THE UNITED REPUBLIC OF TANZANIA

THE LAW SCHOOL OF

TANZANIA

LS 108
PROBATE, ADMINISTRATION OF ESTATES & TRUSTS
Wednesday, April 17, 2024 (c) 2020 Mr. Justice R.V. Makaramba 1
 PART ONE
PART TWO
The Concept of
Probate and Courts in Probate PART THREE
and Administration
Administration of Cases Waqf Property
Estates
• Jurisdiction • Meaning
• Basics Concepts • Original
• Applicable Laws • Legal Structure
• Appellate
• Succession Regimes • Dealing with • Administration
in Tanzania missing Executors
 PART ONE

The concept of
probate and
administration
of estates
❖Laws Applicable to probate matters

❖ Regimes regulating probate and

administration of estates in Tanzania
 TRUE FACT OF LIFE:

Death is inevitable. 150 years to come none of us

will be around! Such is a true fact of LIFE!

If death is a fact of life, issues of inheritance and

succession may arise with regard to distribution
of your estate (property), if you have one of
course!
✔ If you left a Will, rules of testate succession will
apply to the administration and distribution of
your estate (properties);

✔ If you didn’t leave a Will, as most of us will, some

prescribed set of laws for property (estate)
administration and distribution, i.e. rules of intestate
succession will apply.
 Validity of Marital
Legitimacy
Relationship

No Entitlement to

Pro tal
y
Inheritance

pert
Will

i
Mar
Validity of Deceased
Will Estate/Property
Owner
 The Law
Regulating the
Wishes of the
Dead: Basic
Concepts
"The earth belongs in usufruct to the living; the
dead have neither powers nor rights over it."
"If one generation could bind another, the
dead and not the living would rule.”
Letter from James Madison to Thomas Jefferson, 1789

Thomas Jefferson,
3rd U.S.A. President
Born: April 13, 1743
Died: July 4, 1826
 The rationale for probate law and
administration of estate of
deceased’s property:
“..the dead continue to dictate for
us from the grave long after they
have departed from this world.”
▪ The dead continue to dictate
for us from the grave long
after they have departed from
this world, how they wished
their property to be dealt with
after their death.
▪ The law of succession to property
upon death (testate and intestate),
tasks courts of law with the
inherently difficult problem of
trying to figure out the wishes of the
dead.
• Succession is the right a person or people
have to receive a deceased’s persons assets
(also called the estate) based on the legal
relationship between the people (by birth –
blood relationship (nasab), or marriage – the
marital relationship of Husband (one) and
Wife (one or four or many).
▪ The law of succession is the system of rules that
govern who gets a person’s property when they
die.

▪ Any person born or conceived prior to the

author’s death can be successor.

▪ But the law does not force an individual to accept

an inheritance.
▪ Succession to property after the death of the
estate owner (decedent or de cujus) is
therefore the legal process of passing the
deceased’s property (estate) from one
generation (or, more broadly, from one
person) to the next, which may commence
during a period of incapacity before the
arrival of physical death.
▪ The decedent’s or de cujus death is a condition
precedent for applying for a grant of probate (testate
succession) or of letters of administration (intestate
succession).

▪ The fact of death has to be proved, either

through registration (Death Certificate) or
otherwise (judicial order (presumption of
death).
▪ Administration of estate refers to the
whole process of the personal
representative (administrator or
executor) getting the power by the
court to administer the deceased
estate immediately after the
deceased’s death.
 • The legal representative of a deceased
person’s estate gets the power by the court to
administer the deceased’s estate through a
“grant of representation”:

✔ If there is a Will - Testate Succession, the

EXECUTOR applies for a “Grant of
Probate”
✔ If Executor is Unwilling or Unable, the
court appoints a “personal
administrator.’

✔ If there is no Will - Intestate

Succession, the ADMINISTRATOR,
applies for a “Grant of Letters of
Administration.”
▪ A “grant of representation” is a document,
generally issued by a court, that officially
recognizes the right of an executor or
administrator to administer an estate.

▪ The discussion focuses on the practice and

procedure in the Grant of Letters of
Administration and Probate.
▪ “Letters of administration”
authorizes an administrator to
administer an estate, where the
deceased died without leaving a
Will (i.e. he died intestate).
▪ An “Administrator“ is therefore a
person appointed by a court of
competent jurisdiction to administer
the estate of a deceased person when
there is no executor or no executor
is “able and willing to act.”
▪ A court grants letters of administration
where the deceased does not leave a will and
grants letters of administration with the
will annexed where the deceased leaves a
will that does not appoint an executor or
appoints executors who are unable or
unwilling to act.
▪ “Probate" means the copy of a will, or,
in the case of an oral will, a statement
of the contents thereof, certified under
the seal of the court, with a grant of
administration to the estate of the
testator.
▪ “Will" (testamentum) means the
legal declaration of the intentions
of a testator/testatrix with respect to
his/her property, which he/she
desires to be carried into effect
after his/her death.
▪ “Executor" means a person
to whom the execution of the
last will of a deceased person
is, by the testator's
appointment, confided.
▪ “Codicil” is an addition or supplement that explains,
modifies, or revokes a will or part of one.

▪ It is a testamentary or supplementary document that

amends an existing will, but does not replace it.

▪ It allows its maker to change his or her will without

making an entirely new will.
 ▪ In “probate practice”, legal practitioners may
have to contend with some systemic problems
including but not limited to the following:

✔ Lack of uniform law of succession in Tanzania;

✔ Existence of multiple succession regimes

(customary, Islamic, Hindu and state law;
✔ Cumbersome technical rules of
procedure and legal jargon; and

✔ Multitude of forms and

precedents.
Practitioners’ Concern: How
to navigate the probate
Legal Labyrinth
▪ The field of law is known for its
complexity, with stacks of case files,
legal precedents, and intricate laws –
substantive and procedural.

▪ The law of probate and

administration of estates is no
exception.
▪In the complex realm of probate and administration
disputes, knowing the appropriate legal forum for
resolution is paramount.

▪As parties and their legal representatives grapple

with a myriad of probate issues, the decision to
pursue justice through either the High Court or the
Magistrates’ Courts (which comprise of the Primary
Court, District Court and District Delegate) becomes
crucial.
 Some Practice Tips
▪ Satisfy yourself as to original or certified copy of the
deceased’s death certificate or a judicial order, in the case
of presumed death.

▪ Inquire about the deceased’s domicile at the time of his/her

death; his/her tribe and religion, if any; the situs of the
deceased’s property; and any wife/wives, spouse,
“children” and his/her other relatives.
▪ Inquire as to whether the deceased left
a will or died without leaving a will;
and inspect the Will to ensure that it is
the original copy.

▪ Be certain if there are no any other Wills

or Codicils.
▪ Satisfy yourself as to the personal
standing of the petitioner/applicant;
and if there is a Will, that he or she is the
one appointed in it as executor(s),
and/or whether he or she is a person
with “interest in the deceased’s estate.”
▪ Although not a legal requirement, if a
Clan Meeting has been convened and
any minutes thereof, and if applicant
was the one nominated by the Clan to
apply for administration of the
deceased’s estate.
▪ Be certain on the procedure to be followed for
applying for a grant of representation; and the
court to be approached for such grant.

▪ Peruse and read the relevant applicable laws

and case law, if any, on the subject matter of
your case.
▪ Practice Directive: If you are practicing in
Dar es Salaam, all probate and administration
causes and matrimonial matters and civil
matters relating to child care, protection and
maintenance originating from Dar es Salaam
Region have to be filed at the Temeke One
Stop Judicial Centre.
 “Establishment of One-Stop Judicial Centre

THE JUDICATURE AND APPLICATION OF LAWS (ONE-STOP

JUDICIAL CENTRE OF TEMEKE) (ESTABLISHMENT)
(AMENDMENT) ORDER, 2023, GOVERNMENT NOTICE NO.
794 published on 3/11/2023

The Judicature and Application of Laws (One-Stop Judicial

Centre of Temeke) (Establishment) Order, GN No. 640 of
2021
 ONE STOP JUDICIAL CENTRE FOR PROBATE AND
ADMINISTRATION CAUSES AND FAMILY MATTERS

2. There is hereby established the One-Stop

Judicial Centre of Temeke at Temeke High Court
Sub-Registry for purposes of speedy and effective
trial of probate and administration causes,
matrimonial matters and civil matters relating to
child care, protection and maintenance originating
from Dar es Salaam Region.”
 Just Remember:

“What any person in the world can

learn, almost all persons can learn if
provided with appropriate prior and
current conditions of learning.”
– Benjamin Bloom.
 ary Decedent’s
mm
S u Death
In
If No Will
If a Will (Testate) (Intestate)

Competent
Court

Grant of Grant of Letters

Deceased’s
estate of
Probate Administration
Legal Heirs
Process of administration of deceased’s estate
(c) 2021 R.V. Makaramba J Rtd 42
 ▪ Under our “probate laws’, whether intestate or
testate succession, the “competent court” has to be
moved by application for a “grant”:

✔ For intestate succession: by a “Petition for a Grant

for Letters of Administration.”

