THE UNITED REPUBLIC OF TANZANIA

JUDICIARY
IN THE HIGH COURT OF TANZANIA
MBEYA DISTRICT REGISTRY
AT MBEYA
PROBATE AND ADMINISTRATION APPEAL NO. 06 OF 2019
(Arising from the decision of the District Court for Mbeya in Probate and
Administration Appeal No. 01 of 2019. Original from Mwanjeiwa Primary Court in
Probate and Administration Cause No. 20/2018)

KRISTANTUS MSIGWA................................................ ..APPELLANT

VERSUS
MARRY ANDREW MASUBA.......................................... RESPONDENT

JUDGMENT

Date of last Order: 01/06/2020

Date ofJudgment: 17/08/2020

NDUNGURU, J. "

This matter has a chequered history. The deceased one Patrick

Andrew Masuba died intestate in Mbeya on 17/10/2017. In the Probate

and Administration Cause No. 20 of 2018, Mwanjeiwa Primary Court

granted letters of administration to Mary Andrew Masuba, the deceased

sister (the respondent in the instant appeal). The appellant filed the

objection challenging grant of letters of administration to the

respondent.

Following the objection, the Primary Court found that the appellant

was child of the deceased and a lawful heir of the deceased estate and
further the respondent's appointment as administrator of the estate was

revoked.

The respondent being irritated with the revocation and the

recognizance of the appellant as among the lawful heirs of the estate

appealed to the District; Probate Appeal No. 01 of 2019.

As commented by the appellate Resident Magistrate in his

judgment, I have faced the same situation. The grounds of appeal

presented at the District Court are not apprehended with easy. It is very

difficult to understand what was the appellant appealing against.

Notwithstanding the fact that the appeal was disposed by way of

written submission still, noted from the judgment of the appellate

Resident Magistrate, the submission was of no help to understand what

is in the minds of the disputants. Being the experienced Principle

Resident Magistrate made a close check on the merits of the whole case

and accordingly decided it.

In its decision, the District Court restored the respondent in the

then revoked position of being administrator of the estate of the

deceased and nullify the recognition of the appellant being the heir of

the estate.

The court further advised the appellant to follow procedures so as

to be recognized as being one of the issues of the deceased.

 The appellant one Kristantus Msigwa being aggrieved with the

whole decision of District Court of Mbeya is now appealing to this court.

In his petition of Appeal the appellant has raised four grounds of appeal

as reproduced hereunder:

1. That the District Court Magistrate failed to address his mind that, the

grant of administration by Mary Masuba has been obtained

fraudulently without participation and will of the appellant with other

children of the deceased inspite of such concern raised to the court to

the effect in their reply to the petition of appeal that she has

excluded the children who are beneficiaries.

2. That the District Court Magistrate erred in law and fact by holding

that, the appellant is neither beneficiary nor blood related of the

deceased Patrick Andrew Masuba in utter regard of the strong

evidence adduced at the lower court during the trial.

3. That, the District Court Magistrate erred in law and in fact by holding

that there is no ground to revoke administration of the respondent,

while the proceedings to obtain such grand were defective in

substance to the effect, memorandum of the family meeting

appointing the Respondent excluded the Appellant with other children

of the deceased; in utter regard to the Primary Court Order that

children be included.
4. That, the District Court Magistrate erred in law for entertaining issues

outside from those contained in the memorandum of appeal, and

biasly invoke extraneous matters hence reached to a wrong decision.

When the matter was called before me for hearing Mr. Maumba

learned advocate appeared for the appellant while Mr. Paul Mashoke

learned advocate represented the respondent. Upon application from the

counsels, the court ordered the appeal be disposed by way of written

submissions.

In submitting for the application Mr. Maumba learned counsel

abandoned the 1st and 3rd grounds of appeal thus proceeded with the

2nd and 4th grounds of appeal.

