IN THE HIGH COURT OF THE UNITED REPULIC OF TANZANIA

(IN THE DISTRICT REGISTRY OF MWANZA)

AT MWANZA
MISC. CIVIL APPLICATION NO. 6 OF 2022
(arising from Probate and administration Cause no. 7 of 2020)
IN THE MATTER OF APPLICATION FOR LETTERS OF ADMINISTRATION OF
ESTATE BY MARIAM NAWASHA

THERESIA HASSAN MALONGO (Next friend of Leah

G. Kurwijila and Nicholaus G. Kurwijila ........................... .......... APPLICANT

VERSUS

MARIAM JUMA NAWASHA (Administratrix)......................... RESPONDENT

RULING
2$h March & 27th May 2022

ITEMBA, J.

The late Gabriel Nimrod Kurwijila (the deceased) died intestate. He

was survived with a daughter Leah Kurwijila and a son Nicholaus Kurwijila

from his previous marriage with the applicant herein, and another

daughter, Martha Kurwijila whose mother is the respondent. The deceased

has left a number of properties of which the applicant is alleging that the

respondent has not properly administered the said deceased's estate. The

applicant is therefore moving the court to give directives to the respondent

as an administrator of estate, in regard to the administration thereof.

i
 As per the chamber summons, the following are the directives

sought, and I quote:

"I. That, this Honorable Court be pleased to issue directions requiring the

Respondent/Administratrix to state as to how the distribution of the

properties was done, and how the deceased was associated with the

property distributed to LEAH NIMROD KURWIJILA that is a house at an

unsurveyed Plot measuring three quarter acre at Mashimoni Area in

Ifakara.

2. That, this Honorable Court be pleased to issue directions requiring the

respondent/administratrix to furnish the reasons as to why the lawful

beneficiary one LEAH NIMROD KURWIJILA not allocated with any share

of the estates of the deceased.

3. That, the Court be pleased to direct that the estates of the deceased be

re-distributed to all lawful beneficiaries including LEAH NIMROD

KURWIJILA

4. That, this Honorable Court be pleased to issue directions requiring the

respondent/administratrix, that shares which were allocated to the

2
respondent/administratrix be deducted as she distributed a lot of shares

that is 34% to herself leaving a little shares to her heirs (minors)

5. That, the court be pleased to issue orders that the properties of the

deceased allocated to LEAH NIMROD KURWIJILA and NICHOLAUS

GABRIEL KURWIJILA be under care of their next friend and biological

mother(appiicant) and not their step mother.

6. That, the Court be pleased to order that the properties belonging to the

deceased which were concealed by the respondent/administratrix while

petitioning for appointment as administratrix of the estates of the deceased

be included in the distribution, to wit: motor vehicles make Toyota Kiuger

T.2E8 DJS, one house located at Ifakara within Morogoro Region, two plots

of land located at Same district within Kilimanjaro Region, Plot No. 118

Block "A" located at Same Steiing in Kilimanjaro, Unsurveyed plot

measuring two acres located at Bomani Area, in Same Kilimanjaro, one

mining farm located at Geita and other properties owned by the deceased.

7. That the respondent/administratrix be directed to present and exhibit

unto this court true and correct Inventory and Accounts of the deceased

3
assented by all heirs including the daughters and sons of the deceased

who are minors.

8. Costs of this Application.

9. Any other reiief(s) this Honorable Court may deem fit or equitable to

grant"

At the hearing, the applicant was represented by Mr. Yuda Kavugushi

while: Mr. Pauline Michael appeared for the respondent. Both prayed for the

contents of the supporting affidavit and counter affidavit respectively, to be

adopted. The applicant's counsel submitted that the respondent has

violated and abused her role as an administratrix of estate of the late

Gabriel Nimrod Kurwijila and request this court's intervention. He

expounded the seven grounds in the affidavit and the respondent

vigorously contested the same as abridged hereunder:

