Sauda Alex vs Zablon O. Omolo (Misc. Civil Application No. 22/96) [1999] TZHC 254 (22 December 1999)

I M IIIGIi COUR2 J TANWiA I'IISC. CIVIL APFUC V 109 NO. 22/96 .... VMISM

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AL s/o SXGU who aied on 3 Janua, 1995. She has applied hrou he? Advocate the 1eaied Mr. Mbise for a review of the ruling of this touxt of 18/9/98 which appointed the senior widow ZAINAB w/oA1t to apply t be appointed. jointly with the Q<urt Broker Mr. .J.A Kaxionga of the esta.te of the same late ALEX s/o SIGtJ. The review requested Is meant change this cause from being an ;admjnis'tra.tion of an intesta.t estate to one with a will which was Zeft by the same deceased. Alex sign just when be was about to die. ihe applicaion has been supported by four affid.avrcs the first ne being of he learned Mr. Mbise (Adv) which avers in he 51 6, the ara thab tie àp1cotht,u he was representing iz Civil Case. N. 14/1 995f thi cout hih aproèd the receiver of the business... properties of the deceased,howed him in May, 1999 a copy of the will-,- of 25 Janu 1 '9 - . d.rawn: by the learned Mr. Thitagatina and signed by thed.eôeased and two witnesses Mr. Otieno Olung'a goga- Mr. John Orwanda. lie further avers that the applicant oomfed t6 him that she got the copy of the will from one Igogo one of ±be witneses in the will. The learned Iir. Mbise (Adr) advisea the applicanb to seoue the affidavits of witnesses in the will who did make their afidavits filed herein in èupport of the applioationi . . .... . .. . There -iEfuriher the affidavit of John Ruwnd.a who is domiciled: .j the same na11re locality with the -deceased and was staymnr with he deeeaed and h ly for along time in their life tine doin business togethei of üLe garage and ork-sbop until October, 1994 wien iie . . left . , .. .1

:• -2-- the decease&.at Mbeya arid went to t9l Where he Vi s joined by, the deceasecl and his 2nd wife the applicant as the same deces.ae4 needed referral .treatent in DSM0 The deceased héad.ded wanted to have an. advocate for drawing him a will which was done by the larned. Mre Matagatina (Mv) which was on 25/1/95 ultimately thumb printed, by the deceased in the presence of the advocate and two other witnesses with himself as one of such witness. One Ct leno Clung I a Igogá also gme an affidavit to . the same effect as done by John Ruvanda* lie depied that the one who heard the deceased make instructions of the will contents was only the larned Mr Rutagattmj • (advocate) in privacy. Le.tor on he witnessed the deceasèdthtmb, printing his will 9 and he too signed it as one of the '4itnesses in the will, 2hen caine the a'fid.avit of ohrisian laurent Rutagatina in which he too avers to havemet .t4e4eceased in his advocate' office naa

• accmpanied by the other d.ep.onents John Thwanda aMOtieno Igogo in Mid December when the deceazed. n,tTucted him to prepare a will for hi.m, Before. drawing the will he Iaitbi i-ewe. th deceased while the deceased was aeady..:pr.ive.te1yhopita1ized iñ Kinondoni area while the deceaed was. ti1l hi.-sAi.M mind and joking mood lie attached the .hotoz. opy. of itse3 -whieu is signed by the deceased. The respondent Zainab w/o has opposed this revision through her advocate the learned. Mr.Mrango'iej- Shehas also made her c'wn counter affidavit challenging, th aff idavjt Of the testators of the will which ihe allegeE to be forged in order to mislead this court. By 25/1/1995 he avers, that the &eceased could not make a will for he was in very bad. Condition of health, . 4 he hearing of thjD revicrcd.'the learned. Mr. Mbis (Mv) for the applicant clarified that the 'applioait was nt opposed j; the courts proposal for the senior, wife the respondent and the court broker Mr. Ka,ndonga, t0 be approved 1 joini adranistrators of this estate 0 Moreover, both sides have supported.the oourtts proposal -that he estate be divided to the beneficiaries irnedia:ely." 2hEi learned Mr. Mbise (Mv) submitted .. that that had been done 'before. il thesO poblenis would not have anisei as each

0 • —3- beieficiary would have 'ta1en care of her/h,s own estate. But he iLmn1zt.d reviews that with ths j.jr granted the distrbi.bion of the d.eceased)s estate s hould b ltsed. on the will i The learned Mr 4 lbrangole (Mv) on the oiher hand raised the technical

