THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

(FAMILY DIVISION)
DIVORCE CAUSE NO. 0120 OF 2023
5 KATEME SARAH GRACE ========================== PETITIONER

VERSUS

KYOBE GRACE ================================= RESPONDENT

BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA

10

JUDGMENT

Introduction
This Judgment is in respect of a Divorce Petition filed in this Honorable Court by
15 the Petitioner against the Respondent for Orders that:
(a) The marriage between the Petitioner and Respondent be dissolved on grounds
of the Respondent’s cruelty and desertion;
(b) The Petitioner be granted custody of the three children;
(c) The Respondent pays school fees and all other requirements for the three
20 children;
(d) The Petitioner takes 50% of the properties acquired;
(e) The Respondent pays the costs of the Petition; and
(f) Any other relief as the Court may deem fit.

1
 Representation
At the hearing of the Petition, the Petitioner was represented by Mr. Mark Ashaba
of M/S Guma & Co. Advocates while the Respondent was represented by Mr.
Kenneth Kajeke of M/S Kajeke, Maguru and Co. Advocates.
5

The Petition
The Petition was filed in this Honorable Court on 11th July 2023 and the Respondent
filed an answer to the Petition on 2nd August 2023 with a Cross Petition against the
Petitioner and one OPIO PAPI JOEL in which he alleged that the Petitioner had
10 committed adultery with OPIO PAPI JOEL. In the Cross Petition, the Respondent
prayed for Orders that:
(a) A Decree Nisi be issued dissolving the marriage of the Cross-Petitioner and
the Respondent;
(b) Custody of the three (3) issues be granted to the Cross- Petitioner and the
15 Respondent be given visitation rights;
(c) The Respondent be permanently restrained from removing the children from
the matrimonial house;
(d) The Co-Respondent be permanently restrained from entering into the
Matrimonial Property at Bweyogerere;
20 (e) The Co-Respondent be ordered to pay general damages to the Cross-
Petitioner;
(f) The Co-Respondents pay the costs of the Cross Petition; and
(g) Any other just and equitable relief as the Honorable Court may deem fit.

25 On 12th September 2023, the Petitioner/ 1st Cross Respondent filed a Reply to the
Cross Petition while the 2nd Cross Respondent (MR. OPIO PAPI JOEL) filed a Reply

2
 to the Cross Petition on 20th March 2024 in which he denied committing adultery
with the Petitioner but stated that they are close relatives.
The Petitioner was her own only witness while the Respondent called a total of three
(3) witnesses, himself and 2 others. The 2nd Cross Respondent neither attended Court
5 nor offered any evidence.

Counsel for both parties filed written submissions and the same have been
considered in this Judgment.

10 Facts
The Petitioner and the Respondent got married on the 2nd day of February 2013 at St
Francis Chapel- Makerere, Kampala. They have three children aged 10 years, 6 years
and 4 years respectively. The couple lived in their home in Kirinya, Bweyogere,
Wakiso District. The marriage was not peaceful and the Respondent deserted the
15 Petitioner and the children in the matrimonial home and went to an unknown place.

On 23rd April 2023, the Respondent got a tip-off that OPIO PAPI JOEL whom he
suspected to be having an extra-marital affair with the Petitioner was in the home
with the Petitioner. He went to the Kirinya Police station and reported and together
20 with some police officers, the Petitioner and OPIO PAPI JOEL were arrested from
the parties' matrimonial home. They were taken to police and Joel was later charged
with the case of Criminal Trespass at Kira Magistrates’ Court.

The Respondent then sent the Petitioner to her parents’ home in Mbale pending the
25 resolution of the marital disagreement. The Petitioner left the home with the children
and petitioned for divorce on grounds of cruelty and desertion. In response, the

3
 Respondent also cross-petitioned for divorce on grounds of adultery with one Opio
Papi Joel.

Issues
5 1. Whether there are grounds for the dissolution of the marriage between the
Petitioner and the Respondent;
2. Whether there are any matrimonial properties, and if so, how should the same
be distributed;
3. Who should have the custody and maintenance of the children?
10 4. What remedies are available to the parties?

Resolution of Issues

Issue 1: Whether there are grounds for the dissolution of the marriage between
15 the Petitioner and the Respondent.
The ground pleaded and relied on by the Petitioner is cruelty and desertion.

Cruelty
Counsel for the Petitioner submitted that the Petitioner adduced uncontroverted
evidence to the effect that the Respondent was very violent towards her and he also
20 denied her conjugal rights. He further submitted that the Petitioner reported a case
of domestic violence against the Respondent at Kirinya Police Post. Counsel also
submitted that the Respondent in his evidence during cross-examination admitted
having at one time locked the Petitioner and the children out of the home and they
spent the night on the verandah.
25

4
 While relying on the case of Habyarimana versus Habyarimana [1980] HCB 139
and Kirungi versus Mugabe, Divorce Cause No. 0048 of 2013, Counsel argued that
the Petitioner adduced sufficient evidence to the satisfaction of the Court that the
conduct of the Respondent amounted to cruelty because it caused mental and
5 psychological torture to the Petitioner.

