IN THE HIGH COURT OF TANZANIA
AT MWANZA
MISC. CIVIL APPLICATION NO. 22 OF 2015
(Arising from Probate Cause No .1/2018, High Court at Mwanza)
OLUWA M KAN DO..................................................... APPLICANT
VERSUS
KASSIM OMARI....... .............. ............. ....................... DECEASED
RULING
24/12/2018 & 28 /01/2019
Gwae J
Before: Gwae, J
The applicant, Oluwa Mkando has brought this application under
section 38 of the Probate and Administration of Estate Act, Cap 352, R. Ed,
2002 and Rule 50 of the Probate Rules GN No. 40 of 1965.This application
is filed under certificate of urgency and it is supported by an affidavit
sworn by the applicant.
The applicant's affidavit is to the effect that the applicant be, on the
strength of the 'will', appointed administrator temporarily pending hearing
and determination of Probate Cause No. 1 of 2018 so that)he may be able
to smoothly administer the estate of the deceased Kassim Omari who
passed away on 26th May 2017 particularly to collect rents of the
commercial building located at Plot No. 228 Block T #at Kenyatta Road as
currently there is existence of family problems.
This application is strongly opposed by one Hussein Kassim Omari,
the eldest son of the deceased by stating that the deceased did not die on
26.5.2017 as alleged by the applicant as according to his memory and
knowledge his late father passed away on 25th May 2017. The counter
affidavit filed by the said Hussein Kassim went challenging the averrement
that commercial building described as Plot No. 228 Block "T" had never
been in possession of his late father but a commercial building (estate)
located at Plot No. 250 Block "T" .
The opponent to the applicant's application also stated that the
deceased family is peacefully living and sharing the proceeds of the estate
happily and harmoniously.
At the hearing of this application, the applicant and Hussein Kassim
/objector were represented by Mr. Mazola and Bonphace Salilo
respectively; both parties' representatives are the learned advocates
2
Mr. Mazula verbally added that this application be granted as
currently the tenants are not willing to pay the house rents due to
misunderstandings that are existing among the deceased's heirs including
his widows while Mr. Salilo orally argued that the applicant is not proper
person to temporarily administer the estate of the deceased since he is
even not certain of the date of death of the deceased as well as a Plot
number of the deceased's house.
Admittedly, the learned counsel for the applicant in his rejoinder
stated that the anomalies appearing in the applicant's affidavit as far as
date of the deceased's death and Plot number of the house in question.
However the applicant's advocate stated that those are clerical errors
which should not defeat ends of justice.
As this court has been asked to certify administration pendente lite, I
am there inclined to find that it is quite apposite to have section 38 of the
Act (supra) cited by the applicant in moving the court reproduced as herein
below;
"Pending the determination of any proceedings touching the
validity of the will of a deceased person or for obtaining or
revoking any probate or any grant of letters of administration,
the court may appoint an administrator of the estate of such
3
deceased person, who shall have all the rights and powers of a
general administrator other than the right of distributing such
estate, and every such administrator shall be subject to the
immediate control of the court and shall act under its direction".
Considering the noted anomalies or inconsistencies in the applicant's
affidavit which is in law evidence worth for consideration or otherwise,
namely, date of deceased's death which not more serious and the number
of the house subject of the estate at stake which I think is even more
serious going to the root of this application.
As rightly submitted by Mr. Salilo and well as in the counter affidavit
of deceased's eldest son, difference of a number of the house which is
subject of the sought administration pendente lite. The applicant in his
affidavit is found mentioning Plot No.228 Block "T" while the deceased's
son who is also an objector to the Probate Cause No. 1 of 2018 has
certainly stated that the commercial house left by the deceased is on Plot
No. 250 Block T " .
The difference of the house in question, subject of the intended
administration pendente lite should not be simply ignored as wrongly
prayed by the applicant's advocate, to my firm view, that is not a mere
clerical error as it goes to the root of the case. If the applicant had made a
clerical error in his affidavit yet he would have exercised his opportunity to
remedy the situation if really it was the clerical error for instance filing a
replying affidavit.
In view of the shortcomings, it is therefore my considered opinion
that this application is not fit for being determined in favour of the
applicant
However, as court of law, there ought to be orders in order to
temporarily safeguard the interest of the heirs pending hearing and the
determination of Probate Cause No. 1 of 2018 touching the validity of the
will or grant of letters of administration as sought by the deceased's eldest
son, Hussein Kassim Omari, I hereby make the following orders;
i. I hereby temporarily appoint the said Hussein Kassim
and his step Mother, one Mariam Kassim Benjamin
to ensure that temporary administration of the estate of
their beloved deceased is smoothing handled and rent
proceeds are fairly distributed to the heirs.
ii. That in event of misunderstanding (s) among the
deceased's heirs before a final disposal of the Probate
5
Cause No. 1 of 2018, the same shall be mutually
resolved by the Deputy Registrar of the court'7,
All told, the applicant's application is dismissed with no order as to costs as
this matter is purely family matters.
It is so ordered
R. G
udge
01/2019
Court. Ruling delivered in the presence of the applicant in chamber
this 24th April, 2018,
28/01/2019
