LW 307 – COMPILED QUESTIONS

Question 1

Sixtus Mwaibambe died intestate a few days ago. Although born to Christian parents,
Mwaibambe converted to Islam at the age of 32 in 2006. In 1996, Mwaibambe fell in love
with Ashura and the two were blessed with two children, Samson (born in 1998) and Clara
(born in 2002). Ashura passed away in December 2005 due to a terminal illness. The two
were planning to get married in January 2006. Samson is married to Annajoyce Majige and
the two have a daughter, Stella.

In 2008, Mwaibambe and Angela got married under civil rites in Njombe and the two were
consequently blessed with four issues - Abdul, Aisha, Majid and Fatma. The Islamic
community was not happy with Mwaibambe’s marriage to Angela, a non-Moslem.
Mwaibambe’s efforts to convince Angela to convert to Islam proved futile as the latter
insisted that her family, made up of staunch Lutherans, would never permit her to do so.
Consequently, Mwaibambe secretly started planning to get married to Mariam, a devouted
Moslem lady from Same, Kilimanjaro, Tanzania. His plans were to get his marriage with
Angela dissolved so that he could get married to Mariam under Islamic rites. He passed away
before his plans could materialize!

On the basis of the above scenario:

(i) Which law will be used to administer Mwaibambe’s estate and why?

(ii) Who are heirs to Mwaibambe’s estate and why?

Question 2

According to Mlyambina, J. in Probate and Administration Cause No. 50 of 2016, High

Court of Tanzania at Dar es Salaam, p. 17:

“Children born out of wedlock are the biological children just like those born within the
matrimonial home. They are entitled to equal shares of their common father with fellow
siblings”

Critically comment on the above statement in light of the current position of the law(s)
relating to children born out of wedlock in Mainland Tanzania

Question 3

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“To be present at signing, the witnesses must be capable of seeing the testator sign, although
they need not actually look at the signature or know that the document is a will, as the
witnessing is of the signature… The test is one of whether the witnesses could have seen the
testator signing if they wished to do so, not whether they actually saw the testator signing”
Anonymous

Comment on the above statement in light of the law(s) relating to execution of written wills
in Mainland Tanzania

Question 4

Asha Tembele and John Kwayo got married under civil rites on 6 th June 2015. Their marriage
was blessed with two issues, namely Amina and Amani. John being a businessman has, for a
short period of time of their marriage, managed to accumulate movable and immovable
properties such as vehicles, a matrimonial house located at Masaki held under a Right of
Occupancy for 99 years, and many residential and commercial buildings located in Dar es
Salaam. The capital to invest and run his high risk but very profitable businesses came from
his sister, Maria. John has been receiving Tanzanian Shillings Ten Million monthly from his
sister since the first month of his marriage. In fact, it was the same contributions from Maria
which enabled John to build a house at Masaki.

In mid-July 2020, the couple started to quarrel where Asha accused John of having extra
marital relationships. At the end of November 2020, their relationship worsened and, as a
result, Asha could no longer tolerate living in an abyss relationship. On 1 st December 2020,
she filed a petition for divorce at Kinondoni District Court. The matter was heard by the court
on merit and final submissions by both parties were filed on 20 th February 2021. While the
judgment was still pending in court, John died on 27 th February 2021 in a car accident which
occurred in Mbeya when he was coming back from Zambia. Funeral arrangements were
made and his body was laid to rest on 1 st March 2021 at Kwamsisi, Tanga. On 2 nd March,
2021 Maria told Asha to leave the matrimonial house and that she (Maria) would administer
her brother’s estate.

Asha also is desirous to administer her late husband’s estate and she comes to you with the
matters listed below for your advice:

(a) The right person to petition for administration of the deceased’s estate and why.
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 (b) The legal heirs to the deceased’s estate and why
(c) The necessary information she should collect for petitioning
(d) The competent court to handle the matter
(e) The applicable law to be used in administering the deceased’s estate and why

Question 5

In the case of Beatrice Brighton Kamanga and Another vs Ziada William Kamanga, High
Court of Tanzania at Dar es Salaam (2020), the court held that:

“Where an administrator omits to file an inventory/accounts within the prescribed time, his
activities become null and void after expiration of 4 weeks. If the matter remains pending for
a longer period without such a report or an extension from the court, the appointment ceases
to exist by operation of law”

Based on the above decision of the court:

(a) What will be the next procedure to be followed in administration of the estate where
appointment of administrator ceases by operation of law?
(b) Explain the powers of the court and heirs over executors and administrators in
administration of deceased’s estate.

