of the issues of the marriage
⮚ Order of maintaining his current financial contribution towards
maintenance and alimony at Euros 1,500/= per month
⮚ Costs of the petition

Holding

The Judge observed that the cross petitioners case had been proved to the
required standards and was satisfied that the cross petitioner had proved his
claim against the cross respondent to the required standards on all prayers.
The Judge accordingly entered judgment as prayed against the cross
respondent for the following orders:-

✔ A decree nisi was granted for the dissolution of the marriage between
the cross petitioner and the cross respondent
✔ The cross petitioner was granted joint custody together with the cross
respondent, of Ciara Kayleigh Sutton and Cian George Sutton, the two
issues of the marriage
✔ The cross petitioners payments of 1,500/= Euros per month to the cross
respondent towards maintenance and alimony should be maintained
✔ Costs of the cross petition were awarded to the cross petitioner

Cases on Adoption of Children

1. In Re: NS. (Adoption Cause No.1/2019) [2019] before Justice Dr. Joseph
Murangira

Brief facts
 ❖ The Petitioner was desirous of adopting the child, NS a female child
Ugandan, aged 22 (Twenty Two) months old under the provisions of the
children’s Act
❖ The Petitioner was a Canadian Citizen age 39 years currently residing in
Uganda since January 2018
❖ The Petitioner is a widow of the Late Jordon Burpee with whom she had
applied and was granted an order of custody for the child.
❖ The Petitioner and the husband have no biological children of their own,
but have previously adopted a son DHB, aged 4 years, from South Africa.
❖ The child, NS, had not been subject of an adoption order or of an
application order or an application or petition for an adoption order.
❖ The Petitioner had not received or agreed to receive and no person has
given or agreed to make or give to the petitioner any payment or reward
in consideration of the adoption of the child.
❖ The child, NS had been fostered by the Petitioner since February, 2018
where she has been providing all her necessities of life to date.
❖ On 9th March, 2018 a care order placing the child under the care of the
Petitioner was granted under the supervision of Mubende Probation and
Social Welfare Officer, report attached.

Holding

The Judge held that the petition had merit. He accordingly allowed the
following orders:-

a. The adoption was granted to the petitioner as prayed for in the petition
b. All rights, duties, obligations and liabilities of the parents and guardians
in relation to the welfare of the adopted child including but not limited
to maintenance, treatment, care, love and education of NS.
c. All rights to appoint a guardian and to consent or give consent to
marriage are extinguished and they vest in and will from then onwards
be exercised and enforced by against the adopter
d. The adoptive parent (petitioner)was at liberty to add their family name
of NS the adopted child
e. The petitioner should bear the costs of the application
 2. In Re: Victoria Babirye Namutosi (Adoption Cause No. 09/2017) [2018]
Before Hon Lady Justice Margaret Mutonyi

Brief facts

✔ This was a petition for adoption of the child Victtoria Babirye Namutosi
brought by Jonny Walters JR and Cheryl Ann Walters as Applicants. The
Petitioners are a couple and American Citizens, residents of 204 Holly
Chase, Piedmont, South Carolina. Johnny is 53 years old while Cheryl is
50 years old
✔ While in Uganda they reside at Bweya Sissa Sub County Wakiso District.
They are proud happy parents of four biological children and one foster
child. They are missionaries, who are gainfully employed and can afford
to raise the child. They have a home.
✔ The issues for this court’s resolution are whether the Applicants qualify
to adopt the child and whether the child is available for adoption

The petition sought orders as:-

1. An order for adoption of the child Victoria Babirye Namutosi bt Jonny

Walters Jr and Cheryl Ann Walters be made under the children’s act Cap
59 and the amendment act No. 9 of 2016
2. The costs of this petition be provided for by the petitioners
3. Such further and other Orders be made as the nature of the case may
require act The Petitioners are a couple and American Citizens. They are
residents of 204 Holly Chase, Piedmont, South Carolina and while in
Uganda reside at Bweya Sissa Sub County Wakiso District. Johnny is 53
years old while Cheryl is 50 years old. They are proud happy parents of
four biological children and one foster child. They are missionaries, who
are gainfully employed and can afford to raise the child. They have a
home. The issues for this court’s resolution are whether the Applicants
qualify to adopt the child and whether the child is available for adoption.

