Said Mpambije Kamaga and Another vs Nyamende Swetu Fundikira and Others (Civil Appeal No. 430 of 2022) [2023] TZCA 18032 (6 October 2023)

SAID MPAMBIJE KAMAGA & ANOTHER VS NYAMENDE SWETU FUNDIKIRA & OTHERS COURT OF APPEAL TANZANIA ( CORAM: MASOUD, J.A., MKUYE, J.A., GALEBA, J.A. ) CIVIL APPEAL NO. 430 OF 2022 (Appeal from the Judgment of the High Court of Tanzania at Tabora d ated 6th day of June, 201 6 in Civil Case No. 17 of 2015 ) Succession Law – Administration of estate – Consent of heirs not required for disposition by legal administrator – Validity of agreements in estate administration. The Court of Appeal of Tanzania allowed the appeal against a High Court decision which nullified the sale of a house belonging to the estate of the late Swetu Nsimba Fundikira. The second appellant, the administratrix, sold the house to the first appellant , but the High Court had found the sale illegal for lack of heirs' consent. T he court had to decide on w hether the administrator of a deceased's estate is required to obtain the heirs' consent when administering the estate ; w hether the sale agreement of the suit house was illegal and w hether the first appellant was a bona fide purchaser despite the dispute on the necessity of heirs' consent. On appeal, the Court of Appeal held that an administrator is not legally required to have heirs' consent when acting in the best interests of the estate. The court further found that the sale was conducted lawfully by the administratrix before her removal from the position, establishing that the first appellant was indeed a bona fide purchaser. The claims of fraud were not substantiated, affirming the legality and validity of the sale. Consequently, the decision of the High Court was set aside without any o rder as to costs.

Held: (i) The court held that an administrator is not legally required to obtain the consent of heirs before disposing of estate property, relying on established precedents. (ii) The sale of the suit house was considered valid as the second appellant acted within her legal capacity as the administratrix. (iii) The court recognized the first appellant as a bona fide purchaser, and the transaction was not fraudulent or illegal as alleged. (iv) The allegations of fraud were not substantiated during the proceedings, leaving the sale agreement valid. The appeal was allowed. The judgment and decree of the High Court were quashed and set aside. No order as to costs. Statutory Provisions referred to : (i) Rule 9(2)(a) Primary Courts (Administration of Estates) Rules, GN No. 49 of 1971 (ii) Section 99 Probate and Administration of Estates Act, Cap. 352 R.E. 2002 Cases referred to : (iii) Ahmed Mohamed Al Laamar v. Fatuma Bakari and Another, Civil Appeal No. 71 of 2012 (unreported) (iv) Aziz Daud v. Amin Ahmed Ally & Another, Civil Appeal No. 30 of 1990 (unreported) (v) Dativa Nanga v. Jibu Group Company Limited and Another, Civil Appeal No. 324 of 2020 (unreported) (vi ) Joseph Shumbusho v. Mary Grace Tigerwa and 2 Others, Civil Appeal No. 183 of 2016 (unreported) (vii) Mohamed Hassani v. Mayasa Mzee and Mwanahawa Mzee [1994] TLR 225 (viii) North Mara Gold Mine Limited v. Isaac Sultan, Civil Appeal No. 458 of 2020 (unreported)