2
- Citation
- 2
- Status
- Judgment
- Jurisdiction
- Tanzania
- Court
- TANZLII
- Decision
- 26 June 2023
- Posture
- Misc. Civil Application (probate) / Ruling on Application for Revocation of Letters of Administration
- Language
- English
More details
- Court
- TANZLII
- Decision
- 26 June 2023
- Posture
- Misc. Civil Application (probate) / Ruling on Application for Revocation of Letters of Administration
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The grant of letters of administration to the respondent was revoked because it was obtained on the basis of an untrue allegation that the deceased died intestate, while a Will existed. However, the court declined to appoint the named executor or any other person as administrator until the Will is formally propounded by petition for probate. The applicants' exclusion as beneficiaries and jurisdictional complaints were found premature or unsubstantiated at this stage.
Court disposition
Application granted in part; grant of letters of administration to respondent revoked; no appointment of new administrator at this stage; each party to bear own costs.
Orders
- Respondent Francis John Semkiwa suspended as administrator and to surrender original grant within 14 days.
- Respondent to cease all acts regarding the estate except as ordered.
- Respondent to file inventory and accounts within 21 days.
- Named executor or any other person to petition for grant of probate of the Will within 30 days.
- No appointment of new administrator until Will is formally propounded.
- Each party to bear own costs.
02
Material facts
Parties
Neema Emily Stephen Semkiwa
Applicant Counsel: Jovin Jonathan TibendaEdith Stephen Semkiwa
Applicant Counsel: Jovin Jonathan TibendaHarieth Semkiwa
Applicant Counsel: Jovin Jonathan TibendaFrancis John Semkiwa
Respondent Counsel: Nicholous KikoveAmounts and remedies
- Sale Value of Property (plot No. 131 at Ilala Sharrif Shamba): TZS 350,000,000
03
Procedural history
Posture
Misc. Civil Application (probate) / Ruling on Application for Revocation of Letters of Administration
04
Questions and positions
Legal issues
- 01
Whether the grant of letters of administration to the respondent was obtained by concealment of material facts or untrue allegations
- 02
Whether the deceased died testate or intestate and the effect of the purported Will
- 03
Whether the applicants were wrongly excluded as beneficiaries
- 04
Whether the proper jurisdiction was observed in filing the petition
Party arguments
- Applicant
- Applicants argued the respondent concealed the existence of a Will appointing Juliana Mary Grace Semkiwa as executor, excluded the 1st and 2nd applicants as beneficiaries, filed the petition in the wrong jurisdiction, and sold estate property without court approval.
- Respondent
- Respondent argued the deceased died intestate, the Will was never presented at family meetings, most relatives reside in Dar es Salaam justifying jurisdiction, and the 1st and 2nd applicants are not beneficiaries. He also alleged abuse of court process by applicants.
05
Court’s reasoning
Legal principles
- 01
Section 49(1)(b)(c)(e) and (2) of the Probate and Administration of Estates Act, CAP 352, R.E 2002
Grant of probate or letters of administration may be revoked if obtained by fraud, concealment, or untrue allegations of essential facts.
- 02
Beatrice Brighton Kamanga and Another v. Ziada William Kamanga, Civil Revision No. 13 of 2020
Jurisdiction for probate may be in any district where the deceased had a fixed place of abode or where majority of relatives are located.
- 03
Ruling and general probate law principles
Administrator is responsible for identifying beneficiaries; court intervenes only in case of conflict.
- 04
In the matter of the estate of the late John Peter Silveira, Probate and Administration Cause No. 23 and 24 of 2019; Elias Madata Lameck v. Joseph Makoye Lameck, Probate and Administration Appeal No. 10 of 2019; Adelicious Crispine Ngowi v. Ibrahim Mohamed Nawab (Civil Appeal No. 17 of 2022) [2023] TZHC 17 (24 July 2023)
Minutes of family meetings are not a legal requirement but assist the court in understanding family consensus.
06
Ratio, limits and disposition
Ratio decidendi
The grant of letters of administration to the respondent was revoked because it was obtained on the basis of an untrue allegation that the deceased died intestate, while a Will existed. However, the court declined to appoint the named executor or any other person as administrator until the Will is formally propounded by petition for probate. The applicants' exclusion as beneficiaries and jurisdictional complaints were found premature or unsubstantiated at this stage.
Obiter and limits
- Applicants had opportunities to object or present the Will earlier but failed to do so, amounting to forum shopping.
