MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE)

AT TEMEKE MISC. APPLICATION NO. 11946 OF 2024 (Arising from Probate and Administration Cause No. 2555 of 2024) In the Matter of Application for Letters of Administration By

PAMELA MICHAEL NJUMBA And In the Matter of Application for Revocation of Appointment of

PAMELA MICHAEL NJUMBA AS THE ADMINISTRATRIX OF ESTATE OF LATE

MICHAEL MUKALULA NJUMBA BY ERICK MICHAEL NJUMBA.............................................................. APPLICANT

RULING 14th June & 10th July 2024 BARTHY, J.: In the present matter, the applicant, under a Certificate of Urgency, sought the revocation of the letters of administration issued to Pamela Michael Njumba in Probate and Administration Cause No. 2555 of 2024. The application is made pursuant to section 49(l)(b) and (e) of the Probate and Administration of Estate Act, Cap. 352 R.E. 2019 (herein i PAEA), Rule 29 of the Probate Rules, G.N. 369 of 1963 (to be referred as Probate Rules), and Section 95 of the Civil Procedure Code. The applicant's grounds for revocation include allegations that the letters of administration were fraudulently obtained through false suggestions, lack of the applicant's consent, concealment of material facts from the court, and the presentation of untrue allegations of essential facts. These allegations were refuted by the counter affidavit of Pamela Michael Njumba. The genesis of this matter follows the demise of late Michael Mukakula Njumba, who passed away on 3rd October 2023 at Muhimbili National Hospital. Therefore, the respondent petitioned for letters of administration before this court without the consent of her brother, claiming that his whereabouts were unknown. The court ordered a citation to be made and served to the applicant by the court's process server, who swore an affidavit stating that the applicant could not be found. During the hearing

of the petition, the respondent, accompanied by her husband and other individuals who claimed were family relatives, asserted that the applicant's whereabouts were unknown and that he had not been in contact with anyone. The court subsequently appointed the respondent on 28th March, 2024 to administer the deceased's estate and required her to file a true inventory and account of the estate within two 2 — months-time since her appointment. However, before these forms were filed, the applicant resurfaced and filed this application for revocation on the stated grounds. The matter was set for hearing and disposed of by way of written submissions. Throughout the trial, the applicant was represented by Ms. Anna Marealle, learned counsel. In her submissions, she argued that the applicant is the biological son of the late Michael Mukakula Njumba and one of his beneficiaries. On 10th January 2024, the applicant petitioned for the grant of Letters of Administration at the District Court of Temeke, through Probate and Administration Cause No. 2213 of 2024, before Hon. Swai, SRM. In the course of hearing of the said matter before the district court, Ms. Shija Paul Kaseko. the respondent's counsel entered appearance and raised a preliminary objection with regard to the applicant's petition. While the matter was pending before the district court, the applicant saw an advertisement in

Mwana-Halisi newspaper dated 16th May 2024, indicating that the respondent, acting as the administratrix, had instructed Mas & Associates Company Limited and Court Brokers to advertise the sale of Plot No. 118, Block "E" located at Sinza, Ubungo District, scheduled for auction on 29th May 2024. The applicant also learned that Plot No. 345 3 at Mbezi Beach had been sold for Tsh. 500,000,000 on 27th May 2024 before the inventory and accounts of estate filed before this court. Ms. Marealle further argued that this honorable Court had granted letters of administration to the respondent on 28th March 2024 and scheduled a hearing for the inventory and final accounts of the estate on 13th June 2024. She asserted that the letters were obtained based on false claims that the applicant could not be traced and that the individuals who appeared in court and purported to be the deceased's relatives were not related. She claimed that the respondent misled the court to obtain the letters of administration, depriving the applicant of his inheritance rights. This claim is supported by evidence of the respondent disposing of the deceased's estate without the applicant's consent or knowledge, forging documents at BRELA, omitting some estate assets, and collecting rent before her appointment. Ms. Marealle highlighted that Rule 71(1) of the Probate Rules explicitly mandates the consent of all heirs

