Abdu Zeni Slim vs Kassim Zeni Slim (Civil Appeal No. 617 of 2022) [2025] TZCA 824 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA, J.A., KENTE. J.A. And MANSOOR. J.A/1 CIVIL APPEAL NO. 617 OF 2022 ABDU ZENI SLIM..................................................................................APPELLANT VERSUS KASSIM ZENI SLIM........................................................................ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) (Muqeta, 3 .) dated 4th day of October, 2022 in Probate Cause No. 44 of 2022 JUDGMENT OF THE COURT 30th July & 7th August., 2025 MANSOOR, J.A.: The two parties herein are siblings, both the sons of the Late Zeni Rashid Slim who died on 17th December 2017. Soon after his demise, Kassim Zeni Slim, (the respondent), initiated a succession cause in respect of his estate, in Probate and Administration Cause No. 44 of 2022, applying to be confirmed as the executor named in the will of the deceased allegedly made on 04th January 2020. The petition was premised on Section 55 of the Probate and Administration of Estate Act, Cap 352, (the Act) and Rule 33 of the Probate and Administration Rules, (the Rules).

The appellant Abdu Zeni, also a son of the deceased who was born out of wedlock together with Husna Aboud Abubakar, the wife of the deceased filed a caveat under Section 58 of the Act and Rule 82 of the Rules seeking to challenge the validity of the last will of the deceased and opposed the confirmation of the executor named in the will. The caveators complained that the will of the deceased had not made any provision to cover their interests in the deceased's estate and the reasons stated in the will for disinheriting them were not justified. While Abdu Zeni complains that he is entitled to his share in the deceased's estate for he is the deceased's son, although born out of wedlock, Husna Aboud, on the other hand, stated that apart from being a legally married wife and thus entitled to inherit, she also contributed to the acquisition of the estate of the deceased as she was employed and had a good income during the subsistence of their marriage with the deceased. They both complained that the executor named in the will, would not act fairly as there is bad blood between them. They both challenged the validity of the will, which they said was not disclosed to them until the deceased's funeral. They claimed that the will bequeathed property to the children namely, Kassim Zeni Slim, 2

Nuru Zeni Slim and Nasrat Zeni Slim only, leaving them disinherited. Husna Aboud accused the executor and his mother of exercising undue influence on the deceased so as to make a will which made the children of the co-wife the only beneficiaries of the estate. They claimed that the will did not reflect a true representation of the true and final testament of the wishes and intentions of the deceased. They also alleged that the will was inconsistent with the Islamic rules and rituals as to inheritance as to raise concerns over its authenticity. Through the testimony given in court by PW1 Mwajuma Abdul Magoma, the custodian of the will and PW4 Advocate Godson Nyange, who said it was a valid last will of the deceased, drafted by PW4 and kept in custody by PW1, and what was expressed therein were the true wishes of the deceased. PW4 testified in court that the deceased did not want his second wife to inherit as she had deserted him soon after she found out that the deceased was diagnosed with a terminal disease of cancer. He was also unhappy with his son's behaviour as he was demanding inheritance even before his death. These witnesses stated that the will made his three children born to his first wife the only beneficiaries, and they were to share the estate in the manner stated in the will. 3

The respondent on the other hand, stated that, the fact that the appellant did not know if there existed any will by the deceased, was not good ground for invalidation of the will. The respondent denied having exercised undue influence on the deceased at the time of making the will as he was also not aware that his father had made a will until the day of the funeral. After a full blown trial, the learned judge invalidated the will for the reasons that it was made against the canons of Islam. He said, in Islam, it is not permitted to bequeath more than 1/3 of the estate, and the testator of the will cannot bequeath the estate to the heirs as the heirs' interests are taken care of by the rules of distribution of estate in the holy book of Quran. The judge said at page 5 of the Judgment: "Having determ ined the applicable law, I move to the validity o f the will. It is settled that a Mohammedan cannot bequeath more than 1/3 o f h is estate. This is the holding in N aim a Ib ra h im a s a T rustee o f M oham ud a b d u lra su l Is m a il vs Isa y a T sa k iris, C ivil Appeal No 119 o f2009, Court o f Appeal, Dar es Salaam (unreported). It is also settled that a Mohammedan cannot bequeath by w ill his estate to his heirs. The said 1/3 share relates to a bequeath to strangers as fo r the heirs their