- The court cannot appoint an executor or administrator until the Will is formally brought before it by the named executor or another eligible person.
- Jurisdiction was proper in Dar es Salaam given the deceased's multiple places of abode and the location of relatives and property.
Court disposition
Application granted in part; grant of letters of administration to respondent revoked; no appointment of new administrator at this stage; each party to bear own costs.
- Respondent Francis John Semkiwa suspended as administrator and to surrender original grant within 14 days.
- Respondent to cease all acts regarding the estate except as ordered.
- Respondent to file inventory and accounts within 21 days.
- Named executor or any other person to petition for grant of probate of the Will within 30 days.
- No appointment of new administrator until Will is formally propounded.
- Each party to bear own costs.
Source and reliance status
TANZLII · 26 June 2023
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
TANZLII
Judgment· 26 June 2023
IN THE HIGH COURT OF TANZANIA TEMEKE SUB - REGISTRY (ONE STOP JUDICIAL CENTRE)
AT TEMEKE MISC. CIVIL APPLICATION No. 19275 OF 2024 (Originating from Probate and Administration Cause No. 24 of2023) In the matter of the estate of the late STEPHEN KANIKI SEMKIWA................................................ DECEASED AND In the matter of an application for revocation of the letters of administration granted to Francis Stephen Semkiwa by NEEMA EMILY STEPHEN SEMKIWA................................... 1STAPPLICANT EDITH STEPHEN SEMKIWA............................................ 2nd APPLICANT HARIETH SEMKIWA........................................................ 3rd APPLICANT
VERSUS FRANCIS JOHN SEMKIWA..................................................RESPONDENT
RULING Date of last order: 04/12/2024 Date of Ruling: 18/12/2024 OMARI, J. The Applicants, Neema Emily Stephen Semkiwa, Edith Stephen Semkiwa and Harieth Semkiwa brought this Application under section 49(1) (b) (c (e ) and (2) of the Probate and Administration of Estates Act, CAP 352, R.E 2002 (the PAEA) and Rule 29(1) of the Probate Rules, GN. No. 10, No. 369 of 1963 praying for orders inter alia that this court revokes the grant of le tters of administration and removes the Administrator of the estate of the late Stephen Kaniki Semkiwa granted to one Francis John Semkiwa, the Respondent herein on 26 June, 2023 and in his stead appoint Juliana Mary Grace Semkiwa and or any other person(s) as the court may deem fit according to the circumstances. In her Affidavit the 1st Applicant deposed that the Respondent filed an application for letters of administration whilst the deceased died testate and that he excluded her as a beneficiary of the late Stephen Kaniki Semkiwa. She had unsuccessfully applied to revoke the administrator to protect her interest in the estate for he had concealed necessary information. So she has come to court once more, she gave the reasons for this Application in paragraph 10 of the Affidavit stating inter alia that the deceased left a Will dated 22 March 2014 which appoints Juliana Mary Grace Semkiwa as executor thus the respondent concealed material
facts to the case. The second reason is that the deceased's fixed place of abode was Muheza Tanga where his family and properties are located and not Ilala Dar es Salaam as averred by the Respondent in his Petition. The 1st Applicant further deposed that the amended accounts of 21 June, 2024 have excluded her as a beneficiary and that the grant was obtained by concealing a material fact to the case in that she never attended any family meeting held on 10 November, 2022 nor consented to the Petition. Further to the above the 1st Applicant deposed that she as informed Jovin Jonathan Tibenda an advocate that the Respondent has sold the prooerty with CT No. 101102 described as Plot No. 131 at Ilala Sharrif Shamba, Ilala Dar es Salaam at TZS 350,000,000 ignoring that the accounts had not been determined by the court. In her Affidavit, the 2nd Applicant also deposes that the deceased Stephen Kaniki Semkiwa left a Will. Paragraph 10 and 11 of the Affidavit repeats the same reasons that the 1st Applicant deposed. The 3rd Applicant on the other hand gave her reasons for the revocation of the grant and removal of the Administrator in Paragraph 8 of her Affidavit. Like the 1st and 2nd Applicants she deposed that the deceased left a Will and that he had a place of a Dode in Muheza Tanga. She went on to depose that the Respondent has excl jded the 1st and 2nd Applicants, as among the