✔ For testate succession: by a “Petition for Grant of

Probate.”
43
*Laws Applicable to
probate matters
 Applicable Laws
▪ The Local Customary Law (Declaration) (No.4)
Order, G.N. No.436/1963, Second Schedule, Laws on
Inheritance [Sheria za Urithi & Mirathi]; First
Schedule - Laws on Guardianship (Sheria za Ulinzi)

▪ The Local Customary Law (Declaration) Order, G.N.

No. 279/1963 First Schedule, Laws of Persons [Sheria
Zinazohusu Hali ya Watu]
▪ The Judicature and Application of Laws Act, Cap. 358 R.E.
2019 – s.11(c)(ii) “law of a tribe”, “law of a community” and
s.2(3) – “reception clause”, on application of the “principles
of the common law, doctrines of equity and statutes of
general application.”
▪ The Statements of Islamic Law; G.N. No. 222/1967 made
under the Islamic Law Restatement Act s.48(1)(c), [Cap. 375
R.E. 2002] – Although the Islamic Statements were never
been brought into force, as per Adamu Mtondo v. Likuna
Omari (1968) H.C.D. 289 they are helpful as a guide.
▪ The Probate and Administration of Estates Act,
Cap. 352 R.E. 2002, s.88(1)(a) and 88(2)
Cap.352 R.E. 2002 – on conflict of law test for
“small estates” and the Probate Rules.

▪ The Succession (Non-Christian Asiatics) Act,

s.6(1), Cap.28 R.E. 2002 - the law of the religion
professed by Non-Christian Asiatics.
▪ The Hindu Wills Act, 1870 - this Act has
been disapplied by the Judicature and
Application of Laws Act, Cap.358 R.E. 2002
[now Cap.358 R.E. 2019]

▪ The Indian Laws (Application)

Ordinance (Cap. 2)
• The Indian Succession Act, 1865 [Act No. X of 1865)
– Parts XXIX to XL (inclusive) and section 333 of the
Act were disapplied under section 165 of the Probate
and Administration of Estates Act, Cap. 352 R.E. 2002.

• Some of the common law principles on the law of wills

codified under the Wills Act of 1837 of England are
also found in the Indian Succession Act.
• The UK Wills Act of 1837, CHAPTER 26 7 Will 4 and
1 Vict. [3rd July 1837]. Available at
• https://www.legislation.gov.uk/ukpga/Will4and1Vic
t/7/26/data.pdf

• This Act codifies the common law principles on the

law of wills as applicable in England and as are
relevant to Tanzania by virtue of section 2(3) of the
JALA and the proviso thereto.
* Regimes regulating probate
and administration of estates
in Tanzania
 Customary/ Religious-ba
tradition-base sed system of
d succession
succession
system
Succession
regimes

Received/St Common
ate Laws law
principles
 Customary/ ▪ Customary Personal law od Succession
tradition-base ▪ Patrilineal tribes codified: Local Customary
Law Declaration (No.4) Order G.N. 436 &
d succession
of 279 of 1963
system ▪ Matrilineal tribes: uncodified

▪ Islamic/Muslim Personal aw of succession:

Sunni (Hanbali, Hanafii, Shafii and Maliki);
Religious-bas Shia
▪ Hindu Personal law of Succession
ed system of
▪ Non-Christian Asiatic Personal Law of
succession Succession
▪ Christian Personal Law of Succession
 ▪ Indian Laws (Application) Ordinance Cap.2
Received/ ▪ Indian law of Succession Act, 1865
State ▪ Hindu Wills Act, 1870
Laws ▪ Wills Act (UK), 1873

▪Common law principles

Common
▪Doctrines of Equity
law ▪Statutes of general application
 SUCCESSION LEGAL REGIMES

❑ Customs-based systems:
✔ Patrilineal tribes – codified - G.N.
No.436/1963 & G.N. No. 279/1963

✔ Matrilineal tribes – uncodified – has to

be proved as fact.
❑ Religious beliefs-based systems:

✔ The Islamic Law of Succession

▪ Sunni [Hanafi, Hanbali, Maliki & Shafii]

▪ Shiat (Ithna Ashery, Zaidia, Ahmadiyya

✔ The Hindu Law of Succession
▪ The Hindu Wills Act of 1870
▪ The Hindu Wills Act, 1870, Act No. XXI of 1870 – still
applies to Tanzania as per section 14 of Cap.358.
▪ Hindu customary law rules – there is no specific law to apply.
▪ It is codified in the Hindu Succession Act of 1956 (applicable
only to India) as amended by the Hindu Succession
(Amendment) Act, 2005 (Act No.39 of 2005).

✔ See Charan Singh Chadha and Another versus Mohinder Singh

Chadha and Others [1961] EACA 637.
✔ The issue is where a Christian has converted to Islam
or Hinduism, whether the convert could elect to be
governed by the old law (i.e. before the conversion).

✔ In the case Kamawati vs Digbijai Singh (1922) 24

BOMLR 626 (21 June, 1921) the Privy Council
(Shaw J.) held that, the old law ceases to be applicable
with regard to inheritance i.e. succession.
@https://indiankanoon.org/doc/835549/
✔ The Non-Christian Asiatic Law of Succession
▪ The Succession (Non-Christian Asiatics) Act
✔ The Christians (and Europeans) Law of
Succession
▪ The Indian Succession Act, 1865
▪ https://www.indiacode.nic.in/repealed-act/rep
ealed_act_documents/A1865-10.pdf
▪ The Indian Succession Act of 1865 Act applies to testate
and intestate succession of “natives” and non-natives
(Europeans) and any person dying professing the Christian
religion – i.e. a person who professes any form of the
Christian religion.

▪ The Act however, does not apply to the estate of a deceased

Moslem (see section 331), neither to the estate of a deceased
person who his or her “way of life” (mode of life test) was
governed by customary law.
As per the Second Schedule to the JALA,
Parts XXIX to XL (inclusive) and section
333 of the Indian Succession Act of 1865 do
not apply in Tanzania.

Some of the contents of Parts XXIX to XL (inclusive)

of the Indian Succession Act have been incorporated
in the Probate and Administration of Estates Act,
Cap.352
On the applicability of the Indian Succession Act to the estate of
a person dying professing Christian religion, (Natives and
Non-natives) see the following decisions:

Pendo Gray (Administratrix of Estate of Gray Davidson vs.

Serafina John A.K.A Piadari John P.C. Probate Civil Appeal
No.10 of 2012. (unreported)

Rev. Florian Katunzi vs. Goodluck Kulola & 7 Others P.C. Probate
Appeal No. 2 of 2014.(unreported)

Jeremiah L. Kunsindah vs. Leila John Kunsindah Misc. Civil

Application No.1 of 2017. (unreported)
✔ The Christian law of succession does not recognise
children born out of wedlock; it only deals with legitimate
marriages and legitimate children.

✔ Despite being gender neutral, the Indian Succession Act is

rarely applied in practice.

✔ The Indian Succession Act of 1865 has undergone changes

in India where the 1925 Indian Succession Act now applies
but has remained static in Tanzania, where only certain parts
of it applies.
 Statutory-based Succession Regime
(a) The Indian Succession Act of 1865 as applicable to Tanzania

✔ s.32: “The property of an intestate devolves upon the wife or

husband or upon those who are of the kindred of the deceased, in
the order and according to the rules hereinafter contained in this
Chapter.”

✔ The Act recognizes three types of heirs for Christians: the spouse,
the lineal descendants, and the kindred.
✔ Sections 33, 33-A and 34 of the Act govern succession to
the widow.

✔ Section 35 lays down the rights of the widower of the

deceased.

✔ Section 48, where the intestate has left neither lineal

descendant, nor parent, nor sibling, his property shall be
divided equally among those of his relatives who are in the
nearest degree of kin to him.
✔ Testamentary Succession is dealt with under Part VI
of the Indian Succession Act, 1865.

✔ Part VI of the Act encompasses 134 sections, from

section 57 to section 191, that comprehensively deal
with all issues connected with wills and codicils, and
the making and enforcing of the same, including
capacity to make a will, formalities needed for
wills, bequests which can be validly made etc.
• (b) The UK Wills Act of 1837 CHAPTER 26, 7 Will
rd
4 and 1 Vict. [3 July 1837]. Available at
• https://www.legislation.gov.uk/ukpga/Will4and1Vict/
7/26/data.pdf

• This Act codifies the common law principles on the

law of wills as applicable in England and as are
relevant to Tanzania by virtue of section 2(3) of the
JALA and the proviso thereto.
(c) Succession (Non-Christian Asiatics) Act

- The law of the religion professed by Non-Christian Asiatic

at death.

- The Act deals with the inheritance rights of Non-Christian

Asiatics – domicile or having property situate in the
territory.

(d)The Hindu Wills Act, 1870

✔ Section 2 of the Hindu Wills Act, 1870 made certain portions
of the Indian Succession Act, 1865 by extension apply to
wills of Hindus, Jains, Sikhs and Buddhists
notwithstanding anything contained in section 331 of the
Act.