• reviewed - point that this x i0d. is ou't of time fc i& has been filed aer one month had elapsedfrom the time the ruling of this.cürt wa:sdeUyered on the J8/9/1998 in thepresence of all the parties concerned. I better dispose off this point of law first • In the gffidavit of the learned flr. Mbise (Mv) he has explained liat it was in May 1999 when • t-e applicant Saudath w/o Alex came to show hii the photocojy of' the Will wosia) for adviôe a'ter she had. got it from Mr, Otiemo Igog one of.the witnesses in the will d.eponents in this applica'tion. The sane Saudata w/o Alex has not sworn any affidavit o show the court when she Co't hold. of 4U. Btit 9 from the pres'ntai ions or the 1e•arned.Mr. Mbise (Mv) the applicant went to Otieno Iogo o seek help from him who was a close frien& of the deceased conoerning her need to make life ends meet a'ter the rulinof.,18/9/1993 was made by this coi.rt which stopped the' subositenoe payment.' f shs.1 5, 00O/ each month from thé' of f iy estatethe deceaeed which was revIou,suosed 'to to her as ......... maintanance Zablon s/c Omolo the receiver who was rérnoved by this - court on 18191980 In her joint receiirer — Zainabuw/ooAlex and the court Broker Mr, Kanctonga were no loner made by the Court' lIable tb maintain the junior wife due to the rion—fnctioning of the büiness ventures of the deceased. ' .. 'If that i5 case it means that the applicant caiiie across this 1 presumably, for the first time in between. September 1998' 1' and Ma 1 999. Whatever, the date ithe first saw this will She should have come to preent It to this court imrned.iately and at most within 30 days from. May 1999 when 'she tt,ok it to the learned Mr, Mbjse'4 review should hae been commenced in June 1 999 at t latest It wa-s .iot 2 gust 1999 already out Of 'tjm flowever, this court hay discretion to admit i-t't of time and in the worth circumstances of this case any court ::, it 'ul have a:.ed *6,640

-4 -- this review whether in or out rf time in c>rderto give a vital chance to be deceased himself, not even to bhese present adversary part ies to be heard as to what did he sv in his last, Will. So 1 ,iill proceed determining this p1ication for review aq if it were filed within time in order to .. .. .-• -'. .; '' alleged give chance to the deceased to be heard on his last words of this will. T1ae next point to consider isthe authority of the will itself Cant '5e relied upon as the basis the distribution of this estate of its iiakei the late Alex w/ tt i The photocopy of the will filed in courts is signed by the deceased without any right thumb print of . flie learned Mr. Iangole (Mv) ha óájitalized on the disparity between the actual hand signed signature in the supported will and bhe right, izib print aignature of the deceased in. 'he i'il1 paper which was prepared by th learned Mr. Ru.tagatina -(Mv). AcooMing to the learned Mr. Mvngole (Mv) what this disparity mans is t1.a6 -the'wil1 in court is not the one that' wad' prepard and drawn by the learned Mr. Thtagatina (Mv) on 25/1/1995. In rcply the learned Mr# Mbise said nohing abon this disparity of he siaur and thumb point in the will, hë View of the court . Is c].ear that he-tJr f±id.av s of the winesses to the will of the deceased are emphaiic that the will of the deceased was righi thumb—pri'ited only not signed at alle Phis is in the affidavit of John Ruvazida in the 9th para, in th' affidavit of Otieno Igogo again in the 9th para and in the 7th p.,ara affidavit of the author of the will and advocate who attested jff the:learned'Mrc. Christian L. . Th,it agat i..na. Pctually, the learned lIr. RLtsga.tina is his affidavit even stated the easbn for the deceased to thumb prnrath-'thar, to sign it as dl1ow; I ruotethe 711h paxa of his -affid,vj% by the 'exy words:— fl7, And for the avoidance of complaints which would arise purport ing that uhe WILL was 'made 1iy someone on his behalf the late' ALEX DIEL S[C OPTED to insert his right- liàaid t.it1flib on the WILL which I witnessed thereundax,accordingly,.fl:

• . Cle the ore' since the deceased thumb'printd his will as seen by ll tue 3 deponents before their own eyes the purported. UIIIj in court apb.ot000py which bears no right thumb—print at all of he wOA inurt deceased. d.imetrical PPOSite/bea.rs a purported haM signature of tize deQeased I Jiold that the photocopy of the will produced in court is defiiteiy not :j actual right thumb. prthted will left by the deceased but somthng ale foged or mistakenly misxepreeented as the will which th. thre deponent s saw witnessed and attested. So 1 thi: court has not got any real will of the deceased as yet... The'e ae other points which impeach present pu'ported will of the deceased... S filed in court has left out crucial beneficiaries to the es4tepf; the deoeaed. The father of the deoeased Daniê1.igas well as the senior wife Zainab Alex and the uist born son of the deceased Obala s/o Alex S1) who is staying with the senior widow have all been left out of."he beneficiaries without ascribing azy reasons at all. If the maIe of re will wants .to-êxclide lawful beneficiaries to his estate he must give sound reasons acceptable in law .iicI such as if the wife or son such benefician •- attempted to kill him, has alr eady been c,iven has share an the estate while the deceased was still alive which advantage was not afforded t, the other beneficiaries by'reasóns 0±' a riii.nor age s the excluded beneficiary oonnited some grave ainmoval sot or ornmassaon upon the deceased such as tbree incest.rape, etô. Al]. the excluded beneficiaries have not been shown toJiave done any such benious acts to the deceased before he died. The senior wife has been mentioned in the three affidavits ashaitjng been seperated from the deceased since 1988 until he died fri 1995 and that she was ophab1ting with another man besides the deceased. The senior 'widOw .a1rees to have been seperated. from the deceased, but deilies to have been' living with another man. • k - . seperation- lawful- ineans between a.rnarried couple t.solve.theii • / differences at the existence of grave unsolvable matrimonial matters.. Du.t seperation. is not a divorce and Jaqy still remain a wife and husband. Sometimes seperation i done for good of ho -bh sides if both are working in die'ent fr• •-" T):..,..,1, . --

' .-' zsj Otherwise 'iie father of te deceased Daniel waB 55 here in court nd he never complained about the unlawfulness of marriage of the respondent to the deceased or iher seperatior since the respondent had' 4 children whereas the applicant had nonep some se±ith And greé husbands in 6 household prcvisions such as food.,:prefer t'd constraotively desert the wife with many months o feed and opt to stay with the barreti wife they so 'tt. eat and maintain, each other luzuriously only the two of themö another 'There is also serious, problem of this will which was kept under hiding for 5 - years frox .25/1/95 until it was shown to the applicant fx'onl abeut May 1 999. Since the two witnesses to th, will Otieno Igog* with the ,dece.sed d John RLwanda were cic'se friends axid'6o-businesq workers for a long time lifetime almost,, they knew all 'about what was gçing on in this ca iiioe 1995 and they even part icipatel he - funeral of .. the de.cased in Bw.da Musoma who should ha.ve.tol'' the d6, ceasedls father about the will The learnea Mre RutagatmnaMvote who alone' heard :the'.dóeased amounce his will on his estaie and inneritors thereof did not reveal it at all 'in his affidavit what the decease beq -aeathed to whom0 So, there any is no more source alter discarding' the purported will information on the oohteiits of the real thumpinted will of the deqcased. I totally : • dismiss the element of any will havir.ever been made by the deceased This application o revi.,.t'herefore"is'baseless, it i s dismissed. On the other hand now 'all the parties seen to agree that the best • 'distri1ite sOlution is t6 ctiui';c the estate of the deceased. 'The discarded will has some'goed ideas on how the estate should be distribixted I 'new go on distributing the estate of the deceased as per consent.of all th opösing sides. .... '. . . . !stly, it has to be estabiishe'wJiat estate is still int act up to •now for distributionà The estate seem to consist of the fllowihg properties: A# Flied assets- '1 The gra?e and workshop buildinj at Plot No 0 4 Industrialrea registersd title No. 334-DL1i Land cff ice 71992 ' 2, Complete residential house Machinjioni-Mbeya Manicipal registered title Nc0 '3355 DLR La4. off J .'2

4 - 7 I incomplete residential house at Plot 181 Block F Mbeya 11unicipal regered title No, 51 DIR Land. -office 42092 with - 5 rear fun-Islied -'ooms the rest untinished 4 . p • 4, house at Plot No, 323JBlook- F registered title No, 2109 PLR LaM offi&e No, 124603 which is the name of Daniel Alex sign 1st son of 1j,he deceased with the senior widow currently occupied by the junior wid.dw the present -applicant Sauath Alex, Plot No, Block T - uifouilt. Plot No o . Forest - unbilt. . . . DMovable property . 1 • Items 3 up to 16 and 1 9 which are based in the garage and woximhip which include, . . . . Injector pinp tester make kxtidge 2500-1 cone with is nozz'e rester 2 (two) one of which is defective, Injector pump tester for small machines - I (one). (c) Bosch Injector pump tester 1 (one) (d) (Ically made oompressor I (one) Dattery Qharger (defeotive)1 (one).: ."G' 1 clamps 2 . .. . . . Grinder (electric) 1 (one) Benches. 3 (three) : (Empty gas cy-linder I (one) Office chairs 6 (six) . Office desks 3 (three) (i) Office cabinet 3 (three) (m) 'Typewriter fa.oit make I (one) 2,otor vehicles and sares (L/cnüser TZ33 , 7623 - Pajero TZ' 6881 • (c) L/Rover Flu TZ 68479 (a) Tyota corolla TZ 80744 . (e) Shop for (spare parts) 3 iji ia-- • :- -- ;idc - r ctc-