beneficiaries of the estate. Lastly, she stated that she was neither one among the persons who attended the meeting held on 10 November, 2022 nor had she consented to the Petition. In paragraph 9 of her Affidavit the 3rd Applicant also deposed the information regarding the same of the house at Ilala. The Respondent appeared to vehemently contest the Application. Mr. Jovin Jonathan Tibenda appeared for the Applicants and in turn, drew and filed the written submission on their behalf. The Respondent had the services of Mr. Nicholous Kikove who also drew and filed the Respondent's submission. Mr. Tibenda's submission commenced with the background to this matter and an explanation of what is contained in the Applicants'Affidavits including that the grounds stated therein fall within the provisions of section 49( L)(b) (c) and (e) of the PAEA. Arguing on the specific grounds put forward Mr. Tibenda stated that the Respondent concealed the fact that there is a Will. The Respondent stated that he had ignored the said Will on account of being defective, according to counsel this is a flimsy defence. In any case it was not his decision to make. Counsel cited section 2 of the PAEA which de Fines a Will and the case of Rose Andwedisia Tilya v. Emmanuel Christopher Tilya, Civil Case No. 8A of 2021. He then concluded on this ground stating that the Respondent was wrong to ignore the Will on
account of it being flawed. On the second ground, counsel submitted that evidence on record including the inventory shows that the deceased had a fixed place of abode at M jheza thus it was wrong for the Respondent to file the Petition in Dar es Salaam. He then cited the case of Beatrice Brighton Kamanga and Another v. Ziada William Kamanga, Civil Revision No. 13 of 2020 where this court held that where the deceased has more than one place of abode then any of the primary courts in the respective districts can hear the matter but wisdom demands that it be opened where majority of the family are. Submitting on the third ground Mr. Tibenda stated that the Respondent failed to include the 1st and 2nd Applicants who are the deceased's daug iters and he has no such mandate. To augment his submission, he referred to the case of Joseph Mniko and Others v. Daudi Mahende Kichonge, Probate and Administration Cause 48 of 1996 where this court revoked the administrator for failure to file an inventory as required by law. Counsel concluded his submission by praying that the Application be granted the Respondent's letters be revoked and Juliana Mary Grace Semkiwa be appointed. In reply, Mr. Kikove began with the first ground stating that the deceased died intestate therefore no Will could have been annexed to the Petition. He argued that the purported Will was never presented at any family
meeting and that the 3rd Applicant who participated in the meeting never brought it forth. Counsel then distinguished the cited case of Rose Andwedisia rilya v. Emmanuel Christopher Tilya (supra) stating that it differs from the circumstances of the current estate. Submitting on the ground that the Petition should have been filed in Ml heza rather than Dar es Salaam counsel pointed out that most of the deceased's surviving relatives listed in the Petition live in Dar es Salaam with two in England, one in the United Arab Emirates and one in Muheza- Tcinga. Therefore, counsel argued it cannot be that the majority are in Muheza Tanga. He referred to the cited Beatrice Brighton Kamanga and Another v. Ziada William Kamanga (supra) case and argued that this court has the jurisdiction for he had several places of abode. On excluding the 1st and 2nd Applicants counsel submitted that the two are neither the deceased's daughter nor the beneficiaries of the deceased's estate. He distinguished the Joseph Mniko and Others v. Daudi Mahende Kichonge (supra) case from the current matter as it was on failure to submit an inventory. Mr. Kikove then veered off to complain that the Applicants are abusing the court process and playing delaying tactics pointing out that the 3rd App icant filed an application in September, 2023 and withdrew it. The 1st and 2nd Applicants filed another Application
which was dismissed. They have not challenged that but came up with another Application seeking the same remedies only this time they are praying that Juliana Mary Grace Semkiwa be appointed as administrator. Mr. Kikove pointed out that the said Juliana Mary Grace Semkiwa never challenged the Respondent's appointmert. To end his submission, he stated that the Applicants are in a bid to disrupt the administration of this estate as they have failed to demonstrate good cause for the court to revoke the letters of administration granted to the Respondent. He prayed for the Application to be dismissed with costs. By way of rejoinder, Mr. Tibenda refuted the contention that the Respondent was not aware of the Will as he attended the 10 November, 2022 meeting where the Will was discussed. He reiterated his submission that Muheza, Tanga was the appropriate place for the administration in light cf the inventory. Mr. Tibenda also explained that the 1st and 2nd Applicants had proved to be daughters of the late Stephen Kaniki Semkiwa by filing their Certificate(s) of Birth. He called for Mr. Kikove's submission to be disreg arded as it is from the bar as he had provided no material or disproved the Applicants. Lastly, Mr. Tibenda argued that the earlier Applications having not been determined on merit left it open for the Applicants to come tc court once more. After going through the rival