✔ In so far as the administration of the estate of deceased

Hindus, Jains, Sikhs and Buddhists dying domiciled in
Tanzania or having property in Tanzania, it is only the
High Court of Tanzania which is vested with jurisdiction in
such matters.
In Summary: the Legal Framework on Probate and
Administration of Estates is comprised of:

A: Substantive Laws-
✔ Local Customary Law (Declaration) (No.4) Order and
the Local Customary Law (Declaration) Order
✔ The Judicature and Application of Laws Act
✔ The Statements of Islamic Law
✔ Islamic Law Restatement Act
✔ The Probate and Administration of Estates
Act, Cap. 352 R.E. 2002
✔ The Fifth Schedule to the Magistrates Courts
Act (1984), Cap. 11 R.E. 2019
✔ Succession (Non-Christian Asiatics) Act
✔ The Hindu Wills Act of 1870
✔ The UK Wills Act of 1837
B: Procedural Laws:
✔ Fifth Schedule s.1(1) to the Magistrates’ Courts Act
✔ The Primary Courts (Administration of Estates) Rules, G.N.
No. 49 of 1971
✔ The Judicature and Application of Laws Act (JALA), Cap.
358 R.E. 2002
✔ The Probate and Administration of Estates Act, Cap.352
R.E. 2002 – section 3
✔ Judicature and Application of Laws (One-Stop Judicial
Centre of Temeke) (Establishment) Order, 2021, G.N. No.
640 published on 27/8/2021.
▪ Waziri Maneno Choka Vs Abasi Choka, Civil Appeal
No. 51 of 1999, (CAT)(DSM), Coram: Ramadhani, J.A,
Kaji, J.A and Kileo, J.A). Judgment dated 30/10/2006
(unreported)

▪ Islamic testamentary disposition may not exceed a

third of the estate. This rule applies irrespective of
whether the disposition is to an heir recognized under
Muslim law or a stranger.
▪ See Naima Ibrahim as a Trustee of Mahamud Abdurasul
Ismail vs Isaya Tsakiris Civil Appeal No. 119 of 2009)
[2011] TZCA 230 (27 May 2011)
▪ https://tanzlii.org/akn/tz/judgment/tzca/2011/230/eng@2011-05-27
▪ https://tanzlii.org/akn/tz/judgment/tzca/2011/230/eng@2011-05-27/source.pdf

▪ On validity of Islamic will – a Moslem cannot bequeath

more than 1/3 of the estate. The will is not invalid, it
does not take effect. The 2/3 will go by intestate rules of
succession under Islamic law.
▪ Rebeca Z. Gyumi v. Attorney General, Miscellaneous
Civil Case No.5 of 2016, (High Court of Tanzania) (Dar
es Salaam). On the legal age of marriage.

▪ Judith Patrick Kyamba v. Tunsume Mwimbe and 3

Others. Probate and Administration Cause No. 50 of
2016 (HCT) (DSM) Mlyambina J. (unreported) (dated
28/05/2020).
▪ On inheritance rights of a child born out of wedlock.
▪ Elizabeth Mohamed v. Adolph John Magesa
Administration Appeal No.14 of 2011
(HCT)(Mwanza)(unreported).. Now reported
in [2016] TLS 114
▪– children born out of wedlock can inherit
from their deceased father’s estate in view
of sections 3, 5(2), 9 and 10 of the Law of the
Child Act, 2009 [CAP.13 R.E. 2019]
 Practice Updates

(1) Practice of Advocates and Public Prosecutors in Primary Courts –

The Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021, Act
No.5 of 2021.

(2) The Language of All Laws and Courts - The Written Laws
(Miscellaneous Amendments) Act, 2021, Act No. 1 of 2021.

✔ Interpretation of Laws (Use of English Language in Courts)

(Circumstances and Conditions) Rules, 2022, G.N, No,66 of 2022) –
Schedule: “Circumstances and Conditions for the Use of
English Language in Courts.”
(3) Matrimonial and Probate and Administration Causes in
Dar es Salaam Region.

✔ Magistrates’ Courts (Variation of the Designation of the

District Court for Matrimonial Matters and Probate and
Administration Causes) Order, 2021, G.N. No. 641
published on 27/8/2021

✔ Judicature and Application of Laws (One-Stop Judicial

Centre of Temeke) (Establishment) Order, 2021, G.N. No.
640 published on 27/8/2021
(4) Court Assessors in Primary Court Proceedings
✔ Written Laws (Miscellaneous Amendments) (No. 3) Act,
2021, Act No. 5 of 2021 - “Part IX Amendment of the
Magistrates’ Courts Act, (Cap. 11).

(5) The Right of Surviving Spouse or Child to Collect Death

Certificate
✔ The Written Laws (Miscellaneous Amendments) (No. 3)
Act, 2021, Act No.5 of 2021, amends section 17 of the
Births and Deaths Registration Act, (CAP. 108)
(6) Matrimonial Property as Part of Inheritance

✔ Theofrida Mhagama vs. Njengafibili Mponjoli Mwaikugile, As the

legal representative of Jackson Reuben Mwaikinda, Civil Appeal
No. 160 of 2020 (CAT) - whether a disputed asset in a probate and
administration cause was a matrimonial property

✔ Bi Hawa Mohamed vs Ally Sefu (Civil Appeal 9 of 1983 [1983]

TZCA 12 - what amounts to “joint contribution towards acquisition
of matrimonial property” by a housewife - household chores of a
housewife.
(7) The Right of Non-Citizen Heirs to Own Land through
Inheritance.
✔ Emmanuel Marangakis as Attorney of Anastasios
Anagnostou vs The Administrator General, Civil Case No. 1
of 2011 (HCT)(DSM)(unreported)- section 20 of the Land
Act - what was prohibited by the Land Act was direct grant
or allocation of land to non-citizens and not ownership by
way of inheritance.
✔ The Written Laws (Miscellaneous Amendments) Act, 2020.
(8) Tax Status of Inherited Money or Property (Deceased’s Estate)

✔ Amounts of income derived by way of gift, bequest or inheritance,

except as required to be included in calculating income are exempt
from income tax – See Schedule to the Income Tax Act, Cap 332
R.E. 2008 on Exempt Amounts –

✔ “1. The following amounts are exempt from income tax –(k)
amounts derived by way of gift, bequest or inheritance, except as
required to be included in calculating income under sections 7(2),
8(2) or 9(2);”
9) Marriage between persons who lack capacity to marry is void ab
initio. The presumption of marriage cannot salvage the situation.
▪ In the matter of the Estate of the Late Dr. Servacius Beda Likwelile
And in the Matter of Application for the Letters of Administration
without Will by Raymond Babu Likwelile And In the Matter of
Caveat by Vicky Paschal Kamata (Probate And Administration
Cause No. 50 of 2021) [2023] TZHC 21069 (15 September 2023).
▪ https://tanzlii.org/akn/tz/judgment/tzhc/2023/21069/eng@2023-0
9-15
▪ https://tanzlii.org/akn/tz/judgment/tzhc/2023/21069/eng@2023-0
9-15/source.pdf
▪ Whether there was legal marriage between the
deceased and the caveator.

▪ The deceased died intestate on 19th February 2021. He

had contracted a civil marriage with one, Mary
Ibrahim in 1986. In 1994 they went through a
Christian marriage ceremony. Mary died on 26th of
April 2020. There is no evidence that their marriage
had been dissolved.
▪ The Caveator claimed that she had contracted a
th
marriage with the deceased on 30 January 2016
and a Marriage Certificate was issued.
▪ Apparently, the person who is claimed to have
officiated at the said marriage ceremony denied
doing so. As it turned out he was not even
authorized to conduct the ceremony.
Take note that;
1. The Administration (Small Estates) Ordinance, Cap.
30 and the Wakf Commissioners Ordinance, no longer
exist in the statute books.

2. Apparently, these two Acts of Parliament have beeb

merged into and form part of the Probate and
Administration of Estates Act, Cap. 352 R.E. 2002.
END OF PART ONE

THANK YOU FOR

YOUR KIND
ATTENTION!
 PART TWO
Courts in probate and
administration cases
❑ Primary Courts – MCA 5 Schedule and G.N.
th

No. 49/1971 – “the Six Forms”; Maagwi Kimito

v. Gibeno Werema [1985] TLR 132 (CA) - status
of customary law.

❑ District Delegate – Cap. 352 & Probate Rules,

1957 – Resident Magistrate in District Court
appointed by the CJ to administer ”small estates.”
❑ High Court – Cap. 352 and Probate Rules, 1957
❑ If 3 years have lapsed, give reasons for the delay.

❑ If there is a Will (testacy) – no grant until after 7 clear

days after death of decedent.

❑ If there is no Will (intestacy) – no grant until after 14

clear days after death decedent.
 Determinants of jurisdiction

▪ The applicable law to the administration and distribution of the

deceased’s estate determines the court’s jurisdiction:

✔ If deceased professed Islam religion (Islamic Law) or if he led

customary way of life (Customary Law) - Primary Court.

