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IN THE HIGH COURT OF TANZANIA (TEMEKE HIGH COURT SUB - REGISTRY) (ONE STOP JUDICIAL CENTRE)

AT TEMEKE MISC. CIVIL APPLICATION No. 18363 OF 2024 (Originating from Probate and Administration Cause No. 864 of2024) In the matter of the estate of the late NASSORO OMARY MOHAMED........................................................ DECEASED AND In the matter of an application for revocation of the grant of letters of administration issued to OTHMAN NASSORO OMARY by AHMED NASSORO OMARY..................................................... 1st APPLICANT ASHA NASSORO OMARY........................................................ 2nd APPLICANT

VERSUS OTHMAN NASSORO OMARY.......................................................RESPONDENT

RULING Date of last order: 28/11/2024 Date of Ruling: 18/12/2024 OMARI, J. The Applicants brought this Application under section 49(1) (b) and (c) of the Probate and Administration of Estates Act, CAP 352, R.E 2002 (the PAEA) praying for orders that this court revokes the letters of administration granted to Othman Nassoro Omary in Probate and Administration Cause No. 864 of 2024 by this court be revoked as the said letters of administration were fraudulently sought and granted on existing letters of administration granted to Ahmed Nassoro Omary by the Ilala District Court in Probate and Administration Cause No. 12 of 2011. From their Affidavits, the gist of both Applicants' averments is that the 1st Applicant petitioned and was granted letters of administration to admirister the estate of the late Nassoro Omary Mohamed in Probate and Administration Cause No. 12 of 2011 at the District Court of Ilala oi 19 September, 2011 and such probate is still pending. Furthermore, the Respondent did not obtain the Applicants' consent as well that of Salma Othman Ally the deceased's widow. And, that he did not disclose to this court that there is a pending administration at the District Court of Ilala. The Respondent's advocate Mr. Litete Haji Ndungo swore an Affidavit on the Respondent's behalf vehemently contesting the Application. Inter alia Mr. Ndungo deposed that the Administrator is

not a party (Respondent) to the Application but he is replying in compliance with the court's order. He also deposed that the alleged Probate and Administration Cause No. 12 of .2011 never existed at Ilala District Court or any other court as before filing the Petition in Probate and Administration Cause No.864 of 2024 the Administrator undertook due diligence to search for the same at no avail. He also went on to explain that the purported grant was disclosed as invalid and fraudulently obtained in the filed statement of delay. The parties were ordered to file a written submission and they complied. Mr. The Applicants' submission was drawn and filed by Deogratias Lyimo Kirita. After adopting the Applicants' Affidavit to form part of the submission Mr. Kirita went on to state that paragraph 5 of the Respondent's Petition stipulated that there were no other proceedings for the grant of letters or otherwise for the administration of the said deceased had been commenced before any court. Counsel argued that this means he concealed from the court that there existed another matter that was never revoked which led to this court granting letters of administration while there are existing etters on the same deceased and estate. Mr. Kirita went on to state that the Respondent annexed in his Affidavit that there is a Misc. Civil Application 17605 of 2024 is set for hearing then the said

probate Probate and Administration Cause No. 12 of 2011 exists to date. Counsel then challenged the Affidavit sworn by Mr. Ngunda stating that he could not in his own knowledge know some of the facts he deposed thus, the Affidavit is hearsay and should be struck out. Furthermore, counsel explained the discrepancies as regards the date of death stating that since the deceased Death Certificate was already in Probate and Administration Cause No. 12 of 201L the Respondent went on to apply for another one, which is why there are descrepancies and the one he attached to the Petition was issued in 2323 To conclude his submission Mr. Kirita prayed for this court to grant the Application. Mr. Litete Haji Ndungo drew and filed the Respondent's submission. At the outset, he challenged the Applicants' Affidavit in support of the Application stating it contained untruths and thus cannot be relied upon to support the Application. To augment his position, he cited the Court of Appeal case of Lilian Richard (The Administratrix of Estates of the Late Esther Ishengoma) v. Iddi Hamis, Civil Application No. 272/08 of 2021. On the Respondent being aware of Probate and Administration Cause No. 12 of 2011 counsel submitted that it was his position that the same dees not exist as per the annexes in the Affidavit. Thus, the letters (granted by this court) were not obtained fraudulently or by

