IN THE COURT OF APPEAL OF TANZANIA

AT MOROGORO

f CO RAM: MKUYE, J.A.. KAIRO. J.A. And MLACHA. J.A.1

CIVIL APPEAL NO. 686 OF 2023

MIRAJI SALIMU NYANGASA.......................................................APPELLANT

VERSUS
RAMADHANI OMARY SEWANDO (As Administrator of
Estate of the Late HUSSEIN OMARY SEWANDO)...................... RESPONDENT

(Appeal from the Judgment and Decree of the High Court of Tanzania
(District Registry) at Morogoro)

(Nqwembe. J.^

dated the 29nd day of November, 2021

in

Civil Appeal No. 01 of 2021

JUDGMENT OF THE COURT

10th June & 17th September, 2024

MLACHA. J.A.:

This appeal is going to examine the law, practice and procedure of

probate and administration of estates in Primary Courts. It originates from

the Primary Court of Morogoro District at Urban Court in Probate and

Administration Cause No. 217 of 2020. It is in respect of the estate of the

late Hussein Omari Sewando who died on 01/05/2020 at Kihonda within

Morogoro Municipal, Morogoro District. He left behind a wife, Nusrat @

Flora John Masasi but later, during the probate proceedings, the
appellant, Miraji Salum Nyangasa, appeared and claimed to be the first

wife of the deceased. The Primary Court found that there was a marriage

between the appellant and the deceased but it had ceased to exist due to

long separation. It appointed the respondent to be the administrator of

the estate of the deceased which comprised of the following assets: (i) 3

Motor Vehicles (one defective) - Toyota Hiace, 2 Toyota Double Cabins;

(ii) NMB A/C No. 22102516185 and (iii) 2 Houses (at Msamvu and at

Kihonda). It recognised Nusrat @ Flora and 4 children as the lawful heirs

of the deceased. The appellant was left aside.

The appellant did not see justice in the decision of the Primary Court

and accessed the jurisdiction of the District Court of Morogoro by way of

revision in Miscellaneous Application No. 36 of 2020. It is not clear why

the District Court entertained the revision given the fact that the appellant

participated in the proceedings at the Primary Court. The decision of the

Primary Court was upheld by the District Court. A further appeal to the

High Court in Civil Appeal No. 1 of 2021 could not bear any fruits. Still

undaunted, the appellant is now before the Court on a third appeal. For

reasons which will be apparent soon, we shall not reproduce the grounds

of appeal.

2
 The appellant was represented by Mr. Marwa Masanda, learned

advocate, whereas the respondent had the services of Mr. Kisawani

Mandela, also learned advocate.

At the onset, the Court needed to satisfy itself with procedural issues

hence, called the leaned counsel to address it on the following issues:

1. Whether the procedure adopted by the Primary Court in

conducting o f the petition was correct
2. Whether there is any variation between the judgment and
proceedings o f the Primary Court and if so, what are the
effects.

On taking the floor, Mr. Masanda submitted that the procedure

adopted by the Primary Court was contrary to the Law. Amplifying, he

contended that save for the respondent, all other witnesses did not take

an oath before giving evidence. He went on to submit that there is a

variation between the judgment and proceedings of the primary court. In

elaboration, he contended that the judgment discussed things which are

not reflected in the proceedings. On the way forward, he urged the Court

to use its powers of revision to nullify the proceedings and vacate the

decisions of the lower courts and order retrial.

On his side, Mr. Mandela conceded that the procedure adopted by

the Primary Court was irregular because witnesses did not take oaths
before giving evidence. Citing our decision in Iringa International

School v. Elizabeth Post, (Civil Appeal No. 155 of 2019) [2021] TZCA

496 (20 September, 2021) TanzLII which interpreted the provisions of

section 4A of the Oath Statutory Declaration Act, he contended that it was

mandatory for the witnesses to take an oath or affirmation before giving

evidence. He argued that, the omission vitiated the evidence rendering it

a nullity. He went on to submit that the judgment discussed points which

were not raised in the evidence. He equally invited the Court to nullify the

proceedings and decisions of the lower courts and order retrial before

another magistrate.

We had time to peruse the record of appeal and consider the

submissions of learned counsel on the issues pointed out by the Court.

We think, for a better understanding of the problem before the Court, we

should reproduce the proceedings and judgment of the Primary Court

appearing at pp. 4 - 15 of the record of appeal. They read thus:

"MWENENDO

6/ 8/2020
Mbele ya A. Joshua - HAKIMU
Washauri:-1. Mkiiiia
2. Mzigila
Mwombaji - Ramadhani Omary Sewando

4
Ndugu - Hawapo
Ombi la kuteuliwa kuwa msimamizi wa
mirathi.
Mahakama

Shauri Utangazwe kwenye gazeti na kupangiwa

tarehe ya kusikiHzwa,
Amri: -

Shauri Htasikilizwa tarehe 6/10/2020 upande wa

maombi. Matangazo yatoiewa Hi kiia mwenye
kuhusika mirathi hii aweze kuhudhuria, na
mwenye pingamizi aiete kabia ya tarehe
6/10/2020.

