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Case Law[1998] TZHC 2003Tanzania

Kassim Yussuf Kambangwa vs Mrisho Omari (Civil Appeal 69 of 1997) [1998] TZHC 2003 (5 October 1998)

High Court of Tanzania

Judgment

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM PC C IVIL APPEAL NO. 69 OF 1997 (From Teineke District Court Civil Appeal No.92 of 1996 originating from Probate and Administration Cause No.123 o f 1996 of Temcke Primary Court) KASSIM YUSUF KAMBANGWA versus: MRISHO OMARI............................... J u d g e m e n t This judgement is in respect of a very unfortunate but interesting matter which can only be appreciated by going through its history as detailed hereunder. Aimed with a hand-written letter for which he was the author and a letter dated 3/5/96 authored by Mwenyekiti. Mji mpya, Kata ya Mudurain, Teineke District, one Mrisho Omari Yusuf (Respondent in this Appeal) on 6/5/96, vide ERV No. 03247301 filed, Probate and Administration ..APPELLANT RESPONDENT

2 Cause No. 123/96 in Temeke Primary Court praying to be appointed an Administrator of the Estate of his deceased father, Omari Yusufu Kambangwa, who died in 1981. The latter fact is revealed in a written summary of his application (usually, in Primary Courts, reduced into writing by a court clerk or Magistrate, whoever is available) which further disclosed that apart from him (Omari). d e e d e d hod nteo left behind 3 other issues, namely, Ally Omari. Asluua Oman and Smahanm Omari. This, however, was somehow in contradiction with the above mentioned letter,for while in his application, Mrisho prayed to be appointed the Administrator of the Estate of OmanYWfijA Kambangwa, the letter by the Mjimwema chairman indicated that he was to apply to be the Administrator of the Estate of his grandfather, Yusuf Salum Kambangwa, who left behind three issues including Mrisho s father. The letter claimed that the heirs of Yusufu Salum Kambangw a had picked on Mrisho f * (a grandson) to be the Administrator. However, it seems the letter was disregarded, as the Misc. Cause No. 123/96 filed concerned the Estate of Mrisho’s father as exemplified.by the summary of the application, the ERV issued; the advertisement made in Uhuru Newspaper dated 27/5/986 v * and the various court processes on court record. Notwithstanding his payer when filing, on 12/8/98,. when the probate cause came up for hearing, Mrisho applied to the court that his uncle, Kassim Yusufu Kambangwa be the one appointed the

1 Administrator instead (of his father s estate) which prayer was supported by Jumanne Yusuf Kambangwa (the other surviving uncle) and his (Mrisho) two sisters and brother. What followed is quite interesting. The court there and then recorded, “Mahakama/ warithi wote wamemthibitisha Mzee Kassirn Yusufu Kambangwa asimamie mirathi.’' Hukumu: Msimamizi wa mirathi hii ni Mzee Kassim Yusufu Kambangwa Sgn: Zuliura 2. Hussein Sahihi: M.J. Matenyange-Hakimu 12/8/98 (emphasis mine) One would have expected the proceedings to stop immediately after the appointment of the Administrator, awaiting the administration of the Estate and subsequent filing of Accounts with the court. Instead the same person already appointed embarks on giving evidence, surprisingly, praying to be appointed Administrator as exemplified by some of his statement, “Omari Yusufu Kambangwa alifariki inwaka 1981 na kuacha watoto hao. Hivyo naomba kusimamia Mirathi na haki za watoto hao.”

4 In the siime evidence he disclosed how the deceased had a share in their father’s (Yusufu Salum Kambangwa) property, house No. 5 located along l.igatiga Street. This evidence prompted each of the beneficiaries present to ask for the sale of the said house so that the 4 children of Omari Yusufu Kambangwa get their father's share in that house. Even the said Kassim Yusufu Kambangwa is on record as supporting the selling of the house. This mix up of issues set in a lot of confusion because up to that stage what was before the com t was an application for the appointment of an Administrator of the Estate ol Omari Yusufu Kambangwa mid not Yusuph Salum Kambangwa, which application had already been granted by declaring Kassim Yusufu Kambangwa as an Administrator of the Estate of Omari Yusufu Kambangwa. The Administration of the Estate of Yusufu Salum Kambangwa was up to that stage not an issue before the court as no one had, before that court made an application to that effect. The confusion is vividly shown in the relatives’ and assessor’s views given after Kassim had deposed. The record of the assessor’s views runs as under, “Maoni ya washauri: Mzee Hussein - Msimamizi ateuliwe na warithi ni watoto 3 wa marehemu, na kwa sababu mtoto mmoia Omari alifariki na kuacha watoto 4 basi hao ndio warithi hakuna nafasi ya baba yao. Msimamizi pia asimamie mirathi ya marehemu ndugu yoke afualilie malipo ya T.l LA Zuhura: Msimamizi asimamie mirathi pia awagawie watoto wa marehemu katika hiyo nyumba ya urithi, na pia haki zake T.H.A. zilipwe.”!

