QUESTION ONE

In Judith Patrick Kyamba v. Tunsume Mwimbe and 3 Others, Probate and

Administration Cause No. 50 of 2016, Hon. Mlyambina J held that:

“With profound respect, I do not agree with the argument of the Petitioner
that children born out of wedlock are illegitimate and they have no right to
inherit the deceased estate. I find the Petitioner’s arguments to be far away
and out of touch of justice and realities. In fact, such an argument is barbaric
and discriminative in nature. The Constitution of the United Republic of
Tanzania, 1977. Guarantees equality of all human beings under Article 12(1)
and equality before the Law under Article 13(1) and (2). Even if it is argued
that the alleged children born out of wedlock are of majority age, and so are
not protected by the cited Law of the Child Act which under its Section 4(1)
defines a child 2 to be a person below 18 years, it is the found view of the
court that the Tanzania Indian Succession Act, 1865 aims at protecting for all
the biological children of the intestate whether born within or out of
wedlock.”

Yet in Elias Jeremia v. Paulo Jeremia, PC Probate and Administration Cause

Appeal No. 13 of 2020 (HC), Hon Manyanda J held inter alia that “To this end,
I can conclude that the customary law which deprives a child born out of
wedlock of his right to inherit from the estate of his parent, is repugnant,
unconstitutional and bad law which is no longer in use. In this matter, the
Declaration of Local Customary Law. GN No 436 of 1963 which allegedly
denies the Appellant of his right to inherit from the estate is bad law and in
effective. The appellate District Court wrongly applied it. The appellant is
entitled to inherit from the estate of the late Jeremia Luchagula so long it is
established that he was his biological father.”

However, in the matter of estate of the late Sadallah Philipo Ndossy and In
the matter of an application for letters of administration by Sophia Sadallah
Ndossy and another and In the matter of a Caveat by Said Sadallah Ndossy
&3others (Probate and Administration Cause No.45 of 2023) [2024] TZHC
7967 (28 August 2024), Hon. Omari J held as follows regarding the position of
caveators who were deceased’s children born out of wedlock: “Needless to
say, after finding the first issue in the affirmative the question' as to who are
the legal heirs of the late Sadallah Phillipo Ndossy need not be laborious to
answer. In addition to the heirs being known, their respective shares are also
predetermined under Islamic law. Similarly, the issue as to who are the heirs
is one of the functions of an appointed administrator in this case it is
sufficient to state that that as per the applicable law to the [deceased the
Caveators do not qualify as legal heirs. Even with the Caveators counsels'
ingenuity in citing section the Law of the Child Act, Cap 13 RE 2019 (the LCA)
which prohibits discrimination based on being born out of wedlock, however,
they have failed to substantiate how the LCA applies to any of the four
Caveators bearing in mind that the top statute's long title and section 4
which defines who is a child in accordance to the LCA.”

In the light of the above quotations and the differing position under the
various succession regimes:

1. Discuss the predicaments relating to the right of inheritance of the

children born out of wedlock in Tanzania.
2. Do you think the Law of the Child Act is enough to enhance the
enjoyment of the right to inherit for children born out of wedlock? If
your answer is yes/no, give reasons.

QUESTION TWO

The intestate rules under Islamic and Customary Laws have been under
consistent criticism for perpetuating gender inequalities in Tanzanian society.

1. Based on the intestate rules under Islamic and Customary demonstrate

the veracity of the above statement. Do you think there are any justifications
for the differential treatment of men and women in the two succession
regimes.
2. With the support of at least three case laws, demonstrate how courts in
Tanzania try to address the inequalities manifested in Islamic and Customary
laws. Under customary law, widows are not entitled to inherit from their
deceased spouses. Besides, though daughters can inherit albeit in the third
degree, they cannot inherit clan land, and their inheritance is always less
than that of their brothers regardless of their age. Under Islamic law, surely
widows and daughters have a right to inherit, however, their share is always
half of what their male counterparts are entitled to inherit.

CASE STUDY (For Question 3 & 4)

Read the scenario relating to Mr. X an affluent Man residing in Dar es Salaam
below and answer the questions that follow:

A. Family Life Details

i. Mr X is married to Ms. Y since 1975 following their official marriage in

Biharamulo, Kagera. Mr X and Y are blessed with six children: three males (A
– 41 years, B – 39 years & C – 31 years) and three females (E – 48 years, F –
36 years & G – 34 years).

ii. X and Y are now grandparents with 9 grandchildren begotten by A, E and

G. For X and Y, their children and grandchildren are so dear to them, and
they do everything in their power to ensure healthy relations and bonds
among them. As rich individuals, they wish that their love and affection for
their children would not end upon their death.

iii. Mr X has four siblings (2 brothers – Meshack and Eliud; and 2 sisters –
Dafroza and Kabula). -All have their families now. As their big brother, he has
been responsible for their care and wellbeing since the demise of their
parents. In fact, his siblings regard him as their father to date. Of all the four
siblings, Mr. X is closer and more connected to his immediate brother,
Meshack. Mr. X has been heard saying that if anything like death or disability
could happen to him then Meshack would be the best person to ensure the
well being of Mr X’s family, business and properties.

iv. In 2016 and for reasons known to him, Mr X started having a love affair
with a lady named R and sired two children L – 7 years & M – 4 years. Apart
from Meshack, his wife and children are not aware of this ‘development’. As
a responsible man, X fully provides for R and her two children, and he has
promised them that even in his absence their best interest is at his heart. He
assured them that they are not of less importance than Y and her children.

B. Properties

i. Shares in X and Y CO. Ltd jointly owned by X and Y equally – The value of
the shares amounts to Tshs. 100,000,000/-

ii. A two-storey building used as a family home located at Kimara Temboni,

valuing up to Tshs. 300,000,000/-. Note: • Though this is a family home, A
and his family are also residing in this home. Based on their traditions, it is
the responsibility of the first son to take care of their parents, As such, the
first son never leaves the family home even after marrying.