WASHAURI

1. Mkiiiia
2. Mzigiia
A. Joshua - HAKIMU
sgd
6/ 8/2020

6/ 10/2020
Mbeie ya A. Joshua - HAKIMU
Washauri:-1. Mzigiia
2. Juma

Mwombaji - Ramadhani Omary Sewando - yupo

Ndugu - wapo

A. Joshua - HAKIMU
Sgd
6/ 10/2020

5
Amri

Shauri HnasikMzwa upande wa maombi kwa kuwa

hakuna mgogoro wa pingamizi lililojitokeza mpaka
sasa.

A. Joshua - HAKIMU
Sgd
6/10/2020

SMI RAMADHANI OMARY SEWANDO 82,

MKUTU, DAR SALAAM, anaapa anasema,
nimekuja kwa ajili ya mirathi ya marehemu
HUSEEIN OMARY SEWANDO hivyo nimekuja
kuomba Mahakama initeue kuwa msimamzi wa
mirathi hii, marehemu alifariki tarehe 01/05/2020
na kikao cha kuniteua kilikaa mara ya baada ya
kumaiiza msiba tarehe 08/06/2020. Marehemu
aiikuwa anaishi Kihonda Morogoro, aiifariki katika
hospitali ya Mkoa wa Morogoro. Marehemu
hakuacha wosia, ameacha Watoto 4 na mke
mmoja. Wazazi wake waiishafariki. Aiiacha Watoto
ambao ni Habiba Hussein 30yrsf Sabrina Hussein
Sewando 28yrs/ Nasra Hussen Sewando 26yrsf
Nuru Hussein Sewando 21yrs/

Marehemu pia aiiacha mali zifuatazo:-

1. Magari matatu 3. Mawiti mazima moja

bovur Hiace 1, Toyota dabo Kebini 2.

6
 2. Akaunti ya Benk ya NMB 22102516185
3. Nyumba 2, moja ipo Msavu na nyingine
Kihonda.

Warithi.

Kibwana Omary Sewando 60 yrs, mimi ni kaka wa

marehemu, sina pingamizi Iolote, nipo tayari yeye
awe msimamizi wa mirathi hii.

Flora John Masasi 45 yrs, mimi ni mke wa

marehemu>sina pingamizi iolote juu ya mwombaji
asimamie tu.

Habiba Hussen Sewando 30 yrs, mimi nimtoto wa

marehemu, sina pingamizi Iolote juu ya muombaji
asimamie tu.

Nasra Hussein Sewando 26 yrs, mimi ni mtoto wa

kufikia wa marehemu, mwombaji ni mdogo
wangu. Sina pingamizi iolote nipo tayari awe
misimamizi.

Miraji Sa/um 52 yrs, a/ie/eza kuwa

marehemu ni mume wangu na nina swali
kwanini nyumba ya Kihonda haikutajwa?
Naye muombaji atijibu kwamba tangu
zamani marehemu a/impatia nyumba hiyo
Habiba mtoto wake mkubwa na famiiia
inajua. Nimeafiki swaia na pia nakubaii

7
mwombaji ateuliwe kuwa msimamizi wa
mirathi hii.

Nuru Omary Sewando 59 yrs, alieleza kuwa

marehemu ni kaka yangu naafiki muombaji
kusimamia mirathi hii.

Nuru Hussen Sewando 21 yrs marehemu ni baba

yangu naafiki mwombaji ateuliwe.

Maria Masud Seleman 36 yrs, marehemu ni

mjomba wangu. Nami naafiki muombaji
kusimamia mirathi.

WASHAURI

Nia yangu ya kufungua mirathi hii ni kukusanya

maii za marehemu kuzigawa kwa warithi, hasa
akaunti ya benki inahitaji kufungwa.

A. Joshua - HAKIMU
Sgd
6/ 10/2020
MAHAKAMA
Kwa kuwa hakuna pingamizi ioiote, shauri
iimefungwa upande wa maombi, shauri hadi saa
8:30 pm kusomwa hukumu.

A. Joshua - HAKIMU
Sgd
6/ 10/2020

8
 HUKUMU

....Marehemu enzi za uhai wake alikuwa anaishi

Kihonda, Morogoro na alikuwa muumini wa dini ya
Kiisfam. Marehemu aliacha wosia, lakini hata
hivyo ulipokaguliwa ulionekana kutokuwa
na vigezo vya wosia, kwani ulionekana
uiiandikwa na marehemu pekee hakukuwa
na shuhuda yoyote wala mashahidi hivyo
kuifanya mahakama hii kutupih'a mbali wosia huo.
Pia marehemu hakuacha wazazi wake wote
walishafariki. Pia aliacha mke mmoja aitwaye Flora
John Masasi, hapa ndipo Hipoibuka hoja ya
Miraji Saiumu atiyedai kuwa yeye pia ni mke
wa marehemu jambo ambaio iiiipingwa
vikaiina ndugu wa marehemu lakini alieleza
kwamba alifunga ndoa mwaka 1991, ndoa
ya kiserikali na kubahatika kupata mtoto
mmoja. Pamoja na hilo alileta cheti cha ndoa
kilichothibitisha hilo\ hata hivyo upande wa ndugu
wa marehemu walishindwa kuthibitisha kuwa
Miraji Saiumu hakuwa mke wa marehemu kwani
hakuna hati ya talaka waliyoieta kuthibitisha hilo
na hivyo kuifanya Mahakama hii kuamini kuwa
Miraji Saiumu ni kweli alikuwa mke wa marehemu
lakini walitengana kwa takribani miaka 25 ni
sawa na kusema kuwa ndoa hii Hishakufa zamani
kwani moja ya sababu ya ndoa kuvunjika ni
 utengano wa muda m refu... Flora John Masasi
ndiye mke halali wa marehemu... Hivyo basi
marehemu aliacha mke mmoja (Flora John
Masasi) na watoto wanne (4).
1. Habiba Hussein Sewando 30 years.
2. Sabrina Hussein Sewando 28 years.
3. Nasra Hussein Sewando 26 years.
4. Nuru Hussein Sewando 21 years.
Marehemu aliacha mali zifuatazo:
1. Magari matatu, mawiii mazima moja bovu,
Hiace 1, Toyota double cabin 2.
2. Account Bank NMB 22102516185.
3. Nyumba 2 moja ipo Msamvu na nyingine
Kihonda"
AMRI YA MAHAKAMA
1. Muombaji ameteuliwa kusimamia mirathi hii
atajaza fomu No.IIIakiwa na wadhamini wawiii
Hi aweze kushughulikia mirathi.
2. Muombaji ataieta taarifa ya orodha ya mali za
marehemu Fomu No. 5 tarehe 21.11.2020.
3. Muombaji ataieta mgawanyo wa mali za
marehemu kwenye Fomu IV aiizogawa kwa
warithi halali tarehe 22.12.2020 Hi shauri
iifungwe."
(Emphasis supplied)

