misc application no 18446 of 2024 ZUBEDA DADIA VS GRACE KWANGU

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

AT TEMEKE MISC. APPLICATION NO. 18446 OF 2024 (Arising from Probate and Administration Cause No. 4 of2021} In the Matter of the Estate of the Late

JORDAN AUGUSTINO GAMA and In the Matter of an Application for Revocation of the Letters of Administration By ZUBEDA HAMISI DADIA (As the Guardian of J.J.G and J.J.G )........................................................................................... APPLICANT Versus GRACE WILLIAM KWANGU............................................................... RESPONDENT (As the Administratrix of the Estate of the Late Jordan Augustino Gama}

RULING 10th September & 30th October, 2024 BARTHY, J.: The applicant Zubeda Hamisi Dadia, guardian to the deceased's children, J.J.G and J.J.G (their name withheld), seeks revocation of the letters of administration granted to Grace William Kwangu (the respondent), mentioning significant delays and non-distribution of the deceased's estate. Citing section 49(l)(b), (c), and (e) of the Probate and Administration of Estates Act, Cap 352, R.E. 2002 (the Probate and i Administration of Estate Act), and rule 29(1) of the Probate Rules, G.N 369 of 1963 (the Probate Rules) to be the bedrock of this application. The origin of this case traces back to the appointment of the respondent as the administratrix of the deceased's estate by this court on 3rd November, 2021. Following her appointment, the respondent filed the estate's inventory and accounts without any objections. On 8th December 2022, the court issued an order directing her to transfer the estate's assets to the rightful heirs. It was at this point, however, that tensions escalated between the respondent and the applicant regarding the identification and handover of certain estate properties, culminating in the current application before the court. At the hearing of this matter, it was agreed by consensus that the application would be disposed of through written submissions. This process included the requirement for the

respondent to file her counter­ affidavit by 4th October 2024, as her prior service regarding this matter had not been timely, resulting in a prolonged delay. However, it appears that the respondent's counter-affidavit was actually filed on 6th October, 2024, with payment made only after this date, rendering it out of time without any request to this court for an extension. Accordingly, the respondent's counter-affidavit and submission will be disregarded in determining this matter. In the case of Famari Investment T. Ltd vs Abdallah Selemani Komba (Misc. Civil Application 41 of 2018) High Court at Mbeya [2020] TZHC 386 (11 March 2020), the court stressed on that orders of the court must be strictly complied with. For the applicant's submission in support of the application, Mr. William Anthony Changoma, learned advocate argued the administrator's had failed to distribute assets or account for the estate's inventory after over 22 months; as required under section 107(1) of the Probate and Administration of Estate Act. To buttress his argument he referred to Godbless Mathew Naibala vs. Annet John M.N. Lukumay, Civil Application No. 119 & 142 of 2008. Mr. Changoma also stressed that the administrator has failed to disclose assets fully, including ownership documents for land plots and shares held by the deceased, and to resolve unpaid debts owed to the deceased by a third

party. Moreover, it was stated there is an unexplained discrepancy in the distribution of the deceased's terminal benefits, amounting to TZS 6,823,050. He further highlighted that the administrator has not sought remittance of remaining dues from the deceased's former employers despite court instruction. 3 Mr. Changoma contends that the administrator's actions conflict with the fiduciary duty outlined in the case of Sekunda Mbwambo vs. Rose Ramadhani [2004] TLR 439, asserting that the grant has become ineffective. Also, he referred to the case of Christina Shumbusho vs. Mary Grace Tigerwa & 2 others, Civil Appeal No. 183 of 2016 [2020] TZCA 1803. Consequently, he prayed the revocation of the letters of administration granted to the respondent and proposed the appointment of a new administrator to complete the estate distribution in line with statutory obligations. This application concerns the prayer for revocation of letters of administration to the respondent, with this court being moved under section 49(1) of the Probate and Administration of Estates Act, Cap 352, R.E 2002, and rule 29(1) of the Probate Rule, GN 369 of 1963. The applicant claims that the respondent, as administratrix, has failed to fulfill her legal duties faithfully, particularly in distributing the estate's assets and providing transparent accounting of expenses. It has been over 22 months since the

