20100430 TZHC Moshi

IN THE HIGH COURT OF TANZANIA AT MOSHI MISC. PROB. & ADMN. APPL.NO. 19 OF 2008 C/F RM'S COURT MOSHI PROB.&ADM.C.NO.17 /99] FERISTA ALOYCE SAWERE WAWAIYO & 3 OTHERS------------- APPLICANTS VERSUS AGNES ALOYCE SAWERE AND ANOTHER---------------------- RESPONDENTS RULING S.E.MUGASHA, J. In this application, the applicants are seeking to revoke the grant and removal of administrators and appointment of other administrators of estate of the late Aloyce Sawere Waiyo. The affidavit of Felista Aloyce Sawere 1st applicant is in support of the application. The applicants were represented by Mr. Matteru learned advocate and the respondents were represented by Mr. Jonathan learned advocate. The application is resisted by the respondents that it is not properly before the court. In support of that argument, Mr. Jonathan contends that, this application seeking to revoke the administrators should have been filed in the court which granted letters of Administration which is in line with section 82 of the Probate & Administration Act which empowers the appointing I court to revoke the appointment. Besides, Mr. Jonathan submitted that, it is only when the application is refused that is when one can appeal to the High Court in terms of section 83 of the Act. Mr. Jonathan concluded by arguing that the application is not properly before the court and it should be struck out with costs. On the other hand, Mr. Matteru for the applicants contends the application to be properly before the court because it is sought under section 49 of the Probate Act and this court is vested with jurisdiction to adjudicate the application. In rejoinder,Mr Jonathan submitted that, sections 82 and 83 are specific provisions applying to the District Courts in respect of grant of letters of administration. As such, those provisions the applicants should have complied with the provisions of the law in bringing an appropriate application. In the premises, the point for the determination of the court is whether this application is properly before the court? Apparently, the respondents were appointed as administrators o.f estate of the late Aloyce Sawere Wawaiyo vide Probate Cause No. 17 of 1999. The appUcants for reasons spelt out in the affidavit, seek to revoke the appointment of respondents to pave way for the appointment of other administrators. Who is empowered to revoke appointment of administrator made by the n.-----aQ~ 2 District Court? Section 82 of the Probate and Administration of Estate Act provides: The appointment of any administrator may be revoked by the district court which made the appointment for any reason which would justify the revocation of probate or letters of administration or the removal of an executor, and with like consequences. In the circumstances, it is the appointing court which is empowered to revoke the appointment of the administrator and in the case under scrutiny it is the District Court and not the High Court. As rightly argued by Mr. Jonathan, the applicant could only have come to the High Court by way of an appeal if the application was rejected in the District Court which is line with section 83 (l)of the Act which provides: Subject to the Probate Rules, every appointment, direction, or decision of a district court under this Part shall be subject to appeal to the High Court. In the premises, the application for revocation should have been sought in the District Court and not the High Court. Therefore the application is not properly before the court. 3 JUDGE 30th April, 2010 Ruling delivered in the presence of Mr. Jonathan learned counsel for respondents and Vitalis Aloyce one of the applicants. S.E. MUGASHA JUDGE 30/4/2010 4