On the second ground of appeal Mr. Maumba was of the

submission that the evidence on record during the trial at the Primary

Court established the fact that the appellant is the blood son of the

deceased one Patrick Andrew Masuba, likewise his brothers Faraja

Patrick Masuba and Andrew Patrick Masuba. He went on saying that

PW2, PW3, PW4 and PW5 who worked with the deceased closely

confirmed that the appellant was the son of the deceased and he is

employed in the name of Kristantus Patrick. He also said from the

evidence the PRF 14 and finger prints report which were tendered shows

that the appellant is the son of the deceased.

 That counsel was of the contention that had the District Court

Magistrate directed his mind to the evidence on record could not have

reached to the decision that there is no evidence that the appellant is

the son of the deceased.

Mr. Maumba, further submitted that there is no law or customs

which require a parent to introduce his children to the family members

whenever they are born.

On the 4th ground Mr. Maumba was of the argument that being

the first appellate court, the District Court was bound to evaluate

evidence as a whole. Had the District Court Magistrate done that he

could have found that the whole appeal was centred or whether the

appellant with his two brothers were the children of the deceased and

whether the Probate Cause No. 20 of 2018 at Mwanjeiwa Primary Court

which the appeal lies was res-subjudice. He said that was due to the

strong evidence of PW1, PW2, PW3, PW4 and PW5 (the sister of the

deceased). Further that the appellant had informed the court that he

had already filed Probate Cause No. 33 of 2018 at Mbeya Urban Primary

Court on the same estate.

The counsel further contended that before the District Court the

appellant (respondent) never raised the issue of default in administering

the estate but the District Court Magistrate delt with it as a pertinent

issue. He thus argued the appeal be allowed.

Mr. Mashoke advocate for the respondent was of the submission

that the deceased during all his life time had never introduced to the

clan the appellant and his family. Thus the appellate court was right to

find that the appellant and his brothers Faraja and Patrick were not

blood related to the deceased. The counsel fortified his argument by

citing the case of Violet Ishengoma & Jovin Mutabuzi vs. The

Administrator General & Edudokia Kahangwa [1990] T.L.R 72.

The counsel submitted further that there is no any background

history of the deceased to have had married any other woman apart

from Merisiana Mwingira who died without having a child. He said under

G. N. No. 436 of 1963, an illegitimate child cannot inherit from the

father's side upon the father dying interstate.

It was a further argument of the counsel that all witnesses who

testified before the court made mere narrations and stories. No any legal

document was tendered to support their evidence such as birth

certificate. It is from the bare stories the appellate court advised the

respondent to make proper procedures to be recognized as being the

issue of the deceased. He thus urged the court to dismiss the appeal

with costs.
 The point of determination here is whether this appeal is

meritorious. Before going to the merit of the application in the light of

the grounds of appeal presented and the rival submissions made by the

counsel of the parties, I wish to make it clear that, the original

jurisdiction over probate matters is vested to the Primary Court and the

High Court. The District Court and the Court of Resident Magistrates are

vested with such jurisdiction in the small estates.

The jurisdiction of the Primary Court In the probate matters is

when the law applicable is customary or Islamic. This jurisdiction is

provided for under Section 19 (1) (c) of the Magistrates Courts Act, Cap

11 (Revised Edition 2019) particularly in the Fifth Schedule. Paragraph 2

of the Schedule provides for the functions of the Primary Court in the

administration of the deceased estates among others is; the

appointment of the administrator (s) who is interested in administration

of the deceased estate, and revocation of any appointment of the

administrator it did for a good and sufficient cause.

Its further functions are contained in Rule 8 of G. N. No. 49 of

1971 which are to determine whether the deceased died testate or

interstate, whether the document alleged to be the deceased is

a valid ’W//Zof the deceased or not, any question as to the identity of

persons named as heirs, executors or beneficiaries in the will and many

others.

In the case at hand, the Primary Court performed its role of first

appointment of the administrator of the estate. In this role the court

appointed the respondent the administrator. Upon objection being raised

on the appointment, the Primary Court heard/entertained the objection.

Being satisfied by the objection, the court revoked the appointment. In

all that it did were within its powers.