submission aptly made by Messrs. Tibenca and Kikove for and against the Application I am of the settled view that there is only one issue for this court's determination, that is whether the Appl cants have provided sufficient grounds to enable this court to exercise powers in section 49(1) (b) (c) (e) and (2) of the PAEA. Section 49 (1) in part provides: "The grant of probate and letters of administration may be revoked or annulled for any of the following reasons-(a) ...;(b) that the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case;(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently;(d) ...;(e) that the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Part XI or has exhibited under that Part an inventory or account which is untrue in a materia! respect." Before I go into discussing whether the Applicants have demonstrated sufficient reasons to invoke the above provision I find the need to do two things. The first is to note that the Applicants did not submit as regards paragraph 11 of the 1st and 2nd Applicants' Affidavit which is a repl ca of paragraph 9 of the 3rd
Applicant's Affidavit therefore I shall only dea with assertions that the house at Ilala Dar es Salaam was sold by the Respondent only to the extent of how the same is to be affected with the outcome of the Application. The second thing is that I see the necessity to give some background for context. By doing this, I would have tried to achieve brevity in discussing some of the reasons put forward. One Stephen Kaniki Semkiwa died on 17 July, 2021 in Muheza, Tanga. The Petition by the Respondent stated that the deceased had a place of abode in Ilala Dar es Salaam. The said Petition listed seven persons as having survived the deceased. In the said Petition, the Respondent only had the consent of two of the beneficiaries, that is Irene Semkiwa and Agnes Semkiwa However, he had an Affidavit that he had failed to obtain the consent of four of the heirs. According to the Affidavit, Victoria Semkiwa's consent could not be easily obtained as she lives in Dubai, United Arab Emirates while Juliana Mary Semkiwa and Aidan guni Semkiwa who live in the United Kingdom had refused to give their consent. Harieth Semkiwa the 3rd Applicant herein, who lives in Dar es Salaam had also refused consent. She, Harrieth was cited under Rule 72(2) of the Rules so that she may come to court on 19 June,2023 and express whether it is befitting for the grant to be made. She did not show up. The Respondent
was appointed on 19 June,2023. The Order subsequent to his appointment was for h m to file/exhibit an inventory and accounts of the estate by 07 August,202 3 and a hearing was fixed for 14 August, 2023 at 0930HRS. The Ordei also stipulated that beneficiaries were to be present and those who are out of Dar es Salaam to join the hearing via Virtual Court. The record depicts that on 27 September, 2023 the 3rd Applicant filed an application seeking for the Respondent's revocation. The said application was withdrawn at her counsel's instance on 27 September,2023. Subsequently, the 1st and 2nd Applicants filed an Application under section 49(1) of the PAEA seeking for the Respondent to be removed from the office of the Administrator on the ground of being excluded in the list of beneficiaries and that they had no knowledge of the administration until the 3rd Applicant who is their sister informed them. It is noteworthy that the 3rd Applicant has been in this court since 26 June,2023. She later filed an application for revocation of the administrator and withdrew it. The 1st and 2nd Applicants have been in this court since 13 October, 2023 yet, in all that time they have never made it a pcint of informing the court of the existence of the purported Will. It is in this Application that they brought up this Will. All the same, the Applicants are stating that the minutes of the 10
