SINKAMBA RULING FINAL VERSION 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM SUB REGISTRY

AT DAR ES SALAAM M1SC. CIVIL APPLICATION NO. 2273 OF 2024 (C/f Probate and Administration Cause No.49 of 2021 in the High Court of Tanzania , Dar es Salaam , Sub-registry) MARY KABAMBA SINKAMBA ................................................ APPLICANT Vs. MW1TA KIBASSO RICHARD………………………………..1ST. RESPONDENT EMMANUEL HILLARY SINKAMBA…………………………2ND RESPONDENT RODA 1SAYA MOSES BOTRH……………………………….3RD RESPONDENT

RULING Date of last Order:11-2-2025 Date of Ruling: 21-3-2025 B.K.PHILLIP, J. The applicant herein lodged this application under section 49 (1) (a) (b) (c) and (2) of the Probate and Administration of Estate Act, Cap 352, R.E 2000, ( hereinafter referred to as Cap.352 ), praying for the following orders: 1 i) This Honourable Court be pleased to revoke the grant of probate issued to the Respondents vide Misc. Probate and Administration Cause No. 49 of 2021 which was issued by this court on 9th June 2023 by Honourable Mruma, J ii) Any other reliefs the Honourable Court deems it just and equitable to grant. An affidavit sworn by the applicant supports the application. The first and third respondents filed counter affidavits in opposition to the application, whereas the second respondent did not, instead supports it. The learned advocate, Geofrey Lugomo, appeared for the applicant. The learned Advocate Oscar Kizuguto represented the 1st and 3rd respondents. The 2nd respondent appeared in person. The application has been disposed of through written submissions. A brief background to this application is worth providing for a better understanding of the discussion that follows. In 2021, the respondents herein filed Probate and Administration Cause No. 49 of 2021 in this court, in which they petitioned for the Probate of the Will of the late Hillary Moses 2 Sinkamba of Kigogo,

Kinondoni, Dar es Salaam, who died testate at Muhimbili Hospital on 21st February 2021. The petition was accompanied by all required documents, including the deceased’s death certificate and Will dated 18th January 2018. The petition was finally determined by this court (Hon. Mruma, J) on June 9, 2023, and was granted. A letter of Administration of the deceased's estate was issued to the respondents. On 7th February 2024, the applicant herein lodged the application at hand to challenge the appointment of the respondents as executors of the deceased’s estate. In his submission, Mr. Lugomo argued that the letter of Administration of the deceased’s estate granted to the respondents was obtained fraudulently. The respondents concealed important information from the court, namely that the applicant was the deceased’s wife, that most of the properties forming part of the deceased’s estate were acquired jointly by the applicant and the deceased, and that the applicant was residing in Zambia at the time. He went on to submit that the applicant was not aware of the petition for probate and had not been notified of it. Otherwise, she would have entered a caveat and challenged the Will presented in court by the respondents, as its validity is questionable. The properties jointly owned by the applicant and the deceased, such as the landed property located on Plot No. 3 ILA/MCK/MZB.39/5 has

been listed in the purported Will that has been bequeathed to other people who are strangers, not family members. He mentioned Seif Maulid Mulire and Cymiony Cassin Matewa, the 1st and 3rd respondents, as strangers who have bequeathed some of the deceased's properties. At the same time, the deceased’s children, namely Upendo Hillary Sinkamba, Fidelis Hillary Sinkamba, and Sophia Hillary Sinkamba, have been disinherited contrary to the law. He pointed out that no reason has been given for disinheriting the aforementioned blood children of the deceased. To support his argument, Mr. Lugomo cited the case of Miriam John Mallya and Others Vs. Mariam John Mallya (Executrix of the Estate of the Late John Kachel Mallya) Misc. Application No. 7 of 2021 (unreported). In addition to the above, Mr. Lugomo argued that the respondents failed to file an inventory for more than a year since their appointment as executors of the WIll. Mr. Lugomo implored this court to grant this application. In rebuttal, Mr.Kizuguto started his submission by pointing out the following: One, this application is made under section 49 (1) (a) (b) (c) and (2) of Cap.352. Mr. Lugumo’s arguments were pegged on Section 49 (1) (b) and ( c) of Cap.352, and he did not submit on Section 49 (1) (a) of Cap 352 also 4 submitted on section 49 (1) (e ) of Cap 352 contrary to the pleadings since that section was not pleaded. He

