IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(ARUSHA DISTRICT REGISTRY)

AT ARUSHA

MISC. CIVIL APPLICATION NO. 66 OF 2019

(Originating from the High Court of the United Republic of Tanzania, District

Registry of Arusha at Arusha in Probate and Administration Cause No. 8 of

2013)

In the matter of the Estates of the late

ERASTO ELISARIA MSUYA

AND

In the matter of Application for revocation for grant of letters of

Administration given to MIRIAM STEVEN MRITA on 5th November, 2013

through the Probate Cause No. 8 of 2013 by

NDESHU KURWAE LISARIAMSU YA.........................,........... ..AP PLICANT

VERSUS

MIRIAM STEVEN MRITA....... ......................................... RESPONDENT

RULING

14/09/2021 & 27/10/2021

D. G. KAMUZORA, 3

The Applicant Ndeshukurwa Elisaria Msuya is the biological mother of

the deceased Erasto Elisaria Msuya who passed away on 07/08/2013. She

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approached the courts door in a need to take over the administration of

the estate of her late son and prayed the respondent's appointment to be

revoked on account that the respondent has failed to discharge the

administration duties. This application was brought under the provision of

section 49(1) (d)(e) of the Probate and Administration of Estates Act, Cap

352 R.E 2002, and Rule 29 of the Probate Rules. The chamber application

was supported by affidavit of Ndeshukurwa Elisaiia Msuya, the Applicant.

The estate of the late Erasto Elisaria Msuya has a long and

challenging history with a total number of 9 case files instituted as causes

and applications including 2 Probate Causes and 7 Miscellaneous Civil

Applications. A number of 6 different Judges were involved in the matter

arising from the Estate of the deceased Erasto Elisaria Msuya including;

Hon, Moshi J, who attended one probate cause and two applications;

Probate and Administration Cause No. 8 of 2013, Miscellaneous Civil

Application No.217 of 2015 and Civil Review No.4 of 2016. Hon. Masengi

J, attended one application which is Misc. Civil Application No. 64 of 2016,

Hon. Dr. Opiyo 1, attended two matters; Probate and Administration

Cause No.3 of 2016 and Miscellaneous Civil Application No.35 of 2017.

Hon. Mzuna 1, attended one application which is Miscellaneous. Civil

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Application No. 35 of 2017, Hon. Masara J, attended Miscellaneous-Civil

Application No. 94 of 2020 and the present Miscellaneous Civil Application

No. 66 of 2019 that was later re-assigned to me, Kamuzora J.

The brief facts of this matter albeit is that, the deceased left behind

his wife with three children; Kelvin Erasto Msuya, Maurine Erasto Msuya

and Calvin Erasto Msuya, another child not born by the wife by the name

of Gloria Erasto Msuya, his two parents and siblings. Ndeshukurwa Erasto

Msuya is the mother of the deceased Erasto Elisaria Msuya and the

Respondent Miriam Steven Mrita is the wife of the deceased. The

respondent applied before this court and was appointed the administratix

of the estate of her late husband Erasto Elisaria Msuya. An order

appointing her was issued on 05/12/2013 in Probate and Administration

Cause No. 8 of 2013. She was unable to file the inventory for purpose of

terminating the probate matter and this court suo motu on 11/09/2015

closed the probate cause.

The respondent then filed Miscellaneous Civil Application No.217 of

2015 but it was struck out. The respondent again tried another bite and

instituted another Miscellaneous Civil Application No. 64 of 2016. This time

the respondent's prayer was for an order to extend time within which to
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file an application for review of the court's order dated 11/09/2015 which

closed down the probate matter. The application for extension of time to

file review was granted and the respondent was allowed to file the review

application within 14 days. Then, Civil Review No.4 of 2016 was instituted

by the respondent challenging the order of this court that closed Probate

and Administration Cause No. 8 of 2013. The respondent requested this

court to vacate its previous order and allow the respondent to exhibit the

inventory and accounts in respect of Probate and Administration Cause No.

8 of 2013 but the application for review was dismissed by this court on 4th

November 2016.

After the dismissal of the application for review, another application

for letters of Administration was instituted as Probate and Administration

Cause No. 3 of 2016 by Elisaria Elia Msuya (deceased's father) and Dr.

Esther Elisaria (deceased's sister). They prayed to be appointed as joint

administrators of the estate of the deceased. The preliminary point of law

was raised that Miriam Steven Mrita was still legally appointed administratix

of the estate of the deceased thus, the application was struck out for being

prematurely filed. By the time Probate and Administration Cause No. 3 of

2016 was instituted and decision made on 11/08/2017, the respondent was

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already under the custody. It was submitted and not disputed that, the

respondent was arrested on 05/08/2016 and detained at Segerea prison

for the offence of murder and that case is still pending to date as Criminal

Session No, 103/2018.

