(a) By way of introduction, it will be interesting to say that this part of the question, requires

the advice(s) that an Executor of the deceased estate should be given when wants to handle or

rather, administer the estate as aforesaid in a proper and in a desirable manner that justice to be

done as wished by a person before his or her death or as desirable by the community under which

that person (deceased) belonged. And for that case;

An Executor (Prof. Schegen), is advised to consider several issues that will enable him to go

about handling the estate of the deceased person (Prof. Njengafibiri). Such matters include; the

validity of the wills left behind by the deceased, the likely hood of the dispute contending the

will or him as an executor or/and administrator, and whether there is a likely hood of

misappropriating of the estate and other issues on that regard.

Ascertaining the question on whether the Will is valid or not he (Executor) must look on the law

applicable, as each law has its own requirement for the valid Will. In the issue at hand, the facts

provide that the said deceased converted into Islam by changing the name (from Njengafibiri to

Abdufatah), he went Mecca and Medina for pilgrimage as performing one of the Islamic five

Pillars of faith and therefore he professed Islam. In other attribute, is that up on his death, he was

buried according to Islamic rites. However, what is vital for the executor to note is whether the

facts are sufficient to regard a deceased as a Muslim and therefore Islamic law to be applicable.

In one book by Prof. Mgongo Fimbo and another1 It is stated the “Where a deceased native

professed Islam, his estate would be administered (in any court) according to customary law

unless there circumstances indicating that he intended his estate to be administered according to

Islamic law”2 Although the extract is looking at a native for the application of Customary law,

the emphasis is given on the intention of the deceased to the effect that his estate be administered

under Islamic law. The same statement is found in the case of Salumu bin Dunia v. Bora bint

Ally3 by Spry J (as he then was)

It is a settled principle that bearing an Islamic name and mere profess in Islamic religion cannot

surface the need for the application of Islamic law for the purpose of inheritance. The most

1 R.W James and G.M Fimbo Customary Land Law of Tanzania, A Source Book: Eastern Africa Literature Bureau

1973 2 Ibid. at p. 236 (Rules of Islamic Law)

3 C.A.D/6 of 1973

considered tests will always be the intention of the deceased on whether he was to have his estate

dealt in accordance with Islamic law, and the mode of life is necessary to prove whether real the

deceased was a Muslim so to say. If I were to quote Dr. Tenga in one of his work said, “There

are conditions imposed by statutory provisions in-order to determine at what point Islamic Law

should be applicable for a given deceased person’s estates. Those conditions include marriage,

way of life, (what one professed and practiced at the date of his/her death) and the intention of

the deceased person at the time of his/her death as to the law to be applied in the administration

of his/her estate”4

Looking at the at hand (Prof. Njengafibiri) the intention of his estate to be handled in Islamic

practice. Moreover, the life test as lived by the said deceased does not reflect the real Islamic

faith. There are a number of reasons to prove the assertion. First, the deceased has made a Will

bequeathing almost all of his estate. It must be noted that under Islamic law, aWill is an

exceptional and if so desired, a deceased is bound to bequeath by way of Will only one third of

his estate. Spry J. (as he then was) held among others in the case of Salum bin Dunia v, Bora

binti Ali5 that for the validity of the will, it is a basic rule of Islamic law the bequests may not

exceed one-third of the estate. In addition, that the only exception to this rule is where the after

the death of the deceased, all heirs consent to that effect.

Despite the fact that the deceased disregarded such important Quran canon that a Muslim should

not bequeath beyond one-third of his estate, he also disapproved his intention of requiring his

estate be administered under Islamic law by showing the love to the Lutheran church as he

bequeathed his 1000 acre of farm to it. In fact, Mosques were there and could sound better if he

could favour one of them. Other regards can be the maintaining the valid marriage under in Civil

form with the woman whom was brought up in European culture, and who would be presumed a

Christian. In addition, one can consider the fact that by way of his life where he had sexual

affairs with maidens as the result he has illegitimate children who are not allowed under Islamic

religion. The issue of going to Mecca and Medina is also doubtful as can be used not to express

his intention but a mere tour, as was his life style. Generally it would be clear to say that in spite

of other factors as given above the point that the deceased was buried under Islamic rites it is

4

The law of succession.ACD DR R.W. TENGA’S TEACHING MATERIALS PDF BY GEORGE KAZI 5 (1963) A.C.D/6 of 1963

doubtful whether this man ( Prof.Njengafibiri) was real a Muslim or a mere pretender to win

women. (especially Biubwa)

To that extent, the executor cannot also be advised to apply customary law in the circumstance.

