Mahazi Partners & Co Advocates

21/10/2024

21/10/2024

Let's accept the fact. Let's keep the world safe for everyone

15/08/2024

TYPES OF MARRIAGE: Did you know that unlike many other countries that have 1 type of marriage, Uganda has 5 types of marriages and these are;

1. Customary marriage i.e kwanjula, okuhingira.

2. Mohammedan marriage i.e Muslim marriage.

3. Church marriage

4. Civil marriage i.e before the Registrar.

5. Hindu marriage i.e between Indians of the Hindu faith.

Of all the above types, Customary marriage is the most widespread.

Each marriage has different requirements, for example, under Customary marriage, a man can marry more than one wife, while under Civil and Church marriages, this is prohibited.

Further, under a Customary, Muslim and Hindu marriages, the minimum age of marriage is 16years old for girls, while under Church and Civil marriage, it's 18 years old.
Thank you.
For any questions contact 0704536535 or email at [email protected]

14/08/2024

14/08/2024

Summary of The Succession (Amendment) ACT CAP 162.
Background To The Enactment Of The Succession (Amendment) Act, 2022
the Amendment came ;
1. To align the law on succession with the rights to family and affirmative action of marginalized groups under the Constitution of the Republic of Uganda.
2. To provide for the distribution of Estates of intestate deceased persons.
3. To provide for the guardianship of minor children of deceased persons.
4. To provide for the discretion of courts
5.To provide for an expiry period of two years for Grant of Probate and Letters of Administration
6.To provide for the requirement of the consent of spouses and lineal descendants prior to the disposal of estate property by administrators
7.To provide for joint administration of Executors and Administrators of Estates.

Salient Issues For Noting
a. The distinction between legitimate and illegitimate children has since been removed. All children are treated as such. This means that even children borne out of wedlock should have equal rights as the other children.

b. Parents are now required to appoint a guardian for minor children. The court may remove this guardian though, where it is proved that he or she has failed, refused and or neglected to act as guardian. Court would consider the interests of the child, and where for any reason, it is clear that they are not being met, then court can remove the powers.

c. The Guardian has been given specific duties under the law, among which include, custody of the minor, disposal of the property of the minor and ensure that reasonable steps are taken to protect the property from loss or damage.

d. 20% of the deceased’s estate shall not be distributed but shall be held in trust for the education, maintenance and welfare of the minor children. ie. Children above 18 years of age, but below twenty-one years, where at the time of death, these children were undertaking studies and were not married. This also includes children with disabilities who are above eighteen years of age, but were not married at the time of death.

e. Married women are now allowed to dispose of any property which they are entitled to dispose of during their life, or which they are entitled to under a Will.

f. Anyone making a Will is now required by law to provide for their spouses, lineal descendants and dependent relatives.

g. Witnesses to a Will are now required to write their names and addresses on each and every page of the will, in the presence of the Testator (the person making the Will).

h. Where a Will is handwritten or produced in a typed format by a person, other than the Testator, and that person has a benefit in the Will, it will become void, if the benefit is claimed by the spouse or any other person who can claim.

i. Where someone does not appoint an executor or executrix, but appoints a guardian for the minor children, the guardian shall take up that role.

j. The Courts have been given powers to remove someone who was granted probate, or defer such appointment, where it is found that they are not fit and proper for the role.

k. It is now an offence punishable by imprisonment for a period of two years or a fine of UGX 960,000/= or both, where an Executor or Executrix misapplies the estate causing its loss or damage, before the Grant of Probate.

l. The validity of a Grant of Probate and Letters of Administration is for a period of two years from the date when they are granted.

M. No disposal of estate property shall be done without the consent of the spouses and lineal descendants of the deceased persons. Where the beneficiaries are minors, the guardians of the minors shall give consent.

n. Where there are several Administrators and Executors and Executrices, the powers should be exercised jointly and all such persons shall sign all the documents necessary for the administration of the estate.

o. Where a person misapplies the estate of the deceased person, subjecting it to loss or damage, or causes a loss as a result of negligence, such person shall have committed an offence and liable to imprisonment for a period of three years or to a fine not exceeding UGX 2m/=. The court shall in addition order the person to make good the loss or damage occasioned to the estate.

