andrea logilaki and another v aneth ernest kilanga 2023 tzhc 21329 29 september 2023

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF ARUSHA (AT ARUSHA) CIVIL APPEAL CASE NO. 41 OF 2022 (Originated from Probate and Administration Cause No. 92/2021 and Civil Appeal No. 11 of2022 in the District Court ofArumeru at Arumeru) ANDREA LOGILAKI............................................. 1st APPELLANT NATALI LOGILAKI............................................... 2nd APPELLANT

VERSUS ANETH ERNEST KILANGA....................................... RESPONDENT

JUDGMENT 11th & 29th September,2023 MWASEBA, J. The tag of war between the parties herein began at the Primary Court of Enaboishu at Arumeru where the appellants herein enthusiastically petitioned for administration of the estate of the late Eshimael Naftal Logilaki Kivuyo who was their nephew. The respondent being the legal wife of the deceased objected their appointment on the ground that the appellants were not in good terms with the deceased and they did not assist her in nursing her husband all the time he was sick. More so, they did not participate in contributing the burial expenses. On their side, the appellants told the court that they were appointed by the clan meeting to administer the properties of the two deceased's children born from two different women. They were of the view that the Page 1 of 8 ।' ~ ’ respondent was objecting them due to evil things that she did by leaving the matrimonial home and living with another man namely Yohannes Daudi. They tendered a photo of the respondent and the man which they found it in the media. More so, the respondent had sold the deceased's properties such as a vehicle make Suzuki Escudo and a motorcycle. On the other hand, they recognise the respondent as a legal wife of the deceased. However, they wanted to administer the estate so that the children could get their rights. The trial court after hearing the parties, sustained

the objection and found it worth and just for the respondent who is the deceased's wife to be appointed the administratrix of the estate of her late husband. The appellants were not happy with the said decision. Their appeal to the district court was not successful. This is their second appeal having the following grounds of appeal: 1. That, the Appellant Court was erred in law and in fact by uphold that, the respondent was right to deserted her matrimonial home and went to live with another man Sbdl)M 3 W/tt well-constructed house which was left behind by the decease man.

2. That, the Appellate Court was erred in law and in fact by uphold that, it was right for the trial court to appoint the respondent as Administrators of the Estate of late Ismael Logilaki while is un honest.

3. That, the Appellate Court was erred in law and in fact as it had failed to appoint one of the appellant to cooperate with the respondent as Administrators of Estate of late Ismail Logifafu in order to make sure that justice are done for all heirs of the late Ismael Logilaki who married two wives. At the hearing of this appeal both parties appeared in person, unrepresented. The appeal was argued orally. Submitting in support of the appeal the first appellant stated that he was appointed by the family after the burial ceremonial of the deceased and the 2nd appellant was appointed as an assistant administrator. Thereafter they went to Enaboishu Primary court for appointment so that they could administer the deceased's estate, keep the deceased's property and distribute the same to his children when they grow up. He further stated that the respondent was not appointed by the family to administer the estate. He prayed that for the interest of justice to the deceased's children one of the appellants should be part of the administrators as the respondent has already shifted from the matrimonial residence. He further stated that the respondent is not Page 3 of 8 ' 1 \ honest as she sold the deceased's properties before being appointed the administrator of the deceased's estate. So they are in worry that the rights of the deceased's children will be prejudiced. He assured this court

that in administration of the deceased^ 0St3t@, they tl3V§ 00 interest with the deceased's properties but they need fairness to the deceased's children. They finally prayed before this court that one of the appellants be part of the administrators of the deceased property together with the respondent for the interest of both children. The 2nd appellant added that the respondent had left the family and resides at unknown place with another man so she cannot administer the deceased estate properly. Further to that she has no collaboration with any of the family members so it will be difficult for her to administer the deceased estate. Finally, they prayed that this appeal be allowed with costs as they have been disturbed for obvious thing. Opposing the appeal, the respondent argued that she is a legal wife of the deceased. She denied the fact that she is living with another man. She clarified that her husband sold the matrimonial house then they bought another plot and built another house which is unfinished. After his death the buyer needed his house so she went to live in a rented house. c Page 4 of 8 She argued further that after the funeral, the appellants took a child Angel by force while she is her husband's child and she was the one who was raising her. She prayed that if need arise, the court appoints Angel's mother to join her to administer the deceased's estate as she