On the other hand, Counsel for the Respondent submitted that the Respondent was
not cruel to the Petitioner and the evidence adduced by the Petitioner in support of
her claim falls short of proving cruelty against the Respondent. He contended that
10 whereas the Petitioner adduced the evidence of a Police Reference for domestic
violence, she neither adduced any medical report nor any other corroborative
evidence. While relying on the case of Habyarimana (supra), Counsel insisted that
the conduct of the Respondent as complained of by the Petitioner did not amount to
cruelty because it did not have the effect of producing actual or apprehended injury
15 to the Petitioner’s physical and mental health. According to him, the Petitioner
failed to adduce sufficient evidence to prove cruelty on the part of the Respondent
and prayed that the Petition be dismissed.

Court’s determination
20 Section 4 of the Divorce Act provides the grounds under which a husband and a wife
can petition for divorce. However, our Courts have pronounced themselves on the
unconstitutionality of those grounds in the case of Uganda Association of Women
Lawyers and Others versus Attorney General Constitutional Petition No. 0002 of
2000. In this case, it was held that Section 4 of the Divorce Act is null and void in
25 as far as it required women to prove many grounds for divorce as opposed to men
who were required to prove only one. The Court considered this as discrimination
on the basis of sex and in violation of the equality provisions under the 1995
5
 constitution of the Republic of Uganda. It was the view of the learned Justices that
all grounds of divorce mentioned in Section 4 (1) and (2) of the Divorce Act are
available to both parties to the marriage.

5 In the instant case, the Petitioner seeks to rely on the ground of cruelty by the
respondent. In the case of Habyarimana versus Habyarimana [1980] HCB 139,
(cited by both parties in their submissions) it was held that there is no definition of
cruelty in the Divorce Act but case law has established that no conduct can amount
to cruelty unless it has the effect of producing actual or apprehended injury to the
10 Petitioner’s physical and mental health. That there must be danger to life, limb or
health, bodily or mental or reasonable apprehension of it to constitute cruelty.

In the case of Vivian Ntanda versus James Kayemba Divorce Cause No. 0004 of
2008 (2008) HCB it was held that:
15 “There is no comprehensive definition of cruelty accepted as satisfactory. It depends on the habits
and circumstances of the matrimonial life of the husband and wife, their characters, the normal
mode of conduct to one another, and the knowledge which each has of the intention and feelings
of the other. The party seeking relief must prove probable injury to life, limb, or health. A decree
could be granted even upon a single act of cruelty.”
20

In the case of Sarah Kiyemba versus Robert Batte Divorce Cause No. 0127 of 2018
the Court used the dictionary definition of cruelty to mean, “Readiness to give pain
or cause suffering to others”.

25 As already observed, the Petitioner was the only witness supporting her case. The
Petitioner testified that since the solemnization of the marriage with the Respondent,
the relationship has been very stormy and unhappy. She stated that the Respondent

6
 chased her from the home with three children without providing any alternative
means of survival for her and the children. She also testified that before that, the
Respondent had deserted her with the children for five (5) years and she single-
handedly took up the responsibility of taking care of the children. It was also the
5 evidence of the Petitioner that she reported a case of domestic violence against the
Respondent at Kirinya Police station. She adduced a Police Referral Form which
was admitted as PEX3. During cross examination, the Petitioner testified that from
the time she got married to the Respondent, he was quarrelsome and would batter
her and she would always go to her matron.
10

On the other hand, the Respondent in his evidence did not expressly deny being cruel
to the Petitioner but stated that it is the Petitioner who caused him psychological and
emotional torture because she was engaged in an extra-marital affair with one Opio
Papi Joel. He said that he was in fear for his life and that is why he decided to leave
15 the home. However, in his testimony, he admitted having locked the Petitioner and
children outside once because she returned home very late in the night from her
extra-marital visits. According to him, the Petitioner had kept the children away
from home and when she returned, she picked them to disguise her conduct. He
stated that he locked the Petitioner out so that she could learn some lessons and
20 change her behavior but even then, he spent a night in the sitting room monitoring
the Petitioner and the children on the verandah.

As already observed, the Petitioner was the only witness in support of her claim of
cruelty on the part of the Respondent. I agree with Counsel for the Respondent that
25 the Petitioner did not adduce any corroborative evidence in support of her claim. I
have looked at the Police Referral letter where the Petitioner is said to have reported
a case of domestic violence (PEX3) and I note that it is dated 12th June 2023. As of
7
 this date, the parties were not living together and the Petitioner had already been sent
to her parents by the Respondent pending the resolution of the marital conflict. The
letter sending the Petitioner to her parents is dated 24th April 2023. (PEX2).
The Petitioner in her evidence stated that the Respondent became violent
5 immediately after the marriage and she would often report to her matron. However,
she did not adduce the evidence of her matron or any other person and since she said
that she had also been reporting to the Police, I would have expected the Petitioner
to adduce the evidence of Police for the period when she was still living in the home
with the Respondent.
10

