Gerson Wilson Babyebonela vs Praxeda Paul Babyebonela (Civil Appeal No. 27187 of 2025) [2025] TZHC 8756 (19 December 2025)
Judgment
IN THE HIGH COURT OF TANZANIA AT TEMEKE SUB-REGISTRY ONE STOP JUDICIAL CENTRE AT TEMEKE CIVIL APPEAL NO. 27187 OF 2025 Reference no. 202510221000027187 Appeal from the decision of the District Court of Temeke at One Stop Judicial Centre Hon. Ngogo RM dated 19th September, 2025) GERSON WILSON BABYEBONELA .................................... APPELLANT VERSUS PRAXEDA PAUL BABYEBONELA RESPONDENT JUDGEMENT Date of last order: 15/12/2025 Date of Judgement: 19/12/2025 S D MWAIPOPO J This is an appeal against, the decision of the District Court of Temeke at Temeke One Stop Judicial Centre, in a Probate and Administration Cause no. 10104/2025 delivered by Hon. Ngogo RM on 19th September, 2025. The facts of this case are that, upon the death of Wilson Tilotwa Babyebonela on 21/4/2024 at Muhimbili Hospital, his wife, Praxeda Paul Babyebonela, the i
Respondent herein, petitioned for letters of administration before the District Court of Temeke at Temeke One Stop Judicial Centre. Following the filing of the Petition and upon publication or citation of the matter, the Appellant herein entered a caveat, objecting the appointment of the Respondent as an Administrator. As per section 52 of PAEA, the matter turned into a civil suit whereby the Petitioner became the plaintiff and the caveator became the defendant. Upon hearing the matter, the District Court granted the Petition and appointed the Respondent as an administrator of the estate of the late Babyebonela. Aggrieved by the Judgement and Decree of the District Court, the Appellant approached this court with a Memorandum of Appeal, containing the following grounds;
- THAT, basing on the evidence given, the trial magistrate erred in law and fact in appointing administrator of estate who is not trust worth;
- THAT, basing on the evidence the deceased have issues apart from the Appellant and the relationship between the respondent (sic) erred in law and fact appointing only the Appellant as the administrator of estate.
- THAT, basing on the evidence given, the trial magistrate erred in law and fact(sic) the appellant did intentionally ignore most the properties mentioned on 27 th day of April, 2024. 2
At the commencement of hearing both parties were represented. The Appellant was represented by Jacqueline Rweyongeza (Advocate) RK Rweyongeza & Co Advocates and the Respondent received legal services from Ally Cleophace Adrian. The hearing of the appeal was done by way of written submissions. Both parties complied with the schedule ordered by the court. Arguing in support of the 1 st ground of appeal, the Appellant contended that, based on the evidence given, the trial magistrate erred in law and fact, in appointing an administrator of the estate who is not trust worth. He argued that the Respondent as an administrator is also the wife of the late Wilson Tilotwa Babyebonela. She had all the rights to be an administrator of the estate of the deceased husband but if she is not trust worth, she does not deserve to be one. He submitted that, looking at the meeting held on 27th day of April, 2024 immediately after the burial there was a purported will which was presented and among others there was Honourable Rwezile J as one of the administrators. He contended that, he is not challenging the said will but the properties which were mentioned therein since the Respondent did not include some of them in the Application which was granted and appointed her as an administrator of estate of the late Wilson Tilotwa Babyebonela. The Appellant also referred to the meeting held on 16 th day of November, 2024, which also did include some of the properties including those which were mentioned in the meeting of 27 th day of April, 2024, in which the Respondent 3
was present and signed in the attendance. The Appellant wondered as to why the Respondent left out some of the properties yet she knew about them. More so she did not tell the court about the meeting held on 27 th day of April, 2024, yet one of the Respondent's witnesses, Gilbert Wilson Babyebonela acknowledged in the meeting when giving evidence though purported not to remember what transpired in the said meeting. He contended that, the said meeting is also in the court records whereby, the Appellant, Respondent and Gilbert Wilson Babyebonela, one of the Respondent's witnesses, who is also the beneficiary attended. He argued that, the Respondent does not want to include the left-out properties as part of the estate of the late Wilson Tilotwa Babyebonela. He further argued, that this shows that, the Respondent is not trustworthy and that she gave false and inaccurate information to get the appointment. He referred the court to the case of Fransisca Joseph Chuwa v Kennedy Chua 2021 available at Tanzlii, whereby, the High Court held that; the proposed co administrator was "not trustworthy" and lacked capacity because he was not conversant with the affairs of the estate and the heirs. He argued that, the decision may not fit direct to the case but the fact that the Respondent has shown the spirit of not being trustworthy, hence she lacks the capacity of being an administrator while she was very close to the deceased person as a wife. Arguing on the 2 nd ground of appeal, the Appellant submitted that, based on the evidence that the deceased have issues apart from the Appellant and the relationship between him and the Respondent, the court erred in law and in fact in appointing only the Appellant as the administrator of estate. 4