• While X and Y occupy the first storey, A and his family occupy the second
part of the home.

• It is X’s desire that, if he passes on at the time when his beloved wife is still
alive, the wife will have full rights to reside on the first floor and A will retain
the second part of the house.

• If the wife dies, the house should be leased and the proceeds should be
used for the education costs of his grand children depending on the needs of
each child. A trust account shall be open to deposit the proceeds from the
lease.

iii. 0ne storey building located at Mbweni, where Ms R and her two children
are currently residing. The value of the house is almost Tshs. 200,000,000/-
Though the title of the house is in X’s home, in his head he knows this
property is fully intended for his concubine and her children even after his
death.

iv. Five units or condominiums located at Upanga Complex in Dar es Salaam,

each valuing about Tshs.70,000,000/-

• Upon his demise, he desires to bequeath these to B, C, E, F and G, in their

absence the properties should be rented and proceeds distributed to their
surviving off springs.

v. A grocery and beverage shop located at Sky City Mall whose net profit
amount to Tshs. 5,000,000/- per month. Mr. Meshack is the Sales Manager of
the shop.

• Upon his demise, Mr. X desires that Mr. Meshack continues to oversee the
shop and that the proceeds of the shop sales should be used to repay the
loan with CRDB Bank PLC based on the outstanding terms and conditions of
the loan. When the loan is fully repaid, the proceeds should be channelled to
a trust bank account for the upkeep of his two children with R. Besides, Mr.
Meshack will be entitled to a monthly payment amounting to Tshs.
2,000,000/- per month. Moreover, should any of Mr X’s siblings need financial
support, Meshack should be able to support them from the shop’s proceeds
of the shop.

vi. His personal properties including his expensive outfit, Jewries, and shoes
should auctioned and the proceeds should be donated to Mother Theresa
Children’s Home located at Mbezi Msakuzi.

C. EXECUTOR and GUARDIANSHIP

i. Due to their closeness and understanding, Mr. X desires to appoint Mr.

Meshack to be the executor of his wishes.

ii. Mr. X also wishes that, in addition to their Mother, Meshack be a secondary
guardian for his two children with R if it happens he dies before their 18th
Birthday. He is not sure, if his elder children would be willing to support them
as he has fears of introducing his extra marital relations to his wife and
children.

QUESTION THREE

Assuming that, Mr X is a Christian, draft a will reflecting his wishes and

desires. In drafting the will bear in mind the principles governing the creation
of wills. NB: You are allowed to assume facts that are not included but that
you deem essential for creating a valid Will.

QUESTION FOUR

Assuming that, Mr X is a Muslim:

i. And desires to create a will, to what extent would his wishes be realised?

ii. If he dies intestate, identify the potential right full heirs and the shares in
percentages. iii. What are possible and practical ways to ensure the
protection of Ms R and her children upon X’s demise?

QUESTION FIVE

A: Mr Ngime and Ms Hara were married from 1985 until 2015 when they
divorced due to constant misunderstandings. Ms Hara accused her husband
of having extramarital affair. Surprisingly, Ngime boasted that for an affluent
African man like him, it would be absurd to stick to one woman. After all, he
claimed that their marriage was celebrated customarily based on the Chagga
Customary Rites which embraces polygamous unions. Despite his modern
and lavish life in Dar es Salaam City, Ngime always observed and cherished
the Chagga customs and traditions.

B. Mr Ngime and Ms Hara were blessed with three children: Mika, Eli and
Shira who were all adults with their own families at the time of their parents'
divorce.
C. One year after the divorce, Mr Ngime officially married one of his
concubines, Ms Jackie, who was thirty years younger than him. Before their
marriage, Ngime and Jackie had sired two beautiful children: Nai and Nia.

D. Unfortunately, Jackie and Ngime’s elder children did not have a smooth
relationship. The children felt that had it not been for Jackie, their parents
would not have divorced, a tragedy that fast-tracked their mother’s death.
This sour relationship created insecurities when she thought of the future of
her two little angels. Deep down in her heart, she knew she and her children
would be in a dire situation if Ngime is not in the picture. Thus, she started
eyeing opportunities to secure her children’s future.

F. Unfortunately, in 2018 Ngime was diagnosed with serious occasional

mental health. For Jackie, this was a blessing in disguise, she used this
opportunity to convince Ngime to write a Will. Despite his many riches, Jackie
was able to persuade Ngime to bequeath to Nai and Nia all his properties
including a house built in a clan land in Rombo region. Jackie was appointed
a sole guardian to her children. E. The purported will was written a few hours
after Ngime’s recovery from a prolonged coma. Besides, it was witnessed by
Jackie and Ben, one of Ngime’s closest friends. Ben was also appointed to be
the executor of the Will

F. Six months after the writing of the Will, Mr. Ngime passed away and was
buried in his extravagant house in his home village, Rombo.

The funeral ceremonies are over, and Jackie is longing to tell Ben to initiate
the probate proceedings. To avoid surprises in court, Jackie has heard that
you’ve just completed your Law degree and you were the best student in the
Law of Succession and Administration of Estates Course. She has approached
out with the Will and posed the following questions:

i. Assuming the applicable law is the Chagga Customary Law, would the
Will be valid? Provide authoritative reasons for your response based on
the law regulating customary Wills in Tanzania.
ii. Assume Ben petitions for a grant of probate and the court declares the
Will invalid leading to the application of the Chagga intestate rules of
inheritance:
• What would be her fate and her children? She wonders if they could
be among the rightful heirs and retain the sole guardianship of her
children
Advise her accordingly