BRIEF FACTS

Maria Tereza Birabwa aged 40 years whose father died Erasmus SSimbwa died on 20th of
February 2016. Maria Tereza has brothers and sisters who include Jane Francis Nalwadda aged
45 years, Farasko Mbalire who died in 2014, Yoaniana Najjuko who died in 2015, yekoyasi
kimbugwe aged 38 years and the mother died 0n 12th December 2013. Maria Tereza’s father left
100 Acres of land known as Block 450 plots 11 and 12 at seeta bukuya,Masaka District which
was valued at ugx 500 million shillings. Marias sister Jane Francis Nalwadda and Yekoyasi
kimbugwe obtained letters of Administration from the high court at Masaka were they stated that
they were the only surviving relatives of their father. They even sold ten acres of the land but
Maria Tereza wants her share on that land.
LEGAL ISSUES
1. What is the long term remedy available to Maria Tereza Birabwa?
2. How can the available remedy be obtained?
3. Whether there exists just cause for the revocation of the Grant of letters of Administration
obtained by Jane Frances Nalwadda and yekoyasi kimbugwe.
4. What are the available interim remedies available to Maria Tereza Birabwa?
5. What are the practical legal steps available to obtain the available interim remedies?
6. What is the forum ,procedure and necessary legal documents required in attaining the
remedy in 1 (a)).

LAW APPLICABLE

 The Constitution of the Republic of Uganda 1995

 The Succession Act cap 162
 The Civil procedure Act S.171-1
 The Judicature (court fees) Rules S I 13-1

RESOLUTION OF ISSUES
ISSUE 1
what is the long term remedy available to Maria Tereza Birabwa?
An order that the letters of administration obtained vide HCT-00-FD-AL-340 OF 2019 be
revoked.
According to Section 234(1) Succession Act Cap 162 the grant of probate or letters of
administration may be annulled or revoked for a just cause.
And section 234 subsection 2 provides that just cause means that proceedings to obtain the grant
were defective in substance and that the grant was obtained by means of an untrue allegation of a
fact essential in point of law to justify the grant.
In Tumusiime Paul & 3Ors V. Haji Wahab Semakula Kibuuka (Administrator of the estate
of Sarah Wahab Wanyana Mukaaka HCCS 76/2013, P.N Tuhaise, J stated that the defendant
obtained the grant by concealing some of the beneficiaries of the estate…and by making false
representation of a matter of fact that the deceased was survived by only two children and
himself as widower. This was clearly intended to deceive court to grant the letters of
administration to him as widower in the circumstances in which it did. The defendant did not
offer any explanation to court as to why he did not disclose all the beneficiaries…such acts,
omissions or conduct on the part of the defendant are stated to amount to fraud, as stated in the
case of Zaabwe V Orient Bank Ltd & Others Civil Appeal No 04/2006.
In the circumstances, it is very clear that Jane Frances and yekoyasi kimbugwe did not include
Maria Tereza Biribwa, and the children of the late Farasko Mbalire and Yoaniana Najjuuko as
the beneficiaries of the estate of the late Erasmus SSimbwa, which amounts to making false
representation of a matter of fact that they were the only surviving relatives of their late father
Erasmus SSimbwa deceased. This was clearly intended to deceive court to grant the letters of
administration and such acts or omissions have been held to amount to fraud on the part of Maria
Tereza Birabwa.
In the premises, it is clear from the facts and the law that the grant was obtained fraudulently by
making a false suggestion or concealing from court something material to the case. In that
regard, there exists just cause for the revocation of the grant of letters of administration regarding
the Estate of the late Erasmus SSimbwa to the parties.

ISSUE 2.

Whether there exists just cause for the Revocation of the Grant of letters of Administration
obtained by Jane Frances Nalwadda and Yekoyasi Kimbugwe.