to support the petition for the grant of letters of administration, which was not obtained in this case. She, therefore, stated that the respondent is unfit to administer the deceased's estate, and her appointment should be revoked.— 4 The respondent objected to this application through her counter affidavit, denying the allegations raised by the applicant. Throughout the trial, the respondent was represented by Ms. Shija Paul Kaseko. Despite the court's order requiring the parties to file their submissions, the respondent did not file a reply to applicant's submission. As it was nowhere to be found within the case in the system. Consequently, the court will consider only the arguments made in her counter affidavit, rendering the applicant's rejoinder submission filed in court redundant. In her affidavit, the respondent deposed that after their father's death, a clan meeting nominated her to petition for letters of administration. She asserted that, as the administrator, she took measures to safeguard the deceased's estate for the beneficiaries' interests. She further stated the proceedings before the district court were nullity as the applicant used forged documents and that the court lacked pecuniary jurisdiction to determine the matter. Despite efforts to involve the applicant in the matter, the respondent stated that he could not be located, necessitating her actions to

manage the estate, including settling 5 The respondent also deposed that although the inventory and accounts of the estate had not yet been filed, there was no intention to deny the applicant his inheritance rights. With respect to the pleadings and arguments of both sides, this application is made under section 49(l)(e) of PAEA and Rule 29(1) of the Probate Rules. For easy of clarity, the provision of section 49(l)(e) of PAEA states; (1) The grant of probate and letters of administration may be revoked or annulled for any of the following reasons- (a) N/A (b) that the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something materia/ to the case, (c) N/A (d) N/A (e) that the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Part XI or has exhibited under that Part an inventory or account which is untrue in a material respect. ~r~CTt cTnrrrn 6 In the instant application, the applicant's counsel was firm that the letters of administration issued to the respondent was fraudulently obtained as the respondent claimed the applicant was not available to give his consent as deposed on paragraph 14 of the respondent's affidavit in absence of the heir's consent. The petition for the letters of administration is governed by section 56 (1)

and (2) of the PAEA and Rule 39 of the Probate Rules. Whereby, Rule 39(f) of the Probate Rules mandates the petition for letters of administration to have the consent of heirs in terms of Rules 71 and 72 of Probate Rule, unless the court directs otherwise. For easy reference, the provision of Rule 71(1) of the Probate Rules provides; 'Where an application for the grant of letters of administration is made on an intestacy the petition shall, except where the court otherwise orders, be supported by written consent of all those persons who, according to the Rules for the distribution of the estate of an intestate applicable in the case of the deceased, would be entitled to the whole or part of his estate'. [Emphasis is supplied]. Where the consent could not be obtained, Rule 72(1) of the Probate Rules provides an exception to Rule 71(1). In such cases, the petitioner must file an affidavit stating the reasons for the failure to obtain the consent. The Rule is quoted for easy reference stating that; 7 'Where a person whose consent is required under these Rules refuses to give such consent, or if such consent cannot be obtained without undue delay or expense, the petitioner shall, together with his petition for grant, file an affidavit giving the full name and address of the person whose consent is not available (where such name and address are known) and giving the reasons why such

consent has not been produced'. The court is empowered under Rule 72(2) to cite the beneficiary who refused to give their consent. In the instant case, the respondent, in support of her petition, filed the affidavit in lieu of consent and stated that the applicant was out of the region, very busy, and could not be reached. On 21st March 2024, the court issued a citation to Erick Michael Njumba, summoning him to appear in court as the named heir and beneficiary of the deceased estate. The court further ordered the citation to be served to the applicant through the court service server to ensure effective service. On 27th March 2024, the court was informed by David Msangawale, through his affidavit of service, that he had failed to procure the applicant. Based on these facts, the court proceeded to appoint the respondent as the administratrix of the deceased estate. This decision was influenced 8 by the respondent's misleading representation made to the court that the applicant could not be procured to give his consent for in support of petition for letters of administration by the respondent. In reality, the applicant was not out of the city, as he had instituted Probate and Administration Cause No. 2213 of 2024 before the district court, located just below the floor of this court, also, the Probate and Administration Cause No. 2555 of 2024 was instituted later after