In the case of Kasingye Emmanuel versus Genevieve Civil Appeal No. 0096 of
2014, Hon. Lady Justice Eva Luswata (as she then was) observed thus:
“...I note that the Respondent gave quite an extensive testimony detailing matrimonial offences
against the Appellant. The Appellant denied any wrongdoing and in my view, produced sufficient
15 evidence of the Respondent’s adultery which she did not contest. I fear that much, if not all of the
Respondent’s testimony was her uncorroborated evidence. I am aware that no number of witnesses
are required to prove a fact. However, in the circumstances of this case, it was necessary for the
Respondent to have produced additional evidence or witnesses to back up her story. She may have
had good reason to protect her children from testifying, but the couple’s long-term disagreements
20 were allegedly reported to various Police Stations, church elders and even her workmates had
some knowledge of the marriage discourse. These were vital witnesses who could have been called
to back up the claims of physical and psychological cruelty... Proof of facts under the Divorce Act
have been placed at a pedestal higher than a mere balance of probabilities. According to the
decision in Dr. Specioza Wandera Kazibwe versus Engineer Nsubuga Kazibwe Divorce Cause
25 No. 3 of 2003, the standard of proof is higher than what is ordinarily required in other civil matters
but not as high as that required in criminal cases.

In the case of Habyarimana (supra), the Court stated that:

8
 “… the standard of proof of adultery and cruelty is above the ordinary preponderance of evidence
but not as high as beyond reasonable doubt. In satisfying the aforementioned standard, the
Petitioner must do so by leading evidence to prove the alleged grounds.”

5 Applying the above principles of the law in light of the evidence adduced by the
Petitioner, it is my finding that it would ordinarily fall short of the required standard
which is above the balance of probabilities.

However, the Petitioner also testified that the Respondent abandoned the home
10 thereby denying her companionship and conjugal rights. It is my considered view
that it may not be possible to have an independent witness to support the Petitioner’s
evidence that the Respondent denied her companionship and conjugal rights since
this is a very private matter and may be only within the knowledge of the parties
responsible. The Petitioner’s evidence alone would in my view be sufficient but it is
15 also corroborated by the testimony of the Respondent who admitted having left the
petitioner in the home with the children. Clearly, by this conduct, the Respondent
denied the Petitioner companionship and conjugal rights.

In the case of Sarah Kiyemba versus Robert Batte Divorce Cause No. 127 of 2018
20 (supra) Hon. Lady Justice Ketrah K. Katunguka held that:
“Denial of companionship and a right to conjugal both embedded in the marriage contract without
reason causes suffering and mental torture and therefore amounts to cruelty.”

She further stated that “a marriage without companionship and intimacy unless by
25 consent of parties does not exist… that marriage has irretrievably broken down.”

9
 In light of the above Court decision and on the account of the adduced evidence, I
find that the ground of cruelty has been sufficiently proved by the Petitioner. As
earlier observed, the Petitioner was the only witness to the Petitioner’s case. I find
that the Petitioner has satisfied this Court that the Respondent was cruel to her by
5 denying her companionship and conjugal rights.

Desertion
While relying on Section 4 of the Divorce Act and the case of Katushabe Margaret
versus Kaboyo Paddy, Civil Appeal No. 0007 of 2021, Counsel for the Petitioner
10 submitted that the Respondent deserted her by abandoning the matrimonial home,
denying her conjugal rights and leaving her with the burden of taking care of the
home and the children and yet she was not gainfully employed.

On the other hand, Counsel for the Respondent contended that the Petitioner did not
15 adduce evidence sufficient to prove the ground of desertion against the Respondent.

Court’s determination
Black’s Law Dictionary 9th Edition 2009, at page 211, defines desertion as:
“The willful and unjustified abandonment of a person’s duties or obligations, especially to military
20 service or to a spouse or family. In Family Law, the five elements of spousal desertion are 1) a
cessation of cohabitation, 2) the lapse of a statutory period, 3) an intention to abandon, 4) a lack
of consent from the abandoned spouse, and 5) a lack of spousal misconduct that might justify the
abandonment.
To establish desertion, two things must be proved: first certain outward and visible conduct- the
25 factum of desertion and secondly the "animus deserendi"- the intention underlying this conduct
to bring the matrimonial union to an end. In ordinary desertion, the factum is simple: it is the act
of the absconding party in leaving the matrimonial home.”

10
 As it is put in Rayden and Jackson on Divorce and Family Matters 17th Edition,
paragraph 8.33, “In its essence desertion is the separation of one spouse from the
other with an intention on the part of the deserting spouse of bringing cohabitation
permanently to an end without reasonable cause and without the consent of the other
5 spouse. (See: Katushable Margaret (supra), Kyzyma Kateryna versus Walter
Okello Angol, Divorce Cause No. 79 of 2022 and Lang Versus Lang (1954) 3
ALL ER 571)

The Petitioner testified that the Respondent deserted her and the children for 5 years.
10 The Respondent in his evidence admitted having left the home but claimed that it
was for fear of his life. According to him, his life was in danger because the
Petitioner would be receiving strange phone calls at home and he feared for his life.
However, the Respondent did not adduce any evidence to the satisfaction of the
Court that there was justification for his leaving the home. Court was left wondering
15 as to what exactly he was afraid of. He claimed that he feared because his wife was
engaged in extra-marital affairs and he got scared that he would lose life. Supposing
it was true, would that make a man abandon his home? It is my considered view that
as the head of the home, the Respondent would have remained in the home to
safeguard his wife and the children. To me, this excuse lacks merit and I find that
20 the Petitioner has adduced evidence to the satisfaction of the Court that the
Respondent deserted her and the children. This Petition would therefore succeed on
grounds of cruelty and desertion by the Respondent.