Question 6

“The main criticism of the system in the existing laws of succession/inheritance in Mainland
Tanzania is the co-existence of a variety of systems of laws in one territorial jurisdiction”
(Anonymous). Discuss the viability of this statement

Question 7

Abdallah Mohamed, of the Wapare tribe of Same District, Kilimanjaro Region, Tanzania,
died intestate in late February 2021. He got married (under Islamic rites) to Aisha in June
1987, and the two were blessed with three sons, Malik, Mahmoud and Zuberi. In 1992,
Abdallah had an extra marital affair with Lydia and the two were blessed with a son, Salim
Abdallah. On account of his mother’s influence, Salim converted to Christianity in 2016 and
was baptized James Stephen Musukuma. In 1996, Abdallah had an affair with Jamila, and the
two were blessed with a daughter, Amida. In 1999, Jamila and Abdallah got married under
civil rites in Same, Kilimanjaro.

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In December 2020, Abdallah was admitted to Muhimbili National Hospital after sustaining
serious bodily injuries due to a car accident. He was in a comma since then until mid-
February, 2021, when he re-gained consciousness and remained so for some days. In one of
the mobile phone short messages sent to his only brother, Ali, Abdallah made it clear that
upon his demise, all traditional rituals of the Wapare tribe should be performed during the
burial ceremony. These were to be in addition to, and not a substitute to Islamic burial rituals.
A few hours after sending the message, Abdallah became unconscious and never recovered
until his death at the end of February 2021.

Which law will be applied in administering Abdallah’s estate and why?

Question 8

Critically discuss the extent to which rules of testate succession accommodate the interests of children
born out of wedlock as opposed to rules of intestate succession in Mainland Tanzania.

Question 9

Write short notes on any three of the following items:

(a) Testamentary trust

(b) District delegate

(c) Re-sealing of probate

(d) General citation

(e) Life interest

Question 10
Critically review the decision of the High Court of Tanzania (Mlyambina, J.) in Probate and
Administration Cause Number 50 of 2016(In the Matter of the Estate of the Late Patrick
Saul Kyamba) in light of Tanzania’s law of succession position on children born out of
wedlock.

Question 11
Critically discuss the effectiveness of the tools used to check abuse of powers by
executors/administrators under the Law of Succession in Tanzania
Question 12
Critically discuss the relationship between the law of trusts and the law of succession
Question 13
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Jerome Hongoli died intestate on 25th December 2019.He was a Hehe by tribe and was born
in Iringa in July 1972. In 1982, Hongoli and his parents moved to Dar es Salaam as his father
was appointed Director General of the Kariakoo Market Corporation (KMC).

In 1995, at the age of 23, Hongoli fell in love with Asnath Shabaan, a devoted Moslem lady,
and the two had a son named Dickson Hongoli. The two could not get married on grounds of
objections from Asnath’s parents, devout Moslems of the Sunni sect. The main objection was
that Hongoli was a non - Moslem and so getting married to Asnath was against Islamic
teachings and beliefs. In 1999, Hongoli got married to Jasmin under Christian rites of the
Roman Catholic Church and the two were blessed with two daughters, Eva and Rosemary. In
2004, Hongoli and Asnath fell in love again. This time around, Hongoli agreed to convert to
Islam so that the two could get married. Consequently, in January, 2006, Hongoli declared
himself a Moslem and, having complied with Islamic rituals on change of religion, his name
was changed to Abdulmajid Abdulaziz Hongoli. In April 2007 Hongoli and Asnath
cerebrated marriage under Islamic rites; and the two were consequently blessed with three
issues, Ashura, Abdallah and Aisha.

