Mukono High Court Judge David Matovu has ordered for fresh hearing of the case in which Mukono Chief Magistrates Court had ordered for a DNA test to be conducted on all brothers of City Lawyer Hassan Male Mabirizi Kiwanuka.
City Lawyer Hassan Male Mabirizi Kiwanuka (Courtesy photo)
Lawyer Mabirizi had petitioned the Chief Magistrates Court seeking for orders to have his father Muhamad Lulibedda Bazinduse’s Skelton exhumed and have a DNA test carried out on the bones as well as all his nine children to establish their true paternity.
Mukono grade one Magistrate Paul Matyama ordered the DNA to be conducted on all children but declined to issue an order for exhuming the deceased thus resulting into this appeal which was filed to High Court.
In his ruling, justice Matovu faulted the trial Magistrate of having failed to give all parties a fair hearing.
“Court has perused the contents of Paragraphs 3 of the affidavit in reply filed by Moses Solomon Male on 6th January, 2023 and he categorically stated that the other six (6) respondents were not resident in Uganda and were therefore never served with this application and this averment also appeared at page 2 lines 22 and 23 of the ruling of the learned trial magistrate.”
High court was left wondering how the learned trial magistrate failed to consider serving the parties in the case but instead went ahead to deliver the ruling.
“Late Mohamed Bazinduse Lulibedda Mutumba and also the conduct of a DNA paternity test as against all the respondents as very sensitive and emotional orders which court could only issue after listening to all Respondents, i find that the six (6) respondents in this case were not accorded a fair hearing by the learned trial magistrate as they were not served with any court process and were therefore condemned unheard.”
Therefore court found that there was no fair hearing as against the six (6) Respondents before the lower Court and they could not be condemned to a DNA paternity test without hearing from their side.
“As a result, Court finds that all proceedings that followed the 13th February, 2023 when the learned trial magistrate erroneously found that there was effective service of court process upon all respondents through their advocate are hereby declared null and void as such proceedings were conducted in the absence of six (6) Respondents who were never served with the notice of motion and affidavit in support in this case and these proceedings and subsequent ruling of 5th June, 2023 are hereby set aside.”
Upon receiving this decision, Lawyer Mabirizi has already expressed interest to appeal against this ruling in Court of Appeal.
Lawyer Hassan Male Mabirizi Kiwanuka. (Courtesy photo)
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