Abbas Ally Athuman Bantulaki and KCB Bank Tanzania Limited vs Kelvin Victor Mahity (Civil Appeal No.385 of 2019) [2022] TZCA 3042 (18 August 2022)

ABBAS ALLY ATHUMAN BANTULAKI, KCB BANK TANZANIA LIMITED V. KELVIN VICTOR MAHITY (Administrator of the Estate of late PETER WALCHER) COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LILA, KITUSI, AND MASHAKA, JJ.A.) CIVIL APPEAL NO.385 OF 2019 (From the decision of the High Court of Tanzania at Dar es salaam, dated 7 th December,2018 in Land Case No.116 of 2014) Probate and Administration of Estate-Administration of Estate - Administrator -Legal personal representative-registered legal personal representative Land Law-ownership-sale-ultimate good faith-good title-whether the sale of disputed land of the deceased by the legal personal representative could pass good title to other party claiming ownership-whether the learned trial judge’s order vesting ownership of the disputed Land to the Respondent was legally proper. This appeal originated from the High Court, whereby the respondent is a successor administrator to his late brother Erick Peter Walcher. The latter was, on 27/2/1998, appointed the administrator of the estate of his late father Peter Walcher who died intestate on 2/2/1995. Initially, Erick Peter Walcher instituted this suit against the appellants. Unfortunately, he did not survive to pursue his claims to its conclusion as he passed away before the hearing and determination of the suit. It was then when the respondent applied and was duly appointed administrator of the estate of Peter Walcher and he was inclined to amend the plaint in line with the change of administrator. Held: (i) The Court stated that the administrator’s actions are bound to be for the

benefit of the rightful heirs and are precluded from embezzling in any way misapplying the deceased estate. (ii) Further, the requirement to appoint an administrator of the estate or executor of the will of the deceased is not a luxury but is done with a purpose. (iii) A legal representative is required to apply to be registered as owner of a deceased property in the place of the deceased and upon being so registered he becomes vested with the mandate to exercise various powers stipulated including disposition. The Appeal was allowed. Caselaw referred to: (i) Joseph Shumbusho vs. Mary Grace Tigerwa and 2 others, Civil Appeal No.183 of 2016(unreported). (ii) Scan Tan Tour Ltd. vs. The Catholic Diocess of Mbulu, Civil Appeal No.78 of 2012 (unreported). (iii) James Funge Ngwagilo vs. Attorney General (2004) TLR 161 Statutory provision referred to: (i) Section 66 and Section 99 Mr. Elisa Abel Msuya and Ms. Regina Anthony Kiumba for the Appellants Mr. Wilson Edward Ogunde and Mr. Magusu Mugoka for the Respondent.