QUESTION;

Mr. Gereon Madembwe is the older son of the late Gervas Madembwe, who died at Mwananyamala
Referral Hospital on 6/05/2020. The deceased left behind four other children namely Diana Francis
Madembwe aged 40 years, Geama Francis Madembwe aged 30 years, Peter Francis Madembwe aged 27
years, and Lulu Francis Madembwe aged 6 years. Mr. Gereon tells you that, the deceased left business
and properties which are estimated at 400 million Tsh, located all over Tanzania. He further narrates
that since the demise of their father, no letter of administration has been petitioned because all the
important documents were taken by deceased's brother one Pius Peter Madembwe, that all the time he
has been doing a follow up to trace the documents without any success.

He clarified that during the burial of their father, Peter Madembwe entered into the house and took a
briefcase which had titles of occupancy of the deceased's farms, four vehicle keys, deceased's ATM
cards, two deceased's phones registered for Tigopesa and M-pesa business, and deceased's laptop.
When, he was asked to return those properties, he denied claiming that he wanted to institute a
probate case. However, it is confirmed by all children that since the demise of their beloved father, no
person had ever made an application for grant of probate or letters of administration before any court.

Mr. Gereon informs you further that the deceased's brother wants to sell the farm at Dodoma. He has
further noticed that the payments for stationary, shop, kitchen room and pool table which are at Mbeya
are paid via their father's phone which are in the custody of his brother. Those things are in danger of
being wasted and misappropriated by their uncle to the detriment of the family.

You are now required to provide a concise advice on the steps to be taken by the children to protect the
estate of their father

FACTS
Mr. Gereon Madembwe, the eldest son of the late Gervas Madembwe who passed away at
Mwananyamala Referral Hospital on May 6, 2020, along with his siblings, faces the challenge of
protecting their father's estate, which is estimated at 400 million Tsh and scattered across Tanzania.
Their uncle, Pius Peter Madembwe, took possession of crucial documents and property titles during
their father's burial and has not petitioned for letters of administration despite claiming intentions to do
so.

ISSUES

01.Whether deceased Gervas Madembwe died testate or intestate

02.Whether Peter Madembwe is liable for theft?

03.Whether Peter Madembwe is executor of their own wrong?

04.Whether the children can apply for receiver pending grant?

RULES

Criminal Procedure code [Cap. 20 RE 2022]

Written Laws Miscellaneous Amendments Act No 1 of 2022

Probate and Administration of Estates Act [Cap 352 RE 2002]

Probate and Administration of Estates Rules made under section 9 of Probate Act Cap 352 RE 2002.

Penal Code [Cap. 16 RE 2022]

In the Matter of Estate of the Late Suleiman Ahmed Saeed Ashouqan High Court of United Republic of
Tanzania (Dar es Salaam Subregistry) at Dar es Salaam Miscellaneous Civil Application No. 605 of (2021)

In the matter of the estate of the late francis peter madembwe, miscellaneous civil application no. 359
of (2021) High court of Tanzania Dar es Salaam District registry

In the matter of the estate of the late Peter Gabriel Lyimo High Court of Tanzania, Moshi District
Registry, Probate and administration cause No. 01 of (2021)

David Michael, v. Jones John (PC) Criminal Appeal No. 14 of 2021

Namirimu v. Mulondo & 2 Others(High Court Civil Suit No. 27 OF 2011) [2015]

Raymond Calvin Maamu & 2 Others v. Narindwa Calvin Maamu civil case No 2 of 2021 the High Court
of the United Republic of Tanzania, Dodoma District Registry,

Swalehe Juma Sangawe (as administrator of the estate of the late Juma Swalehe Sangawe) and Hussein
Swalehe Sangawe V. Halima Swalehe Sangawe,Civil Appeal No. 82 of (2021), CAT at Moshi
ANALYSIS

01.Whether the deceased died testate or intestate?

According to the scenario the deceased Gervas Madembwe died intestate as there was no any valid will
left by the deceased person therefore the rule of intestacy should be applicable as provided in the case
of Raymond Calvin Maamu & 2 Others v. Narindwa Calvin Maamu civil case No 2 of 2021 the High
Court of the United Republic of Tanzania, Dodoma District Registry, As to what reliefs the parties are
entitled to, having declared the Will of the deceased invalid and unenforceable, I declare that the
deceased Calvin Aitael Maimu died intestate. For this reason, the rule of intestacy shall take over in the
administration of the deceased's estate. Since there are mandatory requirements to be observed under
the rules of intestacy for anyone to be appointed as an administrator of deceased's estate, the prayer to
appoint DW1 as administrator at this stage is untenable, without fulfilling the requirements of the law.
Parties are advised to maintain peace in the family and to follow proper procedure to appoint
administrator(s) of the deceased estate.

