Emmy Kenneth Mwakakonyole

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO Probate Appeal No 23058 of 2024 [Appeal from the decision of District Court of Kiiombero at Ifakara in Probate Appeai No 15914 of 2024 and originai Probate Cause No 1 of 2024] BETWEEN EMMY KENETH MWAKAKONYOLE APPELLANT VERSUS LUGANO KENETH MWAKAKONYOLE RESPONDENT JUDGMENT MRUMA,J. This is the second appeai. The Appeiiant Emmy Keneth Mwakakonyoie appiied for and was granted with ietters of administration of the estate of her iate mother one Kissa d/o Saium Mwindira who passed away intestate on Aprii 2021, but before going to the merits or otherwise of this appeai iet me say something regarding the way citation of this matter was done. As can be seen this matter has been cited as a Probate Appeai which suggests that it arose from a probate cause. That is not correct version of the matter. This matter ought to have been cited as a Probate and Administration Cause and proceed to the appeal levels as such. That is so because in law inheritance proceedings are referred to and registered as a Probate Cause where there is a procedure by which a testamentary document is established to be a valid will or the proving of a will to the satisfaction of the court or Probate and Administration Cause where there is no Will annexed. Apparently there was no will in this matter therefore citing it as a Probate cause was misleading. The observations notwithstanding and as there is no miscarriage ofjustice caused by wrong citing, I will proceed to determine the merits and/or demerits of the appeal. After her appointment as administrator of the estate of the deceased, the Appellant Emmy Keneth Mwakakonyele proceeded to execute her administrative duties by collecting and distributing the property of the estate. In the course of distributing the said estate the Respondent Lugano Keneth Mwakakonyole who is the son of the late Kissa Salum Mwindira filed an objection proceeding (caveat) protesting the appointment of the Appellant as an administrator of the estate and the intended distribution thereof mainly on the ground that during her life time the deceased had bad relationship with the administrator. After hearing evidence from both sides, the trial court allowed the Respondent's objection and con appointed him to be an administrator of the estate of the deceased in place of the Appellant. The court went ahead to order the new administrator to file final account of the estate within a period of four months from the date he was so appointed. The Appellant was aggrieved and she unsuccessfully appealed to the district court. In her appeal to the District court the Appellant complained of biasness, failure to analyse evidence on record and confirming acts done by the Respondent at the time when he was not an administrator of the estate of the deceased estate. In its judgment the District appellate court confirmed the removal of the Appellant from the administration of the estate of her deceased mother and the appointment of the Respondent in her place. The court stated that when the provisions of section 19 of the Magistrates' Courts Act (MCA)are read together with the Fifth Schedule to the Magistrates'Courts Act and the Primary Courts (Administration of Estates) Rules GN No 49 of 1971, a grant court has powers to appoint and/or revoke the contested administrator and replace the already appointed administrator. The court found that on the evidence adduced which was to the effect that for a period of thirty (30) years the Appellant was disconnected from her parents therefore was not the right person to administer the estate of their iate mother Kissa Saium Mwindira. On the conducts of the Respondent before he was appointed an administrator of the estate of the deceased,the court heid that those acts done by the Respondent were iegai as he acted as an intermeddier or a person who interferes with the estate of the deceased. Once again the appeiiant was aggrieved and has come to this court by way of an appeai on the same grounds as the grounds raised in the District court nameiy that:- 1. That the district appeiiate court erred in law and in fact to give its judgment in based upon unsound reasoning; 2. That the district appeiiate court erred in law and in fact for being biased and always in favour of the Respondent; 3. That the district appeiiate court erred in law and in fact for its failure to examine weight of the evidence from both parties as a result of which it led to miscarriage of justice; 4. That the district appeiiate court failed in law and in fact to bless the removal of the administrator without no dear reasons; 5. That the district appellate court erred in law and in fact in affirming the acts of the Respondent on the estate of the deceased before he was appointed as an administrator of the estate of the deceased. The appeal was argued by way of written submissions. Submitting in support of the appeal, Gaston G. Mwageni and Edward Malongo, advocates for the Appellant have submitted that because there was no evidence that the deceased life style was customary the application of customary law in distribution of the