court's last directive, which, according to the applicant, renders the respondent's grant ineffective. The applicant lists specific concerns regarding properties that were not yet transferred to the heirs, including: 4 1. Plot No. 370, Block 'RR' in Tipuli, Lindi Region, 2. An unsurveyed 10-acre plot in Kiluvya 'A', Kisarawe District, 3. A house at Kinyerezi, Dar es Salaam, under Title Deed No. 158387, Plot 47 Block 'K1, which was to be sold, 4. A plot in Mafia, 5. Undistributed shares in CRDB Bank and JSU Company Ltd, 6. An outstanding terminal benefit of TZS 6,823,050, 7. A debt owed to the deceased by Barnabas Njelekela of TZS 8,000,000, and 8. Unresolved employment dues owed to the deceased by former employers. Upon reviewing the court records and evidence presented, it is noted that on 08/12/2022, this court issued a bequeath order that confirmed the inventory and accounts of the estate, directing the administratrix to transfer the bequeathed properties to the designated beneficiaries. This order has not been contested by any party. Subsequent court orders, notably those issued on 08/11/2023, 17/04/2024, and 01/07/2024, reflect that certain properties remain undistributed, specifically the property located in Lindi, and the delays in conducting required valuation for the house at Kinyerezi in Dar es salaam to be able to effect the sale and distribute the proceeds.

—cR 5 Needless to say, that the court has repeatedly directed these steps to facilitate transfer but noted persistent communication challenges and mistrust between the parties. Much of this mistrust has revolved around unresolved estate benefits pending verification with PSSSF, as well as the administratrix's actions on landed properties. Section 49(l)(b), (c), and (d) of the Probate and Administration of Estates Act, provides grounds for revocation of letters of administration if the grant was obtained through fraud, concealment of material facts, untrue allegations of an essential fact (even if made inadvertently), or if the grant has become useless or inoperative. The applicant's submission did not provide evidence to suggest that the respondent obtained the grant by false suggestion, fraudulent means, or concealment of material facts. Instead, the applicant's primary concern is the protracted nature of the estate's distribution, with an argument that the administratrix has delayed distributing the estate by more than 22 months. However, this delay does not necessarily satisfy the grounds for revocation under Section 49(l)(b) or (c), as there is no proof of fraudulent behavior or concealment by the respondent. The applicant's reliance on section 107(1) of the Probate and Administration of Estates Act is also misinterpreted. As section 107(1) mandates that an administrator

must file an inventory and exhibit a true 6 account of the estate within six months to one year following their appointment, but it does not set a specific deadline for the actual distribution of the estate. Nevertheless, this gap in the legislation should not be used to prolong the administration process indefinitely. The law anticipates that the estate administration will conclude within a reasonable timeframe, ensuring heirs receive their rightful shares promptly. Protracted delays not only compromise the heirs' interests but also run counter to the principle that litigation must eventually come to an end. Court's records show that the administratrix has explained the delays regarding certain pension benefits, which remain pending for verification and collection. Additionally, the applicant has received supporting documentation about the steps taken to claim outstanding pension funds. Nonetheless, I am in agreement with Mr. Changoma that the respondent owes the heirs of the estate fiduciary duty to faithful administer the estate of the deceased and account for the same periodically. This entails the paying the debts of the deceased, and distributing the residue to the heirs in accordance to section 66 of the Probate and Administration of Estate Act. Also, this duty was emphasized in the case of Abbas Ally Athuman Bantulaki & Another vs Kelvin Victor Mahity (Civil Appeal 385

of 2019) Court of Appeal at Dar es salaam [2022] TZCA 509 (18 August 2022). 7 The court recognizes that there have been delays in complying with orders to transfer property to the designated heirs; however, these delays have been exacerbated by objections from both parties and an overall lack of cooperation. Additionally, the delay was not proved to have intended to benefit the respondent herself. Furthermore, according to the records the respondent has encountered difficulties in securing complete records from institutions associated with the deceased's employment. These logistical and administrative challenges have contributed to delays in the distribution process. It is evident that the letters of administration have not become inoperative, as the respondent has ensured that funds from the deceased's pension have been distributed to the heirs. Additionally, the respondent has continued to provide updates on the status of the deceased's properties. Importantly, no evidence has been presented to show that the respondent acted fraudulently, made any material misrepresentations, or concealed essential facts relevant to the administration of the estate. As such, the legal grounds for revocation have not been met. While these delays are regrettable, they alone do not justify revoking the letters of 8 administration. The court, therefore, finds that the respondent's role as administratrix remains valid and effective. In the upshot, I find that the application for revocation has no merit. The court directs that both parties cooperate to facilitate the prompt completion of the administration process as ordered by this court. It is so ordered. Dated at Temeke this 30th of October, 2024.

BART

JUDGE Delivered in the pbe^ence of Applicant in person, Mr. William Anthony Changoma Learned Advocate for the Applicant, Ms. Bernadina Tayari,RMA and in the absence of Respondent 9