4. Debtors (DAO Mbeya (a) Debts owed to the deceased for 1994 a total of Pshs.39498,275000 6 C, Debts of the deceased credited to him by his creditors and bill areas of e).ectricity, water etc - valued at grant total Qshz.5128415 00 /. have (a) Bank debt - who qc attached the grge and workshop ready for not / public action but they cou.ld attract any interested or prespective buyer. Although the same is still under their éttahment after foreclosing on their own mortgaged same property Since there is no dispte as regax'ds the appointment of Zaiarnb"g/ Alex asasted by the Oourt Broker Mr. J. A. ICandonga I therefore hereby appoint Zainab w/G Alex a1 the Court Dr<ker J. A . Kandoriga as joint administrators of the estate of the late Mr, Alex D1 sign, They axp. ode.ed to finalize the necessary pr.equiaites demanded for them to carry qLit the administration of this estate such as filing tbetr securities bonds The above enlisted estate properties are tobe distributed by thourt hereinbelow as per lawful benefioia.ries the lawful bexi.eficiaries are the following - (i) ihe senior widow Zainab w/o Alex. The junior widow Sauclath w/o Alex. The father of the deceased Daniel gigm - who lives in Muaqmo Obala s/o Alex Sign (23 years) - born out of wed1ook another deceased mother. DanIel Alex Sign, 17 years) Edward Alex Sign (15 years) Niohola.us Alex Sign 13 years Emmanuel s/o Alex (ii. years) It is these 8 beneficiaries only who will share through this court distributed. I hereby distribute these estate properties as follows g AA The Fixed Assets movables connected thereto, (i) (a) The gara'e and workshop on Plot No, 4 Industrial area registered title No 334 DLR Land office No, 71992 has been sóized for such sale. by the Bank for sale which has already been proclaimed .he

.9r rported will has some sound idea for it was bequeathed to the 4 sons of the senior widow jointly.The 9will" mistakenly left out the other son eldest son by the unnamed deceased mother - 0ba s/o Alex Sign. So I hold that this business premise is hereby distributed to the 5 sons of the deceased jointly and in equal shares of 1/5 @ in it. (b) This applies to all the movable properties allied to the wor1shp in items of movable properties in para B(1) (a) - W. It means that even these workshop and garage movable properties are distributed to the 5 eons of the deceased in equal shares of 1/5 @ as per their market valus First Priority goes to the bank. But in case there is any easing or giving up of this mortgaged property by the bank it shall revert to the 5 beneficiaries hereinabove beqteatbe&. For the sak clarification thQ,e 5 beneficiaries'are Eintnanuel Alex Sign (ii) yeaxs p Nic1as Alex Sign and 0bla s/ Ajx Ej (i 3), Edmmnd. Alex Sign (15) 2 Daniel Alex Sign () years y If anything is sold out of this jointly distributed estate in the garage a workshop a4l. building the same shall be shared by the 5 beneficiaries in 1/5 Portiori @. (a) The complete residential house registered certificate of right of occupancy with title No. 3355 DLR 1id office 71992 Plot Nà 173 Blook F, the resideicia.l house currently which was occupied by the senior widqw' Zainab Alex which was built prior to the marriage of the 2nd widow to the deoeased. It is distributed to her (i.e. Zainab w/o Alex-Sign.). (b) All the movable husehold effects contained in this house aie hereby distributed be the same senior widow Zainab w/r, Alex. The uncompleted Residential, house with 5 completed rooms at the reax portion Plot No, 181 Blook F registered., title No, 51 DLR Land office 42092 I distribute this house and Plot to the 2nd junior widow Saudabli Alex. This widow was not lucky to have to bear any children with the deceased or any other man for that matter. She is alone with no dependants of the deceased and the 5 cots will suffice for her residence. (a) The completed house at Plot No. 3231 Block 'F' registered title No. 2109 DLR Land office No 124603 is already the property of Daniel Alex Sign assigned to him before the deceased died* deceased it . . i .Dhis was a present to him, by the / and nrst be honoured. 1i s hereby