Holding
The Judge held that in the best interest of the child the Petition was allowed
with the following Orders:-

a. Johnny Walters Jr and Cheryl Ann Walters were appointed the adoptive
parents of the child Babirye Victoria Namutosi and the relationship of
parents was established with all rights and privileges incident thereto
including the right of inheritance of the property of adoptive parents.
b. Given the special circumstances of the case, the adoption should be
open with Adoptive parents keeping in touch with children safe Uganda
for purposes of exchanging photographs, emails, whatsapp messages
updating them about the condition of the child for the information of
the birth of parents and informing the child about her family provided
such information is not stressful to the child
c. For avoidance of the parental rights of having exclusive care, custody,
and control of the child Victoria and parental responsibilities for her
maintenance, education, medical care previously with the biological
parents was extinguished and vested in the adoptive parents.
d. The Registrar General of Births and Deaths was thereby directed to
make an entry recording the particulars of this adoption in Adopted
Children Register and to issue a Certificate to Babirye Victoria Namutosi
reflecting the parents relationship established.
e. Adoptive parents were at liberty to add their family name to the child’s
name.
f. The Adoption Order should be furnished to the Consular Department in
the Ministry of Foreign Affairs and Permanent Secretary Ministry of
Gender, Labor and Social Development
g. Costs of that Petition should be borne by the Petitioners

3. In Re: Birabwa Mutaka (Adoption Cause No. 14/2018) before Hon Lady
Justice Eva Luswata

Brief facts

✔ The Applicants, Jonathan Patrick McLeod and Mary Frances Chrisman,

United States of America nationals
 ✔ Was a married couple residing at Plot 15 Kisinja Road in Jinja District.
✔ They sought an order for the adoption of BIRABWA MUTAKA, the child.
✔ Order for costs.

Grounds:

a. The father of the child, Fred Lule was unable to take care of her and the
whereabouts of the mother were unknown. The biological father had
consented to that application and irrevocably released the child to the
applicants
b. The child had been under foster care and custody of the applicants since
November 2015 and they had since then been meeting her material,
physical, emotional, medical and spiritual needs.
c. The Social Welfare Officer of Jinja had recommended the applicants as
suitable adoptive parents and the adoption would be in the child’s best
interests
d. The applicants had no criminal record and are financially stable with
capacity to meet the child’s needs

Holding

Court held that the applicants had fulfilled the requirement of interlocutory
adoption under the Act that the welfare of the child would best be served if
she lived with the applicants as their adopted daughter and thus allowed the
application and made the following orders:-

(i) The two applicants JONATHAN PATRICK MCCLEOD and MARY

FRANCES MCLEOD were jointly granted an adoption order with
respect to the child BIRABWA MUTAKA
(ii) The applicants were allowed to travel with the child to the USA or
other place they may choose to reside in order for them to fulfill their
obligations as adoptive parents.
(iii) The applicants should register that order with Uganda Registration
Services Bureau, Ministry of justice and Constitutional Affairs within
seven (7) days from the date of their appointment as adoptive
parents.
 (iv) The applicant should furnish the American Embassy in Uganda with a
copy of that order within thirty (30) days thereof
(v) The applicants should file with the Deputy Registrar of that Court at
least once every three years (until the child attains the age of 18
years), a report showing her progress
(vi) The applicants should meet the costs of that application.

4. In Re: Katumba Francis & Nakitende Jenny (Infants Adoption Cause No.
16/2018)

Brief facts

● The petitioners are American citizens legally married.

● The petitioners have no biological children and are employed in the USA
as a special needs education teacher and independent real estate agent
respectively.
● The petitioners have no blood relation with the children.
● They came to learn about the children’s situation through M/s Life
Adoption Services, an American adoption agency which has a working
relationship with M/s Welcome Home Ministries Africa (the Home) in
which the children were housed.
● They claim to have fostered both children since 5.7.2016 at the end of
which period they made the decision to apply for adoption.
● The children who are resident in Uganda at the Home are not in actual
custody of either petitioner.
● However, they claim to have de facto custody by virtue of foster care
placement orders granted by the Probation and Social Welfare Officer,
Jinja District (the PSWO)
● They have since July 2016 taken over full responsibility for the children’s
material and educational needs and visited them numerous times in
Uganda.
● Owing to difficulty of leaving their jobs in the USA, on 11/7/2016 the
petitioners appointed Mr. William Edema as their attorney to look after
the children in their absence.
Grounds for adoption

