PART I

BRIEF FACTS.

In 2012 Jamada Kiddu fell in love with Joyce Adeke and paid heads of cattle to her parents as part
of the bride price her parents had asked for and at the time unknown to Jamada Joyce was 17 years
of age. The ceremony was attended by many notables in Uganda including government ministers
and others. Subsequently Jamada and Joyce lived together and had two children aged 15 and 12.
Later in 2020 Jamada went ahead and had an Islamic marriage with Farida Malaika, a thirty five
year old civil engineer at Mbale Central Mosque. Subsequently after this marriage, Farida Malaika
and Joyce Adeke were admitted to Kyambogo University as full time students and their absence
frustrated Jamada causing him to marry Madinah Katono before the Registrar of Marriages at
Kampala in June 2023.

Jamada Kiddu married Madina Katono before the Registrar of Marriages at Kampala in June
2023. Madina Katono, a twenty-year-old lady is frustrated because Jamada Kiddu is always out of
Uganda, over matters of the Uganda Muslim Supreme Council and his personal businesses.
Madina Katono has a relationship with Hajj Musa Zaidi and she has decided to get married to him.

ISSUES.
1. Whether the Customary marriage between Jamada Kiddu and Joyce Adeke is valid?
2. Whether the Islamic marriage between Jamada and Faridah is valid?
3. Whether the Civil marriage between Jamada Kiddu and Madina Katono is valid?
4. Whether Madina Katono can contract the intended marriage to Hajji Musa Zaidi?
5. What are the practical steps Madina can undertake to contract a valid marriage with Hajji
Musa Zaidi?

LAW APPLICABLE.
1. 1995 Constitution of the Republic of Uganda as amended
2. Customary Marriage (Registration) Act CAP 248
3. Marriage and Divorce of the Mohammedans Act Cap 252
4. Marriage Act Cap 251
5. Marriage (District and Registrars) Order SI 251-1
6. The Divorce Act Cap 249
7. Case law
RESOLUTION.

Issue 1; Whether the Customary marriage between Jamada Kiddu and Joyce Adeke is valid?

Article 31 (1) of the 1995 Constitution of the Republic of Uganda states that, men and women of
the age of eighteen years and above have the right to marry and to form a family and are entitled
to equal rights during marriage and at its dissolution.

Article 37 of the 1995 Constitution of the Republic of Uganda states that, Every person has a
right as applicable to belong to, enjoy, practice, profess, maintain and promote any culture, cultural
institution, language, tradition, creed or religion in community with others.

In Hyde v Hyde (1866) LRPD 131, Lord Peasance defined marriage as, a voluntary union for
life of one man and one woman to the exclusion of others

Section 1(b) of the Customary Marriage (Registration) Act CAP 248 defines a ‘customary
marriage’ to mean a marriage celebrated according to the rights of an African community and one
of the parties to which is a member of that community or any marriage celebrated under part 3 of
that Act.

Customary marriage was further defined in Uganda v Peter Kato & 3 Ors (1976) HCB 204 in
which Justice Ssekandi held that, ‘in order for a union to be regarded as a marriage, the parties
must have satisfied all the formal and essential requirements prescribed for the validity of marriage
under customary law. In other words, the parties must have gone through all the ceremony of
marriage required under their community…’

It is therefore essential to establish the legal requirements for a valid customary marriage and
establish whether the marriage in the facts meets these requirements. The requirements include:

 Age
Section 11 (a) & (b) of the Customary Marriages (registration) Act CAP 248 require that
the female and male parties to a customary marriage be at least 16 and 18 years respectively.
However, the 1995 Constitution (being the supreme law in Uganda) under Article 31 (1),
requires that both parties be at least 18 years of age.

 Bride price
While courts have previously held that non-payment and partial payment of bride price in
customary marriages rendered that marriage void/voidable, such as was held in the case of Uganda
V John Eduku (1975) HCB 359, the Supreme Court in the case of Mifumi (U) Ltd V A.G SCCA
No. 2 of 2014 held that, ‘the payment of bride price, as a condition precedent for the validity of a
customary marriage is inconsistent with the Constitution...’ (Kisaakye JSC).

