ocr Grace mwiti

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (TEMEKE SUB - REGISTRY)

ONE STOP JUDICIAL CENTER MISC. CIVIL APPLICATION NO. 22157 /2024 In the matter of presumption of death of KEPHA PETER MWITI..........................................PRESUMED DEAD AND In the matter of an Application for presumption of death of KEPHA PETER MWITI by GRACE MFINANGA.........................................................APPLICANT

RULING Date of last order: 08/10/2024 Date of Ruling: 11/10/2024 S. D. MWAIPOPO J, The Application is brought by Grace Mfinanga seeking that KEPHA PETER MWITI, a former resident of Urnunio, Kinondoni District, Dar es salaam, be declared presumed dead, having been missing since 9th July 2018, despite efforts by responsible authorities to trace his whereabouts. That, Upon the declaration of presumption of death, the Applicant who is the wife of KEPHA PETER MWITI herein be allowed to commence and institute Probate and administration cause for the

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (TEMEKE SUB - REGISTRY)

ONE STOP JUDICIAL CENTER MISC. CIVIL APPLICATION NO. 22157 /2024 In the matter of presumption of death of KEPHA PETER MWITI..........................................PRESUMED DEAD AND In the matter of an Application for presumption of death Of KEPHA PETER MWITI by GRACE MFINANGA......................................................... APPLICANT

RULING Date of last order: 08/10/2024 Date of Ruling: 11/10/2024 S. D. MWAIPOPO J, The Application is brought by Grace Mfinanga seeking that KEPHA PETER MWITI, a former resident of Urnunio, Kinondoni District, Dar es salaam, be declared presumed dead, having been missing since 9th July 2018, despite efforts by responsible authorities to trace his whereabouts. That, Upon the declaration of presumption of death, the Applicant who is the wife of KEPHA PETER MWITI herein be allowed to commence and institute Probate and administration cause for the purpose of obtaining letters of administration to administer his estate and lastly the court has been moved to grant any other orders that this honourable Court may deem fit and just to grant. The Application is brought under Section 2(1)(3) of the Judicature and Application of Laws Act, Cap 358 R. E 2019, Section 161 (1) of the Law of Marriage Act, Cap 29 R.E 2019, Sections 117 and 122 of the Law of Evidence Act, Cap 6 RE 2022 and Section 95 of the Civil Procedure Code, Cap 333 R. E 2019). The grounds for the Application are contained in the Affidavit and supplementary Affidavit of the Applicant, Grace Mfinanga, setting out the grounds in support of the Application and also oral testimonies on oath given by the Applicant and her son Ayoub Kepha. Before hearing commenced, I ordered the Applicant to publish a Notice of citation in two

local Newspapers with a wide circulation. The order was complied with. The publications were made through Mwananchl and Nipashe Newspapers dated 28/09/2024. No person filed or appeared in Court to object the orders sought herein. As the matter stood uncontested, I proceeded with the hearing of the Application. At the commencement of hearing the Applicant enjoyed the services of learned Advocate Mashaka Mfala. Briefly stated, the grounds contained in the Applicant's Affidavit and her oral testimony are that; the Applicant is the legal wife of Mr. KEPHA PETER MWm as per the attached marriage certificate which was also tendered in court and admitted as exhibit APl.That their marriage is blessed with three kids who are; Ayoub Kefa Peter, Martini Mfinanga Peter and Linda Namuhezi Peter. The Applicant further testified that, the said KEPHA PETER MWITI was kidnapped sometime on 9th July, 2018, while he was leaving from his work place, by unknown people and since then his whereabouts are unknown. That up to now it has been almost about seven years (7 years) since his disappearance. The matter was immediately reported to the Police Station and given an RB no. DSM/KIN/CI/D/P/ E. 175/2018, whereby to date the police have not heard of his whereabouts. Despite various efforts made by his family including reporting to the authorities such as the police, the family has looked for him to no