The first ground is established in paragraph 9 and 10 of the

applicant's affidavit. The applicant states that the respondent was

appointed as an administratrix of estate the late Gabriel Nimrod Kurwijila

and between November and December 2021 she filed an inventory and

accounts of the estates purportedly having included the list of beneficiaries

4
of the deceased estates. He added that the said inventory and accounts

indicated that Leah Kurwijila was allocated a house at unsurveyed Plot

measuring three quarter acres at Mashimoni area in Ifakara and the said

house does not belong to the deceased. He elucidated that the said house

belongs to Leah Gabriel Kurwijila as it was bought by her parents and it

does not form part of the deceased's estate and that on 18th February 2020

the Court of Appeal of Tanzania in Gabriel Nimrod Kurwijila v Theresia

Hassan Malongo Civil Appeal No. 102 of 2Q18(annexure mono 5) which

originated from a matrimonial dispute, issued a decision to the effect that

the said house does not form part of the deceased's estate but it belongs

to Loah Kurwijila. He argued that in other words Leah Kurwijila was not

allocated any property from the deceased's properties. In reply the

respondent stated that the house in question was bought by the deceased

under the name of Leah Kurwijila which means the deceased intended the

house to belong to Leah Kurwijila and therefore the respondent allocated

the same house to Leah Kurwijila to respect the wishes of the deceased.

The second ground is found between paragraph 14 and 16 the

applicant's affidavit. It is averred that in the said account of estate, it is

shown that the properties or part of estate allocated to two issues namely
Leah Kurwijila and Nicholaus Kurwijila will be under the care or control of

their guardian who is the respondent herein. And, the basis of the

respondent being a guardian is that the Judgment of Manundu Primary

Court in Matrimonial case no. 16/2013 dated 30/8/2013 annexure mono 6

(between the deceased and the applicant) ordered the deceased to be

guardian of the two children and not the respondent. He argues that the

respondent is not the guardian of the children and actually the respondent

lied before the court that she lives with the children while after the death

of the deceased, the children who are still under 18 years, are living with

their biological mother, the applicant. In reply the respondent states that

the issue of guardianship was raised when the respondent petitioned for an

appointment as an administratix of estate and it is still pending in Civil

review no. 3 of 2021 before this court. She added that the judgment of

Manundu Primary court deprived guardianship of the children to the

applicant and granted the same to their father therefore after the demise

of the deceased the court can choose any other person to be the guardian

and not the applicant because the Primary court of Manundu had reasons

in deciding that the applicant is not a fit person to have the custody of her

6
children. The respondent also stated that the children are under the

guardianship of the respondent and not the applicant.

In the third ground, it is alleged that the respondent while petitioning

as an administratix of the deceased estate left un administered some of the

properties owned by the deceased including a motor vehicle make Toyota

Kluger, one house located at Ifakara within Morogoro, two plots of land,

Plot No. 118 Block W located, unserveyed plot measuring two acres

located at Bomano area at Same at Kilimanjaro one mining farm located at

Geita and other properties of the deceased. The respondent had stated

that these properties are not at her knowledge and that the applicant need

to prove their existence.

The last ground is found in paragraph 18 of the affidavit. It refers to

the respondent spending Tshs. 15,000,000 for petition of letters of

administration. In his submissions, the applicant thinks that the amount is

excessively high. In reply, the respondent just stated in her counter

affidavit that he has noted paragraph 18. In his submission the counsel for

the respondent stated that the money was used for court process,

travelling, payment of rent of the previous deceased house and funeral

7
expenses. He finalized by stating that the inventory is incomplete because

there are pending payments from a national social security fund.

Having gone through the pleadings and parties' submissions, the

issue is whether the application has merit.

I have gone through the records and it shows that the administratix

of estate had actually filed both the inventory and accounts on the same

date that is 17th December 2021.1 will come to this issue later.

In respect of this first ground, the account of estate, it shows that

the administratix of estate has distributed and allocated to one of the

beneficiaries a house which does not form part of the deceased's

properties. The records are clear the house located at unsurveyed Plot

measuring three quarter acres at Mashimoni area in Ifakara was not the

deceased's property. It was the property of Leah Kurwijila regardless of the

fact that it was the deceased who acquired it. I have also revisited the

court of appeal decision in Gabriel Nimrod Kurwijila v Theresia

Hassan Malongo {supra) has declared that the said house was never a

matrimonial property (between the deceased and the applicant herein) as

it belonged to Leah Kurwijila and it is registered under her name.