He argued that the deceased had issues from different women, one being the Respondent who is the appointed administrator of the estate of the late Wilson Tilotwa Babyebonela. The Respondent's relationship with the Appellant is bitter to the extent that they do not talk to each other. He argued that, even the time the Respondent was seeking consent from the beneficiaries and the whole process, she sent one Gilbert Wilson Babyebonela to do what was expected of the Respondent to do when applying for letters. He wondered If they don't communicate, then how will the Respondent distribute the properties fairly to the beneficiaries, who are from different women. He contended that, an administrator must communicate with the beneficiaries and must keep them informed about the progress of administering the estate. Failure to communicate is considered a misconduct and can lead to removal or revocation of the administrator's appointment. He argued that, the Respondent does not communicate with the Appellant who is one of the beneficiaries. He wondered as to how she will communicate with him as an administrator since she even sent Gilbert Wilson Babyebonela to inform him about the Petition and went on swearing the affidavit that the Appellant refused to give consent and failed to accompany the affidavit of Gilbert Wilson Babyebonela. The said affidavit in that manner contains lies as she was not the one who communicated with the Appellant. Further, during the hearing of the case, the Respondent informed the court that, she sent Gilbert Wilson Babyebonela because the Appellant and the Respondent do not communicate. Hence as an Administrator, if she cannot communicate with the Appellant then she cannot perform her duties accordingly. 5
Arguing on the 3rd ground of appeal, the Appellant submitted that, basing on the evidence given, the trial magistrate erred in law and fact since the Appellant did intentionally ignore most of the properties mentioned on 27th day of April, 2024. He submitted that, on the meeting held on 27 th day of April, 2024 where both parties were present, some properties were mentioned and the meeting on 16 th November 2024 they were left out. This is among the things which the Appellant complained before the lower court and was ignored. He argued that the Respondent did not bring the evidential value on the properties which were left out bearing in mind that she was closest to the deceased. He argued that, when applying for letters of administration the administrator must: a) disclose all known assets of the deceased b) submit a true inventory c) later submit a true account of distribution That failure to do so, is a breach of fiduciary duty. The Respondent when applying for letters of administration did hide some properties which were mentioned in the clan meeting held on 27 th day of April, 2024. Based on his submissions, he prayed for the Judgment and Decree as follows: a. The appeal be allowed b. The Honorable Court pleased to appoint the respondent as a co administrator. c. The Honorable Court to order the administrator to include the listed properties which were mentioned on the 27th day of April, 2024. d. Any other relief this Honourable Court may deem fit to grant. Submitting in rebuttal, the learned counsel for the Respondent submitted as follows; 6
With regard to the first ground of appeal, the Respondent contended that, the Appellant has not placed before this Honorable Court any credible evidence demonstrating that the Respondent is untrustworthy or that she acted dishonestly in the process of seeking letters of administration. During trial, the Appellant relies heavily on the minutes of family meetings held on 27 th day of April, 2024. While the meeting was culturally important, it cannot be conclusive evidence of ownership of the said properties under the law as the Appellant wanted the court to rule out on that path. According to the Appellant, there existed a document purported to be the deceased's Will, which allegedly contained a list of some of the deceased's properties. However, the Respondent contends that, the purported Will cannot be relied upon, as it was never presented before the court, after being found to be invalid, as testified by PW1 and reflected at page 4 of the Judgment. The Respondent referred to page 7 of the Judgment, where the court stated as follows; "To start with, the first ground that there is another family minute dated 27 April 2024 in which the Will of the deceased was read and that, the Will distributed the estate and listed the administrators, the minute was admitted as exhibit DI. Admittedly, exhibit DI shows that there was a document brought by Honourable Judge Rwizile and was read at the clan meeting after burial which distributed some of the estate. The said document however cannot detain me since it has not been claimed even by the caveator himself to be a valid Will as he kept referring to it as a "a purported Will" in his Affidavit confirming that it has not attained the qualities of a valid Will. So, the issue of a Will is 7
