SHIWA KAHABI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA PC. PROBATE APPEAL NO. 28188 OF 2023 (Arising from Probate Appeal No. 33 of 2023 of the District Court of Sengerema District Court and Originating from Probate Cause No. 26 of 2023 of Sengerema Urban Primary Court) SHIWA KAHABI………………….……………………..………..……………..APPELLANT

VERSUS FLORA MBARUKU……………………………………………………..……..RESPONDENT

JUDGMENT 18th June & 28th June 2024. Kilekamajenga, J. This matter originates from Probate Cause No. 26 of 2023 of Sengerema Urban Primary where the appellant applied to administer the estate of the late Kindikwa Nsiyatemi Nhulu. The record shows that the deceased died in 2010 leaving behind three children including the respondent. In 2023, the appellant who is neither the child nor relative to the deceased, applied for the administration on the reason that he wants to distribute the deceased’s estate which is currently enjoyed by the respondent in exclusion of other lawful heirs. In the Primary Court, the appellant’s application was objected to by the respondent. However, in the eyes of the Primary Court, the respondent’s objection lacked merit and was consequently dismissed and the appellant was appointed the administrator of the estate. Irked with the 1 decision of the Primary Court, the respondent appealed to the District Court of Sengerema which revoked the appellant’s appointment on the reason that the appellant has no interest in the estate. The District Court allowed any interested party to apply for the administration in the Primary Court. As a result, the appellant approached this Honourable Court for further justice. He coined five grounds thus: 1. That, the trial court erred in law and facts by revoking the appointment of the appellant from being the administrator of the estates of Kindikwa Nsiyantemi Nhulu since he was nominated by the clan meeting.

2. That, the trial court erred in law and facts for not identifying how the appointment of the appellant to be administrator of estates was being obtained by fraud and misrepresentation, since the appellant presented the minutes of the clan meeting in the court to prove his appointment as the administrator of the deceased estates (sic).

3. That, the trial court erred in law and facts by not identifying the specific legal interest that could be considered during the appointment of the administrator of the deceased estates (sic).

4. That, the trial court erred in law and facts for failure to consider the interest and consent of the clan meeting and other heirs.

5. That, the trial court erred in law and facts by failing to analyze and evaluate evidence on the record. The appeal was fixed for the hearing; both the appellant and respondent appeared in person without legal representation. In advancing the grounds of appeal, the appellant, being a layperson, briefly argued that he wanted the administration of 2 the deceased's estates to balance the interest of the heirs and that he was acquainted with the deceased's estate. He further informed the court that, the deceased left behind a house and that the clan meeting appointed him to administer the estate. He blamed the respondent for wanting to own the deceased’s estate in exclusion of other heirs. He argued that the deceased was his aunt hence he wanted to distribute the estate. Following the appellant’s submission, the respondent blamed the appellant for intervening in the deceased’s estate without any interest because he is not a relative and does not belong to their clan. The respondent stressed her relationship with the deceased that, she is among the daughters of the deceased. She lived with the deceased before her demise. The respondent further submitted that she does not know the appellant as he comes from another village different from the deceased’s village. The respondent assailed the appellant for being backed up by a group of people who wanted to illegally evict her from the

house that she developed. 3 When rejoining, the appellant blamed the respondent for lying on this matter. He however confirmed that he was not the relative of the deceased though he believed that he may be appointed to administer the deceased’s estate. Having considered the rival arguments advanced by the parties, it is apposite to address the grounds of appeal. On the first ground, the appellant blamed the District Court of Sengerema for revoking his appointment while he was nominated by the clan meeting. I should set it clear that, the nomination by the clan does not amount to appointment. The appointment of an administrator can only be done by the court even in the absence of the proposal from the clan meeting. Courts normally encourage the presence of the minutes from the clan for the mere reason of discouraging unscrupulous persons from sneaking into the administration of the deceased’s estate without consent or knowledge from the interested persons. The presentation of the minutes from the clan meeting is not a requirement of the law but a good practice to cultivate transparency in the administration of the deceased’s estate. I wish to consider the case of Oliver Bernard v. Kornel Bernard PC Civil Appeal No. 6 of 2020 where this court in Arusha decided that: “There is no specific provision of the law which makes it mandatory for the clan/family meeting minutes to be a

