oc OMMY J

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

AT TEMEKE CIVIL APPEAL NO. 25673 OF 2024 (Originating from a Ruling and Order dated20/09/2024 of die District Court of Temeke at One Stop Judicial Centre in Probate and Administration Cause No. 1041 of2022} AUGUSTINO HARDY MWAMBINGU............................... APPELLANT

VERSUS SOLOMON HARDY MWAMBINGU.......................... st RESPONDENT 1 HAPPY HARDY MWAMBINGU............................... nd RESPONDENT 2

JUDGMENT Date of last order: 22/01/2025 Date of Judgment: 18/02/2025 OMARI, J. The Appellant herein is the Administrator of the estate of the late Hardy Joshua Mwambingu. He was appointed to that role on 29 November, 2024 by the District Court of Temeke at the One Stop Judicial Centre in Probate and Administration Cause No. 1041 of 2022. In the course of executing his duties the Administrator filed the inventory and accounts of the deceased's estate as was ordered. The Respondents herein are among the Administrator's siblings and beneficiaries of the estate. They objected to the filed inventory. The bone of contention between the siblings is that the only property making up the estate was partly divided into four portions (one for each beneficiary) and two of them partially developed their portions before the grant of letters of administration. And, according to them this should be considered by the Administrator and that part of the property should be excluded from the inventory of the estate of the deceased Hardy Joshua Mwambingu. The Appellant disagrees with his brother and sisters stating that he was not part of the agreement to divide part of the property or the developments thereon. He argued that in the absence of a letter of administration at the time, those who did the division had no powers to do so and there is no evidence of there being a meeting to discuss and

agree on the same. The trial court after hearing the arguments of both sides agreed with the Respondent's herein and ordered that the front part of the property which had already been in the hands of the heirs, two of whom had already developed their respective parts be excluded and the remaining part be divided equally among the heirs. This is what irked the Appellant who came to this court armed with the following grounds of appeal: 1. That, the honourable learned magistrate erred in law and facts by failure to properly examine the evidence regarding the division of the deceased's estate.

2. That, the honourable magistrate erred in law and in fact for ordering of (sic) of the deceased (sic) piece ofland from the inventory and account (sic) for reasons that it was divided prior to die filling of Probate and Administration Cause No. 1041 of2022.

3. That, the honourable magistrate erred in law and fact to order exclusion of the front piece of land from the inventory and the account (sic) for the fact that there was agreement (sic) between the Respondents and Appellant that there was a meeting that all the beneficiaries (heirs) reached consensus to divide it before the filing of Probate and Administration Cause No. 1041 of2022. On account of the three grounds of appeal, the Appellant is praying inter alia that the appeal be allowed, the land that was excluded from the inventory and accounts of the estate be included, and be declared that it is subject to division of the estate of the deceased to all heirs. Both Respondents appeared to contest the appeal which was heard in writing. Mr. Daniel Masanga drew and filed the Appellant's submission while Mr. Safari Kimbika drew and filed the submission on behalf of the Respondent. The cornerstone of Mr. Masanga's submission on the first ground of appeal is that the administration court erred by taking the Respondent's word that the parties and the other sister had agreed to divide the front portion of the land and that is why the two heirs made developments on their respective pieces of the said land. He asserted that there were no minutes or any other proof that was presented to the court as evidence of the Respondent's assertion. He cited the provisions of section 111 of the

