ocr kalobelo

IN THE HIGH COURT OF TANZANIA TEMEKE HIGH COURT SUB - REGISTRY (ONE STOP JUDICIAL CENTRE)

AT TEMEKE PROBATE AND ADMINISTRATION CAUSE NO. 82 OF 2023 In the matter of the estate of the late EMMANUEL NHAGUKA MASASI KALOBELO......................... DECEASED AND In the matter of an Application for revocation of the letters of administration granted to Blandina Emmanuel Kalobelo by PRISCA EMMANUEL KALOBELO........................................ APPLICANT

VERSUS BLANDINA EMMANUEL KALOBELO (The Administratrix of the estate of Emmanuel Nhaguka Masasi Kalobelo)................................. RESPONDENT

RULING Date of last order: 06/06/2024 Date of Ruling: 17/07/2024 OMARI, J. The Applicant, Prisca Emmanuel Kalobelo approached this court vide section 49(1) (b) and section 49(2) of the Probate and Administration of Estates Act, Cap 352 RE 2002 (the PAEA) as well as Rule 29(1) of the Probate Rules, GN. No. 10 of 1963 (the Rules) seeking orders that this court be pleased to revoke the letters of administration granted to Blandina Emmanuel Kalobelo, Page 1 of 14 the Respondent herein. The Applicant has prayed that in the Respondent's place this court appoint Monica Emmanuel Kalobelo and herself as joint administratrixes or any other fit and impartial person to administer the estate of the late Emmanuel Nhanguka Masasi Kalobelo. The reasons for her Application are as set out in the Affidavit accompanying the Chamber Summons. The Applicant averred that she is one of the children of the deceased and was during his lifetime being cared for by him. She also claims that she came to know of the administration while surfing the internet which led to seeking perusal of the court's file. And, upon the perusal it was discovered that the grant was fraudulently obtained by concealing from the court material facts including what I have summarized as follows: i. Exclusion of four of the deceased's children, including the Applicant, who are. allegedly known by the Respondent. ii. The minutes of

the family meeting appended to the Petition depict that the meeting was not attended by the deceased's family in the form of siblings and his other children. iii. The Applicant and the other heirs that are excluded were neither consulted nor did the Respondent reach out to them for their consents whilst their addresses and contacts are known to her. Page 2 of 14 iv. The Respondent left out some properties belonging to the deceased. According to the Applicant, the said actions depict untruthfulness and lack of transparency on the part of the Respondent as an Administrator. The Respondent contested the Application denying all the allegations that the Applicant has levelled against her. The matter having been ordered to be disposed by way of written submission, the Applicant's submission were drawn and filed by Erick Erasmus Bitarohize while those of the Respondent were drawn and filed by Maunda Raphael, both are learned advocates. Mr. Bitarohize commenced his submission with a variety of verses from the Holy Bible before going on to explain that the Application seeks for the removal of the Respondent as the Administratrix and in her place one Monica Emmanuel Kalobelo or any other fit person including the Administrator General to be appointed. He supported the prayer with a reference to the cases of Joseph Shumbusho v. Mary Grace Tigerwa & Others (Civil Appeal No. 183 of 2016)

[2020] TZCA 1803 and Ahmed Mohamed Al Laamar v. Fatuma Bakari & Another (Civil Appeal No.71 of 2012) [2012] Page 3 of 14 TZCA 22 both of which state that the court has powers to revoke an administrator. The Applicant's counsel also submitted that the reasons for the Application are as set out in the Applicant's, Cecilia Kalobelo and Dotto Charles Ngunda's Affidavits all of which seek to show that the Respondent concealed from the court crucial material which goes to exhibit her bias, lack of truthfulness and transparency thus, the need for removal. He cited the case of Sekunda Mbwambo v. Rose Ramadhani [2004] TLR 439 to amplify his prayer. Mr. Bitarohize also submitted that the Applicant's failure to contest the appointment earlier was a result of having faith that the Respondent would handle the administration in an inclusive manner and obey the deliberations of the clan meeting held after the deceased's burial. In reply, the Respondent's counsel began his submission with a reference the case of Monica Nyamakare Jigamba v. Mugeta Bwire Bhakome & Another (Civil Application No. 199 of 2019) [2020] TZCA 1820 in which the Court of Appeal pointed out that since there was no caveat against the appointment and that the High Court had errored when it stepped into the shoes of the Administrator as it has no powers to determine the beneficiaries Page 4 of 14 and heirs or to distribute

