The legal battle for control of Kiwanuka business empire

But Justice Musa Ssekaana, who dismissed Jordan’s application for mental examination of Mr Kiwanuka, suggested Jordan had brought it in bad faith after his father had removed him from the position of company secretary and at the same time appointed his stepmother, Maria, whom his father married in 1986, as new director. 

Justice Ssekaana, who has since been promoted to the Court of Appeal, imputed that Jordan had only brought the application after his father removed him from his position as the company secretary. Allegations and counterclaims In 2009, court filings show that Maria applied to the Uganda Registration and Services Bureau (URSB) and got authority to exercise control over Mr Kiwanuka’s different companies as director. 

As proof, Mr Kiwanuka signed documents endorsing her. But in his application, Jordan raised doubts about the state of mind in which Mr Kiwanuka signed the said documents because, despite being with Maria for more than 30 years, he had never made her a shareholder or director in any of the companies, including Radio One and Radio Two, where Maria is the general manager. 

In dismissing Jordan‘s application, Justice Ssekaana claimed that to ascertain Mr Kiwanuka’s mental status as per the Mental Treatment Act, he interviewed him for more than 30 minutes in the presence of the lawyers and thereafter for about 15 more minutes without the lawyers. 

The conclusion that Justice Ssekaana, who is not a psychiatrist, arrived at was that he didn’t see noticeable mental problem. He claimed that Mr Kiwanuka spoke calmly, especially about the dispute between himself and Jordan, and at times he would make some little jokes. 

“It is my settled opinion that the respondent is still in charge of his mental faculties and his only problem with the applicant, according to him, is that he wants to take over or grab his property, which he has worked hard to earn over the years,” Justice Ssekaana said. 

Yet six years later, the Court of Appeal has ruled in favour of Jordan, saying there are reasonable grounds to believe that his father hasn’t been mentally well enough to run his vast business empire. 

How did the pendulum swing in favour of Jordan? The game changer was when Mr Kiwanuka’s sisters, or call them Jordan’s paternal aunties - Jalia Muwanga, Yudaya Nantege, Berti Nsereko, and Saraha Nsereko, in 2023, dashed to the High Court once again to ascertain the mental abilities of Mr Kiwanuka. To support their case, Mr Kiwanuka’s sisters attached a medical report by Dr Simon Sekiganda Luzige, who had been Mr Kiwanuka’s physician since 2014. 

In his report, Dr Sekiganda said Mr Kiwanuka had, over time, developed a lot of anger and depression. As time went on, Dr Ssekiganda said Mr Kiwanuka’s condition deteriorated to the extent that he was too forgetful, prompting him to call Dr Harriet Nankabirwa, a geriatrician. In an affidavit, Dr Nankabirwa, who examined Mr Kiwanuka in 2020, said she had found that he was becoming more and more forgetful with significant personal change.

Dr Nankabirwa said she was able to make an appropriate assessment of Mr Kiwanuka’s mental condition and agreed on a treatment plan. Also in this same case, Edwin Busuulwa, one of Mr Kiwanuka’s witnesses, admitted that the businessman had been declared by his doctors to be incapable of running his affairs. 

Jordan, through an application, asked the Court of Appeal to adopt affidavits of his aunties and those of his father’s doctors who had deponed in the High Court, saying that this was new evidence that the court needed to look into to arrive at a just conclusion. Jordan’s application didn’t go uncontested. Francis Buwule, Mr Kiwanuka’s lawyer, swore an affidavit that further shed light on how dirty this fight had become. 

Buwule, court records show, claimed Maria was the only wife of Mr Kiwanuka. 

However, the Court of Appeal justices, led by Cheborion Barishaki, quickly pointed out that Buwule didn’t deny the fact that Jordan and his other four siblings are Mr Kiwanuka’s biological children with familial rights that they had been denied. 

The Court of Appeal justices also said affidavits are critical because Jordan and his siblings, for a long time, were denied access to their father, while Mr Kiwanuka’s doctors and sisters had been accessing him; thus, they were in a position to give evidence on his health. 

“The affidavits of the respondent’s [Mr Kiwanuka] are also bound to give greater context to the respondent’s mental health at the time of the trial of Miscellaneous Cause Number 29 of 2019 and beyond. Both affidavits aptly describe the respondent’s symptoms and mental health state covering a period,” Justice Barishaki said. 

He added that he particularly notes the affidavit of Dr Nankabirwa, where she says in August 2019, before Justice Ssekaana dismissed Jordan’s case, having been given powers of Attorney by Mr Kiwanuka, she made plans to treat him should his mental health condition worsen.

“Dr Nankabirwa confirmed that she and the rest of the respondent’s [Mr Kiwanuka] medical team are now implementing that power of attorney, which implies a significant change for the worse in the respondent’s mental health status since 2019,” Justice Barishaki said. 

 The Court of Appeal also said affidavits of Mr Kiwanuka’s sisters are critical, that at one point, they were his caregivers. The judges were also not happy with Buwule’s claim that the issues Jordan wanted to raise in the appeal had already been determined by the High Court; in legal terms, it’s called res judicata.

He added that now that Jordan had discovered this evidence and wants to introduce it in his appeal against Justice Ssekaana’s judgment, Buwule was once again up in arms, seeking to have the same evidence excluded, claiming it had already been considered by the High Court.  

“If new evidence can’t be adduced in the High Court and the Court of Appeal, considering the appeal over the issue, where will it be adduced?” Justice Barishaki asked. 

The Court of Appeal also said the Law Council, which disciplines advocates, should investigate Buwule for his double standards. The judges said while in the High Court, Buwule had admitted that Mr Kiwanuka was having mental challenges, in the Court of Appeal, he was arguing differently. 

“This casts doubt regarding the continued existence of legality of the said advocate’s instructions in light of his alleged admitted mental capacity and competence to instruct counsel on this and other subsequent matters,” he said. 

“We would think that this is a matter in which the Law Council should be deeply interested to confirm the factual existence and legality of those instructions. It’s possible, but doubtful, that a person whose own advocate admits suffers from mental disability would have been able to properly instruct that advocate or any other advocate, for that matter," Justice Barishaki said the Law Council is best suited to investigate the instructions of the advocates who appeared for Mr Kiwanuka to ascertain the existence, legality, scope, and property of those instructions, given his mental state, especially if that representation has caused harm to the client. 

Dispute background

Mohan Kiwanuka, the founder of Oscar Industries and owner of several properties and businesses, including Radio One and Akaboozi Ku Bbiri radio stations, has been at the centre of a family feud involving his two wives, Beatrice Kavuma Kiwanuka and Maria Nabasirye Kiwanuka, and their respective children. The conflict escalated when Kiwanuka’s son, Jordan Ssebuliba Kiwanuka, petitioned the High Court in May 2019, seeking to have his father declared of unsound mind due to alleged signs of dementia and memory lapses. Ssebuliba argued that his father was no longer capable of managing the family’s extensive estate, which includes 32 companies and at least 46 prime properties in Kampala.

Objection.

 It’s obvious to us that, in making the res judicata argument in this application, counsel of the respondent [Buwule] is acting in bad faith. When the respondent’s [Mr Kiwanuka] sisters sought to introduce evidence in the cause before the High Court, Counsel of the respondent raised res-judicata, claiming they were relitigating a dispute that had been settled in miscellaneous cause number 249 of 2019– Justice Cheborion Barishaki