contended parties are bound by their pleadings. Thus, this court should ignore Mr. Lugomo’s arguments based on section 49 (e ) of Cap 352 Two, the applicant has never been the deceased wife. The deceased was married to one Theresia Mng’ong’o in 1974. Their marriage was dissolved by court order in 2016. Therefore, the applicant’s alleged marriage with the deceased in 1987 was illegal. He contended that there was no need to disclose to the court anything about the applicant as she had no interest in the deceased’s estate. Mr. Kizuguto went on to submit that the petition for probate in question was opposed by Fidelis Hillary Sinkamba and Loida Saambili, who entered a caveat and were doing so under the applicant's instructions, as the applicant’s name was mentioned in the caveat. However, the legal procedure for filing a caveat was not pursued to the end. Consequently, the same was dismissed. He besought this court to review the names of the caveator in Probate and Administration Cause No. 49 of 2021. Further, Mr. Kizuguto argued that the contents of the applicant’s affidavit in support of this application are contradictory. In paragraph five, the first line 5 of her affidavit, she stated that she sold three of her houses in Zambia and came to Tanzania to invest jointly with the deceased. They built the La Promise hotel in Buguruni Malapa area within Ilala Municipality, Dar

es Salaam Region. In the same paragraph, in the sixth line, she stated that she sold six of her houses in Zambia and used the proceeds to invest in Tanzania jointly with the deceased. She did not produce in court any license evidencing the ownership of the properties she claimed to have contributed towards their acquisition. Mr.Kizuguto was of the view that it is not always the case that a property owned jointly remains with the surviving party in the event of the death of one of the joint owners. Furthermore, Mr. Kizuguto argued that the Will in question was valid. The testator properly signed it, and it was well-detailed. The particulars and location of the properties were clearly indicated in the Will so that only the testator himself could have done it, and that defeats the applicant’s argument that the Will was forged. Moreover, Mr. Kizuguto argued that this court granted the petition for probate after scrutinizing the Will and determining that it was valid. Relying 6 on the case of Allen Rutatekuruwa Rugazia vs Perfectos Ruteganya, Civil Appeal No. 530 of 2022 (unreported), Mr. Kizuguto argued that, in law, probate, once granted, establishes the Will. In this matter, no evidence has been presented to rebut the testator's sanity, which the law presumes under Section 12 of the Penal Code, by the applicant. He contended that a Will that is regular and complete on its face is

presumed valid until its invalidity is established. The onus rests on the party alleging its invalidity. In the instant application, apart from mere allegations, no credible evidence has been led to challenge the validity of the Will. The applicant has raised serious allegations of fraud and forgery against the respondents. Still, no evidence has been led in court to prove the same. He pointed out that the law places a higher standard of proof on allegations of fraud and forgery. The applicant deposed that she reported the matter to the Police in December 2023. Up to date, she has not been able to establish the offence of forgery. To support his arguments, he cited the case of Twizihirwa Abraham Mgema vs. James Christian Basil, Civil Application No. 229 of 2018 (unreported). Mr. Kizuguto maintained that the testator has the right to bequeath his/her properties to anyone and disinherit his children if he wishes to do so. However, he is required to give reasons. He cited the 7 case of Francisca Haruweru Silveria Vs. Gerald Francis Silveria and another , Probate Cause No.28 & 24 of 2019, ( unreported). He contended that in the instant case, the testator stated the reason for disinheriting his three children, namely Upendo Hillary Sinkamba, Fidelis Hillary Sinkamba and Sophia Hillary Sinkamba, to wit; that they did not care and cooperate with him, and did not assist him in times of

need, including the time of his sickness. Mr. Kizuguto was emphatic that the reasons given by the testator for disinheriting his children aforesaid were sound and valid. He cited the case of Benson Benjamin Mengi & others Vs. Abdiel Reginal Mengi and Another, Probate and Administration Cause No. 39 of 2019 (unreported), to support his arguments. Moreover, Mr. Kizuguto argued that if the disinherited children had a genuine claim, they would have joined the applicant in this application. However, since they knew they had no good relationship with their late father (the deceased), they did not do so. Mr. Kizuguto beseeched this court to disregard the affidavit filed by the 2nd respondent, who had opted to support this application. He contended that the doctrine of estoppel estops the 2nd respondent to renege what he did. He is among the petitioners for the probate and signed all the documents 8 for the petition. He was named in the Will and appointed as one of the executors by this court. He has been managing and taking care of the deceased’s properties. When the applicant invaded one of the hotels he was managing, he reported the matter to the police. Surprisingly, he suddenly changed his stance and joined hands with the applicant to challenge the appointment as executor of the deceased’s will. In conclusion of his submission, Mr. Kizuguto implored this court to dismiss this

application. In rejoinder, Mr . Lugomo reiterated his submission in chief and added the applicant had an interest in the deceased estate and was the deceased’s wife. She contributed to the acquisition of the properties forming part of the deceased’s estate, which is why, in item 6.3 of the Will, the testator mentioned her. The 2nd respondent recognized her. He refuted Mr. Kizuguto’s argument that Fidels and Loida lodged the caveat under the applicant's instructions, as there is no evidence to that effect from the 1st and 3rd respondents. He pointed out that in her affidavit, the applicant attached an agreement for the purchase of the property on Plot No. ILA/MCK/M23.39.5 and Plot No.192 Ilala Buguruni Malapa. No Will was read at the family meeting held on 27th March 2021. The applicant was not aware 9 of the existence of the Will. The deposition made by the 2nd respondent should be taken into consideration as it speaks the truth about what transpired. Having analyzed the rival arguments presented by the learned Advocates and reviewed the pleadings, I have noted that the applicant’s concern, as revealed in her affidavit, is that she was not aware of the existence of Probate and Administration Cause No. 49 of 2021, along with its citation. Otherwise, she would have lodged a caveat to challenge the same. The Will was forged because, in the last days of his life, the deceased was

