Nassimbwa Rose and Others v Kibugo David and Others (Miscellaneous Application 317 of 2024) [2025] UGHC 367 (2 June 2025)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT LUWERO

MISCELLANEOUS APPLICATION NO. HCT-17-LD-MA-0317-2024

(ARISING OUT OF CIVIL SUIT NO. 032 OF 2024)


RULING

BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI.

Background

This Application was brought under Section 37 of the Judicature Act, Section 98 of the Civil Procedure Act, Order 52, Rules 1 & 3 of the Civil Procedure Rules seeking the following orders;

a) That a sibling kinship test be conducted amongst the alleged children of the late Nsereko George by the Government Analytical Laboratory at Wandegeya, Kampala.

Page 1 of 6

- b) IN THE ALTERNATIVE TO (a) above, exhumation of the late Nsereko George's remains to obtain a sample for conducting the children's paternity tests by the Government Analytical Laboratory at Wandegeya, Kampala. - c) The costs of the sibling kinship or DNA paternity test be charged on the estate. - d) Costs of this Application be provided for.

The grounds in support of this Application were laid out in the Affidavit in support of this Application which was deponed by Kiwalabye Absolom but are briefly stated below;

- a) The applicants are the administrators of the estate of the late Nsereko George, formerly of Bukeeka village, Katikamu Sub County in Luwero District. - b) The applicants, being the administrators of the estate of the late Nsereko George tried without success to distribute the estate amongst the beneficiaries of the estate when they sued the 1st Respondent in High Court Civil Suit No.32 of 2024, contesting the distribution. - c) Since the grant of the Letters of Administration, issues have arisen as to the paternity of some of the beneficiaries to the estate. - d) There are no known safely stored samples of the deceased's blood or genetic material available that can be used for the DNA test, save by exhumation of the deceased's remains to obtain a sample. - e) The most economical yet effective way to establish the lineal relationship of the alleged children of the late Nsereko George is by conducting a sibling kinship test. - f) It is in the interest of justice that the Application is allowed.

The 2nd, 3rd, 4th, 5th, 8th, 9th, 10th, 11th, 12th and 13th, Respondents filed an Affidavit in Reply which was deponed by Kayongo Andrew on their behalf wherein they stated that the Applicants were right to seek court's permission for grant of an order to conduct a paternity test among the alleged children of the late Nsereko George.

Page 2 of 6

Representation

The Applicants were represented by Mr. Seruwoza John Bosco of M/S Richard Kabazzi & Partners Advocates, the 2nd, 3rd, 4th, 8th, 9th, 10th, 11th, 12th, and 13th Respondents were represented by Mr. Ssabwe Johnson holding brief for Mr. Mugisha Ronald of M/S Barungi Baingana & Co. Advocates, the 1st and 7th Respondents were represented by Mr. Boniface Sserwanika of M/S Spencer Associated Advocates while the 6th Respondent was not represented.

Determination of the Application

Before I determine this application, it should be noted that the 1st, 6th and 7th Respondents did not file an affidavit in reply to this Application which prompted the court, upon application by the applicants, to grant an order to proceed exparte with respect to the 1st, 6th and 7th Respondents.

Submissions by the parties

The application was canvassed by way of oral submissions. Mr. Seruwoza submitted that this Application is seeking orders that a kinship test be done amongst the children of the deceased Nsereko George at the Government Analytical Laboratory at Wandegeya in Kampala. He further stated that in the alternative, the court could order that the remains of the late Nsereko be exhumed to obtain a sample of the remains which can be used to conduct the deceased children's paternity test.

Mr. Sserwanika and Mr. Ssabwe did not oppose the application. On the contrary, they prayed that the Application be granted specifically for an order for the exhumation of the remains of the deceased be made for purposes of conducting the DNA test.

In rejoinder, Mr. Seruwoza submitted that although the primary order the Applicants were seeking is a kinship test, he does not object to the alternative order of exhumation if it is what will bring comfort to the parties.

Decision

I have taken into consideration the submissions by the parties to this Application. The issue that arises for determination in the instant Application is whether the Applicants have laid a sufficient basis to warrant the issuance of an order directing that a sibling kinship test be conducted amongst the children of the late Nsereko George or in the alternative, an order for exhumation of the


body of the deceased for purposes of collecting sample tissues to carry out DNA tests on the persons named in this Application.

Courts have held that in exercising its discretionary power to grant or not to grant the relief (DNA testing), court should be convinced that the application is in good faith and that it is not actuated or designed to economically exploit or embarrass or is otherwise an abuse of the process of court. (See MW v KC Kakamega High Court Misc. Application No. 105 of 2004).