Where someone dies without leaving a Will, the following shall be the manner in which their property shall be distributed;
i.Any distribution shall exclude the residential properties;
ii.Where such person is survived by a spouse, a lineal descendant, a dependent relative and a customary heir;
The spouse shall receive 20%.
The dependent relative shall receive 4%
The lineal descendants shall receive 75% and,
The customary heir shall receive 1%.

iii.Where such person leaves no surviving spouse or dependent relative capable of taking a proportion of his or property, that proportion shall go to lineal descendants.
iv.Where such person is survived by a spouse, a dependent relative and a customary heir, but no lineal descendant;
The spouse shall receive 50%.
The dependent relative shall receive 49% and
The customary heir shall receive 1%.
v.Where such person is survived by a spouse or a dependent relative, but no lineal descendant, the spouse or the dependent relative, shall receive 100%
vi.Where such person leaves no person surviving hm or her, capable of taking a proportion of his or her property, the estate shall be divided equally among the relatives nearest in kinship
vii.Where such person leaves no person surviving him or her, capable of taking proportion of his or her property, then the property shall be managed by the Administrator General.
viii.A spouse who remarries before the Estate of the deceased is distributed shall be entitled to the share, he or she would be entitled to under the law.
ix.A surviving spouse shall not take any interest in the Estate of the person who dies without leaving a Will, if at the death of such person, they were separated.

However, where the surviving spouse has been absent on an approved course of study in an educational institution, or the intestate was, at the time of his or her death, the one who had separated from the surviving spouse a member of the same household, then the surviving spouse would be entitled to their portion.
x.A Will obtained by fraud, undue influence, duress, coercion, mistake of fact or abuse of position of trust or vulnerability shall be void.

xi.A gift made to anyone in contemplation of death may within 6 months of the recovery of the donor, be resumed by the donor. Such gift does not take effect if the donor recovers f rom the illness during which it was made.

DISCLAIMER
This article provides general information only. It is not intended to provide advice concerning any specific set of facts, nor is it intended to be relied on as legal advice.

14/07/2024

Shout out to my newest followers! Excited to have you onboard! Ovunji Achilles, Nuwamanya Tobius, Kabalega-lega Broker

20/08/2023

CASE ALERT; "No Adultery, No Divorce"
Court has held that a husband cannot divorce his wife based on cruelty and desertion alone in absence of Adultery.

In the case of Zedekia Karokora v Kellen Karokora Divorce Cause No. 020 of 2020, Justice John Eudes Keitirima has set a strange precedent and denied a husband to divorce his wife on ground that the Husband did not prove adultery and that even if he had proved cruelty and desertion, that's not enough.

In the Petition, the Huband Zedekia who has been married to Kellen since 1975, sought to divorce her on grounds that she denied him conjugal rights since 1999, has been cruel to him, each person cooks their own food, abuses him and she believes in which craft among others. That such conduct has adversely affected the man's health by causing him mental anguish, depression, nervousness and has since developed hypertension and diabetes. The husband sought for divorce and disposal of their matrimonial property. The wife denied the allegations contending that she has never been cruel to her husband.

In the 9 page Judgment, Justice John Eudes Keitirima has held as follows;
"in this petition, the Petitioner stated that he has been denied conjugal rights by the respondent since 1999, the respondent has been cruel to him and does not receive any care from the respondent. In her evidence, the respondent denied the said allegations by the petitioner. Even if his evidence, the Petitioner could have proved cruelty and desertion on part of the respondent, those grounds alone are not sufficient to dissolve marriage. Cruelty or desertion must be coupled with adultery. The Petitioner has not proved adultery on the part of the respondent. In this case, the petitioner had to also prove adultery on part of the respondent on tp of the other grounds he raised in the petition. The grounds of cruelty and desertion cannot stand alone or even if they are coupled as grounds for divorce. Therefore the petitioner has failed to prove the grounds for divorce and the petition will be dismissed"

I have called this a strange judgment because it sets the precedent that the only ground that can dissolve marriage is "Adultery" and the rest of the grounds cannot stand alone. This is problematic as it comes at a time when jurisdictions are moving away from the colonial restrictions on divorce and are considering "irretrievable breakdown of marriage" as a justification for divorce where 2 parties can no longer live together as a couple.

