A Mukono High Court judge has recused himself from hearing an appeal in which siblings to controversial lawyer, Male Mabirizi challenged an order by court to have all of them undergo a DNA paternity test in order to ascertain whether they belong to the same father.
When the appeal came up for hearing at the Mukono court, the judge declined to hear it without specifying any reason.
The file has since been reallocated to another judge, David Matovu, who is the head of the Mukono High Court circuit.
Judges or magistrates are allowed to abstain from participating in an official action such as legal proceedings due to their conflict of interest.
The judicial officers make such a decision either on their own will or as a result of an application by any of the parties because their impartiality will be questioned.
The DNA case
The Chief Magistrates Court in Mukono last month ordered for a DNA test for Mabirizi and all his siblings to allow for a DNA paternity test on the request of the lawyer.
The lawyer in his application to court sought an exhumation order for the remains of his late father Mohamed Mutumba buried on June, 21, 2022 at Ndese village, Ndese town, Seeta Namuganga sub-county in Mukono district for a DNA test after a will presented by his siblings and his father's mistress indicated that he was not mentioned anywhere.
The controversial lawyer said he cast doubt on the relationship between his purported siblings and his late dad.
Court reasoned with Mabirizi that in order to solve the family wrangles, a DNA test would be the best solution.
However, in an appeal before the High Court in Mukono, 10 of lawyer Mabirizi's siblings including Pastor Moses Solomon Male, Sirim Mabirizi Mutumba, Muhamed Mutumba, Faisal Sebatindira Mutumba, Shafik Nsereko Mutumba, Sarah Namala Mutumba, Rehema Nababi Mutumba, Farada Nambalirwa Mutumba, Shameem Mutumba and Sophie Nassozi Mutumba say they are not okay with having a DNA test carried out on them.
These say the trial magistrate in Mukono erred in law and fact to order a DNA relationship test between Mabirizi and them, without their consent.
"The learned trial Magistrate erred in law and fact to order a DNA relationship test as it infringes on the rights to privacy and freedom of conscience of the appellants. The learned trial magistrate also erred in law and fact and occasioned a miscarriage of justice when he ordered the DNA relationship test between the respondent and children of Mohamed Bazinduse Lulibedda Mutumba in total disregard of his last will excluding him as his child and estate beneficiary," Mabirizi's siblings say in their appeal challenging the order for DNA test.
Mabirizi's siblings say the trial justice occasioned injustice when he ordered the estate of the late Muhammad Bazinduse Lulibedda Mutumba to foot the bill for such DNA relationship test.
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They also argue that it was error for court to order a DNA relationship test of persons not party to the application by Mabirizi and outside his territorial jurisdiction, adding that it was an error for court to conclude that a DNA test would help resolve wrangles in the family which they say are not there.
Mabirizi's siblings want court to set aside the ruling and subsequent order for a DNA test.
Mabirizi files cross appeal
In a cross appeal, lawyer Mabirizi in the Mukono High Court insisting that the body of the late Muhammad Bazinduse Lulibedda Mutumba be exhumed so that part of his skeleton can be used as a sample for DNA test upon all his presumed children.
"None of the applicants(Mabirizi's siblings) adduced evidence of their being lineal descendants of the late Muhammad Bazinduse Lulibedda Mutumba," Mabirizi says in his cross appeal.
The controversial lawyer says that the learned trial magistrate erred in law and in fact when he refused to issue an order for the exhumation of his late father's body so that part of the skeleton can be used as a sample for DNA test.
Mabirizi now wants the High Court to issue this order so that he is sure that all the people purporting to be his father's children are the rightful ones.