After the Probate and Administration Cause No. 3 of 2016 was struck

out by this court, another application was filed to this Court as Misc. Civil

Application No. 56/2018 by Elisaria Msuya (deceased's father) and

Ndeshakurwa Msuya, (deceased's mother). They applied for revocation of

the Administratix for the reason of failure to comply with legal requirement

of filing the inventory and accounts of the estate. The Application was

struck out at preliminary stages for incompetency for failure to properly

move the court. After that application was struck out, tne present

application, Misc. Civil Application No. 66/2019 was filed in court by

Ndeshakurwa Elisaria Msuya (deceased's mother) against the Respondent

(deceased's wife). This application is again for the revocation of the

respondent who was appointed to administer the deceased's estate in

Probate and Administration Cause No 8 of 2013. Two reasons were put

forward in the applicant's affidavit that, one, the appointed administrator is

unable to fulfill the duties under administration for being in prison, two,

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that, the respondent has failed to exhibit the inventory and account as so

required by the law.

When the matter was called for hearing, Mr. Ismail Sh.al.ua and Mr.

Fadhili Nangawe appeared for the applicant while the Respondent was

represented by Mr. Shilinde Ngaluia and the respondent attended the

hearing via Video Conference connected to Segerea Prison.

In his submission in support of the application, the counsel for the

Applicant prayed to adopt the chamber summons and the affidavit by the

applicant to form part of their submissions. The applicant's counsel

submitted that, their application is basically based on the revocation of the

letters of Administration issued to the respondent. He explained that, after

the respondent was appointed administratix of the deceased's estate, she

has not filed the inventory and true statement of account and that is

contrary to section 107 (1) of the Probate and Administration of Estates

Act. That, for that whole period when she was appointed as Administratix

of the estate, the respondent is behind bars (in prison). That, among the

reason that forced the applicant to prefer this application is that, there was

a complaint of lack of respondent's support raised by one of the deceased's

children by the name of Gloria Erasto Msuya. That Gloria is among the
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beneficiaries of deceased's estate and she was studying in Canada since

2014 bat she was unable to continue with her studies for the respondent's

failure to pay tuition fees and upkeep allowances. For that matter, the

applicant thinks that the respondent has failed to execute administration

duties contrary to section 49 (1) of the Probate and Administration of

Estates Act Cap 352 RE 2019, specifically section 49 (1) (d) and (e).

The counsel for the applicant submitted further that, the court is

empowered to revoke the administrator's appointment if any of the

conditions specified under the law are not met i.e.,.

1. The grant has been useless and inoperative. That, the appointed

administrator is unable to fulfill the duties under administration for

being in prison thus the appointment is useless as she cannot

undertake administration duties.

2. Failure to file inventory within 6 months. That, based on subsection

1(e), the respondent has failed to exhibit the inventory and account

as so required by the law.

The counsel for the applicant was of the view that, if this court is

satisfied that the requirements were not met by the respondent, it may

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revoke the appointment of the respondent and appointment another

administrator who will be fit and it may be the Applicant if the court is

pleased and satisfied. The counsel for the applicant supported his

argument with the decision of this court in Joseph Mniko & Others,

Probate & Administration cause No. 48/1996 Pg, 6 where the court

made a decision on the failure to file inventory as it can result into the

disqualification of the person appointed as administrator of the estate. The

counsel for the applicant reiterated the prayer that the respondent be

revoked for being not qualified to be the Administrator of the deceased's

estate,

The counsel for the applicant does not agree with the facts deponed

by the counsel for the respondent under paragraph 5 of the counter

affidavit which suggest that the Applicant who is the deceased's mother is

not the beneficially of the deceased's estate who has died as a Christian

and that, the Administration of the estate was to be guided by the Indian

succession Act of 1865. The counsel for the applicant submitted that,

section 88(2) of the Probate and Administration of Estates Act Cap 352 RE

2019, did not expressly/specifically state the law to be the Indian

Succession Act but since the Indian Succession Act is applicable in

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Tanzania, that is why in practice people fail within the Indian succession

Act. The counsel Mr. Shalua insisted that, the application before this court

is for revocation of letters of Administration thus the paragraph which deals

with the applicability of the Indian succession Act is inapplicable under the

circumstances. He urged this court to direct itself to determine if the

respondent is still fit to stand as administrator while she has failed to

execute her duties of administration. He referred the case of Sekunda

Mbambo Vs. Rose Ramadhani TLR 2004, Pg. 439, 444 & 445 to

where an administrator was mentioned to be a widow/widower, parents or

child of the deceased or any close relative and if such people are not

available or if they are found unfit in one way or another, the court has

power' to appoTnt any' other fit person or' authority to discharge this duty.