Apart from what was pointed out by learned counsel, which we

acceded, we see other shortcomings in the proceedings and judgment of

10
the Primary Court calling for an examination of the law and procedure in

details, for future guidance. We plan to start with jurisdiction.

The jurisdiction of Primary Courts in probate and administration of

estates is provided by section 19 (1) of the Magistrates' Courts Act, (Cap

11 R.E. 2019) (the MCA) which states thus:

n19.-fl) The practice and procedure o f primary

courts shall be regulated and, subject to the
provisions o f any iaw for the time being in force,
their powers limited -

(a) N/A
(b) N/A
(c) in the exercise o f theirjurisdiction, in
the administration o f estate, by
the provisions of the Fifth
Schedule to the Act;

and, in matters o f practice and procedure, by

rules o f court for primary courts which are not
inconsistent therewith; and the said code and
schedules shall apply thereto and for regulation
o f such other matters as are provided for therein."
(Emphasis added)

The import of the above provision is that, the jurisdiction of Primary

Courts in probate and administration of estates is exercised under the

li
Fifth Schedule to the MCA and rules of court for Primary Courts which are

not inconsistent with the Fifth Schedule. The rules of Primary Court

referred to under this section are those which were made under the

Magistrates' Courts Act 1963 and served by section 72 (3) of the MCA

which reads; "Any applicable regulations made under the Magistrates'

Courts Act, 1963, and in force to the date upon which this Act comes into

operation, shall remain in force as if they have been made under this Act

until such time as they are amended or revoked by rules made under this

A ct" The rules/regulations referred to in section 72 (3) of the MCA are;

(i) The Primary Courts (Administration of Estates) Rules, GN 49 of 1971

(the Administration of Estates Rules), (ii) The Magistrates' Court (Civil

Procedure in Primary Courts) Rules, GN 310 of 1964, (iii) The Primary

Court Evidence Rules, GN 22 of 1964, and (iv) The Customary Law

(Limitation of Proceedings) Rules 1964, GN 311 of 1964. The Primary

Court may also apply rules made under the Second Schedule (Sheria za

Urithi) to the Local Customary Law (Declaration) No.4 Order 1964, GN No.

436 1964, (made under section 11 of the Judicature and Application of

Laws Act, Cap 1 R.E. 2019). These laws apply to the Primary Court in the

exercise of its jurisdiction in probate and administration of estates but

12
subject to the Fifth Schedule. It means that, in case of conflict, the Fifth

Schedule takes precedence.

Rule 1 (1) of the Fifth Schedule gives the Primary Court power to

administer the estate of the deceased where the law applicable is

Customary or Islamic law and where the deceased, at the time of his

death, had a fixed place of abode within the local limits of the court's

jurisdiction. The local limits of the jurisdiction of the Primary Court is not

the ward or division it serves, but the area of the district within which the

court is established. See section 3 of the MCA. So the deceased must have

had a place of abode within the district in which the court is established.

Rule 1 (2) (a) of the Fifth Schedule restricts the application of the Probate

and Administration of Estates Act, [Cap. 352 R.E.2002] in Primary Courts.

It also restricts to conduct proceedings where administration is

undertaken by the Administrator General under the Administrator General

(Powers and Functions) Act, [Cap.27 R.E. 2002]. In the latter category, it

means that, under whatever circumstances, the Primary Court cannot

appoint the Administrator General to administer an estate of the deceased

in proceedings before it.

The Primary Court has power under rule 2 of the Fifth schedule to

appoint and revoke appointments of administrators. It has power to

13
control the process, but is not expected to interfere with the functions of

the administrator who must work independently. See the decision of the

High Court made in Ibrahim Kusaga vs Emanuel Mweta [1984] TZHC

8 (16 April 1984) which we subscribe.