out of context. And since the said minute of 27 April 2025 did not appoint the administrator, it has no impact as well". The learned counsel submitted further that, the grounds raised by the Appellant before the trial court claiming that the Administrator was untrustworthy by relying on the purported Will presented during the clan meeting and admitted as Exhibit DI are without merit. It is was his submission that, the Respondent is fit, trustworthy, and capable of administering the estate of the deceased since she is the widow of the deceased and she was appointed by the clan meeting and she followed all the procedures stipulated under the Probate Act and its Rules to petition for the same. The learned counsel referred to section 33(1) of the Probate and Administration of Estates Act, which clearly stipulates that where a deceased person has died intestate, letters of administration may be granted to any person who, according to the Applicable rules of distribution of an intestate estate, would be entitled to the whole or any part of the deceased's estate. Being the widow of the deceased, the Respondent was therefore a fit and proper person for appointment by the trial court. He argued further that, although the Appellant's allegations challenging her trustworthiness were duly considered and dismissed by the trial court on the grounds reflected at page 7 of the Judgment, such allegations were premature, as the Appellant will still have the opportunity to raise them at a later stage should he be dissatisfied with the Inventory or Final Accounts to be filed by the Respondent. 8
He asserted that, section 108(1) of the Probate and Administration of Estates Act imposes a duty on an executor or administrator to collect the properties and debts due to the estate, to pay the deceased's debts and the costs of administration, and thereafter to distribute the estate to the rightful beneficiaries or to trustees for such beneficiaries in accordance with the law. If an executor or administrator fails to discharge these statutory obligations, any interested person may petition to the court for revocation of the grant of the letters of administration. Such revocation may be sought on various grounds, including those cited by the Appellant, as provided under section 49 of the Probate and Administration of Estates Act as well as in the case of Joseph Shumbusho vs. Mary Grace Tigerwa & 2 Others, 6ivil Appeal No. 183 of 2018, CAT at Dar es Salaam (Reported on TanzLII) at page 2. Therefore, since the Administrator has not yet filed the Inventory or Final account, the allegation of failing to include certain properties even if it were true cannot hold water at the stage of appointment. He contended that, the Respondent being the widow of the deceased has consistently demonstrated responsibility and willingness to manage the estate in a transparent and orderly manner. There is no evidence before the court to suggest any incapacity, misconduct, conflict of interest, or disqualification that would render her unfit to serve in this role. Responding to the case of Francisca Joseph Chuwa vs. Kennedy Joseph Chuwa, Misc. Civil Application No. 60 of 2019, High Court of Arusha (reported on TanzLII), cited by the Appellant to justify his argument on trustworthiness, the learned counsel submitted that, the said authority is clearly distinguishable, as the court in that case was dealing with the issue of revocation 9
of a grant, and not the initial appointment of an administrator. Therefore, it has no any relevancy in the present case. After all, the Appellant himself admitted that the case is irrelevant. Thus, the Respondent implored this court to dismiss the appeal for lack of merit. Responding to the second ground of appeal, the Respondent contended that, family disputes or strained communication between the Appellant and the Respondent do not, in themselves, amount to incapacity or misconduct warranting the removal of an administrator. What must be demonstrated is actual prejudice to the estate, or proof that the administrator is unable or unwilling to discharge the legal duties imposed by law. This must be assessed in light of the fact that the Petitioner represents a larger group of beneficiaries whose interests must equally be protected. In the present case, no such prejudice or incapacity has been shown by the Appellant. The respondent duly included the appellant as one of the beneficiaries. It is also trite that there is no legal requirement for an administrator to personally deliver every communication to each beneficiary. What is essential is that the beneficiary is informed. The method of communication whether directly or through another family member does not constitute misconduct, nor does it amount to any of the grounds for revocation or disqualification stipulated under Section 49(1) of the Probate and Administration of Estates Act. Furthermore, the Respondent submitted that, the evidence on record clearly demonstrates that, the Appellant was duly informed and invited to attend the relevant meeting concerning the administration of the estate. His failure to participate was not due to any omission on the part of the Respondent, but rather a deliberate choice on his own part, based solely on the fact that the 10