vail. That, the Applicant herein wrote a letter dated 22nd day of July, 2024, to the Police to inquire about the progress of the investigation done by Police about the disappearance of his husband KEPHA PETER MWITI for purposes of filing a probate matter which was tendered in court and admitted as Exh AP3 to form part of the Application. The police made a reply to the Applicant's letter vide their letter dated 13/08/2024, stating that; despite the efforts made in tracing the whereabouts of KEPHA PETER MWITI, his whereabouts are still unknown and the search still continues. See a copy of the letter dated 13th day of August, 2024 from Police(RCO), Kinondoni to the Applicant herein admitted as Exh AP4. The matter was also documented in a family meeting held on 23/3/2019, as per the attached minutes in the Application, which were tendered in court as Exh AP2. The Affidavits and oral testimony also revealed the said KEPHA PETER MWITI had different properties including Bank Accounts, which are currently in the danger of being wasted as they have received alleged reports of stolen money deposited therein. She testified further that these properties cannot be administered without the order of this Court since there is no Certificate of Death in respect of Kepha Peter Mwiti, hence the procedure for the Application of the letters of administration cannot be invoked. She further stated

that unless the prayers sought in the Chamber Summons are granted, the rights of the beneficiaries will be infringed and the estate of the KEPHA PETER MWITI will be misappropriated. She finally prayed for the court to declare that Mr. Kepha's body has not been seen thus he should be declared presumed dead and give them the opportunity to file a probate matter. Testifying on oath before the court was also the Applicant's son Ayoub Kefa, who testified before the court about circumstances of the disappearance of KEPHA PETER MWITI. He stated that he was the first born in the family. On the 09th day of July 2018, at around 5.30 he left his father's Office at Mikocheni, styled as Immunolab Medical Supplies and said goodbye to his father, informing him that he was going to Bamaga street. However, as fate would have it, after an hour or so he received a phone call from his father, telling him to listen to his phone but not respond. According to his testimony, his father seemed to be worried and in distress. While listening to his phone, he kept on hearing people in the background who were speaking words to the effect that they had arrested KEPHA PETER MWITI and immediately thereafter he noticed that his father's phone was switched off. He contended that, that was the last time he heard from his father. He then immediately informed his mother about what was going on. He also called all

the relatives and friends. He called other workers from the office who informed him that his father had left the office safely. He also called the Office watch guard who informed him that the police had gone to their office, to follow up the matter. He then decided to go to his mother's place and the next day him, along with their Company Advocate reported the matter to the police following the initial information he had given them previously. He testified further, that they circulated information to all the banks to freeze all the bank accounts. He further informed the court that efforts to trace his father are still ongoing. They are yet to receive any news about his state of condition. However, they collaborate with the Police force who are investigating the matter. That the Application has been brought for their own benefits since they need to develop some of the projects initiated by him. He thus finally prayed for the court to declare his father presumed dead. Having gone through the Affidavits and oral testimonies of the Applicant and her son, the broad question to be resolved is whether this Application has merit. In dealing with this matter I am alive to fact that, unlike other jurisdictions like England, where they have the Presumption of Death Act, in Tanzania there is still no such a law detailing the procedure on how to declare a person dead. However, this Court

has determined the like Applications under its inherent powers. I have in mind cases such as Re Dotto Omary Hassan, Misc. Civil Application No. 45 of 2022, Chrispine Kajuna (Presumed dead) v. Lucia Msua, Misc. Civil Application No. 71 of 2021; Salum Omary Hamad (Presumed dead) v. Fatma Kitwana Ally Misc. Civil Application No. 36 and Mohamed Salehe Kaombwe(Presumed dead) vs Hamis Mohamed Salehe Misc. Civ. Application no 59/2024. Under section 1 (a) of the United Kingdom Presumption of Death Act, 2013, a person is presumed dead if he has not been known to be alive for 7 years period. My brother Mugeta J. in Re Lucia Msua @ Lucia Kajuna and Re Fatuma Kitwana Ally cases (supra) relied on 5 years' absence provided by section 161 (1) of the Law of Marriage Act, Cap 29 R.E. 2019 to declare death of respective persons. Coming back to the case at hand, the Applicant has preferred her Application under section 161 of the Law of Marriage Act, section 2(1) (3) of the JALA, sections 117 and 122 of the Evidence Act and any other enabling provisions of the law. I shall set out each of the provision herein below as follows; Section 161(1) of the Law of Marriage Act, provides for the provisions on presumption of death. It states as follows; Where in any proceeding, whether civil, matrimonial or criminal, under this Act it is proved that a person has not been heard of for five years by those who