Mr. Shalua insisted that, even the parent who is the applicant in this

application is a fit person to be appointed to administer the deceased's

estates. He thus prayed for this court to appoint a fit person to administer

the deceased estate since even the Applicant propose that a fit person be

appointed by the court after revocation of the respondent.

In reply, the counsel for the respondent Mr. Shilinde Ngalula started

by narrating the historical background of the matter which I do not intend

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to reproduce, In relation to the present application Mr. Shilinde Ngaluia

prayed this court to adopt the counter affidavit of the respondent and ail

annexures as part of the records opposing the application. He pointed out

that, the affidavit and the submission by the counsel for the applicant

suggest three reasons for revocation of the respondent which are;

i) That, there is a deceased's child by the name of Gloria Erasto

Msuya who is complaining on failure to get support in her studies

in Canada.

ii) That, the respondent be revoked because she has failed to

account for the inventory and distribution of the deceased's Estate

as required by section 107 of the Probate and Administration of

Estates Act, Cap 352 RE 2019.

iii) That, the administration is useless because administratix Miriam

Steven cannot execute her duties as Administrator of the estate as

required because she is in prison.

Submitting in challenging the application Mr. Shilinde argued that,

the applicant is not the beneficiary of the estate of the deceased Erasto

Msuya by virtual of being a mother to the deceased. That, the law does not

give her automatic right to inherit the deceased's estate because the
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deceased was a Christian and he died and was buried following Christian

rites (Lutheran). That, since the right to inherit is recognized by the law

depending on the origin of a person and his belief, the deceased Erasto

Msuya who was a Christian, prophesied Christian and according to the law,

distribution of the estate of deceased who is a Christian is governed by the

Indian succession Act of 1865 which is applicable in Tanzania by virtual of

the Judicature and Application of laws Act (JALA) Cap No. 358 R.E 2002.

The counsel for the respondent explained that, according to that law, part

5 section 3 states that, upon death of a man, all properties resolve to the

wife. That, 1/3 of the properties is the right of the widow and 2/3 of

remaining estate is divided to linear descendants. Since the deceased left

ch ild re ri727 3 1 s ~ tT O ..

Regarding the provision of section 88(2) of the Probate and

Administration of Estates Act Cap 352 R.E 2019 cited by the counsel for the

Applicant, Mr. shilinde submitted that, the counsel misdirected himself by

stating that the section is not specific on what law is applicable to the

estate of deceased who is a Christian. He explained that, this section

acknowledges different laws which prescribes procedure for distribution of

the deceased estate including; the Indian succession Act which deals with

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probate matters for Christians, the customary law for estate administered

under customary rites, Islamic law for Muslim and Hindu Law for people

prophesying Hindu. The counsel was of the view that, the applicant is not

the beneficiary of the estate of Erasto Elisaria Msuya for the reasons listed

in the applicant's affidavit at paragraph 4,5,6 and 7.

On the submission that the respondent should be revoked because of

the complaint brought by Gloria Msuya, the counsel for the respondent

submitted that, Gloria is the beneficially of the state of Erasto Elisaria

Msuya but it is not true that she was not supported for her tuition fees and

other costs in Canada. He explained first that, the respondent being her

mother who was taking care of her after the deceased's death, she sent

Gloria together with her siblings to study abroad something not done by

her father before when he was still alive. That, while on study, the

respondent through family company SG Northern Adventures Limited have

been paying fees and all needs for her studies in Canada. To support this

argument, he referred the documents attached to the respondent's counter

affidavit proving communication and payments done by SG Northern

Adventures Ltd to Gloria Erasto Msuya which is marked MM4 Collectively.

The counsel insisted that, the complaint from Gloria which is attached by

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applicant under paragraph 6 and marked EENEM3 was not explained to by

the counsel for the applicant but it shows that it is a print out of a letter

alleged to be written by Gloria Msuya. That, this exhibit is not satisfactory

to prove the complaint because the originality of this letter is unknown and

no original letter was brought to this court. That, if Gloria Msuya had a

genuine complaint, the same could be sent to the applicant or to court by

way of affidavit. That, Gloria Erasto Msuya has already returned from

Canada and if she has any complaint, she could have filed the same in

court. The counsel urged this court not to consider that complaint in this

application.

Second that, it is true that the respondent was unable to file the

inventory and accounts for the deceased estate but this was not intentional

as it was associated with challenges in collection of the deceased

properties and payment of debts. That, when she came to court, she was

late but applied to be allowed to file the inventory and accounts out of time

but her application was dismissed in Civil Application No. 217 of 2015.

