PC PROBATE APPEAL NO

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

AT KIGOMA PC. PROBATE APPEAL NO. 2 OF 2023

KAMANGA KASANDA WATENDE APPELLANT

VERSUS

NAHIMANA STUMAI RESPONDENT (Appeal from the judgment of the District Court of Kigoma at Kigoma) (E. B. Mushi, SRM) Dated 23rd day of January 2023 In (Probate Appeal No. 12 of 2022)

JUDGMENT Date: 29/07 & 18/10/2024 NKWABI, J.: In this appeal, the appellant and his counsel are taking seriously the wise saying that goes, "Cross the stream where it is shallowest. ,'/I say so because, despite the law requiring for a person to be suitable for the administration of the estate of the deceased to have interest in the estate, the appellant has chosen to appeal only basing on a complaint that the trial Court refused his application for appointment as administrator of the estate because he was not proposed by a family who would prepare family meeting minutes. I prefer to quote his ground 1 of appeal he is relying on to fault the decision of the district court and or the trial court: That the trial court erred in law when it ruled that the minutes of the family meeting was a very important factor for the appellant to be appointed as the administrator of the estate of the late Jafari Ndwali Ruzenduka. But this Court is aware of an adage that goes, "Don1: think there are no crocodiles because the water is cslm." So, I have to closely watch the arguments of both parties to ensure justice is done. The objection raised by the respondent against the application lodged by the appellant in the trial Court against appointment as administrator of the estate of the deceased Jafari Ndwali Ruzenduka who died on 04/06/2020 was four fronted thus: 1. The appellant was neither a relative nor a family member of the deceased.

2. No family member meeting was conducted and proposed the appellant to apply for appointment.

3. The objector had been appointed by a Burundian court to be administrator of the estate of the deceased. 2 4. The appellant has no interest in the estate of the deceased. The appellant refuted the objection in court, and said that he is a relative of the deceased. In the evidence as PW. l Nahimana Stumani, the objector, said she is a sister of the deceased and that they had allowed the appellant to initially pay school fees for the children of the deceased and collect the death certificate. She claimed that the appellant had been claiming to own some of the properties of the deceased and was not relative of the deceased but a friend of the deceased. She insisted she was appointed administratrix of the estate in Burundi. PW.1 was supported by other witnesses including SM.4 Rehema who has two issues with the deceased. The appellant who responded to the objection by testifying as DW.1 as the respondent to the objection said the deceased is his young brother (mdogo wangu) since 2008 as his close friend (mtu wangu wa karibu). He said all the estate of the deceased was under him and was appointed as a special protector (mwanga!izi maalumu). DW.2 Furaha testified that the appellant is the brother of the deceased and said the family did propose the appellant to administer the estate and insisted it was done in presence of the objector. He clarified that the appellant was not

blood 3 related to the deceased. That was confirmed by DW.3 who said, the appellant was like a relative of the deceased ( SUl ni kama ndugu wa marehemu). The same is echoed by DW.4 Mvuyekule. The trial court was convinced that the appellant was mere a friend of the deceased thus had no any interest in the estate, but the objector had interest in the estate as she had to upbring the issues of the deceased. It went on to say that the objection was merited and accepted it because the appellant had not been proposed by the family for appointment as administrator of the estate but also is not a relative of the deceased and had no any interest in the estate of the deceased. On appeal to the district court, the appeal was dismissed with costs for being devoid of merit. The appellant is in this Court for redress against his grievances. The appeal was argued by way of written submissions. Mr. Daniel Rumenyela, learned counsel, drew and filed the written submission in support of the appeal. Mr. Moses Karwani Rwegoshora, learned counsel, drew and filed the reply submission. Mr. Rumenyela did not file any rejoinder submission. 4 In his submission, Mr. Rumenyela strongly argued that it has been ruled in a number of cases that clan/ meeting is not a mandatory requirement for one to file an application to be granted a letter to administration of the estate of the deceased. He cited the case