The Cross Petition

25 The Respondent in his Cross-Petition petitioned for divorce on grounds of adultery
on the part of the Petitioner. According to him, the Petitioner committed adultery
with one OPIO PAPI JOEL who is also sued as the 2nd Cross Respondent.
11
 Counsel for the Respondent/ Cross Petitioner submitted that the Cross Petitioner had
adduced sufficient evidence to prove that the Petitioner/1st Cross Respondent
committed adultery with OPIO PAPI JOEL (2nd Cross Respondent). He argued that
5 the Respondent adduced evidence of photographs showing the Petitioner with one
OPIO PAPI JOEL and her claim that he was a relative and not an intimate partner
was false because she did not adduce any evidence to support her claim.
He insisted that the claim by OPIO PAPI JOEL in his pleadings that he was a relative
to the Petitioner is of no evidential value because he neither appeared in the Court
10 nor adduced any evidence.

Counsel for the Petitioner/ 1st Cross Respondent did not make any submissions on
this issue.

15 Court’s determination
In the case of Mayambala versus Mayambala Divorce Cause No. 0003 of 1998
(HC), adultery was defined as voluntary sexual intercourse between a married
person and a person of the opposite sex, the two persons not being married to each
other.
20

Since it is hard to directly capture the individuals in the adulterous acts, Courts have
adopted reliance on circumstantial evidence which, however, must be corroborated.
(See: Dr. Specioza Wandira Naigaga Kazibwe versus Eng. Charles Nsubuga
Kazibwe, Divorce Cause No. 0003 of 2003).
25

Ntabgoba, PJ, in George Nyakairu versus Rose Nyakairu [1979] HCB, 261,
commented thus:
12
 “In allegations of adultery, it is not necessary to prove the direct fact of adultery for that fact is
almost to be inferred from circumstances as a necessary conclusion since it is indeed very rare
that parties are ever surprised during the direct act of adultery.”

5 The institution of marriage is sacred and it goes beyond the parties to it. Once a
marriage is instituted, there are other stakes involved such as the families, the
community, the church and the children where the marriage has been blessed with
the children. It should therefore not be dissolved at ease. The grounds for divorce
must be clearly and not merely implied. The standard of proof therefore has been
10 stated by the Courts to be higher than that of the balance of probability.

In the case of Veronica Habyariman versus Perfect Habyarimana (supra), it was

held that:
“…in adultery, the burden of proof lies throughout on the person alleging it, there being
15 no presumption of innocence…on the standard of proof of adultery, it is now well settled that
where there is an allegation of adultery, it must be proved to the satisfaction of the Court. While
the evidence need not reach certainty, nevertheless, it must carry a high degree of probability.”

In the instant case, the Respondent/ Cross Petitioner testified that the Petitioner was
20 involved in an adulterous relationship with one OPIO PAPI JOEL and his efforts to
stop her were in vain and when he feared for his life, he left the home. He stated that
when he left, he kept on receiving information that the Petitioner would leave the
home and return late in the night and on some other occasions, she would bring OPIO
PAPI JOEL in the home and the two would sleep on his bed. He also mentioned in
25 his evidence that his immediate neighbor informed him that he was always seeing a
man going into his home and leaving with the Petitioner and returning late in the
night and the children confirmed that the man was “Uncle Joel who sleeps with
mummy in daddy’s bed”. However, the said neighbor was never brought as a witness
13
 and so any information allegedly provided by him is hearsay which this Court cannot
rely on.
However, the Respondent/ Cross Petitioner also testified that on Sunday 23 rd April
2023, the housemaid at the matrimonial home came to him with his youngest child
5 for treatment because the Respondent runs a Health Facility. She was in the company
of the other two children. The Cross- Respondent in the company of his neighbor,
Charles, and the Community Chairperson Yahaya inquired from the housemaid
about the conditions in the home. It was then that the housemaid revealed that Uncle
JOEL as they used to call him was always in the home and sleeping with the
10 Petitioner and even on that day, she had left him in the home with the Petitioner, and
the Petitioner had cautioned them to delay and return home at 8:00 pm.

Upon receiving that information, the Respondent rushed to Kirinya Police Station
where he had previously reported the matter, and together with the Police they went
15 to the home. When they reached the home, OPIO PAPI JOEL went into hiding but
police searched until they found him in the children’s bedroom. Both OPIO PAPI
JOEL and the Petitioner were arrested and taken to Kirinya Police Station where
they were detained. OPIO PAPI JOEL was facing criminal charges at Kira
Magistrates Court during the hearing of this matter.
20

Although the housemaid was never produced in the Court as a witness, the fact that
OPIO PAPI JOEL was arrested in the home of the Couple was neither denied nor
rebutted. The Petitioner admitted that Joel was arrested from the house when he had
gone to visit her.
25

The Respondent also adduced evidence of photographs where the Petitioner and
OPIO PAPI JOEL were attending functions together and at Rugby events.
14
 The Respondent further adduced the evidence of one Sarah Natale (RW2) who
testified that she was cohabiting with OPIO PAPI JOEL for three years and together
they have a male child. She stated that JOEL left home and went to work but did not
5 return for some days. She later received information from his friend that JOEL had
been arrested in an adulterous act in another man’s home in Bweyogere. She at first
did not believe because JOEL was at the time sending her messages that he was at
work and also engaged in church activities. After about a week, she went and found
JOEL at Kira Magistrates’ Court and Sarah Kateme (Petitioner) was also there and
10 working very hard with lawyers to secure JOEL’s bail. After JOEL was granted bail,
he abandoned his home and he is currently staying with the Petitioner as an intimate
partner. The evidence of RW2 went unchallenged during cross-examination.