 Prohibited Degrees Of Kinship

Section 11 (d) of the Customary Marriages (registration) Act CAP 248 provides that, a
customary marriage shall be void if the parties to it are within the prohibited degrees of kinship
specified in the Second Schedule to this Act or the marriage is prohibited by the custom of one of
the parties to the marriage. In the case of Kiwawu V Serunkuma & Juliet Namazzi HCCS No.
52 of 2006, in which the defendants intended to wed while being from the same Buganda clan of
Ndiga, Court held that the intended marriage was illegal, null and void.

 Consent
Section 32 of the Customary Marriages (Registration) Act CAP 248 requires that where the
parties to a marriage are below 21 years, the consent of the father, mother or guardian should be
sought. Article 31 (3) of the 1995 Constitution states that, marriage shall be entered into with the
free consent of the man and woman intending to marry.

 Registration
Section 6 (1) of the Customary Marriages (Registration) Act CAP 248 requires the parties to a
customary marriage to register their marriage within 6 months from completion of celebration of
the marriage. However, the Court of Appeal in the case of Steven Bujara V Twegye Bujara
Court of Appeal Civil Appeal No. 81 of 2002, it was held that, failure to register a marriage does
not make such marriage invalid. Court further held that, ‘the law requires that a customary
marriage must be registered as may be practicable in any event not later than 6 months...’

Section 8 of the Act provides for the registration of a customary marriage after the expiry of 6
months provided that a prescribed fee is paid.

According to the facts, when Jamada Kiddu and Joyce Adeke got married, Jamada paid 20 heads
of cattle as part of the bride price and Adeke was 17 years old at the time, a fact unknown to
Jamada. Furthermore, they had two children.

It is not stated in the facts whether their marriage was registered, however this wouldn’t affect the
marriage’s validity. It is also not stated whether Jamada and Joyce are within the prohibited degrees
of kinship as envisaged under the Act. The facts on the other hand, state that bride price was not
paid in full but it has been settled by the Supreme Court that the concept of bride price is
inconsistent with the Constitution.

It is therefore, our submission that the customary marriage between Jamada and Joyce is void
because Joyce was 17 years old at the time of the marriage. Article 31(1) of the 1995 Constitution
requires that both parties be at least 18 years of age.
ISSUE 2; Whether the Islamic marriage between Jamada and Faridah is valid?

According to our facts Jamada and Faridah got married in Mbale central mosque implying Islamic
marriage governed by Islamic law and Marriage and Divorce of the Mohammedans Act Cap 252.
The application of Islamic law in Uganda is provided for in the Constitution under Article 129(1)
(d) that states the judicial power of Uganda shall be exercised by Courts of Judicature which shall
consist of, such subordinate courts as Parliament may by law establish including Qadhis’ courts
for marriage, divorce, and inheritance of property and guardianship as may be prescribed by
Parliament.

Section 2 of the Marriage and Divorce of the Mohammedans Act Cap 252 recognizes the validity
of marriages performed according to the rites and observations of the Mohammedan religion,
customary and usually among the tribe or sect in which the marriage takes place.

In the case on Ayiko Mawa Solomon versus Lekuru Annet Ayiko Divorce Cause No. 0001 of
2015, an Islamic marriage was defined as a solemn and sacred social contract between bride and
groom. The contract is a string covenant as expressed in the Quran.

In the case it was discussed that there is a strict condition for a Muslim woman. She can only marry
a Muslim man and there is no Nikkah if she marries a Non-Muslim. The Nikkah is a simple
ceremony in which a man and woman declare their verbal commitment to each other as husband
and wife.

The primary requirements for an Islamic marriage are that;

 There must be a Wali (woman's guardian in marriage) who offers the bride to the groom.
 Willingly consent to enter into marriage and the other party expresses the same.
 There must be a witness to the marriage (two adult and sane witnesses) and Allah is our
best witness as per the Qur'an 2:282.
 There must be dowry agreed upon given to the woman (Mahr).
The secondary requirements are as follows:

 A written marriage contract signed by the bride and groom witnessed by the two adult and
sane witnesses.
 Qadi responsible for officiating the marriage ceremony.
 The marriage sermon.
Therefore in relation to the facts, Jamada Kiddu married Farida Malaik and hence conducted an
Islamic marriage and according to the Islamic teaching and beliefs, a man can conduct more than
one valid marriage. This is indicated in the Qur'an Chapter 4:3 which says, ‘Then marry other
women of your choice two, three or four but if you are afraid you will fail to maintain justice then
marry one.’
ISSUE 3; Whether the Civil marriage between Jamada Kiddu and Madina Katono is valid?