her matrimonial home from the time before the death of the deceased Until donee today. She is allowed to stay into this house until its lawful and bequeathed owner reaches the age of majority of 18 years after which she shall vacate it and rnc to her own distribued house in para AA(4) above. (b) Al]. the movable properties currently in this house watever they are from now onwards axe distributed to the same Saud.ath w/o Alex and she is free to tize them to her house distributed to her above ju para AA(4), (5) There are two plots of the deceased at Block T and Foresi BJ.00k4 i s shown One of it is said was sold and . /not/whwh one. The same one of the p]s is hereby distributed, to Oba].a A1SE Sign for his exoluive. ownership, (6). If the ktber plot empty oaltbAm way at this place still intaet it is hereby distributed to the Edward Alex Sign (i 5 years). BD.- ether movable assets t M/vs and spares (i) The Lend oru,iser PZI3 7623 it is hereby distributed tti the senior widow Zainab w/o Alex. i:'oyota Corolla TZ 80744.it is d.istribated to the 2ad junior widow Sauclath w/o Alex. L/Rover flu TZ 48479 it was already sold by the oriina.. received Zablon s/o Omolo. Since a large portion went Daniel UM the father of the deceased that was her share°' he rn/vs of th delea . Pajero TZF 6881 - this is distributed in its proceeds of s4e of sbs.2m/= in equal portion amojg the 8 benefiøiaries of I'Jhe deQ.eased jhe senior widow Zainab w/, Alex sold this rn/v Without the permission theaxit of the court. It was .,' to deny the other beneficiaries from beneftting I get in it. So each beneficiary shall 1/8 of the shss2 9 000 9 000/= sold TIhiOh is shs.250 9 000 /= ® Sol Zaivab w/. Alex is hereby ordered to pay shs. 2509pOO/= © as the ±nheritane entitlement t0 S&Ldatll. Alex t Daniel Sign the father of the deceased and to Obala Alex Sign who are grawrl up benefiaries and are supposed to be self sustaining o tier own share and those of hei 4 her chithen will be repaid by Zaianab Alex as per own means and/or she can h1d it for them •. The shop spare shop. It's content if saleable be sold and its -,,. -

•'7 administra:tors and 'any payment thereof be distributed to the beneficiaries at 1/8 bequeathed @ after deducting and paying off.. DD The deceased's debts to his.ôreditors for shs.522842500/= be contributed by all the 8 beneficinries for its settlement to the lawful creditrs. if any This includes t0 the bank debt too leading t0 the attachment of garage and workshop etc. It is clarified 'that the minor 'beneficiaries who are under 18 years cannot techajoaly own t)ie titled houses until 'they'reach majority ago, That does not affect their distributed portion of th inheritance .' portion of the underage beneficiaries shall be held, in trust for them by.he a nit'±tors t1i' moher and Coui Broker a.s next friend and, a guardian as well as the administrators until they reach age 'Qa majQr the , own when they will aoqiiire legal capacity to z, land and houses with registered certificate of titlee The joint administrators shall overseer the eutjon of this 1/ distribution of assets of the estate of the deceased until the estte, h1 been finalized and closed. Report must be made to the court for guidMee or decision whenewQZ any problera crises 'c3,. and. -$ rain in it e There is Toyota Corolla which is said to have been pawned to some Such a pawn was an illegal undertaking not blessed by this court the gtatw a seen estate pr.perty 0 quo of this motor vehicle Is retained 1 It shall be immediately SiZQd from the creditor and handed over to the beneficiaries to whom it has been distributed i.e. Saudath Alex. And Zainab Alex shall refthid the Paed money to the respective unnamed creditor. 'The junior wife can imiBediatei,y take into her custody and ownership the same motor vehicle in working oondifjn for review This applioation,is diassed with costs. I E. L. IC. MW•IPOPO JDDGE 22/12/1999 o.12o

22/12/1999 Nwipopo, J e Applicant: Saudath Alex - present in person. For Applicant - Mr. Mbise 44vocate - absent aespondent - Zainab - Alex prcsefl± in perso xLe For Respondent Mr. Mwazzgole - Advocate - absent. B/C: Mrs. ICasubiri. Court g: 1ing delivered in the preenoe .cf bGth iiz O n~ wo # of ppeal explained. / ( f ;\ .'1 i:

• ,.----- - - .- ELK. MWIPOPO JDGE 22/12/1999