This is revealed by way of looking of his mode of life. The deceased seems had already done

away the customs and traditions. For instance he entered a civil marriage which indicates that he

abandoned his traditions but also his life is more modern. It was illustrated in the case of

Innocent Mbilinyi6 by Georges C.J (as he then was) that the deceased through Christian

marriage that he entered into and by way of his life , had abandoned the customary way of life in

favour of what may be called a Christian and nontraditional way. For such finding therefore, an

executor of the estate (prof. Schegen) may be advised the following;

The law applicable is the Probate and Administration of Estate Act7, The Civil Procedure Code

Cap 33 and the Indian Succession Act8. The later law will be for the respect of the property of

the deceased not included in the Wills. It is undisputed fact that the clan meeting was conducted

despite of consideration of Islamic rites. This meeting imposed him with powers to handle the

whole estate of the deceased. Up on the last of seven days the executor should petition for

Probate in respect of the written Will and should petition for Letters of Administration in respect

of the an Oral Will as required by ss. 24 and 29 of the Probate and Administration of estate Act.9

It is important to note that the Probate will be petitioned for because the Will mentioned the

executor and Letters of Administration is due to the Oral Will, which is silence on who will be

the executor.

The said above petitions should be filled in High Court, which in that regard is provided with

jurisdiction under s. 3 of Probate, and Administration of estate Act as cited. The section

categorically states, “The High Court shall have jurisdiction in all matters relating in probate

and administration of estates, with powers to grant Probate of wills and Letters of

administration to the estates of the deceased persons and to alter of revoke such grants.”

Although, this section should be applied in reference to s. 53 (1) of the same Act which requires

the fixed place of abode of the deceased during the time of death.

6 (1969) HCD 283

7 Cap.352 R.E 2002

8 Of 1865

9 Cap. 352. Ibd.

While petitioning for the probate, an executor should draw the petition in a prescribed form

(form no. 18 in that regard)10

and should attach the following document; the last Will of the

deceased, Certificate of death of the deceased signed by the competent authority, an affidavit as

to the deceased‟s domicile at the time of his death and the executor‟s oath.11

In addition, a

petitioner for probate should consider other requirements as provided for under s.55 (1) of the

Act. In case of Letters of Administration s. 56 of the same Act is relevant and should attach

Certificate of death of the deceased signed by the competent authority, affidavit to the deceased‟s

domicile an administrator‟s oath, administration bond, certificate of financial position of the

sureties , consent of the heirs and an affidavit. They are governed under rules by r.39 of Probate

Rules. As the Letters for Administration of An Oral Will, the content of that will should be

annexed thereto. R. 40 of the Probate Rules is of that effect.

For the properties no covered under the Will an Executor, is advised to file a Petition for Letters

of Administration as per s. 33(1)12

. However, as some of these properties are said to be invested

outside Tanzania (Hong Congo and German) he should initiate proceeding in respect of each

country and up on grant such Letters of Administration, he should proceed in the High Court of

Tanzania for resealing process. Though s. 94 of the Probate Act as cited is on the effect of

Common Wealth countries, the law is not providing an alternative way to go about where the

countries are not common wealth countries. It is presumed that the position will still be the same.

After the filing in the High Court, the petitioner will have to advertisement in the government

gazette and in other newspaper with the wide circulation in the country. This will last for 90 days

before the court grants the Probate or Letters of Administration. Then he will be granted the

letters and the Probate if the no objection rose within the fore said days.

The grant will lead the Executor the Legal Representative of the deceased under s.99 of the

Probate and Administration of Estate Act. Moreover, for the landed property of the deceased, the

executor will have to apply for the and registrar for registration of title as require under s. 67 of

Land Registration Act.13

This will transfer the title of ownership from the deceased to an

10

Set out in the first schedule of Cap. 352. 11

R. 33 of the Probate Rules G.N no 4. Of 1965. 12

Cape 352 13

Cap 334 R.E 2002

executor. In addition, during distribution of the deceased‟s estate the executor will transfer a

good title the respective legatee.

Moreover, an executor will have power to handle the estate as he thinks it will be beneficial to

the estate.14

. For instance, he will be required to collect the properties of the deceased person,

collecting and paying debts of the deceased, joining the suit that is in court for or against the

deceased and filing inventories on how he is going on with the estate after six months of the

grant of probate or letters of administration.

