IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI
CIVIL CASE NO. 8A OF 2021
(Originating from Probate and Administration Cause No. 2 of 2021 in the
High Court of Tanzania at Moshi)
ROSE ANDWEDISIA TILYA .................................. PLAINTIFF

VERSUS

EMMANUEL CHRISTOPHER TILY A ...... ...... DEFENDANT

JUDGMENT

MUTUNGI .J.

The Plaintiff Rose Andwesia Tilya petitioned for Probate

proceedings before this court in Probate Cause No. 2 of 2021
regarding the estate of the late Andwedisia Abernego Tilya;
(her father) who passed away on 5th November, 2020, The
plaintiff claimed her late father left a Will dated 27th March,
2017 which appointed her to execute her father’s wishes as
per the Will. The petition was contested by the defendant
through a caveat hence the instant case in terms of section

Page 1 o f 25
52(b) and 54(3) of the Probate and Administration of Estate
Act, Gap 352 R.E. 2019.

On the other hand, the defendant, Emmanuel Christopher

Tilya, [the deceased grandson), contested the petition on
the grounds that, the stated Will was invalid and forged as
the deceased had another Will dated 27th July, 2015 wherein
his father was appointed as the executor of the deceased's
estate. Since his father who is now deceased had passed
away in 2019, the clan meeting nominated him to take over
his place and appointed him to execute his grandfather’s
estate. Further at the time the purported Will was made, the
deceased was an old man of 95 years and ailing. He thus had
developed loss of memory.

More so by the time the purported Will was read out it had
not been signed nor sealed by Advocate Elizabeth Maro
Minde (PW2). The said Will was intending to distribute
properties already distributed by the deceased to his sons
and blood relatives before his death except for the house
situate at Shah Tours .It was the defendant’s further concern
that, the plaintiff intends to administer the estate contrary to
the express wishes of the deceased in his Will dated 27th July,
2015. Despite all of the above, during the deceased’s life
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time the plaintiff had meddled with his landed properties
already allocated to his sons and grandsons. He therefore
filed a caveat subject of this judgment praying the 2017 Will
introduced by the plaintiff be declared invalid and
alternatively this Court appoints him to execute the 2015 Will
and administer his grandfather’s estate.

Before commencement of the proceedings, the following

issues were framed for determination: -

(1) Whether the Will dated 27/3/2017 was valid.

(2) Whether the petitioner or caveator should be
appointed the Executrix of the Estate.
(3) What reliefs are the parties entitled to.

During hearing of this matter, the Plaintiff enjoyed the legal

services of Mr. Martin Kilasara, learned advocate whereas Mr.
Charles Mwanganyi represented the defendant (caveator).
The Plaintiff and Defendant had two witnesses each.

PW l, Rose Andwedisia Tilya (the plaintiff), narrated, the

deceased (her biological father) passed away on 5th
November, 2020. She tendered the death certificate which
was admitted as Exhibit “P I ”. After the deceased's burial at
Kikarara, Kilembe (Moshi Rural), she immediately left in order
Page 3 of 25
to attend another burial only to receive a phone call from
Advocate Minde informing her there was a Will left by the
deceased appointing her his executor before his demise. The
advocate called upon her to make follow up on the reason
that, she had gone to read the same to the family members
but they had refused to hear her out. PW1, contended further
that this is when it came to her knowledge that the Will had
appointed her as the Executor of the Will to administer her
father's estate. The said Will dated 27th March, 2017 was
admitted as Exhibit “P2”.

According to PW1, the properties left behind and their

division is as follows: -

1. Kilembe farm to be distributed to Emmanuel Christopher

(the deceased’s grandson), Sylvester Jacob Tilya (the
deceased’s grandson), Andrew Jacob Tilya (the
deceased’s son), Anna Jacob Tilya (the deceased
granddaughter), Sarah .A. Tilya (the deceased’s
daughter) and Dora .A. Tilya (the deceased’s
daughter).