November, 2022 meeting state that there is a Will. I have gone through the minutes and on the first page through the second there is paragraph 2 and the following is recorded: "2. Kuteua Msimamizi wa Mirathi. Kikao ki/iarifiwa kuwa marehemu a/iacha wosia ambao umemteua Bi. Juliana Mary Grace Semkiwa kuwa mrithi pekee na msimamizi wa ma/i zake. Wajumbe baada ya majadiiiano marefu juu ya uhalali wa wosia huo baada ya kupata ushauri wa kisheria, wosia huo uhthibitika kuwa na mapungufu ya kisheria kwani mrithi ni mmoja (Juliana) japo marehemu aliacha Watoto saba na wosia huo haukutaja sababu za watoto wengine kutorithishwa" Off the cuff, I can translate this to mean that the meeting was informed that there is a Will that appointed Juliana Mary Grace Semkiwa as the sole beneficiary and executor. After a long discussion/debate and receiving legal advice, it was agreed that the said Will was legally deficient for bequeathing the estate to only one child out of the seven, without giving reasons. The minutes further state: "Kikao kilifahamishwa kwa wakati huu Bi. Juliana Mary Grace Semkiwa anaishi nchini Uingereza. Kwa haii hiyo wajumbe waiipitisha kwa kauii moja kumteua Bw. Francis John Semkiwa kuwa msimamizi wa mirathi ya Mzee Stephen Kaniki Semkiwa." This loosely translates to the meeting being informed that the said Juliana Mary Grace Semkiwa currently lives in England and it
resolved that Mr. Francis John Semkiwa be the one to apply for administration of the estate of the late Mzee Stephen Kaniki Semkiwa. Paragraphs 3 and 4 of the minutes lists the deceased's properties and debts respectively. Then the 5th paragraph lists seven people as the deceased's legal heirs that are Francis John Semkiwa, Juliana Mary Grace Semkiwa, Irene Semkiwa, Victoria Semikiwa, Agness Semkiwa, Harieth Semkiwa and Aidan Guni Semkiwa all of who are listed as children of the deceased. On the last page of the same minutes there is a list of attendees of the said meeting and the 3rd Applicant's name appears as an attendee and there is a sigrature appended to her name. At this juncture I would like to state that the 3rd Applicant is stating that she was not an attendee of the said meeting but has not said anything about the name and signature in the said minutes. Likewise, the 1st and 2nd Apolicants are contending that they were never in attendance at the said meating. I note that there is no where that the Respondent has stated that the / were. As regards the Applicants' consent I have already explained about the 3rd Applicant's consent while the that of the 1st and 2nd Applicant can only be explained that were not sought because the Respondent is of the view they are strangers to the estate. I would also like to point out that I have also noted that the three beneficiaries
who were named as absent in the 10 November, 2022 meeting for the reason of being out of the country and have not consented to the Petition, have been absent throughout the proceedings including the Juliana Mary Grace Semkiwa the named beneficiary and executor of the purported Will. As observed by Mr. Kikove, she has not challenged the Petition either by way of a Caveat or challenged the appointment by way of section 49 of the PAEA. I am considering the fact that the Applicants herein have been in court and hitherto chose to stay silent as regards the purported Will. Likewise, as explained above minutes are showing that the meeting had resol/ed to proceed as if the deceased died intestate on account of what they discussed and agreed. The Application for letters was made and granted under the understanding that there was agreement that the person so proposed to proceed as if the deceased died intestate. The decision was not of the Respondent alone but of the 10 November, 2022 meeting which had some of the beneficiaries in attendance. Again, before moving any further I find it necessary to put it to ink that I am aware that the minutes of a family or clan meeting are not a legal requirement for the grant of letters of administration. However, there are numerous decisions acknowledging the role of the meeting and minutes in helping the court understand the family dynamics and or
consensus among the members, among other things. See the cases of In the matter of the estate of the late John Peter Silveira and in the matter of a Petition for Grant of Probate of the Late John Peter Silveira by Franc isca Haruweru Silveira, and in the matter of a Caveat by Gerald Francis Silveira and Solomon John Silveira, Probate and Administration Cause No. 23 and 24 of 2019, Elias Madata Lameck v. Joseph Makoye La meek, Probate and Administration Appeal No. 10 of 2019 and Adelicious Crispine Ngowi v. Ibrahim Mohamed Nawab (Civil Appeal No. 17 of 2022) [2023] TZHC 17 (24 July 2023). And, if the minutes of the 10 November, 2022 meeting are anything to go by the consensus was that they had agreed to proceed in the manner that the Respondent did. Mr. Tibenda's submission was that that was not the Respondent's call to make. I agree with him. However, knowing that the Respondent had chosen to implement the 10 November, 2022 resolution and they do not subscribe to the same the beneficiaries had the opportunity to file an objection to the Respondent's Petition and or appointment. The Petition was put through all the requisite legal procedures and processes before the appointment of the Respondent including the Citation to the 3rd Applicant. Likewise, the 1st and 2nd Applicants had an opportunity to bring the question of there being a Will to the fore but chose not to. This, is in