concealing from the court something material to the case. Mr. Ndungo went on to submit that the said Probate and Administration Cause No. 12 of 2011 does not exist ard by referring to Probate and Administration Cause No. 26 of 2011 the Appli zants admitted this. Referring to the common law principle that he who goes to equity must do so with clean hands counsel explained that the Applizants have not explained why in 12 years the estate has not been distributed to the heirs, inventory and accounts not filed if at all the same was granted. He also contended that they have not said who is to be appointed the successor administrator if the Application is granted. Mr. Ndungo challenged the assertion that the Respondent had changed the particulars so as to get a Death Certificate as the same had not been proved in accordance to section 110(1) of the Evidence Act, Cap 6 RE 2022. He then concluded his submission stating that the Applicants have failed to prove the reasons for revoking the letters granted to the Respondent citing the Court of Aapeal case of Benson Ndile v. Abel Mwakifwange, Civil Application No. 495/06 of 2023. He reiterated that the Affidavit has untruths, thus, the Application is incompetent. Having gone through the rival submissions for and against the Application there is only one issue for this court's determination; that is whether the Applicants have presented

sufficient reasons for this court to revoka the Respondent. However, before doing so I find it prudent to address several things that counsel have raised in their submission. I am of the considered opinion counsel are aware that had they wished to bring a prelim nary objection then this court would be obliged to determine it first before determining the Application. However, they chose to bring these matters into submission. The first concerns the allegations of untruths in the Applicants' Affidavit5 the same being the date of the deceased's death as per the Certificate of Heath and as deposed by the Applicants in their Affidavit. The Respondent is cf the view that since the Affidavit contains untruths then it cannot support this Application. However, he has not contested there being two Certificate(s) of Death that is the one the Applicants are stating is in Probate and Administration Cause No. 12 of 2011 and the one that is attached to the Respondent's Petition. This cannot be said to be an untruth since there are two Certificates of Death regarding the same person. And, in any case what is at issue is not the date of death rather it is whether there is a per ding administration. The second thing is the Applicant's assertion that the Affidavit sworn by Mr. Ndungo contains hearsay since he could not have known some of the information in his knowledge and thus should be struck

out. Having gone through Mr. Ndungo's Affidavit, I am of the view that if the paragraph(s) with the identified facts that could not be in the personal knowledge of the learned advocate are expunged the Affidavit would still be intact to contest the Application. Lastly, Mr. Ndungo deposed that the Administrator is not a party (that is a Respondent) to this Application. This I shall not belabour on as the digital file clearly shows who are the Applicants and who is the Respondent. The above out of the way, I now move on to the question of whether the Applicants have substantiated reasonable grounds for this court to revoke the Respondent's letters of administration granted by this court in Pre bate and Administration Cause No. 864 of 2024. This Application is brought under section 49 (1) (b) and (c) which in part provides as follows: " The grant of probate and letters of administration may be revoked or annulled for any of the following reasons- (a)...(b) that the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case; (c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; (d) ...(e)..." Simply put the Applicants are seeking this court to find that the Respondent concealed from this

court that Probate and Administration Cause No. 12 of 2011 is pending at the district court of Ilala. And, by doing so he was able to be appointed as an administrator of the estate of the late Nassoro Omary Mohamed. The Respondent is saying the said Probate and Administration Cause No. 12 of 2011 does not exist, the Respondent did a search as part of due diligence before filing Probate and Administration Cause No. 864 of 2024. To evidence this, Mr. Ndungo's Affidavit has annexed screenshots of the Judiciary of Tanzania eServices Portal, a letter addressed to the Magistrate in Charge of Ilala District Court requesting for perusal and another letter addressed to the Judge in Charge of the High Court Main Reg stry enquiring on the existence of Probate and Administration Cause No. 12 of 2011. Coincidentally he has not annexed any reply to the said letters. In his reply to the Counter Affidavit, the first Applicant annexed documents that depict that there is an ongoing Misc. Probate and Administration Cause No. 17605 of 2024 at the District Court of Ilala at Kinyerezi filed by the Respondent herein seeking to revoke the grant of letters of administration given to the 1st Applicant on 19 September, 2011. Other than the reference that the same not concerning Probate and Administration Cause No. 11 of 2011 rather it is Probate and Administration Cause No. 26 of 2011 the Respondent