share is already described under the H oly Quran a t Surat An-Nisa The learned Judge therefore invalidated the will for the reasons that it was made against the Mohammedan Law. The judge also determined that the will of the deceased or the administration of his estate was to be administered under Islamic law since the deceased professed Islam during his lifetime, and he declined to hold otherwise as he was not in a position to examine and judge the lifestyle of the deceased during his lifetime as that is within the exclusive domain of God. He ruled further that the child born out of wedlock in Islam is entitled to Hibah under verse 4.8 of Surah An-Nisa, and the Islamic inheritance is never discriminatory. He went ahead and appointed the respondent to administer the estate under Islamic law. The appellant was utterly aggrieved. Through his counsel, Mr. Geoffrey Deogratius Mushumbusi, learned advocate, he filed the present appeal fronting four grounds, and obtained leave during the hearing to add one more ground. However, during the hearing he dropped all four grounds contained in the memorandum of appeal and argued only the additional ground, which was to the effect that the Judge had erred as after invalidating the will, he ought to have

dismissed the petition for grant of probate, and leave the parties at liberty to apply for letters of administration. The argument of Mr. Mushumbusi on this ground was brief, relying heavily on the decision of this court in Jane Vitus Kapinga vs Wolfgang Michael Nyange, (Civil Appeal No. 626 of 2024) [2025] TZCA 758 (28 July 2025), which held that it was erroneous for the trial judge to grant letters of administration while the application before him was for the grant of probate. Mr. Atlay Esao Thawe, learned advocate who appeared for the respondent agreed to this position and therefore did not oppose the appeal. After a careful consideration of the submissions made by Mr. Mushumbusi and the authorities quoted, we hold that, the correct position of the law is as we stated in Jane Vitus Kapinga (supra). It is the correct position of the law that, although probate and letters of administration are both grants of representation that allow a person to manage the estate of a deceased person, probate is granted when the deceased died testate and when a valid will exists, naming an executor to administer the estate, while letters of administration are granted when the deceased dies intestate without leaving a valid will. 6

It is also true that probate is the process through the courts of validating the will and approving the executor named in the will to manage the assets already distributed or bequeathed by the deceased himself, while letters of administration are granted by the court to a person forpurposes of distributing the deceased's assets fairly. The processes also are different, and the provisions of the law governing probate are not the same as those governing the letters of administration. For grant of probate, for instance, the applicable provisions of the law are section 25 of the Act and Rule 33 of the Rules. The petitioner is required under rule 33 to file the following when applying for a grant of probate: Rule 33 (1) A petition for grant of probate shall be in the appropriate form prescribed in Forms 18, 20, 21 and 22 set out in the First Schedule and shall be accompanied by the following documents— (a) the last will of the deceased and all codicils thereto and, when necessary, a translation thereof; (b) subject to the provisions of rule 63, a certificate of death of the deceased signed by a competent authority;

(c) an affidavit as to the deceased's domicile at the time of his death; and (d) the executor's oath For letters of administration, the petition is accompanied by the following documents prescribed under rule 39 of the rules: Rule 39 A petition for letters of administration shall be in the form prescribed in Forms 26 or 27 set out in the First Schedule, whichever is appropriate, and shall be accompanied by the following documents— (a) subject to the provisions of rule 63 a certificate of death of the deceased signed by a competent authority; (b) an affidavit as to the deceased's domicile; (c) an administrator's oath; (d) subject to the provisions of rule 66, an administration bond; (e) a certificate as to the financial position of the sureties; (f) subject to the provisions of rules 71 and 72, consent of the heirs; and (g) in the case of an application for a grant to a sole administrator, an affidavit as required by rule 32. While a petition for the grant of probate is accompanied by only the will, the death certificate, the executor's oath, and the affidavit for proof of the domicile of the deceased at the time of his death, the petition for letters is somewhat sterner for prevention of unscrupulous 8