✔ If deceased professed Christian religion – the Indian Succession

Act will apply - District Court Delegate and/or High Court.
▪ If the gross value of the estate does not
exceed one hundred million shillings
(Tshs.100,000,000/=) – District Court
presided over by District Delegate, a
Resident Magistrate appoited by CJ -
section 6(1) of the Probate and
Administration of Estates Act, Cap.352 R.E.
2002.
▪ See The Written Laws (Miscellaneous
Amendments)(2) Act, 2016, Act No. 4 of 2016
th
assented on 7 July 2016

• PART XVIII: AMENDMENT OF THE

PROBATE AND ADMINISTRATION OF
ESTATES ACT, (CAP.352) - Amendment of
section 2 https://tanzlii.org/tz/legislation/act/
▪ 55. The principal Act is amended in section 2 by
deleting the definition of the term ’‘small estate"
and substituting for it the following definition-
’‘small estate" means an estate the gross value of
which a court, district court or other authority
having jurisdiction in probate or administration
is satisfied, does not exceed one hundred million
shillings;"
 Pecuniary limitation to courts’ jurisdiction:

✔ “Every suit shall be instituted in the court of the lowest

grade competent to try it” – S.13 CPCA, Cap. 33 R.E.
2022.

✔ Subordinate courts’ pecuniary jurisdiction – The Written

Laws (Miscellaneous Amendments) Act, 2016 amended
s.18(1)(a)(ii) and 40(2)(a)&(b) of MCA Cap.11 R.E. 2019
respectively.
 The Law on Pecuniary Jurisdiction does not apply in Probate
Matters
▪ See The Written Laws (Miscellaneous Amendments) Act,
2016 Act No.3 of 2016 assented on 7th July 2016

▪ Amended section 18 of MCA: from 5,000,000/= to

50,000,000/= and from 3,000,000/= to 30,000,000/=
respectively.

▪ Amended section 40 of MCA with respect to pecuniary

jurisdiction: from 150,00,000/= to 300,000,000/= and from
100,000,000/= to 200,000,000/= respectively.
 Designated Court Civil debt (public) Civil debt (contractual)

Primary Court TZS 50,000,000/= TZS. 30,000,000/=

District Court Immovable Movable property

property TZS. 200,000,000/=
TZS. 300,000,000/=

District Gross value does

Delegate “small not exceed TZS.
estates” 100,000.000/=
▪ Once a matter is governed by customary law or Islamic law, a
Primary Court does not have pecuniary limit over the subject
matter of the suit.

▪ The pecuniary jurisdiction of primary courts in the application of

customary law is provided for under paragraph 2 of the 4th schedule
to the Magistrate’s Court Act, Cap. 11 R.E. 2019.

▪ Under paragraph 3 thereof, a primary court when exercising powers

conferred upon it by s.18 of the Magistrates’ Courts Act may award
any amount claimed in the proceedings of a civil nature.
▪ There is no provision in the law providing for
a pecuniary limit in probate and
administration of estates cases.

▪ The law provides only the minimum value

of the estate for which a primary court
cannot entertain by appointing an
administrator.
▪ Paragraph 1 (2) (b) of the 5 Schedule
th

to the MCA provides that “a primary

court shall not appoint an administrator
of the estate where the gross value of
the estate does not exceed Shs.
1,000/=.”
Whether a primary court can
entertain a probate and
administration matter where the
properties of the deceased’s estate
are situated outside its local limits
of jurisdiction.
▪ According to the law, Primary Courts are vested with
jurisdiction to exercise powers in the administration
of deceased's estate where the deceased, at the time
of his death, had a fixed place of abode within the
local limits of their jurisdiction.

▪ The condition therefore is a place of abode not the

location of properties.
▪ See Sylivia Luhasha vs Fahamu
Valentine Civil Appeal No. 17 OF 2007
(HCT)(DSM)(unreported (Mwarija J. as
he then was)(Judgment of 22/9/2009)
▪ https://media.tanzlii.org/files/judgments/tzhc/
2009/20/2009-tzhc-20.pdf
▪ See The Written Laws (Miscellaneous Amendments)
(No. 3) Act, 2021, Act No.5 of 2021 Assented on 28th
September, 2021.

PART IX AMENDMENT OF THE MAGISTRATES’

COURTS ACT, (CAP. 11)

▪ Repeal of sections 7, 8 and 9 and replacement of

section 7
▪ Proceedings which may require assessors
Amendment of Third Schedule

55. The principal Act is amended in paragraph 37(2) of the

Third Schedule by deleting the words “and the assessors”

The Written Laws (Miscellaneous Amendments) Act, 2021, Act

No. 1 of 2021 Assented on 15th April 2021

PART II AMENDMENT OF THE INTERPRETATION OF

LAWS ACT, (CAP. 1) - Amendment of section 84
• All matrimonial and probate and administration causes in
Dar es Salaam Region now have to be filed in Temeke
OSJIC.

See Magistrates’ Courts (Variation of the Designation of the

District Court for Matrimonial Matters and Probate and
Administration Causes) Order, 2021, G.N. No. 641 published
on 27/8/2021

See Judicature and Application of Laws (One-Stop Judicial

Centre of Temeke) (Establishment) Order, 2021, G.N. No. 640
published on 27/8/2021
▪ Surviving spouse or child given priority to
collect death certificate

▪ The Written Laws (Miscellaneous Amendments)

(No. 3) Act, 2021, Act No.5 of 2021 Assented to
th
on 28 September, 2021: PART III
AMENDMENT OF THE BIRTHS AND
DEATHS REGISTRATION ACT, (CAP. 108),
amended section 17
 Practice Challenges

▪ The law allowing Advocates and Public Prosecutors to

practice in Primary Courts will send legal practitioners
“back to school” to learn about the practice and procedures
applicable in Primary Courts.

▪ See Kanuni za Mawakili na Waendesha Mashtaka Katika

Mahakama za Mwanzo za Mwaka 2023 G.N. No.168 of
10/3/2023 issued by the CJ.
 Jurisdiction of a Primary Court

▪ The Magistrates’ Courts Act, Cap.11 R.E.

2019
✔ Section 18(1)(a)(i)
✔ The Fifth Schedule s.1(1)
✔ The Primary Courts (Administration of
Estates) Rules, G.N. No. 49 of 1971.
▪ Sub-paragraph (2)(a) and (b) of paragraph 1 of the
Fifth Schedule to the MCA prohibits a Primary Court
from dealing with matters for which Cap.352 applies
or of which the administration is undertaken by the
Administrator General’s Power and Functions Act.
▪ See Violet Ishengoma & Jovin Mutabuzi v The
Administrator-General & Udokia Kahaba (1990) TLR
(CAT)
▪ The Judicature and Application of Laws Act
(JALA), Cap. 358 R.E. 2002

▪ Section 11(3) – courts “to apply the customary law

prevailing within the area of its local jurisdiction.”

▪ “If there is more than one such law, the law applicable
in the area in which the act, transaction, or matter
occurred or arose.”
▪ The Magistrates' Courts (Primary Courts)
(Judgment of Court) Rules, G.N. No. 2 of 1988.

▪ The Probate and Administration of Estates Act,

Cap.352 R.E. 2002 – section 3

▪ The Magistrates' Courts (Rules of Evidence in

Primary Courts) Regulations G.Ns. Nos. 22 of
1964; 66 of 1972
▪ The Magistrates' Courts (Civil
Procedure in Primary Courts) Rules.

▪ The Magistrates' Courts (Limitation of

Proceedings Under Customary Law)
Rules, G.N. No. 311 of 1964
▪ The Magistrates Court (Approved Forms for
the Primary Court) Rules, 2020, G.N. No. 943
Published on 6/11/2020

▪ Magistrates’ Courts (Powers of the Primary

Court in Matrimonial Matters and Probate and
Administration Causes) Rules, 2021, G..N.
No. 639 published on 27/8/2021
▪ Magistrates’ Courts (Variation of the Designation
of the District Court for Matrimonial Matters and
Probate and Administration Causes) Order, 2021,
G.N. No.641 published on 27/8/2021.

▪ Judicature and Application of Laws (One-Stop

Judicial Centre of Temeke) (Establishment) Order,
2021, G.N. No. 640 published on 27/8/2021
▪ High Court Registries (Amendment) Rules,
2021, G.N. No.638 Published On 27/8/2021

▪ The Judicature and Application of Laws

(Criminal Appeals and Revisions in
Proceedings Originating from Primary Courts)
Rules, 2021, G.N. No.390 published on
14/5/2021
The General Jurisdiction of Primary Court

▪ Under section 18(1)(a)(i) of the Magistrates’

Courts Act

▪ A Primary Court is vested with jurisdiction to

entertain civil matters where the relevant
law is customary law or Islamic law.
Section 18(1)(a)(i) of MCA states:
▪ 18.-(1) A primary court shall have and exercise
jurisdiction
▪ (a) in all proceedings of a civil nature-
▪ (i) where the law applicable is customary law
or Islamic law:
▪ Provided that no primary court shall have
jurisdiction in any proceedings of a civil
nature relating to land;
▪ (c) in all proceedings in respect of which jurisdiction is
conferred on a primary court by the First Schedule to this
Act;

▪ (2) The Chief Justice may, by order published in the Gazette,

confer upon a primary court jurisdiction in the
administration of deceased’s estates where the law applicable
to the administration or distribution of, or the succession to,
the estate is customary law or, save as provided in subsection
(1) of this section, Islamic law.
Special Jurisdiction of Primary Courts

▪ As per section 19(1) of the Magistrates’ Courts Act, the

practice and procedure of Primary Courts in probate
and administration of estates shall be regulated under
the Fifth Schedule to the Act.