The pending proceeding should be waited for its determination by the court before administering

the property in respect of that proceeding. An executor should remember that government dues

must be paid first and the order of payment fallow as prescribe under s. 109 of Cap. 352.

During the distribution, of the estate, an executor should also consider the properties that are not

in the Wills that Indian Succession Act is to apply and therefore the it will be the only children of

the valid marriage will be entitled to inherit and the widow as provided for under s. 27 of the

Indian Succession Act.15

(b) The estate of the deceased Prof. Njengafibiri can be divided into three major categories.

Thus, those bequeathed under the written Will, that under the Oral will and the rest under

intestacy rules. The checklist of records for handling the estate under a Written Will is hereby

prepared in respect of the legatees bequeathed;

1. There is a matrimonial house located in plot No. 324/3 Block D Mbezi Beach. This landed

property is by way of a Written Will bequeathed to Dr. Brooklyn Claymore and her children. The

former was the wife of the deceased under a civil marriage. As this property has no any

encumbrance therefore after an executor (Prof.Schegen) converts the title to himself16

then the

said legatees will be entitled to have the house in such specific legacy.

14

Ss 100, 101 102. 103 106, 107 and 108 of the Probate Adminstration of Estate Act. Ibid. 15

0f 1865 16

Under s. 67 0f the Land Registration Act Cap. 334 R.E 2002

2 there is a seven storey commercial Premise located in plot No. 23/J Blok F Mirambo Streat.

The premise is worth of $ 5,000 000. It is created a security of $ 2, 000 000 under a mortgage

with Barclays Bank for ten years. The certificate of such a mortgage is there to evidence the

agreement. Also the same estate is liable for tax tune of $ 3,000 000. It is thereby bequeathed to

Aika and Ndeurakindo a daughter and a son of the deceased person. What is to be done here is

either the respective legatees to take up and pay the liabilities or the said premise be sold and tax

liability should be paid first while the mortgage be the second and if at all some money remains

the the legatees would be bequeathed the same. But if the premise is sold to in accordance with

its value of $3000,000 then the heirs will have nothing in return.

3 the maisonette in plot No. KJ/23 Upanga Dar es salaam. This estate is in dispute and the

proceeding is pending at the High Court. the premise is bequeathed to one Abdulrasul, the

tastator‟s son. This estate cannot be bequeathed until the court determines the dispute. If the

court find it against the executor, then the deemed legatee (Abdulrasul) will have nothing as a

legacy. But the vice versa is true.

4. Three star hotel ie Royal Kapalamasenga Hotel located Plot. No. 290/ J amuhuri street,

Kariskoo. It is mortgaged for a loon of Tshs 1000 000 000 with CRDB. A certificate of title is

also derivered. At the other hand the premise has tax liability of 2000 000 000. However, it is

worth of 3 000 000 000. It is bequeathed to Biubwa and her daughter .It means before the

handling of the premise to the said heir it is proper to clear the debts as usual. The tax liability

should be paid prior any other due. In the circumstance up on payments of all liabilities, the said

heirs would have nothing in return. But if anything would be available then the daughter would

be entitled under the doctrine of survivorship as her mother has already died.

5 Residence House No. 145/8 Kijitonyama Dar es salaam. This premise has been entered the

ruling of the High Court Land Division against the deceased, now a testator. However, in the

written will Ahmednurjad is mentioned as the legatee of such property. Under such

circumstance, it is clear to say that the deceased did not possess such a premise enough to expose

it under a Will. Therefore, the intended legatee cannot have such property at all.

6. Nabaki Afrika Lodge at Lake Manyara. Its worthiness is not indicated. It has a tax liability of

5 00 000 000. It is bequeathed to Manka one of the decease„s concubine. To that effect, the lodge

has either be sold to clear the dept and the amount if at all remains should be bequeathed to

Manka. However if Manka can be able to discharge the liability then the lodge would be his to

that effect.

7. The other estate is that which was bequeathed to the Karatu Lutheran Hospital by te way of

Oral Will. This estate is located in Manyara Region at Mulbadaw village.. It is 1000 acre wheat

form. Up on the grant of the Letters of Administration Prof. Schegen acting as an administrator

and therefore a legal representative of the deceased under s. 9917

, register under his own name

such estate as required by s.67 of the Land Registration Act18

. Then the Hospital will be entitled

to have the estate bequeathed and without any encumbrances.