8
Therefore, it was wrong to include the said house in the list of deceased

property and to proceed to distribute it. In respect of section 108 of the

Probate and Administration of Estate Act (Cap 352), the duty of the

administrator of estate is to administer the deceased estate and not

otherwise. In doing so the administrator is expected to be faithful and

transparent. That is why under section 107 (4) of the same Act, an

administrator exhibits an intentionally false inventory or account commits

an of'ence.

In the second ground, it was undisputed that the deceased was

appointed a guardian of the children by Manundu Primary Court in

matrimonial cause no. 16/2013. It was also undisputed that after the death

of the deceased the children stays with the applicant. I am not convinced

at all that after the death of the deceased guardianship will automatically

move to the respondent. The respondent cannot inherit the deceased's

children as they are not properties. However, having no guardian cannot

limit the administratix from allocating the properties to the children. The

respondent should do her work of distributing the properties accordingly.

This being a probate court, it cannot deal with issues of custody of

children. The family and those in control of the said children can process
9
guardianship of the children in order to facilitate the functions of the

administratix of estate.

In the third ground, according to the section 110(1) of the Evidence

Act, it is stated that:

" Whoever desires any court to give judgement as to any

legal right or liability dependent on the existence of facts
which he asserts must prove that those facts exist’.

In other words, one who alleges must prove. It goes therefore, the

applicant has to prove that these properties mentioned in paragraph 6 of

the applicant's affidavit exist and that they belonged to the deceased so

that the administratix of estate will locate and distribute the same to the

heirs. The said list by the deceased's relatives is not enough if there is no

proof of ownership. There have to be evidence including tittle deeds, motor

vehicle registration cards, sale contracts and related documents which

establish ownership of the said properties.

Lastly, The account of estate states "administration expenses" Tshs.

15,000,000". In his submission the advocate for respondent stated that the

same amount was used for funeral expenses and payment of rent in the

rental house which the deceased was living. However, in the submitted
io
account FORM no 81. According to this form, if there are any funeral

expenses and any other debts, they need to be explained. The said form

states as follows and I quote:

PAYMENTS VALUE

1. Funeral Expenses NIL

2. Debts NIL

3. Administration expenses Tshs. 15,000,000/=

Hence, what the advocate for the respondent was submitting before

the court, is contrary to what is exhibited in form no. 81. If the Tshs.

15,000,000/= was paid in funeral expenses and debts like rent and others

the same should have featured in FORM No. 81 but that is not the case.

This anomaly raises doubts as to what exactly happened with the said

Tshs. 15,000,000. Therefore, for transparency, the respondent is supposed

to submit a clear breakdown and proof of payments including receipts, of

the costs which she incurred amounting to 15,000,00/=. The same

incongruities also appears in administratix allocation of 34% of the cash

money which was allocated to the administratix of estate, the respondent.

Considering that the total number of heirs amounts to six people, even
n
<>)
though three are deceased's children and two are deceased's relatives,

which means they might differ in percentage of allocation, still, there are is

no explanation as to why the respondent has allocated to herself 34% of

the total share and the rest of the five people to share the remaining 66%.

As mentioned earlier, section 108 of Cap 455 requires the

administrator to exercise her duty with reasonable diligence. Additionally,

section 66 of the Probate and Administration Act provides that:

"Upon the grant of any probate or letters of administration

the grantee shall take an oath faithfully to administer the
estate and to account for the same"

In expounding the above section 66, the Court of Appeal in Joseph

Shumbusho v Mary Grace Tigerwa and others Civil Appeal No. 183 of

2016, CAT, Dar es salaam had this to say:

" The law recognises the executor/administrator as personal

legal representative of the deceased ........ in the

performance of his duty as a legal representative, the law

requires him to act in accordance with his oath. And what

does this mean? Section (56 of the Probate and

Administration Act requires the grantee of the probate or

12

4
letters of administration to take an oath that he/she will

faithfully administer the estate of the deceased and

will account for the same. That is the administrator will

faithfully administer the deceased's estates by first paying

the just debts of the deceased, distributing the residue

according to the law, making and exhibiting a full and true

inventory of the deceased's properties and credits and

rendering a true account of the administration. The

rationale of exhibiting the inventory and accounts is

to keep the beneficiaries informed and to have

transparency in the execution/administration of the

deceased's estates. It is therefore implicit in the

Probate and Administration Act that a legal

representative owes a fiduciary duty to the heirs and

beneficiaries. By way of emphasis, we wish to reiterate

here that such a fiduciary duty is inferred from the oath

taken by the grantee of the probate or letters of

administration. As such, contrary to the view of the learned

counsel for the appellant, the law is very much dear on the
13
 fiduciary duty imposed upon the grantee ofprobate or letters

of administration, "(emphasis supplied)

It has been observed that the administratix of estate did not

distribute any landed property to one of the deceased's children named

Leah Kurwijila, she has allocated to herself 3 plots so that she can "sell

some of the plots and construct a building of her own and handle the

ongoing cases" At the same time, the administratix has reported to have

used Tshs. 15,000,000 in administration fees including court fees without

any clarification of the said allocation.

Further, as pointed out earlier, the inventory FORM No. 80 and

accounts FORM no. 81 were filed on the same day. As per section 105 of

the Probate and administration Act, form no 80. is supposed to be filed

within 6 months. The form no. 81 is supposed to be filed not more than

one year or within such further time as the court may from time to time

appoint. This interval between the 2 forms would allow opportunity for the

beneficiaries and heirs to see the list of properties and whether it is correct

or not. Filing both forms at the same time limit the beneficiaries and heirs

from having knowledge about the contents of the inventory. To me, all

14
these acts and tendency by the administratix of estate are not reflecting

good faith, reasonability and diligence in the part of an administratix of

estate as the law requires.

The respondent was supposed to act in good faith at all times for

the sole benefit and interest of the estates of the deceased and to the

beneficiaries of the estate of which she did not.

Having said that, the issue is answered in affirmative, the applicant has

established sufficient grounds for this court to issue directives to the

respondent. Following are the directives issued to the administratix of

estate, the respondent herein:

1. With reasonable diligence, the administratix of estate should

redistribute the estate of the deceased and include all the rightful

heirs. Only the deceased's properties should be distributed. The

house located at unsurveyed Plot measuring three quarter acre at

Mashimoni area in Ifakara belongs to Leah Kurwijila and it is not part

of deceased estate therefore it should not be allocated to anyone.

The house should not be located even to Leah Kurwijila because it

already belongs to her and one cannot be given her own property.

15
2. As the children Leah Kurwijila and Nicholaus Kurwijila are still minors

the properties which will be distributed to them by the administratix

of estate should be transferred in their names as a starting point. The

issue of guardianship of the children will be processed in a different

platform alongside with the process of distribution of the deceased's

properties.

3. The said list by the deceased's relatives is not enough if there is no

proof of ownership.

4. The applicant has to prove that the properties listed in paragraph 6

of the applicant affidavit exists and that they belonged to the

deceased so that the administratix of estate will locate and distribute

the same to the heirs.

5. The respondent is supposed to submit a clear breakdown and proof

of payments of administration costs including receipts, of the cost

which she incurred amounting to 15,000,000/=.

6. The amount and percentage of distribution of deceased's cash should

consider the fact that there are six heirs in the account of estate.

16
 7. The respondent should involve the heirs and beneficiaries of the

estate to ensure transparency in the process or redistribution.

8. The respondent is given a grace period of three (3) months from the

date of this ruling to re distribute the deceased estate to the rightful

heirs and exhibit in this court an inventory and accounts as required

in section 107(1) of the Probate and Administration of Estate Act.

It is so ordered.

L. J. Item ba
JUDGE
27/5/2022

Rights of the parties have been explained.

L. J. Item ba
JUDGE
27/5/2022

DATED at MWANZA this 27th day of May, 2022

17