19770601 TZHC Mwanza

-- T.NOA'IA AT MNZA APPELLATE JURISDICTION (PC) CITIL EiL NO 32 OF 1975 (From the c1ci.,icn f th district c urt of l3ukoba 'at Bukob'a in Civil Appeal' No 202 of 1974 — Before C. H. Msmati, 3sq 0 , District Maqistrat 3 and Gera Primary Court Original Civil Case No. 30 of 1974)0 BI FELIOTA. W/0 DAdIAd 0 0 0 0 0 0 00 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 APPILT_ANT versus NENEDICTO KAIJAGE o.00000000000000000.'00000000000e RE3PONDENT JUDqEENT Iii'ALILA, J.: In the original claim, Gera Primary Court Civil Case No 0 30/74 one EVARISTER BAITWA sued his uncle the res";ondent BENEDICTO KAIJAGE DAIThA claiming a shamba and a house worth shs. 16,500/= on the alle- cjation that Benec.iicto Kaij age as administrator, of the estate of his late brother Damiari Daitwa had wrongly allocated them0 This claim failed, the Primary Court held that there was nothing wrong with the distribution made by the respondent0 At the same time the court nullified the contents of the Will both orel and written left by the late DAMIAN }BAITPA, the court therefore ordered that the estate be distributed according to intestate rules and for this purpose apoointed the respondent to administer th estate. But before the respondent get round to perform his duties, the district court ia Civil Revision No. 1/74 varied the order of the primary Court appointing the r eso'ndenf. as administrator, it ordered. that the Primary court should directly administor the estate 0 Thereupon this problem started, and it is for this reason that I thought th' district court interference with its Revisional Order was unfortunate. First of all there was no valid reason for removing the aoellant from his position as administrator of the estate0 Secondly the Primary Court was in no posiition to administer the estate directly. This would have been done better by the respondent with the assistance of the clan. As it turned out the court proceeded to distribute even the property which did not belong to the deceased, hence was not part of the estate. Even the respondent conceded that it was wrong for the Primary court to include the cows in the deceasd's estate and, distribute them among the heiz and heiresses. If the court had consulted the respondent they would not have made this mistake. Therefore when in the course of 'this distribution by the court the apellan€ who is the widow of the late Jamian saw that even her cattle wore being distributed she rushed to the district court and lodged this apaal. It was her own fault however that instead 'of confining her complaints aqainst the inclusion of her cattle in the estate, she 'ombarked on the attack on behalf of her Other c'hildrCn ccfainst 'the entire distribution of her husband's estate0 :fell, this she could not do, her only concern is her own personal property which was wrongly included in the estate. For this reason th' ditrict wegistrntc did 'not deal at all with her complaints in res'pect of her cattle He fouad that the Primary court distri- buted the.estate in accordance with customary rules governingl otestate es:tates and dismissed the appeal. This ap"eal is from that decision0 ' As remarked, the apeellant. Bi. Felista had no right to complain agaiist the distribution of her husband' s estate for there is no evidence that any customary rule of inhertance was breached by the Primary court when effecting this distribution. In fact the respondent was wrongly cited ih this anea.l for he had nothing to do with the.latest distribution made' by the Primary court. In any event and as remarked apart from the cattle the distribution of the rest of the st to a onars to have n in order nd w'uld 2 call for no interfarence But thëcattle which were appellant's personal preerty.should never have been distributed hence all the cattle disthuted to the varioUs claimants of the d eceasedtS estate shoul be returned to the ape1lnt0 Apart from this vrition to a 1 in re s ct of the hr mtts is di-,missed. L N7AL.iLA JUDGE MWANZA 1st JUNE, 1977