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 2. Livestock, one cow to be given to Sylvester and
Emmanuel Christopher. The goats be given to
Emmanuel Christopher.
3. The premises at Shah Tours be given to Rose .A. Tilya (the
plaintiff/petitioner).
4. The farm at Natsini be given to the children of the late
Hedson Tilya and the children of the late Robert Tilya (3
acres).
5. Sisal farm be given to Elfuraha Malisa and Emmanuel
Christopher.
6. The paddy farm at Munono be given to Estemani .A.
Tilya (1 acre), Emrod Anase Tilya be given % and % to
Emmanuel Christopher.
7. The area at Kifunyi be given to the children of the late
Herson .A. Tilya.
8. The area at Babati, Manyara be given to Mathayo Justin
Maro.

She stated all the above properties had never been

distributed to anyone and that, she believed her father was
of sound mind when making the Will. She added, although
the deceased walked with crutches, he could still read the
bible and newspapers very well, thus it was not true that he
Page 5 of 25
had loss of memory by then. She also acknowledged that,
she was not in the meeting that was convened to distribute
her father’s estate prior to his death, however, since she is the
only one appointed the executor, she prays to be legally
appointed and proceed to distribute the deceased estate
per the Will. On cross examination she acknowledged, her
name appears only on the cover page of the Wilt and that
the deceased signed by putting a thumb print on the third
page of the Will only. She also stated the Will was witnessed
by Daudi Isaria Maro the deceased tenant at the Shah Tours
premises and Hoise Gerald Mandara, his cousin. She went on
denying the fact that, she had a long dispute with her late
father over the Shah Tours house.

PW2, Elizabeth Maro Minde, testified she is a private

Advocate and owner of a Non-Governmental Organization
known as Kilimanjaro Women Information Exchange and
Community Organization (KWIECO) that operates within
Moshi and Tanzania in general. She testified among her
duties include, offering legal assistance such as writing Wills,
reconciliation and drafting of legal documents. She further
stated to have known the deceased since childhood. In the
year 2017 before his death, he summoned her and gave her
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instructions to put his affairs in order especially regarding his
properties. He also mentioned that he wanted (PW1) Rose
Andwedisia Tilya to be the executor of his estate. He gave
her a sketch map indicating his wishes on the distribution of
his properties, thus, PW2 drafted a Will to that effect. After
going through the draft he directed her to summon one Hoise
Mandara and one Mr. Daudi Maro asking them to meet on
27th March, 20-17. On that day the Will was finalized by both
the deceased and his witnesses signing, and she accordingly
attested the same.

PW2 explained further that, at the time of writing the Will, the
deceased was of sound mind with a good memory and he
knew how to read and write but due to his old age he signed
by putting a thumb print. She then sealed and kept the said
Will in her office until when she heard of the deceased’s
death. She clarified further, she went to the clan meeting with
the said Will, read it out and left them to deliberate on the
estate. She denied having known of the existence of another
Will written way back in the year 2015. She vehemently stated
before the court that, the Will was sealed before she read the
same in clan meeting.

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When cross examined, PW2 stated it is not a legal
requirement for a maker of a legal document to sign on each
and every page. She specified among the two witnesses,
Daudi Isaria Maro was the deceased’s long-time tenant and
close confidant whereas Hoise Gerald Mandara was the
deceased first cousin. She also stated, those witnesses never
read the Will, thus they did not know what was written therein
as their duty was merely to sign the Will.

PW3, Daudi EHsaria Maro, a business man and a tenant at the

Shah Tours house testified, he knew the deceased for more
than 32 years, thus, they were good friends. He told the Court
that, before his death, the deceased summoned him to his
home where he met Hoise and Advocate Minde (PW2). He
was then told to sign a document which he did using a pen
and not knowing the contents therein. He did this and left
soon after the signing.

He further recalled after the deceased’s death and burial,

PW2 showed them the Will before a clan meeting but there
were a lot of misunderstanding as the clan members refuted
the said Will and appointed Elisonguo Tilya (the deceased's
younger brother) to be the administrator but he also

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declined. Since they refused to listen to PW2, she returned the
Will in the envelope and left. During cross examination he
stated, he is still a tenant in the deceased property paying
rent to PWT (the deceased daughter). He also clarified, when
PW2 appeared to read the Will to the clan members, the
envelope was not sealed. More so, he wrote his name and
signed with a pen and wondered how it happened that the
same was appearing in. a computer generated format.