communication was not delivered by the Respondent personally. Considering that the Petitioner fully discharged her duty to notify him, his voluntary decision not to attend cannot now be used as a basis to fault the probate process. The learned counsel referred the court to Rule 72 (1) of the Probate Rules which allows the petitioner to file an affidavit in lieu of consent where the consent of the beneficiary cannot be obtained. He contended that, the record clearly demonstrates that notices regarding the convened meeting, as well as subsequent discussions pertaining to the estate, were communicated to him through established family channels. Despite receiving this information, the Appellant deliberately chose not to participate in the meeting. It is for this reason that the Petitioner reasonably opted to take an alternative course by filing an affidavit, a step that is fully permissible under the law. He argued further that the Appellant, has failed to demonstrate how the alleged relationship in any way hindered the administrator from performing her duties, let alone justified faulting her appointment. He termed what has been presented by the Appellant as mere speculation, unsupported by any substantive evidence capable of displacing the trial court's findings. In the absence of credible proof showing that the administrator was unfit, biased, or acted contrary to the interests of the estate, he argued that, the grounds advanced by the Appellant collapse entirely. The Respondent implored the court to uphold the decision of the trial court was being sound and well-reasoned and dismiss this ground for lack of merit. With regard to the third ground of appeal, which challenges the Appellant's act of intentionally ignoring most of the properties mentioned on 27th day of April, li
2024, the Respondent submitted that, this complain has been prematurely brought before this court as the administrator has not yet filed the Inventory as per Section 107 of the Probate and Administration of Estates Act. Hence, the value of the estate, inclusion and non-inclusion of the deceased's estate are matters to be discussed during confirmation of an Inventory and or accounts of estate and not at this state. Also, the purpose of the Probate is to determine the suitability of the of the person who seeks to be appointed as an administrator of the deceased's estate and leave other questions in the hands of the administrator who upon being appointed becomes the legal representative of the deceased. This position was well enunciated in the case of Peter Augustino Mrema vs. Doris Agness Augustine Mkandaia (Civil Appeal No. 102 of 2024) [2025] TZCA 362 (16 April 2025) at page 17 as the court clearly provided that; "The court is only empowered to determine the suitability of the person who seeks to be appointed as an administrator of the deceased's estate and leave the question as to the rightful heirs/ beneficiaries in the hands of the administrator who upon being appointed becomes the legal representative of the deceased. " Accordingly, matters relating to the valuation of the estate, the inclusion or non inclusion of a particular property, and any questions concerning the proper administration of the deceased's assets are issues that fall to be determined during the confirmation of the inventory and or the submission of accounts of the estate hence they are premature and cannot be substantively considered at this preliminary stage of the proceedings. 12
It is the Respondent's humble submission that, the appellant has not provided any credible or admissible evidence demonstrating that those properties were ever presented before the trial court in a manner capable of being legally evaluated. Mere reference to discussions held during family meetings, without supporting documentary proof or proper inventory, cannot form reliable evidence of ownership of the said properties of the deceased. In light of the foregoing submissions, the learned counsel contended that, the Appellant has failed to adduce any credible evidence to challenge either the propriety of the Respondent's appointment as an administrator or the soundness of the trial court's findings. The grounds of appeal are based on mere assertions, unfounded allegations, and misapprehensions of both the law and the evidence on record. He emphasized that, the Respondent has complied with all the legal requirements under the Probate and Administration of Estates Act and its subsidiary legislation, including proper notification of beneficiaries, lawful petitioning of letters of administration, and adherence to the procedures governing consent and affidavits under Rule 72 of the Probate Rules. No evidence has been presented to demonstrate untrustworthiness, incapacity, misconduct, conflict of interest, or any statutory ground under Section 49(1) warranting removal or disqualification. Furthermore, he argued that, issues relating to the inclusion or omission of properties and the overall management of the estate are premature at this stage, as they fall to be addressed during the submission and confirmation of the inventory and accounts, in accordance with Sections 107 of the Act and the jurisprudence of the Court of Appeal. 13