According to our facts Jamada Kiddu and Madina Katono got married from the registrar of
marriages at Kampala and this brings out civil marriage. This provided for under the Marriage
Act Cap 251.

Section 26 of the Marriage Act Cap 251 provides for contracting a marriage before a Registrar in
the presence of two or more witnesses in his or her office, with open doors, between the hours of
ten O’clock in the forenoon and four O’clock in the afternoon, in a manner that is prescribed in
this Section.

Order 3 of the Marriage (District and Registrars) Order states that each district of Uganda shall
be a marriage district for the purposes of the Act.

Order 4 of the Marriage (District and Registrars) Order states that the Chief Administrative
Officer shall be the registrar of marriages in that District.

The ingredients of civil and church marriages include;

a) Age requirement of 18yearas and above. Article 31(1) of the Constitution states that a man
and woman are entitled to marry only if they are of age of eighteen years and above.
b) Consent of parties. Article 31(3) of the Constitution provides that marriage shall be entered
into with the free consent of the man and woman intending to marry.
c) A civil marriage must be for life except for divorce and death.
d) It must be monogamous.
e) It must be heterosexual as between a man and woman as per the case of Corbelt v Corbelt
(1970) ALLER 33 and Article 31(2) (a) of the Constitution which provides that marriage
between persons of the same sex is prohibited.
In the case of Hyde v Hyde (1866) LRPD 131, the court defined marriage as understood in
Christendom to mean the voluntary union for life of one man and one woman to the exclusion
of all others. This has become the accepted definition of marriage in this country and the latter
part forms the introduction to the civil marriage ceremony.

Section 10(1) (d) of the Marriage Act states that the registrar must ascertain that neither of the
parties to the intended marriage is married by customary law to any person other than the person
with whom such marriage is proposed to be contracted.

According to the facts at hand, Jamada Kiddu had previously contracted an Islamic marriage with
Faridah Malaika and a customary marriage with Joyce Adeke therefore making his civil marriage
with Madina Katono before the Registrar of Marriages is null and void.

In Conclusion according to the facts before us Jamada Kiddu only has one valid legal marriage
and that’s the Islamic marriage between him and Faridah Malaika which is recognized under the
laws of Uganda under the Marriage and Divorce of the Mohammedans Act Cap 252
Issue 4; Whether Madina Katono can contract the intended marriage to Hajji Musa Zaidi?

Article 31(1) of the Constitution of the Republic of Uganda is to the effect that men and women
of the age of eighteen years and above have the right to marry.

Court in Hyde v Hyde and Woodhouse (1866) LR 1 PD 130 at p. 133 defined marriage to mean
‘the voluntary union for life of one man and one woman to the exclusion of all others’.

Need note that Section 41 of the Marriage Act, Cap 251 creates the offence of bigamy which
prohibits any already married person from entering another marriage while their spouse still lives.
In addition, Section 34 thereof, stipulates that no marriage in Uganda is considered valid if at the
time of celebration, there was any ground of kindred or affinity or either party was married to
customary law to any other person.

Section 12(1) (d) of the Divorce Act Cap 249 is to the effect that contracting a new marriage
while another already subsists is a ground for nullification of the new marriage.

From the instant facts, Jamada Kiddu contracted a civil marriage with a one Madina Katono
whereas his earlier Islamic marriage with Farida Malaika was still subsisting contrary to Section
41, 34 of the Marriage Act and hence Madina Katono and Jamada Kiddu’s civil marriage was
void.

Section 12 (d) (e) of the Divorce Act is to the effect that marriage contracted by fraud shall be
void. According to the facts, Jamada acted fraudulently by marrying Madina yet he already had
another subsisting marriage with Farida Malaika.

In Dereneville v Dereneville [1948] 1 All ER 56 a void marriage was considered to be one that
will be regarded by every court in any case in which the existence of the marriage is in issue as
having never taken place and can be so treated by both parties to it without the necessity of any
decree annulling it.

