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Case Law[1998] TZHC 2017Tanzania

Kassim Yusuf Kambangwa vs Mrisho Omari (PC Civil Appeal 69 of 1997) [1998] TZHC 2017 (5 October 1998)

High Court of Tanzania

Judgment

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM PC CIVIL APPEAL NO. 69 OF 1997 (From Temeke District Court Civil Appeal No.92 of 1996 originating from Probate and Administration Cause No.123 o f 1996 of Temeke Primary Court) KASSIM YUSUF KAMBANGWA versus: MR1SHO OMARI ............................. T u d g e m e n t This judgement is in respect o f a very unfortunate but interesting matter which can only be appreciated by going tlirough its history as detailed hereunder. Anned 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 Mudurani, 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 o f the Estate o f his deceased father, Omari Yusufu Kambangwa, who died in 1981. The latter fact is revealed in a written summary o f 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). deceased hod nteo left behind 3 other issues, namely, Ally Omari. Asluua Oman and Smahanm Omari. This, however, was som ehow in contradiction with the above mentioned letter^for while in his application, Mrisho prayed to be appomted the Administrator o f the Estate o f OmariYttft|A Kambangwa, the letter by the Mjimwema chairman indicated that he was to apply to be the Administrator o f the Estate o f his grandfather, Yusuf Salum Kambangwa, who left behind three issues including Mrisho s father. The letter claimed that the heirs o f Yusufu Salum Kambangw a had picked on Mrisho * (a grandson) to be the Administrator. However, it seems the letter was disregarded, as the Misc. Cause No. 123/96 filed concerned the Estate o f Mrisho’s father as exemplified.by the summary o f the application, the ERV issued; the advertisement made in Uhum Newspaper dated 27/5/986 * 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 die

1 Administrator instead (of his father s estate) which prayer was supported by Jumanne Yusuf Kanibangwa (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 Kassim Yusufu Kambangwa asimamie mirathi.’' Hukuinu: Msimamizi wa mirathi hii ni Mzee Kassim Yusufu Kambangwa Sgn: Zuhura 2. Hussein Sahihi: M.J. Matenyange-Hakimu 12/8/98 (emphasis mine) One would have expected the proceedings to stop immediately after the appointment o f 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 mwaka 1981 na kuacha watoto hao. Hivyo naomba kusimamia Mirathi na liaki 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 coui I was an application for the appointment o f an Administrator ol 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 o f the Estate of Omari Yusufu Kambangwa. The Administration o f 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 o f 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 yake 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 o f the Estate o f Yusufu Salmn Kambangwa and particularly the house No. 5 o f 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 Mzec Kassim Yusufu Kambangwa , for in its concluding part, it states. “,,,.ila tu Mahakama haikubaliani na ukoo kuwa msimamizi achukue usimatniaii”, and proceeded to prescribe how the two Estates should be shared by heirs. Even at the danger o f making this judgement unduly long let the record speak for itself:^' “URITH1 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 utakavyogawiwa kwa sheria na mila ya Kuslatn. Nyumba Liganga Na. 5 Kassim Yusupli Kambangwa Omari Yusufu Kambangwa .lumanne Yusufu Kambangwa wagawane sawa mgao wa walu 3, na watolo 4 wapate I'utigu la baba yao. MGAQ WA T.H.A.BANDARIN1: watoto wa kike apate robo ya mali na itayobakia watoto 3 wa kiume wagawane snwa katika salio ya mali. Mshauri Na. 1 Sgd Hussein « “ 2 Sgd Zuhura Saliibi: M.J.Matenyange- Hakimu 12/8/96 The above "Hukumu” was passed on 12/8/96. Four days later (16/8/96) on its own motion and in the absence o f 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 o f the relevant house, and it would seem he was immediately apprehended as reflected by the record which runs as under, “MAHAKAMA - Mzee Kassim ametikishwa hapa na anaomba radhi mahakama na kukubaliwa lakini kazi imefanywa na mthamini Mkuu wa Serikali.

Pia Mahakama imemuagiza Mrisho Omari ambayc ndiye aliyekuwa aanze kufuatilia suala la mirathi ya marelicnni ambayc liivyo kvva kuvva Mzee 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 Tetneke District Court (DC Civil Appeal No. 92 o f 1996) arguing^mong others^ raising a totally new matter, that the lower court erred in holding that (i) no one had been appointed Administrator o f the Estate of Yusufu Salum Kambangwa when that was already done by appointing him vide Probate and Administration Cause No. 161 o f 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 District 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 before ihc com I Unit (lie house in question be sold. The District Court alsJf judicial notice o f the Probate & Administration Cause No. 161/87. and quoting a Handbook o f 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 o f the administrator to work out how much the late Oman deserved in all the properly involved in probate & A d m i n i s t r a t i o n 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 o f 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 o f appeal as follows

