IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE HIGH COURT SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 17252 OF 2024 (Originating from the Decision of the District Court of Temeke at One Stop Centre in Misc. Civil Application No. 1957 of 2024) JOCELYNE RAPHAEL MKALI.... MONICA MICHAEL MKALLI.......:s:sesessseeesnsstsnanenneranen 28° APPELLANT VERSUS LUCY KABISAMA GODWIN (as of administratrix of the deceased estate) .. «RESPONDENT JUDGMENT 30/09/2024 & 02/10/2024 SARWATT KAZI, J.; The appellants, having been aggrieved with the decision of the District Court of Temeke at One Stop Judicial Centre, preferred the present appeal withfour grounds of appeal. The said grounds of appeal as per the memorandum of appeal are; 1. That the trial Court erred in law and fact by refusing to revoke the respondent's appointment as administrator without taking into account that it had no jurisdiction to determine such probate case based on the mode of life of the deceased and the pecuniary powers without any legal justification. 2. That the trial Court erred in law and fact for failure to consider the parties’ evidence and submission, failure to analyse the parties’ evidence, failure to give the reason for refusing the appellant's application, and reason for the decision entered without any legal justification. 3. That the trial Court erred in law and fact by failing to determine the issue of deceased children, who is the appellant in this appeal without any legal. justification. 4, That the trial Court erred in law and fact by failing to give an order directing the probate file to be forwarded to the High Court after becoming aware that the value of the deceased estate is above the pecuniary jurisdiction. 2The records reveal that the respondent was the legal wife of the deceased, and upon his death, she decided to petition before the District Court of Temeke to be appointed as executor of the deceased will, as according to her, the deceased left behind a will. Her appointment faced some challenges, as the appellants, who claimed to be the deceased mother and child, opposed the appointment, as well as challenging the validity of the will. Upon full trial, the Court declared the will invalid. However, it appointed the respondent the administratrix of the estate and required her to File Forms No. 80 and 81. Upon the filing of the inventory, the appellants herein presented the application for the revocation of letters granted to the respondent for various reasons, such as the grant was obtained based on false information, the Court had no jurisdiction to determine the matter, respondent omitted to file account of estate and the acts of the respondent not involving the deceased mother. Upon hearing of both parties, the trial Court dismissed the application and ordered the respondent to proceed with the administration of the estate, a decision which did not please the appellants, hence the present appeal. During the hearing of the appeal, the appellants appeared in person while the respondent enjoyed the service of Diana Mussa, a learned advocate. 3Following the uncontested prayer by the parties, the appeal was heard by way of written submissions, whereby Henrico Erasto Nkungu, advocate, prepared the appellant submissions while Advocate Armando Swenya prepared those of the respondent. Submitting in support of the appeal Mr. Nkungu jointly submitted on the 1% and 4" grounds, where he advanced that, in her petition to be appointed as administratrix of the deceased estate, the respondent filed Form No. 27, in which she indicated in the said petition that the properties left by the deceased have the estimated value of 100 million shillings. In the said Form, the respondent stated that among the properties left by the deceased are Plot No. 2199 Block L Kilongawima area Mbezi Beach, whose estimated value was 40 million, Plot No. 2201 Block L Kilongawima area Mbezi Beach with an estimated value of 40 million shillings and Plot No 9 and 11 Block “UU” Mkuza Songea Township with title No.33590 was estimated to worth 20 million shillings. ‘According to the appellant's counsel, the respondent purposely and with ill motive undervalued the deceased estate without providing any further description of the plots and failed to state whether the plots contained buildings or not, knowing fully that the plots contained buildings so as to 4deceive the trial Court in determining whether it had pecuniary jurisdiction to determine the matter. He added when the respondent submitted an inventory of the estate. She indicated that the properties are worth TZS 273,400,000/=, 290,400,000/=, and 37,206,000/=, respectively, making the total value of only two former properties TZS 563,400,000/= which is beyond the jurisdiction of the trial Court. Submitting further, the learned counsel added that, despite the sudden change of the value, the respondent did not tell the Court whether she made a valuation, which resulted in the shift in value. It was Mr. Nkugu's contention that the respondent concealed some information and description of the properties to the trial court in order for the Court to fail to ascertain if it is closed with pecuniary jurisdiction. Furthermore, the learned counsel added that the respondent had done that intentionally with the aim of fraudulently obtaining the letter of administration. The trial Court ought to have noted such a mistake and ordered for rectification before the Court could assume pecuniary jurisdiction over the matter, as in this case, the Court had no jurisdiction to entertain a probate cause that fell outside the small estate as required under section 6 of