persons from misappropriating the estate to the detriment of the beneficiaries. In a petition for letters of administration, the petitioner is required under rule 39 to file in court, one, the administrator's oath, two, administrator's bond, three, a certificate from the sureties certifying on the financial position of the administrator and four, consent of the heirs agreeing that they have consented that the petitioner is a fit person for the administration of the deceased estate, thus he be appointed. The apparent differences in the procedural requirements for a grant of probate versus letters of administration are not mere technicalities but are deeply rooted in the distinct nature of these grants and the need to protect the deceased's estate and the interests of beneficiaries. For instance, the stringent requirements for obtaining letters of administration, including the administrator's oath, administration bond, and sureties' certificates, as stipulated under Rule 39 of the Rules, are primarily aimed at safeguarding the interests of beneficiaries in the absence of a clear testamentary disposition and a pre-appointed executor. This framework provides an essential layer of security and accountability to prevent misappropriation of assets when there is no valid will. This contrasts with probate, where the testator's 9

express wishes, as documented in a valid will, and the named executor's appointment, provide a different framework for oversight, thus requiring fewer safeguards regarding financial sureties from the executor. This Court has consistently emphasized that adherence to the prescribed procedural framework in probate and administration matters is not a mere formality but is fundamental for ensuring due process, protecting the rights of all interested parties, and maintaining the integrity of the administration of justice. For instance, in the case of Monica Nyamakare Jigamba vs Mugeta Bwire Bhakome & Another (Civil Application No. 199 of 2019) [2020] TZCA 1820 (16 October 2020), we explained the rationale of procedure of issuing citation to the caveator and the consequences of failure to do so. Any deviation, such as granting letters of administration without a proper petition accompanied by all the documents under Rule 39 of the Probate and Administration Rules, constitutes a fundamental procedural irregularity that warrants intervention by this Court. As we held in Jane Vitus Kapinga vs Wolfgang Michael Nyange, (supra), that it is erroneous for a trial judge to grant letters of administration when the application before the court was specifically for a grant of 10

probate, especially when the will forming the basis of that probate application has been invalidated. The correct course of action, once the will was invalidated, was to dismiss the petition for probate, leaving the parties at liberty to apply for letters of administration through the proper channels and in accordance with the prescribed legal procedures. We therefore, agree that the High Court erred in appointing the respondent as the administrator of the estate of the deceased as the appointment was made in the absence of a proper petition for letters of administration before the court as required under section 33 of the Act as well as Rule 39 of the Rules. The leaned judge could not proceed to appoint the administrator in the absence of the petition, the administrator's oath and bond, the certificates from the sureties certifying as to the financial position of the administrator, and consents from all the heirs agreeing to his appointment. We agree that the judge ought to have dismissed the petition for grant of probate after having found the will to be invalid. Consequently, based on the above, we allow the appeal. Resultantly, the decision of the High Court to the extent of the appointment of the respondent as the administrator of the estate of the 11

Late Zeni Rashid Slim made in Probate and Administration Cause No. 44 of 2022 is quashed and set aside. A party or anyone interested in administering the estate of the Late Zeni Rashid Slim who died intestate may petition for letters of administration in the competent court and in accordance with the law. Since this is a family dispute, we shall make no orders as to costs. DATED at DAR ES SALAAM this 6th day of August, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 7th day of August, 2025, in the presence Mr. Geofrey Deogratias Mushumbusi, learned counsel for the appellant and Mr. Atlay Esao Thawe, learned counsel for the respondent, is hereby certified as a true copy of the original. 12