He beseeched this court to find the appeal devoid of merit and dismiss it in its entirety and uphold the lawful appointment of the administrator by the trial court. Having heard the rival submissions of both parties, the central question to be resolved is whether the appeal has merit. In determining this appeal, I will also be guided by the following principles. One, this being the first appellate court, it has power and duty to reconsider and reevaluate the lower court records and arrive at it is own findings if necessary. See the case of Zalina Maulid Shabani vs Zauda Salehe Msami Pc. Criminal Appeal No. 123 of 2024 HCT Dodoma. Two, in determining the grounds of appeal, the appellate court can deal with the grounds of appeal seriatim, jointly or begin with any other ground that can dispose the appeal. In the case of Zuberi Bakari Mwichikitu vs Selemani Bakari Mwichikiti, Pc Civil Appeal No.91353 0 2023 the court observed that; "An appellate court, however, is not bound to determine all grounds of appeal. It can determine a ground that disposes of the matter alone. It can also determine the grounds jointly or generally or in seriatim. This stance was also well explained by the Court of Appeal in Malmo Montagekonsult AB Tanzania Branch vs. Margret Gama, (supra) whereby the court stated: 14
"In the first place, an appellate court is not expected to answer the issues as framed at the trial. That is the role of the trial court. It is, however, expected to address the grounds of appeal before it. Even then, it does not have to deal seriatim with the grounds of appeal as listed in the memorandum of appeal. It may, if convenient, address the grounds generally or address the decisive ground of appeal only or discuss each ground separately". In dealing with this matter I will begin to determine the 1 st and then the 3 rd ground of appeal since they are interrelated. Then I will end up with the 2 nd ground of appeal. With regard to the first ground of appeal, the Appellant has faulted the trial Magistrate for appointing an administrator of the estate who is not trust worthy. Submitting on the issue of appointment of the Respondent, the Appellant has contended that the Respondent is not a trustworthy person since she did not include all the properties of the deceased estate which were mentioned in the family meeting held on 27/4/2024, at the time of applying for letters of administration. Therefore, she was wrongly appointed by the trial court. Submitting in rebuttal, the Respondent disputed the submissions by stating that, the Appellant has not provided proof of the allegations of untrustworthy or dishonesty on the part of the Respondent at the time of applying for the letters. That the reliance on the minutes of the family meeting dated 27/4/2024 was flawed since the minutes are not a conclusive proof of ownership of properties. 15
With regard to the Will, the Respondent contended that it was found to be not valid and even the Appellant himself kept referring to it as a purported Will. The learned counsel emphasized that, the Respondent had all the qualifications of being appointed as an administrator under section 33 of PAEA and that she could only be revoked under section 49 of PAEA for failure to discharge her obligations. That the allegations of Inventory and Accounts of state are premature since these two documents have not been filed in court. Having reviewed the rival submissions of both parties on this aspect and the record of the District Court, I have observed that the Respondent herein filed a petition for the grant of letters of administration in respect of the estate of Wilson Tilotwa, Babyebonelwa who breathed his last on 21/4/2024, at Muhimbili National Hospital within Ilala District, in Dar es salaam. Following the filing of the petition, the Appellant herein filed a caveat objecting to the said petition. The grounds of objection contained in his caveat were to the effect that; a. The Administrator is untrustworthy b. The Assets were undervalued and most of them excluded c. Presence of family minute's dated 27 April 2024 in which the Will of the deceased was read, the appointment of the administrators was made therein and the distribution of the deceased's estate was made. d. Failure to involve the caveator in the Probate process. e. Lack of caveator's consent. f. Non inclusion of some of the deceased's estate in the petition and change. g. Undervaluation of the deceased's estate j h. Presence of two death certificates. > 16
With regard to the issue of untrustworthy on the part of the Respondent, the Appellant has contended that, the Respondent is not a trustworthy person since she did not include properties which were mentioned in the meeting dated 27/4/2024. She simply gave false and inaccurate information in order to be appointed as an administrator of the estate and that she undervalued the estate by pricing it at TZS 80,000, 000 instead of TZS 6 billion. After carefully reviewing the records contained in the District Court, I have observed that, in her petition for the appointment of the administrator of the estate, the Respondent included properties to be administered. Whether the list is false or inaccurate, this is an issue to be determined in the next stage of the execution of her duties as an administrator of estate. As stated by the District court, at this point, the court was only empowered to determine the suitability of the petitioner or her fitness to be appointed as an administrator. In this regard I also agree with the case of Augustine Lyatonga Mrema (supra) cited in the District Court's Judgement. As for the issue of undervaluation of the assets, I must also state that this issue is devoid of merit since the value which is indicated at that stage of appointment is only an estimate of the properties which have come across or in the knowledge of the petitioner. The Administrator is empowered under section 107 of PAEA to file an Inventory and carry out valuation of the deceased estate. Any value obtained, at the end of the day is always indicative and the actual value or price of the property are eventually determined by the market. 17