Meanwhile, Hongoli insisted that his marriage with Jasmin was still intact as the two were
united by God. Hongoli also continued participating in the activities of Saint John’s Small
Christian Community, Changanyikeni Parish. This caused serious misunderstandings
between Asnath and Hongoli as the former argued that it was against Islam to share a
husband with a non-Moslem. In November, 2019, Hongoli made up his mind to convert to
Christianity and was advised to contact the Priest in Charge of his Parish; he was informed
that he would have to attend church seminars for four weeks before being “accepted back”.
Unfortunately, he died during the second week of the seminars!

Based on the above scenario, which law shall govern the administration of the estate of the
late Hongoli and why?

Question 14
Samson Mwaikambo, aged 65, Christian, resident of Tunduma, Songwe Region, wrote his
last will and testament in December 2017 bequeathing all of his estate to his wife, Eva
Mushi Mwaikambo, his sons, Mwakyoma Mwaikambo and Elisha Mwaikambo, his
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granddaughter, Tusubilege Mwaikugile, his aunt, Josephine, and his grandson, Eliakim. The
shares of each beneficiary are indicated at pages 7 and 8 of the will. Mr. Mwansasu,
Mwaikambo’s best friend, was appointed executor and custodian of the will.

Advise Mwaikambo on the legal consequences of each of the following events on his will:
(i) In March, 2018, Mr. Mwaikambo sold part of the estate bequeathed to his sons
(ii) In September 2019, Mwaikambo and his wife got divorced.
(iii) In January 2020, Mwaikambo’s granddaughter, Tusubilege Mwaikugile,
converted to Islam
Question 15
Critically, and with authorities, discuss the assertion that “Customary laws of succession in
Tanzania no longer reflect the reality given the developments in state law and human rights
jurisprudence”
Question 16
Deogratias John and Rose Makene got married under Christian rites in 1970; and throughout
their married life, the two maintained the Christian way of life. They were blessed with two
issues, Adonis and Andrew, born in 1972 and 1974 respectively. Adonis got married to Jane
in 1992 and the two were blessed with two issues, Harry and Charles. In 1995, Andrew got
married to Anna and the two were blessed with one child, Salome, in 1997. In January, 2016
Adonis and Andrew died in a car accident on their way from Njombe to Dar es Salaam. In
2017, Jane got married to Jonathan and the two have two daughters, Adela and Denisia. In
2018, Anna got married to William and the two have been blessed with a son, Wilson. In
February, 2019, Rose Makene died intestate of heart attack at Muhimbili National Hospital,
Dar es Salaam.
From the above scenario:
(i) Identify heirs [and the legal basis] to the estate of the late Rose Makene
(ii) The share of each heir
Question 17
Rutta Mulokozi of the Wahaya tribe is a very traditional man. He is married to four wives,
Adela Mutembei, Kemi Kyoma, Koku Rwejuna and Magdalena Rwabutoma. Rutta’s family
has been blessed with eleven sons and six daughters in total. In July, 2018, Rutta asked
Advocate Matete to draft a will for him in accordance with customary law of the Wahaya
tribe. In response, Advcate Matete advised Rutta as follows:
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 “Under customary law of the Haya tribe and other patrilineal societies in Tanzania,
wills are not important at all; and this is because shares of each heir is provided for
by law. According to the law, once the head of the family dies, the first son of the first
house takes the lion’s share of the estate. Wives and daughters cannot inherit,
whether there is a will or not. There is no way this statutory arrangement on
succession can be altered by will. The Haya law of succession is almost like Islamic
law of succession where a Moslem can dispose only one third of his estate by will. But
under customary law, not even one third of the estate can be disposed of by will. The
law already takes care of your wishes…”

From Advocate Matete’s advice to Rutta, identify and briefly discuss at least three legal
issues
Question 18
With authorities, critically discuss the extent to which the Indian Succession Act 1865,
Islamic Law and Customary Law address gender challenges and issues in intestate succession
[15 marks]
Question 19

Charles John died in a car accident on 12 th August, 2019 while on his way from Kigoma to
Dar es Salaam. Before his demise, he was working with the United Nations Refugee Agency
– UNHCR. His life history was a bit sad. He was the only person in his family who survived
the 1990s genocide in Rwanda. He came to Tanzania as a refugee in 1994 and later
succeeded to get Tanzanian citizenship in 2005.