For a person to have locus to bring an application questioning the administration of an estate,
they have to have a beneficiary interest in the estate of the deceased.
Per our instant facts Maria Tereza Biribwa is a beneficiary in the estate of the late father Erasmus
Ssimbwa.
Section 27 of the Succession Act Cap 162 provides a guide as to who has a beneficiary interest
in the estate of the deceased.
In the case of Law and Advocacy for women in Uganda v AG Constitution Petition No. 13
of 2006 the court held that s.27 was inconsistent with the Constitution as it was unfair to women.
However, the courts use this section to guide them on the question of who has a beneficiary
interest.
In the case of Romario Samil Ogwang and Anor v Sunday Ottak HCCS No.20/2005; the
court defined a beneficiary as a person entitled to a share in the properties of a deceased person.
According to the facts Maria Tereza was a son of the deceased SSimbwa Erasmus and has a
beneficiary interest in the estate as provided for under section 27 of the Succession Act.
In Kajubi v Kabali (1944) EACA 14 court held that all children have a right to a share on their
late father’s estate whether born within or out of wedlock.
As child, she is entitled to share in the estate. Therefore, she can challenge the administrator for
obtaining letters of Administration Fraudulently.
In Anecho v Twalib & 2 Ors (CIVIL SUIT No. 0009 OF 2008) [2018 it was held that it is trite
that a grant remains valid until revoked. It has been observed that even in cases where grant has
been obtained by fraud, so long as the grant remains unrevoked, SO there must always be proof
for a just cause for there to be revocation.
Section 234 of the Succession Act Cap 162 provides that the grant of letters of administration
shall be revoked for just cause. Just cause is defined to mean that the proceedings to obtain the
grant were defective in substance; the grant was obtained fraudulently by making a false
suggestion or concealing from court something material to the case; the grant was obtained by
means of an untrue allegation of a fact essential in a point of law to justify the grant though the
allegation was made in ignorance or inadvertently; the grant has become useless and inoperative
through circumstances.
So basing on our instant facts Maria Tereza Biribwa has a just cause to prove that Jane
Frances Nalwadda and yekoyasi Kimbugwe obtained letters of administration fraudently
were they stated that they were the only surviving relatives of their late father Erasmus
SSimbwa.

Issue 3.
What are the interim remedies available to which Maria Tereza Birabwa?

An order for administration pendente lite.

Section 218 succession Act cap 162 The court may, pending any suit touching the validity of
the will of the deceased person, or for obtaining or revoking any probate or any grant of letters of
administration, appoint an administrator of the estate of the deceased person, who shall have all
the rights and powers of a general administrator, other than the right of distributing the estate,
and every such administrator shall be subject to the immediate control of the court, and shall act
under its direction.

In instant facts Maria Birabwa may apply to the court to appoint an administrator as waiting
for the main decision.

Temporary injunction.
Section 33 judicature Act cap 13, the high court shall, in the exercise of its jurisdiction vested
in it by the constitution, this Act or any other written law, grant absolutely or on such terms and
conditions as it thinks just.

Piara singh jhass & Anor Vs sukheer kaur (MA N0.107 of 2012 This was an application by
chamber summons brought under 0.41 rule 1,2,3,9 of the CPR .It seeks orders that a temporary
injunction be granted restraining the respondent from selling, leasing, transferring, alienating and
or disposing any property of the deceased and from evicting and harassing the applicants until
the main suit is heard. Justice Tuhaise held in order to maintain the status quo of the subject
matter she granted the temporary injunction.

In our facts Maria Tereza Birabwa can be granted a temporary injunction in case if still
delayed he can apply for an interim order by notice of motion still to the effect to maintain the
status quo of his father’s estate till determination of the application of a temporary injunction.
This can help him stop the people who are monitoring the land from buying the land and
those who have on not occupied it not to occupy it.

Interim temporary injunction. This available to the Maria Birabwa to have immediate effort to
the solution in order to keep the status qou. To bring the interference with land from Nalwada
and Kimbugwe.

Lodge a beneficiary’s caveat.

Maria Tereza Birabwa can lodge a beneficiary’s caveat under Section 139 of the Registration of
Titles Act Cap 230 forbidding the registration of any person as transferee or proprietor of the
land in order to protect his late mother’s estate. This can be done so as to protect the estate since
the Frances Nalwada and Yekoyasi Kimbugwe are estopped from father darlings on land.
General damages.