Apart from the primary function of appointing administrators,

revoking the appointments and controlling the process, other functions of

the Primary Court are contained under rule 8 of the Administration of

Estates Rules. They read thus:

"8. Other matters to be decided by the court

Subject to the provisions o f any other law for the
time being applicable, the court may, in the
exercise o f the jurisdiction conferred on it
by the provisions of the Fifth Schedule to
the Act, but not in derogation thereof, hear
and decide any o f the following matters\ namely -
(a) whether a person died testate or
intestate;
(b) whether any document alleged to be a
will was or was not a valid or subsisting will;
(c) any question as to the identity o fpersons
named as heirs, executors or
beneficiaries in the will;

14
 (d) any question as to the property, assets
or /labilities which vested in or lay on the
deceased person at the time o f his death;
(e) any question relating to the payment
o f debts o f the deceased person out o f his
estate;
(f) any question relating to the sale,
partition, division or other disposal o f
the property and other assets comprised in
the estate o f the deceased person for the
purpose o f paying o ff the creditors or
distributing the property and assets among
the heirs or beneficiaries;
(g) any question relating to investment o f
money forming part o f the estate; or
(h) any question relating to expenses to
be incurred on the administration o f the
estate."
(Emphasis added)

Issues coming under rule 8 must be entertained as interlocutory

matters. They must be raised and decided before the probate or

administration is closed.

The rules are silent on when should the petition be filed in court.

There is a gap in this area which has been a subject of abuse with some

people filing petitions after years with an evil mind thereby disturbing

15
harmonious relations in the society. We think we should borrow a leaf

from section 31 (1) of the Probate and Administration of Estates Act, Cap

445 R.E. 2002 to fill in the gap. In that section it is provided that, in any

case where probate or administration is for the first time applied for after

expiration of three years from the date of the death of the deceased,

the petition shall contain a statem ent explaining the delay. We think

that, where the statement is found to have no sound reasons, the court,

in its discretion, can decline to entertain the petition. See the decision of

this Court in Mwaka Musa vs Simon Obeid Simchimba, (Civil Appeal

No. 45 of 1994) [1995] TZCA 56 (6 November, 1995) TanzLII.

Next is the actual practice. Ordinarily, the matter will start with the

clan/family meeting. This meeting originates from rule 6 of the Second

Schedule (Sheria za Urithi) to The Local Customary Law (Declaration)

Order 1963, GN 279 of 1964. Rule 6 states; "Baaada ya matanga watu wa

ukoo hukusanyika na kuhesabu urithi na kushauriana juu ya madai na

madeni yote aiiyokuwa nayo marehemu, "This literally means that, after

burial the clan will sit to deliberate on issues touching the assets and

liabilities of the deceased. This was later developed, through precedents,

to include the element of proposing a fit person to administer the estate

of the deceased. It is a meeting of close family members which may be

16
comprised of the father, mother, brothers, sisters, uncles and aunts of the

deceased. Relatives of the wife may also be invited. It is an important

forum which is encouraged because it assists in filtering issues and reduce

future tensions in court. If this forum is used properly, it can make the

business of the court easier at the later stage; during the appointment of

the administrator or executor of the will, identification of heirs,

identification of assets of the deceased and the choice of the applicable

law. But, where for some reasons, the clan/family have failed to meet, or

have met but a person, let say the wife or a child of the deceased, has

been excluded from the meeting, he can still come to court by way of

objection and get his right. And if no petition is filed, he can obtain a

referral letter from the local authority explaining why the clan/family

meeting did not include him. In such a situation, the court if satisfied with

the information contained in the letter, it should allow him to file the

petition. The court may require an affidavit to accompany the letter. See

the position set by the High Court in in Hadija Saidi Matika vs Awesa

Saidi Matika, PC Civil Appeal No. 2 of 2016 (unreported) and Shabani

Musa Mhando vs Ester Msafiri Mhando, (Probate and Administration

Cause No. 75 of 2020) [2021] TZHC 677 (16 July, 2021) TanzLII which

we subscribe.

17
 Once a person is in possession of the minutes of the clan/family

meeting duly signed or a letter from the local authority and an affidavit

as the case may be, he will fill Probate Form No. I as required by rule 3

of the Administration of Estates Rules. It is important here to note that

the scheme is regulated by 6 forms available in the Schedule to the

Administration of Estates Rules which must be used. These forms regulate

the process from the beginning to the end. See Hadija Matika (supra),

William Simon Chuwa vs Cosmas Joseph Massawe, (Probate

Appeal No. 3 of 2022) [2022] TZHC 13367 (28 September, 2022) TanzLII,

Jonathan K. Ngomero v. Esther Julius, (PC Probate Appeal No. 10 of

2020) [2021] TZHC 3177 (12 May, 2021) TanzLII and Bernard Serikali

v. Valerius Thomas Munegena, (PC Probate Appeal No. 69 of 2022)

[2022] TZHC 13469 (5 October, 2022) TanzLII, decisions of the High

Court which we subscribe.

Form No. 1 will lead the petitioner to provide the following

information to the court: (i) the name of the petitioner, his address and

why he is seeking to be appointed; (ii) the name of the deceased, the

date of death and his last place of abode; (iii) the will of the deceased

and name of the executor, if any; (iv) the list of relatives of the deceased

18
and their relation to him; (v) the list of assets of the deceased and their

estimated value; (vi) tribe and religion of the deceased.