For child Katumba

Katumba from evidenc was born on 10.2.2013 to Ali Konde Ssekitoleko and
late Mbabazi Farida who died soon after Katumba’s birth. Konde singly carried
on with his care with some assistance from Katumba Francis his father. LATER
Tusaba Mariam the childs grandmother to over the caring role for about four
months. After he found the child severely malnourished, Konde was forced to
retrieve him. He was advised and got recommendation from LCI Chairperson
Wakisi I in Buikwe District and the PSWO, he entrusted the child with the care
home on 27.6.2014 and commuted to the home on 22.12.2015 through a care
Order of the Bugembe Magistrates Court

✔ The petitioners have fulfilled the legal requirement of adopting a child in

Uganda
✔ The child is a part orphan with only a living father who is unable and
unwilling to care of him
✔ The child has been under the foster care of the petitioners since
5.7.2016 who still wish to continue providing for him all parent care and
all necessities for his welfare
✔ No local Ugandan family has shown interest in fostering or adopting the
child
✔ The petitioners intend to travel to the USA or other place where they
live or work and need proper authorization to travel with the child.
✔ The adoption is in the best interest of the child

For Child Nakitende

Born to Bwamuli Mohamed and Nalyanzi Harriet on 29.3.2010. Parents

struggled financially eventually separated and the mother disappeared for
good. The for sometime was entrusted with Namakula Zauja her paternal aunt
who due to financial constraints handed over to a home after recommendation
from the LCI Chairperson of Masese I, Jinja and the PSWO. It was confirmed
from records that the child was admitted into the home on 6.4.2011, and
commutal granted on 7.10.11 by care Order of Bugembe Magistrates Court.

✔ The petitioners have fulfilled the legal requirement of adopting a child in

Uganda
✔ The child is a part orphan with only a living father who is unable and
unwilling to care of him
✔ The child has been under the foster care of the petitioners since
5.7.2016 who still wish to continue providing for him all parent care and
all necessities for his welfare
✔ No local Ugandan family has shown interest in fostering or adopting the
child
✔ The petitioners intend to travel to the USA or other place where they
live or work and need proper authorization to travel with the child.
✔ The adoption is in the best interest of the child

Holding

The Judge accordingly declined to allow the application and the children were
to continue to reside at the Welcome Home Ministries of Africa or any other
appropriate and legally recognised institution that the Home may refer them
to. The Court did not take away any parental responsibilities that the
applicants may have under the foster care placement. They therefore could
continue to love, care and support those children. The applicants should meet
the costs of the two consolidated applications

5. In Re: Kyakutwika Patrick & Muyaya Jackson (Infants) (Adoption Cause

No.18/2018) before Lady Justice Eva Luswata

Brief facts
 ● Patricia Campos Domenech aged 40 years is a Spanish national, who was
a resident of Maunalao Avenue, Honolulu Hawai in the USA the
petitioner filed the petition seeking an order to adopt KYAKUTWIKA
PATRICK & MUYAYA JACKSON.
● The children were born to Robert Kyakutwika and Nakisuyi Rebecca who
had a relationship and lived together for three and a half years from
2006.
● In their affidavits, both Robert and Rebecca recounted a tumultuous
relationship ending in their acrimonious separation.
● Rebecca left, found a new partner and lived with the younger child for a
few years.
● She was forced to return him when Robert insulted her new partner who
ordered the child out of their home.
● She confessed that she has never seen both children since she returned
Patrick to his father.
● Patrick Kyakutuwa the children’s grandfather confirmed that account
stating that the child Patrick was returned and abandoned at his house
when he was only two and a half years old.
● He was specific that his son, their father was too poor and lacked the
means to support them.