DW1, (the defendant) Emmanuel Christopher Tilya,

deceased’s grandson testified that, Rose Andwedisia Tilya is
his aunt and that he contests her appointment because the
Will before this court was written after the deceased lost his
memory. Moreover, there were no four witnesses as required
by law. To make matters worse, PW2 after reading the same
before the family members admitted, the same was not
signed nor attested to as required by law and promised to
fulfil this requirement but after she left with the said will,
surprisingly enough she never went back. He testified further,
during the family/clan meeting, PW2 appeared with the
unsealed Will, took out the same and read it out. The said Will
had appointed PWl as deceased’s choice to execute his
estate. There insured a lot of questions, confusion and
Page 9 of 25
misunderstandings since by 2017 the deceased's relatives
were aware he had already lost memory. The clan members
wondered how the deceased would have managed to write
a Will in such state of mind.

DW1 added the family members questioned the validity of

witnesses Daudi Maro and Hoise Mandara without the
attendance of close relatives. The reality being that the
alleged Will writing process was performed at the deceased
premises where his close relative reside.

Still contesting the 2017 deceased’s Will, DW1 went on

testifying, the clan chairman (Heri Heriamini Mshiu) produced
yet another envelope dully sealed during the meeting. He
presented the same before the clan meeting which had
been prepared by Advocate Shayo dated July 2015. It was
read out and it mentioned the deceased's last born, one
Christopher Andwedisia Tilya as the administrator of his
estate. The said Chistopher was D W l’s father who had
passed away on 28th December, 2019. As a result the family
meeting proposed the defendant to be the executor taking
up his father's position. He was handed over the said Will and

Page 10 o f 25
the same was admitted as Exhibit “D l”. The clan meeting
minutes were also admitted as Exhibit “D2”.

It was DW2’s further testimony that, according to the said Will,

all of the deceased properties had already been distributed
by the deceased himself during his lifetime. The Will also
mentioned his children those who had been bequeathed
and those who had not been bequeathed.The only property
which was not distributed was the house at Shah Tours. DW2
raised his concern that, the 2017 Will filed in this court has
PW1 ’s name written on the front cover page only and there
is no mention of her name on the other pages. To put salt to
the wound, the Advocate (PW2) did not attest to the
impugned Will, and the same redistributed properties which
had already been distributed since 1970's. In his settled view,
he noted the same creates doubt on the authenticity of the
Will.

DW2 further told the Court that, the deceased and PW1 had
not been in good terms for a while, forcing him to give her
the Shah Tours house since 2009 but the deceased
adamantly refused to do so. In 2016/2017 after she realized
her father had lost memory, she summoned a Lutheran Priest

Page 11 o f 25
who tried to force him to give her the said house otherwise
the church would not attend him spiritually. Still the deceased
refused to heed to the said demand. He prayed in view of
the evidence from his side, the objection raised be sustained
and he be appointed to execute the 2015 Will fairly to all the
beneficiaries.

During cross examination, DW1 stated, the 2015 Will was

written by Advocate Peter Jonathan Mushi who is still alive to
date and he does not how the Will passed from the said
Advocate to Heri Heriamin Mushi (the chairman of the clan
meeting). He stated further, the Shah Tours house was built by
the deceased, PW1 added 4 rooms so that the deceased
could collect rent therefrom as a source of income.

DW2, Heri Heriamini Mushi, testified, he knew the deceased

as their clan chairman and he was very close to his family
thus he treated him as his father. He remembers in the year
2015, he was summoned by the deceased, as he wanted to
prepare his Will at Advocate Jonathan ’s office. After the Will
was written, together with other witnesses including Elisonguo
Tilya signed and the deceased asked him to keep it in safe
custody fearing his children might temper with it. After his

Page 12 o f 25
burial is when he produced and read the same to the clan
and family members. This was after PW2 reading out the 2017
Will which she had kept in an envelope not sealed and the
same initiated chaos. PW2 had then requested to go and
dully attest the said Will and complete the process. He
testified further (PW1) the deceased’s daughter had
differences with her late father on the Shah Tours house since
she claimed the house was hers whilst the deceased claimed
it was his lawful property.