That, after the dismissal of that application, the respondent filed another

application praying for extension of time to file application for Review of

the order which closed the Probate cause. That, the move was through

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 1
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Application No. 64/2016 which was granted by the court. That, the j

respondent then filed Application for Review No. 04 of 2016 but it was

struck out for lack of jurisdiction.

Mr. Shilinde further submitted that, the challenge in this matter

started on the original Probate Cause No. 8 of 2013 to where the case file

was closed by court without following legal procedures. That, the law

requires that, where there is delay filing the inventory, the administrator

has to be heard before the probate matter is closed. That, the

requirements are well started under the Probate Rules. The counsel

insisted that, since the application was brought referring Probate Case No.

8 of 2013 which was closed, this court has no legal basis to hear and

determine this application because doing so will result in this same court to

open the case file that was closed by the court. Mr. Shilinde was of the

view that, this court is functus official for its decision is already made and

even Hon. Moshi 3. failed to review her decision on account that she was

functus official to deal with the matter that was already closed. He referred

the case of Bibi Kisoko Mohamed Vs. Minister of Land and urban

Development TLR (1983) Page 250. Saada Rashid Vs. Abdallah

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Rashid PC Civil Appeal No. 12/2020 (unreported) Pg. 6 and the

decision by Hon. Moshi J, attached to the counter affidavit.

The counsel added that, although the respondent failed to file the

inventory, and despite this court being wrong under the law in its order

closing the file, that decision is legally binding and proves that the probate

matter was concluded and closed and for that, the office of the

administrator was not there from the date of closure of file. That, from the

date of that order, the respodent had completed administration duties and

was no longer the administrator and the probate matter that was already

closed.

On- that ground,- Mr.- Shilinde reiterated that this.application..has .no.,

legal basis and if there is any complaint on the closure of the probate

matter the same was to be referred to the Court of Appeal . That, this court

cannot revoke the person who is not administrator of the estate of the

diseases. He therefore, prayed for this court to dismiss this application.

On the 3rd reason that the respondent is remanded in prison/in

custody and that through paragraph 5 of the affidavits the respondent

delegated her powers of administration to another person, the counsel for

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the respondent submitted that, such argument baseless. The counsel

explained that, the respondent has never issued Power of Attorney to

Mbazi Steven Mrita. That, the attached document marked EENEMZ is a

letter from the respondent to her employees and does not show that she

issued Power of Attorney for the administration of estate to Mbazi Steven

Mrita. That, the Power of Attorney if issued, the same could have been

brought to court. He insisted that, the Power of Attorney was not

necessary as the office Of administration was already closed.

In conclusion, Mr, Shilinde prayed for this court while making its

decision to consider the following; that, the respondent has already

distributed the estate of the deceased Erasto^ Elisaria Msuya to the lawful

hears and what remained was the filing of inventory and accounts to close

the probate cause. That, the applicant Ndeshakurwa Elisaria, the

deceased's father Elisalia Msuya and all deceased's siblings Esta Elisalia,

Aneth Msuya, Happy Alex Mdachi, Antuja Simon Msuya, Bahati Godfrey

Shujaa and Joyce Simon Msuya received distribution of the deceased estate

in terms of cash amount Tshs. 893,702, 820.05. That, the applicant

Ndeshakurwa Msuya received Tsh. 225, 925,513 as her share. The proof

for payment was attached as annexures MM5 to the application and the

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counsel prayed for this court to consider the same as proving that the

distribution of the deceased's estate was completed.

Regarding the administration, the counsel for the respondent

submitted that, if this court finds it necessary to revoke the appointment if

it still exists, then after the revocation a fit person be appointed to

administer the deceased's estate. The counsel was of the view that, the

deceased has left children and three of them have already attained age of

majority and they can administer the estate of their deceased father. That,

they are well educated and can manage the administration of the estate

and they are all beneficiaries to the estate of the deceased.

The-.applicant's, rejoinder was made Mr.- Fadhili Nangawe.who-

submitted that, the argument that the probate cause was closed is

baseless. That, such argument was brought as an objection in this same

application and it was heard and determined by Hon. Masara J in his ruling

made on 05/06/2020. That, all authorities cited by the counsel for the

respondent in his submission were cited during objection but still the

objection was dismissed thus such argument was decided upon by this

court.

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 The counsel reiterated that, the application for revocation was

brought for two reasons and the 3rd reason was drawn by the counsel for

the respondent on his own as such reason was discussed on the second

reason in the applicant's submission. The counsel explained that, by being

behind the bars, the respondent could not continue with her duties to

administer the estate. He insisted that, the applicant qualify to bring this

application and the law acknowledges that fact. That, the Indian

succession Act cited by the counsel for the respondent acknowledge lineal

meaning relatives, brother, uncles, grandmother or mother thus, the

submission that the applicant is not a beneficiary is baseless. Referring the

case of Sekunda Mbwambo the counsel for the applicant insisted that, the

law is clear that not only beneficiary can bring application of this nature.