my opinion is opportunistic forum shopping on their part. However, I shall come back to the issue of there being a purported Will at a later stage of this Ruling. I now seek to address the question of the deceased's place of domici e. The Applicants are insisting that if the majority deceased's relatives and properties are in Muheza Tanga then the proper place of filing this matter would be Tanga. The Respondent differs and sees both Tanga and Dar es as proper forums. I shall not belabour on this as the Applicants ae not denying that the deceased had more than one place of abode and one of them was Dar es Salaam. What is more, in their Affidavits the 1st and 2nd Applicants are purporting to be the deceased's daughters albeit the Respondent's refusal to recognize them stating that the majority of the deceased's relatives are in Muheza Tanga without listing them and even considering that if they were to be found that they are part of those relatives they would not be part of the said majority as they have indicated to reside in Dar es Salaam as has the 3rd Applicant. If this court is to go by the wi sdom of looking at where the majority of his relatives are as elucidated in cited Beatrice Brighton Kamanga and Another v. Ziada William Kamanga (supra) case then there would be the need of clear expression of who the said majority of the relatives are in the context of the present
Application. As regards the reference to properties being in Tanga, I take it that the Applicants have overlooked the house in Ilala, Dar es Salaam which they have all deposed that they have been informed was sold by the Respondent. In that regard I have no qualms stating that as per the law and the cited Beatrice Brighton Kamanga and Another v. Ziada William Kamanga (supra) case; the Respondent or anyone else could have applied for a grant of letters of administration in either of the two places. It is therefore sacrilegious to complain that this court does not posses the jurisdiction to grant letters of administration that were granted to the Respondent. Next, I seek to address the question of the Respondent's wilful exclusion of the 1st and 2nd Applicants. Mr. Tibenda submitted that in the Ruling of 26 March, 2024 I stated that it was premature for them to challenge this and because the Application was not determined on merit this left space for them to come back now that they have found that they are not included in the amended accounts of estate filed by the Respondent. After the 26 March, 2024 Ruling this court ordered the Respondent to file an amended account of the estate. The said amended accounts were filed on 21 June,2023 and were fixed for hearing on 26 June, 2024. The said accounts have not been confirmed due to the pendency of among other things this Application.
I differ with Mr. Tibenda that the said 26 March, 2024 Ruling did not dispose the application on merit. It was. And for clarity I wish to reproduce what I stated at page 10 of the said Ruling as follows: The Respondent's firm refusal to acknowledge the two as his siblings is what led to Mr. Mfa/a's submission that this court has powers to summon the beneficiaries and deceased relatives to ascertain the number of beneficiaries. While I see the logic in Mr. Mfa/a's suggestion I am also mindful that in an administration matter, several kinds of objections that may be filed. The first is a Caveat to oppose the appointment of a person who has petitioned for grant of probate or letters of administration; in this case the Applicants did not do this. Other kinds of objections include objecting as regards an inventory and or accounts of the estate; these as I have alluded to earlier have been filed but hearing is pending.[Emphasis supplied] After elucidation of the kinds of objections that can be brought in a probate matter I went on to observe as follows: "It is my opinion that, it is at the hearing of the accounts of the estate exhibited by the Administrator; that a beneficiary who is in one way or another excluded or disgruntled with the apportionment of the estate may object and the said objection would be heard, evidence adduced and the court would decide as regards the objection.