DW3, Sarah Andwedisia Tiiya, testified that, the deceased

was her biological father and after his burial, PW2 brought a
2017 Will before a clan meeting held on 12th November, 2020
and read it out. A number of questions arose among which
was the number of witnesses present, the fact that the Will
was not sealed and that the same was not fully finalized by
PW2. More so, PW2 had a sketch map accompanying the
Will which she handed over to the high table and left with the
Will so that she can sign and rubber stamp the same. She also
told them anyone doubting the Will should seek legal
assistance on the coming week which was a law week. DW2
went on testifying, there was a doubt raised on the
deceased’s state of mind as he had long lost memory. She
Page 13 of 25
added, after Advocate Minde left with the Will which she did
not show anyone, the clan chairman also produced a 2015
Will. The same revealed the deceased’s estate had been
distributed except the Shah Tours house and thereafter all
members in attendance unanimously conceded the same
was a legal Will and proceeded appointing DW1 as the
executor.

She also testified, she remembers on 7th January, 2015, the

deceased summoned his family [relatives, children and
grandchildren) and distributed his properties. However, PW1
and one Estomani Tilya did not attend. He left the Shah Tours
house undistributed, which was used to cater for his well-
being till his death. She prayed the executor of the
deceased’s estate be as per the 2015 Will.

After the court hearing the testimonies from both parties, the
learned advocates filed their final submissions. Starting with
plaintiff’s advocate, Mr. Kilasara, on the onset submitted, the
deceased died testate leaving behind two Wills. He asserted
that, Rule 23 to the third schedule of the Local Customary law
(Declaration) No. 4 Order, GN No. 219 of 1967 permits a Will
to be amended. In that regard, of the two Wills that of 27th

Page 14 o f 25
July, 2015 and 27th March, 2017, the latter is the last valid Will
of the deceased.

On the 2nd issue, Mr. Kilasara submitted, as per section 24 (1)

and (2) of the Probate and Administration of Estates Act, Cap
352, R,E. 2019, administration of the estate may only be
granted to the executor appointed by the Will which may be
express or by necessary implication. In the matter at hand the
plaintiff was appointed by the deceased by necessary
implication thus deserves to be granted probate unlike the
defendant who was never appointed even by the 2015 Will.

In the end, the learned advocate concluded the

defendant’s caveat be overruled, plaintiff be granted
probate on the reason she was dully appointed by the
deceased himself, by virtue of being his daughter and legal
beneficiary of his estate.

On the other side of the coin, Mr. Mwanganyi averred, the

2017 Will is not valid since by the time it was made the
deceased was of old age i.e. 95 years, diabetic and was sick
from time to time until his demise in 2020. He also had
encounters of losing memory thus, his reasoning was
impaired hence not rational enough to make major

Page 15 o f 25
decisions. Further, after the said Will was written, was not
signed by the advocate who witnessed the same, and none
of the witnesses was related to the deceased. In that regard,
the Will contravened the Local (Customary Law Declaration)
Order No. 4 of 1963, GN. No. 436 of 1963 (Local Customary
Declaration Order).

Moreover, the said Will did not specifically appoint the

plaintiff to be the executor/administrator of the deceased
estate as the name appears only on the cover page. Lastly,
the said Will redistributed the properties which had already
been distributed by the deceased except for the house
situate at Shah Tours which the plaintiff claims had been
bequeathed to her.

On the 2nd issue Mr. Mwanganyi submitted, between the

Petitioner and the Caveator, the latter is most eligible person
to administer the deceased estate. The learned advocate
did not submit on the third issue.

After the foregoing summary, I will now wish to discuss the

substance of the suit in relation to the framed issues raised.
Starting with the 1st issue; Whether the Will dated 27th March,

Page 16 o f 25
2017 was valid. Section 2 of the Probate and Administration of
Estates Act CAP 352 R.E. 2019 defines a Will as follows: -

“Will means the legal declaration of the intentions of the

testator with respect to his property, which he desires to
be carried into effect after his death.”

Through a Will, a testator can express his desires and such

desires have to be complied with. The position has been
affirmed in the cases of Celestina Paulo Vs. Mohamed Husein
[19831 T.L.R 291 and Julias Petro Vs. Cosmas Raphael fl 9831
T.L.R 346.

