20171026 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM MISC. CIVIL CAUSE NO. 525 OF 2016 (Arising from Probate and Administration Cause No. 18 of 1995)

IN THE MATTER OF THE ESTATE OF THE LATE MATHIAS

SIBOMANA MBONELA AND IN THE MATTER OF APPLICATION.FOR LETTERS OF ADMINISTRATION BY THERESIA MBONELA KUYANGANA, LT ) COL. JOSEPH LEON SIMBAKALILA AND EMMANUEL

MANTHEAKIS AND IN THE MATTER OF APPLICATION BY NEEMA A. MBONEKA

RULING MKASIMONGWA, J. This is an application for order of the court that: - 1. Directs the appointed Administrators of the estate of the Late Mathias Sibomana Mbonela to bequeath the properties of the estate of the late Mathias Sibomana Mbonela to the rightful heir.

2. Directs the appointed administrators of the estate of the late Mathias Sibomana Mbonela to file an Inventory and 1 Accounts in respect of the estate of the late Mathias Sibomana Mbonela. The application is filed under Section 107 (1), (2) and (5) of the Probate and Administration of Estates Act [Cap. 353 R.E 2002], , Rules 14 (1) and 110 ( 1) and any other enabling provision of the law and it is by a Chamber Summons, supported by the Affidavit of NEEMA ADELA MBONELA. In response to the application Miss REGINA HERMAN Advocate, did swear a Counter Affidavit for the Administrators. When the application came up for hearing, before me there appeared Mrs. Nakazael Tenga and Miss Regina Herman representing the Applicant and the Respondents, respectively. In her submissions Mrs. Nakazael Tenga adopted the contents of the Affidavit in support of the Application. She submitted that, the applicant is the only child of MATHIAS SIBOMANA MBONELA who died intestate on 27/2/1995 at Muhimbili Medical Centre Dar es Salaam. Sometime on 14/12/1995 THERESIA MBONELA KUYANGANA, LT COL. JOSEPH LEON SIMBAKALILA and EMMANUEL MANTHEAKIS were, vide the Probate and Administration Cause No. 18 of 1995, appointed joint administrators of the estate of the late MATHIAS SIBOMANA MBONELA. In terms of Sections 105 and 108 of the Probate and Administration of Estates Act the Administrators are duty bound

to distribute all properties falling within the estate of the deceased among the heirs and file in court an Inventory and Accounts in 2 respect of the estate. Since when they were appointed the administrators in this matter have no bequeathed the properties to the Applicant nor did they file the Inventory or Account in respect of the petition. It has been so even after the Applicant had frequently asked the administrators to do so. As such this application has been instituted seeking from the Court for an order directing the administrators to bequeath the deceased's estates, file Inventory and Account. It is also prayed that the grant be revoked and the applicant be appointed an administration of the deceased's estate. On the other hand in her submission, Miss Regina too adopted the contents of the Counter Affidavit filed. She stated that the respondents were on 14/12/1995 appointed as joint administrators of the estate of the late MATHIAS SIBOMANA MBONELA. Upon being appointed the administrators filed the Inventory as required by the law and that was done before Bubeshi, J and the matter was conclusively determined on 19 / 7 / 1998. It is not true that the Applicant does not even know the whereabouts of the deceased's properties. Annexture. TS2 to the Affidavit in support of the Application clearly shows how the deceased's money was spent. As the Probate and Administration