Probate and Administration of Estate Act (PAEA). To support his assertion, he cited the case of Annath Athuman Maseko vs. Lilian Kirundwa 5Rajab( as administrator of the estate of the late Joel Simbokirundwa, Civil Revision No. 1 of 2021. On another note, the appellant's counsel argued that, in determining the law applicable in the administration of the deceased estate, when it is shown that the deceased left no will, then the next test will be to look at the deceased mode of life so as to ascertain jurisdiction of the Court. He supported his assertion by citing the case of Gibson Kambumbulile vs. Rose Nestory Kambumbulile, Probate Cause No. 12 of 2020, and the case of Benson Benjamin Mengi and 3 others vs. Abdiel Reginald Mengi and others, Probate and Administration Cause No. 39 of 2019. He added, in the present case, as the purported will left by the deceased was expunged from the records, the mode of life test was applicable, which showed that despite the deceased contracting a Christian marriage with the respondent, he had five children from three different mothers which is against the Christian norms thus his estate ought to have been administered according to customary laws making the District Court lack jurisdiction to determine the matter. Based on the above reasons, the learned counsel prayed for the nullification of the proceedings that appointed the respondent.Submitting on the 2™ and 3” grounds of appeal, the appellant counsel advanced that the 1* appellant had succeeded in proving that she is the daughter of the deceased from the obvious reasons that she and her sister are using the surname of the deceased, which is the same surname used by the respondent children. Another reason is that during the trial, the appellant's aunt had testified before the Court that the 1* appellant and her sister were introduced by her late brother as her children, and she went further and tendered their birth certificates, which were admitted without any objection. It was the appellant's counsel's further contention that the 1* appellant and her sister succeeded in proving that they are biological children of the deceased after discharging their legal burden as required under section 110(1) and 112 of the Evidence Act and the respondent not only failed to counter the evidence of the appellant. She also didn’t cross-examine the witness called by the appellant rather than claiming for a DNA test to be conducted when she was testifying. The counsel further alleged that, as the 1* appellant and her sister had successfully proved they were children of the deceased, they had all rights to inherit from the deceased estate regardless of the fact they are born 7outside the marriage as claimed by respondent, citing Article 12 of the Constitution and the case of Judith Patrick Kyamba vs Tunsume Mwimbe and 3 others, Probate Cause No. 50 of 2016, where the High Court at Dar es Sallam held that illegitimate children have the right to inherit the deceased estate. He added after being appointed as administratrix, the respondent became a legal representative of the deceased and was required under section 66 of the PAEA to take an oath that she would faithfully administer the estate and account for the same. Further, he stated, in the present case, the administratrix excluded some of the deceased children and the deceased mother from inheriting, making her incompetent person to administer the estate thus, he prayed for her appointment to be revoked under section 49(1)(b) and (c) of PAEA. Responding to the appellant's submission, the respondent counsel, on the first ground of appeal, advanced that when the Court appointed the administratrix, she had no knowledge of the value of the estate left by the deceased, as at the time of petitioning, the law only requires only the estimated value of the estate. He argued the appellant's contention that the respondent concealed the value of the estate is unfounded. He added that 8it is after the appointment that the administratrix is required to collect all the properties of the deceased liabilities, pay creditors, and submit inventory and account of the estate. According to him, it is not possible to know the actual value prior to the appointment. With regards to the cases cited by appellant counsel, Mr. Swenya advanced that the cases are distinguishable to the case at hand, as in the cited case, the administrator did not list the properties in the inventory well as in the present case, the respondent listed all the properties in inventory. To conclude on the 1% ground of appeal, the learned counsel cited section 86(1) of the PAEA, which provides that no appointment should be invalid for the reasons only that it is afterward discovered that the deceased estate exceeds the amount, to support his assertion that the ground lacks merit. On the 2" ground of appeal, the respondent counsel contented that, in their affidavit supporting the application for revocation, the appellant had admitted that the respondent was the one appointed by the clan to administer the estate. They also revealed that the value of the estate is shown in the inventory. According to him, the respondent concealed no properties. The trial Court was correct in dismissing the application.He added as the appellants alleged that after their perusal, they had discovered that there was a missing account, it was their duty to inform the respondent so that she could make follow-up. It was his further assertion that, as the appellant couldn’t do that, then their assertions were mere gossip with the view to frustrate the respondent in performing her duties. To conclude on this ground, the