Holding

The court was persuaded to grant the adoption order in favour of the
petitioner as it was in the best interests of the said children and accordingly
allowed the application on the following orders:

a. The petitioner PATRICIA CAMPOS DOMENECH was granted an order of

adoption in respect of the children KYAKUTWIKA PATRICK and MUYAYA
JACKSON
b. The petitioner may travel with the children to the Kingdom of Spain, USA
or any other part of the world in order to fulfill her obligations as an
adoptive parent
c. Court directed that the registrar of Births and Deaths makes an entry
recording that adoption in the Adopted Children Register
 d. Court directed that that adoption be furnished to the consular
department in the Ministry of Foreign Affairs at Kampala and at the
Ministry of Gender, Labor and Social development in Kampala
e. The petitioner should meet the costs of that application

Cases on Guardianship of Children

1. In Re: Tebulotwa Agnes & Nakubulwa Norah Sebunya (Family Cause

No. 149/2016) before Hon Lady Justice Persy Night Tuhaise

Brief facts

⮚ It was an application for legal guardianship brought by notice of motion

ex parte, under Articles 139(1) of the Constitution; sections 14, 33 & 39
of the Judicature Act, cap 13; and section 3 of the Children Act cap 59.
⮚ The applicants were sought orders that the honorable court appoints
them legal guardians of Tebulotwa Agnes Sebunya (aged 8yrs) and
Nakubulwa Norah Sebunya (aged 5yrs)

Grounds:

a. The infants were issues of Namakula Nur and the late Eriya Sebynya
Bugembe
b. The infants father died on 17th October 2014
c. The infants were entitled to a share the deceased and were beneficial
owners of various properties listed in the application
d. In order to safeguard their interests, it was necessary to appoint the
applicants as legal guardians to act on their behalf
e. It was for the best interests of the infants

Holding

Court allowed the application and thereafter made the following orders:-

a. The 1st respondent Namakula Nur was appointed legal guardian of

Tebulotwa Agnes Sebunya and Nakubulwa Norah Sebunya
 b. Costs of the application would be met by the applicant

2. In the matter of Kyeswa (Minor until 2030) Batwawula (Minor until

2027) & Sebaduka (Minor until 2024) (Family Cause & Children Cause
No.32/2018) Hon Lady Justice Margaret Mutonyi

Brief facts

✔ The applicant was the biological father of all the four minors who are the
subject matter of this Application
✔ The children’s father (Applicant) lawfully purchased land and registered
it in the names of two children Luke Thomas Kyeswa and Sebaduka
Theodore Walcot and Sebaduka Theodore Walcot
✔ He now sought for an order of the court to enable him evenly share the
said properties amongst all three of his children as the share meant for
Jane Imelda Zoe Batwawula was erroneously transferred by the land
office to Luke Thomas Kyeswa who already has his share in the same
estate.
✔ It is this error that he sought to rectify with the order and authorization
of this court.

Sought for:

❖ Guardianship Order be granted to the Applicant KITENDA JOHN to

enable the transfer and Registration of Kyagwe Block 166 Plot 1961 land
at Nsube from Sebaduka Thoegore Walcot (minor till 2024) to his
brother LIKE THOMAS KYESWA (MINOR UNTIL 2030)
❖ Such oreders court may deem fit to grant

Holding

Court held that it was satisfied with the grounds for the application. The
application was granted with the following Orders:
(i) A guardianship order was granted to JOHN KITENDA in respect of LIKE
THOMAS KYESWA, SEBADUKA THEODORE and JANE IMELDA
BATWAWULA
 (ii) JOHN KITENDA was authorized to secure the transfer and registration
of Kyegwa Block 166 Plot 1961 land at Nsube from LIKE THOMAS
KYESWA (MINOR UNTIL 2030) to his sister JANE IMELDA ZOE
BATWAWULA (MINOR TILL 2027) and Kygwe Block 166 3210 land at
Nsube from SEBADUKA THEODORE WALCOT (MINOR UNTIL 2024) to
his brother LUKE THOMAS KYESWA (MINOR UNTIL 2030)
(iii) JOHN KITENDA was to file the relevant copies of the executed
transfers and other relevant documents with the Registrar of that
court within 3 months of that execution.
(iv) That Guardianship Order was limited to the transfers in that
application and should lapse upon execution of the said transfers or
the minors therein attaining maturity age whichever was earlier.

3. In the matter of an Application For Legal Guardianship By Michael Cane

Icardi Jr. & Laura Jean Icardi (Family & Children Cause No. 02/2016)
before Dr Flavian Zeija

Brief facts

● The applicants were United States Citizens and are married.