The information provided in Form No. I will lead the magistrate to

check his jurisdiction up front. This will be known by a look at the last

place of abode of the deceased, his tribe and religion. This will give him a

hint on territorial jurisdiction and whether Customary or Islamic laws are

applicable. The name of the petitioner the list of relatives and their

relation with the deceased and list of assets will be useful to people who

has an interest in the estate of the deceased. It is thus important to fill

this form carefully.

Following the procedure contained under the Magistrates Courts

(Civil Procedure in Primary Courts) Rules, the magistrate will insert the

Coram of the day in the presence of the petitioner, and make on order

directing the citation of the petition. This is usually done ex parte. The

citation is done in Form No. II. It must be published in a newspaper with

wide circulation and affixed at the court building and other public buildings

in the locality which may include the street, village or ward offices. The

court may also issue personal summons to people whose names appear

in Form No. I being heirs or relatives of the deceased. Publication and

service of summons must be done carefully to ensure that the information

19
circulate and reach all the people who have an interest in the estate of

the deceased. The rules do not contain a fixed period in which the

publication should stand. But it should not be hurried for obvious reasons.

The High Court in Hadija Matika (supra) suggested a minimum period

of 4 weeks. We think we should adjust it to be 30 days. This means that,

the gap between the date of publication in the newspaper and the date

when the court will convene again should not be less than 30 days. We

hold this view because, as was said by the High court in Hadija Matika

(supra), quick appointments are dangerous and are the source of many

complaints in probate and administration cases. See also the decision of

the High Court made in Beatrice Brighton Kamanga and Another v.

Ziada William Kamanga, (Civil Revision No. 13 of 2020) [2020] TZHC

1428 (10 July, 2020) TanzLII. A smart magistrate will thus fix a mention

date ahead of his order of citation and fix the hearing date at a later stage.

After receiving proof of publication and being satisfied that it was

properly done, the case will move to the hearing stage. If there is an

objection to the petition, it must be attended at an early stage. Objections

may be on the appointment of the petitioner or any other issue; the most

common being on the list of heirs, assets of the deceased and validity of

the will. Ordinarily, objections are resolved before the hearing of the

20
petition but, given the simplicity of procedures at the Primary Court and

the need for an early determination of the petitions, an objection to the

appointment of the petitioner can be combined with the petition and be

heard together. See Hadija Matika (supra). If this practice is opted, the

petitioner will take an oath and present his case stating why he thinks he

is the fit person to administer the estate. His witnesses will follow. The

objector will come in as a respondent and adduce evidence to show why

the petitioner is not the fit person but him or some other person. He may

also bring witnesses to support him.

Where the objection is on the will, the list of heirs, the list of assets

of the deceased or the wife of the deceased, it must be heard separately

at an early stage, unless the objector does not object the appointment

Where it is based on the legality of the wife, as was in this case, the court

may apply the Law of Marriage Act, Cap 29 R.E. 2002 to resolve the issue.

See the decision of the Court in Hamisi Saidi Mkuki vs Fatuma Ally,

(Civil Appeal No. 147 of 2017) [2018] TZCA 341 (19 November, 2018)

TanzLII, where the presumption of marriage contained under section 160

of the Law of marriage Act was used to establish that the respondent

(Fatuma Ally) who had lived with the deceased for 9 years under the same

roof had attained the status of a wife. See also Mariamu Juma vs Tabea

21
Robert Makange, (Civil Appeal No. 38 of 2009) [2016] TZCA 736 (29

January, 2016) TanzLII and Stephen Maliyatabu and Another vs

Consolata Kahulananga, (Civil Appeal No. 337 of 2020) [2023] TZCA

132 (22 March, 2023) TanzLII. Depending on which law is applicable, the

Law of the Child Act may be invited to resolve issues of legality of children.

It is important that all objections must come in writing or if the

objector does not know how to read and write, they can be reduced in

writing by the clerk or some other person in attendance and not the

magistrate. The magistrate should not assist to write the objection to

avoid future complaints. Once written, it will be received formally by the

magistrate, read in open court and put as part of the record.

Where there is no objection to the appointment, the petitioner will

appear with his witnesses who must necessarily be among those who

attended the clan/family meeting, to support the appointment. Hearing

will be done ex parte.

In all scenarios, the court will follow the procedure outlined under

rules 46 and 47 of The Magistrates' Courts (Civil Procedure in Primary

Courts) on taking and recording of evidence: (i) hearing will be done in

open court in the presence of the parties and other interested parties; (ii)

witnesses will take an oath or affirmation before giving evidence; (iii) a

22
witness shall first be questioned by the party who calls him and then be

cross examined by the other party; and (iv) the court may also put

questions to witnesses. See the proviso to section 19 (l)(c) of the MCA

and rule 11 of GN 49 of 1971.

Once hearing is complete, the Primary Court will exercise its

jurisdiction under rule 2 (a) of the Fifth Schedule to make the appointment

based on the evidence received. The emphasis here is that the court can

appoint any person in possession of qualifications stated in rule 2 (a) and

(b) of the Fifth Schedule. The person coming from the clan/family will not

have better qualifications than the objector. The court can appoint him,

the objector or any other person other than the Administrator General.