Furthermore, Madina Katono’s intention to get married to Hajji Musa Zaida since Madina Katono
got married to Jamada Kiddu without knowledge of Jamada Kiddu's existing marriage which
means that he attained her consent to marriage through fraud. This therefore means that Mrs.
Madina can apply for nullity of marriage between her and Mr. Jamadda Kiddu.
According to Section 12 (1) (d) of the Divorce Act Cap 249 nullity of marriage may be made in
instances where the former husband or wife of either party was living at the time of marriage and
the marriage with the previous husband or wife was then in force and also in instances where the
consent of either party to the marriage was obtained by force or fraud as per Section 12(1) (d) of
the Divorce Act,
Mrs. Madina Katono can file a petition in the Chief Magistrate Court as per Section 3(1) of the
Divorce Act Cap 249. Section 11 of the Divorce Act which states that a husband or a wife may
present a petition to the courts praying that his or her marriage be declared null and void and he or
she shall state that there is not any collusion or connivance between the petitioner and the
respondent as per Section 31(2) of the Divorce Act Cap 249.
In conclusion therefore, Mrs. Madina Kiddu and Hajji Musa Zaida can therefore go on with their
intentions after nullifying the existing marriage between her and Mr. Jamadda kaddu

Issue 5; What are the practical steps Madina can undertake to contract a valid marraige
with Hajji Musa Zaidi?

Under Section 11 of the Divorce Act, any party to a marriage may petition court to declare the
marriage as null and void.
Basing on the instant facts, although the marriage between Madina and Jamada is void and there
Is no need for an order to nullify it, it would be prudent for Madina to petition court for a nullity
so as to strike her off the record of marriage from the registrar of marriages office.

Section 12(1) (d) of the Divorce Act Cap 249 is to the effect that contracting a new marriage
while another already subsists is a ground for nullification of the new marriage. In Paul Kagwa v
Jackeline Muteteri Matrimonial Cause No.23 of 2005, a decree nisi for nullification of the
marriage between the petitioner and respondent was granted on grounds that the respondent had a
subsisting marriage.

From the foregoing, Madina Katono should petition court as per Section 11 of the Divorce Act
seeking for a nullity of her “marriage” with Jamada Kiddu on grounds that at the time of
contracting the said “marriage” Jamada was already in a subsisting marriage with Farida Malaika.
(Section 12(1) (d) divorce Act.)

After such petition is granted, Madina may proceed and marry Hajji Musa Zaidi under any
acceptable marriages under the laws of Uganda.
 THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATE’S COURT OF UGANDA

MATRIMONIAL CAUSE NO. 12 OF 2023

MADINA KATONO……………………………………………………..PETITIONER

VERSUS

JAMADA KIDDU………………………………………………………. RESPONDENT

PETITION OF NULLITY OF MARRIAGE

(Under Section 11, 12 (d) of Divorce Act)
1. The petitioner is a female adult Ugandan of sound mind residing in Kampala and the
petitioner’s address for purposes of this petition shall be A6 & Co. Advocates, LDC
Kyamugorani Road, P.O. Box 123, Mbarara.
2. The respondent is a male adult Ugandan presumed to be of sound mind and the petitioner’s
advocates undertake to effect service of court process on him.
3. The petitioner and the respondent are both Africans domiciled in Uganda.
4. That in 2020 the respondent went through a valid Islamic marriage with Farida Malaika.
5. That during the subsistence of the said marriage, the respondent entered into a marriage
contract with the petitioner in June 2023 under the Marriage Act with evidence of the
marriage certificate therein. (Attacheched Annexture A)
6. That the petitioner therefore, did not have capacity to enter into the purported monogamous
marriage with the respondent in June 2023.
7. That there is no collusion or connivance between the petitioner and the respondent.
8. That this cause of action arose in Kampala which is within the jurisdiction of this honorable
court.
9. WHEREOF the petitioner prays for orders that:
a) The purported marriage of the petitioner and respondent was a nullity.

DATED at Kampala this 11th day of November, 2023

 ……………………………………..

