audax selestine mtapima vs evarist kaluzoya mtapima 2021 tzhc 2483 30 march 2021

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA PC PROBATE APPEAL NO. 24 OF 2020 {Originating from Probate Revision No. 2/2020 Sengerema and Probate Cause No. 1/2020 Nyakalilo Primary Court} AUDAX SELESTINE MTAPIMA APPELLANT VERSUS EVARIST KALUZOYA MTAPIMA RESPONDENT JUDGMENT 17/12/2021 & 30/03/2021 W.R. MASHAURI, J; This appeal is originating from the decision of Sengerema District court in Probate Revision No. 2 of 2020 given on 13 October 2020. Being dissatisfied with that decision the appellant Audax Selestine Mtapima has now come to this court. He has filed four grounds of appeal to the effect that: - 1. The learned Resident Magistrate erred in law and fact by nullifying the proceedings and decision of the primary court merely on the basis that 1 the appellant did not account for the delay in applying for letters of administration of estate. 2. That, the learned Resident Magistrate erred in law for not considering the fact that, there is no specific time limit for petitioning for letters of administration of deceased's estate. 3. That, the learned Resident Magistrate erred in law and fact for failure to evaluate the record of the probate trial court as the appellant properly stated the reason for his delay. 4. That, the learned Resident Magistrate grossly erred in law and fact by improperly exercising his discretion to nullity the proceedings and decision of the primary court which appointed the appellant as an administrator without sufficient reason submitted to move the court. When the matter was called in court for hearing on 17/2/2021 the appellant told the court that, he is son of Selestine Mtapima and the respondent is his uncle (baba mkubwa). That, for the first time he filed a probate cause at Nyakalilo primary court, they had hold a family meeting and told their uncle Evarist Mtapima to supervise the clan shamba and was given the shamba for supervision of late they called four clan members but the respondent defaulted and more 2 than four clan members convened at the uncle of Everist called Karuzoya Mtapima and the appellant was appointed administrator of the estate of his late grandfather Mutapima Rwanyanchaka who is grandfather of their father. That, having been appointed administrator of the estate, Mr. Evarist appealed to Sengerema District Court where the matter was withdrawn. As clan members they opened another case in Nyakalilo primary court where the appellant was appointed an administrator of the estate of deceased Mtapima Rwanyanchaka and upon appointed administrator of the estate, he started efforts to distribute the estate to the heirs and upon completed was summoned to appear before Sengerema District court where he was told that, he did not give reasons why he opened a probate cause clan members said they filed a probate cause because the appointed administrator was misusing the deceased's estate, they appealed to the High court where the order of retrial of the matter was given. The issue is whether this petition was filed in court being time barred. In respect of this issue, I remember a sixty days' rule propounded by the Court of Appeal in a Case of James Masanja Kasuka v/s George Humba Civil Application No. 2 of 1987 CAT TBR Registry (unreported) which does 3 not ring in my memory where the Court of Appeal held that in cases which time limit for filing such a case in court is not stated, the time limit is 60 days. Hence the 60 days rule. This petition was filed in court after a lapse of 40 years from the death of the deceased in 1980 definitely the petition was filed in court being hopelessly time barred. In his submission, the appellant alleged was appointed administrator of the deceased's estate. He did not however state why he did not distribute the estate to the heirs of the deceased. At law, an administrator or administratrix is a person appointed to manage the property of another particularly the person to whom a grant of administration is made and one a person is granted letters of administration by the court, his duty is to collect the estates of the deceased person, payment of debts and distribution of the surplus to the persons beneficially entitled by the deceased's personal representatives i.e. his executors if any are appointed and otherwise his administrators. Had the appellant was appointed administrator of the deceased's estate and failed to discharge his duties as stated above, he made a gross 4 mistake. He is unfit for the appointment. His appeal is dismissed. Clan members are hereby urged to reconvene and appoint another administrator and or administratrix who shall perform his/her duty expeditiously by dividing the surplus to the persons beneficially entitled so that justice triumphs. No order as to costs is made. .R. MASHAURI JUDGE 30/03/2021 Court: Judgment delivered in court in presence of all parties this 30/09/2021. 7,uR" if appeal explained. :»i .R. MASHAURI . JUDGE 30/03/2021 5