19950713 TZHC Dar es Salaam

- . ,..II'. . .!I ........ -. .' ♦ IN THE HIGH COl-RT OF TANZANIA f AT DAR E~'. SALAAM ~S CIVIL APPEA~ NO. 33 OF 1995 (From th•- dacision of tt~ District Court of Temeke District at Kivukoni F~ Jnt)ein Civil A)peal NoofSt~g4 Original Ci yj_J. Case Ca :0 No, 626 of 19~~4° of Temek'e•· ..- . Primary Court . HA.BIBU M. KlJivIKANA • • • v • • • · • · • • • • • • • • • • • t ~PPELLANT ··rersus • t MARIAM KUMKANA RESPONDENT t 3UDGMENT ..._ MAINA, J, The appella~tt, H:lbibu Kumkana, file::d an application before the prim0:ry cou::t at Temeke for appointment as administrator of the estate of his J. :~\-.: brother, the deceased Bakari Ku:mkana. The. Respondent, Y··:.....;·iam Kumkana, who is the wife of the deceased suo~essfull;y i::i..Led a caveat, and Fhe was appointed administrator of the estate of the deceased~ ~he Appellant's appeal to the distriet court was dismissed, eud he now appeals to this court. In the firs~ groD,nd of c:i:peql_. the appellant ~J aims that he was appointed by clan members to adminiEteI· the estate, and that the lower courts erred in ~·.ot appointing him. The district court tonsidered that point. Qu::.-te clearly! the duty to appoint an administ:tJator of the es-Gate was on the Court. Whatever the clan "" \':'.'lembers decided was not binding on the court. The Appellant insists in the .seconci ground of appeal that he was better placed to consider the interssts of all beneficiaries. There is nothing on r~oord to indic~:a that the Respondent is unsuitabble or will misuse the estate~ An appeal court may only revoke the appoint- ment of an admir__i...: -l;:.:.. ;; ....,r where, :f:c:. 2:,;:u::1i:-l0 9 ,:;.P- er ,she mi.suses the estate or _-!_",..;,ils t·.: :~;~nunt ·c0 the c·ourt within the specified periodc There ·.\.s another ~crn:plaint in the fifth ground of appeal (),' that the a:,.pDintmen·:. of the Res:..,n-ndent, ~ ?.dmin.:i.s. rater of the estate o~: .her husband is contrary to custom and trc.. . 1i tion. o • • • e/ - 2 I think time has come for customs to be reconsidered~ Customs which make women unworthy of performing certain functions should I • be discatded~ There is nothing wrongifor a woman to be appointed administrator of a deceased 1 s estate,·· A widow is 1 in my view; an ideal person to be appointed to administer the estate of her • I late husband. She is the best person who knows the needs ?f ~er ~hildren.Unless it is proved that she is_ incapable or unsuita\\e i to administer the cstato, sbe should be appointed administrator of the estate of her deceas(d ;iusband~ .Each case must be cons1,der~d and decided on its facts, but it is wrong to say that a widow should not be appointed adminis+;rntors Jf the estates of t,~\'t deceased husband. The Respondent should ensure that all the properties are a~eounted for by.providing an inventory to the primary court as required by lawt She should distribute the estate in accordanee with law ) and anyone who is entitled and is disinherited has the : ) right to recourse to the court. I have'found no v1lid reason to disturb the decision of the lo~er courts ,and con~equently~ I uphold the appointment of the Respondent as the administrator of the estate of the deceased Bakari Kumkana~ Whoever holds any of the deceased 1 s properties should hand over those properties to the Respondent for distrio~t~on to the heirs, I The appeal is dismissed with cosJts. ~ I ~M·"''" Wo J.• MJ:..INJ;. JUDGE At Dar es Salaam 13 July 1995 Appellant present in person Mr. Rutagatina for the Kespondent~ ,, ) ' .~ tit, ..,_ I