The word ‘valid’ has been d e fin e d in the Black’s law

Dictionary 8th edition to mean legally sufficient or binding. A
Will becomes valid as long as the maker complies with the
requirement under Rule 5 of the 3rd Schedule of the Local
Customary Declaration Order. This Rule provides that a Will
has to be made voluntarily by the testator as to how he
would wish his estate be administered upon his passing away.
The process in that regard includes special witnesses to be
present in the intended Will.

In the matter at hand, the defendant challenges the validity

of the deceased Will dated 27th March, 2017. From the outset,
Page 17 of 25
I join hands with the caveator that the Will dated 27th March,
2017 which was admitted in this Court as Exhibit “P2” is
questionable and the toll owing are my reasons: -

First, the first page which is the cover page reads;

“HUU Nl WOSIA WA MWISHO

WA
BWANA ANDWENISIA ABERNEGO TILYA
WA
SLP. .............
MOSHI-TAN1ANIA
MSIMAMIZI WA MlRATHl AUYETEULIWA
ROSE ANDWEDISIA TILYA
TAREHE 27™ MARCH 2017”

From the 2nd page through the 3rd page is where the
deceased allegedly started to distribute his properties.
However, there is no singie line or clause which specifically
mentioned the plaintiff therein as the executor of the
deceased Will. Now the question is, where did the Author of
the Will get information that the plaintiff had been appointed
the Executrix so as to be acknowledged on the front cover
page. Section 24(1) of the Probate and Administration of
Estate Act (supra) reads;

Page 18 o f 25
“24. Grant of probate

(I) Probate may be granted only to an executor

appointed by the Will,”

It was upon the deceased to mention specifically within the

clauses forming the Will that, he had appointed the plaintiff
the executor. There is yet a glaring feature in the Will that the
maker (deceased) did not sign the pages to the Will apart
from the third page. In the firm view of this court, given such
a situation this created room for pages to be inserted that
which were not made by the deceased; hence the
authenticity of the said Will left wanting.

Secondly; on the witnesses who signed the said Will.

According to section 19 of the Local Customary Declaration
Order, a written Will should be as follows: -

“'79, Wosia ulioandikwa ushuhudiwe na

mashahidi wanaojua kusoma na kuandika-yaani
mashahidi wasipungue wawili (mmoja wo ukoo
na mmoja mfu bakij ikiwa mwenye wosia anajua
kusoma na kuandika, na wasipungue wanne
(wawili wa ukoo na wawili watu bakij-ikiwa
mwenyewe hajui kusoma na kuandika."
Page 19 of 25
From the Will produced in Court and the witness evidence
indicate the testator knew how to read and write, thus, a
minimum number of two witnesses was sufficient. The 1st
witness Daudi Isaria Maro testified to be a close friend,
however, the relationship between Hoise Gerald Mandara
and the deceased is farfetched. It would seem was some
kind of a distant cousin not very well known to the clan
members. Evidence shows the deceased had siblings who
could have been witnesses and other close related persons
who would have been summoned as was done during the
burial ceremony.

Third, the said witnesses were not aware of the contents of

the said Will which is contrary to the role of a witness. The
witnesses’ main role in documents of this nature is to ascertain
the contents stated in the document as the deceased’s will
and last wishes. Further to ascertain the maker was of sound
mind and was not under any undue influence when making
the Will. This is important because by the time the Will takes
effect the person who signed it, is no longer around to say
whether or not the document that is being presented to the
probate Court is really his or her Will. This is the time the

Page 20 o f 25
witnesses come into play to testify on what they heard and
witnessed.

The rationale behind having two witnesses of whom one of

them or in a different scenario half of them be related to the
testator is simple, to "safeguard against fraud” as Msumi, J.
(as he then was) held in the persuasive case of John Naomoi
Vs. Mohamed Ally Bofu M9981 T.LR 63. However, this is not the
case in the instant matter as the witnesses had no idea
whatsoever of the contents embodied in the Will thus, they
cannot for sure declare whether what is written was truly the
deceased’s wishes. Given such state of affairs there was no
safeguard against fraud in regards to the said Will.

