THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATE’S COURT OF ISINGIRO AT ISINGIRO

MISCELLANEOUS CAUSE NO. ...……… OF 2023

IN THE MATTER OF TUMWINE BOAZ AND KYOHAIRWE EDITH

(BOTH DECEASED)

AND

IN THE MATTER OF AN APPLICATION FOR EXHUMATION/DISINTERMENT OF

BOTH DECEASED BY MANIGAMUKAMA GODWIN (BIOLOGICAL SON TO BOTH
DECEASED)

NOTICE OF MOTION
(Brought under Article 37 of the Constitution of the Republic of Uganda,
1995; Section 98 of the Civil Procedure Act, Cap. 71; and Order 52 rules 1,
2, & 3 of Civil Procedure Rules S.I. No. 71-1)

TAKE NOTICE that this Honorable Court shall be moved on the …….. day of …….........
…………., 20……...... at …………....…… am/pm or as soon as the Applicant's Counsel can
be heard for an order of court for the following reliefs —

(a) An order to exhume/disinter the bodily remains of the late Tumwine Boaz
from Ishozi Village, Kabaare Parish, Ngarama S/C, Bukanga North, Isingiro
District.

(b) An order to exhume/disinter the bodily remains of the late Kyohairwe Edith,
wife to the late Tumwine Boaz, from Ishozi Village, Kabaare Parish, Ngarama
S/C, Bukanga North, Isingiro District.

(c) An order to rebury/reinter the bodily remains of the late Tumwine Boaz at the
family’s traditional burial ground in Katojo Village, Kyabaheesi Parish, Mbaare
S/C, Bukanga, Isingiro District.

(d) An order to rebury/reinter the bodily remains of the late Kyohairwe Edith at
the family’s traditional burial ground in Katojo Village, Kyabaheesi Parish,
Mbaare S/C, Bukanga, Isingiro District.

(e) Costs of both exhumation/disinterment and reburial/reinterment be borne by

the Applicant.

(f) Costs of this Application be borne by the Applicant.

TAKE FURTHER NOTICE that the grounds of this Application are contained in the
affidavit of MANIGAMUKAMA GODWIN, the Applicant herein, and which affidavit shall
be read and relied upon at the hearing but briefly are as follows:-

1
a) That the late Tumwine Boaz died in 2004 and was buried in 2004 at Ishozi Village,
Kabaare Parish, Ngarama S/C, Bukanga North, Isingiro District.
b) That the late Kyohairwe Edith died in 1997 and was buried in 1997 at Ishozi Village,
Kabaare Parish, Ngarama S/C, Bukanga North, Isingiro District.
c) That the late Tumwine Boaz and the late Kyohairwe Edith professed the Anglican
faith and were husband and wife by virtue of a customary marriage.
d) That the late Tumwine Boaz and the late Kyohairwe Edith had one biological child
who is the Applicant and therefore, the Applicant is the next of kin of each of the
deceased.
e) That both deceased persons were hurriedly and indecently buried in a place which
isn’t their traditional burial ground contrary to their culture and customs at a time
when the Applicant was a minor aged 11 years and 04 years respectively and
couldn't enforce their right to a decent burial.
f) That the Applicant is aware that the law recognises the right of every buried person
to rest in peace without disturbance unless a court of law, where exceptional
circumstances compel it, decides to order that the remains of that person be
exhumed/disinterred and/or reburied elsewhere or in the same place.
g) That the exhumation/disinternment sought in this application is acceptable to the
right-thinking members of society where the Applicant lives, where the deceased
are buried, and where they are to be reburied and so, isn't against the public
interest.
h) That the families of both deceased have agreed in a family meeting chaired by
the LC1 Chairperson of Ishozi Village that the deceased's remains should be
exhumed, moved, and reburied in the traditional burial ground of the family of
the late Tumwiine Boaz in Katojo Village, Kyabaheesi Parish, Mbaare S/C,
Bukanga, Isingiro District.
i) That the land where the traditional burial ground is situate is customarily owned
by the Applicant's father's family headed by the Applicant's grandfather, a one
Mr Katsimbura Eric, aged about 85 years, who also properly takes care of the
graves on the burial ground.
j) That the Applicant owns land neighboring the burial ground which land he
inherited from his father, the late Tumwine Boaz.
k) That the deceased are the only persons buried at their current burial ground
while there are 06 persons already buried at the traditional burial ground where
the deceased are to be reburied, that is, the Applicant's grand grandfather,
grand grandmother, maternal grandfather, two (02) uncles, and one (01) aunt.
l) That the graves of the late Tumwine and the late Kyohairwe are easily identifiable
to the Applicant and there's no other person buried with, under, or above each of
the deceased persons.
m) That the hurry and indecency in the manner the deceased were buried is shown
by the fact that the late Tumwine's grave isn't cemented while that of the late
Kyohairwe is only cemented at the top but not under the earth where the
remains lie which makes both graves susceptible to soil erosion and eventual
destructful caving-in.
n) That the Applicant has already notified all the living next of kin/descendannts of
the 06 persons already buried at the traditional burial ground in Katojo Village
that he intends to rebury his parents alongside the ancestors of the said next of
kins/descendants.
o) That the Applicant intends to use manual but cautious and skilled labour both in
exhuming and reburying the deceased's remains and will also immediately place

