In the matter of an application for Legal Guardianship by Mariam Nabunya (Miscellaneous Cause No. 10 of 2025) [2026] UGHC 1222 (5 October 2026)

IN THE HIGH COURT OF UGANDA AT MPIGI MISCELLANEOUS CAUSE NO.10 OF 2025 IN THE MATTER OF AN APPLICATION FOR LEGAL GUARDIANSHIP OF ZALWANGO FATUMA, NACHWA SUMAYYAH, NAKABIRI ASEA AND NAKIMBUGWE THURAYYAH (MINORS) AND IN THE MATTER OF AN APPLICATION BY MARIAM NABUNYA (BIOLOGICAL MOTHER) AS GUARDIAN 10 BEFORE: ACTING LADY JUSTICE DEEPA VERMA

Introduction

This is an application for legal guardianship brought by way of Notice of Motion ex parte under Article 139(1) of the Constitution of the Republic of Uganda, 1995; Sections 14 and 33 of the Judicature Act, Cap. 16; Section 98 of the Civil Procedure Act, Cap. 282; and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules, S.I. 71 -1, seeking the following

Orders

1. That an order be issued authorising the Applicant to lease the land comprised in Mawokota Block 266 Plots 186 and 198 on behalf of Zalwango Fatuma, Nachwa 20 Sumayyah, Nakabiri Asea and Nakimbugwe Thurayyah, the minors.

2. That there be no order as to costs. The grounds in support of this application are contained in the Notice of Motion, and the affidavit in support affirmed by Mariam Nabunya, and in summary are that:

1. That the Applicant is the widow of the late Mawanda Abdul Jabbari Idrisa.

2. That the Applicant is the biological mother of the minors, na mely Zalwango Fatuma, Nachwa Sumayyah, Nakabiri Asea and Nakimbugwe Thurayyah, whom she had with her late husband, Mawanda Abdul Jabbari Idrisa.

3. That the Applicant is the sole parent, guardian and caregiver of the said children, namely Zalwango Fatuma, Nac hwa Sumayyah, Nakabiri Asea and Nakimbugwe 30 Thurayyah.

4. That the Applicant seeks an order of this Court authorising her to execute a lease over the land comprised in Mawokota Block 266 Plots 186 and 198, which her minor children jointly own, Zalwango Fatuma, Nachwa Sumayyah, Nakabiri Asea and Nakimbugwe Thurayyah, together with the Applicant’s other children who have attained majority.

5. That the proposed leasing of the subject land is in the best interests and welfare of the minors, Zalwango Fatuma, Nachwa Sum ayyah, Nakabiri Asea and Nakimbugwe Thurayyah. Representation 40 Counsel Henry Agaba of M/s Meritas Advocates represented the Applicant. The application was filed on 2 5th October 2025 and came before the Court on 13 th April 2026. On that date, the Applicant appeared in Court together with the four minors.

Issues

1. Whether the Applicant should be granted an order authorising her, as guardian of Zalwango Fatuma, Nachwa Sumayyah, Nakabiri Asea and Nakimbugwe Thurayyah, to lease t he land comprised in Mawokota Block 266 Plots 186 and

2. What remedies, if any, are available in the circumstances? Determination 50

1. Whether the Applicant should be granted an order authorising her, as guardian of Zalwango Fatuma, Nachwa Sumayyah, Nakabiri Asea and Nakimbugwe Thurayyah, to lease the land comprised in Mawokota Block 266 Plots 186 and