As noted above, the revocation must be done upon good and

sufficient cause. The question is to whether the revocation of the

respondent was upon good cause. The Primary Court record reveals that

the revocation was done following objection raised by the appellant.

Rule 9 (1) of the Primary Court (Administration of Estates) Rules G. N.

No. 49 of 1971 lists matters that can move the court revoke/annual the

appointment. From the record the reason for revocation is that the

appellant was not involved in clan meeting of appointing the

administrator. As decided by the District Court, I also find that, that was

not a good and sufficient cause to warrant revocation.

That being my position, I thus agree with the holding of the

District Court, that the revocation was not proper, restoration of the
respondent to that position is the only remedy as done by the first

appellate court.

Having so done, I proceed now to test the second ground of

appeal on the legality of the appellant to inherit the estate of Patrick

Andrew Masuba, the deceased.

The objection raised by the appellant was to the effect that, the

respondent had excluded him with his two brothers from the estate of

the deceased while they are blood children of the deceased. From the

objector's side, five witnesses testified and some documentary evidence

were tendered to prove that the appellant and his two brothers Patrick

and Faraja are blood children of the deceased.

The respondent's side had three witnesses who denied to

recognize the appellant and his brothers to be the sons of the deceased.

The basis of their denial was that the deceased had never introduced

them to the family and clan members. That to the best of their

understanding, their relative (deceased) had no issue left alive. It was

their assertions the deceased married wife who was not blessed with

any issue passed away earlier before the deceased.

The court having scrutinized the evidence tendered by both sides

was satisfied that the appellant and his brothers are lawful children of

the deceased, the court held:

 "Kwa sababu tulizotoa hapo juu ikiwemo maelezo ya m/eta

maombi pamoja na mashahidi wake, Mahakama hii

imekubaliana na ushahidi huo kwa kuona kuwa m/eta

maombi ni mtoto ha/a/i wa marehemu na wanastahiii kuteua

Msimamizi wa Mirathi ya ma/i ya Baba yao."

The respondent being dissatisfied with that decision preferred the

appeal to the District Court. As stated earlier, that the grounds are not

easily understood due to the grammatical composition. But the second

grounds reads:

2 'The honourable Primary Court erred both in law and fact

when it entertained the respondent evidence with no law

record concerning him/her being the son/daughter of one

Patrick Masuba."

To my opinion, the above was the centre of the appeal before the

District Court, which has also brought about the appeal at hand.

Dealing with the above ground which actually intended to test as

to whether the appellant was the issue/child of the deceased Patrick

Andrew Masuba, the first appellate court, at page 3 last paragraph of

the typed judgment said:

W2 P. 4310 ASP Mganga Mhando, PW3 B.691 Sgt. Adam,

PW4 Bodrick Kasiiati Mwang'onda and PW5 Ireen Masuba,

tried to convince the court that the respondent was one of

the issues of the /ate Patrick Andrew Masuba. The court

believed as such that the respondent is one of the issues of

 the late Patrick but it did not give reasons as to why it had

arrived at that conclusion."

On the same issue at page 5, third paragraph the said first

appellate court judgment reads:

"The appellant and other family members of the decease

estate had not, at any point, recognized the respondent

being one of the issues, whether legal or illegal, of the

Patrick Andrew Masuba. The Primary Court, either was not

certain on this, but it allowed the application. The court

below erred for as the respondent was not a creditor of the

deceased's estate or any heir or beneficiary thereof for there

was no concrete evidence that the respondent was from the

blood relationship or any part thereof, of the deceased

Patrick Andrew Masuba."

At the conclusion, it's the appellate court Magistrate, said "the

respondent is advised to make proper procedure to be recognized as

being the issue of the late Patrick Andrew Masuba by following the

proper procedure...."

Basically, it is this holding which prompted this second appeal as it

can be depicted in the second ground of appeal. At the outset, let me

point it out that it is a settled law that the duty of the first appellate

court is to reconsider and re-evaluate the evidence and come to its own

conclusion bearing in mind that it never saw the witnesses as they

testified (See Pandya vs. Republic (1957) EA 336. From the

judgment of the first appellate court is very clear, the appellate

Magistrate failed to properly do the task. Thus, even the conclusion

reached at has no legal foundation. I will try to re-evaluate in the next

few lines.