Are the assessors referring to both Estates? Are they dealing with Omari’s Estate whose application was was the one before them? Thereafter, the magistrate composed “Hiikumu” which substantially deals with the issue of the Estate of Yusufu Salum Kambangwa and particularly the house No. 5 of Liganga Street, observing that although in Islamic law grandchildren do not inherit the 4 issues of Omari are entitled to the share their father had in the relevant house which was being misused and enjoyed by Kassim alone. In conclusion however this “Ilukumu” seems to have vacated another 9 worded “Hukumu”, already quoted above in which, the same court stated. “Msimamizi wa mirathi hii ni Mzee Kassim Yusufu Kambangwa , for in its concluding part, it states. “,,,.ila tu Mahakama haikubaliani na ukoo kuwa msimamizi achukue usimamiaii”, and proceeded to prescribe how the two Estates should be shared by heirs. Even at the danger of making this judgement unduly long let the record speak for itself:^' “URITHI WA BANDARINITHA - Kwa mwajiri wa marehemu Omari Yusuph Kambangwa. Warithi ni:-

  1. Mrisho Omari Kambangwa
  2. Ally Omari
  3. Ashore Omaha
  4. Sinaliamu Omari

6 Jinsi utaratibu wa urithi utakavyogawiiva kwa sheria na mila ya Kuslatn. Nyumba Liganga Na. 5 Kassim Yusuph Kambangwa Omari Yusufu Kambangwa Jum anne Y usufu K am bangw a wagavvane sawa mgao wa walu 3, na watolo 4 wapate I'ungu la baba yao. MGAO WA T.H.A.BANDARIN1: watoto wa kike apate robo ya mali na itayobakia watoto 3 wa kiume wagawane sowa katika salio ya mali. MshauriNa. 1 Sgd Hussein “ “ 2 Sgd Zuhura Salnbi: M .l.Matcnyange- Hakimu 12/8/96 The above ’’Hukumir was passed on 12/8/96. Four days later (16/8/96) on its own motion and in the absence of any interested party the court ordered that House No. 5 be valued by government valuer. On 20/8/96 the court records that Kassim Yusufu Kambangwa should be brought before it because he had obstructed the valuation of the relevant house, and it would seem he was immediately apprehended as reflected by the record which runs as under, “MAHAKAMA.- Mzee Kassim amefikishwa hapa na anaomba radhi mahakama na kukubaliwa lakini kazi imefanywa na mthamini Mkuu wa Serikali.

7 Pia Mahakama imemuagiza Mrisho Omari ambayc ndiye aliyekuwa aanze kufuatilia suala la mirathi ya marehemu anibaye liivyo kwa kuvva Mzcc Kassim hivi sasa imaiii imeisha kabisa. Na ataendelea kuleta ukorofi katika mirathi hii”, (emphasis mine) One may ask himself as to whether, by the last order, Kassim’s appointment as Administrator has been nullified appointing Mrisho Against these findings Kassim Yusufu Kambangwa appealed to the Temeke District Court (DC Civil Appeal No. 92 of 1996) arguing^unong others^ raising a totally new matter, that the lower court erred in holding that (i) no one had been appointed Administrator of the Estate of Yusufu Salum Kambangwa when that was already done by appointing him vide Probate and Administration Cause No. 161 of 1987; (ii) House No. 5 is included in the Estate of Omari Yusufu

  • . . . . Kijbangwa lienee could be inherited by his children contrary to Islamic laws of inheritance. The Distriet court dismissed the appeal holding that the appellant should hold himself to blame for his failure to disclose the existence of probate & Administration Cause No. 161/87 before the court; that Omari’s children have a right to inherit their father’s share in the disputed