▪ See Scolastica Benedict v. Martin Benedict Benedict

[1993] TLR 22.
▪ Section 19(1)(c) of the Magistrates’ Courts
Act stipulates that:

▪ 19.-(1) The practice and procedure of

primary courts shall be regulated and,
subject to the provisions of any law for the
time being in force, their powers limited-
▪ (c) in the exercise of their jurisdiction in the
administration of estates by the provisions of
the Fifth Schedule to this Act, and, in matters of
practice and procedure, by rules of court for
primary courts which are not inconsistent
therewith; and the said Code and Schedules shall
apply thereto and for the regulation of such other
matters as are provided for therein.
▪ (2) The Chief Justice may upon consultation with the
Minister, make regulations prescribing the rules of
evidence applicable in primary courts and subject to
any regulations, a primary court may accept such
evidence as is pertinent and such proof as appears
to be worthy of belief, according to the rule thereof
and notwithstanding any other law relating to evidence
or proof.
• Rule 1(1) of the Fifth Schedule provides for
the specific jurisdiction of the Primary
court in administration of estate where the
applicable law is Islamic law or Customary
Law.

• See the decision in Ibrahimu Kusaga v.

Emanuel Mweta [1986] TLR 26.
▪ Rule 1(1) of the Fifth Schedule stipulates that:

▪ 1.-(l) The jurisdiction of a primary court in the administration of

deceased’s estates, where the law applicable to the administration
or distribution or the succession to, the estate is customary law or
Islamic law, may be exercised in cases where the deceased at the
time of his death, had a fixed place of abode within the local limits
of the court's jurisdiction:
▪
▪ Provided that, nothing in this paragraph shall derogate from the
jurisdiction of a primary court in any proceedings transferred to such
court under Part V of this Act.
▪ Issue: whether a Primary Court can exercise
jurisdiction in administration of estate where the
property is a surveyed land.

▪ See section 18 of MCA with respect to general

jurisdiction and section 19 with regard to special
and exclusive jurisdiction of P.C.
 Factors determining Primary Court’s jurisdiction in
administration of deceased’s estates:

1. Whether the law applicable is customary law or Islamic

law;

2. Whether the deceased at the time of his death, had

a fixed place of abode within the local limits of
the court's jurisdiction,
3. Whether the Probate and Administration of
Estates Act is applicable or whether a grant of
administration has been made thereunder, or
whether the administration is undertaken by the
Administrator-General under the
Administrator-General (Powers and Functions)
Act.
 A CASE STUDY

▪ The deceased had two wives, one in Dar es Salaam and

another in London. And had several properties situated both
in Dar es Salaam and in London. The deceased died intestate
in London. The wife in Dar es Salaam applied for grant of
letters of administration in the Sinza Primary Court. The
Court granted the application and appointed her as
administrator of the deceased’s estate.

WHAT WOULD BE YOUR LEGAL OPINION ON THIS

MATTER?
▪ In exercising its special and exclusive
jurisdiction in administration of estate
of a deceased person, a Primary court is
vested with powers under Rule 2(a), (b)
and (c) of the Fifth Schedule to appoint
administrators or revoke such
appointment.
▪ The decision in Sekunda Mwambo v.
Rose Ramadhani [2004] TLR 439
demonstrates the powers conferred on a
primary court in appointing or revoking
the appointment of an administrator of
estate of a deceased person.
The Fifth Schedule to the
Magistrates’ Courts Act is to be read
together with the Primary Court
(Administration of Estates) Rules,
G.N. No. 49/1971 – the Rules.
G.N. No. 49/1971

▪ Rule 5: powers and role of the administrator.

▪ Rule 6: powers of administrator to sue and be sued

on behalf of the estate.

▪ Rule 8: accountability of the administrator in event

of misappropriating the property of the deceased’s
estate.
Primary Court Probate and Administration of Estates Forms:

The Rules provide for six basic forms in the process of

administration of estate in the Primary Court, namely;
✔ Form No. I
✔ Form No. II
✔ Form No. III
✔ Form No. IV
✔ Form No. V
✔ Form No. VI
▪ Form No. I: for providing the basic and necessary
information regarding the deceased’s property, his heirs
and whether or not the deceased left a will.

▪ This Form provides critical information pertaining to

the jurisdiction of the court and the law applicable:
date of death, religion and tribe of the deceased,
fixed place of abode (domicile), and situs of the
deceased’s properties.
▪ Form No. II: citation issued by the court on
the basis of the information contained in
Form No. I.

▪ In terms of Regulation 5(2) and (4) of the Rules –

it provides all interested parties with
information of the date of hearing of the
matter.
▪ The practice previously was for the
Notice to the general public (citation) to
remain in force for ninety days (90) but
vide Principal Judge’s Circular, it the
period was reduced to only twenty-one
days (21).
▪ Upon expiry of the notice period, the court
will proceed to determine the application
including objection(s), if any.

▪ In the course of the hearing, the trial

Magistrate has to ascertain certain information
pertaining to the matter as stated in Form No.
I.
▪ Form No. III: provides for a bond.

▪ Form IV: is grant of administration.

▪ Form No. V: inventory to be filed by the

administrator within 4 months of his appointment.

▪ Form no. VI: statement of accounts.

 Appeals
▪ From Primary Court to District Court
▪ Magistrates’ Courts Act, Cap. 11 R..E 2022 – s.20(1)(d)
▪ Magistrates Courts (Civil Procedure in Primary Courts) Rules
G.N. No. 310 of 1964
▪ Civil Procedure (Appeals in Proceedings Originating from
Primary Courts)Rules G.N. No. 312 of 1964
▪ See Matrimonial Appeal No.11 of 2022 Timothi Chalila vs
Tabitha Ndunguru (HCT)(Tanga)(Manyanda J.)(28.04.2023
▪ https://tanzlii.org/akn/tz/judgment/tzhc/2023/17086/eng@20
23-04-28/source.pdf
▪ The Customary Law (Limitation of Proceedings) Rules, G.N.
No. 311 of 1964;
▪ From District Court to High Court
▪ Civil Procedure Code Act, Cap. 33 R.E. 2022
▪ Order IX r13
▪ Section 70(2)
▪ From High Court to CAT
▪ Original jurisdiction
▪ Appellate jurisdiction
▪ The Court of Appeal Rules, 2009, [GN. No. 368 of 2009
as amended by G. N Nos. 36 of 2010, 362 of 2017, & 344
of 2019] and No. of 2024
▪ The Tanzania Court of Appeal (Amendment) Rules, 2024
(G.N. No.188 of 2024) in March 2024.
Requirement of leave to appeal to the Court of
Appeal
▪ Civil Appeal No. 47 OF 2008 Nasser E. Mwakamboja
Versus Arthur Alfred Mambeta And Mohamed Jaffer Sheik
CAT DSM (5th February,2009
▪ http://elibrary.osg.go.tz/bitstream/handle/123456789/570/Appeal%20without%20leave-%20NASSER%20M
WAKABUJA%20VS.%20ARTHUR%20ALFRED.pdf?sequence=1&isAllowed=y

▪ S.72(1) and 5(1)(b) of the Appellate Jurisdiction Act

considered.
▪ Section 5(1)(b) – on appeal as a matter of right
▪ Whether a decision or a decree of the High Court resulting
from probate and administration proceedings is
appealable with or without leave - Sadiki Abdallah Alawi V
Zulekha Suleman Alawi & another Civil Reference NO. 29 of 1991
CAT (unreported)

▪ SWALEHE JUMA SANGAWE (As administrator of the Estate of

the Late JUMA SWALEHE SANGAWE AND ANOTHER VS.
HALIMA SWALEHE SANGAWE. CIVIL APPEAL NO. 82 OF
2021
▪ http://elibrary.osg.go.tz/bitstream/handle/123456789/1177/37.%20SWALEHE%20JUMA%20SANGAWE%20%28As%
20administrator%20of%20the%20Estate%20of%20the%20Late%20JUMA%20SWALEHE%20SANGAWE%29%20A
ND%20ANOTHER%20VERSUS%20HALIMA%20SWALEHE%20SANGAWE%20CIVIL%20APPEAL%20NO.%20
82%20OF%202021.pdf?sequence=1&isAllowed=y
 The Legal Sector Laws (Miscellaneous Amendments) Act, 2023
PART III: AMENDMENT OF THE APPELATE JURISDICTION
ACT, (CAP. 141)
10. The principal Act is amended in section 5-
(a) by deleting subsection (1) and substituting for it the
following:

“(1) In civil proceedings, except where any other written law

provides otherwise, an appeal shall lie to the Court of Appeal
against every order or decree, including an ex-parte or
preliminary decree made by the High Court, in the exercise of
its original, appellate or revisional jurisdiction.”; and
Section 5 (2) of the Appellate Jurisdiction Act, Cap 141, R.E.
2002
“(2) Notwithstanding the provisions of subsection (1)(c) No
appeal shall lie against any decision or order of the High
Court in any proceedings under Head (c) of Part III of
▪ the Magistrates’ Courts Act unless the High Court certifies
that a point law is involved in the decision or order”
▪ CIVIL APPEAL NO. 104 OF 2009 ZAINABU MWINJUMA
VERSUS HUSSEIN ABDALLAH
(CAT)(Arusha)(15/11/2011)(Oriyo. J.)
▪ http://elibrary.osg.go.tz/bitstream/handle/123456789/698/Appeals%20from%20matters%20from%20Premary%20Coy
rt%20needs%20Certificate%20of%20point%20of%20law-CIVIL%20APPEAL%20NO.%20104%20OF%202009%20-%20JU
DGMENT%20Zainabu%20Mwinjuma%20vs.%20Hussein%20Abdallah.pdf?sequence=1&isAllowed=y
*Dealing with missing executor
▪The executor’s main legal duty is
to pay all the debts of the
deceased and distribute the
estate according to the terms of
the Will.
▪ If no backup executor was selected by the
deceased person, the court will appoint someone
who is appropriate. Usually, this is another
close relative of the deceased.

▪ The appointed person will be called a

personal administrator or an estate
administrator in these situations.
Executor also
named in the
Will as a
Beneficiary.
 What happens when an executor is also named in
the Will as a beneficiary.

▪ If a claim is brought then that person will have two

hats to wear – his/her neutral executor hat and
his/her beneficiary hat.

▪ Only in that person’s capacity as a beneficiary that

person can be entitled to defend any claims that have
been brought.
 Who is a missing executor?

▪ It is that it is an executor who

has proved the will and all
efforts to trace his whereabouts
have provide futile.
▪ Look at the provisions in the Probate and
Administration of Estates, Cap. 352 R.E. 2002, if any,
on how to deal with a “missing executor.”
▪ https://tanzlii.org/akn/tz/act/1963/9/eng@2002-07-31/s
ource.pdf
▪ Unfortunately, er, the Act does not expressly cover a
situation of a “missing executor.”
▪ The Act only deals with “death of sole or surviving
personal representative” under its section 46.
“46. On the death of a sole or sole surviving executor who
has proved the will or of a sole or sole surviving
administrator, letters of administration may be granted in
respect of that part of the estate not fully administered, and
in granting such letters of administration the court shall
apply the same provisions as apply to original grants:
Provided that where one or more executors have proved
the will or letters of administration with the will annexed
have been issued, the court may grant letters of
administration under this section without citing an executor
who has not proved the will.
If a sole or sole surviving executor has proved the will dies

The court may grant letters of administration in respect of

that part of the estate not fully administered
the court shall apply the same provisions as apply to
original grants:
Provided that where one or more executors have proved
the will,
the court may grant letters of administration under this
section without citing an executor who has not proved the
will.
 33. Letters of administration on intestacy

(1) Where the deceased has died intestate, letters of

administration of his estate may be granted to any
person who, according to the rules for the
distribution of the estate of an intestate
applicable in the case of such deceased, would be
entitled to the whole or any part of such
deceased's estate.
 Executor’s conflict of interest:
The Case of Heath v Heath

▪ Timothy Heath was an executor and

beneficiary of his late mother’s estate, Rachel
Heath. In her last will Rachel left her
substantial estate to her 3 sons equally.
▪ Tim brought a claim under the Inheritance
Act and said he deserved more because he
had looked after his mum for many years.

▪ Tim’s two brothers made a claim against him

to have him removed as executor. They were
successful and an independent solicitor was
appointed.
▪ Although this decision was unusual, the
Court thought there was a conflict of
interest because Tim was responsible
for administering an estate in
accordance with his late mother’s will
which he didn’t agree with.
END OF PART TWO

THANK YOU FOR

YOUR KIND
ATTENTION!
 PART THREE
Waqf Property
• Meaning
• Legal Structure
• Administration
 INTRODUCTION TO THE ISLAMIC LAW OF WAQF

▪ Islamic law is recognized as a source of law in

Tanzania
▪ The Institution of Waqf
▪ Meaning
▪ Historical Evolution
▪ Legal Structure: Creation, Forms, Conditions for
Validity, Participants

▪ Administration of Waqf Property in Tanzania

 Secularism and Freedom of Worship and Religion

▪ Tanzania is a secular sovereign state.

▪ However, the 1977 Constitution of URT, Cap.2 R.E. 2002 as
amended, guarantees freedom of worship and religion as
a human right.

▪ Islamic personal law is also recognized as a source of law

in matters of commerce and banking, marital
relationship, Islamic form of marriage (nikah), Islamic
divorce (talaq), inheritance (mirath/wassiyat)
guardianship and waqf.
 Islamic law is Sacred Law
Schools of Islam:
(1) Sunni:
th
i. Hanafi: Abū Ḥanīfa al-Nuʿmān (8 century CE)
th
ii. Hanbali: Aḥmad ibn Ḥanbal (8 century CE);
th
iii. Maliki: Mālik ibn Anas (8 century CE)
th
iv. Shafii: Muḥammad ibn Idrīs al-Shāfiʿī (8
century CE)
(2) Shiat:
▪ Ithna-Ashery, Zaidiyya, Ahmadia
Four Sources of Islamic Jurisprudence (usul-al-fiqh):
1) The Holy Qur’an – the Word of Allah
revealed by archiangel Gabrielle to the
Prophet
2) Sunna/Hadith/Tradition (Acts and
Sayings of the Prophet)
3) Qiyas (Analogical Reasoning) (Ijthad)
4) Ijma (Scholarly Consensus)
▪ In Islam, Prophet Muhammad (pbuh) was the
last prophet and final messenger of God.

▪ He was born on 12 Rabiulawal (29 August 570 CE),

in Mecca, the third month of the Muslim
calendar.
▪ Due to hostility because of his teachings, he
migrated to Mecca in 622 CE (marks the Hijra).
nd
▪ The prophet died on his 62 birthday in 632 CE.
▪The Prophet was the son of Abdullah ibn Abd
al-Muttalib and Amina bint Wahb.

▪His father, Abdullah, the son of Quraysh

tribal leader Abd al-Muttalib ibn Hashim,
died around the time Muhammad was born.
His mother Amina died when he was six,
leaving Muhammad an orphan. He was
raised under the care of his grandfather, Abd
al-Muttalib, and paternal uncle, Abu Talib.
▪ The Holy Qur’an, Tradition and Ijtihad (Qiyas
and Ijma) are the main sources of Islamic law
which govern and regulate all aspects of a
Muslim’s public and private life.

▪ These laws relate to religious worship,

prohibitions, and all contracts and obligations
that arise in social life such as inheritance,
marriage, divorce, punishments, conduct of war
and the administration of the state.
▪ The science of these religious laws
(jurisprudence) is called Fiqah and the expert in
this field such as a jurist is called a faqih (plural:
fuqaha).

▪ We read that Ijtihad, or the exercise of

independent reasoning (judgement), is a valid
source of Islamic laws in areas where the Holy
Qur’an and the Traditions are not explicit. But
the exercise of this independent
reasoning/judgement can only be left in the
hands of proper scholars of the Holy Qur’an and
▪ The vast majority of Muslims give this right
of independent reasoning to only four
ancient Muslim theologians and jurists who
lived in the first three centuries of Islam.
These four fuqaha are:

▪ Imam Abu Hanifa of Kufa

▪ Imam Malik bin Anas of Medinah
▪ Imam Muhammad al-Shafi of Medinah
▪ Imam Ahmad bin Hanbal of Baghdad
 Meaning of Waqf

▪ In Islam literature, the term Waqf literally means

‘detention or stoppage.’

▪ Awqaf, singular waqf/wakf) is an Arabic word

meaning assets that are donated, bequeathed, or
purchased for being held in perpetual trust for
general or specific charitable causes.
▪Two types of waqf existed: the waqf khairi-an
endowment for an object of a religious or public
nature-and the waqf ahli or dhurri-a family
endowment.