I prefer to start with the defence evidence. Basically DW1 and

DW2 are the young brothers of the deceased, their evidence is to the

effect that in the life time of the deceased, he had never introduced the

appellant to be his son. That the deceased married one Merisiana

Mwingila who was not blessed with any issue up to her death. DW2

specifically said the deceased had married one Merisiana Mwingila but

they were not blessed with the issue. Further he said the deceased had

three children Patrick Merisiana and Linda who all died.

While the objector's side had five witnesses. OW1, (Objector

witness), OW2 and OW3 were to workers (Prisons Officers) of the

deceased, while OW4 was the Cell (Mtaa) leader where the deceased

lived. PW5 was the young sister of the deceased. OW2 and OW3

testified on how they came to know the appellant to be the deceased

son. OW2 who was a representative of the Prison Officer In charge

where the appellant is also working told the court the appellant is the

son of the deceased according to the official records present that was

PRF 14, his letter of employment and Finger print report all have the
name of Masuba as the father's name, he also said the condolence

issued by the prison authority on the death of Patrick Andrew Masuba

were given to the appellant.

OW3 who was also the Prison Officer told the court that he was

guarding the deceased on job and at home. That the deceased told him

that the appellant was his son, and sometime he (OW3) was sent to

receive him also the deceased told him that he had other children Lenda

and Sehela who died and others were Andrew and Faraja. OW3 who

was the close friend of the deceased also told him that the appellant is

his son. But of most important witness is OW5 who was the young sister

who testified to the effect that the appellant is the son of his late

brother (the deceased). This witness is against the defence witnesses

who in fact are relatives. The question is what is the interest she wanted

to serve if she was not credible and if credible what interests her

relatives DW1, DW2 and DW3 want to serve.

From the evidence of both sides it is not in dispute that the

deceased married one Merisiana Mwingila who died childless, but also

that the deceased had other children leave alone those in dispute. Again

employment records are also credible evidence to that effect. The

appellant could not have written the names of the deceased in his

employment records if he had no relation with him particularly being his

father as it appears in those records which the trial court took judicial

notice. On the same footing the appellant requested DNA be tested and

the court took initiative by writing to the Government Chemist the later

dated 03/12/2018 requesting for the test, but it is the respondent and

DW2 one Rogate Andrew Masuba who were required to undergo the

test but all denied in court. As if not enough they wrote a letter to the

court dated 02/01/2019 to that effect. The inference can be drawn why

they denied DNA test.

On the above premises, I am inclined to the findings of the trial

Primary Court findings that the applicant is the legal child/son of the

deceased. I am of this view because I do not find any reason stated by

the first appellate court to deny this fact, taking into account the Primary

Court being the court of first instance had an opportunity to assess the

credibility and reliability of the witnesses and their deminour. To negate

its findings one must have cogent and plausible reasons. I am satisfied

there is non. I fully support the findings of the Primary Court Magistrate

on that aspect.

The above being my findings, of equal important, is the fact that

the marriage of the deceased ended with no blessing of the issue, it is

obvious then all the children referred above were born out of wedlock.
 The issue irritating my mind at this juncture is whether the child

born out of wedlock has the right to inherit from the estate of their

deceased father. We have the law in place on this aspect. The Local

Customary Law (Declarition) (No. 4) Order, G. N No. 219 of

1963. In this piece of legislation, the position is "'illegitimate children

shall not inherit in the patriiiniar side unless there is a will. Whether the

law is valid or not at the contemporary times; the fact that it is still in

place, is a legitimate law"

To my view which is subject to criticism, the intention of this law

was to protect the "sanctity of marriage". Again my question is who is

now derogating that sanctity of marriage which the law is there to

protect? The answer is simple, it is the spouses who the legislature

intended to protect. It is either by giving birth to the children before

marriage or by giving birth out of marriage during the existence of the

marriage.