8 house, and that he himself agreed befotc ihc com I Unit (Ik- house m question be sold. Tile District Court a ls £ judicial notice of the Probate & Administration Cause No. 161/87. and quoting a Handbook of the Mohammed Law o f Inheritance by Sheikh Ali bin Hemmed El Buhuri, regarding how to administer two estates together, observed that it was proper to include Yusufu Salum Kambangwa’s Estate into the Estate o f Omari Yusufu Kambangwa. It concluded, “It is the duty of the administrator to work out how much the late Oman deserved in all the property involved in probate & Adm inistration Cause No. 161/87, then the share be included in the present probate. Appellant is thus instructed to do so in the old cause and remit the share of the late Omari to Primary Court Temeke as soon as possible otherwise the house will have to be sold as ordered by the Primary court . Trying to assail the a b o v e judgement the Appellant has now come to this court on 7 grounds of appeal as lollows:-

  1. That the Primary Court Magistrate erred in entertaining the application for grant of letters of administration which was time barred.

  2. That the primary court magistrate erred in entertaining the application for grant of letters of appli cation ^without proof that the alleged deceased one Omari Yusuph Kambangwa wa really dead.

  3. ■That the whole case in the Primary Court was actuated by fraud.

  4. That some parties in the Primary Court and District Court are fictitious, that is to say, the alleged deceased and the respondent.

  5. That the application for letters of administration in the Primary Court at Temeke No. 32 of 1996 was res judicata to Probate No. 83 at Kariakoo Primary Court. n o t

  6. That the Lower Courts erred in finding that the matter was a normal civil suit.

  7. That the lower Courts erred in finding that the Grand children have the right to inherit from their deceased grand father. Mr. Maira, Advocate, appeared for the Appellant^Kassim Yusufu Kambangwa, while Mrs Mutabuzi, Advocate, appeared for Respondent, Mrisho Omari* The learned counsel presented their arguments by way of written submissions. In support of the Appeal, Mr. Maira, Advocate, vehemently argued that though the Magistrate’s Court Act, 1984 does not provide limitation of time in respect of Probate and Administration causes in Primary Courts, as these are of civil nature, they are governed by 5th Schedule to the

10 MCA 1984, hence limitation Act is applicable He went further by aiguing that though not applicable in Primary courts, Rule 31 of Probate Rules is persuasive and and that the time limit of 3 years thereunder should apply to such causes and that this cause was filed out of time as it was ‘ delayed for 15 years (1981-1996). He called to his aid the maxim - Interest republicae ut sit finis liticum: that there should be an end to law suits; it is for the general welfare that a period be put to litigation. Mr. Maira goes on to challenge that there was no evidence adduced to establish the death of Omari Yusuf Kambangwa; that the proceedings in the primary court were actuated by fraud as it changed from dealing with the estate of Omari to the distribution of house No. 5 Liganga street; that execution was hurriedly embarked upon as the valuation of the house was ordered just 4 days after judgement and deceased ‘s son ordered to make a follow up of the Estate when he was not an administrator, and that Appellant was threatened, humiliated, remanded in custody several times and forced to sign documents whose contents were unknown to him and that fraud and deceit should benefit^ne (frails et dolus nemini patrocinari debent). The Appellant further argued that the lower courts erred in not holding that the matter was just a normal suit and not probate; that the alleged Omari Yusufu Kambangwa is fictitious while the alleged Mrisho Omari is Mrisho Jumanne Maneno because his father was Jumanne Mamieno, a brother to Appellant with whom they only shared a mother and therefore, as an illegitimate child he could not inherit from Appellant s father (Yusuph Salum Kambangwa) and finally that Mrisho