In Julius Peter Nkonya (as legal representative of the late Canisius

Ng'wandu Mbusa) vs William Michael Kudoja, (Civil Appeal No. 133 of

2021) [2024] TZCA 397 (5 June, 2024) TanzLII, the Court subscribed to

the decision of the High Court made in Sekunda Mbwambo vs Rose

Ramadhani [2004] TLR 439 where it was stated thus:

" ... The administrator must come from

amongst beneficiaries of the estate, but he
has to be very careful and impartial in the way he
distributes the estates. Furthermore, it must by
now be very obvious to aii, such an administrator
23
 must be a person who is very dose to the
deceased and can therefore/ easily identify
the properties o f the deceased. He must also
have the confidence of ait the beneficiaries or
dependants o f the deceased. Such a person may
be the widow, or widows, the parent or child
o f the deceased or any other dose relative
o f the deceased. I f such people are not available
or if they are found to be unfit in one way or
another, then the court has the powers to appoint
any other fit person or authority to discharge
this duty.
"(Emphasis supplied)."

See also decisions of the High Court made in Kipara Mediri v. Laison

Mediri (PC Civil Appeal No. 14 of 2021) [2022] TZHC 14764 (24

November, 2022) and Seifu Mara re vs Mwadawa Salum [1985] TLR

253 and Hadija Saidi Matika (supra) which we subscribe.

Once appointed, the administrator will execute an administration

bond in Form No. III. His appointment will be made in Form No. IV. There

would be no grant of administration unless security for the due

administration is done in Form III. See rule 2 (e) and (f) of the Fifth

schedule to the MCA and rule 7 (2) of GN 49 of 1971.

24
 There is a confusion in the application of Forms Nos. Ill and IV

because the rules say that the grant is done in Form No. Ill and security

for due performance is done in Form No. IV but in practice, security is

done in Form No. Ill and the grant is done on Form No. IV. See rule 7(1)

(2) and (3) of GN 49 of 1971. See also the remark of the High Court in

Hadija Said Matika (supra). We suggest that the Rules Committee of

the Judiciary must come in to harmonize the provisions.

We will now move to explain the functions of the administrator. The

functions of the administrator are contained under rule 5 of the Fifth

Schedule which states:

"5. An administrator appointed by a Primary Court,

shall with reasonable diligence, collect the
property of the deceased and the debts that
were due to him, pay the debts o f the
deceased and debts and costs of the
administration and shall, thereafter, distribute
the estate o f the deceased to the persons or for
the purpose entitled thereto, and, in carrying out
his duties, shall give effect to the directions
o f the Primary Court". (Emphasis supplied).

The plain meaning of the above excerpt is that, the primary function

of the administrator is to collect the assets of the deceased, pay the debts

25
(if any) and distribute the balance (if any) to the heirs of the deceased. It

is also provided that he is subject to the direction of the Primary Court.

See the decision of the High Court in Betrice Brighton Kamanga and

Amanda Brighton Kamanga, (supra) on functions of the administrator,

for which we subscribe.

The administrator of the deceased estate, once appointed, step into

the shoes of the deceased as his legal personal representative, to act with

all powers like the deceased, independently without being interfered by

anybody, subject only to the law and directives of the court. He has power

to deal with the assets of the deceased in the best way, as he can deem

fit, without being interfered by anybody including the heirs. See

Mohamed Hassani vs Mayasa Mzee and Mwanahawa Mzee, (Civil

Appeal No. 20 of 1995) [1998] TZCA 4 (19 March, 1998) TaznLII, Omary

Yusuph (as Legal Representative of the late Yusuph Haji) vs

Albert Munuo, (Civil Appeal No. 12 of 2018) [2021] TZCA 605 (25

October, 2021) TanzLII and Aziz Daudi Azizi vs Amin Ahmed Ally and

Another, Civil Appeal No. 36 of 1990 (unreported).

Despite the wide powers and independence of the administrator,

taking into account his fiduciary relationship with the heirs and the

beneficiaries, it is advisable that he must consult them before making the

26
distributions. This will minimize or remove objections to his reports. See

Joseph Sumbusho vs Mary Grace Tigerwa and 2 others, (Civil

Appeal No. 183 of 2016) [2020] TZCA 1803 (6 October, 2020) TanzUI.

At the end of the transactions, the administrator will present his

inventory containing all the assets of the deceased in Form No. V.

Thereafter, or side with Form No. V, he will submit Form No. VI exhibiting

his proposal on how to distribute the estates of the deceased to the heirs.

As intimated in the decisions of the High Court, for which we subscribe,

the heirs of the deceased under customary law are the wife/husband, the

children and parents of the deceased. By parents we mean the actual

parents (father and mother), not uncles and aunts. Parents are heirs

because in most of our communities, once aged, a father or mother falls

under the protection of his children to the end of his or her life. Uncles,

aunts, brothers and sisters of the deceased are not heirs and should not

get any shares save where the heirs, for reasons which must be put in

writing, have consented that some property or money can be given to him

or her.

The follow up question now is what should be allocated to each

heir? Generally speaking all hers are equal and must be given equal shares

save that, the wife of the deceased, given her special position in the

27
family, must, as a matter of fairness, be given more. How much should

be given to the wife will depend on special circumstances of each case,

but we think a portion equal to 1/3 of the estate, must be allocated to the

wife or wives of the deceased. That done, the rest of the estate may then

be distributed to the remaining heirs on equal shares. Where there are no

children or parents of the deceased, all the assets must go to the surviving

spouse, and in case there is none, they can now go to the relatives of the

deceased depending on proximity.