On her part, the Petitioner admitted knowing JOEL and she also admitted having
15 been arrested with Joel in the matrimonial home. However, she denied having
committed adultery with him and insisted that Joel is her relative. When asked how
she was related to Joel, she stated that their grandmothers were sisters.

I have considered the circumstantial evidence adduced by the Respondent/Cross-

20 Petitioner and I am satisfied that it is sufficient to prove that the Petitioner was
engaged in an adulterous relationship with JOEL. Her claim that JOEL is a relative
was not substantiated in light of the other evidence adduced against her. My finding
is backed by the following reasons:
1. If JOEL was indeed a relative, the Respondent who had been married to the
25 Petitioner for some time would have known him as such. The Respondent

15
 stated that he knew all the other brothers of his wife but JOEL was not among
them.
2. Ms. Nantale Sarah (RW2) testified that she knew the close relatives of JOEL
and Sarah was not among them and she had not met her before until she found
5 her with JOEL at Kira Magistrates Court.
3. If indeed JOEL was a relative, at least one of the parents of the Petitioner
would have come to the Court to support her claim. In the face of serious
allegations of adultery, a parent who is fully aware of the existence of a blood
relationship would be willing and eager to come and assist the Court to arrive
10 at an informed decision. None of the known relatives of the Petitioner was
produced in the Court.
4. I also looked at the letter of the O.C of the Child and Family Protection
Department of Kirinya Police Station written to the Magistrate Kira
Magistrates Court (REX9) in which he stated that the parties had been called
15 to the Police for a meeting with their families with a view of resolving the
domestic matter. However, whereas the Cross Petitioner and his family went
for the meeting, the Petitioner and her family did not appear for the meeting.
I find that this would also have been an opportunity for the family to explain
the relationship and clear any doubts.
20 5. JOEL himself who is accused of having an adulterous relationship with the
Petitioner should also have used the Police and the Court as an opportunity to
explain the relationship. However, after filing his Reply to the Cross Petition
by himself without the help of a lawyer, he chose not to come to the Court.

25 In light of the above, it is my finding that the Cross- Petitioner has satisfied the Court
that the Petitioner committed adultery with one OPIO PAPI JOEL.

16
 Consequently, therefore, the Respondent/ Cross Petitioner is guilty of cruelty and
desertion while the Petitioner/ 1st Cross Respondent is guilty of adultery.
Accordingly, issue No.1 is answered in the affirmative.

5 Issue 2: Whether there are any matrimonial properties, and if so, how should the
same be distributed?
The Petitioner contended that during the subsistence of the marriage, the parties
jointly acquired the following matrimonial property:
(a) Matrimonial house in Kirinya- Kampala;
10 (b) Two roomed house in Kibuli- Kampala;
(c) Kyobe Medical Center in Kirinya- Kampala.
(d) Land in Zion Estate measuring 100ft by 200ft.

Whereas the Petitioner contended that the all the above-named properties were
15 matrimonial, the Respondent insisted that all the above properties were acquired by
him exclusively and without the contribution of the Petitioner and are therefore not
matrimonial.

(a) Matrimonial house in Kirinya- Kampala

20 The Petitioner testified that this was not titled land but it is where a self-contained
two-bedroomed matrimonial home was constructed and that is where the family was
staying before she was sent away to her parents in Mbale by the Respondent. She
informed the Court that before the acquisition of the land, the family was living in
rented premises and the process of the acquisition of the land happened in 2013
25 immediately after the marriage. She further testified that she did not make any
monetary contribution towards the acquisition of the land and neither did she make
any monetary contribution towards the construction. However, she was responsible
17
 for taking care of the home and cooking for the builders. She also testified that her
parents made a financial contribution of UGX 2,000,000 towards the construction of
the home. Construction was concluded in 2017 and the family moved into the house.

Later, the couple started constructing a storied building on the same land which was
5 meant to be for rent but it was incomplete. She also testified that she did not make
any financial contribution towards the construction of this storied building but she
was still cooking for the builders.

The Petitioner further testified that before her marriage, she was working as a
10 receptionist at Bugolobi Medical Center and she was earning UGX 600,000 (Uganda
Shillings Six Hundred Thousand). However, upon marriage, the Respondent, who is
a Laboratory Technician had started a business by the name of KYOBE MEDICAL
CENTRE for the family. The same was being housed in rented premises. The
Petitioner then started working in the Medical Centre as an administrator without a
15 salary and every time she demanded for a salary, the Respondent told her that it was
not necessary because she was eating food. When she stopped working at the
Medical Center, from 2019 to 2023, she started a cake-baking business at home and
she was using the proceeds to sustain the home because the Respondent had then
deserted the home. He is said to have deserted in 2019.
20

On the other hand, apart from insisting that the property was his exclusively, the
Respondent did not rebut the evidence of the Petitioner pertaining her contribution
towards the matrimonial home.