I also find the judgment strange because it is per incuriam. A decision is said to be per incuriam if it overlooks a certain precedent. In our common law jurisdiction, High Courts are bound by decisions of the Supreme Court and Court of Appeal. The Constitutional Court and Court of Appeal has long settled the position that any of the grounds provided for in the Divorce Act is enough to dissolve a marriage.

Previously, Section 4 of the Divorce Act provided for grounds for divorce. It only allowed a man to divorce a wife on the ground of adultery. However, it required a wife to prove adultery plus any other ground such as cruelty, desertion, bigamy, be******ty, change of religion etc in order to divorce.

The said section was challenged in the Constitutional Court as being discriminatory against Women. In Uganda Association of Women Lawyers v. Attorney General Constitutional Petition No. 02 of 2002, the Constitutional Court found the said provision unconstitutional and held that all the grounds of divorce mentioned in Section 4(1) and
(2) of the Divorce Act are available to both parties to the marriage.

The effect of the above decision was considered in the case of Dr. Specioza Wandira Kazibwe V Engineer Charles Nsubuga Kazibwe Divorce Cause No. 03/2003. In the Kazibwe case court held that both adultery and cruelty are distinctive grounds, each in its own right, upon any of which a decree nisi may issue. That a petitioner could therefore obtain a decree for divorce after proving to the satisfaction of the court either the ground for adultery or cruelty or both.

The Court of Appeal got an opportunity once again to pronounce itself on what grounds should be proved to be entitled to divorce. In the case Rebecca Nagidde v Charles Steven Mwasa Civil Appeal No. 160 of 2018, the Court of Appeal held that "in light of Uganda Association of Women Lawyers v. Attorney General Constitutional Petition No. 02 of 2002, it is sufficient for either spouse to allege one ground for divorce as set out in Section 4 of the Divorce Act for a petition or cross petition to succeed.

Even though the judge cited both cases of Rebecca Nagidde v Steven Mwasa and Uganda Association of Women Lawyers v AG supra, the judge overlooked the principle set therein that one ground for divorce is sufficient.
As stated by Kanyeihamba in Paul K. Ssemogerere and Ors v Attorney General Constitutional Appeal No.1 Of 2002 "When a Court ignores or overlooks a binding precedent and decides a case as if that precedent does not exist, its decision is said to be a decision per incuriam."

Therefore, in my humble opinion, the decision of Justice Keitirima is per incuriam in so far as it holds that "without adultery, there is no divorce". Such a decision is to take us back to the ages at a time when Courts are focused on look at the facts in totality to determine whether a marriage has irretrievably broken down as held by Kainamura J in Julius Chama V Specioza Rwalinda Mbabazi Divorce Cause No. 25/2011.

Further, the decision of Justice Keitirima which was delivered today 18th August 2023, comes at a time when Parliament already amended Section 4 of the Divorce Act to provide that one ground is enough for divorce. This Section was amended by Section 18 of the Law Revision (Miscellaneous Amendments) Act 2023 which set out to harmonize various laws in our country in line with decisions of Court. Section 4 of the Divorce Act was amended as follows.;
4. Grounds for divorce
A husband or wife may apply by petition to the Court for the dissolution of the marriage on the ground that since the solemnisation of the marriage, his wife or her husband;
(a) has been guilty of adultery
(b) has changed his or her profession of Christianity
(c) has been guilty of bigamy
(d) has been guilty of r**e, so**my, or be******ty
(e) has been guilty of cruelty or
(f) has been guilty of desertion.

The Law Revision (Miscellaneous Amendments) Act 2023 which amends Section 4 of the Divorce Act was assented to by the President on 10th May 2023. This means that the judge should have been informed of the change in the law and his decision should have been progressive in light of the evolving nature of relationships. It is wrong for Court to let people remain married when they do not want. It is time that our Courts and Parliament embraces the no fault divorce and let persons who come together willingly, divorce willingly. Kenya has already moved for no fault divorce as seen by the recent Amendment Bill.

All in all, I find that this judgment, if appealed will be overturned as per the above precedents which have been applied in many cases. That's why I call this a strange judgment.

I dont know how you find it, but for the judge to hold that even if the wife or husband chops off one of your arm, you cant divorce her unless you find her kwepicha with another man is not logical.