might be expected to have heard of him if were alive, there shall be a rebuttable presumption that he is dead Section 117 of the Evidence Act provides for the burden of proving for the person who has not been heard of for five years. It states as follows: When the question is whether a man is alive or dead and it is proved that he has not been heard of within the preceding five years by those who would naturally have heard of him if he had been alive; the burden of proving that he is alive is on the person who asserts it' Section 122 of the Evidence Act states that; A court may infer the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Section 2(1) and (3) of JALA provides for the jurisdiction of the High Court in the following manner: (1) Save as provided hereinafter or in any other written law, expressed, the High Court shall have full jurisdiction in civil and criminal matters. (3)Subject to the provisions of this Act, the jurisdiction of the High Court shall be exercised in conformity with the written laws which are in force in Tanzania on the date on which this Act comes into operation (including the laws applied by this Act) or which may hereafter be applied or enacted and, subject thereto and so far

as the same shall not extend or apply, shall be exercised in conformity with the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the twenty-second day of July, 1920, and with the powers vested in and according to the procedure and practice observed by and before Courts of Justice and justices of the Peace in England according to their respective jurisdictions and authorities at that date, save in so far as the said common law, doctrines of equity and statutes of general application and the said powers, procedure and practice may, at any time before the date on which this Act comes into operation, have been modified, amended or replaced by other provisions in lieu thereof by or under the authority of any Order of Her Majesty in Council, or by any Proclamation issued, or any Act or Acts passed in and for Tanzania, or may hereafter be modified, amended or replaced by other provisions in lieu thereof by or under any such Act or Acts of the Parliament of Tanzania: Provided always that, the said common law, doctrines of equity and statutes of general application shall be in force in Tanzania only so far as the circumstances of Tanzania and its inhabitants permit, and subject to such qualifications as local circumstances may render necessary. From the above provisions it is clear that, there are provisions

which provide for the concept of presumption of death in Tanzania. However, there is no specific legislation detailing for the procedure, circumstances and factors on how to declare a person presumed dead. Based on the combination of the provisions set out above including those bestowing an inherent jurisdiction in this court on civil and criminal matters brought before it, this court has on a number of occasions, declared persons presumed dead based on the provisions of section 161 of the Law of Marriage Act, section 117 of the Evidence Act and Section 2 of JALA by relying on the English law. According to section 161 of the LMA and 117 of the Evidence Act, cited by the Applicant, it can be deduced that: when those who would have naturally heard from a person had he been alive have not heard from him in the preceding five years, then the burden of proving that the said person is alive is on the person who says he or she is alive. This court in the matter of an Application of presumption of death of Omary Hassan Dotto Omary Hassan and Re Mohamed Salehe Kaombwe (supra) observed that: It means therefore, for a court to be able to presume someone is dead due to his disappearance, there must be evidence proving that a person alleged to be dead has not been heard within 5 years by those who would have naturally heard from him, say his family, relatives and colleagues, if he had

been alive, '(emphasis supplied). Further, in the case of Fatma Kitwana (supra) my brother Mgeta J drew by inspiration from the provisions of section 161 of the LMA, in an Application filed under section 2 of JALA, Fatma Kitwana on the mysterious disappearance of her husband Salum Omary for a period of five years. Fatma's complaint in the said case was that she could not access the properties left by her husband for family use because they were in the name of the deceased and she could not file a probate cause for want of a death certificate. It was for this reason she applied for a declaration that her husband Salum Omary Hamad be declared presumed dead so that she could petition for letters of administration. Upon hearing the Application, the court held in that case as follows; In my view a disappearance for a minimum of five years is sufficient for a court to make such a declaration. As there is no law governing this mishap, inspiration can be drawn from section 161 (1) of the Law of Marriage Act [Cap 29 R.E. 2019]. By this section, a person can be presumed dead if he has not been heard of for a consecutive period of five years by those who might be expected to have heard of him if he were alive. A wife is one of person expected to have heard from the husband if he were alive and in this case the applicant. She has not heard of Salum Omary Hamad for a period of five years

now. On that account, I declare Salum Omary Hamad presumed dead. The applicant can proceed to apply for letters of administration to administer her husband's estate.... I now move to consider the evidence on record. In the present Application, and based on the evidence on record, KEPHA PETER MWITI is alleged to have been missing for about seven years. He is alleged to have disappeared on 9th July 2018 and his family has since not heard from him. His wife, the present Applicant, has not heard of KEPHA PETER MWITI since 9th July 2018. This according to my own calculations is a period of more than six years, which is beyond the period stated under section 161 of the Law of Marriage Act and section 117 of the Evidence Act cited above. The evidence on record shows in paragraph 2 of the Supplementary Affidavit that the Applicant is the wife of KEPHA PETER MWITI, which means that the Applicant being the wife fulfils the requirements in Section 161 of the Law of marriage Act to present this Application in court, since she falls under the category of the persons who might have been expected to have heard of KEPHA PETER MWITI if he were alive. However, she has not heard of him for more than six years now. The evidence on court record in paragraph 5-8 of the Affidavit in support of the Application and oral testimonies shows that; when his family members became aware of his disappearance