▪The ultimate purpose of the waqf was qurba,

the performance of a work pleasing to God.
Accordingly, even a waqf ahli would ultimately
devolve to a charitable purpose.
▪ The wakf form was commonly used
to endow mosques, buroal sites,
water-wells, colleges, hospitals, and
other charitable institutions, and a
complex body of law emerged to
govern the creation and
administration of these
endowments.
▪ Legally, it is the extinction of the
proprietor's ownership in the thing
dedicated and its detention in the
implied ownership of God in such a
manner that the profits may revert to
and be applied for the benefit of
(hu)mankind (Hanafi school).
▪ As per Syed Shah Muhammad
Kazim vs Syed Abi Saghir And Ors.
on 6 July, 1931 136 Ind Cas 417 waqf
technically means dedication of
some specific property for a pious
purpose or secession of pious
purposes.
▪ According to the accepted doctrine wakf
signifies the extinction of the proprietor's
ownership in the thing dedicated and the
detention of the thing in the implied
ownership of God in such manner that the
profits may revert to and be applied for the
benefit of humankind: (see Baillie and
Grady's Hedaya).
 Waqf: Historical Evolution

▪Muslim jurists developed the waqf as an

unincorporated charitable endowment in the
first three centuries of Islam (the seventh,
eighth, and ninth centuries A.D.).

▪The historical origins of wakf can be traced

back to the direct Hadiths of the founder of
Islam.
▪ The validity of wakfs says the
Ghait-ul-Bayan, is founded on the rule
laid down by the Prophet himself
under the following circumstances,
and handed down in succession (isnad
– line of transmission) by Ibn Auf Nafe
and Ibn Omar as stated in the Jami`
at-Tirmidhi.
▪ Jami` at-Tirmidhi is a collection of hadith compiled
by Imam Abu `Isa Muhammad at-Tirmidhi
(rahimahullah) [9 October 892 CE/209 - 279 AH)]

▪ His collection is unanimously considered to be one of the

six canonical collections of hadith in Sunni Islam (Kutub
as-Sittah) of the Sunnah of the Prophet (pbuh). It contains
roughly 4400 (3,954) hadith (with repetitions) in 46 (51)
books/chapters. He began compiling it after the year 250
A.H. and completed it in 270 A.H.

▪ https://sunnah.com/tirmidhi
‫‪29 Chapters On Inheritance‬‬
‫ﻛﺘﺎب اﻟﻔﺮاﺋﺾ ﻋﻦ رﺳﻮل ﷲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ‬
‫‪2090 to 2115‬‬

‫)‪30 Chapters On Wasaya (Wills and Testament‬‬

‫ﻛﺘﺎب اﻟﻮﺻﺎﯾﺎ ﻋﻦ رﺳﻮل ﷲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ‬
‫‪2116 to 2124‬‬
▪ Omar had acquired a piece of land in (the
canon of) Khaiber and, proceeded to the
Prophet and sought his counsel, to make the
most pious use of it,….(whereupon) the
Prophet declared, 'tie up the property (asl or
corpus) and devote the usufruct to human
beings, and it is not to be sold or made the
subject of gift or inheritance, devote its
produce to your children, your kindred, and
the poor in the way of God’.
▪ In accordance with this rule Omar dedicated the
property in question, and the wakf as an
institution in Islam was thereby born.

▪ The Quran does not enshrine verses on creation of

wakfs.

▪ The essence of wakf, which is charity, however,

may undoubtedly be regarded as one of the
cardinal Quranic Principles.
▪ Based on several hadiths (accounts of
Prophet Muhammad, pbuh), and with
similar elements to practices from
pre-Islamic cultures, the fully-fledged
Islamic legal form of endowment
known as waqf seems to date from
th
the Ninth (9 ) century of Islam.
LEGAL STRUCTURE OF WAQF
 Conditions of Validity of Waqf

▪ Three basic principles governed the

waqf.

▪ The endowment was required to be

irrevocable, perpetual, and
inalienable.
1. Irrevocable:
▪ The owner (waqif, founder), could
retain certain rights as to its
administration, but the endowment
itself was invalid unless irrevocable,
and the waqif was bound by the
terms of the waqf document.
▪ Likewise, the creation of the
waqf could not be made
dependent on the actions of
any third party, nor was a
conventional option clause
permissible.
2. Perpetual (permanent dedication):

▪ The waqf was also perpetual, although the

specific object of the trust need not have
been permanent.

▪ Rather, the requirement of perpetuity

referred to the dedication of the income of
the waqf to charitable purposes.
3. Inalienable:

▪ Waqf property was also inalienable

and could not be the subject of "any
sale, disposition, mortgage, gift,
inheritance, attachment, or any
alienation whatsoever.
Other conditions governed the creation of the
waqf as well.

The waqif, for example, was required:

▪ to be in full possession of his physical and
mental faculties, be of age and a free man.

▪ to have unrestricted ownership of the

property declared waqf.
▪ The property (halal) constituting
the endowment must itself be
tangible and immobile and must
yield income.
▪ Real estate was therefore the
property most commonly made
waqf.
 CASE ON VALIDITY OF WAQF

Hassan Matolla vs. Kadhi wa Msikiti,

Mwinyi Mkuu Street [1985] TLR 53
(HC) (Dar Es Salaam) Ruhumbika J (as he then was).
▪The deceased, a father of only one child
who was living outside the country. He
dedicated “Wakf” of his house to a mosque
for religious purposes.

▪The “wakf” was given conditionally upon

the failure of the deceased’s daughter to
come forward to claim an inheritance. After
his death, the daughter did not show up.
However, a son of the deceased’s
brother applied in a Primary Court
and was granted letters of
administration of the estate of the
deceased. He also claimed the right
to inherit the house of the
deceased.
▪The Primary Court decided that he was entitled
to inherit the estate of the deceased as an heir
under Islamic Law.

▪The Court, however, required him to cash down

TZS. 23,330/= to the mosque in terms of the
“Wakf”, being 1/3 of the value of the house
before he could inherit the house. He appealed
to the High Court against this order.
On appeal, the High Court held as follows:

1. The appellant has the right to inherit the

house and the dedication of the house to
the mosque in the “Wakf” is rendered
non-effective thenceforth by the reason
of the act of the appellant inheriting the
house;
2. The requirement to pay 1/3 of the
value of the house to the mosque would
arise only if the deceased had set up an
unconditional “Wakf” dedicating the
house to the mosque permanently
after his death without the clause
that the house should pass to the
heir when that heir was available.
 Creation of Waqf

▪ Islamic law mandated no particular form to

create a waqf.

▪ It simply required the waqif to indicate

clearly his intention to create the trust and to
specify the charitable purpose to which the
trust would be dedicated.
▪ The waqif could make this declaration
either orally or in writing, and, typically,
he used certain words to express intent.

▪ The waqif need not, however, deliver the property

to its designated trustee, the mutawalli, for the
trust to be valid. 0 The qadi, judge, held the waqf
instrument and was the general overseer of the
administration of the endowment.
Primary Participant in Creation and
Administration of Waqf
▪ The wakif (owner/founder), the mutawalli
(trustee/manager), the Qadi (judicial
officer/overseer), and the beneficiaries
were the primary actors in the creation
and/or administration of the waqf.
 The Trustee/Mutawalli/Manager

▪ Every waqf was required to have a mutawalli,

trustee/manager, the first of whom the
founder ordinarily appointed in the waqf
document.

▪ This trustee/mutawalli/manager implemented

the wishes of the waqif as expressed in the
waqf instrument.
▪ In general, a mutawalli was
required to be male adult
pious Muslim, legally
responsible, and able to carry
out his functions with
knowledge and experience.
▪ Among the primary duties of the
mutawalli/trustee, as described by the
Muslim jurists, were preservation of the
waqf, collection of waqf income,
distribution of that income to the
appropriate beneficiaries, hiring and
firing of subordinates, and resolution of
disputes.
 The Qadi/Judicial Officer
▪ The “local Qadi” served as a general overseer
of awqaf within his jurisdiction.

▪ His power to oversee extended to the

discretion to appoint a mutawalli/trustee in the
event that the waqif neither designated a
mutawalli nor set forth criteria for his
appointment.
 The Beneficiaries
▪ The beneficiaries designated by the waqif were
entitled to share in the usufruct of the waqf.

▪ They were not the owners of the waqf property.