The foundation for granting applications of this nature lies in the well-established doctrine of parens patriae , a Latin expression meaning “parent of the n ation.” This doctrine embodies the principle that the State bears an inherent duty to protect persons who, by reason of age or legal incapacity, are unable to safeguard their own interests. As was authoritatively held by Hon. Justice Stephen Mubiru In Re: Adriko Reuben (a Minor) (Miscellaneous Civil Application No. 0008 of 2016) [2016] UGHCFD 10 (13 July 60 2016), courts are enjoined to exercise this parens patriae jurisdiction particularly in matters concerning the proprietary rights of minors. This is so because a child, by virtue of legal incapacity, cannot independently protect or enforce such rights. It is for this reason that even a biological parent, notwithstanding the pa rental responsibility conferred under Section 6 of the Children Act, Cap. 62, must formally move the Court for appointment as a guardian in respect of a minor’s property. The Court thus operates as the vehicle through which the State discharges its parens patriae mandate. In doing so, it must carefully scrutinise the application to determine whether it is in the child's best interests to appoint the proposed guardian or otherwise, as emphasised in Re Tumwesigye Gift (A Minor), HCFC No. 5 of 2022. 70 Central to this jurisdiction is the welfare principle, enshrined under Section 3 of the Children Act, Cap. 62, which mandates that the welfare of the child shall be the paramount consideration in all matters affecting the child. This principle finds further reinforc ement in Article 34 of the Constitution of the Republic of Uganda, Article 3(1) of the United Nations Convention on the Rights of the Child (ratified by Uganda in 1990), and Article 4(1) of the African Charter on the Rights and Welfare of the Child (ratifi ed by Uganda in

The courts have consistently affirmed this position. In Re: Mark Siduda (an infant) (Family Cause 213 of 2014) [2015] UGHCFD 13 (18 May 2015) and Deborah Joyce Alitubeera v.

Sanyu Babies Home, Civil Appeal No. 70 of 2011, it was held that in all matters 80 concerning children, the best interests of the child must be the primary consideration. This principle is further reinforced by the learned authors of Bromley’s Family Law (8th Edition) at page 336, who underscore that the child’s welfare is the court’s sole concern, and that other factors are relevant only insofar as they assist the court in determining what is in the best interests of the child. The criteria for assessing welfare are set out under Section 3 of the Children Act and include consideration of the child’s needs, wishes, background, and any risk of harm. In addition, this Court will be guided by the principles articulated in Re Tumwesigye Gift (A Minor) (supra), wherein it was held that the Court must evaluate:

1. The age of the minors; 90

2. The relationship of the applicant to the minors;

3. The nature of the minors’ property;

4. The purpose of the application; and

5. The wishes of the minors. Further, as emphasised in Re Adriko Reuben (A Minor) (supra), the Court must also assess the proposed guardian's capability and ensure there is no conflict of interest. Accordingly, the issues for determination shall be addressed in the following order:

1. The minors’ wishes and legal capacity;

2. The relationship of the applicant to the minors and her capability;

3. The nature of the minors’ property; and 100

4. The absence of conflict of interest and the purpose of the application. Having set out the applicable legal pri nciples, this Court will now consider each of the above factors in light of the evidence on record and determine whether the Applicant has satisfied the requirements for appointment as the legal guardian of the minors. The Minors’ Wishes and Legal Capacity

The Court begins by considering the legal capacity and expressed wishes of the minors whose proprietary interests are directly affected by the present application. Article 257(1)(c) of the Constitution defines a child as a person below the age of eighteen years. Similarly, Section 2 of the Children Act, Cap. 62 defines a child as a person below the age of eighteen years. 110 The contractual capacity of a person is governed by Section 10(1)(a) of the Contracts Act, Cap. 284, which provides that a person has capacity to contract where that person is eighteen years or above. It follows that a person below the age of eighteen years do not possess the requisite contractual capacity to undertake contractual obligat ions in the same manner as adults independently. The evidence on record, particularly paragraph 3 of the affidavit in support of the application and the birth certificates annexed C1, C2, C3 and C4 thereto, establish that the minors are Zalwango Fatuma, ag ed 9 years; Nachwa Sumayyah, aged 14 years; Nakabiri Asea, aged 13 years; and Nakimbugwe Thurayyah, aged 17 years . All four are children within the meaning of the Constitution and the Children Act and lack the requisite 120 contractual capacity to independen tly execute or authorise the proposed lease of the property in which they hold an interest. This lack of contractual capacity does not, however, render the minors' views irrelevant. Where proceedings concern the property or welfare of a child, the Court mu st, having regard to the child's age and maturity, ascertain and give appropriate consideration to the child's views. This principle is also reflected in Article 12 of the United Nations Convention on the Rights of the Child, which recognises the right of a child capable of forming his or her own views to express those views freely in matters affecting the child, with such views being accorded due weight according to the child's age and maturity. The views of a child are 130 therefore an important consideration , although they do not, of themselves, confer contractual capacity or determine the outcome of the proceedings. In the present case, the minors appeared before the Court and were allowed to express their views concerning the proposed transaction. They did not object to the proposed lease of the land registered in their names jointly with their siblings and expressed their

