THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

I-AND DIVISION

MISC. APPLICATION NO. 546 OF 2023

ARISING FROM CIVL SUIT NO. 802 OF 2016

1. KABUGOJOHN
2. LUKWAGOGODFREY
3. ROSETTE MUSOKE
4. I-ATIMAMUGERWA APPLICANTS

\.ERSUS

1, JJUMBA RONAID
2. JUSTINE MUYANJA KAFEERO
(Administrator of latc Frcd Kafccro) RESPONDENTS

AND

3. TEOPHIL SEMUYINDE
4. SUZAN NAMUDDU
5. THE REGISTRAR OF TITLES RESPONDENTS.

BEFORE HON. LADY JUSTICE FLA\'IA NASSUNA MATOVU

RULING

1 This application was brought under thc provisions of S.98 of the Civil
Irroccdure Act, and 0. 1 rt 1,3,10 and 13 of the Civil Procedurc llulcs. It was
seeking fot otdcts that IJCCS. No. 802 of 2016 bc amended to add the
applicants as defendants to the sult. Further that the 1" and 2'd Respondents

1,
 be directed to ser.ve thc applicants with the plaint and summons to Iile defense

to enable them file their written statement of dcfense and that cosm of the
applicatiofl be provided fot. It of motion which was
was brought by notice
-Ihe g-rounds of the
supported by an affidavit swom by the 1"' aPplicant.
application were laid in thc notice o[ motion and affidavit in support. Briefly
the grounds were that;
a) The applicants are sons and daughter of latc Ssczi Musoke who died in
February 1999.
b) That the iate Ssezi Musoke died intestate in rcspect of the suit propcrty to wit
land comprised in Kibuga Block 5 plots 1298 ar,d 1299 at I(alerwe and

I(yaddondo Blo ck 222 plo r 221 .

c) The 3'd tespondent had illcgally and unlawfully transfcrred land comprised in

Kibuga Block 5 plot 1298 into thc names of thc 1"'respondent.

d) The 1st and 2nd respondent filed IIIICS. No. 802 0f 201,6 against the 3'd and

5'h rcspondents claiming interest in the suit propcrties whercas they havc
n()nc.

e) The applicants as sons and daughtcr havc an interest in the said property and

the ordcrs sought by the 1"' and 2"d rcspondcnt in the main suit if granted will

affect their interest in the said propcrty.

f) Atlowing thc amendment will hclp the court to determine rights and intcrests
of all affected parties and it would not ptciudice the tcspondcnts in any way.

2. 'fhe 3ra , {th and 5'h rcspondents did not filc any affidavit in reply to this
application. Howevet, thc 1" and 2"d respondents filed an affidavit in reply
which was sworfl by thc 2"d respondent by which they called upon this coutt
to dismiss the application with costs. Briefly thcy maintaincd tlat;
a) They wcre widow and son to latc Fred I(afccro,who was son to late Ssezi

Musokc.

2
 b) By wil dated 18/1.1/1995 the late Ssezi Musokc bcqucathcd the suit
properties to the late Fred I(afccro and it is therefore not true that late Ssezi
Musoke died intestate in relation to these ptoperties.
c) The said will was proved in court and one I(muli Christopher together with
the 3'd respondent were granted probate to the estate of late Ssezi Musoke on
26'h August 2003.

d) By judgement dated 27/5/2014, in respect of HHCS. No.6 /2009, the 3'd

respondent who was the surwiving administrator was ordered to file inventory
and account of Ssezi Musoke's estate withifl thtee months from the date of
judgment.

e) The 3'd respondcnt consequendy distributed thc estate amongst all the
bcneficiaries in accordance vdth the will.

I The applicants have no interest in the suit property and should not be ioined
as parties to the case.

3. Backgtound:

Sometime in Novcmbct, 2016, thc 1" and 2"d Rcspondcnts hlcd I{CCS No. 802 of
2016 against the 3'd, 4d' and 5'r' Rcspondents. Thc said suit was prcmised on trespass

and ftauduicnt dealings in relation to land comprised in I(buga Block 5 Plots 1298

and 1,299 at Mulago - I(alerwc, and I(yadondo l\lock 222 Plot 2664 at Namugongo.
This land formed part of thc cstatc of thc latc Ssczi Musokc Ssalongo who died in
i 999. They institutcd thc suit as bencficiary and Administratot of the late Fred
Kafeero who was a bencficiary in the estate of thc latc Ssezi Musoke Ssalongo.