of Makubi Jacob v. Rosemary Beda William, PC Civil Appeal No. 17 of 2021 and the case of Elias Madata Lameck v. Joseph Makoye Lameck, PC Probate and Administration Appeal No. 1 of 2019. He pressed that it was therefore not right the magistrate of the district court to dismiss the appeal on the ground that the family/clan meeting was mandatory requirement for the appellant to be appointed as the administrator of the deceased estate. He prayed the appeal be allowed and the appellant be appointed administrator of the estate of the deceased. In reply submission, Mr. Rwegoshora maintained that a clan/family meeting proposes a fit person to administer the estate and such proposed person would proceed to the primary court with the minutes to file the probate. He cited Yotam Ntezikiba v. Haidan Lazaro (Administratrix of the estate of the late Mjori Kaloza Yimbugwa), PC. Probate Appeal No. 4 of 2022 (HC). Mr. Rwegoshora insisted that clan meetings reduce conflicts and should be cherished. He appears to be giving effect to an adage that goes, "Two heads are better than one." or 5 "Collaboration is key" and "the more/ the merrier." which literally translates in Kiswahili, "Weng! wape." On the ground of appeal, he rested his submission my contending that the appeal has no merit and be dismissed with costs. I have paid deserving attention to the rival submissions. I think the appeal is the

simplest one because, there are several case laws of this Court and of the Court of appeal which clearly decide who is eligible to be appointed administrator of the estate of the deceased as well as the status of the minutes of a clan/family proposing a person to be appointed by the Court. In Mohamed Hassani v. Mayasa Mzee & Another [1994] T.L.R. 225 (CAT) it was underlined that: •: .. Primary Court has powers to appoint administrators of the estate and to appoint others in replacement when need arises. Therefore/ in the absence of minutes of the clan meeting suggesting for the administrator, the Primary Court can still appoint any one qualified to administer as such. // In a very recent decision of the Court of Appeal, the Court spoke itself of who could be appointed administrator of the estate, that is the case of 6 Naftary Petro v. Mary Protas [2019]1 T.L.R. 560 CAT where was held thus: (I) ''Sub-paragraph (a) of Paragraph 2 of the Fifth Schedule to the Magistrates' Courts Act [Cap 11 R.E 2002] is unambiguous and thus it should be construed in its plain and ordinary meaning. In essence, it empowers a primary court, either of its own motion or upon an application, to appoint one or more persons ''interested in the estate of the deceased" to be the administrator or administrators thereof. The primary consideration, therefore, is holding of an interest in the estate of the

deceased. The term interest in the decesseds estate has not been given any statutory definition. (ii) Thus, any person, who, according to the rules for the distribution of the estate of the intestate applicable in the case of such deceased person, is entitled to a share of the deceased persons estate qualifies as an interested person. Invariably, this will include any heir, a spouse, a devisee or even a creditor of the deceased. 7 (iii) In addition to the above mandatory qualification the court in selecting any such edministrator, is enjoined to have regard to any wishes which may have been expressed by the deceased unless it considers, for any reason inexpedient so to do. While proof of holding a beneficial interest in the estate is of peremptory requirement, the obligation to consider and give effect to the wishes of the deceased can be waived on account of inexpediency. " The evidence that is in the court record on both parties in respect of the ground of appeal is clear. The problem with the appellant is that he does not have the qualifications for being appointed administrator of the estate as enunciated in the case of Naftary (supra). He is neither an heir, a spouse, a devisee nor even a creditor of the deceased. The trial court was clear on the qualifications for a person to be appointed administrator of the estate of the deceased so, it cannot be faulted just because it added something which was not, in some way, that mandatory, though a good practice. 8 That said and done, I hold that the appeal is unmerited. The decision of the district court is upheld. The appeal is dismissed with costs. It is so ordered. DATED at KIGOMA this 18th day of October, 2024 J. F. NKWABI .JUDGE 9