the estate. Counsel went on to state that the Petition was filed and all procedures were followed and no Caveat was filed to object the Respondent's appointment. He then went on to challenge the Applicant's assertion that the deceased was an architect stating he was an engineer arguing that this makes the Applicant's Affidavit to be tainted with lies. To fortify his argument, he cited the case of Bashir Ally v. Anyegile Andendekisye Mwamaluka and Others, (Civil Appeal No. 49 of 2021) [2024] TZCA 47 where the court held that an Affidavit that is tainted with untruths cannot be relied upon to support an Application. Mr. Raphael then challenged the Applicant's contentions that the deceased was caring for her and his other children stating no evidence is given to support the claimed transactions, moreover, no parentage was established as per Part V of the Law of the Child Act, Cap 13 RE 2019. He also contested the attached Certificate(s) of Birth stating they should have been proved by an official from RITA (s/c) as mere certificates are not proof of parentage. Mr. Raphel then went on to submit on the assertion that the Respondent concocted the family meeting that led to her appointment, stating she did not concoct the minutes it was just that, a family meeting, and it does not concern the Applicant. Page 5 of 14 On the allegations of the properties that were left out counsel

stated that the same were not the deceased's properties thus the allegation is a lie. He then prayed for this court to deny the Application by dismissing it as the Respondent did not conceal any fact. In his rejoinder Mr. Bitarohize submitted that the Respondent counsel's submission has missed the point that the Application hinges on the Respondent obtaining the grant fraudulently and concealing from the court the existence of the Applicant and not who is the rightful beneficiary as the Respondent's submission is contending. He distinguished the Monica Nyamakare Jigamba v. Mugeta Bwire Bhakome & Another (supra) case from this one; stating that the Applicant herein was not in court or know of the proceedings then failed to object the Respondent's appointment. He then went on to cite the Ahmed Teja T/A Almas Auto Parts Limited v. Commissioner General TRA (Civil Appeal 283 of 2021) [2022] TZCA 724 to amplify his contention that the Respondent's argument against the Certificate(s) of Birth are from the bar and should not be relied upon by this court. Having gone through the Affidavits and the submissions in support and against the Application it is opportune for me to determine whether the same Page 6 of 14 is meritorious as that is the only issue before this court. However, before I go any further, I wish to state that in this Ruling I shall not discuss the issue of the Respondent

leaving out any property as the same is premature since the Respondent has not filed any inventory of the estate. Any question(s), if any, regarding the inclusion and exclusion of properties shall be dealt with during hearing of the inventory. This Application is brought under section 49(1) (b) and section 49 (2) of the PAEA which provide as follows: "(1) 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) ...,;(d)....(e).... (2) Where it is satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require, the High Court may suspend or remove an executor or administrator (other than the Administrator-General or the Public Trustee) and provide for the succession of another person to the office of such executor or administrator who may cease to hold office, and for the vesting in such person of any property belonging to the estate." It is from the above that the Applicant is complaining that the Respondent obtained the grant of letters of administration fraudulently by making a false Page 7 of 14 suggestion and concealing material information from the court, that is the existence of 4 other children of

the deceased, including herself. The Respondent's counsel argued that the Respondent, petitioned and was granted the letters of administration for the estate of her deceased husband after having adhered to all the necessary legal procedures which include publishing the Petition in the Government Gazette and a daily newspaper. Upon perusal and scrutiny of the record it is evident that the Applicant and all the other alleged children are not listed in the Petition. The Respondent's counsel claims the Respondent does not know of the Applicant or the other children thus, they cannot be part of the administration. Moreover, counsel argued that the Applicant did not file any objection or Caveat and have been unable to explain why. This in my view goes to show that the Applicant and the other alleged children of the deceased are indeed excluded from the administration for the Respondent has denied knowing them. She claims that mere Certificate(s) of Birth bearing his name do not prove the said individuals are children of the deceased. Nonetheless, she has not provided any evidence that they are not. Page 8 of 14 The Respondent claims that it is only RITA (which is short for Registration, Insolvency and Trusteeship Agency) that has the mandate to authenticate a Certificate of Birth, yet did not provide any proof that the certificate(s) attached to the Applicant's Affidavit are not

authentic. While, it might make sense for the Respondent to say she does not know the Applicant or the other children that are allegedly begotten by her deceased husband out of wedlock but she cannot just simply state the certificates are unauthentic without proof. While I am at it, I shall also discuss the allegation that the Applicant and the other children that are allegedly excluded were not consulted by the Respondent. This I shall not belabour on. As already pointed out, the Respondent complied with the law in terms of publishing the Petition. And, there is no law that calls for consultation of anyone other than the requirement of consent of heirs. The Respondent claims she does not know of the Applicant and the other children; therefore, it goes without say she could not have been expected to seek their consent. The Applicant has attached to her Application a copy of minutes of a meeting that was held by the deceased's relatives post his burial. Among other things the minutes list the deceased's children born out of wedlock. The said Page 9 of 14 minutes acknowledge the absence of the widow, that is the Respondent herein stating that she was still grieving however, the meeting noted that the deceased had many children out of wedlock and the four that are known were listed and the minutes depict that a total of seven children were identified. The minutes list the same