could not explain why he is seeking letters that do not ex st to be revoked. When he Petitioned for letters of administration in Probate and Administration Cause No. 864 of 2024 the Respondent filed a statement of delay as per Rule 31(1) of the Probate Rules. In the statement, he gave an account of why he had Petitioned out of time, among other reasons explained that the 1st Applicant had fraudulently obtained a grant of le ters of administration, however, he never divulged that at the time Probate and Administration Cause No. 12 of 2011 was pending in court. What is more, he never divulged that there was a pending Misc. Probate and Administration Cause No. 17605 of 2024 at the District Court of Ilala at Kinyerezi that he had filed. In that regard, I am inclined to agree with the Applicants that as per section 49(1) (b) of the PAEA the Respondent has obtained the grant by concealing from this court something material to the case. Furthermore, the grant was also obtained by means of an untrue allegation of a fact essential in point of law to justify the grant as per section 49 (1) (c) of the PAEA. The Respondent in his statement of delay gave an account of what transpired while he was in the United Kingdom and informed this court that the grant to the 1st Applicant was fraudulently obtained while he withheld information that the same was not revoked. While Mr. Ndungo is adamant

that Probate and Administration Cause No. 12 of 2011 does not exist, he has failed to provide proof other than letters that were never replied to and an unverified/unauthenticated screen shot of the eServices Portal. Before I conclude, I would also like to address two of Mr. Ndungo's concerns. The first is that if the Probate and Administration Cause No. 12 of 2011 does indeed exist why haven't the Applicants explained the failure to distr bute the estate and or file inventory and accounts of the estate. This in my view cements the Applicants' argument that the Respondent knows of the existence of Probate and Administration Cause No. 12 of 2011. In any c ase, this is not the proper forum to answer that question. Perhaps that is why he had opted to file Misc. Probate and Administration Cause No. 17605 of 2024 or not, either way, this court cannot indulge him on that quest as the proper forum is the court that granted the letters of administration in Probate and Administration Cause No. 12 of 2011. The second concern was as regards to the Applicants' not stating who would be a successor administrator in the event this court revokes the Respondent's letters of administration. This, is a misplaced argument. The Applicants came to this court stating that there is an ongoing Probate and Administration Cause No. 12 of 2011 therefore the estate of the late Nassor Omary Mohamed already has an administrator. This being the case there is no need for this court to appoint a successor administrator. For the reasons already stated, Othman Nassor Omary, the Respondent herein is hereby revoked as the administrator of the estate of the late Ne ssor Omary Mohamed. Consequently, I make the following orders: 1. The grant to Othman Nassor Omary is hereby revoked.

2. Othman Nassor Omary is ordered to surrender the original grant of letters of administration to the Hon. Deputy Registrar within 14 days of this Ruling.

3. As provided under section 49(3) of the PAEA, Othman Nassor Omary is to file an inventory and or accounts of the estate of the late Nassor Omary Mohamed as of the date of this Ruling within 30 days of this Ruling to the Hon. Deputy Registrar who shall then transmit the same to the District Court of Ilala at Kinyerezi refrencing Probate and Administration Cause No. 12 of 2011. Due to the nature of this matter, each party is to bear its own costs in this Application. It is so ordered. ' A.A. OMARI

JUDGE /Z I 18/12/2024 \ A. " —■ Ruling dated and delivered 18th December 2024 in the presence of Asha Nganogera and Litete Hajji advocates for the Applicants and Respondent respectively with the 2nd Applicant in attendance. A.A? OMARI

JUDGE 18/12/2024