IN THE HIGH OF THE UNITED REPUBLIC OF TANZANIA

SUCCESSION CAUSE NO. 262 OF 2023

IN THE MATTER OF THE ESTATE OF THE LATE ONESIPHOROUS LUGELEKA

(DECEASED)
OLIVIA LUGELEKA..........................................APPLICANT
EDWARD LUGELEKA…………………………APPLICANT

VERSUS

ERIC LUGELEKA.............................RESPONDENT
(Administrator of the estate of Onesiphorous Lugeleka)

JUDGMENT

A. The grant of Letters of Administration issued on 30th November, 2022 has been
stayed.
B. The Respondent to this Succession cause is hereby directed to administer and
distribute forthwith the deceased’s estate on a 60:20:20 ratio amongst the parties
to this Succession cause.
C. Each party will bear its own costs.

Introduction

1. The deceased died sometimes on 28th September, 2022. The Administrator who is the
son to the deceased applied for letters of administration in which he stated that the
deceased was survived by the following:

a) Eric Lugeleka (Son)

b) Olivia Lugeleka (Daughter)
c) Edward Lugeleka (Son)

2. Letters of Administration were issued to the Administrator on 17th February, 2023.

Summons

3. By summons for revocation dated 28th August,2023, the Applicants seek the following
orders;

a) The grant of Letters of Administration issued on 17th February, 2023 be revoked.

b) Costs be provided for.

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Applicants’ case

4. The Applicants filed a revocation to the making of grant dated 17th February, 2023
brought under The Probate and Administration of Estates Act, Cap 352. The
Applicants’ case is contained in their affidavit sworn on 25th August, 2023 and is
founded on the grounds that they are heirs of the deceased and beneficiaries of the
estate of the deceased. The Applicants fault the Respondent for excluding them in
obtaining the grant and for fraudulently and unfairly disposing of immovable
properties of the deceased’s estate without the consent of the Applicants.

5. Annexed to the affidavit sworn on 25th August, 2023 is a letter by the Applicants to
CRDB Bank PLC for disclosure of the cash balance in the accounts of the deceased
namely Account Number 01J2376503700 and Account Number 01J3128104100.
Second Annexure to the affidavit sworn on 25th August, 2023 is a copy of Sale
Agreement dated 11th April, 2023 between the Respondent and one William James
Tarimo for the sale of property on Plot Number 137 Block B Kinondoni Municipality.
To the supplementary affidavit sworn on 25th August, 2023 is a copy of Certificate of
Occupancy Title Number 71245 of the subject property on Plot Number 71245 Block
B Kinondoni Municipality in the name of the deceased.

6. The Applicants allege that no consent was sought from the Applicants by the
Respondent before initiating wire transfers and/ or withdrawing cash funds in Account
Number 01J2376503700 and Account Number 01J3128104100 held by the deceased.
It was the Applicants’ contention that Samuel Mallya who is the Branch Manager of
CRDB Bank PLC, assisted the Respondent to fraudulently effect wire transfers and/ or
withdraw cash funds from the said accounts without disclosing his intentions to the
Applicants. The Applicants object to the Respondent’s continued role of sole
Administrator of the estate of the late Onesiphorous Lugeleka and pray for revocation
of grant of Letters of Administration issued on 17th February, 2023.

7. It was also the Applicants’ case that the Respondent has commenced disposal of some
of the deceased’s properties and has been signing all the relevant documents to effect
sale and transfer of the said properties.

Respondents’ case

8. Respondents’ case is contained in a replying affidavit sworn by the Respondent on 21st

September, 2023 in which he principally denies that he has transferred or withdrawn
any funds from the bank accounts of the deceased. It was his case that no funds have
been transferred or withdrawn from the said accounts, facts that are collaborated by
the Branch Manager, CRDB Bank PLC, Centre Branch where the deceased held the
bank accounts.

9. The Respondent also denies selling or attempting to dispose of the property on Plot
Number 137 Block B Kinondoni Municipality and also questions the authenticity of
the Sale Agreement which appears to be unsigned. It was his case that no assets with
respect to the deceased’s estate have so far been distributed or disposed of, facts that
are collaborated by the Assistant Registrar of Lands, Kinondoni Municipality.

10. The Respondent urged court to dismiss the proceedings with costs.

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 11. PW1 Samuel Mallya adopted his witness statement as evidence in chief. He testified
that the deceased was the sole signatory of Account Number 01J2376503700 and
Account Number 01J3128104100 both held at CRDB Bank PLC, Centre Branch. He
also testified that a copy of Certificate of Death of the deceased and the Letters of
Administration with respect to the deceased’s estate had been received and admitted at
the Bank on 3rd February,2023. He denied being aware of any wire transfer or
withdrawal of cash from the named accounts of the deceased by the Respondent. He
affirmed that there were never such attempts. He also stated that the aggregate cash
balance in the accounts of the deceased was US$ 2,858,371.80 as at 31st October,
2023. To the supplementary to the statement of PW1 are copies of bank statements in
respect of CRDB Bank PLC Account Number 01J2376503700 and Account Number
01J3128104100. On cross-examination, PW1 admitted that the Applicants had applied
for disclosure of the cash balance of the two named accounts of the deceased. He
however reiterated that no funds had left the accounts of the deceased and that there
was never an attempt to transfer or withdraw cash from the named accounts. He
denied the allegation that either he or any member of staff at his Branch was assisting
the Respondent to fraudulently transact on the said accounts.