Throughout his life in Tanzania, he never got married and was never seen around with any
relative or friend. Apart from a few work mates at UNHCR Tanzania Offices, John was a
‘lonely’ person. Some people attributed his behavior to the genocide experience; it is reported
that he witnessed the entire family of his being thrashed to death by the genocide militants
and soldiers. It is also said that he narrowly escaped death as the militants had pursued him
until when he crossed to Ngara through the Rusumo Border.

Until his demise, John was living in Dar es Salaam City where he had three residential houses
in Kinondoni, Temeke and Ubungo respectively.
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After the burial, no one seemed interested in John’s estate. Furthermore, no will has been
found in respect of the estate. For sure, there is no any relative, wife, sibling or friend to take
care of the estate.

As an expert in the law of succession and trusts advise what should be done in respect of the
late John’s estate and how
Question 20
“Although a will is merely one component of a client’s overall estate plan, preparing it
constitutes one of the most difficult and challenging aspects of a lawyer’s practice in the
estate planning field…”

On the basis of the above statement, and in order to ensure that the will is legally perfect,
critically discuss issues that you will address before drafting your client’s will. In addition,
explain the relevance of each issue
Question 21
Critically discuss the effectiveness of the tools used to check abuse of powers by
executors/administrators under the Law of Succession in Tanzania
Question 22
Ezekiah was appointed executor by the late Joti, who died on 23 rd July, 2019. Ezekiah has
subsequently petitioned for probate before the High Court of Tanzania, Dar es Salaam
District Registry. The petition was lodged on 10 th September, 2019. Mugendi, one of Joti’s
sons, asserts that the will left by his deceased father is defective because it does not mention
him. Furthermore, Mugendi argues that it is likely that the said will has been forged by the
executor. He, thus, wants to challenge it.
Advise Mugendi on the procedure to follow to challenge the will.
Question 23
Critically discuss the relationship between the law of trusts and the law of succession
Question 24 (Hardly do we bring short notes questions any more)
Write short notes on any three of the following items:
(i) Legatee
(ii) 1/3 rule
(iii) Caveat
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 (iv) Executors of their own wrong]
(v) Privileged wills
Question 25
Jackson Mwakatobe wrote a will in accordance with the provisions of the Indian Succession
Act 1865 way back in 2012. According to the will, Mwakatobe’s estate will be shared equally
between the wife, Anna Mwaikasu, on one hand and children, Kalist, Mwansasu and
Mwakyembe, on the other. The will was witnessed by Samson Mwankenja, Keya Magambo
and Sara Nkoko, Mwakatobe’s very close friends. Mwakatobe comes to you to seek advice
on the consequences of the following events on the validity of his will:

(i) All witnesses die before him

(ii) Anna Mwaikasu and Jackson Mwakatobe get divorced
Question 26
Janemary Joshua died testate a few weeks ago. In her will, she bequeathed two houses
located at Masaki and Ununio respectively to her husband, Jameson Mashinji; one house
located at Mbagala, Dar es Salaam, to her son, Masanja Mashinji; and one house located at
Kibada, Dar es Salaam, to her daughter, Annajoyce Mashinji. The rest of Janemary’s
properties have been bequeathed to a charitable organization called Unity Against Poverty
based in Arusha. Until her demise, Janemary and her husband were residing in Jameson’s
house in Ilala, Dar es Salaam. The two had contracted marriage under Christian rites way
back in 1992. Until her death, Janemary was Senior Procurement Officer working with
United Indian Commoners Bank (Tanzania) Ltd, Dar es Salaam.

No one has been named as executor/executrix in Janemary’s will. A report by a registered

valuer states that the value of the late Janemary’s estate is Tanzanian Shillings Two Billion
(2,000,000,000/=). Janemary’s husband and children come to you for legal advice on how
the estate is going to be administered. Advise them on:

(i) Who can petition to be given powers to administer the estate and why?
(ii) In which court is the petition going to be filed and why?
Question 27
John Makani died of kidney failure at Muhimbili National Hospital on 20 th February, 2018.
Upon his demise, it became clear that he had left no will; that is, he died intestate. Makani
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was a wealthy businessman running several business establishments in Dar es Salaam,
Kahama, Morogoro and Arusha. Specifically, in each of the places named, Makani owned, as
a sole proprietor, hardware stores, butcheries and fresh vegetables shops. In addition, he had a
garage located at Sinza Mapambano, Dar es Salaam City. He had engaged his relatives to
assist him as salespersons and managers. He also had personal bank accounts in National
Microfinance Bank (Tegeta Branch, Dar es Salaam), National Bank of Commerce (Corporate
Branch, Dar es Salaam) and Exim Bank (Tanzania) Ltd (Mlimani City Branch, Dar es
Salaam). Although he had several houses in several regions in Mainland Tanzania, Makani
had Dar es Salaam as his permanent place of residence.