does not have faith with the appellants. To her understanding the inheritors of the deceased estate are three; her two children (Ethan and Angel) and herself. Concerning the bank cards, she admitted that she has them together with the birth certificates. That she has been keeping them since the lifetime of her husband. In their rejoinder, the appellants objected the fact that the first wife should join the respondent to administer the estate due to the fact that she is married. Having heard the parties herein the issue for determination is whether the appeal has merit or not. The grounds of appeal placed before this court are premised on the fact that the respondent is not a right person to administer the deceased's estate as she is not honest as she sold the deceased's properties. This matter is at the stage of appointment of the administrator of the deceased's estate. I have gone through the record of this appeal and it Page 5 of 8 is a common ground that despite the fact that at the time of filling of the petition to the trial court the respondent was excluded as one of the heirs in the deceased's estate but yet they both recognise and acknowledge that the respondent is a legal wife of the deceased. It is very illogical and irrational to have the relatives of the deceased appointed while the deceased is survived by the wife. This makes me to believe that the appellants are

not right people to administer the deceased's estate as they can not do justice to all heirs in particular to the respondent who is the deceased's wife. I am guided by the decision of my learned brother Rwizile, J in the case of In the Matter of the Estate of the late Dr. Servacius Beda Likwelile and In the matter of application for letters of administration without will by Raymond Babu Likwelile and in the matter of the caveat filed by Vicky Paschal Kamata, Probate and Administration Cause No. 50 of 2021 (Reported Tanzlii) where he had the following to say; "...it is dear that in case of intestacy as in this case, it is the discretion of the court to appoint any person to administer the estate of the deceased. However, the court is guided by the relationship between the deceased and that person. First, it must at least be a person who is entitled to the whole or part of the estate. Second, and perhaps most importantly, when. Page 6 of 8 it is contested as in this case, a person Who hdS greater or immediate interest over that who is too remote or with less interest." The appellants further have complained that the respondent is not honest as she has sold the deceased's properties and that she has started relationship with another man. All these allegations actually have not been proved. It has been the position of law that it is up to the person challenging the validity of

appointment of an administrator by the court to show that the person so appointed does not have the required qualifications to administer the estate. See the decision of the Court of Appeal of Tanzania in the case of Mohamed Hassan v. Mayasa and Mwanahawa Mzee [1994] TLR 225. It should be also remembered that the matter at the trial court was only for appointment of an administrator of the deceased's estate therefore it is my firm view that objecting the decease's wife to be appointed as an administratrix of the deceased's estate on accounts of allegations posed by the appellants and hold that the respondent was untrustworthy to administer her late husband's estate was very pre mature. The criterion for appointment of the administrator of the estate was stressed in the case of Sekunda Mbwambo v. Rose Ramadhani where it was observed that; t c_. Page 7 of 8 "the objective of appointing an administrator is need to have a faithful person who will, with reasonable diligence collect all the properties of the deceased. He will do so with the sole aim of distributing the same to all those who were dependants during his i/f-eti'ffi^( Basing on the above legal position, the appellants does not fall in the above mentioned criterion as even their petition Filed at the primary court and their evidence shows clearly that the deceased's wife is not counted in as a beneficiary to the deceased's estate. In the circumstances, the appeal has no merit and it is hereby dismissed in its entirety. The decision of the two lower courts remains undisturbed. Due to the nature of the parties, each party should bear his/ her own costs. It is so ordered. DATED at ARUSHA this 29th day of September, 2023. N.R. MWASEBA

JUDGE Page 8 of 8