Further, as submitted by the learned counsel for the Respondent, the Respondent demonstrated qualifications to be appointed as an administrator of the estate as stipulated under section 33 of PAEA. The said section requires one to have an interest in the estate of the deceased person. It is undisputed that the Respondent is the wife of the deceased person hence she had an interest to petition in the matter. Even the Appellant in his testimony before the trial court stated that the Appellant is the second wife of the deceased person. This position was also affirmed in the case of Sekunda Mbwambo (supra) the court held that; administrator may be a widow/widows, parent or child of the deceased or any other close relative; if such people are not available or if they are found to be unfit in one way or another, the Court has the power to appoint any other fit person or authority to discharge this duty. Further, as demonstrated in her testimony, the Judgement of the District Court and also submissions of the learned counsel for the Respondent before this court, the Respondent fulfilled all the requirements of filing a petition under section 56, 72 and 73 of PAEA and Rule 39 of the Probate Rules, by including all the heirs in the petition including the Appellant, issuing citations and soliciting consents from heirs and filing an affidavit in lieu of consent when the Appellant's consent could not be procured. Therefore, the Respondent demonstrated transparency in administering the estate. This court is also mindful of the fact that once the administrator is appointed, then she is required to administer the estate faithfully and in good faith, otherwise she can be revoked vide section 49 of PAEA. 18
Therefore, the argument that the Respondent is untrustworthy is not supported by the evidence presented in court by the Appellant which is not sufficient to prove his case on balance of probabilities or win over the evidence presented by the Respondent which was weightier than his. It is trite law that he who alleges a particular fact must prove it. See section 117 of the Evidence Act Cap 6 as revised and the case of Paulina Samson Ndawanya. In the case at hand, the Appellant has failed to discharge the burden of proof. I further agree with the Respondent that, if the Appellant has issues with the Respondent and believe that she cannot perform her duties, then he can move the court to revoke her under section 49 of PAEA. Otherwise most if not all of the issues raised are non-existent or premature at this stage. This court is yet to be seized with the list of assets of the deceased person to do a meaningful determination. Moving to the third ground of appeal, the Appellant has contended that, the trial magistrate erred in law and fact since the appellant did intentionally ignore most the properties mentioned on 27th day of April, 2024, It was the Appellant's submission that, in the meeting held on 27/4/2025, there were properties which were mentioned therein, however, in the meeting of 16/11/2025 they were ignored and completely left out, consequently the petition which was filed in court was filed without such properties. That the Appellant complained before the District Court, but he was completely ignored. The Respondent on the other had disputed the said allegations stating that they had been brought before the court prematurely as the administrator has not yet 19
filed an Inventory as per Section 107 of the Probate and Administration of Estates Act. Hence, the value of the estate, inclusion and non-inclusion of the deceased's estate are matters to be discussed during confirmation of an Inventory and or Accounts of estate and not at this state and not at this stage. I must state at the outset that, I fully agree with the submissions of the Respondent on this ground of appeal which more or less relates to the first one. Indeed, these allegations are premature since the Inventory is yet to be filed in court. Unless and until the Inventory is filed pursuant to the provisions of section 107 of PAEA, then the beneficiaries can raise their objections, on whether the list is assets is exhaustive or not. At the stage of the appointment the Petitioner, would normally include the assists which would likely come into his/her hands. However, the actual filing of the Inventory is normally done after appointment and grant of letters. Thereafter, the court will invite beneficiaries to inspect the Inventory and raise any objection if they are not satisfied with anything related to it. Also, as already analyzed herein above, and as argued by the Respondent, the purpose of the Probate Petition at the appointment stage, is to determine the suitability of the person who seeks to be appointed as an administrator of the deceased's estate and leave other questions in the hands of the administrator who upon being appointed, becomes the legal representative of the deceased. This position was well enunciated in the case of Peter Augustino Mrema vs. Doris Agness Augustine Mkandaia (supra) where the court clearly stated that; "The court is only empowered to determine the suitability of the person who seeks to be appointed as an administrator of the deceased's estate 20