● They have two Biological children, i.e. Ella Jane and Michael Cane, Jr.
● Michael was gainfully employed with Innovative Emergency
Management (IEM) as manager, Urban Area Preparedness since 2008.
● Laura was a stay at home mother and a home school teacher for her
children.
● She enjoys taking care of the children and they have a home that can
accommodate an additional child.
● They are also financially stable.
● The child in question was named Kisakye Emanuel. He was named by the
police upon being presented to the police Child and Family Protection
unit.
● The child is aged 2 years and 4 months and was abandoned at the house
belonging to Mrs Tebunakya Edith.
● A lady believed to be the biological mother of the child on the morning
of 17th April 2014 came to the restaurant and requested Edith to allow
her put her child to sleep in her sitting room on one of the chairs.
 ● Edith accepted but instead allowed her to put the child in one of the
bedrooms.
● The child looked malnourished and the mother was covering him all the
time.
● Shortly after, she said she had a patient to see in the hospital and left
and Edith did not anticipate that she would not return, she did not
return.
● Edith tried to trace the mother of the child in the hospital after the child
woke up but in vain.
● Edith reported the child to police the police handed over the child to The
Probation and Welfare Officer who in turn handed over the child to
Okoa Refuge.
● No claimant has surfaced to claim the child.

Orders sought were:-

(i) The applicants Michael Cane Icardi, Jr and Laura Jean Icardi be
appointed Legal Guardians of the child Emmanuel Kisakye
(ii) The applicants be permitted to travel with the child outside Uganda
to fulfill their parental responsibility and complete the adoption
process in the USA
(iii) Costs of the application be provided for

Holding

Court held that it was satisfied that it was in the infants’ best interests to grant
rather than refuse the application. What the child needed was a home, and
tender loving care from parents as no one understood the life of living in a
home that is not a home. Thus, to insulate the child against the unknown, the
Judge made orders as:-

a. Michael Cane Icardi JR and Laura Jean Icardi were thereby appointed
Guardians to the child Emmanuel Kisakye
b. The applicants were thereby permitted to travel with the child to the
USA to complete the adoption proceedings there
 c. The applicants were authorized to obtain a Uganda Passport for the
child to enable her travel out of the country
d. BY the order, the biological parents if still alive, of the child do thereby
lose parental rights over that child under all circumstances
e. The applicants should register that order with the United States Embassy
in Kampala and the office responsible for children and family welfare in
their home State
f. The applicants should register this order with the Registration Services
Bureau in Kampala and Interpol office in Kampala
g. The applicants should file annual reports about the development of the
child to the Ugandan Embassy in the USA by any means whether
electronic or otherwise until the child is 18yrs

The applicant should pay the costs of the application

4. In Re: Onen Cliff Mills & Laker Joy Onen (Minor) (Misc. Appl.
No.22/2018) [2018] before Hon Justice Mubiru

Brief facts

This was an ex-parte application for Legal Guardianship of a six-year-old boy-

child Onen Cliff Mills and a seventeen-year-old girl-child, Laker Joy Onen, made
by their biological mother, Ms. Akello Lucy made by way of notice on motion.

Holding
Hon Justice Stephen Mubiru. J relying on (Re L Care: Threshold Criteria) held
that the guardian takes full legal and physical custody of the child and make all
the decisions about the physical care of the child that a parent would make.
Costs of the application to be paid

5. In Re Kemigisha & Anor (Family Cause No. 107/2014) [2014] before

Lady Justice Persy Night Tuhaise

Brief facts

❖ This was an application for legal guardianship brought by notice of

motion under section 14 of the Judicature Act, cap 13; sections 3(1, 2 &
 5) of the Children Act cap 59, section 98 of the Civil Procedure Act cap
71; and Order 52 rules 1 & 3 of the Civil Procedure Rules
❖ The applicant was seeking to be appointed the legal guardian of the
infant Kemigisha Savannah Kimberly Rwabajungu
❖ That the infant Kemigisha Savannah Kimberly Rwabajungu be allowed to
travel/immigrate to Canberra, Australia with the applicant.

