Nassimbwa Rose & Others v Kibugo David & Others: Judicial Approval of Exhumation for Paternity Testing and a Comparative Analysis with Mpumwire Magambo v Amanda Magambo

Brief for the case of Nassimbwa Rose and Others v Kibugo David and Others (Miscellaneous Application 317 of 2024) [2025] UGHC 367 (2 June 2025)

Before: Hon. Lady Justice Farida Bukirwa Shamilah Ntambi

Representation.

1. Mr. Seruwoza John Bosco of M/s Richard Kabazzi & Partners Advocates represented the applicants

2. The 2nd–5th, 8th–13th Respondents were represented by Mr. Ssabwe Johnson holding brief for Mr. Mugisha Ronald of M/s Barungi Baingana & Co. Advocates

3. Mr. Boniface Sserwanika of M/s Spencer Associated Advocates represented the 1st & 7th Respondents

4. The 6th Respondent was Unrepresented

   
   

   Prepared by

   Waboga David

   

   
   

Introduction

The ruling in Nassimbwa Rose & Others v Kibugo David & Others represents a significant development in Uganda’s jurisprudence on estate matters involving posthumous paternity testing, particularly in cases where exhumation of a deceased person’s remains is sought.

In this matter, the administrators of the estate of the late Nsereko George applied to court for orders either directing a sibling kinship DNA analysis among the purported children of the deceased or, in the alternative, permitting the exhumation of the deceased’s remains to facilitate paternity testing through DNA extraction.

The significance of the court’s decision lies in its readiness to sanction exhumation, a step often regarded as culturally sensitive and judiciously restrained, on the basis of consensus among the parties and in the broader interest of resolving disputes surrounding the administration of the estate.

This case brief considers the legal reasoning adopted in Nassimbwa Rose, while drawing a comparative analysis with earlier decisions, Mpumwire Magambo v Amanda Magambo and Komaketch Walter v Dr Okot Christopher, in which the court was reluctant to permit exhumation for the same reasons, proving paternity.

Together, these cases offer insight into the evolving nature of our jurisprudence, mostly both the courts sought to reconcile the parties without clashing with their traditional norms. These decisions will surely be important to resolve disputes pertaining to estate administration

Facts

The Applicants, being administrators of the estate, brought an Application to Court

seeking the following orders;

1. An order for a sibling kinship DNA test among the children of the deceased;

2. In the alternative, an order for exhumation of the deceased’s remains for a paternity test;

3. That the costs of testing be charged on the estate; and

4. Costs of the Application.

The application was supported by an affidavit deponed by Kiwalabye Absolom, one of the administrators. The Applicants contended that, in the absence of stored biological samples of the deceased, the only viable means to determine paternity was either a sibling kinship DNA test or exhumation for paternity analysis.

Key Issues for determination

The main issue for determination was whether sufficient cause had been shown to justify the grant of either a sibling DNA test or, alternatively, exhumation for purposes of conducting a paternity test.

Justice Bukirwa highlighted the need for courts to be satisfied that such applications are brought in good faith and are not meant to economically exploit or embarrass any party citing MW v KC, Kakamega HCMCA No. 105 of 2004.

The court noted that all parties were agreeable to DNA testing and had, in fact, converged on the necessity of paternity determination via exhumation.

Holding

In addressing the exhumation request, the Court acknowledged the cultural and emotional sensitivity of disturbing burial sites. It relied on the English case In Re Matheson (Deceased) [1958] 1 All ER 202, where the court emphasized respect for the deceased's assumed wish to remain undisturbed post-burial.

Nonetheless, the Court held:

“Indeed, exhumation is a drastic measure that may be prejudicial to the family and community at large, since it is considered a cultural affront. The Court should therefore exercise caution before issuing such orders... I have come to believe that it is in the best interest of all the parties that the paternity test is conducted through exhumation... This court will grant this order to enable the exercise to be completed accurately and to avoid the likely multiplicity of cases... The entire exhumation process is complex and delicate, necessitating professionals with advanced skills and expertise across various forensic science disciplines.”

The Court granted the Application, issuing the following orders:

1. The remains of the late Nsereko George shall be exhumed to extract DNA samples for purposes of paternity testing.

2. The Government Analytical Laboratory in Wandegeya, Kampala, was designated to conduct the paternity analysis.

3. All 17 surviving children of the deceased, who are parties to the application, must present themselves at the laboratory within 30 days from the date of ruling for sample collection.

4. DNA results are to be filed in court by 25 August 2025.

5. All parties and their legal counsel shall monitor the testing process to ensure transparency.

6. The costs of the DNA testing and exhumation shall be met by the estate of the deceased.

7. Each party shall bear its own legal costs for this Application.

Comparative Commentary

This ruling of Nassimbwa Rose and Others v Kibugo David and Others marks a clear departure from earlier judicial trends where courts were more reluctant to order exhumation, especially in the absence of consensus among parties.

In Mpumwire Magambo v Amanda Magambo,

https://www.lawpointuganda.com/post/mpumwire-magambo-v-amanda-magambo-court-orders-exhumation-for-dna-paternity-testing-as-last-resort Justice Allan Nshimiye declined to order exhumation for paternity testing, opting instead for a sibling DNA test.

The Court stressed that exhumation should be a last resort, citing Komaketch Walter v Dr. Okot Christopher (High Court Civil Appeal No. 114 of 2018), where it was held that exhumation should only occur when a compelling reason is shown.

In Komaketch, the High Court rejected a prayer to exhume remains for purposes of asserting land rights, with Justice Stephen Mubiru stating:

“At all times, a person who has died must be treated with respect... It is immoral and illegal to disturb human remains without lawful authority.”

Justice Mubiru also cited Litteral v Litteral, 131 Mo. App. 306 (1908), and McGriggs v McGriggs, 192 So. 3d 350, emphasizing that exhumation may only be ordered where there is strong public interest or compelling familial or legal justification.

The principles emerging from these authorities include:

1. A decently buried body should remain undisturbed unless good reason is shown.

2. Disinterment is generally a private concern of the immediate family.

3. Where there is family disagreement over exhumation, courts must adjudicate based on necessity and proportionality.

   
   

Conclusion

While the ruling in Nassimbwa Rose and Others v Kibugo David and Others aligns with the cautious approach urged in earlier precedents, it is unique in that all parties were in agreement, which significantly reduced the potential for future family disagreements and cultural backlash. The Court's sensitivity to both the necessity and cultural implications reflects a balanced approach to the administration of justice in succession disputes.

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Nassimbwa Rose and Others v Kibugo David and Others (Miscellaneous Application 317 of 2024.

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