Cause was closed the applicant cannot be heard challenging the appointment and seek for revocation of the grant of letters of administration of the estate. Miss Regina prays the court that it finds the applicant to have no locus and the application be therefore dismissed. In a short rejoinder, Mrs. Tenga contended that she saw this Court's (Bubeshi, J) Drawn Order and according to her it is 3 doubtful as the Court ordered what is was not asked to order. The Respondent did not file an Inventory of the properties of the deceased as Miss Regina tries to suggest and that is why the same has not been produced to the court. If the law is not complied there will be no justice done. Here the law has not been complied with. The appointment should be revoked and the applicant be appointed to administrator the estate. That is all what was submitted by the learned advocates representing the parties. Upon going through the submissions and the records generally, I find it is not disputed that the Respondents were sometime on 14/12/1995 appointed joint administrators of the estate of the late MATHIAS SIBOMANA MBONELA who died intestate on 27/2/2995 at Muhimbili Medical Centre, Dar es Salaam. It is also not disputed that the Applicant one NEEMA ADELA MBONELA is the daughter and the only child of the deceased. In terms of Section 107 (1) of the Probate and Administration of Estates Act (Cap.

353 R.E 2002) an Executor or Administrator of an estate is mandatorily required within six months. from the grant of Probate or Letters of Administration or within such further time as the court which granted the probate or letters may after time appoint or require, exhibit in court an Inventory containing a full and true estimate of all the property in possession all credits and also all debts. Similarly, within one year of the grant or within such further time as the court may from time to time appoint, exhibit an Account of the estate. Under Section108 of the Act, it is the duty of the Executor or Administrator with 4 reasonable diligence to collect the property of the deceased, and the debts that were due to him, pay the debts of the deceased and the debts and costs of administration and distribute the estate to the person or for the purposes entitle to the same or to trustee. In this matter, the applicant alleges that the Administrators have not bequeathed the properties of the estate of the late Mathias Sibomana Mbonela to the rightful heir and that the administrators have not so far filed an Inventory and Accounts in respect of the estate of the late Mathias Sibomana Mbonela. The court is therefore requested to issue the orders sought in the Chamber Summons. The Respondents dispute to the allegation and submitted that they had duly filed the Inventory to the court

sometime on 19/7/1998 as it is exhibited by the Drawn Order issued by this court. Part of the Order (Annexture Ts-1 to the Counter affidavit) reads as follows: - "The beneficiary NEEMA MATHIAS MBONELA be and is hereby entitled to open and operate a bank account in her own name and the said. bank account to be operated jointly by the three administrators of the estate of the late Mathias Sibomana Mbonela until she attains the age of majority. It is further ordered that the house at Plot No. 288 Block C. Kijitonyama Kunduchi district D'Salaam to remain as part of the family properly including the beneficiary NEEMA MATHIASMBONELA" 5 Going by the order it is evident that it responds to the Application and Prayers made by NEEMA MBONELA. It cannot be held that the same was in response to the filing of an Inventory of the property falling with the estate of the deceased nor does it amount to an account for the properties by the Administrator. The Order could be in my view one of the basis for the Account. Rule 110 (1) of the Probate and Administration of Estate Rules provides for what can be done where the Executor or Administrator of the estate fails to file an Inventory and I think given the nature of this matter and the time taken from when the Administrators were appointed it is in the interest of justice that the Administrators should within six months from today exhibit in court

an Inventory containing a full and true estimates of all the property in possession and all the credits, and also all the debts owing by any person to which administrators are entitled in that character along with an Account of the estate showing the assets which have come to their hands and the manner in which they have been applied or disposed of. It is so ordered. Dated at .Par es Salaam the 26 th of October, 2017. ---- . "-:; .. ',', ......,·. \ .,.,,'~\t ·"' / E. J.~ Zii .f Mkasimongwa '· * •.. :"""'-:-:-7':·.-:-:-~~--=-· ....-> • JUDGE 26/10/2017 6 J Date: 26/10/2017 Coram: Mkasimongwa, J For the Applicant: Mr. Grayson Laizer (Advocate) For the Respondent: Absent C.C. Miss Neema Court: Ruling delivered in Chambers this 26 th of October, 2017 in the presence of Mr. Grayson Laizer Advocate for the Applicant and in the absence of the Respondents. Right of appeal is explained. E.J.~~ea

JUDGE 26/10/2017 7