and leave the question as to the rightful heirs/ beneficiaries in the hands of the administrator who upon being appointed becomes the legal representative of the deceased." Accordingly, matters relating to the valuation of the estate, the inclusion or non inclusion of particular property, and any questions concerning the proper administration of the deceased's assets are issues that are to be determined during the confirmation of the Inventory and or the submission of Accounts of the estate. With regard to the second ground of appeal, the Appellant contended that, based on the evidence available, the deceased person had other issues apart from the Appellant and that nature of the relationship between him and the Respondent, the court erred in law and in fact in appointing only the Appellant as the administrator of estate. The Appellant contended that, the deceased had many children from different mothers/women hence cannot be an administrator. Secondly, him and the administrator are not in good terms that's why she could not procure his consent until she decided to send PW2 to do that hence she cannot perform her duties. The Respondent on the other refuted these allegations challenging the argument that poor relations between an administrator and a beneficiary cannot per se constitute a ground for disqualifying the Administrator unless evidence of failure to discharge obligations can be proved. 21
Having reviewed the record of the trial court, as well as submissions of the parties herein, I have observed that, the Appellant is indeed a step child to the Respondent and the Respondent is his step mother. Further, the two seem to be not in good terms and or regular communication as testified before the trial court. However, that being the case, I agree with the submissions of the Respondent that, family disputes or strained communication between the Appellant and the Respondent do not, in themselves, amount to incapacity or misconduct warranting the removal of an administrator. What must be demonstrated is actual prejudice to the estate, or proof that the administrator is unable or unwilling to discharge the legal duties imposed by law. This must be assessed in light of the fact that the Petitioner represents a larger group of beneficiaries whose interests must equally be protected. In the present case, no such prejudice or incapacity has been shown by the Appellant either in this appeal or before the trial court. Despite the fact that, the beneficiaries have different mothers, it is only the Appellant who seems to have issues with the Respondent. The rest of the heirs are quiet and have not raised any concern. Hence the Appellant cannot be a self-proclaimed advocate of other heirs. With regard to the issue that the Respondent did not approach the Appellant to procure his consent for the filing of the petition; I agree with the Appellant that, indeed based on the evidence available the Respondent did not physically pursue him to procure his consent, however she did that in consultation with PW2. She could have still decided to remain mute if she had bad intentions. However, at that stage, what was important was for the Appellant to know about what was going on regarding the estate and not to be surprised at a later stage. 22
It is also on record that, even after sending PW2, the Appellant refused to attend the meeting stating that PW2 had no mandate to inform him about the meeting. This is clearly stated in the Proceedings and Judgement of the District Court, as reproduced herein below; Coming to the second and third grounds which complains of the caveator not being involved in the Probate process and lack of his consent, there is sufficient evidence that the caveator was informed to attend the meeting but he refused deliberately just because it was not the petitioner herself who called to inform him. This can be proved by the caveator's own testimony when being re examined by his advocate when he said, it was the petitioner herself who was required to call him, this statement collaborates the testimony by PW2 who said when he called the caveator to inform him of the meeting he told him that he had no mandate to call him. So, I conclude that he was informed of the meeting but deliberately refused to attend and in the circumstance, it was not practicable to get the caveator's consent henceforth the petitioner properly filed an affidavit in lieu of the caveator's consent under Rule 72 (1) of the Probate Rules and in the spirit of Rule 72 (2) of the Probate Rules, the requirement of the caveator's consent is dispensed. The ground is meritless. In this regard, i agree with the submissions of the Respondent that, it is not necessary that such a consent must be procured by the petitioner. As long as there is a modality for procuring it then it suffices to include it in the petition if it is available and if the consent is not available, to file an affidavit in lieu of 23