The applicant sought the following orders from court:-

(i) The applicant be appointed legal guardian of the infant Kemigisha

Savannah Rwabajungu
(ii) The infant Kemigisha Svannah Kimberly Rwabajungu be allowed to
travel/immigrate to Canberra, Australia with the applicant
(iii) Costs of the application be borne by the applicant

Grounds of the application

a. The applicant was a maternal grandmother of the infant and the infant
was a Ugandan citizen aged 18years
b. The applicant had been living with the infant at her flat in Bugolobi Flats
and had been in charge of paying school fees for the infant since she
enrolled to start primary at Kampala Parents School and she had been
catering for all the infants welfare needs
c. The applicant had been posted to Uganda High Commission Canberra,
Australia as an administrative Attaché whereat she desired to continue
living with and catering for the infants education and other welfare
needs hence the need to travel with the infant
d. It was a requirement of the Australian authorities for the applicant to be
guardian of the infant to enter Australia with her
e. The biological mother and father of the infant were Ugandan citizens
and their consent to the grant of the order and travel of the infant with
the applicant had been sought and obtained
f. The infant already possessed a Ugandan Passport
g. The application was for the welfare and benefit of the infant
h. The application was urgent
i. It was in the interest of justice to grant the application
Holding
The court held that since the applicant had been living with the infant at the
consent of the parents, it was an appropriate case where guardianship should
not be refused as it will be in her best interests to allow the child to continue
living with her grandmother. It was accordingly orders on terms considered fit
for the welfare of the child as:-

(i) The applicant was appointed legal ,guardian of the

infant Kemigisha Savannah Kimberly Rwabajungu
(ii) The infant was allowed to travel/immigrate to
Canberra, Australia with the applicant
(iii) The legal guardian should submit once a year,
photographs and a report on the state of health,
progress and welfare of the child to the Registrar,
Family Division of the High Court at Kampala until
she attains 18years or until directed otherwise
(iv) The Registrar of the High Court should furnish a
copy of the orders in that ruling together with the
address of the legal guardian in Australia to the
Ministry of Foreign Affairs in Kampala and the
Ministry of Justice and Constitutional affairs of
Uganda
(v) The legal guardian should immediately
communicate any changes of addresses to the
authorities mentioned above
(vi) Costs of the application would be borne by the
applicant

The cases on Other Court orders for Children

 1. Re: Peter Sebuliba alias Namansa James (Misc Cause No. 37/2009)
before Lady JusticeIrene Mulyangonja Kakooza

Brief facts

● The applicant sought for a writ of habeas corpus against one Victoria
Kalungi Namakonzi who was holding the infant pursuant to an adoption
order that had been issued by the Chief Magistrate at Jinja.
● Victoria Kalungi Namakonzi was a sister-in-law to the infant’s father.
● The main ground for the application was that the adoption order had
been procured fraudulently because Victoria Kalungi did not obtain the
consent of the child’s mother (his only surviving parent) before obtaining
the order.
● The continued denial of the opportunity for the child to live with his
biological mother was not only unlawful but unconstitutional

Holding
The Court held that there was a possibility basing on the facts adduced that
the courts had unwittingly been led to participate in a subtle kind of child
trafficking whose proportions had not yet been established and had no
alternative but to make the following orders:-

a. The adoption order that was granted to Ms. Victoria Kalungi Namakonzi
on 30.04.2009 in respect of Peter Sebuliba, alias James Namansa was
thereby set aside
b. The Probation and Social Welfare Officer who participated in the process
and made the report to the lower court, Mr Opio Ouma should take
charge of the process of ensuring that the child was re united with his
biological mother
c. Victoria Karungi Namakonzi and Nalule Prossy will cooperate with the
Probation and Social Welfare Officer to facilitate that transition by
supporting the child to form a bond with his biological mother
d. All parties involved should behave in a civil manner towards each other
to enable the child to make that difficult transition into his future
 e. Mr. Opio Ouma should submit quarterly reports to that court about the
process of re integrating the child into his natural family for a period of
one year, the first of such reports to be submitted by the 3.09.2010
f. No order as to the costs so as to facilitate the spirit of cooperation that
was required to help the child make the transition back into his
biological family

