No property for heirs without spouse’s consent, court rules

The High Court’s Family Division has outlawed the practice of men dispossessing their wives of matrimonial property by bestowing it to their sons in their Wills without the spouse’s authorisation.

Delivered on Friday, the judgment stems from a conflict between Herbert Kolya and his grandmother Ekiriya Mawemuko Kolya over property found in Namirembe, Kampala, comprised in LRV 1338 folio 1 Kibuga block.

Herbert’s case is that his late grandfather, Israel Kokomeko Kolya, had given a portion of his land at Namirembe to his late father, Herbert Lukanga Kolya, whereupon he constructed a house they were living in at the time of his death and other houses on the lower part of the said plot for purposes of generating rental income.

He also said his late father had informed him that the said land was bequeathed to him (Herbert Lukanga Kolya) by his late father Israel Kikomeko Kolya.

The dispute
Apparently, after the death of his father, Herbert said his mother approached his grandmother Mawemuko and requested for a copy of the land title since they wanted to put a second gate and a wall fence separating the two portions of the land but she refused to surrender it, claiming that the late Israel Kikomeko Kolya’s house was her property.

This evidence, Justice Godfrey Namundi, who presided over the case, said was corroborated by the testimony of former Buganda Katikkiro Dan Muliika, who attested to the Will.

Mr Muliika confirmed that the late Israel Kikomeko Kolya executed a Will on January 2, 1997, and therein, he transferred his Namirembe property to his heir, Herbert Lukanga Kolya, where he [Herbert Lukanga Kolya] had his personal house.

In her defense, Ms Mawemuko, on oath, said how she was married to Israel Kikomeko Kolya and they had six children by the time he died in 1997. She said her husband had acquired the contested property prior to their marriage and that it had a small mud and wattle house.

Ms Mawemuko, who at the time was a midwife at Mengo hospital, said together with her husband, they built another house and she participated in making bricks and constructing the building.

When her husband died, his Will was read during his last funeral rights by Mr Muliika and therein the deceased had bequeathed the matrimonial property at Namirembe to Herbert Lukanga Kolya.

She insisted she didn’t agree with the Will because her husband gave away the matrimonial home, which she had contributed greatly to during construction since Israel Kimomeko Kolya had insufficient funds back then.

Court findings
In his analysis, Justice Namundi said it is imperative for the court to first determine whether the disputed property is a matrimonial property as claimed by Ms Mawemuko.

To settle this, the judge referenced two previous judgments by Ugandan courts. The first was by High Court Judge Billy Kainamura in the case of Basheijja Vs Basheija and another of 2013. He ruled that classified property falls under five clusters and held that the home of the couple, irrespective of when it came into existence, amounts to matrimonial property.

The second case referred to by Justice Namundi is the divorce case of Kagga Vs Kagga, where Justice Eldad Mwanguya, then of the High Court, observed: “Our courts have established a principle which recognises each spouse’s contribution to the acquisition of property and this contribution may be direct, where the contribution is monetary or indirect, where a spouse offers domestic services.

When distributing the property of a divorced couple, it is immaterial that one of the spouses was not financially endowed as the other as this case clearly showed that while the first respondent was that financial muscle behind all the wealth they acquired, the contribution of the petitioner is no less important than that made by the respondent.”

With that, and having factored in the evidence on-court record, Justice Namundi came to the conclusion that the contested house in Namirembe was matrimonial property.

Background

Fast forward, Justice Namundi looked into Israel Kikomeko Kolya’s Will and therein he stated: “My land and main home is mentioned above at Namirembe, I give it to my heir, but my wife has to stay there until she dies or unless when she remarries then the heir is free to own the whole property.”

His view, the statement above, the deceased exalted the heir above the widow, Justice Namundi observed.

“A cultural practice that where the heir inherits matrimonial home denying [ the] widow’s proprietary rights is discriminatory in nature, “Justice Namundi ruled. “According to Article 32 (2) of the Constitution, customs, cultures and traditions that are against the dignity, interest or welfare of women are prohibited.”

He added: “Since the Will purportedly made by the late Israel Kikomeko Kolya is defective, court takes it that the deceased died intestate.”

Herbert’s claim that it was illegal for his grandmother to obtain letters of administration without attaching the Will was also dismissed. Under Section 25 of the Succession Act cap 162, the judge ruled, all the property in an intestate devolves upon the personal representative of the deceased upon the trust of those persons entitled to the property under this Act.

“The defendant being [a] widow (surviving spouse), she was the most appropriate person to apply for letters of administration,” Justice Namundi ruled and dismissed Herbert’s case with costs.

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