IN THE HIGH COURT OF TANZANIA

(TEMEKE SUB-REGISTRY)

ONE STOP JUDICIAL CENTRE

MISC. CIVIL APPLICATION NO. 59 OF 2022

In the matter of presumption of death of

MOHAMED SALEHE KAOMBW E....... PRESUMED DEAD

VERSUS

In the matter of an Application of presumption of

death of MOHAMED SALEHE KAOMBWE by
HAMISI MOHAMED SALEHE........................ APPLICANT

RULING

Date o f last order: 24/05/2023

Date o f Ruling: 26/06/2023

OMARI, J.

This is an Application that reminds us of the grim realities that life can throw at

us. Almost 40 years ago a man disappeared, never to be heard from or seen by

his family. This is what prompted Hamisi Mohamed Salehe, the Applicant herein

to approach this Court under section 2(1)(3) of the Judicature and Application of

Laws Act, Cap 358 RE.2019 and Section 95 of the Civil Procedure Code Cap 33,

RE 2019 seeking it to make orders that:

1. That this honourable court be pleased to declare that Mohamed

Salehe Kaombwe is presumed to be dead for having disappeared

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 without a trace despite efforts by responsible authorities to trace his

whereabouts;

2. That, upon the declaration of presumption of death the Applicant who

is the child of Mohamed Salehe Kaombwe herein be allowed to

commence and institute probate and administration cause for the

purpose of protecting the estate of his father; and

3. Any other orders that this honourable Court may deem just to grant.

In brief, the Applicant is seeking this Court to declare his father, who has

disappeared and is unheard of since 1980, dead. The Application is supported

by the Affidavit of Hamisi Mohamed Salehe, the Applicant and son of

Mohamed Salehe Kaombwe.

At the hearing of this matter the Applicant was represented by Aaron Oyugi

who was assisted by Malebo Deusdedit both being learned advocates.

Submitting on behalf of the Applicant Mr. Oyugi began by remarking that this

was an Application of a peculiar nature, for his client is seeking for orders that

a person be presumed dead. He prayed that the Affidavit affirmed by the

Applicant be adopted to form part of his submission.

The learned counsel submitted that Mohamed Salehe Kaombwe disappeared

and is unheard of since 1980. At the time when he was last heard of, he was
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a trader canvasing Mafia, Kilwa and Dar es Salaam for his snail business. The

family of Mohamed Saleh Kaombwe came to the sad realization that he might

have disappeared and reported to the police, then started to place adverts in

various media in 2016. This was so, if anyone had information of his

whereabouts they can approach the family. The efforts did not yield any

results, when the family decided to file this Application they also advertised

once more in the Uhuru newspaper and throughTBCl television.

The learned advocate submitted further that in the Applicant's Affidavit, he

deponed that his father has a house that is on Plot No. 191 (House No.9)

Ifunda Street, Magomeni in Dar es Salaam. He further submitted that as it

stands the same cannot be administered without this court's order. Likewise,

the learned counsel submitted that since there was no certificate of death the

procedures for application of letters of administration cannot be invoked thus,

the rights of the beneficiaries are at stake. Therefore, the Applicant's second

prayer is that upon declaration of the presumption of death of one Mohamed

Salehe Kaombwe the Applicant herein be allowed to commence probate and

administration of estates proceedings for the purposes of protecting the

estate of the person to be declared dead.

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The learned advocate reiterated that despite the efforts to locate him and a

plethora of adverts looking for him or information of his whereabouts, the

same have proved futile.

Mr. Oyugi then went on with his submission by echoing that the Application

is peculiar for there is no specific law guiding it, however if one refers to

section 117 of the Tanzania Evidence Act Cap 6, RE 2022 (the TEA), the

person to be declared dead has not been seen or heard of for more than 40

years. When the adverts were placed in various media Mohamed Salehe

Kaombwe did not come forward nor was there anyone else who volunteered

information on his whereabouts. The said Mohamed Salehe Kaombwe was 40

years old when he was last seen by his family. Thus, it is against that backdrop

that the Applicant is seeking for orders of this court to declare him presumed

dead. Making reference to section 122 of the TEA Mr. Oyugi stated that, it is

on the facts presented that this Court is asked to declare him dead. The

learned advocate also asked this court to take inspiration from the English

statute of the Presumption of Death Act of 2013, whereby section 2(l)(b) is

to the effect that even if this court were to rely on the English law that may

be persuasive in our jurisdiction, the same provides for a period of 7 years for

a person to be presumed dead, in this Application the person has been unseen

and unheard of for 40 years.