Evidence Act, Cap 11 R.E 2022 (the TEA) and the case of Mussa Salum v. Halmashauri ya Kijiji cha Senene and 22 Others, Land Appeal No. 72 of 2020 which refers to section 112 of the TEA providing for who alleges something must prove it. Submitting on the second and third grounds of appeal jointly Mr. Masanga contended that the order to exclude the front part of the property was made wrongly as there was no evidence tendered that there was consensus between the beneficiaries and once again resorted to section 111 and 112 of the TEA and the case of Mussa Salum v. Halmashauri ya Kijiji cha Senene and 22 Others {supra). He concluded with a prayer that on the basis of the grounds of appeal and his submission this court should allow the appeal and in turn quash the decision of the trial court with costs. When it was his turn, Mr. Kimboka submitted on the first ground of appeal pivoting his argument on the Respondents' testimony in the administration court that the area in dispute was divided into four equal parts after their father's demise and as a result, the 2nd Respondent and another heir developed their portions using their funds. He added that even the Appellant acknowledged the developments but stated that he was not involved in the division. Counsel cited the case of Leonard Mwanashoka v. Republic (Criminal Appeal No. 226 of 2014) [2015] TZCA 294 stating that he is aware that

improper evaluation of the evidence leads to a wrong or biases conclusion or inferences resulting in miscarriage of justice. According to him the learned magistrate properly evaluated the evidence that is why he took into consideration the developments done by the two heirs as disregarding the same would have led to a miscarriage of justice. Mr. Kimboka also collectively submitted on the second and third grounds of appeal. He explained that the magistrate's decision was properly made as it explained that a court's objective is to decide the rights of the parties and mot to punish them for the mistakes made. Counsel then explained what had transpired before the appointment of the Administrator and acknowledged that the distribution of an estate is an Administrator's role but each case depends on its own circumstances. And, according to him in this case the Appellant failed to show the harm that is caused by excluding the front portion of the property and why he, the Appellant delayed to petition for letters of administration. This, in his view, suggests bad faith as he waited for the others to develop their portions before seeking the whole property to be divided thus unfairly benefiting at the other's expense. To augment his line of thought counsel referred to the case of Cropper v. Smith (1884) 26 Ch. D. 700 as it was cited in the case of Etienes Hotel v. National Housing

Cooperation, Civil Application No. 10 of 2005 stating that the trial court excluded the land as including it would cause injustice to the other heirs considering that the division was not fraudulent as per the Cropper v. Smith (supra) case. To conclude the submission Mr. Kimboka prayed that this court finds the appeal is without merit and dismisses it with costs. In his rejoinder, Mr. Masanga insisted that there was no meeting held by the heirs and that even during the trial there was no proof of minutes of a meeting with the alleged division; thus, the trial court relied on mere assertions of the 3 heirs who are all benefiting from the proceeds of rent and of the deceased's house, ganged up against the Appellant who has not been benefiting from the estate. He refuted that the developments were done using the heir's funds stating that the two have always told the Appellant the rental money was redirected to the developments. Counsel also refuted the allegation that the division was done with consensus of the four heirs stating that the Respondents do not dispute that the division was done in the absence of an appointed Administrator. Having considered the parties' submission for and against the grounds of appeal I am of the considered view that there is only one issue for the determination of this court, that is whether the appeal has merit. As already stated the bone of

contention in this matter is whether the Administration court's decision to exclude a part of the deceased's property that the Respondents are asserting was divided before the Appellant's appointment. Therefore, I shall determine all three grounds of appeal together in the course of the judgment. Perhaps I should state that under our law the only way a property would pass from a deceased person to an heir or beneficiary is through probate or the administration process. And, an Administrator once appointed is the person who is duty bound to identify the assets, liabilities and the heirs of a deceased's estate; collect, pay off debts (if any), and distribute the residue of the deceased's estate to the rightful heirs and or beneficiaries as provided under section 108 of the Probate and Administration of Estates Act, Cap 352 RE 2002 (the PAEA) and elucidated in the case of Monica Nyamakere Jigamba v. Mugeta Bwire Bhakome and Another, (Civil Application No. 199/1 of 2019) [2020] TZCA 1820. The Respondent's counsel is questioning why the Appellant delayed in petitioning for letters of administration and calling it bad faith. This, in my view is not an issue at this stage since the Appellant petitioned and was appointed by the district court. He is the one who has the duty to collect and distribute the deceased's assets and liabilities. Seemingly the Respondents are seeking this court

