Ruling Beatrice Mutungi

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA MISC. CIVIL APPLICATION NO. 7244 OF 2024

IN THE MATTER OF PRESUMPTION OF DEATH OF GRATIAN KALIBALA AND IN THE MATTER OF INTENDED PETITION of the Administration by BEATRICE MUTUNGI...……………….….….…………..APPLICANT

RULING 18thJune & 12th July, 2024. ITEMBA, J. The applicant, Beatrice Mutungi is alleging that, because her former husband one Gratian Kalibala has been missing for seven years, this court should declare him as presumed dead. She has moved this court under sections 2(1) and (3) of Judicature and Application of Laws Act, sections 161, 117 and 122 of the Law of Marriage Act and section 95 Civil Procedure Code praying for the following orders: 1. That, Gratian Kalibala is presumed to be dead for having disappeared without a trace for seven years since the 05/03/2017 to date despite efforts by responsible authorities to trace his whereabout.

2. That, upon the declaration of presumption of death, the applicant who was the ex-wife of GRATIAN KALIBALA herein be allowed to commence to institutes the civil suit claiming his 50% shares and her children to inherit their 50% shares of properties of their father. 1 3. Any other orders that this Honourable Court deemed fit and just to grant. The application is supported by the applicant’s affidavit which discloses that the applicant and Gratian Kalibala celebrated a customary marriage in 1997 and they were blessed with three children. That, in 2007 the two divorced at Ukerewe Primary Court. That, it was ordered that each party will get 50% the matrimonial house located at Plot 50 Block M Namagubo Nansio Ukerewe, which was the only matrimonial property and both parties were ordered to maintain the children. That, the applicant has failed to execute such orders because her ex-husband remain missing Prior to the hearing, for court’s satisfaction, the applicant was ordered to publish a 30 days notice publication of the application for the alleged deceased person or any interested party to be aware. Publication was done through Mwananchi Newspaper dated 6th June 2024. No person has filed or appeared in court to object the orders sought herein. When the application was called for hearing the applicant was present and he had the services of Advocate Fredrick Ododa. Submitting in

support of application, the learned counsel told the court that the main aim of application is for one Gratian Kalibala to be declared presumed dead. The main ground being that he has been missing for 7 years. That, there was a 2 matrimonial case against him at Nansio Primary Court in Ukerewe but the court’s orders thereof could not be executed as he could not be found and the applicant has failed to exercise her rights from that order. That, in the said case it was ordered that, distribution of matrimonial property be done between Gratian Kalibala and the applicant at 50% each and maintenance of the 3 children should be done by both parties at 60% and 40% respectively. That, the applicant could not get her 50% share of the house and 60% share of the maintenance up to this moment. That, the matrimonial house could not be sold and even the certificate of tittle was taken to the District Commissioner and later to the (Registration Insolvency and trusteeship Agency (RITA). He finalised his submissions by stating that, efforts have been done to trace him without success that is why they move the court to declare Gratian Kalibala dead. He referred the court to the birth certificates of two children of the applicant and Gratian Kalibala names withheld and one affidavit of birth of the third child. He also referred the Primary Court’s decision which granted divorce to the parties and

letters of handing over the residential license of the matrimonial property to RITA. 3 Upon being probed by the court, the counsel submitted that the order by the Primary Court was issued on 15/8/2014 and that the said Gratian Karibala was of Rwandese nationality even his relatives cannot be traced. I have considered submission for the applicant and the records herein. When a person has not been heard by his close people for five years, the law empowers the court to presume the said person is dead. This presumption in provided for under section 161 of the Law of Marriage Act which states as follows: ‘161. -(1) Where in any proceeding, whether civil, matrimonial or criminal, under this Act it is proved that a person has not been heard of for five years by those who might be expected to have heard of him if he were alive, there shall be a rebuttable presumption that he is dead.’ This court has in a number of occasions dealt with these types of application for instance in Dotto Omary Hassan, Misc. Civil Application No. 45 of 2022 and Crispine Kajuna and Lucia Msua Kajuna, Misc. Civil Application No. 71 of 2021 and Frank Wirth Presumed Dead and Malisha Mkenzu (Administrator of the Estates of the Late Amina Malango Wirth Misc. Civil Cause No. 5 of 2023. In these cases, it was held 4 that when a person goes missing from his close people for more than five years it can be concluded

that he is presumed to be dead. Under the circumstances, I find that seven years is quite a long time for a person with young three children not to contact them or even their mother. Naturally, these people are the one who might be expected to have heard him if he was alive. Even after publication of the application not the said Gration or any related person has showed up before the court to explain his missing. For the above explanations, I find this application to be merited and it is hereby allowed. In accordance with the prayer in the chamber summons, I declare that Gratian Kalibala is presumed dead. However, I decline to grant the second prayer as is not supported with the nature of this application. It is so ordered. DATED at MWANZA this 12th Day of July 2024. L.K. J ITEMBA

JUDGE 5 Ruling delivered in chamber, in the presence of the applicant in person and Ms. G. Mjari RMA. L.K. J ITEMBA

JUDGE 12/7/2024 6