willingness to be represented by their mother, the Applicant. The Applicant is the sole surviving parent and caregiver following the deat h of their father. The Court therefore takes their expressed views into account, in light of their respective ages and levels of maturity. This approach is consistent with the principles recognised in Re Tumwesigye Gift (A 140 Minor) (supra) and Re Namugerwa J oyce & 2 Others, HCFC No. 28 of 2009 , which underscore the importance of considering the welfare and wishes of minors in proceedings affecting their interests. The evidence further establishes that the minors are registered proprietors of the land comprised in Mawokota Block 266 Plots 186 and 198, which they hold as tenants in common with their adult siblings. The certificates of title and search letters placed on the record establish their proprietary interest in the subject property. The proposed transaction is a lease of the subject property to Azkam Oil Limited by the Applicant together with the adult children who are also registered proprietors. The Applicant seeks the intervention and approval of this Court on the basis that, owing to 150 their minority, t he minors cannot independently participate in or execute the proposed transaction and therefore require representation to protect and manage their interests in the property. The Court further considers the circumstances in which the application has been brought. The Applicant is the minors' surviving parent and primary caregiver and assumed responsibility for their care and welfare following the death of their father. The evidence before the Court further indicates that the benefits or proceeds arising from the proposed lease are intended to be applied towards the welfare and advancement of the minors. The Court must, in exercising its protective jurisdiction, ensure that a transaction involving property in which minors have a proprietary interest is not prejudicial to their interests. In 160 the circumstances of the present case, the Court is satisfied that the proposed lease has been placed before it for consideration with the minors' interests expressly in view; that their respective views have been ascertaine d; that they have expressed no objection to the proposed transaction; and their surviving parent is seeking that appropriate representation because of their minority.

Taking into account the ages and maturity of the minors, their appearance before Court and expressed views, their proprietary interest in the subject land, the proposed representation by their surviving parent and caregiver, the circumstances giving rise to the application, and the intended use of the benefits of the transaction for their welf are, I am satisfied that the proposed transaction is in the best interests of the minors and is not 170 prejudicial to their proprietary interests. The Relationship of the Applicant to the Minors and her Capability The issue of the Applicant’s relationship with the minors, as well as her suitability and capability to act as guardian of their property, shall be considered together. Section 1 of the Children Act, Cap. 62 defines a guardian as a person who has parental responsibility for a child. The statutory framework recognises the central role of parents in the care and upbringing of their children. This principle is further reflected in Article 31(4) of the Constitution of the Republic of Uganda, which imposes a duty upon parents to care for and raise their children. Sections 5 and 6 of the Children Act further elaborate the scope of parental responsibility, 180 which includes providing care, maintenance, protection, and managing matters affecting the child. Where, however, a transaction involving a minor’s property requires formal legal authority, the intervention of the Court is necessary to ensure that the transaction is undertaken by a person properly authorised to repr esent the minor and, above all, in a manner consistent with the minor’s welfare and best interests. The suitability of a biological parent to assume such responsibility is ordinarily assessed having regard to the welfare of the child and the circumstances of the particular case. Courts have recognised the general presumption that a biological parent is well placed to act in the interests of his or her child unless evidence demonstrates otherwise. This principle is reflected in Re Adriko Reuben (A Minor) (supra). 190 In the present case, the Applicant, Ms Mariam Nabunya, has placed before the Court birth certificates issued by the National Identification and Registration Authority (NIRA), which establish that she is the biological mother of the minors. The evidence further establishes that, following the death of the minors’ father, she is the sole surviving parent and primary

