CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 21790 OF 2024 (Arising from the decision of die District Court of Kinondoni at Kinondoni in Probate and Administration Cause No. 9 of 2018) CATHERINE PAUL MOSHI................................... ......;................... APPELLANT VERSUS GLORIA PAUL MOSHI (xls the administratrix of the estates of the late Paul Moshi Beda).............................................. RESPONDENT JUDGMENT 15th November & 02nd December 2024 BARTHY, J.: The appellant Catherine Paul Moshi, aggrieved by the decision of the ।। Kinondoni District Court at Kinondoni, in Probate and Administration Cause No. 9 of 2018, appeals against that ruling based on the following grounds, 1. That, the trial court erred in law and fact by failing to take into account that the respondent mishandled, mismanaged and tempered with deceased's estates. i 2. That, the trial court greatly erred in law and fact by failing to take into consideration that the respondent included the liabilities on the inventory and account of estates that do not belong to the deceased's estates. i 3. That, the trial magistrate erred both in law and fact in holding that that the deceased could not escape the liabilities while having interests in the business registered under the name of Nuru Funeral Services. 4. That, the trial magistrate erred both in law by not considering that the Respondent exhibited faise/untrue inventory and accounts of estates of the deceased. 5. That the trial magistrate erroneously erred in law and in fact by failing to take into account that the proceedings of the grant of the letters of administration of the deceased's estate were defective in substance for devoid of the consent from all potential heirs. 6. That, the trial Magistrate erred in law and fact by making I a presumption of sharing of profit and loss between the deceased and his wife on the business known as Nuru Funeral Services; in so doing, the trial magistrate ignored the established laws governing probate and administration of the estates. ' i 7. That the trial magistrate erred in law and in fact by holding that the Applicant did not advance sufficient reasons to revoke the Respondent, while the trial court itself admitted 2 that the respondent failed to discharge the administration duties for six (6) years. 8. In the alternative, the trial court misinterpreted the provision of section 49(1) of the Probate and Administration of the Estate Act, Cap 352, R.E 2002. Wherefore, the appellant prays for the court to allow this appeal, quash and set aside the ruling, and appoint another neutral person to administer the estate of the deceased. At the hearing of the matter, it was disposed by oral submissions, the parties were dully represented. In appearance for the appellant was Mr. Joshua Reuben Marwa whilst for the respondent was the learned counsel Ms. Margreth Magebo. Mr. Marwa abandoned the third grounds of appeal and submitted for the rest of the grounds. On his submission for the first and second grounds, Mr. Marwa argued that the respondent, as the administrator of the deceased's estate, mishandled and misappropriated estate funds. Specific allegations included: Misusing 6 million TZS to pay rent for a business registered in the name of the deceased's wife, Judith Edward Kimemeta, as there was no evidence the deceased ever operated the said business. Also, the claim of misappropriating 7 million TZS to repay a loan with FINCA and 3 2.4 million TZS to settle debts with the Tanzania Revenue Authority (TRA), both of which were allegedly personal debts of the respondent. The appellant's counsel relied on Hadija Said Matika vs. Awesa Said Matika (PC Civil Appeal No. 2 of 2016, High Court at Mtwara, unreported) and Sekunda Mbwambo vs. Rose Ramadhan [2004] TLR 439, to argue that these actions constituted mismanagement. Submitting for the fourth ground, Mr. Marwa contended that the inventory and accounts filed by the respondent were improper, as they were submitted by the respondent's advocate instead of the respondent personally, contrary to section 107(1) of the Probate and Administration of Estates Act. On his fifth and eight ground, his allegations were centred on defective petition for letters of administration. Mr. Marwa argued that the petition lacked the required consent of all heirs, particularly that of Jane Paul Mushi. Again, no affidavit was filed in lieu of her consent, violating Rule 39(f), and Rules 71(1) and 72 of the Probate Rules. Citing Eveline Lucas Mushi vs. John Chiwanda Matwanga and Others (Civil Appeal No. 46 of 2023, High Court, unreported) in support. There was also the allegation of delay in distribution of the estate raised as the seventh ground. Stating the respondent has failed to distribute the estate for over six years and neglected her duties to collect 4 assets, identify valid debts, and file accurate accounts. The trial court acknowledged this delay but allowed the respondent to continue administering the estate, contrary to the law. Mr. Marwa on the sixth ground, he faulted the trial court for making irrelevant findings on joint business ownership. He was firm the trial