2. Ayiko Vs Lekuru (Divorce Cause No. 01/2015) [2017] before Hon Justice
Stephen Mubiru

Brief facts

❖ The petitioner met the respondent towards the end of the year 2009
and they began dating.
❖ After sometime the respondent moved in with the petitioner and they
began cohabiting at the petitioner’s family house in Anyafoi East Arua
Mun.
❖ On 14th February, 2009 the two underwent an Islamic traditional Nikah
ceremony
❖ Later they moved into the petitioner’s brother’s house.
❖ At the time they began dating, the respondent was expecting another
man’s child.
❖ On 13th October 2009 she was delivered of that child but attributed
paternity to the petitioner in the relevant medical records.
❖ On 2nd December, 2009 they underwent a civil marriage at the office of
the Chief Administrative Officer of Arua District
❖ He needed a marriage certificate for immigration purposes
❖ Their relationship henceforth suffered many set-backs.
❖ The petitioner later discovered the baby was not his but rather was
fathered by an unnamed doctor at Arua Hospital.
❖ On her part, she stated that their marriage became troubled due to the
interference of her in-laws who thought she was not fit for their son.
❖ They would insult her and call her a prostitute.
❖ One day when she went to the petitioner’s family house in Anyafio East,
she found her husband with another woman by the name Emily.
 ❖ One night in 2010 at their matrimonial home at Plot 3 or 4 in Jerekede
Avenue, he found her husband in compromising situation after midnight
in the boys’ quarters, kissing Mildred, one of the Kenyan female guests
they had hosted.
❖ She deserted the home
❖ During the period of her desertion of the home, the petitioner asked her
to give him custody of the child and she obliged him.
❖ He found a school for the child in Entebbe and henceforth paid school
fees for the child. Both parties want the marriage dissolved.

Holding

Court dissolved the marriage and ordered the following in the final result:-

1. A Decree Nisi for the dissolution of the marriage between the petitioner
and the respondent thereby issued
2. As her fair share of the matrimonial property, the respondent was to
take the land at Jiako Village, Vurra County in Arua District
3. The petitioner was to pay the respondent half the confirmed value of
the matrimonial home at Jerekede Avenue, Anyafio in Arua, within six
months of the filing of the valuation report in that court by a valuer
appointed by the Assistant Registrar of that Court
4. The petitioner was to pay the respondent alimony in a lump sum of shs.
20,000,000/= within a period of three months from the day the decree
absolute declaring that marriage finally dissolved was issued
5. The costs of that petition were awarded to the respondent

3. In the matter of Yambuka (patient) (Misc Appl No. 40/2018) before

Hon. Lady Justice Olive Kazaarwe Mukwaya

Brief facts

● This was an ex parte application brought by Kyeyune James for an order

that he be appointed a manager to administer the estate of the patient ,
his biological brother Yambuka Emmanuel.
 ● In this application the patient Yambuka Emmanuel suffers from a mental
health condition called Major Depression since 2015.
● Medical treatment notes submitted indicate that he has been on
treatment since December 2015 and currently undergoing Chermal
treatment and Psychotherapy to date.
● The applicant wishes to take care of the patient, the patient’s children,
most of whom are still minors and to manage his entire estate including
looking after the patient’s current fiancée, Nambalirwa Allen.

Issues for determination:-

1. Whether the patient was a person of unsound mind?

2. Whether the applicant qualified to appointed manager of his estate?

Holding

The court found no reason not to grant the wishes of the patient and in order
to protect the rights of the patient, court made the following orders:-

(i) The patient, Yambuka Emmanuel was adjudged to be of unsound

mind
(ii) The applicant Kyeyune James was appointed manager of the patients
estate

