The learned trial magistrate erred in law and fact when she wrongly
evaluated the evidence on record and erroneously found that the petitioner did not
prove the ground of cruelty.
The learned trial magistrate erred in law when she misdirected herself on the
standard of proof required in this matter. She therefore prayed for orders that;1) The appeal is allowed and the whole judgment and decree of the trial magistrate be
2) Judgment be entered for the appellant against the respondent granting her and the
relief of judicial separation and the consequential remedies sought in her petition to share
in the family property and be paid alimony.
The appellant be awarded costs here and the court below.
The role of the first appellate court is to evaluate the evidence on record afresh in order to come
to its independent decision. In order to do justice to this matter, I had to read all the proceedings
including the pleadings and judgment of the lower court.
In paragraph 5 of the petition, the appellant/petitioner stated that she was married to the
respondent in 1975 traditionally and in 1984, he started cohabiting with one Susan Rwaga
without any formal marriage. In paragraph 6, she stated that in 1992, the petitioner/appellant
married lawfully to the respondent under Marriage Act through a Civil Marriage on April 27,
1992 and she even attached the Marriage Certificate. (it is important to note at this point that the
customary marriage which is potentially polygamous as per the customary Marriages
Registration Decree 1975) was transformed in a potentially polygamous marriage under the
Marriage Act Cap 251 Laws of Uganda, though that civil marriage and the procedure for
celebrating such marriage (Civil) is very well laid down starting from S.6 thereof.
She stated that after solemnization of the marriage, the petitioner/appellant and the respondent
lived in their matrimonial home at plot 3 Ham Mukasa Road Entebbe Municipality. That they
were blessed with 6 children who were delivered in 1976, 1980, 1981, 1977, 1983 and 1985. she
stated in the petition that the respondent has totally abandoned payment of school fees and
meeting the costs of other necessities of life for the child Doreen and Mercy who were still
studying at the time of filing the petition and yet he was able to do so and he was building a
house for his concubine Susan Kwaga at plot 94 Kitooro Road Entebbe at amazing speed using
the revenue got from business stated by the respondent.
She stated further that in 2005, the respondent after flirting in adulterous companionship with
meneous way ward women and girls formerly brought one of them to the matrimonial home as
his third wife, further aggravating the unbearable tension that already existed. That this was both
adulterous and cruel given the health condition of the petitioner. She stated that the respondent
and his new ‘third wife’ caused quite unbearable scene on Christmas Day in 2005 infront of all
the 6 children, their friends and a fiancée of one of them. That has cast in doubt the marriage of