There is the question of children born out of wedlock which is likely

to arise. The Law of The Child Act 2009 and international instruments

must be taken into account when dealing with this question. The rule is

that, all children are born equal and have a right to inherit from their

parents without discrimination. See Article 2 (1) of The United Nation

Convention of the Rights of the Child 1989 to which Tanzania is a

signatory. Sub article (2) requires state parties to take all appropriate

measures to ensure that the child is protected against all forms of

discrimination or punishment on the basis of status, activities, expressed

opinion or belief of the children's parents, legal guardians or family

members. The Law of the Child Act, 2009 was enacted in compliance with

this requirement.

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Sections 5(2) and 10 of the Law of the Child Act state thus:

"5 (2) A person shall not discriminate against

a child on the ground o f gender, race, age,
religion, political opinion, health status, customs,
ethnic origin ... birth...

10. A person shall not deprive a child o f

reasonable enjoyment out o f the estate of
parent"
(Emphasis added)

The word "parent" is defined in section 3 to mean:

"a biological father or mother, the adoptive

father or mother and any other person under
whose care a child has been committed."

What is important therefore is not whether the child was born out of

wedlock or not, but whether the deceased recognized him as his child

before his death. Recognition may be done in many ways; including

introduction to the wife, grandparents, uncles, aunts or the other children

of the family. If there is this evidence, then the child must be included in

the list of heirs and get his share of the estate. The law is wider and cover

adopted children and children who have been committed to live with the

deceased under his care. To the last phase, we think there must be a

qualification. The rule should not be extended to children of relatives who

29
were living with the deceased for a specific purpose, e.g. education or

visitors.

There is also the question of when should Islamic law apply. The

Primary Court has jurisdiction to apply Customary and Islamic Law as

intimated above. Whereas customary law cut across for all, Islamic Law

is applicable to Muslims only. It is applicable where there is evidence that

the deceased intended his estate to be administered under Islamic Law.

This is usually expressed by a will or through his way o f life. Heirs may

also agree that it should apply. Faced with the question of choice of law,

between Islamic law and the Indian Succession Act, in a case originating

from the High Court, the Court had this to say in Hamisi Saidi Mkuki vs

Fatuma Ally, (supra).

"... the manner the deceased lead his life;

living with the respondent for nine years with two
issues o f the relationship without solemnizing the
civil relationship in accordance with Islamic law
which according to the appellant and Rashid
Saium (DW3) was forbidden and was tantamount
to "not living in Islam "... a lovish life not within
the tenets o f Islam. ... We agree that given the
way the deceased ied his life; exhibited by
living with the respondent for nine years and
having two children with her as well as living a
30
 lovish life which was not in line with Islam,
the proper applicable law should have been the
Indian Succession Act."

Where there is a desire of the deceased expressed through a will or

his way of life or where all heirs have reached an agreement that Islamic

law should apply, the court must direct the administrator to administer

the estate according to Islamic law. See decisions of the High Court in

Hadija Saidi Matika (supra), Betrice Brighton Kamanga and

Amanda Brighton Kamanga (supra) and Mwajina Abdul Magumo

vs Mwanahawa Magumo, (Civil Appeal No.74 of 2004) [2005] TZHC

235 (16 February, 2005) TanzLII which we subscribe.

Finally is the closure of the administration. The administrator having

filed his reports in Forms No. V and VI, the court has a duty under rule 10

(2) of GN 49 of 1971 to inform the creditors, heirs or the beneficiaries of

the estate of the filing of the reports and the move to close the

administration. To accomplish this duty, the court must issue a summons

to heirs, debtors and creditors to appear before it on a date fixed in the

summons to register their no objection to the reports. Once in attendance,

the magistrate will supply copies of the reports to them for their perusal

before inviting them to make a response. If they are not represented and

31
or are illiterate, the magistrate will read and explain the contents of the

reports to therm. In both situations, the magistrate will ask them if there

is any comment or objection to the reports.

Parties must be made aware that, much as the administrator is an

independent person who must work without being interfered but his

reports are not without question. They can be objected by creditors, heirs

or beneficiaries of the deceased's estate if they will be found to contain a

false Information or a distribution which is unfair or fall to include an heir

in the distributions; If it is objected, the objection must be in writing and

filed in court. The court will then invite the objector to state his case;

adducing evidence to prove what he is saying. The administrator will be

called to make his defence. The court will make a ruling on issues raised.

If it will find a false information, an unfair distribution or a failure to

include an heir in the distributions, it will desist to approve the reports

and return them to the administrator with a direction to make corrections.

The administrator will make the corrections as directed by the court and

file the reports again. The direction is made under rule 5 of the Fifth

Schedule and is binding on the administrator. It must be complied with.

Failure to comply with the directive is a ground of revocation. See the

position in the decisions of the High Court made in Ndeshukurwa

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Elisaria Msuya vs Miriam Steven Mrita, (Misc. Civil Application No. 66

of 2019) [2021] TZHC 6923 (27 October, 2021) TanzLII and Betrice

Brighton Kamanga and Amanda Brighton Kamanga (supra) which

we subscribe.

Once the reports in Form No. V and VI are approved, the court will

make an order closing the administration and discharging the

administrator. It is important that this order is made or else the matter

will remain pending endless contrary to public policy which require

litigation to have an end. That marks the end of the probate and

administration.