02. Whether Peter Madembwe is liable for theft?

Peter Madembwe is liable for theft as Theft is defined under section 265 of the Penal Code that Any
person who steals anything capable of being stolen is guilty of theft, and is liable, unless owing to the
circumstances of the theft or the nature of the thing stolen, some other punishment is provided, to
imprisonment for seven years, the above provision of the law is more on the punishment for theft, the
elements of theft are clearly stated under section 258(1) of the Penal Code as A person who fraudulently
and without claim of right takes anything capable of being stolen; fraudulently converts to use of any
person other than the general or specific owner thereof anything, capable of being stolen is said to steal
that thing.

The court provided the elements of theft In the case of David Michael, v. Jones John (PC) Criminal
Appeal No. 14 of 2021 for the offence of theft to be proved, the following elements must be established.
First, there must be taking away of the property from the possession of the owner (asportation) or
converting of such property; second, such property must be capable of being stolen; third, the person
taking the property must have an ill motive (fraudulent) of permanently depriving the owner the rights
over that property; fourth, the stolen property must be owned. In other words, there must be proof of
ownership over the stolen property. Therefore, As theft is criminal offence Mr. Pius will be sued after
the remedies have been granted in the civil suit as provided under section 23(3) of Written Laws
Miscellaneous Amendments Act No 1 of 2022 which amended section 4 of the Criminal procedure code
which provides that Notwithstanding subsection (2), where a matter is of a civil, administrative or
criminal nature, as the case may be, exhaustion of the remedies in civil or administrative domains shall
be mandatory prior to the invocation of the criminal process in accordance with this Act. Which means
that If there is a problem that could be handled in a civil, administrative, or criminal way, you must first
try to solve it using civil or administrative methods before turning to the criminal process. Therefore
Peter Madembwe after the exhaustion of other remedies he may sue Pius Madembwe on the criminal
offence of theft.
03.Whether Peter Madembwe is executor of his own wrong?

Mr Peter Madembwe is an executor of his own wrong as he used the deceased properties where there
was no any rightful executor or administrator in the estate of Gervas Madembwe therefore he was
intermeddling with the estate of Gervas Madembwe as he wants to sell the farm at Dodoma. Also they
have further noticed that the payments for stationary, shop, kitchen room and pool table which are at
Mbeya are paid via their father's phone which are in the custody of his brother.

Executor of his own wrong was defined by the court in the Ugandan case of Namirimu v. Mulondo & 2
Others(High Court Civil Suit No. 27 OF 2011) [2015] UGHCFD 48 the court was of the view that an
intermeddler is person who assumes the authority of an executor becomes an executor de son tort
without lawful authority to do so pending the grants of representation. Intermeddling includes assuming
authority to administer the estate of another when a person does not have such authority.

In Tanzania is provided under section 16 which provides that A person who intermeddles with the estate
of the deceased or does any other act which belongs to the office of executor, while there is no rightful
executor or administrator in existence, thereby makes himself an executor of his own wrong: Provided
that(a) intermeddling with the goods of the deceased for the purpose of preserving them or providing
for his funeral or for the immediate necessities of his family or property; or

(b) dealing in the ordinary course of business with goods of the deceased received from another; or

(c) action by an administrative officer under section 14 of the Administrator-General (Powers and
Functions) Act

(d) action by a receiver appointed under section 10,

does not make an executor of his own wrong.

The above section protects an estate of any person after his or her death while there is no rightful
executor or administrator in existence. In doing so, it bars any person from intermeddling with the
estate of a deceased person, subject to provisos (a) to (d) to section 16, while there is no duly appointed
executor or administrator. Any such intermeddler acting without authority is legally known as "executor
of his own wrong." In terms of section 17 of the Act, such an intermeddler is answerable to the rightful
executor or administrator, or to any legatee or creditor of the deceased for his acts detrimental to the
deceased's estate. At this point, we can deduct from section 17 that it is an executor or administrator of
the estate, apart from a legatee or a creditor of the deceased, who can institute an action against such
an intermeddler.This is also provided in the case Swalehe Juma Sangawe (as administrator of the estate
of the late Juma Swalehe Sangawe) and Hussein Swalehe Sangawe V. Halima Swalehe Sangawe,Civil
Appeal No. 82 of 2021, CAT at Moshi