Regarding the interpretation of section 88 of the Probate and

Administration of Estates Act, the counsel for the applicant submitted that,

they were right in interpreting that provision. That, the law does not

enforce the applicability of the Indian succession Act.

Regarding failure to file inventory, the counsel for the applicant

submitted that, the argument by the respondent's counsel that non-filing of

inventory was not intentional is a weak argument. That, the respondent

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was appointed on 2013 but the application for extension of time to file

inventory was filed on 2016, almost three years after being appointed.

That, there is no explanation as to why the inventory was not filed for the

whole period before 2016. That, the argument by the counsel for the

respondent is an afterthought because Probate Cause No. 8/2013 was

closed on 11/09/2015 and the respondent filed an application in court on

2016 after the order closing the file was issued.

On the submission that there were challenges in collecting the

deceased's estate and payment of debts, the counsel for the applicant

submitted that, such submission is baseless as it was not even disclosed in

the respondent's counter affidavit. He insisted that, the counsel for the

respondent in his submission has not objected the application, he therefore

prayed for this application to be granted. On the issue as to who is to be

appointed, the counsel for the applicant prayed for the law to be

considered.

I do not intend to address the issue relating to who has the right to

inherit and who is not because, that is not the gist of this application. The

present application is centered on revocation of the grant issued to the

respondent. Thus, whether the applicant is the beneficiary of not is not the
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matter to be discussed in this matter as there is no complaint of the

exclusion of the beneficiaries brought before this court. I will therefore

deliberate on the issue related to the relief sought in this application.

I have considered the records in this application, the affidavit in

support of the application, the counter affidavit opposing the application

and the length submissions by the counsel for the parties. There is no

doubt that the gist of this application is tressed back in Probate and

Administration Cause No 8 of 2013. There is no dispute that, the said

Probate matter was marked closed by the order of this court dated

11/09/2015. It is not the first time the issue on the validity of letters of

administration issued to the respondent is raised and deliberated upon by

this court. After the order closing the file and dismissal of the respondent's

review application intending to vacate such order a fresh Probate and

Administration Cause No. 3 of 2016 was instituted by the deceased's father

(Elisaria Elia Msuya) and deceased's sister (Dr. Esther Elisaria). Mr. Shilinde

Ngalula, the counsel for the respondent in this application also represented

the same respondent (Miriam Steven Mrita) in the above Probate matter.

He raised the objection that, in view of existing legally appointed

administrator of the deceased's estate whose powers of administration was

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not revoked by any court in Tanzania, the petition for new letters of

administration for the same deceased was misconceived and pre-maturely

made. This court sustained the objection and observed that, Probate Cause

No. 3 of 2016 was prematurely filed as it was filed while there was existing

legally appointed administrator of the decease's estate. In that cause it was

made clear that, this court acted suo motu in closing Probate Cause No. 8

of 2013 and that order simply connotes that the respective file was locked

down and no new records can be carried out or added therein at the level

of this court. This court went further by stating that, the court was not

moved to revoke the appointment of Miriam in terms of section 49 of the

Probate and Administration of Estates Act. That, the closing of the file did

not revoke the letters of administration issued to the former administrator

and the court could not appoint another administrator while the former was

still subsisting.

This same issue was raised by the counsel for the respondent Mr.

Shilinde Ngalula in this application by way of preliminary objection that,

this application is bad in law for being brought under non-existing probate

cause No.8 of 2013. This court overruled the objection and considered

important for this application to be determined on merit.

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 It is unfortunate that, in course of submitting against the application

Mr. Shilinde came up again with the same issue that the application was

wrongly preferred under non-existing Probate Cause No. 8 of 2013 as the

same was marked closed. He was of the view that, from the date the

probate cause was closed, the office of administration was no longer there

and the respondent was discharged of the administration duties. That, it

was wrong to apply for revocation of the respondent who is no longer the

administrator of the deceased's estate.

I do not intend to discuss much about the previous finding on the

issue relating to the closure of the file in Probate Cause No 8 of 2013. That

issue was well deliberated upon by this cour^ which came to a conclusion

that by closing the case file, the court did not revoke the appointed

administrator of the deceased estate. In addition, the order closing the file

did not either revoke the letters of administration or discharge the

administrator after she had executed her administration duties. There is no

dispute that the inventory and final account was not filed in court by the

respondent until now. While closing the file in Probate Cause No 8 of 2013,

the court did not give any order revoking or discharging the administrator

from the administration duties.