The order of the court closing the administration has the finality

effect; it renders the court functus officio. The magistrate cannot reopen

the matter again save on review. Any aggrieved party may therefore

challenge the order before the district court by way of revision or appeal

depending on whether he was a party in the proceedings or not.

It is worthy stating at this stage that we don't have endless

administrations in our schemes. Administration has a starting point which

is the date when Form No. I was presented to the court and an end which

is the date when the matter is marked closed. Equally, we don't have life

administrators or people who hold the assets of the deceased on behalf

33
of others for life. The administrator must finish his job at some time and

be discharged. There is a time frame within which the administrator must

accomplish his business. Rule 10 (1) of GN 49 of 1949 which states thus:

"10. Statement o f assets and liabilities and

accounts o f the estate
(1) Within four months o f the grant o f
administration or within such further time as
the liabilities court may allow, the
administrator shall submit to the court a true and
complete statement, in Form V, all the assets and
liabilities o f the deceased persons' estate and, at
such intervals thereafter as the court may fix, he
shall submit to the court a periodical account o f
the estate in Form VI showing therein all the
moneys received, payments made, and property
or other assets sold or otherwise transferred by
him,"

This means that, the administrator must file his inventory in Form

No. V within 4 months from the date of appointment or thereafter as the

court may direct. He will thereafter submit his statement of accounts in

form No.VI. There is no time fixed for submitting Form No. VI which in

actual practice is the forum in which the administrator is exhibiting his

proposal on how, if approved by the court, the distribution should be. The

34
practice of some magistrates has been to order both of them to be

submitted within 4 months or within such further period as shall be

extended by the court. We think this is a good practice which should be

adopted.

In a good system of administration therefore, the court may make

an order for both the inventory and the statement of account to be filed

within 4 months from the date of appointment and direct that if for any

reason the administrator cannot fife any of them within 4 months, he must

apply for extension of time. It will also inform him of the consequences

operating over and above the period of 4 months without extension. His

activities will be rendered illegal. To ensure a peaceful end, the magistrate

must fix a mention date at the end of 4 months to remind the

administrator and all interested people that the business must be

accomplished within 4 months.

That said and done, we will now revert to our case to see if there

was compliance to the law and the procedure as outlined above. It is

obvious that there was laxity in the conduct of the proceedings leading to

a violation of the law and procedure which has an effect in this appeal.

On the first issue raised by the court, we find the record of appeal with

the following defects: One, absence of minutes of the clan/family

35
meeting. There is mention of the clan/family meeting in the judgment but

the minutes could not be located in the record. We think it was important

to put them in the file with an endorsement of the magistrate, to form

part of the proceedings and record of the Primary Court. Two, witnesses

who appeared to give evidence in support of the respondent did not take

an oath or affirmation as required by the law. Further, there was no

evidence that they gave evidence. It appears that they were merely

examined by the magistrate. Neither were they subjected to examination

in chief or cross examination as required by the law. Three, the record

shows that the appellant lodged an objection in respect of the house at

Kihonda but the parties were not given a chance to adduce evidence for

and against the objection. There is no proceedings or ruling of the court

on the aspect. Four, the respondent was appointed and supplied with a

list of heirs and assets of the deceased. We think that was not proper. At

that stage, as we have demonstrated above, the court was only mandated

to make the appointment. The list of assets and heirs could be submitted

by the administrator at a later stage in his reports through Forms No. V

and VI.

On the second issue raised by the Court, we find that the judgment

made a decision on three critical areas based on facts which are not in

36
the proceedings thus creating a variance between the judgment and

proceedings as follows: One, the judgment talked about the will of the

deceased. It discussed and brushed it aside. But the will is not located

anywhere in the proceedings. The proceedings are also silent on who

tendered it. It is not even known who raised the objection. The ruling of

the court on it is also missing. Two, the finding that the appellant

deserted the deceased for more than 25 years has no bearing in the

evidence on record. The respondent did not say so in his evidence. None

of those who were referred as his witnesses said so. Three, the judgment

said that the status of the appellant as wife of the deceased was objected

by relatives seriously. This is not seen in the proceedings. It is thus

obvious that the magistrate invited extraneous matters and made them

the basis of his decision contrary to the law.

The shortcomings pointed above made the proceedings and

decisions of the lower courts illegal calling for the exercise of the powers

of revision.

In the exercise of the revision jurisdiction of the Court under section

4 (2) of the Appellate Jurisdiction Act, (Cap 141 R.E. 2019), the

proceedings and judgment of the Primary Court are nullified, vacated and

set aside. That also apply to the proceedings and judgments of both the

37
District Court and the High Court. We direct the petition to be heard afresh

before another magistrate of competent jurisdiction and be completed

within the time frame provided above. We make no order as to costs.

It is ordered so.

DATED at DAR ES SALAAM this 13th day of September, 2024.

R. K. MKUYE
JUSTICE OF APPEAL

L. G. KAIRO
JUSTICE OF APPEAL

L. M. MLACHA
JUSTICE OF APPEAL

The Judgment delivered this 17th day of September, 2024 in the

presence of Mr. Kisawani Mandela, learned advocate for the Respondent

via video facility from High Court of Morogoro and also holding brief for

Mr. Marwa Masanda, learned advocate for the Appellant, is hereby

certified as a true copy of the original.

R. W. CHAUNGU
SJJ DEPUTY REGISTRAR
vl COURT OF APPEAL

38