4. In Re: Kambale (Infant) (Family & Children Cause No. 03/2018) [2019]
befre His Lordship Mr. Wilson Masalu Musene

Brief facts

⮚ The Petitioners, Jacob Daniel Hanks, 30 years and Stephanie Mauvyln

Braun-Hanks 31 years are both American citizens.
⮚ They are married and Jacob is employed as a Human Services Specialist
by the Mecklenburg County Department of Social Services and also
works part-time with Home Depot while Stephanie is a home maker.
 ⮚ The Petitioners do not have any criminal record in Uganda or anywhere
else.
⮚ The Petitioners have been providing for the Child’s needs for 4 years
now and all his medical bills.
⮚ The child Kambale Moses aged 12 years was born to Olanya John Bosco
and Kabugho Faith now deceased
⮚ Was currently under the care and custody of Kiiza George who was
granted a care order by the Magistrates Court of Kajjansi
⮚ George Kiiza is a friend of the Petitioners who met in 2013 while they
had come for missionary work and travelled with him to Fair Earth
Human Wellness Foundation a community-based organization in Kasese
to install a water harvesting system.
⮚ The petitioners developed an interest in the child and wished to foster
the child with the view of adoption
⮚ George confirmed that the relatives had failed to look after the child and
his mother had died in July 2009.
⮚ The grandmother upon learning about the petitioners’ desire to adopt
the child she consented willingly.
Orders Sought:-
1. Jacob Hanks and Stephanie Mauvyln Braun-Hanks be appointed adoptive
parents of the child Moses Kambale
2. That the Honorable court waives the statutory requirement for 21 year
age difference between the petitioners and the child
3. That the statutory requirement for 1 year stay and fostering period be
waived
4. The family name ‘Hanks’ be added onto the child’s name
5. Any order deemed necessary
Issues for resolution:-
a. Whether the petitioners are eligible to adopt the children?
b. Whether it is in the child’s best interest that the order of adoption is
granted to the petitioners?
Holding
The court found petitioners as suitable adoptive parents to the child Kambale
Moses and in the best interest of the child the petition was allowed with
orders as:-
1. Jacob Hanks and Stephanie Mauvyln Braun-Hanks be appointed adoptive
parents of the child Moses Kambale
2. That the honorable court waives the statutory requirement for 21 year
age difference between the petitioners and the child
3. That the statutory requirement for 1 year stay and fostering period be
waived
4. The family name ‘Hanks’ be added onto the child’s name
5. The Adoption Order should be furnished to the Consular Department in
the Ministry of Foreign Affairs and Permanent Secretary Ministry of
Gender, Labor and Social Development
6. Costs of the application petition should be borne be the petitioners

5. In Re: Ssekitoleko Ibrahim & 2 Others (Family Cause No. 22/2018)

[2019] before Hon. Lady Justice Ketrah Kitariisibwa Katunguka

Brief facts
❖ The minors were half orphans their father passed away in November
2012
❖ That the applicant, Sophie Nabwire was the biological mother of the
children and caters for all their needs
❖ The father of the children died intestate and his property including the
suit land devolved onto his widow, the applicant and his children;
❖ The land that was the subject of the application is now owned by the
applicant, jointly with the minors and their adult siblings
❖ The applicant obtained Letters of Administration and subsequently
transferred the suit land into hers and the children’s names;
❖ In the interest of the children the applicant had decided to sell the suit
property to get money to buy a more profitable piece of land for the
children which will not be interfered with by paternal relatives who are
allegedly laying claim on the suit property
Issues for resolution:-
 a. Whether that court has jurisdiction to entertain this matter?
b. Whether it is the best interest of the children that the applicant is
granted a guardianship order?
Holding
Court granted the application and thereby made the following orders:-
1. Ms. Sophia Nabwire was thereby appointed legal guardian of Sekitoleko
Ibrahim, Kabuka Imran, and Kafeero Sharif
2. Ms Sophia Nabwire was allowed to deal with the children’s land situated
in Mbuya II parish Zone 1 Nakawa Divison, Kampala District
3. Ms. Sophia Nabwire should ensure to source the services of a registered
valuer prior to the sale of the children’s land situated Mbuya II parish
Zone 1 Nakawa Divison, Kampala District and establish the current value
of that property to ensure that the land to be purchased was of high
value than the suit land
4. Ms. Sophia Nabwire should ensure that the interests of the minors are
always reflected in the property documents, any land and anything
bought with proceeds of the sale of the suit property and should ensure
that the minors property reverts to them when they reach the age of
majority
5. That the applicant should bear the costs of the application

BIBLIOGRAPHY
Statutes used
1) The 1995 Constitution of Uganda
2) The Children Act. Cap 59
3) Succession Act. Cap 162
4) Marriage Act. Cap 251
5) Divorce Act. Cap 249
6) The Administration of Estates (Small Estates)(Special Provisions) Act.
Cap 156
7) The Administration of Estates of Persons of Unsound Mind. Cap 155
8) Children (family and Children court) rules
Books used

a. P.M. Bromley and N.V. Lowe, (1992) Bromley’s Family Law,

Butterworth & Co Ltd.
b. Masson, Bailey-Harris and Probert, Cretney’s (2008) Principles of
Family Law (8th ed