Itinot and Another v Irimo and 2 Others (Miscellaneous Application No. 0051 of 2025) [2025] UGHC 472 (16 June 2025)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT SOROTI MISCELLANEOUS APPLICATION NO. 0051 OF 2025 (ARISING FROM MISC. CAUSE NO. 007 OF 2025)

1. ANGELA MARGARET ITINOT 2. ROSEMARY ATIM :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS

VERSUS

1. IRIMO GERALD

2. OPIAN JOREM OBICHO 3. ELAETE HELLEN :::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS

BEFORE: HON. JUSTICE BONIFACE WAMALA

RULING

Introduction

[1] This application was brought by Chamber Summons under Section 98 of the Civil Procedure Act, Sections 14 and 37 of the Judicature Act and Order 41 rules 1, 3 and 9 of the Civil Procedure Rules seeking for orders that;

a) A temporary injunction doth issue restraining the respondents, their agents or servants and any other person having authority from the respondents from transporting and burying the body of the late Alupo Rose to Kiiya Village, Omasia Parish, Magoro Sub-county, Toroma County in Katakwi District until final disposal of the main cause.

b) The costs of the application be provided for.

[2] The grounds of the application are contained in the Chamber Summons and in the affidavit in support of the application deposed by Angela Margaret Itinot, the 1st applicant. Briefly, the grounds are that the applicants are the administrators of the estate of the late Obwangor Joseph Cuthbert who was their biological father. The respondents are involved in organizing the burial of the late Alupo Rose at the ancestral home of the late Obwangor Joseph. The applicants are opposed to the said burial for the reason that the late Alupo

Rose is not related to them either by blood or otherwise. The deponent states that if the respondents are not restrained, the burial will go ahead; whereupon their main cause will be rendered nugatory and they stand to suffer irreparable injury due to emotional pain, mental stress and anguish. She prayed that the application be granted.

[3] The application was opposed through an affidavit in reply deposed by Opian Jorem Obicho, the 2nd respondent, who stated that the respondents have only been sued for participation in organizing the sendoff of the late Alupo Rose, a known wife to the late Obwangor Joseph Cuthbert a member of the community, which is a vital role for any departed member of the community. He stated that during her life time, the late Alupo Rose lived with her late husband, Obwangor Joseph Cuthbert, between 1990 and 2012 when the late Obwangor Joseph passed on without any complaint or eviction. Even after the death of the late Obwangor Joseph, the late Alupo Rose continued to live in the same house until her demise. He stated that the denial of burial of the late Alupo Rose is against ordinary cultural norms of the society and public policy. He concluded that grant of the present application would occasion a miscarriage of justice and prayed for its dismisaal with costs.

Representation and Hearing

[4] At the hearing, the applicant was represented by Mr. Phillip Engulu from M/s Engulu & Co. Advocates while the respondents were represented by Mr. Otee Leonard from M/s Otee Associated Advocates. The hearing proceeded by way of written submissions which were duly filed by both counsel. I have considered the submissions in the determination of the matter before Court.

Issue for Determination by the Court

[5] One issue is up for determination by the Court namely; *Whether the application discloses sufficient grounds for grant of an order of a temporary injunction?*

Consideration by the Court

[6] The position of the law is that grant of a temporary injunction is an exercise of judicial discretion for purposes of maintaining the status quo until the questions to be investigated in the main suit are tried on the merits and disposed of finally. The principles for grant of a temporary injunction were laid down in the case of *Kiyimba Kaggwa v Hajji Abdul Nasser Katende [1985] HCB 43,* citing with approval the decision in *Giella v Cassman Brown & Co. Ltd [1973] 1 EA 358*, as follows;

"*The conditions for the grant of an interlocutory injunction are … first, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience."*

*Existence of a status quo to be preserved*

[7] As already indicated above, the main purpose of a temporary injunction is to preserve the status quo pending disposal of the main suit. The term status quo simply denotes the existing state of affairs before or at a given particular time. In line with the purpose of preservation of the existing state of affairs, an order of injunction is intended to prevent the ends of justice in a matter from being defeated. See: *Daniel Mukwaya v Administrator General, HCCS No. 630 of 1993* and *Erisa Rainbow Musoke v Ahamada Kezala [1987] HCB 81.* In the instant case, the existing status quo is that the late Alupo Rose has passed on and is pending burial. The dispute is whether she should be buried at the ancestral home of the late Obwangor Cuthbert or not. There is therefore a status quo to be preserved.