Makani’s body was laid to rest at Kinondoni Cemetery, Dar es Salaam, on 23 rd February,
2018. At a clan/family meeting held on 30 th February, 2018, there was no agreement on who
should petition for letters of administration. Makani’s relatives proposed the deceased’s
young brother, Boaz, but the proposal was strongly opposed by the deceased’s widow and
children. It was agreed that another clan/family meeting [for purposes of proposing the
administrator-to-be] be convened on 15th March, 2018.

On the basis of the above factual scenario, give your advice on the following issues:
(i) Makani’s widow informs you that on 10th March, 2018, she needs to draw
Tanzanian Shillings Forty Million(40,000,000/=) from one of Makani’s bank
accounts for purposes of paying tuition fee for their daughter who is pursuing Ph.
D studies at the University of Birmingham. How should she proceed?
(ii) Before the second clan/family meeting is convened, Boaz, Makani’s young
brother and the manager of Sinza Mapambano garage spends, without consulting
other family members, Tanzanian Shillings Five Million (5,000,000/=) from the
proceeds of the business for purposes of settling funeral-related debts. Comment
on the legality or otherwise of Boaz’s actions
Question 28
James Sostenes fell in love with Janemary Mapesa way back in 1976. The two lived together
in a rented apartment at Upanga, Dar es Salaam for several years before moving to James’
house at Msasani in 1986 ( ‘the Msasani house) . It was a one storey building on a registered
plot which James had bought from Mr. Katikiro in 1975. Prior to the two moving in, the
house had been leased to employees of the Embassy of the People’s Republic of China.
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In 1990, the relationship broke up. This turn of events was partly a result of Janemary’s
failure to conceive and give birth on account of medical reasons. The other reason was that
the ‘wife’ did not love her in-laws - James’ sisters and brothers! On the other hand, Janemary
had been complaining of James’ ‘bad manners’ of, inter alia, coming home at late night
hours, allegations of having affairs with other women, and drinking too much! It was agreed
that, although the two were never formally married, Janemary continue staying in the house;
in fact, James executed a gift deed and subsequent transfer documents in favour of her former
‘lover’ in respect of the house a few months after the end of their relationship’. James
decided to move into his other house at Mbezi Beach which he had acquired before falling in
love with Janemary. This house had previously been under a lease to the famous Catholic
relief organization- the Caritas International.

In 1992, James and Neema Njau contracted marriage under the Roman Catholic rites. The
marriage ceremony was presided over by the Parish Priest, Fr. Nicodemus Machumu, at the
Catholic Parish of Ubungo- Msewe, Dar es Salaam. Fr. Machumu and James had been long-
time friends as the two studied theology together at Kipalapala Major Seminary, Tabora,
some years back. It was unfortunate that James could not proceed to ordination into
priesthood.

After getting married, the couple moved to James’ house at Mbezi Beach. This was to
become their matrimonial home for the rest of their married life. In fact, this was their home,
despite having several properties in other regions of the country- Mainland Tanzania.

James and Neema were blessed with two sons and one daughter – Jackson, Jerome and
Catherine. The three were born in 1993, 1995 and 1997 respectively! The three issues were
properly taken care of – schooling, shelter, food and other basic needs. In fact, by 2016, the
last-born, Catherine, was already pursuing a Bachelors degree in Economics at the University
of Edinburg, Scotland. By the same year, Jackson and Jerome were already working as
Senior Manager and Partner respectively with the famous audit firm in Tanzania- PWC!