COUNSEL FOR THE PETITIONER

Drawn and Filed by;

A6 & Co. Advocates,
LDC Kyamugorani Road,
P.O. Box 123, Mbarara

THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATE’S COURT OF UGANDA

MATRIMONIAL CAUSE NO. 12 OF 2023

MADINA KATONO……………………………………………………..PETITIONER

VERSUS

JAMADA KIDDU………………………………………………………. RESPONDENT

AFFIDAVIT VERIFYING PETITION

I, MADINA KATONO of A6 &Co. Advocates, LDC Kyamugorani Road, P.O. Box 123,
Mbarara do swear and state as follows;
1. That I am a female Adult Ugandan of sound mind and the Petitioner herein
2. That in 2020, the respondent went through a valid Islamic marriage with Farida Malaika.
3. That during the subsistence of the said marriage, the respondent and I entered into a
marriage contract in June 2023 under the marriage Act.
4. That the petitioner therefore, did not have the capacity to enter into the purported
monogamous marriage with me in June 2023.
5. That what is stated herein above is true to the best of my knowledge save that which is
based on the information/advice from the sources herein disclosed.
Dated at Kampala this 11th Day of November, 2023.

SWORN by the said; MADINA KATONO

………………………
DEPONENT

BEFORE ME

………………………………………..

COMMISSIONER FOR OATHS

Drawn and Filed by;

A6 & Co. Advocates,
LDC Kyamugorani Road,
P.O. Box 123, Mbarara

THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATE’S COURT OF UGANDA

MATRIMONIAL CAUSE NO. 12 OF 2023

MADINA KATONO……………………………………………………..PETITIONER

VERSUS

JAMADA KIDDU………………………………………………………. RESPONDENT

SUMMARY OF EVIDENCE

The petitioner shall adduce evidence to strictly prove the contents of the petition.

LIST OF WITNESSES

1. The Petitioner
 2. Other witnesses with leave of court

LIST OF DOCUMENTS

1. The Marriage Certificate

2. Any other with leave of court.
LIST OF AUTHORITIES

1. The Marriage Act, Cap 251.

2. The Divorce Act, Cap 249.
3. The Divorce Rules SI 215-1.
4. The Civil Procedure Rules S.I 71-1.
5. The Civil Procedure Act Cap 71.
6. The Judicature Act, Cap 13.
7. The Case Law

DATED at Kampala this ………………… day of ………………………. 2023.

…………………………………………………………..

COUNSEL FOR THE PETITIONER

Drawn and Filed by;

A6 & Co. Advocates,
LDC Kyamugorani Road,
P.O. Box 123, Mbarara

Summons to answer Petition

 THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATE’S COURT OF UGANDA

MATRIMONIAL CAUSE NO. 12 OF 2023

MADINA KATONO……………………………………………………..PETITIONER

VERSUS

JAMADA KIDDU………………………………………………………. RESPONDENT

SUMMONS TO ANSWER PETITION

To: JAMADA KIDDU

WHEREAS the above named petitioned this court for a decree of nullity of marriage (a copy of
which petition is attached hereto) you are hereby summoned to appear in this Court in person or
by an agent on the ............12th........day of .......November.........2023.....at.........2pm........O’clock
in the fore/afternoon or as soon thereafter as the case can be heard, to answer the above petition
and for such further orders as the Court may make for the disposal of the suit.

FURTHER TAKE NOTICE that in default of your doing, the petition will be heard and determined
in your absence.

Given under my hand and seal of this Court this ...12th.......... Day of ....November...... 2023......

_______________________________

DEPUTY REGISTRAR

Drawn and Filed by;

A6 & Co. Advocates,
LDC Kyamugorani Road,
P.O. Box 123, Mbarara
 PART II

BRIEF FACTS

James Kamulali married Dr. Mary Mukisa in 1988 at St Francis chapel Makerere University. They
were blessed with two children Edirne Muvule and Edna Kisakye. James left there matrimonial
home in 2000 on ground that Dr. Mary deserted him because she was too busy with her work and
carrier pursuit. James intends to wed Suzette Kimuli at Saint Paul cathedral Masaka on 18/11/2023.
The first banns were read on 29/10/2023 in the cathedral. Dr. Mary believes her husband should
re marry upon her death and wants to protect her vows, marriage name in church and family.

ISSUES.

