PROBATE AND ADMINISTRATION CAUSE NO

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

AT ARUSHA PROBATE AND ADMINISTRATION CAUSE NO. 29 OF 2022

IN THE MATTER OF THE ESTATE OF THE LATE

PETER MARTIN KESSY DECEASED

AND

IN THE MATTER OF APPLICATION FOR LETTERS OF

ADMINISTRATION BY JULIUS PETER KESSY 1st PETITIONER AGATHA PETER KESSY 2nd PETITIONER

AND

IN THE MATTER OF CAVEAT BY

HONEST PETER KESSY CAVEATOR

JUDGMENT 18/06/2024 & 23/08/2024 BADE, J. On 7th December 2022, Julius Peter Kessy and Agatha Peter Kessy filed a petition for letters of administration of the Estate of the late Peter Martin Kessy, their father, who died intestate on the 26th day of September 1996 at Kibosho District Hospital, Moshi. According to the Petitioners, the deceased was survived by seven children. Petitioners contended that 1 of 19 they were appointed to be administrator and administratrix respectively in the family meeting convened on 16/02/2019. Petitioners were appointed by the family members to petition for letters of administration and administer the deceased's estate. They further alluded that the deceased professed Christianity religion during his lifetime. After the issuance of the citation, the probate was advertised in the newspapers. On the 2nd day of March 2023, a formal caveat was entered by Honest Peter Kessy. After the caveat was entered and having called the caveator to enter appearance in terms of section 59 of the Probate and Administration of Estates Act, [Cap 352 R.E 2002] (hereinafter "the PAEA") and Rule 82 of the Probate Rules, the matter turned out to be contentious. The proceedings now took the form of a civil suit in terms of section 52(b) of the PAEA, where the Petitioners became the Plaintiffs while the Caveator became the Defendant. The Petitioners were represented by Mr.

Matuba Nyerembe, learned advocate while the Caveator was represented by Mr. George Njooka, also learned advocate. Agatha Peter Kessy (PW1) was the first to take the witness box and testified that the deceased was her father, the Caveator is her brother, Page 2 of 19 and her mother died in 2007. She stated that she was appointed by the family meeting to be administratrix of the estate of their deceased father which was convened on 16/02/2019, a meeting that she herself chaired. She tendered the minutes of such meeting and they were received in evidence as Exh Pl. She also explained in testimony that her brothers started fighting amongst themselves, and everything was at a standstill in the family in so far as the administration of the estate of the deceased properties was concerned. Julius Peter Kessy took the stand as PW2, and testified that in 2007 his stepmother had an accident and passed away. That even at this time, the estate of their late father was not administered, and everything was placed under the hands of their brother, Honest Peter Kessy. One of their brothers Raymond was unhappy with the way he was treated and objected to the same, and thus a meeting was convened followed by a subsequent meeting that recommended him and his sister for an appointment as administrators. His further testimony was that matters in the family are not going smoothly as required and that

it is only their brother who is benefitting from the estate of their deceased father. That the Caveator was busy with his own affairs and so they took the trouble to convene the meeting and they included him in the Page 3 of 19 meeting as reflected in the minutes. On being cross-examined, he testified that he could not bring the death certificate of their late father as the Caveator had it, nor did the Caveator sign exhibit Pl. He also confirmed that he is ware that one of the title deeds for the house that is being contested is in the name of Monica, his stepmother, not that of his deceased father. On the other hand, Honest Peter Kessy testified as DW1. His testimony was that the properties which were left by the deceased are a guest house in Levolosi, a house in Ngarenaro, a house and a farm in their home village at Kirua Vunjo and a house in Njiro. His further testimony was that the house is in the name of Peter and Monica, who also passed away and was his mother. DW1 further testified that all the properties were entrusted to Monica (his late mother), Robert Vincent and himself. His testimony was that these people were appointed at Kirua Vunjo, Moshi, where the properties were distributed as per the customs, and he was appointed as the leader of the family. This meeting was not attended by Robert Vincent Kessy, Joyce, Spechioza, Agatha, and Julius. He testified further that

even though Julius was absent, he was represented by Simon Minja who was a neighbour from Kihonde Parish. He explained that there are miputes 4 of 19 from Kirua Vunjo meetings chaired by Ernest Kessy, contending that the said meeting recommended him as the administrator. He tendered the minutes of the said meeting and was admitted in evidence as Exh D2. His further testimony is that there was a case that was instituted at Maromboso Primary Court, Probate Cause No 357 of 2021 which gave rise to an appeal filed as Civil Application no 29 of 2022 at the Arusha District Court, where, the Court revised the decision of the primary court for want of prosecution and he was included in this case and for the same deceased estate. That, he was informed of the pendency of this matter through a Mwananchi Newspaper, and that the information was shared on a WhatsApp message in the family group chat while there was pending a Probate Cause No. 357 of 2021 at Arusha Urban Primary Court famously known as Maromboso Primary Court. DW1 testified that his siblings are objecting to the fact that there was no meeting appointing any of them to be administrators, and that their father had 2 other wives whom he married traditionally. He stated that the property at Levolosi is under their joint possession where he operated it for 1.5 years, then PW1 operated it till it was closed down, and now Raymond and

