20050310 TZHC Dar es Salaam

• THE UNITED REPUBLIC OFTANZANIA' ,. I ' I

I

IN THE HIGH COURT OF TANZANIA "' PROBATE & ADMINISTRA:fJON.N0.41 OF 2000

IN THE MATTER OF THE LATE STEPHAN MUHILE AND '. IN THE MATTER OF AN APPLICATION FOR LETTERS

I OF ADMINISTRATION BY ROBERT MUHILE · RULING KYANDO, J. This is an application for the following orders:- . · (i) An order that letters of administration granted to Robert Israel Muhile as sole administrator of the estates of Steven Israel Muhile ( deceased)be revoked. (ii). An order appointing the Administrator General as sole administrator of the estate. (iii) An order that Robert Israel Muhile be requireci'to exhibit . in this Court full and true inventory and accounts pertaining. to his administration as'administrator of the estate. (iv) An order·requiring Robert Muhile to restore to the wido~ • II and applicant vacant possession of the only house left behind i by the deceased which was the matrimonial home.· I: ,! 1 l 2-- '· I I , I I . . , · (v) Any other and further orders as this court rr1;ay deem fit. The application is by chamber summons supported by affidavits of f_ both the applicants - Happiness Muhile and Cosmas Muhile and.it is [. made under S.49 of the Probate and Administration Ordinance and Rules I. 14 and 29 of the Probate and Administration Rules. The respondent has ir_ st filled a counter-affidavit and the 1 appellant has filed a lengthy affidavit in reply. r_ Both sides are represented and Counsel have filed written submissions on the application. The application seems fall under subsection (2) of S.49. The subsec;:tion reads:- "49"'.(2) where it is

satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require, the High Court may suspend --o~ remove an executo.r or administrator ----- and provide for succession of another person to the office of such executor or administrator who may cease to hold office, • ' and for the vesting in such person of any property belonging to the \. c..- estate." , I . In the present matter, the tespondc;I).t was appointed by this court • I • 1 administrator of his .l~te·younger brother s estate. The applicants her.eln 'the '· . first applicant being the wi,d.ow of the deceased and the second applicant • . being his paternal uncle - allege that the respondent has not administered the J estate properly and that he has in fact mismanaged it. Hence the application for the orders sought above. The first point of importance ma4e by the widow is that soon after her late husband's death, there was suspicion that his death was due to poisoning. by her. Upon prompting by the respondent; the police allegedly arrested her an.cl she was· charged in court for her late husband's murder. It is not clear from the filed papers in this matter what the status of those proceedings is at the moment whatever the case, there is. now bad blood between the widow and the respondent engendered of the suspicious and the arrest of the widow. Then

there are the allegations set out in paragraph 3 of the widow's affidavit. She states in that paragraphs - " .... unfortunately Robert Muhile has miserably failed in his duties to administer well and faithfully the estates of my late husband in that: one he has forcefully ejected me from the only house which I and my late husband constructed wherein as a matrimonial home we lived from they year of its completion in 1994; two, he has usurped (sic) from my use a Pick-up vehicle I' l. and transferred it to Ngara keeping the vehicle completely beyond access; and three, ~s a consequence he has developed a hostile and antagonistic • attitude towards me so that I should ask no questions concerning the administration and management of my late husband's estate. As we are not 4-. ori talking t~rms there is. no way or· means i by which I can be assured. of getting my share out of my late husbapcl's estate." And the second applicant, the paternal uncle of the deceased, states in ~ para 5 of his affidavit. " the present administrator, Robert Israel Muhile, has completely miscarried ·(sic)his · duties as an administrator of the property of his late brother because for no cause at all he has kicked out of the house the widow of the deceased and the house remains unoccupied and in poor condition and repair. The late Steven had lived in harmony and with greats affection and love wit,h his wife

during his lifetime therefore it is unJair and shameful to ill-treat and oppress his surviving wife. It is in this context that I do not believe that the present administrator can faithfully oversee the devolution of . the property of the late Steven to his surviving wife." There is then the complaint that the respondent has included an il'legitimate male child of the deceased to the number of the benefices of the · estate. . Concerning the house, the respondent does not contend that it is not the entitlement of the first applicant, the widow. All he states in his counter- affidavit is that it is the widow herself who walked out and left the house. I consider then this to be not an issue. The respondent, as prayed, is to restore. possession of the house to the widow, the first applicant herein. He is to do 5 •' I j' \; . so by surrendering· its keys to the Regisy:~r of the Hi'gh Court-wi'thin three (3) daxs 'frbm the date of this ruling . .;. Concerning exhibiting·of an inventory pertaining to his administration· of the deceased's estate, he has already done so. If the applicants feel that the exhibited inventory is wanting in some respect or in any manner they are to formally say so to the Court so that a decision of the court may be obtained and necessary directions are given to the respondent. i ! Then,· concerning revoking the letters of administration, or, rather, removing

the respondent from the administration of the estates, as can be seen. above, the Court can do so if it is satisfied that the due and proper administration of the estate and interests of the persons beneficially entitled ' . · thereto so reguire. . These are the factors the court should consider in deciding the question of removing an administrator under S.49(2)of the Probate and Administration Ordinance. · In the present matter the very consent and vigorous complaints leveled · against the respondent by the two applicants and, especially, the very bad blood. ¢at now seems ,, to exist between the respondent and the first applicant ~ . more than satisfy me that the respondent be removed from his position as administrator of the estate of his late brother Steven Israel Muhile. The ·estate is supposed to benefit the widow as well. How can the respondent carry on with the administration when there is such animosity between him and her? Also, how can the respondent claim to be well administering the 6 t i i ~ 0 ? I , ' estate when.there are ·an these comp1ainto/agai~st what he i~ doing. I hold as indicated already, that tpe conditions laid down by the law for removing.the respondent from administering·.the estate. have been satisfied. I accordingly order the respondent's removal from the administration and I direct him, ,- ! under S.51 of the .Probate and Administration Ordinance,

to deliver up the I letters of administration granted to him to the Registrar, within three (3) days from to day. I I now come to the proposal to have the Administrator General appointed to succeed the respondent. I understand that the Administrator l General has to consent to assume such a responsibility. I direct therefore that he be summoned to appear here on 28.5.2002 so he signifies his agreement to undertake the responsibility. Finally, this application is granted. I however, make no order as to ·costs as the respondent would have to meet the· costs from the coffers of the estate if I made an order for costs against him. The application succeeds except, of course, for the prayer relating to the order for an inventory and subject to what I have said about the appointment of the Administrator General. L.L.A. KYANDO, JUDGE. c,., 1 • i ',I !• • ; • ; i / 22.5.2002 I Coram - L.A.A: Kyando,J. For the applicants - In person For the respondent-Absent, notified r i Court - Ruling delivered.today. I. L.A.A. KYANDO, J. 22.5.2002. - . I certify that is a true copy of the original. s~A. LILA.

DISTRICT REGJSTRAR ~\\J-r I! I , i. l ·t I' ,.• ; 'i\