11 Jumanne (now purporting to be Mrisho Omari - Respondent) having been appointed the Administrator of the Estate of Jumanne Maneno (now purporting to be Omari Yusuf Kambangwa) vide Probate and Administration Cause No.83/83, the Probate & Administration Cause handjNo. 123/1996 is Res judicata. In response, Mrs Mutabuzi, for the Respondent, countered that the Appellant is not appealing against the decisions of the lower courts but rather has introduced new issues not argued before the lower courts which is an abuse of the process of the law. Responding however to the grounds of Appeal one by one, Mrs Mutabuzi insisted that limitation of time not having been argued before the two lower courts can not be entertained at this stage; that an argument that Omari Yusuph Kambangwa was not proved to have died is funny for Appellant himself so admitted in the primary court and that in any case the 5th schedule to the Magistrate’s court Act does not set out prerequisites for opening of Probate and Administration cause hence the question of death of the owner of the estate to be administered is left to the decision of the parties and the court; that the allegation of fraud can not be true regard being had to the inconsistencies and fabrications, adding that in any case it is a new issue and that if it were true he would have raised it before the District Court; that the allegations that Omari Yusufu Kambangwa is fictitious are ridiculous and incomprehensible for he

i ; h im self adm itted that the deceased w as his blood brother; that the existence o f probate No. 83 of 1983^if tme^was w itjnn A ppellant’s know ledge hence should have disclosed it. adding However that it is false to say that M risho Jum anne is M risho Om ari and that Jum anne M aneno . i is Y u s u f K am bangw a and finally that this m atter cajn not be interpreted to m ean a civil suit as that w ould offend S .2 (l) o f the L aw o f L im itation Act, No. 10 o f 1971, w hich has provided defm it’™’ * ° "’lit, as m eans any pioceedings o f a civil nature instituted in any court but i does not include an appeal or application” . Iij conclusion Mrs. M utabuzi observes. “all grounds in this appeal are not derived from the decisions of both the low er courts but they are new issues o f fact: as such not properly before this ... court” . In the final reply M r. M aira reiterated his subm issions insisting that there w as fraud; that the rem edy available is for the nullification o f the low er courts proceedings and ordering hearing dencvo because (citing 5 corpus ju ris seccundum . 372 at page 732 sind the H alsbury’s l aw s o f England, 3rd edition, Vol 22 (lord sim onds) at page 790) judgem ents obtained by fraud are to be set aside for being frivolous and vexatious, and that thereafter this court could hear Evidence afresh for on

appeals from court o f probate jurisdiction, the appellate court, generally j try the case denovo” (C .J.s S 758-at page 198) as Probate proceedings are not norm al proceedings. N ow let us go into an analysis o f the arguments. I should start by . , i pointing out that I found it pertinent to go into details of the proceedings before the Prim ary Court because o f the nature o f tile argum ents presented on appeal to the District Court and this court. As rightly pointed out by M rs M utabuzi, argum ents on appeal introduced qui convassed before the trial court such that one is left how such serious m atters if true, could have escapell the A ppellants’ presentation before the Prim ary court! e new m atters not at a loss, w ondering C onsidering this and the conduct o f the proceedings before the p r im a r y court at sonuft stages m y observation at the com m encem ent o f this ju dgem ent that this m atter is both ‘interesting and unfortunate” is not w ithout base. i • i W hile com m ending Mr. M aira’s ingenuity in argum ents I am sorry to say that they cannot assist because they are m atters unsupported by the record m em orandum o f Appeal and oral argum ents on ap The only ground w hich cannot be challenged mere: presentation o f his ljiim in this appeal and it is trite law that a peal are not evidence, y on this score is the

14 one related to limitation of period for that is a question of law for which the court can even raise suo motto - s 3 of the Law of Limitation Act, Act No. 10 of 1971 As already portrayed at the beginning of this judgement when going tlirough what transpired before the primaty court, the allegations of fraud by Mr. Maira are not supported let alone being suggested by the record. The primary court proceedings leading to this state of affairs took place on only three different days - 12/8/96, 16/8/96 and 20/8/96. On the first day, the Appellant as well as the Respondent and all the beneficiaries of the Estate were present and they consented to the appointment of Appellant as the Administrator of the Estate of one Omari Yusuph Kambangwa. This was after Respondent who was the very Applicant in this Probate and Administration Cause No. 123/96 had decided to vacate his position in favour of Appellant. I lad the court acted properly the matter would have rested at that. However, it is the very Appellant who went further to introduce matters related to the estate of his late father, Yusufu Salum Kambangwa, which duly sparked on the question of selling the House on Plot No. 5 Liganga. Appellant confessed to have been utilising for years rent collected from the said house to the exclusion of his brothers, Jumanne Yusuf Kambangwa and Omari Yusufu Kambangwa (deceased) and that’s how it came to be passed that the said house should be sold so that the share of Omari Yusufu Kambangwa be given to his children - Mrisho, Ally, Ashura and Sinahamu. Appellant himself