2
 the remains in decent coffins before transporting them comfortably, at a
reasonable speed in a well-maintained private vehicle, and on a partly tarmacked
and partly murram 100km-long road to the deceased persons' final resting place
in Katojo Village, Kyabaheesi Parish.
p) That the Applicant will also involve the Police and local authorities in the
respective villages during both exhumation and reburial so that security and
transparency in what's being done is guaranteed.
q) That the Applicant is in touch with the local Anglican Church leaders and the
elders in the deceased persons' families and the respective parishes of Ishozi and
Katojo to ensure that all the applicable religious and cultural rites relevant to the
planned exhumation and reburial are followed.
r) That the proposed exhumation and reburial do not in any way conflict with the
express or implied demands and wishes of the deceased persons since none of
them emphasised by will or otherwise, that s/he should be buried where they are
currently buried.
s) That the Applicant is aware that the law requires that in the absence of specific
wishes of a deceased spouse to be buried in a specific place, the surviving
spouse decides where the deceased is to be buried and where the latter is also
deceased, then her or his legal representative or next of kin has the right to
participate in deciding where the former is to be buried or reburied.
t) That the cost of both exhuming and reburying the deceased persons’ remains will
be approximately One Million Two Hundred Thousand Uganda Shillings (Ugx
1,200,000/=) and will be incurred by the Applicant who, being a successful
farmer, has the ability to shoulder the cost.
u) That the Applicant generally has a respectful proposal for the
disinterment/exhumation and proper disposition/reburial of the human remains
of the deceased persons as their Banyankole culture and their station in life at
the time of their demise dictate.
v) That it's in the interest of justice, equity, and good conscience that this
application succeeds so that at last, the deceased persons respectfully lie
alongside their ancestors and relatives respectively in the family's traditional
burial grounds as their Banyankole culture and customs demand.

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

….…..……………….……………........…...

COUNSEL FOR THE APPLICANT

Given under my hand and seal of this Court this ........day of ............................2023.

……………………………………….
CHIEF MAGISTRATE

Drawn & Filed by:

Mubiru & Aruho Associated Advocates,
Room L03-04,
Amazon Building,
High Street, Mbarara City
3
 Tel.: +256 785 398922/+256 753 786587; bddeusdedit@gmail.com

THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATE’S COURT OF ISINGIRO AT ISINGIRO
MISCELLANEOUS CAUSE NO. ……........ OF 2023

IN THE MATTER OF TUMWIINE BOAZ AND KYOHAIRWE EDITH (BOTH

DECEASED)

AND

IN THE MATTER OF AN APPLICATION FOR EXHUMATION/DISINTERMENT OF

BOTH DECEASED BY MANIGAMUKAMA GODWIN (BIOLOGICAL SON TO BOTH
DECEASED)

AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION

I, MANIGAMUKAMA GODWIN, of C/o Mubiru & Aruho Associated Advocates, Room
L03-04, Amazon Building, High Street, Mbarara City do hereby solemnly swear and
state as follows:

1) That I am a male adult Ugandan citizen of sound mind, the Applicant herein, and I
swear this affidavit in that capacity (see a photocopy of my National Identity Card
vide CM930621034QXE attached hereto and marked "A").

2) That the late Kyohairwe Edith was my biological mother, she died in 1997, and was
buried in 1997 at Ishozi Village, Kabaare Parish, Ngarama S/C, Bukanga North,
Isingiro District.

3) That the late Tumwine Boaz was my biological father, he died in 2004, and was
buried in 2004 next to my mother at Ishozi Village, Kabaare Parish, Ngarama S/C,
Bukanga North, Isingiro District.

4) That the late Tumwine Boaz and the late Kyohairwe Edith professed the Anglican
faith and were husband and wife by virtue of a customary marriage.