The rest estate is that which is to be bequeathed by way of intestancy rules. These are shares that

the deceased had in “Koninklijke Luchtwaart Maatschappij” a Royal Dutch Airlines. These were

attached to the affiliated children of the deceased. But it does not mean that the deceased was

done away with the ownership of such shares. Only the court entered the decree of maintenance.

That means an executor is duty bound to collect the same after the maintenance has lapsed and

divide the same to the expected heirs. Then the other estate is that of investments that a deceased

had in Hong Kong together with that in of German. So up on the collection of the same then

these estates should be distributed in regard with the requirement of s.27 of the Indian

Succession Act.19

. it will therefore be to the effect that only the widow Dr. Brooklyn and her

children will be entitled to the same. It is because it is the only marriage of Dr. Brooklyn

Claymore with Prof. Njengafibiri that is valid in law and attract the Indian Succession Act to

take effect for the purpose of inheritance.

Therefore, to that category the deceased‟estate would be distributed.

17

Cap352. R.E 2002 18

Cap.334 R.E 2002 19

Of 1865

(c) The following are some of Necessary documents that required for the circumstance

i. The Probate form (form no. 18) which is set out under the first Schedule of the Probate rules as

formulated under s. 9 of the Probate and Administration of Estate Act20

. This document must be

accompanied with other documents ie. the last will of the deceased and all codicil thereto and,

when necessary, a. transaction thereof b. a certificate of the deceased signed by the competent

authority c. an affidavit as to the deceased‟s domicile at the time of his death and d the executors

oath.21

. Such document is hereby drafted in regard to the fact at hand;

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM

PROBATE AND ADMINISTRATION OF ESTATE CAUSE NO.09 OF 2012

IN THE MATTER OF ESTATE OF THE LATE NJENGAFIBIR I

AND

IN THE MATTER OF AN APPLICATION FOR THE PROBATE BY SCHEGEN

1. I, Schegen Kamanzi of Dar es salaam hereby petition this Honourable Court for Probate of the will of

Njengafibiri Alloys, deceased, who at 10hrs. on the 12th November 2012

2. The writing hereunto annexed and marke with “A” is the last Will and testament of the said

Njengafibiri Alloys and was dully executed by him.

3. This petition is made by me as the person named in the said Will as the executor thereof and I believe

that the gross assets which are likely to come to my hands will be landed property and capital worth

altogether Tshs. 9 000 000 000.

4. The said deceased at the time of his death had a fixed place of abode at Mbezi Beach and/or property

within the jurisdiction of this Honorable Court.

5. The said deceased was a Tanzanian and professed Islamic religion.

6.No proceeding for the grant of probate or letters of administration or otherwise for the administration of

estate of the said deceased have been commenced before any Court or authority, whether inside Tanzania

or outside it.

20

Cap. 352 Ibid. 21

R.33 (1) of the probate rules G.N 4 of 1965

7.AND I, the said Schegen Kamanzi, the petitioner above named, declare that what is stated above is true

to the basic of my knowledge, information and belief.

Dated at 11hrs this 25th day of December 2012.

Sebastian S. (Advocate) KSchegen (petitioner)

2. This is he document for petition for Letters of Administration for a Will annexed. This is in

accordance with s. 29 of tha Probate and Administration of Estate Act and form No. 26 of the

probate rules as already cited. And it is hereby drafted;

IN THE HIGH COURT OF TANZANIA

AT ARUSHA

PROBATE AND ADMINISTRATION CAUSE NO 1 OF 2012

IN THE MATTER OF THE ESTATE OF THE LATE PROF.NJENGAFIBIRI DECEASED

AND

IN THE MATTER OF PETETIONS FOR PROBATE BY PROF.SCHENGEN PETITIONER

1. I, Prof. Schengen, of Dar-es-salaam, hereby petition this honourable court for letters of

administration of the will of Prof. Njengafibiri, Deceased, who died at a tragic plane-

crash accident on the 12th day of November 2012.

2. The writing hereunto marked is the last oral will with no name of the executor and the

testament of the said Prof. Njengafibiri and was duly executed by him.

3. This petition is made by me as the person named in the clan meeting as administrator

thereof and I believe that the gross assets, which are likely to come to my hands, will be

1000 acres of wheat farm at mulbadaw.

4. The said deceased at the time of his death had a fixed abode at Dar-es-salaam and

property within this honourable court of Arusha.

5. Prof Schegen of Dar-es-salaam, am supposed to be a person to administer the estate of

the deceased‟s estate and no person who has a right to hthe grant of leters of

administration fo the estate of the deceased with the will annexed prior to my right to

such grant.