consented to the idea o f selling the house Putting aside the irregularities, i.e. m ixing the tw o estates some confussions and Som ehow < k n " Jike* ambiguity regarding appointment ot Administrator. does Mr. M aira get a scintilla o f the existence ol iraud in these proceedings ol 12/8/98? I see none. Again, the proceedings o f 16/8/96 are very biief. The court sim ply gate the order o f having the Liganga house valued by a governm ent valuer. W hile conceding that one m ay ask h im self a question as to how did this come about because the court acted suo m otto, fraud is too rem ote to be im putted simply for this somehow suspicious step, for it is ju st a continuation o f what transpired on 12/8^96 w hereby an order w as m ade that the house should be sold. Let it be m ade clear th at at this point I am not concerned w ith the legality or otherw ise o f the order. 1 am concerned w ith w hether directly or circum stantially fraud can be said to exist on m erely looking at these proceedings. As already concluded I can not see a suggestive elem ent o f the same. A s for the court proceedings dated 20/8/96 c som ehow rough dealing by the court w ith Appellant on record that A ppellant w as refusing to have the r the G overnm ent valuer and w as thus called upon tc ne can only note the . But, even then, it is ^levant house valued by show cause thereof.

We tin

  • « ... through the three day p ro ceed ,n f* w n h o u t seein g the « eged threats. remandmg and ^ ^ ‘ outnicnts or s , a , « ^ (ln my case ^ wm; ^ ^ documents tendered) save for his forced before the court for -■ ure lo allow the government valuer to ad „„ the (|,«„„,„d house lie above put as.de. the three days proceeding are concluded with « genera consensus Q„ ^ . Ynsnf ^ gran father o f Respondent and father of Kasslm Y,M,ph Kambangwa
  • n a n * Yusuph K;,mba„gwa and 0m an ^ ^ ’ cceased (the latter be,ng the father o f Respondent, Mrisho Omar, Ashura Oman, Ally Omari and Smahamu Omari>AH f e e names were ^ o n g others, uttered by Appellant htmself on ,2/8/96. W.th th.s kmd of : r ■; * t ~ se,,se * ° w - - a — - - • c aim that the alleged deceased brother. Omari YusufU Kambangwa ,s fictmous and never dted; that h,s nan* ls Jumanne ;7 C,'° " a',d lherefore 311 Ws ‘ssues should be known by Maneno
  • no, Oman, For reasons d,scussed above ground, 2 . 4 o f ^ memorandum o f appeal have no base on whteh to stand and are rdingly dismissed. '» the same vein ground five f l s as well for : : : : t * * • - * * * * - « » L N o. ; 2 „ .O f femeke Pnmaty court related to <h,s matter (upIess m ad v erltly Appe an, mean, No. m m , No. 83 o f 1983, if ,t ever px,s«ed a M ed I race ,e re cvan, record)related to the estate o f a different person in the a eged name o f Maneno and not Omari Yusuf Kamb< the present record. gwaaip^pearing in

17 N ext I should brielly deal and dispose o f ground 6 - that the m atter w as not a probate cause. W hen filing the application the A pplicant clearly show ed that it related to the appointm ent ol the A dm inistrator o f the E state o f O m ari, father o f M risho, Ally, Sinaham u and Ashura. I can not bring m yself to com prehend w hat Mr. M aira m eans w as a civil suit because the obvious is rightly borne There m ay have been som e irregularities here and th w hen he argued that it out by the record, ere but surely this w as clearly a Probate and A dm inistration cause. G round six falls as well. W e rem ain w ith grounds one and seven. I will deal w ith ground one first. M r. M aira argues that though the 5th schedule to the M agistrate s Probate and are governed by the C ourt Act does not provide period of Lim itation, as A dm inistration proceedings are o f Civil nature they L aw o f Lim itation Act, and calls in Rule 31 o f the Probate R ules for guidance fixing tim e lim it to 3 years. Indeed facts show that the relevant Probate Cause w as filed about 15 years after O m ari A s conceded by M r. M aira there is no express prov lim it w ithin w hich to file an application for Probate Prim ary Courts. R ule 31 o f the Probate R ules he cited is inapplicable as these Rules m ade under the Probate and A dm inistration O rdinance do not apply to proceedings before the Prim ary Court. ’s death (1981-96). sion prescribing tim e and A dm inistration in