In Nalubega Gladys & Anor Vs Sebuluguse Henry CS No.44 of 2014 where Justice Tuhaise
granted general damages of 20 million to the plaintiffs for the wrong the defendant had done of
selling part of the estate. The same in our facts Kimbugwe and Nalwada can pay and compersate
for the Maria Tereza Birabwe court can order them to pay damages.

In addition to the above remedies Maria Tereza Birabwa can be given the following remedies,

 Costs of the suit

 A permanent injunction restraining the defendant from further dealing with the estate of
the deceased.
 An order that the plaintiff be appointed as the administrator of the estate of late Erasmus
Ssimbwa
 A declaration that Nalwada and Kimbugwe fraudulently obtained the letters of
administration of Erasmus Ssimbwa.

Issue 4.
What are the practical steps to obtain the remedies above?
Beneficiary caveat
Draft the caveat with particulars like Names, the forbidding clause and well witnessed.
Lodge caveat to the registrar of titles.
Lodgment is by an ordinary letter and attach duplicate certificate of title.
Payment of prescribed fees and stamp.
Caveat must be accompanied by the statutory declaration.
Serve the other parties of the notice of the caveat.
Temporary Injunction
In case of interim remedy to maintain the status quo of the estate.
Apply for a temporary injunction under order 41 rule 1 and 9 by chamber summons pending
determination of the main suit.
In case of delay still you can apply for an interim injunction by motion on notice order 52 rule
1,2,&3 Civil Procedure pending the determination of the temporary application.
 ISSUE 5.

What’s the forum, procedure and necessary documents to obtain the long term remedy?

Procedure

The following is the procedure for obtaining and order for the revocation of the grant of
the letters of Administration;

 Lodge in a plaint in court registry together with Summary of evidence, Mediation Case
Summary, a Copy of the letters of administration which were given.
 Payment of fees assessed from court.
 Serve the plaint in accordance with Order 5 of the Civil Procedure Rules SI 71-1.
 File affidavit of service of the plaint
 The defendant is duty bound to file a written statement of defense.
 Incase pleadings are closed extract out mediation hearing notice.
 After mediation in case it fails set down the suit for hearing by extracting out hearing
notice which must be served onto the defendant.

FORUM.

Is the high court of Uganda at Masaka

DOCUMENTS

1. The plaint
2. Summary of evidence
3. Mediation case summary
 THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MASAKA
FAMILY DIVISION
CIVIL SUIT NO.........................OF 2020
(ARISING OUT OF ADMINISTRATION CAUSE NO.340 OF 2019)

MARIA TEREZA BIRABWA..................................................................................PLAINTIFF

VERSUS
1. JANE FRANCIS NALWADDA................…..................................................DEFENDANTS
2. YEKOYASI KIMBUGWE
PLAINT
(Under S.234 (b) Succession Act Cap162, O.4 r.1 and O.6 r 3 Civil Procedure Rules SI 71-1)

The Plaintiff is a male adult Ugandan of sound mind whose address of service for the purpose of
this suit shall be c/o M/S Odidda & Co.Advocates Barya Plaza P.O Box 20, Kamapala Road.

The Defendant is a male adult Ugandan presumed to be of sound mind. The Plaintiff’s Advocate
undertakes to effect service of the court process on the Defendant.

The Plaintiff’s claim is for: -

1. An Order for Revocation of Letters of Administration in respect of the estate of the

late Erasmus Simbwa.

2. An Order compelling the Defendant to surrender to this Honourable Court the above
mentioned Letters of Administration.

3. An order for comprehensive and true statement of account of all dealings with the
estate of the late Christine Burungi.

4. A grant for Letters of administration of the estate of the late Christine Burungi to the
Plaintiff.

5. A permanent injunction restraining the Defendant from undertaking any further

dealings with the estate of the late Christine Burungi.
 6. Costs of the suit and interest thereof from the date of judgement till payment in full.

