clara kaare others vs magreen mwakitwange others 2014 tzhc 2294 23 may 2014

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IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM PROBATE AND ADMINISTRATION CAUSE NO. 19 OF 2003

IN THE MATTER OF THE ESTATE OF THE LATE

WILFREM ROBERT MWAKITWANGE AND IN THE MATTER OF AN APPLICATION BY DR. SUMA

CLARA KAARE AND SIX OTHERS FOR REVOCATION OF LETTERS OF ADMINISTRATION OF THE DECEASED’S

ESTATE GRANTED TO THE RESPONDENTS DR. CLARA KAARE AND SIX OTHERS............ APPLICANTS V MAGREEN MWAKITWAN GE.......... . l STRESPONDENT FREDERICK MWAKITWAN GE....... 2nd RESPONDENT ROSEMARY MWAKITWAN GE........ 3rd RESPONDENT Date of last Order 07/5/2014 Date of Ruling 23/5/2014

RULING A.Shangwa. J. This Administration cause has taxed the minds of this Court and the lawyers for many years since 2003 to the present date. It involves the estate of the late 2 Wilfrem Robert Mwakitwange who died intestate on 16th May, 2001. The said deceased was survived by eight children or more and a wife called Grace Umbe Mwakitwange. These Children are as follows 1. Dr. Suma M. Kaare (daughter) 2. Robert W. Mwakitwange (son) 3. Rose W. Mwakitwange (daughter) 4. Diana W. Mwakitwange (daughter) 5. Frederick W. Mwakitwange (son) 6. Daud W. Mwakitwange (son) 7. Tike W. Mwakitwange (daughter) 8. Winfrida W. Mwakitwange (daughter) On 24th December, 2006, Mandia, J as he then was appointed Magreen Mwakitwange, Frederick Mwakitwange and Rose Mary Mwakitwange who are the 3 deceased’s brother, son and daughter respectively to be joint Administrators of the estate of the late Wilfrem Robert Mwakitwange hereinafter to be referred to as the deceased. In November; 2010, Dr. Suma Clara kaare engaged the services of Mrs, Rwebangira, Advocate and filed an application for various orders against the Respondents (Administrators) to file an inventory report and to give an account of their administration to the beneficiaries of the deceased's estate. In her application, Dr. Suma Clara kaare complained that since their appointment on 24th November, 2006, the Respondents had not been able

to discharge their duties properly and that the estate was being wasted, run in secrecy, animosity and violence. Dr. Suma Clara Kaare highly suspected that the Respondents are dishonest in administering the deceased's estate and are secretely benefiting from it at the expense of other beneficiaries. I made a ruling on the application and in my ruling dated 1st November, 2011, I observed that Dr. Suma Clara Kaare’s complaints against the Respondents were genuine. After so observing, I gave the following orders:- 1. That within one month from 1st November, 2011, they should submit in Court all contracts entered into by them in respect of the deceased’s estate.

2. That within one month from 1st November, 2011, they should open an account to which all monies accruing from the deceased’s estate should be deposited for payment of the deceased’s debts and distribution to the deceased’s heirs.

3. That within one month from 1st November, 2011, they should disclose monthly or annual payments made by them in respect of debts, School fees and allowances to the needy beneficiaries of the deceased.

4. That within one month from 1st November, 2011, they should file a fresh inventory and attach thereto the receipts and vouchers to prove that Tshs 145,000,000/= were spent by them as liabilities.