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 Taking an example of a civil suit, when the judgment is made on

merit by the court, it can only be overturned by the order of the superior

court or, vacated by the same court where it was passed ex-parte. After

the judgment it follows the execution process. Similarly, in Probate

matters, the order appointing the administrator stands as a judgment of

the court and the same remain valid unless overturned by the court of

competent jurisdiction, The administration duties are consequential to

appointment just like execution process. Thus, closing the file for failure to

undertake the execution process in probate matter which is filing the

inventory and final account did not in any way revoke the respondent's

appointment. The respondent is still legally appointed administrator of the

estate of the deceased Erasto Elisaria Msuya as prior held by this court.

This was also the position by Mr. Shilinde in Probate Cause No.3 of 2016

but to my surprise in this matter, he changed to a different position and

insisted that the respondent was no longer the administrator since the date

the case file in Probate cause was dosed. Nevertheless, the position of this

court is the same that, the respondent Miriam Steven Mrita is still a legally

appointed administrator of the estate of the deceased Erasto Elisaria Msuya

as the letters of administration issued to her are still valid. She is until now

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not been revoked as per the requirement of section 49 of the Act or

discharged the administration duties of filing inventory and final accounts

of the deceased estate. Therefore, respondent being the valid

administrator of the estate of the deceased, the present application for

revocation against her was properly preferred.

Now the question is whether the reasons put forward in this

application suffice the revocation of the respondent from administration of

the deceased estate, Revocation of the grants and removal of executors is

governed by the provision of section 49 of the Probate and Administration

of Estates Act Cap. 352 RE 2002.

49, (1) "The grant o f probate and-fetters o f administration-may-be

revoked or annulled for any o f the following reasons-
(a) that the proceedings to obtain the grant were defective in
substance;
(b) that the grant was obtained fraudulently by making a
false suggestion, or by concealing from the court something
material to the case;
(c) that the grant was obtained by means o f an untrue
allegation o f a fact essential in point o f law to justify the grant,
though such allegation was made in ignorance or inadvertently;

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 (d) that the grant has become useless and
inoperative;
(e) that the person to whom the grant was made has
willfully and without reasonable cause omitted to
exhibit an inventory or account in accordance with the
provisions o f Part X I or has exhibited under that Part an
inventory or account which is untrue in a material respect
(2) Where it is satisfied that the due and proper administration
o f the estate and the interests o f the persons beneficially
entitled thereto so require, the High Court may suspend or
remove an executor or administrator (other than the
Administrator-General or the Public Trustee) and provide for
the succession o f another person to the office o f such executor
or administrator who may cease to hold office, and for the
vesting in such person o f any property belonging to the estate."

The applicant in her affidavit pleaded two reasons related to

paragraph (d) and (e) above in the following words;

1. That, the grant has been useless and inoperative as the appointed

administrator is unable to fulfill the duties under administration for

being in prison and cannot undertake administration duties.

2. That, the respondent has failed to exhibit the inventory and accounts

within six months as so required by the law.

Page 25 of 36
 I will start with the reason that the respondent has failed to exhibit

the inventory and accounts within six months. The counsel for the

applicant claimed that, the respondent failed to exhibit the inventory and

final account on time as required by section 107 of Probate and

Administration of Estates Act Cap 352 RE 2002. That, the respondent's

conduct resulted into a complaint from one of the beneficiaries by the

name of Gloria Erasto Msuya who was in studies and depended on the

estate for coliege support. Section 107(1) of the Act read;

107. (1) "An executor or administrator shall, within six months

from the grant o f probate or fetters o f administration, or
within such further time as the court which granted the probate or
letters may from time to time appoint or require, exhibit- in that court
an inventory containing a fuli and true estimate o f all the property in
possession, and aii the credits, and also ait the debts owing by any
person to which the executor or administrator is entitled in that
character, and shaii in iike manner, within one year from the grant or
within such further time as the court may from time to time appoint,
exhibit an account o f the estate, showing the assets which have
come to his hands and in the manner in which they have been
applied or disposed of."

There is no record showing that the administrator filed an inventory

and final accounts within the time provided. The remedy for an
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administrator who have failed to discharge his duties is to be revoked as

provided in the case of Daudi Mahende Kichonge V Joseph Mniko and

Others. Probate and Administration cause No 48 of 1996 (HC DSM

Unreported). The respondents' advocate admitted to the fact that the

respondent was unable to file the inventory and final accounts on time. He

however came up with the argument that, such failure was not intentional

as it was associated with challenges in coilection of the decease's estate

and payment of debt. He also added that, the respondent tried in several

occasions to find a chance to file the inventory and final accounts but in

vain.

I do not agree with the argument by the counsel for the respondent

that failure to file inventory and account on time was associated with

challenges in collection of the decease's estate and payment of debt. That

reason was not mentioned in the counter affidavit opposing the application.