This ground one o f the m em orandum o f appeal has exercised m y m ind a great deal. U nder part III o f the 1st Schedule to the L aw o f L im itation A ct, item 21, the only closer item to applications before the court, provide^, no “A pplication under the Civil Procedure Codd, 1966 the M agistrates C ourt Act, 1963 and or other w ritten law for w hich : i period o f lim itation is provided in this A ct or other! w ritten law - sixty days, fieing an application and not being provided for anyw here else I am o f the view that Probate and A dm inistration C auses in Prim ary C ourts fall under this item. H ow ever, w hile appreciating the m axim - In tt finis lim icum , that it is for the general w elfare that e to litigation, I am o f the considered opinion that lim for serious m atters as Probate C auses (in prim ary cc (60 days) w ith respect, is highly unreasonable. This com m on sense and public policy. In m ost T anzanian | after one s ideath, m em bers o f the fam ily concerned observing Various funeral rites, and it is uncom m on, unexpected that our people w ould have shelved the the form al application for the A dm inistration o f the rest r e p u b l i c s ut sit period should be put ting the filling period urts) to ju s t 2 m onths is contrary to traditions, 2 m onths w ould still be and in fact, g rie f and rushed for d eceased’s Estate.

That apart, m most eases. Probate and Admin,station causes applications arc filed after meetings and discussion In l'amily members to decide on a fit person to Administer the 1istate. and nivalnabll such sittm^are done well after the said period of 60 days. In any case I find no logic in limiting applications before primary courts to 2 njonths while those filed ill higher courts are given three years - Rule 31 of the Probate Rules, prescribe, “32 (1) - In any case where probate and administration is for the first time applied for after expiration of three years from the death of the deceased, the petition shall contain a statement explaining the delay, unsatisfactory the court (2) should the explanation in the petition be may require such further proof of the allcee^ c a m e 0f delay as it may think fit”. Our cries notwithstanding however that is the law, and we can only call upon the authority concerned to effect the needed amendment which can conveniently be carried out under the 5th Schedule to the MCA, 1984,

20 that in our are It should be noted i are filed to secure a he deceased In the meantime, however, while I can no. buy Mr. M airas proposition that the period of limitation (3 years) prescribed linger Rule 31 should “persuasively” be applied to probate causes before «m a courts because that would be a clear application of an irrelevant lavV for Probate Rules don’t apply to primary courts, 1 am of the settled view that in upholding item 21 of part III of the 1st Schedule to the Law of Limitation Act courts should employ a liberal approach to avoid absurdity environment most of the Probate and Administration Causes not contested, llie majority of these applicatioi legal Representative to retrieve few entitlements of' statutorily so provided, and which cannot be accessed unless there is an Administrator appointed and recognised under the law. These would mclude accessing to bank Accounts, and where deceased was employed, his death gratuity. Even in such situations apart from the reasons 1 have already explained: that observing funeral rights ami summoning family members, most likely than not, can not be accomplished within the 2 months’ period provided under item 21 of the schedule referred to above, it takes mimths and probably years for family members to become aware of dcccased’s rights which require a legal represenl ative. In such situations if courts do not employ a liberal approac h we will find ourselves barring for good the otherwise deceased’s entitlements i.e. Monies lying in bank Accounts or death gratuity which could otherwise assist the needy children and their mothers.