the applicant has petitioned before the district court. Indeed, this was the highest form of dishonesty on the part of the respondent and her advocate. The respondent swore in her affidavit that the applicant was out of the city and too busy to give his consent. Additionally, her advocate informed the court that the other heir (the applicant) could not be found. Whereby, the learned counsel Shija Paul Kaseko had appeared before the district court on 20th March 2024, where she addressed the trial district magistrate and raised a preliminary objection against the matter. However, when the respondent and her advocate appeared before this court on 21st March 2024 and the court inquired about the applicant and ordered a citation to be issued to the applicant. The respondent and her advocate acted as though they did not know his whereabouts ana 9 never informed this court about the existence of the other matter before the district court involving the same estate of the deceased. Faced with a similar situation, this court, in the Matter of the Estate of the Late John Kacheli Mallya and In the Matter of Revocation of the Probate and Administration of the Estate of the Late John Kacheli Mallya Granted to Marian John Mallya, between Miriam John Mallya and 3 Others vs. Marian John Mallya (Misc. Application 7 of 2021), High Court at One Stop Judicial Centre Temeke [2022] TZHC 15518, sister

Judge Opiyo observed that; ...genera/ citation is not sufficient notice to the legal heirs whose interest are well known to the petitioner. In the cited case above, the purposeful concealment of citing other heirs regarding the existence of the matter was considered by court to be sufficient grounds for revocation. The fact that the respondent and her advocate knew the whereabouts of the applicant and colluded to exclude him from giving his consent for the petition for letters of administration clearly shows ill motive of the respondent towards the administration of the estate. Obtaining letters of administration without the consent of the applicant, who is the heir, without any justifiable reason, is a contravention of section 49(l)(c) of PAEA, which is a mandatory — io requirement of the law. Since there was not good reason to do away with the requirement, this makes the petition before the court incompetent. As the letter was granted as a result of the concealment of material facts through false suggestions and the presentation of untrue allegations of essential facts made by the respondent to the court, leading to her appointment. The respondent's actions, including disposing of the assets forming part of the deceased estate without involving the other heir and prior to filing an inventory and account of the estate, clearly show that the respondent cannot perform the duties

of her office in accordance with her oath in terms of Section 66 of the PAEA and Rule 65 of the Probate Rules. The oath mandates the grantee to exercise fiduciary duty to the heirs in administering the estate of the deceased as the personal representative of the deceased. Regarding this issue, the Court observed in the case of Joseph Shumbusho vs Mary Grace Tiqerwa & Others (Civil Appeal No. 183 of 2016) Court of Appeal at Dar es salaam [2020] TZCA 1803 that; By virtue of his position, the appellant was supposed to act in good faith at all times for the sole benefit and interest of the estates of the deceased and to the beneficiaries of the ii estate including but not limited to providing information to the beneficiaries and heirs. In that regard, the court finds that the petition for letters of administration in Probate and Administration Cause No. 2555 of 2024 is incompetent as the respondent intentionally did not acquire the consent of the applicant, who is an heir. Consent being a mandatory requirement to accompany the petition, its absence constitutes a valid ground for revocation of the letters of administration. Therefore, I revoke the letters of administration issued to Pamela Michael Njumba for the administration of the estate of Michael Mukakula Njumba granted by this court on 28th March 2024. The respondent shall surrender to this court within fourteen (14) days of

this ruling the letters of administration issued to her in Probate and Administration Cause No. 2555 of 2024 in terms of Section 51 of the PAEA. The court further orders that all assets currently in the possession of the respondent and any person shall be surrendered to the administrator/administratrix of the deceased estate to be properly appointed by lawful court. Given the fact that there is another matter pending before the district court regarding the estate of the same deceased person, for the interest of justice, the court will not appoint another person to allow the — 12 determination of the matter before the district court. Considering the nature of this matter, I give no order as to costs. It is so ordered. Dated at Temeke this 10th day of July, 2024. Delivered in the presence of the applicant in person, Ms. Apis Maigwa for the applicant, the respondent in person, Ms. Shija Paul Kasekwa accompanied by Ms. Edeline Komugisha and RMA. Ms. Bernadina. 13