1. What practical steps are to be taken on behalf of Dr. Mary Mukisa to ensure James
Kamulali does not wed suzette Kimuli?
2. What are the necessary documents required to fulfil the steps in issue 1?
RESULOTION OF ISSUES

Issue 1, What practical steps are to be taken on behalf of Dr. Mary Mukisa to ensure James
Kamulali does not wed Suzette Kimuli?

Marriage is defined in Alai v Uganda (1976) EA 596 as a ceremony by which a man and women
become husband and wife.

Church marriage is one of the recognized marriages in Uganda carried out and celebrated in the
church as provided for in Section 5 of the Marriage Act Cap 251 which states that the minister
may license any place of public worship to be a place for celebration of marriages and may at times
cancel that license and is governed by the Marriage Act Cap 251.

Section 10(d) of the Marriage Act Cap 251 provides that one cannot enter into another marriage
when there’s existence of a subsisting legal marriage. He or she has to first dissolve the first
marriage before he can enter into another marriage.

According to the facts, James Kamulali married Dr. Mary Mukisa in 1988 at St Francis chapel,
Makerere University (church marriage) and left his matrimonial home in 2000. Now he intends to
marry Suzette Kimuli at St Paul’s cathedral Masaka and the first marriage banns have already been
read, which is illegal because he still has an existing legal marriage to Dr. Mary Mukisa.

Therefore since Dr. Mary Mukisa still wants to maintain her marriage and her vows, she’s going
to lodge a caveat preventing the occurrence of the intended marriage of James Kamulali and
Suzette Kimuli.

A caveat is defined as a statutory injunction preventing the performance or intermeddling with a

certain state of affairs.
Section 12 of the Marriage Act cap 251 states that, the Minister, upon proof being given to him
or her by affidavit that there is no lawful impediment to the proposed marriage, and that the
necessary consent, if any, to the marriage has been obtained, may, if he or she shall think fit,
dispense with the giving of notice, and with the issue of the certificate of the registrar, and may
grant his or her license, which shall be according to Form D in the First Schedule to this Act,
authorizing the celebration of a marriage between the parties named in that license by a registrar,
or by a recognized minister of some religious denomination or body.

Section 21 of the Marriage Act Cap 251, provides that a minister shall not celebrate any marriage
if he or she knows of any just impediment to the marriage, nor until the parties deliver to him or
her registrar’s certificate or the Minister’s license.

Therefore, the minister will not celebrate James and Suzette marriage because there’s an
impediment of an already existing marriage between Dr. Mary Mukisa and James Kamulali which
they contracted in 1988 at Saint Peter’s Cathedral Makerere.

Issue 2; What are the necessary documents required to fulfil the steps in Issue 1?

THE REPUBLIC OF UGANDA

IN THE MATTER OF THE MARRIAGE ACT, CAP 251

AND IN THE MATTER OF A CAVEAT FORBIDDING (SOLEMNIZATION) OF A

MARRIAGE.

CAVEAT FORBIDDING MARRIAGE.

TO; MINISTER SAINT PAUL’S CATHEDRAL MASAKA

Take notice THAT I, Dr. Mary Mukisa being the wife to James Kamulali who intends to get
married at Saint Paul’s cathedral Masaka on 18.11.2023 do hereby forbid the marriage
(solemnization) on grounds that;

We are still legally married according to the laws of Uganda.

My address for service for purposes of this caveat is Kampala, Wampewo Avenue.

DATED at…………………..this…………..day of ………………2023.

SIGNED by the said; Dr. Mary Mukisa.

CAVEATOR.
 ……………………………………………………………………………………

CAVEATOR

Statutory Declaration.

THE REPUBLIC OF UGANDA

IN THE MATTER OF THE MARRIAGE ACT, CAP 251

AND IN THE MATTER OF A CAVEAT FORBIDDING SOLEMNISATION OF A

MARRIAGE

STATUTORY DECLARATION

(Section 13 of the marriage Act. 251)

I, Dr. Mary Mukisa of Kampala Wampewo Avenue, do hereby solemnly declare and state on
oath that the above is true and correct information to the best of my knowledge.

And I make this solemn declaration consciously believing the same to be true in accordance with
the Statutory Declaration Act, Cap 221 laws of Uganda.

Declared at …………………………….this………………day of …………………………2023

By the said; Dr. Mary Mukisa.

BEFORE ME

……………………………………………………..

COMMISSIONER FOR OATH.