04. Whether the children can apply for grant of receiver pending grant?

The children should make an application for receiver pending grant through chamber summons supported by an affidavit as
their father's property is about to be wasted as their uncle wants to sell the deceased properties and receives the money from
the tenants As provided in the matter of the estate of the late francis peter madembwe, and in the matter of application for
appointment of receiver pending grant of letters of administration by peter francis madembwe , High court of Tanzania Dar es
Salaam District registry ,Miscellaneous civil application no. 359 of 2021 involved the application by Peter Francis Madembwe
for the appointment of a receiver for the estate of his late father, Francis Peter Madembwe. The application was made under
section 10 of the Probate and Administration of Estates Act and Rule 24 of the Probate Rules, as no letters of administration
had been granted due to important documents being taken by the deceased's brother, Pius Peter Madembwe Peter Francis
Madembwe argued that the estate, which includes businesses, properties, and bank accounts, is in danger of being wasted or
misused. He provided evidence that his uncle, Pius Peter Madembwe, had taken documents and was attempting to sell part of
the estate, The court with satisfied with the petitioner's compliance ¹1Francis Madembwe was appointed as the receiver of the
deceased's properties, with the restriction that he cannot sell or dispose of the properties. This order is effective for six months,
during which time interested parties should apply for letters of administration.

A receiver pending grant is a neutral third party appointed by the court to manage and preserve the
assets of a deceased person’s estate until a formal executor or administrator is appointed through the
probate process. This appointment is made to safeguard the estate from potential misappropriation,
wastage, or other risks that might arise during the interim period.In Tanzania is provided under section
10 of the Probate and administration of Estates Act as well as Rule 24 of the Probate Rules. As provided
in the matter of the estate of the late Peter Gabriel Lyimo And In the matter of the Application for
appointment of receiver pending grant of the letters of administration by Gabriel Paul Lyimo Probate
and administration cause No. 01 of 2021 upon application made by Gabriel Paul Lyimo The application
was brought under certificate of urgency by way of Chamber summons and supported by applicant's
sworn affidavit who is nephew of the deceased, Gabriel Paul Lyimo was appointed to receive the
properties of the deceased.

Section 10 provides that where any person dies leaving property within Tanzania, the court may, if it
appears on the application of the Administrator, General or of any person claiming to be interested in
such property or having the custody on control thereof at the time of the death of the deceased or
being at such time an attorney of the deceased, that there is a danger that such property may be
Administrator General or such other person as the Court think fit, to be a receiver of such property
pending a grant of probate or letters of administration wasted, appoint the Administrator General or
such other person as the Court think fit, to be a receiver of such property pending a grant of probate or
letters of administration.Probate and Administration of Estates Act Cap 352 RE 2002

As to how the receiver is being appointed, Rule 24 of the Probate Rules, requires the application for
appointment of receiver under section 10 of the Act to be made by chamber summons supported by an
affidavit stating;

( ) The date of the death of the deceased;

(b) The domicile of the deceased;

(c) Whether the deceased died testate or intestate;

(d) Whether the application for grant of Probate or letters of administration has been made to any court
and if so by whom;

(e) The names and addresses of persons entitled to inherit the estate;
(f) The estimated gross value of the estate;

(g) The description and value of the property in respect of which the application is made.

(h) The reasons for making the application; and

(i)Except where the proposed receiver is the public Trustee or Administrator General, that person
proposed to be appointed as receiver is fit and proper person to be so appointed.

Both Documents are provided under form no 4 which provides for chamber summons and form no 6
which provides for an affidavit which are all provided under First schedule of Probate Rules.

CONCLUSION

It is important to show in the application the necessity to be granted as the receiver pending grant as
provided In the Matter of Estate of the Late Suleiman Ahmed Saeed Ashouqan and In the Matter of an
Application for Appointment of a Receiver Pending Grant of Letters of Administration by Grace Philotea
JoachimIn the High Court of United Republic of Tanzania (Dar es Salaam Subregistry) at Dar es Salaam
Miscellaneous Civil Application No. 605 of 2021 Grace Philotea Joachim applied for the appointment of
the Administrator General as a receiver for the shares of the late Suleiman Ahmed Saeed Al Hoquani in
Katavi Mining Company Limited, The application was made under the Probate and Administration of
Estates Act and relevant rules, The deceased owned 262,173 shares in Katavi Mining Company Limited,
valued at Tshs 26,217,300,000, which have been unadministered since his death, the application cited
section 10 of the Probate and Administration of Estates Act and Rule 25 of the Probate and
Administration of Estate Rules as the legal basis for appointing a receiver, The court noted that the heirs
of the deceased had participated in meetings, contradicting the claim that they were unresponsive, the
court also found several procedural deficiencies in the application, including a lack of demonstration of
the necessity for a receiver and insufficient evidence that the shares were at risk or the estate was
suffering from inaction. The court emphasized that its powers under section 10 are discretionary and
must be exercised judiciously, the application did not meet the required legal standards to justify the
appointment of a receiver.Due to the identified anomalies and failure to satisfy the legal requirements,
the court dismissed the application for the appointment of a receiver for the shares of the late Suleiman
Ahmed Saeed Al Hoquani, citing procedural deficiencies and lack of sufficient justification. The ruling
highlighted the importance of fulfilling legal requirements and demonstrating the necessity for such
discretionary orders.