25 (b) Two roomed house in Kibuli- Kampala

18
 It was the Petitioner’s evidence that when she started cohabiting with the Respondent
before the church wedding, the Respondent was staying in one room in Kibuli. They
started staying together in that same room from 2009 to 2013. She further testified
that she demolished the room and built two rooms. She testified that she did this
5 alone because the Respondent did not have money then and she believed she was
doing everything for the family. Later, when they shifted to Bweyogerere, the two
rooms were put to rent. However, they have since been separated into two separate
rooms and the Respondent collects rent from there.

10 The Respondent did not dispute this evidence of the Petitioner about her contribution
on the Kibuli property.

(c) Kyobe Medical Center in Kirinya- Kampala

Regarding this, no evidence was adduced as to whether it was a company,
15 partnership or sole proprietorship. However, whereas the Respondent insisted that it
was his business singly, the Petitioner contended that though it is true the
Respondent started the business singly, it was a family business and she worked
therein as an administrator without being paid any salary from 2016 to 2019 when
she was chased by the Respondent. She testified that to date, clients call her
20 concerning the Medical Centre.

(d) Land in Zion Estate measuring 100ft by 200ft

There was no evidence adduced regarding the description of this property. The
Petitioner testified that she did not know the Block and Plot numbers but it is located
25 in Matugga and it was vacant and undeveloped. She further testified that she bought
the land jointly with the Respondent whereby she contributed UGX 2.5 M and the

19
 Respondent also contributed UGX 2.5M. Both the agreement and the Certificate of
Title were in joint names but were being kept by the Respondent.

The Respondent did not dispute this the evidence as adduced by the Petitioner but
contended that the land belonged to their children.
5

Court’s determination
In the case of Julius Rwabinumi versus Hope Bahimbisomwe SSCA No. 0010 of
2009 which cited with approval the approach adopted by Bbosa J (as she then was)
in Muwanga versus Kintu High Court Divorce Appeal No. 135 of 1997
10 (unreported). Justice Bbosa observed thus:
“Matrimonial property is understood differently by different people. There is always property
which the couple choose to call home. There may be property which may be acquired separately
by each spouse before or after marriage. Then there is property which a husband may hold in trust
for the clan. Each of these should in my view be considered differently. The property to which each
15 spouse should be entitled is that property which the parties choose to call home and which they
jointly contribute…”

It was further pointed out in the above Court decision that what amounts to
contribution to earn a spouse a share in the property may be direct and monetary or
20 indirect and non-monetary.

In the case of Kamore versus Kamore [2000]1 EA 89 cited in Ayiko Mawa Solomon
(supra), the Court of Appeal observed:
“Where property is acquired during the course of coverture and is registered in joint names of
25 both spouses, the Court in normal circumstances must take it that such property being a family
asset is acquired in equal shares”.

In Ayiko Mawa Solomon (supra), Court observed that:

20
 “Where the disputed property is not so registered in the joint names of the spouses but is registered
in the name of one spouse, the beneficial share of each spouse would ultimately depend on their
proven respective proportions of financial contributions either direct or indirect towards the
acquisition of the property” (Emphasis is mine)
5

In the instant case, as already observed, the Petitioner was her only witness while
the Respondent called two witnesses, in addition to himself in support of their
individual claims. None of the Respondent’s witnesses testified in respect of the
properties. Their testimony was towards proving the act of adultery by the Petitioner
10 and the fact that the Respondent was a responsible man who took care of his family.

In light of the above definition of matrimonial property and the evidence adduced, it
is my finding that all the properties mentioned by the Petitioner in her evidence
namely: the Matrimonial house in Kirinya- Kampala, two roomed house in Kibuli-
15 Kampala, Kyobe Medical Center in Kirinya- Kampala and land in Zion Estate
measuring 100ft by 200ft amount to matrimonial Property.

The land in Zion Estate measuring 100ft by 200ft in Matugga, though not properly
described by Block and Plot numbers, I am satisfied that it exists in actual sense. I
20 also believe that it is registered in the joint names of the parties and the only
inference this Court can make is that the parties intended to be equal owners and
beneficiaries.

In respect to the other properties namely: the Matrimonial house in Kirinya-

25 Kampala, and Kyobe Medical Center in Kirinya-Kampala, I find that though the
Petitioner admitted that she did not make any financial contribution, this Court finds
that she made non-financial contribution. Regarding the matrimonial home, she

21
 testified that she was taking care of the home and also cooked for the builders. She
also testified that her parents made a contribution of UGX 2M (Uganda Shillings
Two Million) towards the construction. This was also the place she called home and
lived there with her children until when she was sent to her parents in April 2023.
5 As for Kyobe Medical Centre, though started by the Respondent singly, it was the
undisputed evidence of the Petitioner that she considered it to be a family business
and she worked therein as an Administrator from 2016 to 2019 without pay. It is the
finding of this Court that this contribution and sacrifice cannot be under estimated
or downplayed. The Petitioner invested her time and skill to grow the business and
10 as she testified, to date, the clients still associate her with the facility. May be if she
was gainfully employed elsewhere, she would have earned money to enable her
acquire her own property.