The facts constituting the Plaintiff’s cause of action against the Defendant arose as follows:
-
The Plaintiff is a son and beneficiary of the estate of the late Erasmus Simbwa. (Herein attached
is a copy of a birth certificate marked annexure ‘A’)
The deceased Erasmus Simbwa died on 20.02.2016 leaving several properties;

a) 100 acres of land comprised in block 450 plots 11 and 22 at seeta bukaya, Masaka District,
valued at 500.000.000ugx (A copy of the valuation report of the land is herein attached marked
annexture "A")

The Defendant made false declarations and concealed important information from the Court in
his application for the Letters of Administration thus misleading this Honourable Court.

PARTICULARS OF FRAUD.
Stating that the deceased was only survived by Jane Frances Nalwadda and Yekoyasi
Kimbugwe (Defendants).
The list of beneficiaries provided to Court left out the Biological children of the deceased
namely Maria Tereza Birabwa (the Plaintiff) aged 40 years, Yoaniana Najjuko
(deceased), Farasko Mbalire (deceased).

The Defendants have sold ten (10) acres out of the deceased's land comprised.
The Defendants also wants to sale more land.
The Plaintiff asserts that if the Defendants are not restrained from managing the estate of
the late Erasmus Simbwa, the said estate will be grossly mismanaged to the detriment of
the Plaintiff and other beneficiaries.
The Plaintiff is the fit and proper person to administer the estate of the late Erasmus
Simbwa
This Honourable Court is vested with jurisdiction to hear and determine this matter.
WHEREFORE the Plaintiff pray for judgement against the Defendants for: -
 An Order for Revocation of the Letters of Administration granted to Yosia Luzze on the
10th day of October 2018 by the High Court in respect of the estate of the late Christine
Birungi.
An Order to surrender to this Honourable Court the Letters of Administration of the
property and credits of Erasmus Simbwa (deceased).
A grant for Letters of Administration of the estate of the late Christine Birungi to the
Plaintiff.
A permanent injunction restraining the Defendant from undertaking any further dealings
with the estate of the late Christine Burungi.
Costs of this suit and interest thereon from the date of judgment till payment in full.

Dated at Kampala this 06th Day of November 2020.

...............................................................
COUNSEL FOR THE PLAINTIFF

DRAWN & FILED BY:

M/S Firm ODIDA & CO. ADVOCATES.

BARYA PLAZA,

P.O Box 20
 THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MASAKA
FAMILY DIVISION
CIVIL SUIT NO.........................OF 2020
(ARISING OUT OF ADMINISTRATION CAUSE NO.340 OF 2019)

MARIA TEREZA BIRABWA..................................................................................PLAINTIFF

VERSUS
1. JANE FRANCIS NALWADDA.....................................................................DEFENDANTS
2. YEKOYASI KIMBUGWE

SUMMARY OF EVIDENCE

The Plaintiff shall adduce evidence to the effect that the deceased died on 20th-02.2016 and
Letters of Administration were granted to Jane Frances Kimbugwe who made false declarations
and concealed important information from this Honourable Court. The plaintiff shall also adduce
evidence to prove mismanagement of the estate of the late Erasmus Simbwa by the Defendant.

That the Plaintiff is willing and is a fit and proper person to manage the estate of the deceased in
order to rescue his grandfather’s estate and have the Letters of Administration set aside.

LIST OF DOCUMENTS

Grant of Letters of Administration to the estate of Erasmus Simbwa.

Birth certificate
Duplicate Certificate of Title of land comprised in Block 450 plots 11 and 12 measuring 100
acres at Seeta Bukuya

LIST OF WITNESSES
1. Maria Tereza Birabwa
2. Jane Frances Nalwadda
3. Others with leave of Court

LIST OF AUTHORITIES

1. The Constitution of the Republic of Uganda, 1995 as amended.

2. The Succession Act Cap 162
3. The Judicature Courts Act Cap 13 as amended
4. The Evidence Act Cap 6
5. The Registration of Titles Act Cap 230
6. The Civil Procedure Act Cap71
7. The Civil Procedure Rules SI 71-1
8. Any others with leave of Court.

Dated at Kampala this 06th day of November 2020.