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

  2. That the primary court magistrate erred in entertaining the application for grant o f 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 Mulabuzi, 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 o f civil nature, they are governed by 5th Schedule to the

10 MCA 1984, hence limitation Act is applicable He went further by ajguing that though not applicable in Primary courts, Rule 31 o f Probate Rules is persuasive and and that the time limit o f 3 years thereunder should apply to such causes and that this cause was filed out o f 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 o f Omari Yusuf Kambangwa; that the proceedings in the primary court were actuated by fraud as it changed from dealing with the estate o f Omari to the distribution o f house No. 5 Liganga street; that execution was hurriedly embarked upon as the valuation o f the house was ordered just 4 days after judgement and deceased ‘s son ordered to make a follow up o f 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 o f 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 o f death o f the owner of the estate to be administered is left to the decision o f the parties and the court; that the allegation o f 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 ; himself admitted that the deceased was his blood brother; that the existence o f probate No. 83 of 1983^ if true^was witjnn Appellant’s knowledge hence should have disclosed it. adding However that it is false to say that Mrisho Jumanne is Mrisho Omari and that Jumanne Maneno ^ i is Yusuf Kambangwa and finally that this matter cajn not be interpreted to mean a civil suit as that would offend S.2(1) o f the ta w o f Limitation Act, No. 10 o f 1971, which has provided definition o f ajsuit, as I means any pioceedings o f a civil nature instituted in any court but i does not include an appeal or application”. Iij conclusion Mrs. Mutabuzi observes, j all grounds in this appeal are not derived fro of both the lower courts but they are new issu such not properly before this ... court”. m the decisions es o f fact: as In the final reply Mr. Maira reiterated his submissions insisting that there was fraud; that the remedy available is for the nullification o f the lower courts proceedings and ordering hearing dencvo because (citing 5 corpus juris seccundum. 372 at page 732 and the Llalsbury’s Laws o f England, 3rd edition, Vol 22 (lord simonds) at page 790) judgements 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 of probate jurisdiction, the appellate court, generally j try the case denovo” (C.J.s S 758-at page 198) as Probate proceedings are not normal proceedings. Now 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 Primary Court because of the nature o f the arguments presented on appeal to the District Court and this court. As rightly pointed out by Mrs Mutabuzi, arguments on appeal introduced qui convassed before the trial court such that one is left how such serious matters if true, could have escapeil the Appellants’ presentation before the Primary court! e new matters not at a loss, wondering Considering this and the conduct of the proceedings before the primary court at sonufc stages my observation at tile commencement of this judgement that this matter is both “interesting <1nd unfortunate” is not without base. i • i While commending Mr. Maira’s ingenuity in arguments I am sorry to say that they cannot assist because they are matters unsupported by the record memorandum o f Appeal and oral arguments on ap The only ground which 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 tliis score is the

14 one related to limitation of period for tlint 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 primary 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 o f 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 o f 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 ol selling the house. Putting iiside the irregularities, i.e. mixing the two estates, some eoniussions and Somehow <kn ambiguity regarding appointment ot Administrator, ^does Mr. Maira get a scintilla of the existence ol fraud in these proceedings of 12/8/98? I see none. Again, the proceedings o f 16/8/96 are very biief. The court simply gate the order of having the Liganga house valued by a government valuer. While conceding that one may ask himself a question as to how did this come about because the court acted suo motto, fraud is too remote to be imputted simply for this somehow suspicious step, for it is just a continuation o f what transpired on 12/8^96 whereby an order was made that the house should be sold. Let it be made clear that at this point I am not concerned with the legality or otherwise of the order. 1 am concerned with whether directly or circumstantially fraud can be said to exist on merely looking at these proceedings. As already concluded I can not see a suggestive element of the same. As for the court proceedings dated 20/8/96 c: somehow rough dealing by the court with Appellant on record that Appellant w'as refusing to have the r the Government valuer and was thus called upon to ne can only note the . But, even then, it is levant house valued by show cause thereof.