Spechioza are running it believing it is their late mother's property. / Page 5 of 19 DW1 testified also that the clan meeting of 16/02/2019 was not an official meeting. His siblings would come to his house through his own efforts so that they can be together. He testified further that he had once asked Julius about the legal procedures as a lawyer and he is the one who came up with the minutes which he did not recognize, and he first saw the minutes when he appeared at the Primary Court. He stated that he is the one entrusted with the death certificate of their father and even the proceedings instituted at the primary court lacked the original copy of the death certificate. He tendered the death certificate of the deceased and was received and admitted in evidence as Exh DI. His further testimony is that using his own resources, he had been supporting all of the children remaining after the passing of their parents. The defence also paraded Ernest Anasel Kessy who testified as DW2. He explained that the deceased was his brother who died on 26/01/1996, and was survived with seven children. He further testified that they convened a clan meeting on 28/01/2023 for the purposes of appointing the administrator of the deceased's estate at Kirua Vunjo where he was the chairperson of the said meeting. Page 6 of 19 His further testimony was that in the said clan meeting they

appointed Honest Peter Kessy to be the administrator of the deceased's estate, and him as the chairperson of the clan, do not recognize the Petition for Probate as made in court by the Petitioners. He explained that the deceased left a house and a farm at Kirua Vunjo, Moshi, a house at Njiro, Arusha, a house at Ngarenaro, Arusha and one motor vehicle. In cross examination, DW2 acknowledged that the petitioners are children of the late Peter Martin Kessy, but refuted any knowledge of the meeting convened at Mateves Kisongo on 16/02/2019, which appointed the Petitioners to administer the deceased properties. He also confirmed his knowledge that the seven children of the deceased are not all from the same mother. The last person to take the witness stand was Digna Prosper Kessy, who testified as DW3. Among other things, her testimony confirmed that the late Peter Martin Kessy who was his uncle died on 26/01/1996 and was survived by seven children. She stated that on 28/01/2023 they convened a clan meeting for the purpose of appointing the administrator of the estate of late Peter Martin Kessy and they recommended Honest Peter Kessy to be the sole administrator of the deceased's estate. She attacked the petition made by Agatha Peter Kessy and Julius Peter Kessy Page 7 of 19 to be void on the reason that according to the Chagga customs, the first born is the one who is supposed to

be placed with the administration of the late father's estate obligations. He reckoned that previously all the deceased properties were under his wife. While cross-examined, DW3 confirmed her awareness of the pending probate case which was instituted at the Primary Court as well as the District Court. DW3 also stated she understood that in order to get an administrator of the estate of a deceased person it is not necessary to convene a family meeting. Upon hearing the evidence from both sides, I am of a formed opinion that the issues for determination before this court are threefold, whether the caveat entered by the Caveator has merits, secondly, whether the petitioners are right and proper persons to be appointed as administrator of the estate of late Peter Martin Kessy, and lastly, what reliefs parties are entitled to. It is clear from the evidence of the caveator's side that, he is objecting the appointment of the petitioners to be administrator and administratrix of the estate of the late Peter Martin Kessy, and among the reasons is that he was already appointed by the family meeting convened on 28/01/2023 whose minutes have been admitted as Exh D2 to become the administrator of the estate of late Peter Martin Kessy, and that they ■e 8 of 19 did not recognize the family meeting convened on 16/02/2019 whose minutes were also admitted as Exh Pl which approved the

petitioners to be appointed the administrators of the estate of late Peter Martin Kessy. His other reason according to the testimony of DW1 is that the deceased properties had already been divided according to the Chagga rites. It is on the record that, there are two family meetings convened for the purposes of appointing administrator(s) of the estate of late Peter Martin Kessy. The first meeting was convened on 16/02/2019 at Mateves Kisongo, Arusha which appointed petitioners and caveator to be the administrator of the estate of their deceased father, and the second meeting was convened on 28/01/2023 at Kirua Vunjo, Moshi which appointed the caveator to be the administrator of the same estate. Before going further, let me first explain the purposes of family/clan meetings. I wish to point out that there is no legal requirement that when a person dies intestate, the deceased clan member should convene and recommend a person to administer the deceased's estate. This is merely a rule of practice developed by the court to filter issues and facilitate the process, so that a fit person, who, subject to the decision of the court PW 9 of 19 can be appointed as an administrator of the estate of the deceased in cases of intestacy. This meeting could also be held to identify a Will if any, and reduce conflicts in court. In any case, the proposed administrator must be one of the heirs or