Regarding the Kibuli two rooms, where as it is true that the land was acquired by the
15 Respondent singly, the Petitioner made a contribution in building the second room.

Consequently, therefore, the matrimonial property shall be distributed as follows:

(a) The Petitioner shall be entitled to 30% of the Matrimonial Property in Kirinya-
Bweyogere. This includes both the house where the couple was staying and
20 the storied house.
(b) The property shall be valued by the Chief Government Valuer at the expense
of both parties immediately upon this Judgment and the Respondent shall
compensate the Petitioner the equivalent of 30% of the total value of the
property within six months from the date of the valuation.
25 (c) In the ALTERNATIVE, if the Respondent is unable to compensate the
Petitioner within the six months after the valuation, the property shall be sold

22
 and the Petitioner shall be entitled to 30% while the Respondent shall be
entitled to 70% from the proceeds of the sale.
(d) Each party shall take one room on the Kibuli property. Ordinarily, the
Respondent should have taken a bigger share of this property because the land
5 was exclusively his. However, because it can be easily distributed as
compared to Kyobe Medical Centre, each shall have a separate room but the
Petitioner shall forfeit her would-be entitlement in Kyobe Medical Center.
(e) Following (d) above, the Respondent shall exclusively take Kyobe Medical
Centre.
10 (f) The Respondent shall avail the Certificate of Title for land at Matugga in Zion
estate not later than fourteen (14) days from the date of this Judgment and the
same shall be shared equally between the parties. It shall be valued by the
Chief Government Valuer at the expense of both parties. It shall be sold and
the proceeds shared equally within six months from the date of the valuation.
15 (g) In the ALTERNATIVE, since the Respondent is the one in possession
thereof, if he desires to retain it, he shall compensate the Petitioner the
equivalent of 50% of the total value of the property within six months from
the date of the valuation.

20 Issue 3: Who should have the custody and maintenance of the children?
Counsel for the Petitioner submitted that the Petitioner should be granted full
custody of the children while the Respondent should be granted visitation rights.
Counsel for the Petitioner insisted that the Respondent was an irresponsible father
who abandoned the children and should therefore not be given custody of the
25 children. Counsel further prayed that the Respondent should be ordered to maintain
the children.

23
 On the other hand, Counsel for the Respondent contended that the Respondent
should be granted full custody of the children because the Petitioner is currently
living with another man as per the evidence of Ms. Sarah Nantale (RW1). According
to him, the claim by the Petitioner that she currently resides with the children in
5 Mbale is not true because RW1 gave unchallenged evidence that the Petitioner
resides in Entebbe with JOEL.

Court’s determination
Article 31 (4) of the Constitution provides that it is the right and duty of the parents
10 to care for and bring up their children. Article 31 (5) further provides that the
children may not be separated from their families or persons entitled to bring them
up against the will of their families or those persons except in accordance with the
law. Article 34 (1) thereof provides that children shall have a right to know and be
cared for by their parents or those entitled by law to bring them up subject to laws
15 enacted in their best interests. Section 29 of the Divorce Act is to the effect that in
suits for dissolution of the marriage, the Court may at any stage of the proceedings
or after the Decree Absolute has been pronounced, make such order as it thinks fit
and may from time to time vary or discharge the orders concerning custody,
maintenance and education of the minor children of the marriage.
20

In light of the above and in light of the evidence adduced before me, I believe that
both parents are fit and capable of having custody of the children. The Petitioner and
the Respondent shall have shared custody of all the children who are aged ten (10),
six (6) and (4) years. The Petitioner shall have custody during the school term while
25 the Respondent shall have custody during the holidays. However, if they are in a
boarding school, the holidays shall be shared between the Petitioner and the
Respondent equally. Both parents shall have visitation rights at the school.
24
 Regarding maintenance, both parents shall have a shared responsibility to maintain
the children because they are all capable. The Petitioner informed the Court that she
runs a business while the Respondent informed the Court that he is gainfully
5 employed by Njeru Town Council and also runs a Health Facility in the name of
Kyobe Medical Centre. The Respondent shall provide school fees and medical care
for all the children while the Petitioner shall provide school requirements and
clothing. Both parties shall provide food when the children are in their custody.
Both parties shall agree on the schools and health facilities for the children.
10 Issue 4: What remedies are available to the parties?
The Petitioner sought the following reliefs:
(a) The marriage between the Petitioner and Respondent be dissolved on grounds
of the Respondent’s cruelty and desertion;
(b) The Petitioner be granted custody of the three children;
15 (c) The Respondent pays school fees and all other requirements for the three
children;
(d) The Petitioner takes 50% of the Properties acquired;
(e) The Respondent pays costs of the Petition; and
(f) Any other relief as the court may deem fit.
20

On the other hand, the Respondent/ Cross Petitioner in the Cross Petition prayed for
Orders that:
(a) Decree Nisi be issued dissolving the marriage of the Cross-Petitioner and the
Respondent;
25 (b) Custody of the three (3) issues be granted to the Cross- Petitioner and the
Respondent be given visitation rights;

25
 (c) The Respondent be permanently restrained from removing the children from
the matrimonial house;
(d) The Co-Respondent be permanently restrained from entering into the
Matrimonial Property at Bweyogerere;
5 (e) The Co-Respondent be ordered to pay general damages to the Cross-
Petitioner;
(f) The Co-Respondents pay the costs of the Cross Petition; and
(g) Any other just and equitable relief as the Honorable Court may deem fit.