terminally sick and not in good mental health to write a Will. The Will is discriminatory because it has disinherited the deceased’s children, and strangers/non-family members are the ones bequeathed the deceased’s properties. Thus, essentially, the applicant is challenging the validity of the Will. At this juncture, let me revisit the law on petitions for probate. According to sections 58 and 59 of Cap. 352, upon the filing of a petition for Probate and issuance of a citation, the beneficiaries or individuals with interests in the deceased estate can file a caveat to support the petition or object to it. If a 10 caveat is lodged against the petition for probate, then no proceedings should proceed. The petitioner should apply for citation to enable the caveator to enter an appearance, and thereafter the matter is be dealt with in the same manner as a civil case. If the caveator fails to enter an appearance, the caveat is deemed withdrawn. The proper legal procedure to challenge a Will is by filing a caveat. The law does not provide any room for challenging a Will after the grant of the petition for probate and the appointment of executors of the WIll. Section 28 of Cap. 352 provides that the probate of a Will when granted, establishes the Will and evidences the title of the executor from the testator's death. It follows, therefore, that this court, after dismissing the caveat

filed by the caveators for their failure to enter an appearance, granted the petition for probate, which means that it accepted the Will as being properly made and valid. After granting the petition for probate, this court has no room to entertain any arguments intending to challenge the validity of the Will. The same could have been done before the petition for probate was granted. Having said the above, it is also pertinent to note that the respondents have been appointed as executors of the Will because they were so named in the 11 Will by the testator. Therefore, since the probate was granted and the Will accepted by this court as valid, the issue of revocation of the appointment of respondents as executors of the Will does not arise and has no room at this stage. In the case of Gibbons Bavian Mwakyoma and two others Vs. Administrator General, Misc. Civil application No.6224 of 2024, ( unreported), this court ( Hon Ndyansobera, J. as he then was) was confronted with an application similar to the one at hand and had this to say on the proper way and time of challenging a Will; On the application at hand, the applicants claim that the will which the respondent is the executor includes the properties which do not belong to the deceased and that they are not aware of such will. However, the respondent counsel has contended that the applicants have failed to file an objection at

the ample time given by the law which is negligence and fault of the applicants themselves that should not be lifted to other persons. As the applicant prayed for revocation of respondent in his position as Administrator General, I think the prayer is misplaced. I say so because if he intended to challenge the will, I think the application should not be revocation. As revocation intend to change the Administrator or removing him from his position. In addition to that I join hand with Ms. Rishela argument that even if there was such a chance the time to do so already passed. 12 The applicants were supposed to file a caveat at the early stage before the appointment of the Administrator so that they can challenge the will and not at this stage. The law under the provision of section 58 of the PAEA and Rule 82 of the Probate Rules, entitles any interested party to enter an objection in the form of caveat earlier before the grant is made………….The court at this point as far as section 49 of the PAEA is concerned, cannot order that the WILL is invalid. This could only be possible at the stage when Probate and Administration Cause No 76 of 2017 was under determination upon the applicants lodging a caveat. The applicant ought to have opted the proper avenue at a point. (Emphasis is added) It is also worth noting that when a person dies testate, the court’s task is to ensure the execution

of the Will, except where the Will is challenged and declared invalid. Removing the executors of the Will named by the testator will lead to interference with the testator’s wishes and defeat the entire purpose of having a Will. In a probate, the deceased/ testator's wishes are given effect as stated in the Will. [ see the case of Allen Rutatekururwa Rugazia ( supra) ]. In short, this application is misconceived. By passing, I wish to point out that upon perusing the court’s records in Probate and Administration Cause No. 13 49 of 2021, I noted that Fidelis Hillary Sinkamba and Loida Mosses Saambili filed a caveat, dated 30th September 2021. Mary Kabamba Sinkamba (the applicant herein) filed a caveat dated 21st September 2021 through her advocate, the learned Advocate Yona Lucas of Che Luzinga Law Attorneys, CWT Building, 3rd Floor, Tanga. The court’s record also reveals that on 10th October 2021, the respondents, upon being served with the caveat, made an application for citation to the caveators, namely Mary Kabamba Sinkamba, Fidels Hillary Sinkamba, and Loida Mosses Saambili. Thereafter, all caveators failed to enter an appearance as required by law. In fine, this application has no merit and is hereby dismissed in its entirety. Since this is a probate matter involving family members, each party will bear his/her costs. Dated at Dar es Salaam this 21st day of March 2025 B.K.PHILLIP

JUDGE 14 15