In 1999, James bought a two storey building in Mwanza from the National Housing
Corporation (NHC) and subsequently, in 2000, leased it to a commercial company dealing
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with importation of electronic equipment. The lease was for 20 years starting from 1 st
February, 2000. According to the 2012 official valuation report, the building was worth
Tanzanian Shillings 800 Million.

In 2003, James and Neema jointly bought a registered plot in Moshi Municipality from Mr.
Mduma, a famous businessman then. The plot was jointly developed by setting up a three
storey building which the two subsequently rented to a charitable organization for 25 years
from 1st December, 2006. The ground floor was not rented as it was reserved for family
issues. As Moshi is Neema’s birth place, the family would pay occasional visits to the place
for purposes of, inter alia, seeing how her relatives were doing. While in Moshi, therefore,
they would reside in the first floor of the building. In 2015, according the evaluation report,
the building was worth Tanzanian Shilling 500 Million.

Fortunes did not end with the Moshi building. In 2006, James acquired 300 acres of farm land
in Mvomero Rural, Morogoro. He subsequently set up a teak wood farm in 2007. It was
expected that by 2016, the planted trees would be worth Tanzanian Shillings 70 Billion. In
2010, James acquired shares from CRDB Bank PLC worth Tanzanian Shillings 2 Billion. In
2011, James and his wife set up a private company with 50% shareholding each – they were
the only sharehoders. The company subsequently acquired 45 hectares of land in Shinyanga,
James’ birth place. The farm was used as a ranch, whereby 800 head of cattle were kept.

In 2016, James opened a fixed deposit account with the National Microfinance Bank (NMB),
Mwenge Branch and deposited Tanzanian Shillings 700 Million. According to an agreement
between the bank and himself, no withdrawal would be allowed until December, 2018.

James’ social conduct, on the other hand, was somehow not compatible with the way his
tribesmen looked at life. Although a Msukuma, James never paid any attention to
traditional/tribal rituals of his tribe. His late father had always urged him to always maintain a
balance between western religious beliefs (Catholicism) and Sukuma religious rituals. James
would always pay lip service to his father’s counsel. For after his father’s demise, James
never participated in any traditional functions. This became even worse after getting married
to Neema in 1992. At one time, his paternal relatives complained of him being ‘too

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Catholic’. James was once quoted saying, ‘Anyone who performs Sukuma traditional rituals
upon my death shall be cursed by my true God’.

On 2nd January, 2017, James, while driving from Morogoro to Dar es Salaam got a car
accident along the Ruvu Bridge, Coast Region. It was a head-on collision between his brandy
new Toyota Prado (T 23355 DDF) and a bus, Ota High Classical (T 31156 BEK). He was
rushed by good Samaritans to Tumbi Hospital only to discover he had already passed away.
His remains were kept at Muhimbili National Hospital and subsequently laid to rest at
Kinondoni Cemetery on 5th January, 2017. This was because, no one was able to ascertain
whether the late James had made a will so that it would have become easy for family
members to find out if there was any declaration regarding the place of burial/internment.

A family meeting held on 7th January, 2017 confirmed that the deceased never made any will
in his life time. This was after several people, including the deceased’s lawyers, the widow,
paternal and maternal relatives had denied to ever have seen any deceased’s testamentary
declaration in any form. The best that could be remembered was the late James’ oral
declaration on performance of Sukuma traditional rituals upon his demise.
You have been approached by James’ widow, Neema, for advice on a number of issues
surrounding the administration of the estate of the late James. Give a reasoned opinion on
each of the following independent issues:

(i) Neema, the widow, has been proposed by other family members to petition for
letters of administration. In which court should the petition be filed and why?
(ii) During the family meeting in which the widow was proposed to petition for letters
of administration, Catherine, the deceased’s last born, was heard arguing that the
Msasani house should also be part of her late father’s estate. Advise.
(iii) Assume James has been survived by the widow and the three children only, what
will be the portion(s) of each heir, if at all they are entitled to inherit the estate?
(iv) Which documents should accompany the petition to be filed under (i) above?
(v) Which succession legal regime shall be used in distributing the estate and
why? [
Question 29

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With reference to customary and statutory succession legal regimes in Tanzania, describe at
least four elements of a valid will. Under what circumstances can any of the elements you
have identified be dispensed with [and yet the will remains valid], if at all this is legally
possible?

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