Father wins property case against 4 children, wife

Kampala. A protracted 14-year court fight between a wife and her two children on the one hand, and the father of the children and the buyer of a house which the family once occupied on the other hand, ended on November 21 with the wife and children on the losing side.
Mr Ephraim Turinawe, who was an engineer with the defunct Kampala City Council (KCC), was assigned a residential house by his employer in 1989. The house is located in Kololo near Nyonyi Gardens.
In 1999, KCC offered Mr Turinawe an opportunity to buy the house at Shs65m. At the time, Mr Turinawe told court, he was unable to raise the money required to pay for the house, which he occupied with his family. But all the while when he lived in the house with his family, Mr Turinawe said, he paid rent to KCC as a tenant.
The opportunity for him to buy it came with a requirement that he makes a down payment of 15 per cent of the purchase sum, Shs9.75m, and then pay the remaining Shs55.25m in equal installments for a period of 33 months.
Having paid the 15 per cent down payment, however, Mr Turinawe says he did not have the money to make full payment for the house.
He, therefore, sought out Ms Elizabeth Kabutiti, who has since died, who agreed to buy the house at Shs70m, so that Mr Turinawe would make Shs5m over the top.
According to the documents provided to court, Kabutiti made the payment of the Shs70m from her Barclays Bank account through her sister/agent named Joyce Lynn Kabutiti.

Trouble starts
But the offer for the purchase of the house had been made to Mr Turinawe, and not to Kabutiti. KCC, therefore, transferred the ownership of the house to Mr Turinawe, who in turn transferred the ownership of the land to Kabutiti.
Mr Turinawe’s wife, Ms Molly Turinawe, and her four children took the matter to the High Court in 2004. The children are Fiona Turinawe, Bernes Ankunda, Robin Turinawe and Davis Turinawe.
Mr Turinawe was sued together with Dewak Ltd, the company belonging to Kabutiti and which on her death was represented by her sister Joyce Lynn Kabutiti.
Mr Turinawe’s wife and children argued in their suit that when the property in which they were residing was offered to the head of their family for purchase, it became their family property and residence.
They further argued that Mr Kabutiti’s decision to transfer the ownership of the property to Kabutiti without their consent was therefore illegal, null and void.
The High Court ruled in favour of the wife and children and awarded then costs of the suit. Mr Turinawe and Dewak, owned by the Kabutitis, appealed the decision in the Court of Appeal.
The Appeals
Mr Turinawe and the Kabutitis argued in the Court of Appeal, as they had argued in the High Court, that whereas Mr Turinawe had been issued a land title for the contested property, mere having a land title is not conclusive evidence of ownership of a property in all circumstances.
In this case, they argued, Mr Turinawe only had the title transferred into his name but, subject to the agreement he had signed with Kabutiti, the transfer was not conclusive evidence of ownership of the property since he had already undertaken to transfer it into Kabutiti’s name, who had already paid Shs70m for the house.
Mr Turinawe and the Kabutitis further argued, which argument was agreed to by the Court of Appeal, that Mr Turinawe’s family members were “strangers” to the transaction between Mr Turinawe and Kabutiti and therefore could not claim the property as belonging to the family.
For that reason, they further argued, which argument the Court of Appeal again agreed with, that the law governing family property did not apply to the property in question because it never became family property in the first place.

Dissatisfaction
Dissatisfied with the decision of the Court of Appeal, Ms Molly and her Children appealed to the Supreme Court.
They were represented by Mr Peter Allen Musoke, while Mr Turinawe was represented by Edward Kangaho. The Kabutitis were represented by former presidential candidate Francis Bwengye.
The arguments in the Supreme Court were similar to those in the Court of Appeal, and the five-member panel of the Supreme Court agreed with the decision of the Court of Appeal.
The panel comprised Justice Jotham Tumwesigye, Justice Faith Mwondah, Justice Augustine Nshimye, Justice Eldard Mwangusya and Justice Richard Buteera, who wrote the lead judgment.
In the unanimous decision that essentially agreed with the ruling of the Court of Appeal on the matter, Ms Turninawe and her children were ordered to pay the costs of the suit incurred by the Kabutitis.
Regarding the costs Mr Turinawe incurred, court declined to order the spouse and children to pay up.