consent. In the case at hand, the Petitioner used PW2, a young brother of the Appellant, who was appointed as a supervisor of the family to procure the same. However, the Appellant still refused to provide the same, citing PW2's lack of mandate. That is why the Appellant decided to file an affidavit in lieu of consent. It is on record that all other beneficiaries were also consulted by the Respondent using phone communication as testified in the District Court and recorded in the Judgement. None of them was pursued physically. I therefore I agree with the District Court that, the Appellant was aware of the family meeting and the probate case but deliberately chose not to attend the said meeting. This is clearly stated in the record of the District Court as follows; Coming to the second and third grounds which complains of the caveator not being involved in the Probate process and lack of his consent, there is sufficient evidence that the caveator was informed to attend the meeting but he refused deliberately just because it was not the petitioner herself who called to inform him. This can be proved by the caveator's own testimony when being reexamined by his advocate when he said, it was the petitioner herself who was required to call him, this statement collaborates the testimony by PW2 who said when he called the caveator to inform him of the meeting he told him that he had no mandate to call him. So I conclude that he was informed of the meeting but deliberately refused to attend and in the circumstance it was not practicable to get the caveator's consent henceforth the petitioner properly filed an affidavit in lieu of the caveator's consent under Rule 72 (1) of the \ 24
Probate Rules and in the spirit of Rule 72 (2) of the Probate Rules, the requirement of the caveator's consent is dispensed. The ground is meritless. Similarly, the evidence on record clearly demonstrates that the appellant was duly informed and invited to attend the relevant meeting concerning the administration of the estate. His failure to participate was not due to any omission on the part of the Respondent, but rather a deliberate choice on his own part, based solely on the fact that communication was not delivered by the Respondent personally. Considering that the Petitioner fully discharged her duty to notify him, his voluntary decision not to attend cannot now be used as a basis to fault the probate process. Thus, the Appellant cannot benefit from his own omissions. Equity must come with clean hands. Much as the Administrator is required to discharge her duties, the beneficiaries are also equally required to cooperate. As contended by the learned counsel for the Respondent, the record clearly demonstrates that notices regarding the convened meeting, as well as subsequent discussions pertaining to the estate, were communicated to him through established family channels. Despite receiving this information, the appellant deliberately chose not to participate in the meeting. It is for this reason that the Petitioner reasonably opted to take an alternative course by filing an affidavit in lieu of consent as per Regulation 72 of the Probate Rules. Further, as contended by the Respondent, despite the lack of consent, she still duly included the Appellant as one of the beneficiaries in the Petition. k 25
Further, as correctly argued by the Respondent, there is no legal requirement for an administrator to personally deliver every communication to each beneficiary. However, what is essential is that the beneficiary is informed of the process. The method of communication whether directly or through another family member does not constitute misconduct, nor does it amount to any of the grounds for revocation or disqualification stipulated under Section 49(1) of the Probate and Administration of Estates Act. Therefore, this court finds that the allegations raised by the Appellant in this regard are baseless since the Appellant has failed to demonstrate how the alleged relationship between him and the Respondent has hindered the administrator from performing her duties, let alone justified faulting her appointment. Indeed, as correctly argued by the Respondent, what has been presented by the Appellant amounts to mere speculation, unsupported by any substantive evidence capable of displacing the trial court's findings. In the absence of credible proof, showing that the administrator was unfit, biased, or acted contrary to the interests of the estate, the grounds of appeal advanced by the Appellant are devoid of merit. Similarly, the argument that the Appellant be appointed as a co administrator by this court, is devoid of merit and premature at this stage since the Respondent is yet to begin her duties of administering the estate. Justice demands that she should be given the opportunity to administer the estate in accordance with the law. Then, if there are any shortfalls, they can always be raised at a later stage with solid proof and not empty words. In view of the foregoing and in the upshot, this court orders as follows; 26
- The appeal is devoid of merit and consequently it is hereby dismissed in its entirety.
- The appointment of Praxeda Paul Babyebonela, the Respondent, as an administrator of the late Wilson Tilotwa Babyebonelwa is upheld. Thus the prayer for the appointment of the Appellant as a co administrator is hereby decline;
- The Respondent is further ordered to proceed with the filing of the Inventory containing all assets of the deceased person and Accounts of estate as per the new schedule to be ordered by the District Court of Temeke at Temeke One Stop Judicial Centre.
- Due to the familiar nature of the proceedings, I grant no order for costs. It is so ordered. The right of appeal is fully explained. t TEMEKE this 19 th DAY of DECEMBER 2025 JUDGE 19/12/2025 27