The question at hand now is should the child born out of the

wedlock suffer the consequences of the fault made by the parents? If I

could be answering the above question from theological context I could

say it is possible. This is due to the fact that the theological teaching is

saying "we are suffering hardships in this world as a result of the sin

committed by our parents Adam and Eve" But for the purpose of this
case it is not. I agree with my learned brother Hon. Mlacha, J who is of

the position that the Local Customary Law (Declaration) (No. 4) Order

G.N No. 436 and 214 of 1963 is no longer valid with the coming in force

of the Law of the Child Act of 2009 (See Beatrice Brighton Kamanga

and Another vs. Ziada William Kamanga, Civil Revision No. 13 of

2020 High Court (Unreported).

The Law of the Child Act, 2009 and the United Nations Convention

on the Right of the Child 1989 to which our Country is a signatory have

shaded light towards the protection of the rights of the Children born

out of the wedlock. Article 2 (1) of the Convention which is in pari-

matinal with Section 5 (2) of the Law of the Child Act, 2009 prohibits

discrimination of any kind against a child on the grounds of gender,

race, age, religion, language, political opinion, sex, disability, health

status customs ethnic origin ... birth. This entails that all children are

equal, they must enjoy equal rights.

The Law of the Child Act, 2009 goes beyond. Section 10 of the Act

provides:

"4 person shall not deprive a child of reasonable enjoyment

out of the estate of the parent."

If keenly looking at the two; International and Local instruments

referred above, both of them refer to the child not otherwise. The word
"Child" has different meaning in different jurisdictions. The Law of the

Child Act, 2009, refers to the child below the age of eighteen years.

From the meaning of the child provided in the Act, was it the

intention of the legislation that when the child attains the age of

majority (18 years) the right of enjoyment out of the estate of parent

ceases? Definitely not. To my opinion the meaning is that when the child

attains the age of majority, the dependence of his parents estate

diminishes, but the right is still there. Ifit were that, then even

inheritance after death of the parent would not be.

Again as provided by Section 10 of the Act, the question is that

does enjoyment out of the estate of parent go to the extent of

inheritance of the estate after the death of the parent? My answer is

yes. If the child enjoyed the estate during the life time of the parent

why after death of the parent while the estate is there existing cannot

take part of it and keep on enjoying the same rights enjoyed before.

If the word "birth" stated in the referred Article 2 (1) of the

Convention and Section 5 (2) of the Act represent the status of the child

at the time of birth, whether was born with or without a valid marriage

is covered, (See Beatrice Brighton Kamanga's case supra). The

question is whether having attained the age of majority the birth status

changes. To my view the birth status remains the same. In the premises
even his rights of enjoying the parents estate after the death will remain

intact including inheriting. Because the law prohibits discrimination

based on birth status.

In this reasoning therefore, I hold that it is injustice to deny the

child or a person the right to inherit from his father's estate simply on

the fact that he born out of the wedlock, the act which was of no choice

to him or her. It is high time now for the law makers to see if the Local

Customary Law (Declaration) (No. 4) Order, G.N No. 436 and 219 of

1963 enacted 57 years age is still relevant todate.

All said and done, to the end of justice in this matter I hold that

the appellant has the right to inherit from the estate of his late father

Patrick Andrew Masuba. The decision of the District Court in this aspect

is quashed. This being a probate matter no order as to costs is made.

It is so ordered.
Date: 17/08/2020

Coram: D. B. Ndunguru, J

Appellant: Present

For the Appellant: Mr. Maumba - Advocate

Respondent: Present

For the Respondent: Mr. Mashoke - Advocate

B/C: M. Mihayo

Mr. Maumba - Advocate:

The case is for judgment, we are ready.

Mr. Mashoke - Advocate

We are ready for judgment,

Court: Judgment delivered in the presence of Mr. Maumba advocate

For the appellant and the appellant and Mr. Mashoke

ate for respondent and the respondent himself.

D. B. NDUNGURU
JUDGE
17/08/2020

Right of Appeal explained.