The Applicants filcd this application secking to bc addcd as defendants to I ICCS.

No. 802 of 2016 basing on the fact that they atc also bcncficiaries in the cstatc of
the late Ssezi Musokc Ssalongo which cstatc had not been rcprescnted in the said
s ul1

3
The applicants contended that the suit property formcd pat of the estate of thc late
Ssezi Musoke Ssalongo and they as bcncficiaries had an intere st in thc samc and

that a dupl.icity of suits will arise if thcy are not added as partics to the suit.

4. The issues to be decided by court arc;

a) Whether thc applicants havc any interest in the suit proPerty and if so

whethcr they should be added as partics (defcndants) to Civil Suit No. 802
of 2076
b) \Xlhat are the remedies available to the parties?

5. Submissions of Counscl:

Both parties filed writtcn submissions which I havc carcfu1ly studied togcther with

pleadings and thc entirc record o[ procecdings.

Briefly counsel for the applicants submitted that the 1" and 2'd Respondents do not
havc an interest in thc suit land. That court should bc guided by Section 92 of the

Succession Act which provides that if a legatcc does not survive thc tcstator, then
the property should revert back to the cstatc. 'Ihat Ordet i rule 10 of the Civil
Procedure Rules allows Court to add parties to a suit at any stage of the ptoceedings
if the party's presence is neccssary for court to effectually adiudicatc or sctde any
qucstions in a suit before it.

Counscl also citcd thc case of Lenard Pricc v. Andrcw Muwonge & Anor; Misc.
App. No. 5l of 2020 wherc it was hcld that lor court to add a party to a suit, it
should bc convinccd that the orders sought by the patics will legally affect the
interest of the person and that it is dcsirable for the pctson to be lcgally joined to
avoid a multiplicity of suits. 'fhat thc Applicants havc an intcrcst in thc cstatc of thc
late Ssezi Musoke and that the outcomc of Civil Suit No. tl02 ol 201' 6 will have a

beating on their iflterests.

4
Counsel for the 1st afld 2!rd Rcspondcnts on thc othcr hand submittcd that thc
appl-icants had no intetcst in thc suit propertics and should not bc ioincd as parties

to thc case. Ilc cited the case case of Samson Scmpasa v. P.K Sengendo High
Court Misc. App. No. 577 of 2013 where it was hcld "ft is a fundamental
consideration that befote a person can be joined as a party, it must be
established that the pany has high interest in the casc". -fhat all thc
beneficiaries of thc latc Ssezi Musoke got thcir share as pcr the will savc for the share

that was meant for the late Fred I(afeero, and thctcfotc, thc applicants havc no
interest in thc suit propcrty.

That the codicil being rcLicd upon by the applicants to infer thc bequcst that was

madc to Fred I(afeero reverted back to the estate of thc late Ssezi Musoke vzas

invalidated in Civil Suit No. 532of 2001. That S. 92of the Succession Act, contains
an exception whereby a provision in a tcstator's will can confer the deccascd legatee's
bequest to any other person as the will may allow. 'fhat thc will of thc late Sezi
Musoke on page 8 provided an exception wherc a dcccascd lcgatee lcft behind a

child. I'{e tcfcrrcd court to S. 96 of thc Succcssion Act which allows for a lineal
descendant or child of the deccascd legatee to take on his/het bequest.

In rcjoinder, Counsel fot thc,,\pplicants submitted that thc latc Ssczi Musoke madc
a codicil to his will rcvoking thc bequest he madc to thc latc Irred l(afe ero and giving
it all to one John I(abugo. It is further submittcd that although the codicil was
invalidated, the ptoperty teverted back to the estate of the late Ssezi Musoke as pet
the iudgment ofJustice l(ibuuka Musoke in Civil Suit No . 532 of 2001. and there fore

ought to bc distributed to the surviving childrcn of thc latc Ssczi Musokc. Counsel
futther submittcd that on thc ptemisc of Section 24 of the Succession Act, the late
Ssezi Musokc died intestate in regard to thc suit properq/.

5
 6. Resolution:

Whether the applicants havc any intctcst in thc suit propcrty and if so whcthe r
thcy should bc addcd as partics (dcfcndants) to Civil Suit No. 802 of 2016.