5. That before March, 2012 they should distribute the deceased’s estate to the heirs. After ordering them to do so, 1 said that in case they encounter any difficult in the distribution of the 6 deceased's estate, they should not hesitate to come to Court and seek for directions. On 18th September, 2012, learned Counsel Mr. Audax Kahendaguza Vedasto filed an application on behalf of nine children who are heirs to the deceased's estate for revocation of letters of administration of the deceased's estate issued to the Respondents and for appointment of the Administrator General in their place and to order them to deliver to this Court the letters of administration which were issued to them. On 13th November, 2013, three applicants out of nine informed this Court that they no longer wished to pursue this application. The three applicants are as follows:- Tausi Wilfred Robert Mwakitwange, Neema Wilfred Mwakitwange and Daud Wilfred Mwakitwange. 7 I decided to strike out their names. I maintained the names of six Applicants only. On 30th December, 2013, I ordered that the Application should be disposed of by way of written submissions. In his written submissions, Mr. Audax Kahendaguza Vedasto submitted on behalf of the Applicants that the order of this Court made on 1st November, 2011 that the Administrators (Respondents) should file a fresh inventory within one month from that date

and the rest of the orders that were given on the same date have not been complied with by the Respondents todate. Mr. Audax Kahendaguza Vedasto vehemently stated that S. 107 (3) of the Probate and Administration of Estates Act, Cap 352 , requires an Administrator 8 within six months of his appointment to exhibit in Court an inventory, that is to say a document containing a full and true estimate of all the property in possession and all the credits and debts owing by any person to which the executor or administrator is entitled in that character. He stated'that the Respondents have failed to administer the estate honestly and transparently in the interest of its beneficiaries and distribute the same to them before March 2012 as ordered by this Court on 1st November, 2011. At paragraph 4 of the affidavit in support of this application Mr. Audax avers succinctly that in the Court file there is no inventory filed by the Respondents after November, 1, 2011; there is no contract or a copy thereof submitted in Court after November,' 1, 2011, there is no record of distribution of the estate of the deceased; there is generally nothing done by the Respondents in response to the Court’s order made on 1st November, 2011. He prayed that the Administrator General should be appointed in place of the Respondents. In response, Mr. Maftah for the Respondents submitted that the Applicants’

submission has no merit. That the fresh inventory was filed and a bank account No. 4198280131002877 Diamond Trust Bank was opened and the estate has been distributed accordingly. That the Respondents should be praised for what they have done instead of being condemned. That despite the challenges to the administration of the estate of the deceased, the Respondents have managed to deliver their duties and responsibilities. That the appointment of the Administrator General will 10 complicate the matter and open up another Pandora for further litigations and complaints. He prayed that the Respondents’ appointment should not be revoked instead they should be encouraged to continue and accomplish the remaining part of administration of estate. Let me start by saying that this application has been filed at a right time. At a time when the Respondents have proved to be total failures to execute their duties in the administration and distribution of the deceased’s estate, irresponsibly offended the law and showed disrespect to this Court of law which appointed them despite its great and tireless endeavours to end the animosity and differences among the heirs which appear now to be irreconcilable. Their failure and disrespect lies in the fact that since when they were appointed as Administrators by Mandia, J as he then was on 24th December, 2006 which is about seven years and six months

ago and since 1st November, 2011 which is over two years or so when I ordered them to submit in Court all contracts entered into by them in respect of the deceased's estate and open an account for depositing monies accruing from the deceased's estate and disclose certain payments to the beneficiaries and file a fresh inventory attached with receipts and vouchers to prove their expenditure of Tshs 145, 000,000/= which is part of the estate and distribute the deceased's estate to the heirs before March, 2012, they have done nothing worthy of convincing this Court to retain them as Administrators of the deceased's estate. Had they done anything substantial, the Applicants could not have forcefully discredited them and requested this honourable Court which is full of justice to remove them. For these reasons, I revoke the letters of administration of the deceased’s estate issued to them on 24th November, 2006 and I order them to surrender the same for cancellation within three days from the next Monday and with effect from today, I appoint the Administrator General to administer the deceased’s estate in their place. 7 JUDGE 23/5/2014 13 Delivered in open Court this 23rd day of May, 2014 in the presence of Mr. Audax Kahendaguza Vedasto for the Applicants and Mr. Mtatiro for Respondents. /* ^ ’ A.Shangwa. *' JUDGE \\ 23/5/2014 w ■