a close relative of the deceased. Practice has it that the attendees of such a meeting would then sign the minutes that will form part of the attachments in the petition together with the death certificate. That said, it is an undisputed fact that the deceased died in 1996. It is also a confirmed fact that after his death there has not been any clan/family meeting that was convened to recommend for appointment an administrator/ administratrix, all the way up to 16/02/2019 when some of his children convened the family meeting, and appointed petitioners and caveator to be administrators and administratrix of deceased estate, which was about 23 years past the death of Peter Martin Kessy. After the petitioners were appointed, it seems that they petitioned for the letters of administration in the Primary Court. According to the evidence, it was unfortunate that their appointment was revoked by the District Court, but undeterred, they managed to file a new petition before this court. It was only after filing the present petition that some other family members convened a meeting on 10 of 19 28/01/2023 and recommended the Caveator for an appointment to become the administrator of the estate of the late Peter Martin Kessy. As per testimony in court, the first meeting of 16/02/2019 which recommended the petitioners together with the caveator as administrators, even though the caveator

did not attend, that meeting was attended and signed by four children out of the seven children of the deceased which was more than half of the deceased children. I think that meeting was a valid meeting and it had a good intention of ensuring that the deceased estate should not continue to be left unattended putting into consideration that the deceased properties were left unattended for 23 years since his death. The subsequent meeting which was held on 28/01/2023 was nothing more than an obstruction to the properly intended petitioners to ensure that the properties of their deceased father are no longer left unattended and unadministered, and avoid a waste of the said properties. I firmly hold that the family meeting of 28/01/2023 was made intentionally to obstruct the process of ensuring that the deceased properties are distributed to his legal heirs, and each of the heirs is getting what he/she is entitled instead of benefiting only some of the heirs. I say so because it is clear that this Page 11 of 19 particular meeting was convened after the petitioners had already instituted this petition. It is also my finding that it is not presumptuous to deduce that the caveator who was appointed during such a meeting to be the administrator has no intention of filing for the letters of administration because, in his testimony, he testified that the deceased properties had already

been divided according to the Chagga rites without proving such a fact. Furthermore, if indeed the remaining members of the family of the late Peter Martin Kessy, who convened and attended the meeting of 28/01/2023 had the noble intention to appoint the administrator of the deceased estate they should have had to supposedly do so many years ago, rather than wait until the petitioners made the move and lodge the present petition to convene the said meeting. As I pointed out, it has been 23 years since the death of the deceased. This was quite a long time for the caveator and other members of the deceased family to wait before they convened a meeting until the four children of the deceased recommended amongst them to have the administrators institute this petition, only to complain that they did not recognize this petition or the family meeting which was conducted on 16/02/2019.1 am not convinced of the explanation offered by the Caveator for this lapse of time. Page 12 of 19 According to the testimony of the caveator and his witnesses, it is clear that after the death of Peter Martin Kessy, his properties remained under the hands of Honest Peter Kessy (the caveator), Robert Vincent, and the deceased wife (who eventually passed on), but they were not among the family members that convened the family meeting of 28/01/2023. It is clear that they were benefiting from the deceased

properties because those properties were in their hands, and that is why they were not interested in petitioning for letters of administration. In all fairness, it is a requirement of the law that if the deceased died testate the one appointed by the Will must make a formal application for probate before a competent court for them to be granted probate. Equally, if the person died intestate, any interested person can make application for letters of administration before a competent court for them to be granted letters of administration. In determining whether to grant letters of administration dr not, the court is enjoined to ascertain, if the persons petitioning the court for the grant are fit and proper persons to administer the estate of the deceased, and secondly, whether the persons are interested in the estate to be appointed as such. Page 13 of 19 In any case, a letter of administration is a legally issued document granted by the court, with the sole purpose of authorizing an individual, known as the administrator or administratrix as the case may be, to manage the estate of a deceased person who passed away without leaving a valid Will as explained above. It is a situation like the one before me, where the deceased died without appointing an executor to manage and distribute the assets left over in their estate after their passing. As the administrators obtain the