5) That the late Tumwine Boaz and the late Kyohairwe Edith had only one biological
child together who is myself and therefore, I am the next of kin of each of the
deceased (see a photocopies of my Birth Certificate No. 145645 and full-size
photos of my parents attached hereto and marked "B" & "C" respectively).

6) That however, after the respective deaths of my parents, no member of my family

processed a death certificate of any of them and none was granted letters of
administration or probate in respect of their estates except that in a recent family
meeting to discuss the exhumation and reburial dated 04.03.2023, the LC1
Chairperson of Ishozi Village, Mr Mateka John, acknowledged that my deceased were
residents of his village at the time of their respective deaths and also addressed two

4
letters to this court introducing me as my parents’ son (see original copy of the
minutes of our family meeting and copies of the letters attached hereto and
marked "D1", “D2”, & “D3” respectively).

7) That both deceased persons were hurriedly and indecently buried in a place which is
not their traditional burial ground contrary to their Banyankole culture and customs at
a time when I was a minor aged 04 years and 11 years respectively and couldn't thus
enforce their right to a decent burial (see photocopy of photos showing the two
graves; the cemented one on top being my mother's while the uncemented
one at the bottom of the photo being my father's, attached hereto and
marked "E").

8) That my lawyer, Bwengye Deusdedit, has informed me which advice I verily believe
to be true that the Family Law in Uganda recognises the right of every deceased
person's remains to rest in peace without any disturbance whatsoever unless a
competent court of law is compelled by exceptional circumstances to order that the
remains of that person be exhumed/disinterred and/or reburied elsewhere or in the
same place.

9) That the exhumation/disinternment sought in this application is acceptable to

the right-thinking members of society where I live and where the deceased are
buried and where they are to be reburied and so, it isn't against the public interest.

10) That I know that the families of both deceased persons have agreed in a family
meeting chaired by the LC1 Chairperson of Ishozi Village that the deceaseds'
remains should be exhumed, moved, and reburied at the traditional burial ground
of the family of the late Tumwiine Boaz in Katojo Village, Kyabaheesi Parish,
Mbaare S/C, Bukanga, Isingiro District (see a photocopy of the minutes of our
family meeting dated 04.03.2023 attached hereto and marked annexure "D").

11) That the land where the traditional burial ground is situate is customarily
owned by my father's family headed by my grandfather, a one Mr Katsimbura Eric,
aged about 85 years, who has given me his consent and also properly takes care of
the graves on the burial ground.

12) That I own a piece of land neighboring the traditional burial ground which land I
inherited from my father, the late Tumwine Boaz, and therefore, I am in position to
regularly monitor the condition of the graves of the two deceased persons once
they are reburied there.

13) That the deceased are the only persons buried at their current burial ground
while there are 06 persons already buried at the traditional burial ground where the
deceased are to be reburied, that is, my grand grandfather, grand grandmother,
maternal grandfather, two (02) uncles, and one (01) aunt.

14) That the graves of the late Tumwine and the late Kyohairwe are easily
5
identifiable to me and any other reasonable person and there's no other person
buried with, under, or above each of the deceased persons.

15) That the hurry and indecency in the manner the deceased were buried is shown
by the fact that the late Tumwine's grave isn't cemented while that of the late
Kyohairwe is only cemented at the top but not under the earth where the remains
lie which makes both graves susceptible to soil erosion and eventual destructive
caving-in at the detriment of their right to rest peacefully in death.

16) That I know that I have already notified all the living next of kin/descendannts
of the 06 persons already buried at the traditional burial ground in Katojo Village
that I intend to rebury my parents alongside their ancestors and relatives and none
of the said next of kins/descendants has objected thereto.

17) That I intend to use manual but cautious and skilled labour both in exhuming
and reburying the deceased's remains and will also immediately place the remains
in decent coffins before transporting them comfortably, at a reasonable speed in a
well-maintained private vehicle, and on a partly tarmacked and partly murram
100km-long road to their final resting place in Katojo Village, Kyabaheesi Parish.

18) That I will also involve the Police and local authorities in the respective villages
during both exhumation and reburial so that security and transparency in what's
being done is guaranteed.

19) That I am in constant touch with the local Anglican Church leaders and the
elders in the deceased persons' families and the respective parishes of Ishozi and
Katojo to ensure that all the applicable religious and cultural rites relevant to the
planned exhumation and reburial are followed.

20) That I know that the proposed exhumation and reburial do not in any way
conflict with the express or implied demands and wishes of the deceased persons
since none of them emphasised by will or otherwise, that s/he should be buried
where they are currently buried.