  • c thus through the three day .n .K .c c d ,^ wnhout seeing the a ege , .rems. ,m,m,dat,on. remand,ng and fore,rig an Appellant to s.gn u x u m en ts o r ..... .. . (i„ any case tllc, , ^ ^ documents tendered) save for his foreed a p p ^ n e e before the court for
  • ure ,o allow the government valuer to net „„ the <l,sputed house. Th* above put as.de. the three days proceedings are concluded with a genera consensus on names - YusufSalum Kambangwa being the grandfather o f Respondent and father o f K„sslm YlMlp„ Kan)ba ■umanne Yusuph Kambangwa and Oman Yusuph Kambangw, the ’ eceased (the latter being the faher o f Respondent, Mrisho Omar. Ashura Omar, Ally Omari and Smahamu Omari>AH these names were among others, uttered by Appellant h.m self on 12/8/96. Wlth * * kmd o f : r , * t ~ se,,se * ° have - - * » - - “ • c aim that the alleged deceased brother. Oraari Yusufi, Kambangwa ,s fictitious and never died; that his nan* ls Jumanne » e n o instead and therefore all his issues should be known by Maneno
  • not Oman, For reasons d ,cu ssed above grounds 2 - 4 o f L memorandum o f appeal have no base on wh.eh to stand and are rdingly dismissed. In the same vein ground five fils as well for : : : : t ^ - * * * * - « » l No. ; 2 „ » Of femclce Primary court related to «hts matter (upless inadverltly Appe an, mean, No. l23/96) No. 83 o f , ^ ,f . ^ ^ ^ * ace ,e re evant rccord)related to the estate o f a d iffe r L person in the alleged name o f Maneno and not Omari Yusuf Kamb, llie present record. gwa a p^pearing in

I 17 Next I should briefly deal and dispose of ground 6 - that the matter was not a probate cause. When filing the application the Applicant clearly showed that it related to the appointment ol the Administrator of the Estate o f Omari, father o f Mrisho, Ally, Sinahamu and Ashura. I can not bring myself to comprehend what Mr. Maira means was a civil suit because the obvious is rightly borne There may have been some irregularities here and th when he argued that it out by the record, ere but surely this was Probate and are governed by the clearly a Probate and Administration cause. Ground six falls as well. | i We remain with grounds one and seven. I will deal with ground one first. Mr. Maira argues that though the 5th schedule to the Magistrate s Court Act does not provide period ol Limitation, as Administration proceedings are o f Civil nature they Law o f Limitation Act, and calls in Rule 31 of the Probate Rules for guidance fixing time limit to 3 years. Indeed lacts show that the relevant Probate Cause was filed about 15 years after Omari As conceded by Mr. Maira there is no express prov limit within which to file an application for Probate Primary Courts. Rule 31 o f the Probate Rules he cited is inapplicable as these Rules made under the Probate and Administration Ordinance do not apply to proceedings before the Primary Court. ’s death (1981-96). sion prescribing time and Administration in

This ground one of the memorandum of appeal has exercised my mind a great deal. Under part III o f the 1st Schedule to the Law of Limitation Act, item 21. the only closer item to applications before the court, provides, “Application under the Civil Procedure Code, 1966 the Magistrates Court Act, 1963 and or other written law for which no ^ : i period o f limitation is provided in this Act or other! written law - sixty days.” Being an application and not being provided for anywhere else I am ol the view that Probate and Administration Causes in Primary Courts fall under this item. However, while appreciating the maxim - Intt finis limicum, that it is for the general welfare that e to litigation, I am o f the considered opinion that lim for serious matters as Probate Causes (in primary cc (60 days) with respect, is highly unreasonable. This common sense and public policy. In most Tanzanian | after one s Ideath, members o f the family concerned observing Various funeral rites, and it is uncommon, unexpected that our people would have shelved the the formal application for the Administration of the rest r e p u b lic s ut sit period should be put ting the filling period urts) to just 2 months is contrary to traditions, 2 months would still be and in fact, grief and rushed for deceased’s Estate.

That apart, in most eases. Probate and Administration causes applications are filed after meetings and discussion by family members to decide on a fit person to Administer the 1istate. and invalmibll such s i t t i n g done well after the said period o f 60 days. In any case I find no logic ill limiting applications before primary courts to 2 njonths while those filed in higher courts are given three years - Rule 31 o f the Probate Rules, prescribe, j ‘32 (1) - In any case where probate and administration on o f three is for the first time applied for after expirati years from the death o f the deceased, the petition shall contam a statement explaining the delay, unsatisfactory the court (2) should the explanation in the petition be may require such further proof o f the allege^ cause o f 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,

I 20 In the meantime, however, while I am no. buy Mr Maira's proposition that the period of limitation (3 years) prescribed un^er Rule 31 should “persuasively” be applied to probate eauses before Urunaiy courts because lhat w o u l d be o clear application o f ail irrelevant lavV for Probate Rules don't apply to primary courts, 1 am o f the settled view that in upholding item 21 of part 111 of the 1st Schedule to the Law o f Limitation Act courts should employ a liberal approach to avoid absurdity e n v i r o n m e n t most of the Probate and Administration Causes not contested. Hie majority o f these applicatio 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 include accessing to bank Accounts, and where deceased was employed, his death gratuity. Even in such situations apart from the reasons 1 have already explained: lhat observing funeral rights an<j summoning family m e m b e r s , 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 months and probably years for family menders to become aware that in our arc It should be noted i are filed to secure a he deceased ative. In such ti we will find ourselves o f deceased’s rights which require a legal represen situations if courts do not employ a liberal approac barring for good the otherwise deceased’s entitlements i.e. Monies lying m bank Accounts or death gratuity which could otherwise assist the needy children and their mothers.