10 The dissolution of the marriage, custody, and maintenance of the children and
property have been exhaustively discussed above. What remains to be discussed is
the issue of damages and costs.

Damages
15 The Cross Petitioner prayed for general damages of UGX 70M (Uganda Shillings
Seventy Million) against the 2nd Cross Respondent Mr. OPIO PAPI JOEL. Counsel
for the Cross Petitioner submitted that the 2nd Cross Respondent committed adultery
with the Petitioner (1st Cross Respondent) and destroyed the marriage of the Cross
Petitioner with the Petitioner. According to him, this occasioned great pain and loss
20 to the Cross Petitioner.

As already noted, the 2nd Cross Respondent only filed a Reply to the Cross Petition
and neither attended court not adduced any evidence in his defence. However, from
the above discussion, the evidence adduced against him is sufficient to prove that he
25 committed adultery with the Petitioner, who was a wife of the Cross Petitioner.

26
 I am in agreement with Counsel for the Cross Petitioner that the actions of the 2nd
Cross Respondent caused pain and emotional stress to the Cross Petitioner
warranting payment of damages.

5 Whereas the Cross Petitioner prayed for UGX 70M, it is my finding that that is on
the higher side and it is my considered opinion that damages of UGX 10M (Uganda
Shillings Ten Million) would meet the ends of justice in this case. I have considered
the fact that the Cross Petitioner contributed to this situation. Evidence was adduced
in this Court that the Cross Petitioner deserted the home and left the Petitioner on
10 her own. Whereas adultery cannot be condoned, that may explain why the Petitioner
ended up in an adulterous relationship.

Costs
Section 27 (1) of the Civil Procedure Act, Cap. 282 provides for costs and stipulates
15 that, subject to such conditions and limitations as may be prescribed, and to the
provision of any law for the time being in force, the costs of and incident to all suits
shall be at the discretion of the Court or Judge, and the Court or Judge shall have full
power to determine by whom and out of what property and to what extent those costs
are to be paid, and give all the necessary directions for the purposes aforesaid.
20

In these circumstances, I find that each party shall bear its own costs.

Conclusion
Consequently, both the Petition and Cross Petition partly succeed on the following
25 declarations and Orders:
(a) The marriage between the Petitioner and the Respondent which was
solemnized on 2nd of February 2013 is hereby dissolved on the ground of
27
 cruelty and desertion by the Respondent and adultery by the Petitioner and a
Decree Nisi hereby issues.

(b) The parties shall have joint custody of all the children which shall be managed
5 as follows:
(i) The Petitioner shall have custody during the school term while the
Respondent shall have custody during the holidays; and
(ii) If the children are in a boarding school, the holidays shall be shared
equally between the Petitioner and the Respondent. Both parents shall
10 have visitation rights at the school.

(c) The maintenance of all the children shall be a shared responsibility between
the Petitioner and the Respondent to be managed as follows:
(i) The Respondent shall provide school fees and medical care for all the
15 children while the Petitioner shall provide school requirements and
clothing;
(ii) Both parties shall provide food when the children are in their custody;
and;
(iii) Both parties shall agree on the schools and health facilities for
20 the children.

(d) Matrimonial house in Kirinya- Kampala, the two-roomed house in Kibuli-

Kampala, Kyobe Medical Center in Kirinya- Kampala, and Land in Zion
Estate measuring 100ft by 200ft amount to matrimonial property and shall be
25 distributed as follows:

28
 (i) The Petitioner shall be entitled to 30% of the matrimonial property in
Kirinya-Bweyogere. This includes both the house where the couple was
staying and the storied house.
(ii) The property shall be valued by the Chief Government Valuer at the
5 expense of both parties and the Respondent shall compensate the Petitioner
the equivalent of 30% of the total value of the Property within six (6)
months from the date of the valuation.
(iii) In the ALTERNATIVE, if the Respondent is unable to compensate the
Petitioner within six months after the valuation, the property shall be sold
10 and the Petitioner shall be entitled to 30% while the Respondent shall be
entitled to 70% from the proceeds of the sale.
(iv) Each party shall take one room on the Kibuli property.
(v) The Respondent shall exclusively take Kyobe Medical Centre.
(vi) The Respondent shall avail the Certificate of Title for land at Matugga
15 in Zion estate not later than fourteen (14) days from the date of this
Judgment and the same shall be shared equally between the parties. It shall
be valued by the Chief Government Valuer at the expense of both parties.
It shall be sold and the proceeds shared equally within six months from the
date of the valuation.
20 (vii) In the ALTERNATIVE, since the Respondent is the one in possession
thereof, if he desires to retain it, he shall compensate the Petitioner the
equivalent of 50% of the total value of the property within six months from
the date of valuation.

25 (e) OPIO PAPI JOEL shall pay UGX 10M (Uganda Shillings Ten Million) as
general damages to the Respondent.
(f) Interest in (e) above at the rate of 6% p.a from the date of Judgment until
29
 payment in full.
(g) Each party shall bear its own costs of this suit.

Dated at Kampala this 25th day of July 2024.

Alice Komuhangi Khaukha

JUDGE
25th July 2024

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