21) That my lawyer, Bwengye Deusdedit, has informed me which advice I verily
believe to be true that the law requires that in the absence of specific wishes of a
deceased spouse to be buried in a specific place, the surviving spouse decides
where the deceased is to be buried and where the latter is also deceased, then her
or his legal representative or next of kin has the right to participate in deciding
where the former is to be buried or reburied.

22) That the cost of both exhuming and reburying the deceased person's remains
will be approximately One Million Two Hundred Thousand Uganda Shillings (Ugx
1,200,000/=) and will be incurred by me who, being a successful farmer, has the
ability to shoulder the cost.

6
 23) That l know that I have a respectful proposal for the disinterment/exhumation
and proper disposition/reburial of the human remains of my parents as our
Banyankole culture and their station in life at the time of their demise dictate.

24) That I depone this affidavit in support of my Application for this honorable court to
grant me the orders to exhume my parents and rebury them in our family’s traditional
burial ground alongside their ancestors and relatives based on the compelling
exceptional circumstances that I have given herein.

25) That it's in the interest of justice, equity, and good conscience that this
application succeeds so that at last, the deceased persons respectfully lie alongside
their ancestors and relatives respectively in the family's traditional burial grounds
as their Banyankole culture and customs demand.

26) That whatever I have stated hereinabove is true and correct to the best of my
knowledge.

SWORN at Mbarara this……………day of................................2023.

By the said MANIGAMUKAMA GODWIN

…………………………

DEPONENT

BEFORE ME:

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

A COMMISSIONER FOR OATHS

Drawn & Filed by:

Mubiru & Aruho Associated Advocates,
Room L03-04,
Amazon Building,
High Street, Mbarara City
Tel.: +256 785 398922/+256 753 786587; bddeusdedit@gmail.com

7
 THE REPUBLIC OF UGANDA
IN THE CHIEF MAGISTRATE’S COURT OF ISINGIRO AT ISINGIRO
MISCELLANEOUS CAUSE NO. ……........ OF 2023

IN THE MATTER OF TUMWIINE BOAZ AND KYOHAIRWE EDITH (BOTH

DECEASED)

AND

IN THE MATTER OF AN APPLICATION FOR EXHUMATION/DISINTERMENT OF

BOTH DECEASED BY MANIGAMUKAMA GODWIN (BIOLOGICAL SON TO BOTH
DECEASED)

SUMMARY OF EVIDENCE

The Applicant shall prove to this Honourable Court that the Applicant has exceptional
circumstances to compel this Court to grant the application, to wit: the deceased
persons were hurriedly and indecently buried in a place which is not their traditional
burial ground and that the graves are facing danger of soil erosion and caving-in and
that the Applicant is the only biological child and thus next of kin of the deceased
persons, the traditional burial ground is situate on land customarily owned by his family
which has also consented to the exhumation and reburial, the exhumation and reburial
do not hurt any public interest and will be meticulously done in cooperation with the
Police, cultural, and religious leaders, and does not conflict with any wishes of the
deceased persons.

LIST OF WITNESSES
1. Applicant
2. Katsimbura Joseph
Any other witness will be produced with leave of Court

LIST OF DOCUMENTS
1. Applicant’s National Identity Card
2. Applicant’s Birth Certificate
3. Minutes of family meeting dated 04.03.2023
4. Photographs of both parents
5. Photographs of the graves of the two deceased persons
Any other document will be produced with leave of Court
8
LIST OF AUTHORITIES
Statutory Law
1. Constitution of the Republic of Uganda, 1995 as amended; Article 37
2. The Evidence Act Cap. 6
3. Civil Procedure Act, Cap. 71
4. Magistrate’s Courts Act, Cap.16
5. Civil Procedure Rules, S.I. No. 71-1 as amended

Case Law
1. Jovia Matsiko v. Emmanuel Wandera, Consolidated HCMC No. 141 of 2021 & HCMA No. 652 of
2021 (Decided: 06 June 2022 per Hon. Lady Justice Alice Komuhangi Khaukha)

2. Komaketch Walter v. Dr. Okot Christopher, HCCA No. 114 of 2018 (Decided: 29 August 2019 per
Hon. Justice Stephen Mubiru)

Any other authority will be produced with leave of Court

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

………………………………………

COUNSEL FOR THE APPLICANT

Drawn & Filed by:

Mubiru & Aruho Associated Advocates,
Room L03-04,
Amazon Building,
High Street, Mbarara City
Tel.: +256 785 398922/+256 753 786587; bddeusdedit@gmail.com