*Existence of a prima facie case with a probability of success*

[8] The position of the law is that a prima facie case with a probability of success is no more than that the court must be satisfied that the claim is not frivolous or vexatious. In other words, that there are serious questions to be tried. In *Robert Kavuma v Hotel International, SCCA No. 8 of 1990, Wambuzi CJ* (as he then was), stated that the applicant is required at this stage of the trial, to show a prima facie case and probability of success but not success. The applicant has to satisfy the court that there is merit in the case not that he/she will succeed.

[9] On the case before me, the main cause seeks to prevent the burial of the late Alupo Rose for the reason that she is not related to the applicants (the administrators of the estate of the late Obwangor Joseph Cuthbert) either by blood, marriage or otherwise. The materials on record indicate that the administration of the estate is still subject of a court dispute in the High Court of Uganda at the Family Division. One of the questions to be determined both in the main cause before this Court and in the suit in the Family Division is whether the late Alupo Rose was legally married to the late Obwangor Joseph Cuthbert.

[10] However, it is clear to me that the question as to whether the late Alupo Rose should be buried at the ancestral home of the late Obwangor Joseph is not to be determined based on whether a legal marriage existed between her and the late Obwangor Joseph Cuthbert. As a matter of principle, a person's place of burial is not essentially determined by the nature of biological or marital relationship between concerned parties. It is more primarily determined by the expressed or implied wishes of the deceased and the other concerned parties. There is no bar to burial of a person that is biologically unconnected to a family at a family burial ground provided the wishes of that person and of the other family members are known or in as afar as they can be gathered.

[11] In this case, the most important wishes are those of the late Alupo Rose. The next in importance are those of the late Obwangor Joseph Cuthbert. It ought to be understood that unlike in other affairs, in matters dealing with estates of deceased persons, the wishes of a deceased person are of paramount importance. The question that is supposed to be answered is what would have been the wish of the late Obwangor Joseph if he was still alive; or if he had made a testament. Then the court can consider the general wishes of the other family members.

[12] As I have shown above, the dispute between the family members is based on whether the late Alupo Rose was legally married to the late Obwangor Joseph or not. And I also have pointed out that such is not a primary consideration for determination of whether the late Alupo Rose should be buried at the ancestral home of the late Obwangor Joseph or not. The primary consideration is a combination of two factors; the kind of relationship between the late Obwangor Joseph and the late Alupo Rose before the demise of the former on the one hand and their known wishes, expressly or impliedly, on the other hand.

[13] It is indicated in the affidavit in reply that during her life time, the late Alupo Rose lived with the late Obwangor Joseph Cuthbert as her husband between 1990 and 2012 when the late Obwangor Joseph passed on without any complaint or eviction. Even after the death of the late Obwangor Joseph, the late Alupo Rose continued to live in the same house until her demise. This evidence has not been controverted by the applicants. This evidence is sufficient to indicate to me, prima facie, the known wishes of the two deceased persons. I am thus convinced that the burial of the late Alupo Rose should not be deterred on account of the dispute raised in the main cause herein or in the suit that is pending before the Family Division. The pending suits can be determined on their merits without the need to disturb the peace of the late Alupo Rose and the late Obwangor Joseph Cuthbert.

[14] It is therefore my finding that no prima facie has been established warranting the restraining of the burial of the late Alupo Rose at the ancestral home of the late Obwangor Joseph Cuthbert.

*Whether the applicant is likely to suffer irreparable injury if the application is not granted*

[15] In law, irreparable injury means that the injury or damage must be a substantial or material one that cannot be adequately atoned for in damages. See: *Tonny Wasswa v Joseph Kakooza [1987] HCB 79.* It was argued for the applicants that if the application is not granted, they will suffer serious injury given that the main cause will be rendered nugatory and they stand to suffer emotional pain, mental stress and anguish. Given my finding above, the main cause will not be rendered nugatory since if it succeeded, the body of the late Alupo Rose could be exhumed at the respondents' cost. Secondly, I do not agree that the emotional pain, mental stress and anguish that could be suffered by the applicants is such a serious injury as to warrant such disturbance of the dead. In any case, the balance of convenience lies in favour of granting the late Alupo Rose a dignified sendoff than otherwise.

[16] In light of the foregoing, the applicant has not satisfied the Court on a balance of probabilities that sufficient grounds exist warranting the grant of an order of a temporary injunction in this matter. The application therefore fails and is accordingly dismissed with an order that the costs of the application shall abide the outcome of the main cause.

It is so ordered.

*Dated, signed and delivered by email this 16th day of June, 2025.*

Boniface Wamala JUDGE