▪ The beneficiaries were to receive the share

allotted them by the waqif, even if one of the
founder's stipulations had to be ignored to ensure
adequate compensation
 THE ADMINISTRATION OF WAQF
PROPERTY IN MAINLAND TANZANIA
 The Legal Framework:
The Probate and Administration of Estates Act,
[Cap. 352 R.E. 2002] – the Long Title provides as
follows:
▪ “An Act to provide for the grant of probates of wills
and letters of administration to the estates of
deceased persons, to make certain provisions with
regard to the powers and duties of executors and
administrators; administration of wakf property;
benevolent payments in Islamic estates, and related
matters.”
PART XV of The Probate and Administration
of Estates Act, CAP. 352 - ss 140-158

S.140. Interpretation

▪ "trustee" includes any person, whether alone

or jointly with another, in control of any
property the subject of a wakf or in receipt
of any rents or profits thereof;
 THE TRUSTEES' INCORPORATION ACT Cap. 318 R.E. 2019

2. Application for incorporation

▪ (1) A trustee or trustees appointed by a body or association

of persons bound together by custom, religion, kinship or
nationality, or established for any religious, educational,
literary, scientific, social or charitable purpose, and any
person or persons holding any property on trust for
any religious, educational, literary, scientific, social or
charitable purpose, may apply to the
Administrator-General for incorporation as a body
corporate.
3. Compulsory incorporation

▪ Notwithstanding section 2, a trustee or

trustees holding property in trust for any
religious, educational, literary, scientific, social
or charitable purposes who has not or have
not been incorporated under any law or
whose incorporation is not provided by any
law, shall apply for incorporation under this
Act.
The Written Laws (Miscellaneous Amendments)
(No.3) Act, 2019 Act No. 9 of 2019
Part IX: Amendment of the Trustee's Incorporation
Act, (Cap. 318)

76. The principal Act is amended by adding

immediately after section 1 the following:

“Interpretation 1A. In this Act, unless the context

requires otherwise-
▪ “trust” means a legal relationship created
by personal acts, by an order of the court
or operation of the law, when specified
property or interests are placed under
the control and management of a trustee
or trustees for the benefit of another
party or parties, called a beneficiary or
beneficiaries, or for purposes specified
under section 2(1), and excludes:
▪ The Registered Trustee of Thaqaafa
Education Foundation vs The Registered
Trustee of Jumaa Mosques Mwanza, Civil
Appeal No. 30 of 2020
(HCT)(Mwanza)(unreported)(Tiganga J,)(
▪ https://media.tanzlii.org/files/judgment
s/tzhc/2021/3614/2021-tzhc-3614_1.pdf
▪ "wakf" means an endowment or
dedication in accordance with Islamic
law of any property within Tanzania
for religious, charitable or benevolent
purposes or for the maintenance and
support of any member of the family
of the person endowing or dedicating
such property;
▪ The law in Tanzania expressly recognizes
the two main forms of waqf; public waqf
(waqf khairi) and private or family waqf
(waqf ahli or dhurri).

▪ This settled legal position followed the

problem that had arisen from the 1894
decision of the Privy Council in the Abul
Fatah case , which declared family waqf as
being invalid.
▪ In Abul Fatah Mahomed Ishak v
Russomoy Dhur Chowdury (1894), an the
Privy Council held that Islamic family
endowment was invalid under
Muhammadan law.

▪ And that such an endowment could only

be valid when substantial benefits were
allocated for charitable purposes.
▪ However, due to strong objection to Abul
Fatah decision, in 1916 the Privy Council in
Ramanadan Chettiar v Vava Levvavi
Marakayar changed its position and held
that family members could benefit from
the endowed property if that was the
secondary and subsidiary object of a
charitable Islamic endowment.
▪ See Abul Fata Mahomed Ishak v
Russomoy Dhur Chowdury accessible
at:
▪ https://warwick.ac.uk/fac/arts/history/
students/modules/archive/sharia/prog
ramme/indianreform/abul_fata_maho
med_ishak_v_russomoy_dhur_chowdh
ry.pdf
▪ See also Mutu K.A. Ramanadham Chettiar
vs Vada Levvai Marakayar on 1 December,
1916 Equivalent citations: (1917) 19 BOMLR
401. Accessible at
▪ file:///C:/Users/User/Downloads/Mutu_K_
A_Ramanadham_Chettiar_vs_Vada_Levva
i_Marakayar_on_1_December_1916.PDF
▪ See also Sharī‘a under the English
Legal System in British India:
Awqāf (Endowments) in the
Making of Anglo-Muhammadan
Law
▪ https://ora.ox.ac.uk/objects/uuid:c8588db9-b6a2-411b-98b2-35ba
9a7a7011/download_file?file_format=application%2Fpdf&safe_fi
lename=THESIS02&type_of_work=Thesis
 The Waqf Institutional Framework: The Wakf
Commission of Tanzania
The Probate and Administration of Estates Act, Cap.352

▪ S.142. Constitution of Wakf Commission

▪ (1) There is hereby constituted a body to be known as
the Wakf Commission of Tanzania.

▪ (2) The Wakf Commission shall consist of not less than

eight persons to be appointed by the President of
whom not less than five shall be Muslim.
▪ (4) Members of the Wakf Commission
shall hold office during the pleasure of the
President.

▪ S. 143. Wakf Commission to be a body

corporate with a common seal, with
perpetual succession; power to sue and
be sued and hold and dispose of property.
▪ S. 145. Register of wakf property and trustees

▪ (3) Whenever a wakf becomes a registrable wakf it

shall continue as a registrable wakf notwithstanding
any change in the nature of the property comprised
therein, or the situation thereof, or any change of
ordinary residence of any of the trustees thereof;

▪ S.146. The Wakf Commission may hold an inquiry

and take over administration of wakfs.
(1) In any case in which it appears to the Wakf
Commission that–

(a) there is no properly constituted trustee of a

wakf; or

(b) any trustee who has acted or is acting in an

improper, unauthorised, or unlawful manner; or

(c) a change of administration of a wakf would be

beneficial to such wakf.
▪ The Wakf Commission upon being moved or
on its own motion, may hold an inquiry and
upon finding any of the above grounds
established may make an order either
declaring that the property the subject of
the wakf shall in future be administered by
the Wakf Commission or appointing some
other person or persons to be a trustee or
trustees and such order shall specify the
property to which it relates.
▪ It seems that there is a possibility,
subject to any law relating to the
registration of land for the time being
in force, of vesting landed property
the subject of a wakf either in the
Wakf Commission or trustees [Section
146(3)(a) & (b) Cap. 352.
▪ In terms of section 146(5) of the Act, any
person aggrieved by an order of the Wakf
Commission made under this section may
appeal to an Appeals Tribunal, to be
appointed by the President for that purpose,
to have the matter reconsidered by the
Appeals Tribunal, and the decision of the
Appeals Tribunal thereon shall be final and
conclusive.
▪ S.147. Trustees of wakfs may be called upon to
produce evidence of proper administration of their
trusts.

▪ S.148. Certain contracts or agreements relating to

wakf property must be sanctioned by Wakf
Commission.

▪ S.149. Titles to wakf property shall not be

acquired by prescription or adverse possession
after commencement of this part.
▪ S.150. How wakf property is to be administered.

▪ (1) Subject to the provisions in subsection (2) of this

section all property the subject of any wakf which is
administered by the Wakf Commission shall be
administered in accordance with the intentions of the
maker of the wakf if such intentions are lawful
according to Islamic law and are capable of being
carried into effect, and whether such intentions are
ascertainable by reference to tradition or by reference
to any other evidence lawfully obtainable.
▪ S. 151. Wakf Commission may dispose of wakf
property in certain circumstances.

▪ S. 152. Permission requisite to build mosques or to

establish cemeteries.
▪ (1) No person who is the dedicator of property as
wakf or a trustee of such property shall build or
cause to be built a mosque or shall establish or
cause to be established a cemetery unless, prior
thereto,…
▪ “…he shall first have obtained the consent
in writing of the Wakf Commission in that
behalf and have satisfied the Wakf
Commission that the proposed mosque or
cemetery is or is about to be so well and
sufficiently endowed as to provide for its
due maintenance and good order.”
Removal of trustee by the Commission:

▪ Under section 146 of Cap. 352, a

mutawalli (trustee) can be removed
from his position by the Wakf
Commission on any of the grounds
stated in that provision.
References and Further Reading
▪ Muslim Family Law in Sub-Saharan Africa:
Colonial Legacies and Post-Colonial
Challenges edited by Shamil Jeppie,
Ebrahim Moosa, Richard L. Roberts,
Amsterdam University Press (AUP), 2019
(389 pages)

▪ Accessible electronically at:

▪ https://web.archive.org/web/20180723001448id_/https://a
rno.uva.nl/cgi/arno/show.cgi?fid=174592
▪ Chapter 9. The Secular State and the State of Islamic Law in
Tanzania by Robert V. Makaramba (pp. 273-303) in Muslim
Family Law in Sub-Saharan Africa: Colonial Legacies and
Post-Colonial Challenges, AUP (2019)

▪ R.V. Makaramba (1991), ‘The Status and Application of Islamic

Law in Tanzania’, East African Law Review, 18: 277.

▪ R.V. Makaramba, ‘The Judicial Application of Islamic Law in

Zanzibar’ (mimeo), East Africana Section, University of Dar es
Salaam Main Library
▪ R.V. Makaramba, Guiding Notes on Probate and Administration of
Estates, First Edition, Tanganyika Law Society, 2021
▪ R.V. Makaramba, Guiding Notes on Trusts as an Estate Planning
Tool, First Edition, Tanganyika Law Society, 2021

▪ N.N.N. Nditi (Jr), Succession and Trusts in Tanzania: Theory, Law

and Practice, 2nd Edition, Juris Publishers Limited, Dar es Salaam,
(2020)

▪ L.M Mlacha, Z.N. Lukumay & D.P. Kinywafu, A Case Digest on

Probate and Administration of Estates in Tanzania, Juris Publishers
Limited, Dar es Salaam, (2021)
END OF PART THREE
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