caregiver responsible for their day-to-day welfare. This evidence was further corroborated by the minors themselves when they appeared befo re the Court and affirmed that the Applicant is their biological mother and the sole surviving parent following the death of their father. Their confirmation, coupled with the documentary evidence on record, leaves no doubt as to the Applicant’s relationship to the minors and her position as their surviving parent and primary caregiver. 200 There is no evidence before the Court suggesting that the Applicant is incapable of discharging parental responsibility or that she has acted in a manner inconsistent with the interests of the minors. In particular, there is no evidence of neglect, misconduct, conflict of interest, incapacity or any other circumstance that would render her unsuitable to act in relation to the minors’ property. The Court is also mindful that t he proposed guardianship is not being sought merely for the purpose of conferring a general status upon the Applicant. It is sought in circumstances where the minors are registered proprietors of the subject land and a specific transaction affecting their proprietary interests is proposed. The Court must therefore be satisfied that the person seeking authority is capable of exercising that 210 responsibility prudently and for the benefit of the minors. In Re Marvin Kakooza, HCFC No. 236 of 2013 , the Court grant ed guardianship to a mother to enable her to manage and deal with her child’s property for the child’s benefit. The decision underscores the importance of considering whether the proposed arrangement advances the child's welfare and interests. Similar cons iderations are reflected in Re Kyeswa (Minor) & Others, HCFC No. 32 of 2018 and Re Namugerwa Joyce & 2 Others, HCFC No. 28 of 2009. In the instant case, the Applicant’s position as the biological mother and sole surviving parent is supported by the birth certificates of the minors and the death certificate of their father, all of which are on the Court record. Her role as the minors’ primary caregiver 220 places her in a position of responsibility towards their welfare. There is, moreover, no evidence suggesting that she has any adverse interest or motive inconsistent with the interests of the minors.

The Court further notes that the authority sought is directed towards enabling the Applicant to deal with property in which the minors have a registered proprietary interest. It is therefore imperative that such authority be vested in a person who is demonstrably capable of exercising it responsibly and with fidelity to the interests of the minors. Having regard to the evidence before the Court, I find no reason to doubt the Applicant’s ability or willingness to discharge that responsibility. In light of the foregoing, and taking into account the absence of any adverse evidence, 230 this Court is satisfied that the Applicant, as the biological mother and primary caregive r, is a suitable and capable person to be appointed guardian of the minors’ property. The Nature of the Minors’ Property The Applicant avers in paragraph 6 of her affidavit in support of the application that her ten (10) children, namely Nakamya Hadija, Nabateesa Hafiso, Katerega Akram, Nassuna Atwia, Ndagire Amina, Nassiwa Aisha, Zalwango Fatuma, Nachwa Sumayyah, Nakabiri Asea and Nakimbugwe Thurayyah, are the registered proprietors of the land comprised in Mawokota Block 266 Plots 186 and 198, measuring a pproximately 0.1400 hectares, situated in Mawokota, Mpigi District. A copy of the Certificate of Title and Search Report was annexed to the affidavit as “D1” and “D2”, respectively. 240 I have considered the nature and status of this property. The evidence on record establishes that the land is registered in the names of the ten children as proprietors, six of whom are adults and four of whom are minors. The minors therefore hold a registered proprietary interest in the subject land jointly with their adult siblings. The Applicant seeks to be authorised to represent the interests of the four minor proprietors in relation to the proposed transaction, while the adult proprietors are capable of dealing with their respective interests in their own right. This distinction is important because the Court is not being asked to authorise the disposal or transfer of the minors’ proprietary interests. Rather, the proposed transaction concerns the leasing of the subject property, with the adult proprietors participating in t he 250 transaction alongside the Applicant as the representative of the minor proprietors.