delay iii the filing of the c n n s c . and. further thnt its just determination had been prejudiced by that delay it would have rejected it. Notwithstanding the 15 years lapse of time, apart f r o m O m a r i ' s i s s u e s who stand to benefit as heirs by the sustenance «!' the cause, there is no one else who can claim even a speck ofprciu.licr bv the same Ground one falls as well. We now turn to the last ground of appeal that the lower courts erred in holding that the grand-children can’t inherit!. This argument is baseless because as rightly observed by the District court, the record clearly shows that the Appellant himself conceded ni his own words that the Respondent’s father had a share in the Tiganga liouse. No. 5. He died before his share was ascertained as the Appellant seems to have decided to enjoy the dues derived from that house to the exclusion of his brothers (Jumanne and Omari) for a long time as duly confessed by him before the lower court. Appellant may now have an eye to a bigger share in this house but on the fact*: available the Islamic law of exclusion cannot assist him for it is his brother's share that the Respondent 'and his brother and sisters are aiming at and to which they are entitled. This ground o f Appeal is thrown, as-under as well. ! That said I have asked myself what should bd done to cure the otherwise irregularities vivid here and there and to Expedite the procijnent o f entitlement*^ to Respondent, his broker and sisters. Upon full consideration o f the matter 1 should make the fdllowing observations and conclusions. T am in full agreement with the loi kver courts that the

Appellant should blame him self for non-disclosure o f the existence Probate and Administration Cause N o 161/87: and that, nevertheless judicial notice o f its exigence should be taken Thai being the ease the order for the selling o f the house No. 5.1 .ignnga street, should have been made in that Cause (161/87). The Primary Court in IProbate Cause No. 123/96 should have limited its directives to the Appointment o f Administrator and pointing out that among other property to be administered is a share o f the deceased Omari in thi Liganga house. The court then had power to call upon Appellant to table the Account’s and distribution o f the 1'state he had been appointed to Administer in No. | 161/87. wherein Omari's share would be shown and if not revealed, the Respondent would hedfc called upon the court to require Administrator (Appellant) to so indicate failure o f which the court could then decide as it i t deemed fit. Afearlier obsen ed . the primary court in taking proceedings in i Probate No. 123/96 beyond the appointment o f the Administrator by i involving detailedly the other I .state o f Y usuf Salutin Kambangwa, and also distributing both Estates created Unnecessary cbnfusions. and I cannot subscribe to the district court’s conclusion that this is what is envisaged under the Handbook ol the Mohamedan law o f Inheritance by Sheik Alt Bin Hemed El Ruhuri. chapter IX:- what 5s envisaged there, among others, is a situation where no Administratol had been appointed to

anv o f the Estates T!ere;Y u su fs Estate lias an Administrator already: Appellant. In accordance with the circumstances of this case, apart from dismissing the Appeal on grounds and reasons already stated, for the ends o f justice I feel compelled to make the following orders:- a) The unclcar appointment o f Appellant. Kaisim Yusuph Kambangwa as the Administrator of the Estate o f Omari Yusuph Kambangwa is set aside If he hal> failed to give accounts let alone to distribute his father's Estate since 1987 when he was appointed Administrator in Piobate and j Administration Cause No. 161/87 ( and wlicrc there was no contest as regards property) it would be expecting miracles for him to act in this cause where his interest <jifkeeping the Liganga house to him self is being challenged and where he has already alleged fictitious deaths, existence and fratid! Mrisho Omari Yusufu, deceased's son, is duly appointed fnstead. He had to collect the deceased’s dues and property including making a follow up o f his father's share in house N|). 5, Liganga Street. t 1le should report o f the progress o f the whjile exercise o f the Administration o f the estate to the Teineke Primary Court within three months o f the delivery' o f this judgement.

(b) 'Flic decision o f the primary c-Mirt supported by (he District Court, of selling the I. iganga Mouse. No 5. is scl 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 o f the I Male lor which he was appointed an Adtninislraloi m Ptobale and Administration Cause No. 161/87 within a month ( 10 m the date ol delivery ol this judgement for necessary orders and directions as it may detjin fit. (c) In line with the alxuo orders the distribution o f the two Kstates made by the I iim aiy ( ourt on 12/8/96 is accordingly set aside lurthei directions and orders as may be deemed proper to be M&iLc alter the Administrators in the respective fstates have acted as directed. Save lor what have been directed the Appeal is dismissed with costs L. Kalegeya Judge 5~ 1 0 M g

Discussion