This, therefore, makes the allegation of exclusion premature... "[Emphasis supplied] In that application, they were also blaming the Respondent for not informing them and obtaining consent as they are doing in the current Application On page 11 through 12 I had the following to say in that regard: The remaining question as regards the exclusion of the two Applicants which pivots on the question of them neither being informed of the family meeting nor the fact that it nominated the Respondent to petition for grant of letters of administration and he in fact petitioned and was granted letters of administration. I shall not belabour on this question. The Petitioner complied with the law as regards the publication of a General Citation, the essence of which is to ensure that heirs as well as the public are aware of an impending Petition so as to present themselves in court to state if they object the Petition or not and if not, the court can then proceed to grant the letters of administration. The two did not present themselves or object to the Petition. Therefore, they cannot blame the Respondent for not informing them. The half-sister, Harieth Semkiwa they are naming as the one who informed them was cited under Ruie72(2) of the Rules. The said Harieth Semkiwa was cited to come to the proceedings and see if it is befitting for the grant to be made, however, on the date that is 20
June 2023, she did not show up in court. She instead filed an Application for revocation on 04 August, 2024 which as already stated was later withdrawn. [Emphasis Supplied] This was meant to deal with the 1st and 2nd Applicant's contention of being side-lined by the Respondent. And, I went on to state: " The Applicants are arguing that by excluding them the Respondent obtained the grant fraudulently and by not enlisting them as heirs the he obtained the grant by concealing from the court something material to the case; concealed from the court which they have cited the case of Monica Nyamakare Jigamba v. Mugeta Bwire Bhakome (as the Administrator of the estate of Musiba Ren Jigabha) and Another (supra) which in my opinion does not apply to the present Application as the two are yet to prove they are daughters of the deceased hence, beneficiaries of his estate. Moreover, as already explained above the accounts of the state have not gone through a hearing thus no bequest order was sought and made." It is clear from the said Ruling that the ask was premature and the opportune time for lodging their objection, if any, would be at the hearing of the accounts of the estate where among other things what is discussed is the beneficiaries to the estate and their requisite shares or proportions of the estate. The application was therefore determined on merit. I refrained from declaring
them as heirs not only because it was premature but also because I am aware that it is trite law that it is the Administrator who is charged with the function of identifying the beneficiaries of an estate. A court would only step in where it is needed to determine a conflict. Once again, the amended accounts of the estate are pending, yet the Applicants are approaching this court in the same manner stating that having attached their Certificate(s) of Birth to the reply to the Counter Affidavit they have thus proved they are children of the deceased thus should be inc uded as beneficiaries of his estate. I therefore find this reason premature at this point in time. As already alluded to earlier, I am meant to go back to the question of there being a Will as a result the deceased is to have died testate and not intestate. At this point, an important question worth pondering would be whether the alleged Will was duly executed by the deceased? In other words, d d the deceased person leave a Will and is it valid? This question would be answered by the named executor or anyone else who chose to bring the purported Will to court. I called it a question worth pondering because even with the resolution of the 10 November, 2022 meeting that resolved to snub the purported Will the named executor or anyone else could have brought the purported Will by way of objecting the Petition for
letters of administration. They did not, the 3rd Applicant was at the said meeting and she was aware of the Petition and the purported Will but all the same chose to remain silent until now coming to court two years later with the purported Will seeking the named executor to be appointed. The Respondent's counsel is arguing that the named executor never presented herself or showed up to object the Petition. While I agree with him, respectfully, this does not preclude the fact that the Applicants are now complaining that the deceased left a Will. By petitioning for a grant of letters during intestacy, the Respondent obtained the grant by using an intrue allegation of a fact as provided under section 49(l)(c) of the PAEA. The quagmire that remains is the fact that this court cannot at this instance appoint the executor named in the purported Will since the said Will has not been propounded by the said executor by petitioning for grant of probate. This would among other things bring the purported Will formally to this court. Thus, I find it improper for this court to appoint the named executor as the Applicants have prayed in their Chamber Summons. From the above discussion, I find that while I can grant the prayer to revoke the grant of letters of administration and removal of the administrator of the estate of the late Stephen Kaniki Semkiwa granted to Francis John Semkiwa at
this time I can neither grant the prayer to appoint the said Juliana Mary Grace Semkiwa for reasons I have already explained. Nor can I appoint any other person(s) as prayed. Consequently, I suspend the current Administrator, Francis John Semkiwa the Respondent herein. He shall within 14 days of this Ruling surrender the original grant to the Hon. Deputy Registrar. And, considering that this court needs to protect the estate of the deceased which I am mindful that the Respondent has been administering since 26 June,2023 whether wrongly or rightly I refrain from making any orders as to the appointment of a successor administrator in the meantime. As per section 49(3) of the PAEA I make the following additional orders: 1. The Respondent is to cease and desist from committing any acts as regards the collection, distribution, or alienation of the estate of the late Stephen Kanini Semkiwa except as ordered hereunder.
2. Within 21 days of this Ruling file an inventory and accounts regarding the assets which came into his hands and the manner in which they have been applied or disposed of.
3. Within 30 Days of this Ruling the named executor or any other person as the case may be, petition for grant of probate of the purported Will attached to this Application at this court. Accordingly, the Application is granted to the extend explained above. In 4 view of this Application emanating from a probate matter each party to bear its own costs in this Application. It is so ordered. . v
OMARI
JUDGE 18/12/2024 Ruling dated and delivered on 18th December,2024 in the presence John Mushi advocate for the Applicants and Nicholous Kikove advocate for the Respondent with the Respondent in attendance. A.A. OMARI
JUDGE 18/12/2024
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