Fourth; when cross examined, PW3, Daudi Isaria Maro stated;

“On the signature, I wrote my name with a pen.

If it is typed then I do not know”

It is to be kept in mind that, this is the plaintiffs witness who

specifically states that he wrote his name and signed with a
pen, but the Will admitted in evidence in Court shows the
witness’s names were typed. This leaves a lot to be desired
and can safely be stated the same could have been

Page 21 o f 25
adulterated or alterations made therein, hence renders the
Will invalid.

Fifth; the Will read out by Advocate Minde was not sealed
before she read it to the deceased family. Although she
testified that the envelope was properly sealed and stored
safely in her office, the evidence provided in this court
including that of PW3 proved otherwise. Rule 114 of the
Probate Rules, G.N No. 369 of 1963 (made under section 9 of
the Probate and Administration of the Estate Act) provides
for the Wills presented in the Court to be sealed in an
envelope. Although the law is silent on how should the Will be
kept in private offices, say Advocates office as in this matter,
in banks, religious leaders etc, I am of the considered view
that, the logic behind Rule 114 applies to all other places as
was calculatedly designed; to avoid fraud or such Wilis to be
tempered with. The fact that the Will in question was read out
from a loose unsealed envelope places its authenticity to
question.

Lastly, it is not clear as to why PW2 decided to leave with the

deceased Will after she read the same to the elan and family
members. Although she stated that they did not want the Will,

Page 22 o f 25
the caveator and his witnesses argue to the contrary that,
she .left with it intending to sign and attest the same. The
plaintiff’s witness (PW3) had the same story. As though not
enough, at the same time, the learned counsel left them with
a copy of a sketch map which she purportedly stated was
produced by the deceased in preparation of the Will, (t is
therefore doubtful, that family members agreed to receive
the sketch map but refused to receive the Will for no good
reason.

Generally, the witness’s act was wanting and puts her

testimony into question. The only explanation to this in the
settled view of this court is that, the learned advocate left
with the Will knowing it had procedural defects and this is why
she never went back to present or hand over the said Will.
She left the ball rolling to the plaintiff who was not present at
the clan meeting nor did she know what had transpired. She
was not in the position to either know whether the purported
Will was sealed or not, and whether it had been signed and
attested to. In the case of John Ngomoi Vs. Mohamed Ally
Bofu (supra), the Court held inter-alia that: -

(!) N/A

Page 23 o f 25
 (ii) Where a Will is surrounded by fraud, if is void.

Based on the above analysis, the first issue is answered in the

negative that, the deceased Will dated 27th March, 2017 is
not valid worthy to be applied in the distribution of the
deceased’s estate nor to lay foundation of the appointment
of the plaintiff as the executor.

On the 2nd issue on whether the petitioner/plaintiff or the

caveator/defendant should be appointed as the executor
of the deceased W ill the answer is also in the negative. None
of the two deserves to be granted the filed probate. Having
declared the 2017 Wilt invalid, the petitioner’s (plaintiff)
automatic right to be the Executrix of the deceased estate
evaporates. Likewise, the caveator cannot be appointed to
execute the 2015 Will as he prayed. This is so because the said
Will mentioned his father Chistopher A. Tilya (reported dead)
as the executor, and since he is now deceased, the same
cannot be easily executed. He cannot just simply assume
such responsibility even if he would seem was suggesting the
clan approved him. In light of lack of sufficient proof and
probate procedures dully followed, the defendant’s prayer
has no legs to stand.

Page 24 o f 25
On the last issue as to the rights entitled to the parties, this
Court is of the view any entitled party or parties to apply to
be executor(s)/or administrator(s) upon nomination and
proper probate procedures. In the circumstances, the
caveat filed by the defendant has merit and the same is
accordingly sustained. This being a probate matter involving
parties dully and closely related, I grant no order to costs.

B. R. MUTUNGI
JUDGE
1/04/2022

w i this day of 1/04/2022 in presence of the

Plaintiff/Petitioner, Defendant/Caveator, Mr. Charles
Mwangani for the Defendant/Caveator and holding brief for
Mr. Kilasara for the Plaintiff/Petitioner.

B. R. MUTUNGI
JUDGE
1/04/2022

RIGHT OF APPEAL EXPLAINED.

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