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The learned advocate then made reference to the cases of Salum Omary

Hamad (Presumed dead) v. Fatma Kitwana Ally Misc. Civil Application

No. 36 of 2022, Chrispine Kajuna (Presumed dead) v. Lucia Msua, Misc.

Civil Application No. 71 of 2021 and In the matter of an Application of

presumption of death of Omary Hassan Dotto Omary Hassan, Misc.

Civil Application No. 45 of 2022 and prayed for this court to make orders

sought for by the Applicant.

Having heard and considered counsel's thorough submission there is only one

issue for this court's determination, that is whether the Application has merits.

As rightly stated by Mr. Oyugi this is a peculiar Application and more so

because in our jurisdiction there is no specific statute to govern how a person

is to be presumed dead or declared presumed dead. For spouses, one can

resort to section 161 of the Law of Marriage Act, Cap 29 RE 2019 (the LMA)

which provides for the presumption of death for the purposes of matrimonial

proceedings. In the current Application the person making the Application is

a son, so clearly the LMA is inapplicable. The provisions that the Applicant has

resorted to in moving this Court are provisions that give powers of general

nature to this Court.

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Furthermore, when submitting counsel referred to section 117 and 122 of the

TEA. Section 117 of the TEA provide as follows:

When the question is whether a man is alive or dead and

it is proved that he has not been heard o f within the
preceding five years by those who would naturally
have heard o f him if he had been alive; the burden
o f proving that he is alive is on the person who asserts it'
(emphasis supplied)

From the above provision it is clear that when those who would have naturally

heard from a person had he been alive have not heard from him in the

preceding five years, then the burden of proving that the said person is alive

is on the person who says he or she is alive.

This court in the case of In the matter of an Application of presumption

of death of Omary Hassan Dotto Omary Hassan (supra) observed that:

71 means therefore, for a court to be able to presume

someone is dead due to his disappearance, there must
be evidence proving that a person alleged to be
dead has not been heard within 5 years by those
who would have naturally heard him, say his
family, relatives and colleagues, if he had been
alive, '(emphasis supplied)

In the present Application, Mohamed Salehe Kaombwe is unheard of and or

from since 1980. In 2016 when it dawned upon his family that he might have

disappeared they began searching for him including using media, that is

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newspapers, television advertisements and blogs as the Applicant has

attached to his Affidavit. As if that was not enough, while this Application was

pending in court, they placed an advertisement in Habari Leo of 18 May,2023

at page 22. Despite the efforts, the said Mohamed Salehe Kaombwe has

neither come forward nor has any other person approached the family with

information of his whereabouts.

When faced with situations akin to the one in the present Application this

court in Salum Omary Hamad (Presumed dead) v. Fatma Kitwana Ally

(supra) and in Chrispine Kajuna (Presumed dead) v. Lucia Msua, held

that five and seven years respectively was enough time to presume a person

declared dead. The person sought to be presumed dead in the Application

before me has been unheard of and from for more than 40 years a situation

similar to what this court was faced with in In the matter of an Application

of presumption of death of Omary Hassan Dotto Omary

Hassan(supra).

In the circumstances and in the absence of any other evidence to the

contrary, the only conclusion that can be drawn is that the said Mohamed

Salehe Kaombwe, might actually be dead.

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 The Applicant also sought for orders to allow him to commence probate and

administration of estates proceedings with regards to the house on Plot No.

191 (House No. 9) on Ifunda Street, Magomeni in Dar es Salaam. In the event,

I grant the Application by declaring the said Mohamed Salehe Kaombwe

presumed dead. The Applicant can proceed to apply for letters of

administration for his father's estate. If he so applies, his application shall be

limited to the property mentioned in this Application, that is the house at No.

9, Ifunda Street, Magomeni.

It is so c,'A~'"'A

Judgment delivered and dated 26th day of June, 2023.

A.A. OMARI

JUDGE

26/ 06/2023

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