12. PW2 Lillian Julius adopted her witness statement as evidence in chief. She testified
that Certificate of Occupancy Title Number 71245 belonged to Plot Number 137
Block B Kinondoni Municipality and was registered in the name of Onesiphorous
Lugeleka. To supplementary her witness statement is a Land Record File Number
KM10-B2023 confirming that Certificate of Occupancy Title Number 71245 of the
subject property on Plot Number 71245 Block B Kinondoni Municipality remains in
the name of Onesiphorous Lugeleka and has not been transferred or issued to a new
owner.

Submissions
13. The parties filed their respective submissions. The Applicants filed their submissions
on 28th August,2023 whereas the Respondent filed his submissions on 25th September,
2023.

Analysis and Determination

14. I have considered the application in the light of the affidavits and oral evidence and
also on the submissions filed on behalf of the parties and I have deduced the issues for
determination as follows:
i) Whether a case has been made for revocation of the grant of Letters of
Administration.
ii) Whether the Administrator has unfairly and fraudulently disposed of the estate
of the deceased.

15. The provisions of Section 101 of the Probate and Administration of Estates Act Cap
352 R.E. 2002 provides for power of sale of the estate the administrator or executor of
the estate. The provision states:

An executor or administrator has, in respect of the property vested in him under

section 99, power to dispose of movable property, as he thinks fit, and the powers of
sale, mortgage, leasing of and otherwise in relation to immovable property conferred
by written law upon trustees of a trust for sale.

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 It is apparent from the above provision that the administrator may sell the property of
the deceased. In addition, the administrator may mortgage or lease the property as
he/she deems fit. This principle was enunciated by the High Court in the case
of Mohamed Hassani Vs Mayasa Mzee and Mwanahawa Mzee [1994] TTLR
225. In this case the Court ruled inter alia,
“upon grant of letters of administration the grantee thereof becomes fully mandated to
deal with the estate the best way he can and especially does not need consent of each
of the heirs to dispose property of which are under his custody at all the time of
administration”.
16. The same Court in Peter James Swai v Mary James Swai and Helena James Swai
[2015] TTLR 225 stated THAT;
The circumstances that can lead to the revocation of grant have been set out in
Section 76 of Probate and Administration of Estates Act Cap 352 R.E. 2002.
For a grant to be revoked either on the application of an interested party or on the
court’s own motion there must be evidence that the proceedings to obtain the grant
were defective in substance, or that the grant was obtained fraudulently by making
of false statement, or by concealment of something material to the case, or that the
grant was obtained by means of untrue allegations of facts essential in point of law.
Having found that the Applicants are the deceased’s children and beneficiaries of his
estate, I am convinced that they are beneficially entitled to the estate of deceased.
However, the Applicants have not proved their claims of having been denied their
share of proceeds from sale of the deceased’s assets and withdrawal of cash from the
accounts of the deceased without the knowledge of the Applicants.
I therefore find that Applicants have not demonstrated that they have locus standi to
present the application for revocation and that this application that is intended to
protect the interests of the Applicants is unfounded.
In the result, I have come to the conclusion that the Applicants have not proved their
claims to the required standard. This court finds that the Letters of Administration
issued to the Administrator on 17th February, 2023 were obtained legally and by
means of facts and there was no concealment of the fact that the Applicants were
beneficiaries of deceased’s estate and that no disposal of the estate of the
deceased has been effected to date.

17. The orders which commends to me and which I hereby issue is THAT:
1) The Letters of Administration issued on 31st October, 2019 are hereby stayed.
2) The Administrator has been given the mandate to collect, administer,
distribute and dispose the estate on behalf of and for the benefit of the
beneficiaries.
3) The Administrator is directed to dispose of the assets and distribute the funds
in the named accounts to each of the beneficiaries below within 60 days from
today’s date.

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 4) Proceeds of sale of the deceased’s properties and cash funds in accounts shall
be distributed to the beneficiaries in the mode shown below:
a) Eric Lugeleka: 60%
b) Olivia Lugeleka: 20%
c) Edward Lugeleka: 20%

Mention on 28thJanuary, 2024 to confirm compliance with orders 2 to 4 above and for
further orders.

DATED, SIGNED AND DELIVERED AT DAR ES SALAAM THIS 06TH OF

NOVEMBER, 2023.

SAID D. JAFFAR
JUDGE

Appearances
Court Assistant - Juma Hassan
For Applicants - Mr. Geoffrey Kilawe for GK & Co. Law Chambers
For Respondent - Mr. Anthony Mwenga for AKM Attorneys

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