Under paragraph 7 of the counter affidavit, it was stated that, the

respondent was prevented to file the inventory and account by operation of

the decision/order of the High Court of Tanzania at Arusha dated 15th

September, 2015 which closed Probate Cause No. 8 of 2013 without giving

the administratix/respondent a right to be heard. In that regard, claiming

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at this stage that the respondent was facing challenge in collection of the

estate and payment of debt is an afterthought and unacceptable. In my

view, the respondent contravened the requirement of the law for failure to

exhibit the inventory and accounts within six months. The administratix

had a legal duty to exhibit an inventory and complete statement of all the

assets and liabilities of the deceased's estate within six months of her

appointment. This duty is in accordance to section 108 of the Probate and

Administration of Estates Act Cap 352 RE 2002.

108. (l)'The executor or administrator shall, with reasonable

diligence, collect the property o f the deceased and the debts that
were due to him, pay the debts o f the deceased and the debts and
..costs o f administrationr and distribute the estate to-the persons-or
for the purposes entitled to the same or to trustees for such persons
or for the purposes entitled to the same or to trustees for such
persons or purposes or in accordance with the provisions o f this Act,
as the case may be."

Thus, with the above provision, the administrator is required within

six months of appointment or within such further time as the liabilities

court may allow, to submit to the court a true and complete statement, all

the assets and liabilities of the deceased persons' estate and, at such

intervals thereafter as the court may fix, submit to the court a periodical
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account of the estate showing therein all the moneys received, payments

made, and properties or other assets sold or otherwise transferred by

him/her and the distribution of the remained properties to the rightful

hears/beneficiaries.

The respondent did not file an inventory within six months from the

date of her appointment as required by law. The respondent was

appointed on 05th December 2013 thus she was duty bound to file the

inventory on or before 05 June, 2014. She defaulted and the file was

closed on 15th September, 2015 after one year and nine months had

passed. The respondent started to take action by 2016 when almost two

years has passed. This surface to say that she violated the law and no

reasons were given to justify such a delay. The contention by the counsel

for the respondent that the respondent executed her duties and distributed

money to the beneficiaries is unjustifiable. That distribution may be truly

done but if exhibited through inventory and account to be filed in court in

Form 80 and 81 as per the requirement under Rule 106 and 107 of the

Probate Rules, there is a breach by the administrator. The law imposes

three mandatory duties upon the administrator as per section 108 (I) of

the Act; to collect properties of the deceased and debts, to pay debts and

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distribute the estate. The execution of those duties is reflected by filing

inventory in Form 80 and account in form 81. This court while discussing

duties and functions of an administrator in probate matter originating from

Primary Court in the case of Hadija Saidi Matika and Awesa Saidi

Matika, PC Civil Appeal No, 2 of 2016 [H/C Mtwara Unreported] had

this to say regarding the function and duties of the administrator -

"One collecting the assets o f the deceased. This include both

fixed and movables. It also involves going to the bank and collecting
what might be there. He can also sue people who may refuse the
requests. Two, to identify the heirs. It is now generally accepted
thatthe heirs under customary law are the spouse or spouses o f the
deceased and his or her children. Uncles, aunts, sisters and brothers
are not heirs: In the absence of a WILL, they should hot be given
anything save at the free will o f the heirs. Three, to identifying and
pay the debts o f the deceased. Four, to distribute the assets
to the heir; and Five, to file inventory and statements of
accounts (forms V and VI) ."

These duties are not much far from what is provided for under

section 108 of the Probate and Administration of Estates Act and the

Probate Rules under Rule 106 and 107. There is no evidence that the

appellant discharged all the above functions and duties of an administrator.

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 It was contended by the counsel for the respondent that the

respondent has already distributed the deceased estate and he mentioned

the money that was distributed by the respondent. I still insist that the

distribution of the said money was supposed to be exhibited in court by

filing Form 80 and 81. It was also submitted that the deceased left other

properties apart from money but nowhere it is indicated how those

properties were distributed. In addition to the above, it is a good practice

that once the administrator lodges a statement of final account, the court

has to make it known to the heirs, debtors and creditors and ask them to

file objections, if they so wish. See the decision in the case of Nuru Salum

and Husna Ali Msudi Jurna, PC Probate Appeal No. 10 of 2019

(Rumanyika J,) and Hadija Saidi Matika and Awesa Saidi Matika

(supra). It was held that,

"In practice, in a good system o f administration o fjustice, once they

are filled, the court must cause the same to be known to heirs,
debtors and creditors and ask them to file objections against them, if
they so wish. I f there is an objection, the court will be at liberty to
return them to the administrator for rectification as was said by this
court in or proceed to hear the parties and make a ruling on the
matter,"