requirement before appointing a person administrator or administratrix of the deceased’s estate.” 4 Therefore, where the clan meeting proposes a person to be appointed an administrator, it does not take away the powers of the court to appoint a fit person to handle the administration person. I am aware that, in this case, the appellant was proposed by the so-called clan meeting and was appointed by the Primary Court. However, the first appellate court was convinced that the appellant had no interest in the property as he was neither the relative nor a beneficiary in the estate. Before this court, the appellant confirmed to have not been the relative to the deceased nor one of the beneficiaries. In the circumstances where the close relatives of the deceased are still alive and have not been prevented from the administration, I also find the appellant, not a fit person to engage in the administration of the estate. I find no merit in this ground and therefore dismiss it. On the second ground, the appellant blamed the first appellate court for not stating whether the appellant’s appointment was procured through fraud or misrepresentation leading to his revocation. The perusal of the judgment of the District Court clearly shows that the appellant’s revocation was not prompted by fraud or misrepresentation but by the fact that the appellant is not the child of the deceased hence he

has no interest in the property. In assessing whether the appellant qualified for appointment, the first appellate court observed that: 5 “It is evident from the trial records that the respondent is not a child of the deceased person nor a relative. As a trial magistrate, he was supposed to observe the qualification for a person to be an administrator, by properly directing himself to assessing the appellant’s qualifications. He would have come to the view that although the appellant had been nominated by the clan members for the appointment, he had not met the “interest in the deceased’s estate” requirement”. It is therefore lucid that the appellant’s appointment was revoked for the major reason that he lacked the prerequisite qualifications for the appointment as per paragraph 2(a)(b) of the Fifth Schedule to the Magistrates’ Courts Act, Cap. 11 RE 2022. I wish to emphasize the above position with the case of Naftary Petro v. Mary Protas, Civil Appeal No. 103 of 2018 where the Court of Appeal stressed that: “In essence, it empowers a primary court, either of its own motion or upon an application, to appoint one or more persons “interested in the estate of the deceased” to be the administrator or administrators thereof. The primary consideration, therefore, is holding of an interest in the estate of the deceased.” Based on the above position of the law, I further insist that

the appellant has no interest in the deceased’s estate and he is therefore not the right person for appointment. This ground also lacks merit. 6 On the third ground, the appellant alleged that the trial court erred in law and facts by not identifying the specific legal interest that could be considered during the appointment. I have already stated the major reason that led to the appellant’s appointment. I should further emphasize, that the appellant is not the relative nor beneficiary of the deceased’s estate hence he lacks the interest required by the law. The first line of consideration in the administration of the deceased’s estate is whether or not the petitioner has any interest in the property. But, where the persons with interest in the property are objected to and the court finds good reason to appoint a neutral person, it may do so by appointment of any other person. In the case at hand, the respondent is the biological daughter of the deceased; it may be injustice and absurd to appoint a stranger to administer the estate of the respondent’s mother. I find no merit in this ground and therefore dismiss it. On the fourth ground, the appellant argued that the trial court erred in law and facts for failure to consider the interest and consent of the clan meeting and other heirs. On the fifth ground, the appellant argued that the trial court erred in law and facts by

failing to analyze and evaluate evidence on the record. I may be too 7 repetitive to address these similar grounds because my analysis above answers them. I also find the same unmerited. In conclusion, the appellant who, according to the record and information revealed before this court, is not a relative and lives in the nearby village intervened in the deceased’s estate without interest as required by the law. At best, the appellant is a stranger to the deceased’s family. It is a miscarriage of justice to appoint a stranger to administer the deceased’s estate in exclusion of the respondent who is a biological daughter of the deceased. Without going into the nitty gritty on how the appellant was appointed by the clan meeting, it may be detrimental to entrust the deceased’s estate to a stranger. I find no merit in the appeal. The appellant being a stranger to the deceased’s estate, should bear the costs of this appeal. It is so ordered. DATED at Mwanza this 28th Day of June 2024. Ntemi N. Kilekamajenga.

JUDGE 28/06/2024 8 Court: Judgment delivered this 28th Day of June 2024 in the presence of the appellant and respondent. Right of appeal explained to the parties. Ntemi N. Kilekamajenga.

JUDGE 28/06/2024 9