estate of the deceased was wrong. According to the learned counsel the alleged customary distribution of the estate of deceased which excluded the Appellant from the heirs of the deceased was unlawful and it violated principle of fairness. On the complaint that the trial court was biased, the learned counsel submitted that the court's bias is demonstrated by the fact that it gave undue weight to the Respondent's evidence while disregarding appellant's evidence which was supported by oral and documentary evidence of credible witnesses. Submitting in support of the third, fourth and fifth grounds, the learned counsel submitted that there was no evidence that letters of administration of the estate of the deceased granted to the Appellant was obtained by fraud therefore It was wrong to revoke the Appellant's appointment and replace her with the Respondent. Responding to the Appellant's submissions, the Respondent reminded the court that at the time of filing his submissions he had already filed an Inventory and exhibited last account of the estate showing the assets which have come to his hands and the manner which they have been disposed of. The Respondent contended that allowing this appeal will bring more problems to the family than solving them because the new administrator will have nothing to administrate because the entire estate of the deceased had already been distributed to the rightful heirs of the late KIssa Salum Mwlndlra. This fact has not been contested. From the submissions of the parties, there are two Issues for determination by this court. The first Issue Is whether the distribution of the deceased estate done by the Respondent before his appointment by the court as an administrator of the estate was unlawful. In law an act Is termed as an unlawful act If It Is done not In conformity with or Is permitted or Is recognized by the law or rules. In the Instant case there Is no dispute that the Respondent distributed estate of the late KIssa Salum Mwlndlra(deceased) before he was formally appointed as the administrator of her estate. It was the evidence of the Respondent at the trial that he did so because after the demise of the Kissa Salum Mwandira (deceased), he was appointed by the clan and family members to oversee her estate. Let me start by saying that there Is no law that obliges heirs of the deceased person family members to mandatorlly apply to the court for appointment of an administrator of the estate of the deceased. What the law prescribes Is the heirs and shares of the entitled heirs In the estate. In customary laws under the Customary Law (Declaration)(No 4) Order 1963, a notice which contains In Its schedule declared customary law on guardianship. Inheritance and wills an administrator of the estate of a deceased family member Is by operation of law. The law prescribes the person who Is entitled to administer the estate of his deceased family member I.e. father, mother, child etc. On the other hand, section 3 of the Civil Procedure Code [Cap 33 R.E. 2019] provides clearly that any person who Intermeddles with the estate of the deceased Is his legal representative. In law a legal representative Is a person or entity that Is legally authorized to act and take legal action that may affect legal rights of others In respect of the estate of the deceased. Thus, In view of the above cited law after being appointed by family members to oversee the estate of their deceased mother the Respondent became his legal representative and any act done by him In good faith was legal. Accordingly I find ground one of the appellant's appeal to have no merits and It Is dismissed. Regarding grounds 1, 3, 4 and 5, It has been submitted for the Respondent that allowing this appeal will cause more harm than dismissing It since the Respondent has already filed an Inventory and final account of the estate. This assertion was not challenged by the Appellant. In other words, the Appellant Is In agreement that an Inventory and final account has been filed. An Inventory Is a document exhibiting full and true estimate of all the property of the estate In the possession of the administrator and the final account shows the assets which came Into hands of the administrator or legal representative and the manner which they have been disposed of and/or distributed to the heirs. When that Is done the administration of the estate of the deceased Is said to have been closed. Unless there Is serious prejudice and unfairness to the heirs of the estate, re-openIng of the cause may bring more harm to the heirs and the estate than cure. In the case at hand,I find not Injustice and/or unfairness caused to the Appellant In the process. Reinstating her to the already closed administration cause will not save any useful purpose but as submitted by the Respondent will cause Injustice and more problems to the heirs and to the estate Itself. Accordingly, I dismiss the appeal and as parties are a sister and brother from the same mother, making an order for payment of costs will be tantamount to adding salt In a fresh wound. I make no orders as to costs. OF O ^4/ c f. ca\.R.^MRUMA :p' ST® fr JUDGE 7.2.2025