6. I believe that the gross assets which are likely to come to my hands will be the 1000 acre

of wheat farm

7 the said deceased at the time of his death had a fixed place of abode at De res salaam

Mbezi Beach and/or property within the jurisdiction of the Honourable Court.

8 .The said deceased was a Tanzanian and professed the Islamic religion

9. No proceedings for for grant of letters of administration of the estate of the said deceased

have not commenced before any court or authority whether inside Tanzania or outside.

10. And I, the said Prof. Schengen, the petitioner above named, declare that what is stated

above is true to the best of my knowledge, information and belief. Dated at 11hrs this 25th

day of December 2012.

SebastiaS (advocate) prof.schengen (petitioner|)

Section 66, Rule 65: Executor’s Oath

The oath of the executor or the administrator shall be in the form given in the First Schedule and

shall be sworn or affirmed before a person before whom an affidavit may be sworn or affirmed.

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM

PROBATE AND ADMINISTRATION CAUSE NO.09 OF 25TH

DEC.2012

IN THE MATTER OF THE ESTATE OF THE LATE PROF. JENGAFIBIRI, DECEASED

AND

IN THE MATTER OF APPLICATION FOR PROBATE BY PROF. SCHEGEN,PETITIONER

EXECUTOR’S OATH

I, Prof. Schegen of Dar es salaam hereby make oath and say that I will faithfully administer the

property and credit of the above named deceased, and in any way concerning his will, by paying

first his debts and then delegacies therein bequeathed so far as the said assets will extend and

then distributing the residue (if any) of his estate according to lat, and then I will make and

exhibit a full and true inventory of the said property and credit in this court within six months

from the date of the grant to be make to me or within such further time as the court may, from

time to time appoint, and also render a true account of my administration to this court within one

year from the same date or within such further time as the court may, from time to time appoint.

Dated a 9hrs this 24th

day Of December2012

SWORN at Dar es Salaam by the said

PROF. SCHEGEN who is known to me

Personally, this 24th

day of December2012

AAwiil

DEPONENT

BEFORE ME:

SebastianS

COMMISSIONER FOR OATHS

The other necessary document is that created under Section 56: Petition for Letters of

Administration when the Deceased Died Intestate

Application for letters of Administration shall be made by petition, stating:-

a) The date and place of the deceased‟s death;

b) The family or other relatives of the deceased, and their respective residences;

c) The right in which the petitioner claims;

d) The amount and nature of assets which are likely to come to the petitioner‟s

hands;

e) The diligent search has been made, and no valid will has been discovered;

f) Whether any proceedings for the grant of letters of administration or otherwise for

the administration of the estate, have been commenced before any other court or

authority, whether within Tanganyika or outside it.

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM

PROBATE AND ADMINISTRATION CAUSE NO. 11 OF DEC.2012

IN THE MATTER OF THE ESTATE OF THE LATE PROF. DECEASED

AND

IN THE MATTER OF APPLICATION FOR LETTERS OF ADMINISTRATION BY PRO.

SCHEGEN ,PETITIONER

PETITION FOR LETTERS OF ADMINISTRATION WHEN THE DECEASED DIED

INTESTATE

1) I, Prof Schegen , of hereby petition this Honourable Court for a grant of letters of administration of the estate of the late AB, deceased, who died at 11hrs on the 12nd day of December 2012

1) The said deceased left surviving him the following relatives: (none)

2) This petition is made by me as claiming at being the administrator of the deceased‟s

estate

3) I believe that the assets which are likely to come to my hands will be the investment in

vodaphone and DIT Both of Hong Kong and German respectively plus shares attached to

the children

4) The said deceased died intestate and due and diligent search has been made for a Will but

none has been found

5) The said deceased at the time of his death had a fixed place of abode at Dar es salaam and

/ or property within the jurisdiction of this Honourable Court

6) The said deceased was a Tanzanian and professed the Islamic religion.

7) There proceedings for the grant of probate or letters of administration, or otherwise for

the administration of the estate of the said deceased have been commenced before Courts

8) Outside Tanzania . the are in the High Court of Hong Kong China and another in German

as petition for letters of administration.

9) AND I, Prof Schegen the said , the petitioner above named, declare that what is stated

above is true to the best of my knowledge, information and belief

Dated at 10hrs the 25th

day of December 2012.

SebastiaS

Signature of Advocate (if any)

Schegen

Signature of Petitioner