Last updated on August 16th, 2024 at 09:37 am
The High Court of Uganda presided over by Hon. Lady Justice Alice Komuhangi Khaukha (pictured), has in a significant decision, dissolved a Couple’s 11-year-old marriage on grounds of cruelty and desertion on the part of the husband and adultery on the part of the wife.
In her Judgement delivered on 25th July 2024, the learned Judge found that the action of the husband denying his wife sex (conjugal rights) was cruel and his action of abandoning his wife and children for 5 years, without justification, amounted to desertion.
The Judge cited the case of Sarah Kiyemba v. Robert Batte (Divorce Cause No. 127 of 2018) where 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…a marriage without companionship and intimacy unless by consent of parties does not exist… that marriage has irretrievably broken down.”
“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 (the wife). 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 denying her companionship and conjugal rights.” Justice Alice Komuhangi Khaukha stated.
The Court also found that the wife had committed adultery by having sexual intercourse with another man other than her husband and ordered the man to pay her husband 10 Million Uganda Shillings in general damages (way down the amount of UGX 70M the husband had asked for) for causing him pain and emotional stress by destabilizing his marriage.
“I am in agreement with Counsel for the Cross Petitioner (the husband) that the actions of the 2nd Cross Respondent caused pain and emotional stress to the Cross Petitioner warranting payment of damages. 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 her own. Whereas adultery cannot be condoned, that may explain why the Petitioner ended up in an adulterous relationship.” Justice Alice Komuhangi Khaukha said.
Custody of the Children
The learned Judge rejected the wife’s prayers to be granted custody of the couple’s three children and for the husband to pay for their school fees and all their other requirements.
Instead, the Judge ordered that both parents have custody of their children (joint custody) and shared responsibility for them, upon finding that both were “fit and capable.”
The Court directed that the wife is to have custody of the children during the school term and the husband is to have custody of the children during the school holidays. And in case the children are in boarding school, then both parents would share the holiday time equally.
Both parents have visitation rights to the children while they are at school and rights to determine their schools and the health facilities where they seek medical care.
The Court further directed that both parents are to have shared responsibility for the children in terms of their welfare and maintenance with the husband providing their school fees and medical care and the wife providing for their school requirements and clothing.
Each parent is to provide for the children’s food during the time they have custody.
“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 10, 6, and 4 years… 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 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.” Justice Alice Komuhangi Khaukha ordered.
Distribution of Matrimonial Property
Citing the case of Ayiko Mawa Solomon v. Lekuru Annet Ayiko (Divorce Cause No. 0001 of 2015) where it was held that: “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”, the High Court decided that the wife was entitled to a share of the matrimonial property ie property a couple chooses to call “home” and for the sustenance of their family, despite most of the property not being registered in her names and her having not contributed money to the acquisition of some of the properties.
Specifically, the Court directed a 30% share in the matrimonial house and an incomplete nearby storied building in Kirinya, Kampala.
The Judge noted that the wife contributed to the development of that property by cooking for the builders and taking care of the home and her parents’ contributed UGX 2M to the construction of the property.
Further, the Court found that the wife had made a non-financial contribution to the medical center singly started by the husband through working as an administrator in the center for three years without a salary.
However, she would have to forfeit her share in the medical center for a 50% share in a two-roomed rental property as she contributed to the building of one of the rooms although the land onto which the rooms are built was bought singly by the husband.
Further, the wife was entitled to a 50% share in another plot of land in Matugga acquired jointly by the couple as it was registered in the names of both spouses and there was evidence that they contributed equal amounts of money to purchase the property.
“In respect to the other properties namely: the Matrimonial house in Kirinya, Kampala, and Kyobe Medical Center in Kirinya-Kampala, I find that though the Petitioner (wife) admitted that she did not make any financial contribution, this Court finds that she made a non-financial contribution. Regarding the matrimonial home, she 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 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. 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 underestimated or downplayed. The Petitioner invested her time and skill to grow the business and as she testified, to date, the clients still associate her with the facility. Maybe if she was gainfully employed elsewhere, she would have earned money to enable her to acquire her own property. Regarding the Kibuli two rooms, whereas it is true that the land was acquired by the Respondent singly, the Petitioner made a contribution in building the second room.” Justice Alice Komuhangi Khaukha said.
Conclusion
The decision of Justice Alice Komuhangi Khaukha highlights the Court’s recognition of a husband, upon the dissolution of marriage, as fit and suitable, to have custody of the children regardless of their minority age.
The decision also illustrates the principle of “shared responsibility” in the maintenance of children in a marriage where both parents can provide.
Lastly, the decision also reinforces the Court’s recognition of non-monetary contributions to the acquisition of matrimonial property and denial of conjugal rights in marriage as a form of cruelty.
Case: Kateme Sarah Grace v. Kyobe Grace Counsel; Mr. Mark Ashaba of M/S Guma & Co. Advocates (for the Petitioner), Mr. Kenneth Kajeke of M/S Kajeke, Maguru and Co. Advocates.