.............................................................
COUNSEL FOR THE PLAINTIFF

DRAWN & FILED BY:

M/S Firm Odida & co. Advocates
P.O Box 20, kampala Road
Barya Plaza
 THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MASAKA
FAMILY DIVISION
CIVIL SUIT NO.........................OF 2020
(ARISING OUT OF ADMINISTRATION CAUSE NO.340 OF 2019)

MARIA TEREZA BIRABWA..................................................................................PLAINTIFF

VERSUS
1. JANE FRANCIS NALWADDA....................................................................DEFENDANTS
2. YEKOYASI KIMBUGWE

PLAINTIFF’S MEDIATION CASE SUMMARY

(Under Rules 4(1) and 5(1) Judicature (Mediation) Rules 2013)

PARTIES TO THE SUIT.

Plaintiff
MARIA TEREZA BIRABWA.
Defendant
1. JANE FRANCES NALWADDA.

2. YEKOYASI KIMBUGWE

ADDRESS OF PARTIES.
Plaintiff.
M/S ODIDA & Co Advocates P.O. BOX 20 KAMPALA, Barya Plaza

Defendant.
Firm E1 & Co Advocates, Po box 7171 Mbarara Uganda.
 FACTS GIVING RISE TO THE PLAINTIFF’S CASE.
The facts leading the cause of action are as follows;
a) The Plaintiff is a daughter and beneficiary of the estate of the late Erasmus Ssimbwa

b) The deceased died on 20th-02-2016 leaving 100 acres of land comprised in Block 450 Plots
11 and 12 at Seeta Bukuya, Masaka

c) The Defendants have sold 10 acres on the part of the land and they still want to sale more

d) The Defendant made false declarations and concealed important information from the Court
in his application for the Letters of Administration thus misleading this Honourable Court.
PARTICULARS OF FRAUD
(i) Stating that the deceased was only survived by Jane Frances Nalwadda and and his children
Isaac Luzze and Stella Luzze aged 15 and 13 respectively.
(ii) The list of beneficiaries provided to Court left out the Biological children of the deceased
namely Maria Tereza Birabwa (the Plaintiff) aged 40 years, Yoaniana Najjuko (deceased),
Farasko Mbalire (deceased).
e) The defendants have sold 10 acres from part of the deceased's estate and stillare willing to sale
more

LEGAL COUNSEL FOR THE PLAINTIFF.

M/S Odida & Co Advocates P.O Box 20 Kampala,
PERSON TO SIGN FOR ANY SETTLEMENT.
For the plaintiff;
Plaintiff.
For the defendants;
Defendant.
PLAINTIFF’S LEAD NEGOTIATOR.
Onesmus Odida.
PROPOSED MEDIATOR.
Ass. Registrar High Court Kampala.
LIST OF DOCUMENTS.
Grant of Letters of Administration to the estate of Christine Birungi.
Any other with leave of court.

Dated at Kampala this 06th day of November 2020.

…………………………………………
M/S Odida & Co Advocates Kampala,

(COUNSEL FOR THE PLAINTIFF).

DRAWN AND FILED BY;

M/S Odida co. & advocates, Barya Plaza

P.o Box 20 kampala

PART B

BRIEF FACTS
Jane Frances Nalwadda and Yekoyasi kimbugwe obtained letter of administration from the chief
Magistrate’s Court at Masaka vide Masaka chief Magistrate Court Probate and Administration
cause no.145/2019 and their father’s estate was well within the said court’s monetary and
territorial Jurisdiction .In their application to court, they falsely started that they were the only
surviving relatives of the deceased.
ISSUES
1. What is the appropriate remedy is available to Maria Teresa Birabwa?
2. What’s the forum, procedure and legal documents to attain the above remedy?