learned counsel cited the case of Violet Ishengoma Kahangwa and Jovin Mutabuzi vs. Administrator General and Mrs. Eudokia Hakangwa (1990) TLR 72, which held that putative father obligation under bastardy or affiliation order ends with his death, to support the assertion that as one of the appellants is an illegitimate child, then the ground lacks merit. With regard to the 3% ground of appeal, the learned counsel asserted that the appellant misconceived themselves as, from pleadings, they were complaining about an illegitimate child. However, the appellant is an adult person and, thus, not covered by the meaning of the child under the Law of the Child Act, which defines a child as a person beiow the age of 18. Differentiating the cases cited by the appellant, the respondent counsel advanced that the cases arz different, as in the cited cases, the children were introduced by the deveesed to the family, while in the present case, 10they were introduced after the death. The appellant did not take the trouble to take the DNA test. He added the appeliant was also denied in the will of the deceased, where the deceased only acknowledged the children who were born by the respondent. According to him, the appellant failed to prove to the standard required by the law that she is the daughter of the deceased. To support his assertion thal. the issue of recognition of the deceased illegitimate children lies to the . ceased himself, the counsel cited the case of Shabani Mussa Mhando ‘vi. Esther Msafiri Mando, Probate and Administration Cause No. 75 of 2020. On the 4" ground of appeal. che !earned counsel advanced that the appellant faults the trial Court for faliure to forward the file to the High Court after being aware of the value of the property. !iowever, he asserted that the contention is unfcunded as section 86(1) PACA provides that no appointment shall be invalid for the reasons that it was later discovered that the deceased estate exceeds the iamoute of Rb estate. He added the Court had jurisdiction to proceed with the matter even after the submission of inventory which reveated the estate to exceed tre value. To support his assertion, he cited the case of Godfrey Mosses Nyongi vs Elizabeth M. Ngongi, DC.Civil Appeal No. 9 of 2015. On the strength of the submission, the respondent prayed for the appeal to be dismissed with costs Rejoining, the appellant counsel reiterated what was submitted in chief and added that the issue of jurisdiction is fundamental, and parties cannot consent to give jurisdiction to the Court, which it doesn’t have. Responding to the respondent's assertion that during the petition, the petitioner is only required to provide estimated value, the learned counsel conceded to the assertion, but he added in the present case, the respondent purposely failed to give a description of the properties and mention them as a piece of land without indicating that they consist of a building with the aim of undervalue them so as to confer the Court with jurisdiction, as there is no way a property which consists of one flat store located at a prime area such as Mbezi Beach to be estimated at 40 million. Having gone through the records of the lower Court and the submissions of the parties, the main issue for my determination is to see whether the present appeal has merit. In determining the said issue, I will start addressing the second and third grounds of appeal, which wish to challenge the trial Court for failure to 2determine about the deceased children. Despite the appellants' complaints, from what transpired during the trial, it is evident that, as both parties agree that accounts of the estate are yet to be filed before the Court, therefore the complaints are premature, The law requires that, after the appointment of the administrator of the estate, the person so appointed is required to collect deceased assets and liabilities. After the collection of the assets and if there are any liabilities, the administrator is required to pay all the deceased liabilities from the estate. If there are any remaining assets, he is required to distribute the same to all the deceased legal heirs. The administrator is required to exhibit the deceased assets and liabilities that come into his hand in the inventory, which is Form No. 80, and the distribution in the accounts of the estate, which is Form No. 81. This is in accordance with section 107(1) of PAEA which provides; "An executor or administrator shall, within six months from the grant of probate or letters of 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 full and true estimate of ail the property in possession, and all the credits, and also all the 13debts owing by any person to which the executor or administrator is entitled in that character, and shall in like manner, within one year from the grant or within such further time as the Court may from time to time appoint, exhibit an account of the estate, showing the assets which have come to his hands and in the manner in which they have been applied or disposed of.” What is gathered from the above provision, after filing the inventory, the administrator is required to exhibit an account that shows the assets that come into his hand and the manner in which they have been disposed of. As in the present case, the same is yet to be filed. It goes without saying that the complaint had been prematurely made, as it is in the account of the estate where the administratrix is required to distribute the property to legal heirs. If the same is filed and they are not included, that will be the proper time to raise the concern. For the reasons stated above, I see