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 In the present matter nothing was done to show that the inventory

and account were filed and the beneficiaries were called upon to inspect

the same and be satisfied on the mode of collection and distribution. I

therefore insist that, the duty to file Form 80 and Form 81 within six

months is mandatory. The administrator has no choice but to comply. As

well held in Beatrice Brighton Kamanga & Amanda Brighton

Kamanga v. Ziada William Kamanga Civ. Rev. No. 13/2020

(unreported) H/C Dar es salaam there is no endless administration or a

life administrator in our laws. Section 107 of the Act gives the mandate to

the court to revoke the grant of probate where the administrator does not

submit to the court a true and complete statement in Form 80 within six

months, containing all the assets and liabilities of the deceased person's

estate and does not submit a periodical account of the estate in Form 81

showing therein all the moneys received (if any), payments made(if any)

and properties or other assets sold or otherwise dealt by him/her within

such period as directed by the court and the distribution there to.

It is clear from the record that the late Erasto Msuya left behind a

number of properties as depicted in the family minutes attached to Probate

and Administration Cause No. 8 of 2013. One would have expected those

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assets to feature in Form 80 as a statement of all the assets and liabilities

of the deceased persons' estate and how she distributed them. The reason

of failure to file inventory and account is therefore proved by the applicant.

On the reason that the grant has been useless and inoperative as the

appointed administrator is unable to fulfill the duties under administration

for being in prison and cannot undertake administration duties, there is no

dispute that the respondent is held in prison for the offence of murder.

There is no argument brought by the counsel for the respondent to counter

the fact that by being in prison, the respondent cannot effectively execute

the administration duties. I thus agree with the counsel for the applicant

that the administrator is unable to fulfill the duties under ad ministration for

being in prison and this surface her revocation so that other people can be

appointed to administer the deceased's estate.

From the above arguments I find that, the respondent no longer

qualifies to administer the deceased's estate for her failure or delay to

exhibit an inventory and account for all assets and liabilities and the fact

that she is still in prison for the offence of murder to which no one knows

when the same will be determined. The deceased's estate needs to be

administered and interests of the beneficiaries be protected. I therefore

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revoke the respondent's grant. The respondent is directed to surrender the

revoked grant pursuant to the provision of section 51 of the Probate and

Administration of Estates Act, Cap. 352 R.E 2002.

The Applicant's advocate requested me to appoint the applicant as

administrator of the deceased's estate. The records shows that the

applicant Is sick suffering from heart decease and need special treatment

as per paragraph 7 of the applicant's affidavit supporting the application. It

is my considered view that, much as there is a claim that the applicant is

sick, it is doubtable if she will effectively perform the administration

responsibilities. Apart from the respondent and the applicant, both counsel

for the parties suggested the appointment of a fit person to administer the

estate, It was made clear by the counsel for the respondent that three

children of the deceased have attained the age of majority and can take

over administration duties. Although there is no application made by either

of the deceased's children in need to be appointed to administer the

deceased's estate, they are still beneficiaries to the estate. There was a

time three children; Kelvin Erasto Msuya, Maurine Erasto Msuya and Calvin

Erasto Msuya under next friend Mbazi Steven Mrita, applied to be joined in

this application vide Miscellaneous Civil Application No. 94 of 2020. In the

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affidavit supporting the chamber application they attached their birth

certificates showing that Kelvin was born on 16th March 1997, Maurine was

born on 14th June, 2002 and Calvin was born on 15th March 2006. With

such records Kelvin and Maurine have attained the age of majority as

Kelvin is 24 years of age while Maurine is 19 years of age by now. There is

other undisputed fact that Gloria Erasto Msuya has also attained the age of

majority although her age was not specifically mentioned. It was also

submitted that Gloria was studying in Canada pursuing degree. It was also

submitted by the counsel for the respondent and not countered by the

counsel for the applicant that Gloria has already returned back to Tanzania.

With the available records, it is my considered view that the deceased's

children can properly handle their father's estate by virtual of their age and

the fact that they are well educated. Kelvin being the eldest son of the

deceased with 24 years old holds enough qualification of being appointed

the administrator of the estate of the deceased. But considering the fact

that Gloria was born by a different mother and there was a complaint

regarding her welfare I find that, for interest of justice she be part of the

administration of the decease's estate.

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 Consequently, I appoint Kelvin Erasto Msuya and Gloria Erasto Msuya

to administer the deceased's estate. They will be required to cooperate and

file the inventory/a true account of the deceased's estate within three

months from today and a statement of final account in the next three

months. I further direct them to cooperate and bring the administration of

the estate of their late father to rest or else they will be removed from the

administration and a neutral person appointed. Given the nature of the

application, I will make no order as to costs. It is ordered accordingly.

DATED at ARUSHA, this 27th Day of October, 2021

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