court's finding of joint ownership of a business between the deceased and the respondent was irrelevant and unsupported by evidence, as the business was registered in the name of the respondent. The appellant asserted that probate matters should deal only with the deceased's assets. Ms. Magebo, she countered arguments against mismanagement claims related to the first, second and fourth grounds of appeal. She argued that the claims of mismanagement were baseless, noting that the trial court had already granted a prayer to audit the inventory and accounts of the estate vide Misc. Application No. 116 of 2021. She contended that subsequent delays were caused by the appellant's repeated filings of other applications. She argued that the appellant failed to substantiate their claims, referring to section 110 of the Evidence Act. Responding on the arguments of debts related to Nuru Funeral Services directed on the sixth ground, Ms. Magebo maintained that Nuru Funeral Services was part of the deceased's estate, as acknowledged during clan meetings and in the petition. Proceeds from the business 5 were'distributed among heirs without objection, ahd'the debts associated with it were lawfully settled by the administrator. Counter arguing for fifth ground based on the claim of petition lacking the consent of heirs, Ms. Magebo argued that, the issue of consent was uncontested during the initial' proceedings, and the appellant's objection at this stage was an afterthought. Lastly, addressing the seventh and eight ground regarding the delay and multiple, she insisted that the appellant acted with ill motives by filing multiple suits, all of which were dismissed. She further argued that the trial courts decision was interlocutory and therefore not appealable. Instead, the appellant should comply with the trial court's orders to resolve the matter. Mr. Marwa on his rejoinder, he rebutted claims that Nuru Funeral Services formed part of the deceased's estate; emphasizing that it was registered in the name of Judith Edward Kimemeta. He argued that there was no evidence of distribution of assets from the business. Furthermore, the appellant maintained that the matter was not based on an interlocutory decision and that, since the probate matter was still open, the appeal was properly before the court. । The appellant sought the revocation of the respondent's letters of administration and the appointment of a new administrator, citing mismanagement and procedural defects. The respondent countered by 6 asserting that the claims were unsubstantiated ’and driven by ill motives, urging the court to dismiss the appeal and uphold the trial court's decision. Having considered the competing arguments presented by both parties regarding the grounds of appeal, this court must determine whether the appeal is meritorious. Before delving into the substantive grounds of appeal, the court finds it necessary to address the issue raised by Ms. Magebo, who argued that the anneal is based on an interlocutory order and, therefore, is not maintainable. In response, Mr. Marwa pointed out that this issue had previously been raised by the respondent’s counsel as a preliminary objection. He further emphasized that the matter was fully considered and determined by this court, which found no merit in the objection and I I subsequently dismissed it. As such, the question of whether the appeal is founded on an interlocutory order has already been conclusively resolved, and this court will proceed to address the substantive grounds of appeal without II revisiting the settled preliminary objection. The matter originates from Probate and Administration Cause No. 9 of 2018, in which the trial court appointed the respondent as the administratrix of the estate of the late Paulo Beda Mosha. Subsequently, the respondent has faced multiple suits filed by the appellant. 7 The appellant moved the trial court under section 49(1) of the Probate and Administration of Estates Act, Cap. 352 R.E. 2002 (the Probate and Administration of Estates Act), anc Rule 29(1) of the Probate Rules, GN 369 of 1963 (the Probate Rules), seeking the revocation of the respondent's appointment. However, the trial court dismissed the application for lack of merit, leading the appellant to file this appeal. This being the first appellate court, it is iricumbent upon this court । to reevaluate the evidence presented at the trial court and arrive at its tI own independent findings. This principle is firmly established in the case i of Registered Trustees of Joy in the Harvest vs: Hamza K. Sungura (Civil Appeal No. 149 of 2017), [2021] TZCA 139. The appellant has lodged an appeal with eight grounds challenging the trial court's decision in Probate and Administration Cause No. 9 of 2018, where the respondent was appointed as the administratrix of the estate of the late Paulo Beda Mosha. - । i Upon careful review, this court has identified that grounds 1, 2, 4, and 6 address related issues concerning the inventory and accounts of the deceased's estate, specifically allegations of mismanagement, I untimely filing, and procedural irregularities. These grounds will be