no reason to fault the trial Court for failure to determine the legal heirs. On the 1% ground of appeal, the appellant faulted the trial Court for determining the matter without having jurisdiction to do so in terms of the applicable law and the pecuniary jurisdiction.In terms of the law applicable, it was the contention of the appellant's counsel that, as the deceased had children outside his marriage with the respondent, which is contrary to Christian norms, then it shows that the deceased abandoned Christianity. The law applicable in the administration of his estate is customary law, making the District Court lack jurisdiction. Despite the appellant counsel's assertion, it is on record that the deceased was Christian, and he even had a Christian marriage with the respondent, a fact which the appellant counsel! does not dispute. Thus, the act of having children outside of his marriage per se does not prove that he lived the customary way of life, especially when the allegations are yet to be proved. As it was shown that the deceased was Christian, then the District Court had jurisdiction to determine the matter. On another note, the appellant also challenged the jurisdiction of the Court as the value of the estate of the deceased exceeded the value of the small estate, which the District Court has jurisdiction to entertain. In addressing this issue, this Court will also address the 4" ground of appeal. The law under section 6 of the PAEA gives power to the District Court to entertain probate matters which involve sma! estates. According to section2 of the PAEA as amended by the Written Laws (Miscellaneous Amendments) (No. 2) Act, 2016, a small estate is defined to mean, and I quote; “Small estate” means an estate the gross value of which a court, district court, or other authority having jurisdiction in probate and administration is satisfied, does not exceed one hundred million shillings.” It is from the above provision that the appellant alleges that the District Court had no jurisdiction, as the inventory filed showed that the deceased estate exceeded 100 million. It is not disputed that when the respondent was petitioning for the grant, she indicated that the estimated value of the estate does not exceed 100 million, a fact which the appellants allege was purposely done to undervalue the properties so as to confer jurisdiction to the Court which it did not have. It is from that argument that the appellant advances that the letters were obtained fraudulently and, hence, should be revoked. Despite the appellant's allegation, I agree with the respondent's counsel that at the time of petitioning, the respondent could not be in a better position to know the actual value of the properties, and that’s why section 56(1) d ofPAEA requires the petition to state the amount and nature of assets which are likely to come into the petitioner's hands. It is after the appointment that the respondent is required to exhibit in the Court an inventory that contains a complete and accurate estimate of all the property in possession as provided under section 107(1) of PAEA. In the present case, in the petition for appointment, the respondent indicated that the value of the estate does not exceed 100 million, but during the filing of inventory, it is shown that the actual value of the estate of the deceased is more than 500 million, a value which is beyond the jurisdiction of the District Court. In his submission, the respondent advanced that the fact that the estate exceeded 100 million does not invalidate the grant in accordance with section 86(1) of PAEA. The relevant section reads; "Wo appointment of an administrator under this Part shall be invalid by reason only that it is afterward discovered that the value of the gross estate of the deceased exceeded ten thousand shillings, but, where it becomes aware of such case, the district court shall report the matter to the High Court which may, if it thinks fit, grant probate or letters of administration.” yvFrom the cited provision, I agree with the respondent's counsel that no appointment will be invalid for the reasons that it was afterward discovered that the value exceeded that of a small estate. However, the section provides that when the District Court becomes aware that the value of the estate exceeds, it shall report the matter to the High Court, which, if it thinks fit, will grant the letter of administration. The requirement of reporting the matter to the High Court is coached in a mandatory term. Thus, it was imperative for the District Court, upon being aware that the estate exceeded the value for a small estate, to report the matter to the High Court. In the present case, despite the respondent exhibiting inventory that showed that the actual value of the estate exceeds 100 million, making the Court aware of the exact value of the estate, the Court didn’t report that fact to the High Court but instead, it proceeded with the matter which it has no jurisdiction with. The defect is fatal as it touches the jurisdiction of the Court, and for that matter, the whole proceedings are invalid. Having so observed, I hereby quash the whole proceedings of the trial court for lack of jurisdiction and all the orders thereto. The respondent or any interested person is advised to make a fresh petition to the Court which has 18jurisdiction to determine the matter. In the event this appeal is allowed with no orders as to costs. Dated at Dar es Salaam this 02" day of October, 2024. S.S. SARWATT KAZI — JUDGE Delivered in the presence of the appellant in person and the respondent in person. The right of appeal is fully explained. 19