they immediately reported the matter to the Police vide RB no. DSM/KIN/CI/D/P/ E.175/2018, who launched their investigation. However, based on the letter written by the Police force, Kinondoni, dated 13/08/2024, with Ref No. BE.379/476/01/252, the investigation efforts have proved futile since Kepha Peter has not been found alive to date and the Police force continues with search efforts to trace him. Para 5 of the said letter reads as follows; Hadi sasa ndugu Kepha Peter Mwiti hajapatikana na hajulikani yupo wapi. Hata hivyo bado tunaendelea na jitihada mbalimbali za kumtafuta... It is trite law that, the burden of proving someone is dead or has not been heard from or seen for a period of more than five years is on the person who affirms it as per section 117 of the Evidence Act, Cap 6 RE 2019. Therefore, any person who may be having contrary information must be given an opportunity to rebut the Applicant's assertion. Therefore, based on the evidential analysis above, and in the absence of any other evidence to the contrary, the only conclusion that can be drawn is that, the said KEPHA PETER MWITI, might actually be dead based on the circumstances of this case as testified by the Applicant and her son. In reaching this position, I rely on Section 122 of the Evidence Act which states that; A court may infer the existence of any fact which it thinks likely to have happened,

regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. This court also in further ensuring that no one is denied the opportunity to object to the matter, and that the public is made aware of the Application, ordered the Applicant to effect citation/publication in the Local newspapers but still no one objected this application. The evidence tendered during oral testimonies is that the Applicant complied with the order of the court of issuing a public notice vide local newspapers about the disappearance of her husband, KEPHA PETER MWITI, but she has since not received any news about her husband as per Exhibit AP5 and AP6 which are Public Notices advertised in Mwananchi and Nipashe Newspapers of September 28th, 2024. These adverts were meant for the Public who could have known the whereabouts of the Applicant to point to the possibility of KEPHA PETER MWm being alive, however none has been forthcoming. Section 117 of the Evidence Act and Section 122 of the Evidence Act provides as follows: When the question is whether a man is alive or dead and it is proved that he has not been heard of within the preceding five years by those who would naturally have heard of him if he had been alive; the burden of proving that he is alive is on the person who asserts it' (emphasis

supplied) Based on the provisions of section 117 of the Evidence Act, cited above, I find that the evidence on court record, that Kepha Peter Mwiti has been missing for over six years and no one has seen him alive since 2018, is compelling for this court to declare him presumed dead. Further, in the same spirit of addressing the question of presumption of death, I should also state that another law that governs the question of presumption of death in Tanzania is the Births and Deaths Registration Act, Cap 108, which was amended in 2019 to introduce a new section 26A which imported the requirement of registration of deaths of persons who are declared by the court to be presumed dead. Reverting back to the prayers set out in the chamber Application, the Applicant has prayed for this court to declare KEPHA PETER MWITI presumed dead, having been missing since 9th July 2018, despite efforts by responsible authorities to trace his whereabouts. That, Upon the declaration of presumption of his death, the Applicant who is the wife of KEPHA PETER MWITI herein be allowed to commence and institute probate and administration cause for the purpose of obtaining letters of administration to administer his estate and lastly any other orders that this honourable Court may deem fit and just to grant. On that account, and in the upshot, I proceed: 1. To allow the Application and declare that KEPHA PETER MWITI, a former resident of Urnunio, Kinondoni District, Dar es salaam is presumed dead since 09/07/2018.

2. Pursuant to the provisions of section 26A of the Births and Deaths Registration Act, Cap 108, this order shall be served on the Registrar General/Administrator General, Registration Insolvency Trusteeship Agency (RITA) for registration of presumption of his death.

3. Then the Applicant herein can proceed to apply for letters of administration in respect of the estate left by Kepha Peter Mwiti, in accordance with the law.

4. The Applicant shall bear the costs of this Application.

I SO ORDER Dated at Dar es Salaam this 11th day of October 2024 S. D. MWAIPOPO

JUDGE 11/10/2024