LAW APPLICABLE
1. Constitution of the republic of Uganda 1995 as amended
2. Succession act cap 162
3. Small estate (special provision) (probate and administration) act cap 156
4. Civil procedure act cap 71
5. Small estates (special provision) (probate and administration) rules S.1 156-1)
6. Civil procedure rules S.1 7-1
7. Case law

PART B
What is the appropriate remedy available for Maria Theresa Birabwa.
Amendment and revocation of grant.
Rule 27 of the Administration of Estates (small Estates) (special provisions) (probate and
Administration) Rules provides that, (1) If the court is satisfied that a grant should be amended
or revoked, it may make an order accordingly.
(2) Except in special circumstances, no grant shall be amended or revoked under this rule except
on the application or with the consent of the person to whom the grant was made.
Rule 11 of the Administration of Estates (small Estates) (special) (probate and
Administration) Rules provides for the Order of priority for grant in case of intestacy that;
(1) The persons entitled to a grant of letters of administration shall be determined in accordance
with the following order of priority—
(a) the children of the deceased;
(b) the surviving spouse;
(c) the father or mother of the deceased;
(d) brothers and sisters of the whole blood, or the issue of any deceased brother or sister of the
whole blood who had died during the lifetime of the deceased and any persons entitled by virtue
of any enactment to be treated as if they were the children of the deceased; or
(e) the issue of any such child of the deceased, except that any person entitled to a grant of letters
of administration under paragraphs (a) to (d) of this sub rule may, with the consent of persons
entitled in the same degree in writing, authorize any person entitled in the next degree under
those paragraphs to apply for the grant.
Therefore Maria Theresa has priority to be granted the letters of Administration as their father
died intestate. The children of their deceased sister and brother are also entitled to a share on the
estate of their deceased parents.
Issue 2.
What is the procedure, forum and necessary documents for the above remedy.
Rule 12 of the Administration of Estates (small Estates) (special provisions) (probate and
Administration) rules provides for Institution of probate action and the procedure for
contentious probate and Administration. The procedure is that;
(1) Where a person desires to institute a probate action, that is to say, an action—
(a) to prove a will;
(b) to settle the right of two contending claimants to obtain a grant of administration; or
(c) for the revocation of probate or letters of administration previously granted, he or she shall
state in a plaint the nature of the interest of the plaintiff in the estate of the deceased to which the
action relates.
(2) The plaintiff's claim shall be served upon the defendant incorporated in a summons issued
under rule 15 of these Rules.
(3) A plaint for an action for the revocation of the grant of probate or letters of administration of
the estate of a deceased person shall not be issued unless a citation in Form 4A of the First
Schedule to these Rules has been issued or the probate or letters of administration, as the case
may be.
Thus there is need for a citation and it is necessary so as to give notice to other relatives of the
deceased entitled to greatest portions that an application for the grant has been made.
Section 203, Succession Act, provides that the letters of administration shall not be granted to
any relative if there is some other relative or an appointed customary heir entitled to a greatest
proportion of the estate until a citation has been issued and published in the manner hereafter
provided calling on that other relative or heir to accept or refuse letters of administration.
In Christine Male & Another v Sylifiya Mary Namanda & Another (supra) Kato AG, J.
held that since the second plaintiff’s sister had never advertised her letters of application, she
couldn’t be granted letters of administration.
Section 6(1), Administrator General Act provides also that the Administrator General shall
cause notice of his intention to apply for letters of administration to be published in the gazette at
least 14 days before making the application.
Rule 17 of The Administration of Estates (small Estates) (special provisions)(probate and
Administration) Rules provides that;
(1) Every citation shall issue from the court and shall be settled by a magistrate before being
issued in the appropriate Form 4 of the First Schedule to these Rules.
(2) The citer shall enter a caveat before issuing a citation.
(3) Every citation shall be served personally on the person cited unless the court, on good cause
shown, directs some other mode of service, which may include notice by advertisement.
(4) Every will referred to in a citation shall be lodged in court before the citation is issued, except
where the will is not in the citor’s possession and the court is satisfied that it is impracticable to
require it to be lodged.
(5) A person who has been cited to appear may, within twenty-one days of service of the citation
upon him or her inclusive of the day of the service, or at any time thereafter if no application has
been made by the citor for a grant, file a statement in court in duplicate. The court shall thereafter
serve on the citor a copy of the statement.
DOCUMENTS
Ordinary plaint
Summary of evidence
Mediation case summary