delay in the filing o f the causc. and. further that its jiist determ ination had been prejudiced by that delay it w ould have rejected it. N otw ithstanding the 15 years lapse o f time, apart from O m a n ’s issues w ho stand to benefit as heirs by the sustenance o f the cause, there is no one else w ho can claim even a speck o f prejudice by the sam e G round one falls as well. W e now turn to the last ground o f appeal that the low er courts erred in holding that the graiid-children can ’t inherit!. T his argum ent is baseless because as rightly observed by the D istrict court, the record clearly show s that the A ppellant h im self conceded ui his ow n w ords that the R espondent’s father had a share in the T iganga house. N o. 5. H e died before his share w as ascertained as the A ppellant seem s to have decided to enjoy the dues derived from that house to the exclusion o f his brothers (Jum anne and O m ari) for a long tim e as duly confessed by him before the low er court. A ppellant m ay now have an eye to a bigger share in this house but on the facts available the Islam ic law o f exclusion cannot assist him for it is his b ro th er's share that the Respondent and his brother and sisters are aim ing at and to w hich they are entitled. This ground o f A ppeal is throw n, as-under as well. That said I have asked m y self w hat should b e done to cure the otherwise irregularities vivid here and there and to Expedite the nrocurncnt o f e n title m e n t* * to R espondent, bis brother and sisters. U pon A * I . • full consideration o f the m atter I should m ake the follow ing observations ' i and conclusions. Tam in full agreement with the loiver courts that the

A ppellant should hlam c him self for non-disclosure o f the existence Probate and A dm inistration C ause N o 161/87: and that, nevertheless judicial notice o f its existence should be taken I hat being the case the order lor the selling o f the house No. 5.1 iganga street, should have been made in that Causc (161/87). The Primary Court in Probate Cause N o. 123/96 should have lim ited its directives to the Appointment o f A dm inistrator and pointing out that am ong other property to be adm inistered is a share o f the deceased Om ari in th i 1 iganga house. The court then had pow er to call upon Appellant to table the A ccount s and distribution o f the 1'state he had been appointed to A dm inister in No. | 161/87. w herein O m ari's share w ould be show n and if not revealed, the Respondent w ould heflfe called upon the court to recjuirc A dm inistrator (Appellant) to so indicate failure of which the court could then decide as it i t deem ed fit. Afcarlier o b sci'vcd . the prim ary court m taking proceedings in i Probate No. 123/96 beyond the appointm ent o f the A dm inistrator by i involving detailedly the other I .state o f Y u su f Salutin K am bangw a, and also distributing both Estates created Unnecessary cbnfusions. and I cannot subscribe to the district co u rt's conclusion that this is w h at is envisaged under the H andbook ol the M oham edan law o f Inheritance by Sheik Alt Bin H em ed El Buhuri, chapter IX:- w hat 5s envisaged there, am ong others, is a situation w here no A dm inistrator had been appointed to

anv o f the Estates T!cre;Y u s u fs Estate lias an Adm inistrator already: Appellant. In accordance with the circum stances o f tins case, apart from dism issing the Appeal on urounds and reasons already stated, for the ends o f justice I feel compelled to m ake the following orders:- a) The unclear appointm ent ol Appellant. Kassim Y usuph K a m b a n g w a as the Adm inistrator o f the Estate o f Omari Y usuph Kam bangw a is set aside If he hal> failed to give accounts let alnne to distribute his father's Estate since 1987 when he was appointed A dm inistrator in Piobate and j A dm inistration Cause No. 161/87 ( and w ^cre there w as no contest as regards property) it would be expecting m iracles for him to act in this cause where his interest <kkeeping the Liganga house to him self is being challenged and vfhere he has already alleged fictitious deaths, existence and fraud! M risho O m ari Y usufu, deceased's son, is duly appointed fnstead. H e had to collect the deceased’s dues and property including m aking a follow up o f his father’s share in house Np. 5, Liganga Street. t 1le should report o f the progress o f the whjile exercise o f the A dm inistration o f the estate to the ’Teineke Prim ary C ourt w ithin three m onths o f the delivery o f this judgem ent.

(b) 'Flic decision o f the primary court supported by (be District Court, o f selling the I.iganga Mouse. No 5. is set aside lor having been dealt with in the wrong file and prematurely! In lieu thereof the same Primary ( omt is directed to call upon the Appellant to present accounts and distribution < > | the I ■state lor which he was appointed an Adminislrnlo! m I’tobale and Administration Cause No. 161/87 within a month ho m the date of delivery of this judgement for necessary orders and directions as it may deem fit. (c) In line with the above orders the distribution o f the two Instates made by the I iimaiy ( ourt on 12/8/96 is accordingly set a s id e lurthei directions and orders as may be deemed proper to be M&iLc alter the Administrators in the respective 1States have acted as directed. Save lor what have been directed the Appeal is dismissed with costs L. Kalegeva Judge

Discussion