Having perused the pleadings of both the parties, I have come to a conclusion that this application has been brought in good faith to enable the administrators of the estate of the late Nsereko George to distribute his estate amongst his proper beneficiaries.

From the pleadings on record, it is my understanding that the late Nsereko George had 19 children, 2 have since passed on and the remaining 17 are still alive. The 17 children are the parties to the current application before this court. This application stems from a rift in the family where some of the children believe that Kiwalabye Absolom (the 2 nd Applicant), Kabenge Ronald (2nd Respondent), and Sebuliba Godfrey (4th Applicant) are not the children of the late Nsereko George. This is the basis upon which this Application has been brought.

The Applicants are seeking an order of court directing that a sibling kinship test which is also referred to as a sibling DNA test, be carried out among the children of the deceased or in the alternative, a paternity DNA test be carried out. It should be noted that for the latter option, the remains of the deceased would have to be exhumed in order to extract samples.

From the pleadings, it is evident that the parties to the suit have all agreed that there is a need to carry out the DNA test amongst the children of the late Nsereko George so as to prove parentage. Further, during the hearing, all the parties also agreed to do a paternity DNA test, which will require exhumation of the remains of the deceased to extract.

I believe that a paternity test could be the most effective method of proving parentage since the paternity test has to be subjected to the 17 children of the late Nsereko George. However, much as I agree that the paternity test is most appropriate in the circumstances, I am also cognizant of the long-standing principle that the resting place of the deceased should remain undisturbed. After

Page 4 of 6

burial, I believe the court should be reluctant to order the exhumation of a body, except in cases where there is a clear and compelling justification.

In Re Matheson (deceased) [1958] 1 ALL ER 202 at 204 the court held: -

*"As I have said, the primary function of the Court is to keep faith with the dead. When a man nears his end and contemplates Christian burial, he may reasonably hope that his remains will be undisturbed, and the court should ensure that, if reasonably possible, this assumed wish will be respected. In all these cases, the court must and will have regard to the supposed wishes of the deceased. I say supposed wishes, because it can rarely, if ever, happen that the circumstances giving rise to the application could have been contemplated still less, discussed, in the lifetime of the deceased."*

Indeed, exhumation is a drastic measure that may be prejudicial to the family and community at large, since it is considered a cultural affront. The Court should therefore exercise caution before issuing such orders. However, when certain circumstances arise and make it desirable and imperative that a body be exhumed, the court will not unnecessarily fetter its discretion but will order such exhumation to meet the ends of justice.

In the instant case, I have come to believe that it is in the best interest of all the parties that the paternity test is conducted through exhumation of the remains of the late Nsereko George. The parties to the suit have come to an agreement that it is in their best interest and that of the estate of the late Nsereko George that the remains of the late Nsereko George are exhumed for purposes of extracting samples that shall be used to determine the paternity of all the parties to this suit who are the supposed children of the late Nsereko George.

This court will grant this order to enable the exercise to be completed accurately and to avoid the likely multiplicity of cases. However, I would like to emphasise that paternity testing through exhumation is a highly specialised procedure that demands the involvement of well-trained experts and the use of costly equipment and facilities. The entire exhumation process is complex and delicate, necessitating professionals with advanced skills and expertise across various forensic science disciplines. For this reason, the exhumation of the remains of the late Nsereko George and extracting of samples shall be undertaken by professionals.


In conclusion, this Application is therefore granted and it is hereby ordered as follows;

- 1. An order for exhumation of the deceased to determine parentage is hereby granted. - 2. The remains of the late Nsereko George shall be exhumed to obtain samples for conducting the paternity examination. - 3. The paternity test shall be conducted by the Government Analytical Laboratories, Wandegeya, Kampala District. - 4. All the children of the late Nsereko George who are parties to this suit shall present themselves to the Government Analytical Laboratories, Wandegeya, Kampala District, within 30 days from the date of this ruling for purposes of extracting their samples. - 5. The paternity test results shall be submitted to the Court by the parties by the 25th day of August, 2025. - 6. The process of the paternity test shall be monitored by all the parties and their respective counsel. - 7. The costs of the Sibling Deoxyribonucleic Acid (DNA) test and the exhumation of the remains of the late Nsereko George shall be charged on the estate of the late Nsereko George. - 8. Each party shall bear its own costs of this application.

I so order.

.............................................................................................................

FARIDAH SHAMILAH BUKIRWA NTAMBI

AG. JUDGE

Delivered on ECCMIS this 2 nd day of June 2025.