0.1 rulc 10 of thc Clivil Proccdurc Rulcs undcr which this application was btought
provides: "The court may at any stage of the proceedings cithet uPon ot
without the application of either party, and on such terms as may appear to
the court to be /ust, order that the name of any party imptopetly ioined,
whether as plaintiff or defendant, be stntck out, and that the name of any
percon who ought to havc been foined, whcther as plaintiff or dcfendant, ot
whose prcsence beforc thc court may be necessary in order to enable
the coutt cffectually and completely to adf udicate upon and scttle all
questionsinvolved in the suit, be addcd."

-Ihis rule was considered in thc casc of Departed Asians Property Custodian

Board v. Jaffer Brothers Ltd [1999] 1 E.A 55 whcrc thc supreme court guided
that in an application of this nature 'it is necessary to show either that the
orders sought would legally affect the interest of that person and that it is
desirable to have that person added as a party to avoid a multiplicity of suits,
or that the defendant could not set up a desircd defense unless that person
was /oined or an order made that would bind that other petson,'
At this stagc thc court is not expected to look at thc mcrits of the case, but to
determine whethcr therc is an intcrest of the applicants that will bc affcctcd if they

are not joincd as parties.

'fhetefore in thc instant case, thc applicants have to show on a balance o[
probabilitics that they have an interest in thc suit properties and that any otdets
issued shall affect their intcrest in thc propcrry.

Aftcr catcfully studying the pleadings, thc cntirc rccord of procccdings and
submission of both partics I notcd as follows:

6
a) The suit property is land comprised in I(buga Block 5 Plots 1298 and 1299
at Mulago - Kalcrwe, and Kyadondo Block 222 Plot 2664 at Namugongo.
b) \X{hercas this land forme d patt of the cstate of late Ssezi Musoke, by will dated

1,8/1,1 /95, the said property was bequeathed to Fted I(afeero who apparendy
died before latc Ssezi Musoke. The said will was proved in court and ptobate

was granted to 3'd Respondent and one I(imuli. (See judgment of court in
HCCS. No. 532 of 2001 dated 29 /7 /2003 and grant of probate dated 26'h

August 2003.
c) The codicil dated 19/9/1996, that putportcd to remove the said properties
from late I(afeero to 1"'Applicant was declared invalid was found not to form
part of t1le deceased's will . (see page 6 of the iudgment). f'here was no appeal
against this judgment.

d) The cstate of late Ssezi Musoke was distributed in accordance with thc said

will. Indeed on 14/8/2013 one of the suit propetrics i.c. Block 5 Plot 1298
was transfcrred to 1"'Respondent who is son to late Fred I(afeero. 'Ihe cause

of action in IICCS. No. 802 of 2016 is thercfore premised on trespass to the

said land and fraudulent dealings in the other parccls of land by the 3'd and 4'h

Respondent.

e) Applicants claim that since Fred I(afeero their brother died before Ssezi

Musoke, then his share in the wi-Il should tevert to them as the beneficiaries
but not to his son the -' 1 Applic ar,t or 2"d rcspondent as w'idow and
administrator.
f) However a clear perusal of the will specifically page 8 of the translated wi-ll
stated thus; " If there is any child who will die but who has a share in this
will, but without leaving any child that share should be distributed to you by
the executors". This statement was directed to the children o[ Ssezi Musoke
among whom are the applicants. f'his clause implied that if the deceased
legatee left behind any child the propcrty would not revert to the estate.

Apparendy, the children of Ssezi Musoke could only get the suit property that

7
 were bequeathcd to late Fred I(afeero if he had dicd without leaving behind

a child.

g) Since I(afecro lcft bchind a chi1d, thc childrcn of Ssczi Musoke, (the

applicants) cannot claim this propctty under the will because this was not the
intention of the testator. Ilis intention was that it only tevcrts to them if there
is no surwiving child. S.92 of the Succession Act provides

"If a legatee does not survive the testator, the legacy cannot take effect,
but shall lapse and form part of the residue of the testator's propertyr
unless it appears by will that the testatot intended that it should go to
some other person". The intcntion of the testator in this casc was ve ry clear
as elaborated above. I Ie only intended the ptopetty in issuc to revert back to
the estatc if thc late I(afeero had not lcft any children bchind. Since late
I(afcro left a child behind the applicants cannot claim this properry.
The applicants have therefore failed to show that they havc intetest in the suit
propcrty and for that reason they cannot be joined as partics to IICCS.No.
802 of 201.6.

This application thercfore hereby fails and is accordingly dismisscd with costs
to 1" and 2'd Respondent.

DATED at Kampala this A+-^-,^ day of 2023

HO Y JUSTICE FLAVIA NASSUNA MATOVU.