addressed collectively. Section 49(1) of the Probate and Administration of Estates Act outlines conditions under which letters of administration may be revoked, 8 includigcfailure to exhibit an inventory or a’ccount or presenting untrue inforration irr material respects, as stipulated under section 49(l)(e). This princijs- has been reinforced in cases such as Herieth Peter Shemweta vs. Beattie Joel Mkumbwa (Civil Appeal 61 of 2020) High Court at Dar es salaaur[2021( TZHC 3933 (5 July 2021) and Daud Mahende Kichonge vs. JoseptMniko & Others (Probate & Administration Cause 48 of 1996) HighSGurt at:Dar es salaam [2006] TZHC 103 (13 November 2006). Jdder section 108 of the Probate and Administration Act, an admiistrator is obligated to collect the deceased's assets, settle liabilities, i and distribute the estate to the heirs. This duty is further highlighted in Monra Nyam tkare Jigamba vs. Mugeta Bwire Bhakome & Another, (Civil Appliation No. 199 of 2019) Court of Appeal1; at Dar es salaam [2020] I TZGA1820 (16 October 2020) । 1 lhe appellant's counsel contends that the respondent failed to file the wentory and accounts within the prescribed period and mismanaged the state by improperly settling debts unrelated to the deceased estate. Hower, the court's records indicate that the respondent's appointment i i wasunfirmed on 24/05/2018, and administrative processes immediately begaasseen on the order of the trial court dated 14/08/2018, regarding distribution of the funds to the heirs. Demonstrating commencement of 9 estate distribution. Furthermore, records reveal the beneficiaries were actively involved in the distribution of funds. While the inventory and accounts filed in court bore the signature of the respondent's advocate instead of the respondent herself, this । procedural anomaly, though improper, does 'not meet the threshold for revocation under section 49(l)(e). The appellant could have raised objections during the inventory hearing for rectification or guidance by the trial court. Regarding allegations of mismanagement, the appellant claims that debts paid to FINCA and the Tanzania Revenue Authority (TRA) were I unrelated to the deceased. However, such concerns should have been I raised during the inventory hearing, as prescribed under Section 107(5) of the Act. This stage allows interested parties to inspect the inventory, raise objections/ and seek clarifications regarding the management of the estate. The appellant did not utilize this opportunity, forfeiting the chance for, the trial court to address these issues. The j appellant's claims of mismanagement and procedural I - irregularities are, therefore, prematurely raised. The court finds no evidence of willful omissions or material misrepresentations by the respondent sufficient to warrant revocation of letters of administration. 10 Turning to address grounds 5, 7, and 8, regarding consent of heir and appointment of the administratrix now the respondent. The appellant's counsel consolidated grounds 5 and 8, alleging that the trial court erred in failing to consider that the petition for letters of administration was defective for lacking the consent of all heirs, contrary i to Rule 39(f) of the Probate Rules. He argued that her consent was neither obtained nor substituted with an affidavit in lieu of consent as required under Rules 71(1) and 72 of the Probate Rules. Rule 39(f) mandates that petitions for letters of administration include the consent of heirs. Where consent is unavailable, Rule 72(1) । requires an affidavit explaining the reasons for its absence. However, the records show that during the clan meeting supporting the respondent's petition, the appellant was not identified as an heir, and there is no evidence that the respondent acted with ill motive or knowingly excluded her. Under sections 110 and 111 of the Evidence Act Cap 6 R.E. 2019, the burden of proof lies with the appellant to demonstrate that the respondent was aware of her status as an heir. No such evidence was presented. In the absence of timely objections or evidence of the respondent's fault, the lack of the appellant's consent or an affidavit in lieu thereof does not invalidate the proceedings. ii Having reviewed the submissions, records, and legal framework, this court finds no merit in any of the grounds of appeal. Procedural irregularities noted in the preparation of the inventory and accounts, while improper, do not justify revocation under section 49(1) of Probate and Administration of Estate Act. Claims of mismanagement and mishandling of the estate were prematurely raised and not substantiated during the appropriate procedural stages. The appeal is dismissed in its entirety for lack of merit. The trial court is directed to expedite the proper filing and hearing of the inventory and accounts of the estate to ensure timely distribution. Considering the familial relationship between the parties, no order as to costs is made. It is so ordered. Delivered in the presence of Mr. Joshua Reuben Marwa learned advocate for the appellant, respondent in person, Ms. Margreth Magebo learned advocate for the respondent and Ms. Bernadina Tayari, RMA. 12