names the Applicant and the other children the Applicant herein claims to have been excluded by the Respondent. The same minutes also seemingly deferred the nomination/ proposal of an administrator up to when the widow would be in a position to deal with the same. The Applicant is averring that the Respondent went against the resolutions of the meeting. It is also her contention that she thought the Respondent would respect the resolutions. The Applicant also attacked the minutes annexed to the Petition stating they depict that the said meeting was not properly constituted. The Respondent on the other hand stated she did not know of the post burial meeting, and as for the minutes of the meeting she annexed to the Petition, they were of a family meeting that does not concern the Applicant. About the minutes attached to the Affidavit of the Applicants, I must at the outset state l am alive to the fact that minutes of a clan meeting are not a Page 10 of 14 legal requirement for one to be appointed as administrator, this is an accepted position and there is a myriad of decisions to that effect. However, minutes of the said meeting are not totally inutile in probate and administration cases as was observed in the case of Masubi Jacob v. i ■i Rosemary Bega William (PC Probate Appeal 17 of 2021) [2022] TZHC i 933 in which this court had this to say: "A dan meeting is a good practice

that is to be cherished as it reduces conflicts among the deceased's heirs and saves court's time in prosecuting unnecessary objections that may arise if the clan meeting was not convened." This means, a clan meeting albeit not a legal requirement allows the deceased's relatives to meet and agree on certain aspects or even disagree all the same it helps understand the dynamics of any particular family and more importantly it is useful in the sense it makes the family and relatives aware of what is going on regarding the appointment and administration of deceased's estate. । While there is no hard and fast rule as the form, content and or attendees of the clan/family meeting (see Flora Augustine Mmbando v. Abdul Daud Chang'a, (Civil Appeal 243 of 2021) [2022] TZHC 10945) it would go without say in this particular case had the meeting involved more of the Page 11 of 14 deceased relatives the Respondent would have been made aware (assuming she was not already aware) of what transpired in the post burial meeting and of the alleged children. The above said, I should also state that I am conscious that it is not the mandate of the probate court to determine who are the heirs this is the work of the appointed administrator as correctly argued by both parties. However, in cases like this one to be able to ascertain who are the beneficiaries/heirs of the estate an administrator has to

inter aHa be an impartial person as was observed in the case of Saleli Doto v. Maganga Maige and Others, (PC Probate Appeal 6 of 2018) [2019] TZHC 2120, where this court had this to say: "In appointing the administrator of the deceased's estate the main consideration is the reputation and capability of such person to act faithfully, diligently and impartially in administering the estate to the rightful owners" From the above, having discerned the core of this Application I am inclined to observe that the Respondent is not in a position to say she will impartially administer the estate. Page 12 of 14 And, it is for that reason that I hold that on the whole, the grant was obtained by concealing material information to the case. Moreover, I am satisfied that for the due and proper administration of the estate of the late Emmanuel Nhaguka Masasi Kalobelo and the interests of the persons beneficially entitled thereto the current Administratrix needs to vacate the office. The letters of administration granted to the Respondent are hereby revoked. I order the same to be returned to the Registrar within 14 days of this Ruling. The Respondent is also ordered to file an inventory and accounts of the estate as of the date of this Ruling within 30 days of the Ruling. Before, I conclude, I must say I am aware that the Applicant made a prayer that once the Respondent herein is revoked as the

Administratrix of the estate of the late Emmanuel Nhanguka Masasi Kalobelo this court appoints one Monica Emmanuel Kalobelo and herself as joint administratrixes or any other fit and impartial person to administer the estate of the late Emmanuel Nhanguka Masasi Kalobelo. As per section 49(2) of the PAEA I hereby appoint Monica Emmanuel Kalobelo and Prisca Emmanuel Kalobelo to be the Administratrixes of the estate of the late Emmanuel Nhanguka Masasi Kalobelo. The said Monica Emmanuel Kalobelo and Prisca Emmanuel Kalobelo are ordered to comply with the requirements of sections 66 and 67 of Page 13 of 14 the PAEA as well as Rule 69 and 71 of the Rules within 30 Days of this Ruling. This being a probate matter no order as to costs is made. It is so ordered. Ruling delivered and dated 17th day of July, 2024. A. A? OMARI

JUDGE 17/07/2024 Page 14 of 14