to agree with the district court's view that the role of the court is to adjudicate disputes between the parties and not punish them for the mistakes made. While I agree with Lord Bowens view and approach to the dispensation of justice as propounded in Cropper v. Smith (supra), I am also aware that laws have to be adhered to and if we are to shield wrong doing in the name of not punishing or disciplining parties it would be tantamount to allowing chaos to reign in the name of dispensing justice. The Respondents' counsel has also alluded to the adage that every case should be dealt with in its own circumstances and I am of the same view however in this particular case the circumstances are such that some of the survivors distributed their deceased father's property and dealt with it as if it was theirs to the extent of effecting developments. This is something that the PAEA terms as an executor in their own wrong. Section 16 of the PAEA provides: "A person who intermeddles with the estate of the deceased or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, tiiereby makes himself an executor ofhis own wrong: Provided that- (a) intermeddling with the goods of the deceased for the purpose of preserving them or providing for his funeral or for the immediate necessities ofhis family orproperty; or

(b) dealing in the ordinary course ofbusiness with goods of the deceased received from another; or (c) action by an administrative officer under section 14 of die Administrator-General (Powers and Functions) Act v; (d) action by a receiver appointed under section 10, does not make an executor of his own wrong." (emphasis supplied) There is nowhere in the record of the administration court or in the Respondents counsel's submission where one can gather that the act of the Respondents to intermeddle with the estate of their deceased's lather falls within the exceptions given in sub paragraphs (a), (b), (c) and or (d) of the above quoted provision. This means they had no justifiable cause to act in the manner they did. It is also noteworthy that Mr. Kimboka's submission also censured the Appellant for not stating why he had delayed to petition for letters of administration. Hardy Joshua Mwambungu died on 12 December,2012 and the Appellant petitioned for a grant of letters of administration ten years later in 2022. In paragraph 10 of his Petition, he stated that cause for the delay thus, fulfilling the requirement provided under Rule 31 of the Probate Rules, GN. No. 10, No. 369 of 1963 which in my view renders the question, why he waited for such a long time redundant more so because the Respondents or anyone else eligible to do so could have, in accordance with the PAEA petitioned

for letters of administration so it was not the sole responsibility of the Appellant. What is important is that albeit delayed the Appellant petitioned and was granted with the letters thus he is the one duty bound to administer the estate of the deceased as per the Monica Nyamakere Jigamba v. Mugeta Bwire Bhakome and Another (supra) case. This is an important aspect to note as an administration court's role is the protection of the deceased's estate and the interests of the beneficiaries and other interested parties by first legally appointing the administrator, thus giving him the legitimacy to act. An administration court's role also extends to keeping the administrator in check through the checks and balances provided in the law. In other words, a court has to strive to strike a balance between protecting the estate, the rights of the heirs, and enabling the administrator to perform his duties. That said, I see why the district court exercised empathy with the heirs who asserted to have divided the front part of the property and those who had gone ahead to effect developments, something the Respondents' counsel is seeking this court to uphold. Nonetheless, I am mindful that what the Respondents and the other remaining heir did was wrong. In fact, it would still be wrong even if the Appellant had partaken in the same and or there were minutes of the family/clan meeting

agreeing on the same. Consequently, I find that all the grounds of appeal have merit and allow the appeal. The Ruling and order of the District Court of Temeke One stop Judicial Centre delivered on 20 September, 2024 is hereby quashed and set aside. As a result, the file of Probate and Administration Cause No. 1041 is to be remitted back to the district court for it to make the necessary orders as regards the filed inventory and accounts of the estate of the late Hardy Joshua Mwambingu that were filed on 17 July,2024. This being an administration matter that involves members of the same family I refrain from making any orders for costs, thus each party is to bear their own costs. It is so ordered. » A.A. OMARI

JUDGE 18/02/2025 Judgment dated arid delivered on 18th February, 2025 in the presence of Daniel Yona and Safari Kimboka advocates for the Appellant and the Respondents respectively.

JUDGE 18/02/2025