legal authority to act on behalf of the deceased, it cannot be overemphasized that such grant comes with a long list of responsibilities and asset management tasks to navigate. A further clarification of the responsibilities of the grant of letters of administration is put forth in the case of Sekunda Bwambo vs Rose Ramadhani [2004] TLR 439, where these important matters regarding the appointment of an administrator were also clarified particularly the position and duties of an administrator of an estate. It is purely a position of trust, and certainly not of personal gain. I respectfully quote the guidance from His Lordship Rutakangwa, J. (as he then was) at pp. 443-444 which I quite instructively extracted from the decision of what he described as a classic exposition of qualifications of a fit person for Page 14 of 19 appointment as an administrator as well as the duties and responsibilities of such a person, which he explained thus: "The objective of appointing an administrator of the estate is the need to have a faithful person who'will, with reasonable diligence, collect all the properties of the deceased. He will do so with the sole aim of distributing the same to all those who were dependents of the deceased during his lifetime. The administrator, in addition, has the duty of collecting all the debts due to the deceased and paying all the debts and taxes owed by the

deceased. If the deceased left children behind, it is the responsibility of the administrator to ensure that they are properly taken care of and well brought up if still young, using the properties left behind by their deceased parent." So, the allegation that the deceased properties were already divided as per the customs of the Chagga rites without any proof that the one who divided those properties customarily had the approval from a competent Court for them to do so is utterly misconceived. The aim of granting probate or letters of administration is to ensure that the deceased Page 15 of 19 properties which were left after their death are not wasted, the legal heirs are not left empty handed, and are able to benefit from the deceased estate if any. Section 33 (1) of the Probate and Administration of Estate Act, Cap 352 provides: "Where the deceased has died intestate, letters of administration of his estate may be granted to any person who, according to the rules for the distribution of the estate of an intestate applicable in the case of such deceased, would be entitled to the whole or any part ofsuch deceased's estate". It is undisputed from the evidence that the petitioners are biological children of the deceased and heirs to the estate, hence they fall under section 33 (1) of the Act and are qualified to be persons entitled to be granted letters of administration.

Conversely, since the caveator did not claim that petitioners are unfaithful or are not fit persons to be administrators to the estate of late Peter Martin Kessy, his allegation that he was the one appointed by the family meeting convened on 28/01/2023 to be the administrator of the estate, and that they did not have the approval of the family meeting convened on 16/02/2019 is not enough nor is it a strong reason to warrant objection to the appointment /\pag/16 of 19 of the petitioners to be administrator and administratrix respectively of the estate of the late Peter Martin Kessy. This in my view, makes the Caveat devoid of merits. On another note, because the caveator was proposed by the family meeting of 16/02/2019 to be amongst the administrators but would not want to join the other siblings to petition for letters of administration on one hand, and in his testimony, he stated that the properties of the deceased had already been divided in accordance with the Chagga rites without any proof, on the other, it brings me to the conclusion that he is not interested in the grant of the letters of administration. I thus find that the ones who are interested in the grant of the letters are the 1st and 2nd petitioners, who are now hereby granted letters of administration by this court. My saying so is also premised on the fact that it will be untenable to grant letters of

administration to someone who in his mind, believes that there is nothing to administer and distribute because as per his testimony, the deceased's properties had already been divided customarily; a fact which this court has held stands unproved by evidence. Now, the Administrator and Administratrix respectively of the estate of the late Peter Martin Kessy are required jointly and with utmost faith to /pWT7 of 19 collect the deceased properties, pay due and unfulfilled debts of the deceased if any, and distribute the remainder of the properties to his legal heirs. And upon the caveat entered by the caveator being dismissed for want of merits, this court hereby further orders as follows: a) Julius Peter Kessy and Agatha Peter Kessy are hereby appointed as the Administrator and Administratrix respectively of the estate of late Peter Martin Kessy who died intestate at Kibosho District Hospital, within Moshi Kilimanjaro on 26/09/1996. b) Letters of Administration to be granted to the Administrator and Administratrix respectively. c) Julius Peter Kessy and Agatha Peter Kessy the Administrator and Administratrix respectively shall endeavour to collect and bring to book all properties of the deceased and file an inventory of the estate of the late Peter Martin Kessy before this court within six months of this order, which is on or before 25 February 2025. d) The Administrator and

Administratrix respectively shall file a final account of the estate within twelve months of this order, that is on or before 26 August 2025. e) The Administrator and Administratrix respectively shall administer the estate faithfully and shall ensure that the lawful heirs of the of 19 late Peter Martin Kessy are all catered for in the deceased estate; and lastly, f) Costs of the Administration be borne within the estate of the deceased. It is so ordered. DATED at ARUSHA this 23rd day of August 2024 A. Z. Bade Judge 23/08/2024 Judgment is delivered in the presence of the Petitioner / Plaintiff and the Caveator / Defendant and or their Representative in chambers on the 23rd day of August 2024. A. Z. BADE

JUDGE 23/08/2024 Page 19 of 19