Mwaikusa, J:
This is a second appeal arising from the decision of Kinondoni District Court in respect of an appeal from Manzese Primary Court concerning Probate and B Administration Cause No 57 of 1993. This appeal is principally centered on a dispute over the legality of the deceased's written will that purported to bequeath the deceased's house situate at Sinza within the City of Dar es Salaam to the respondent, one Afra Fuime. The two appellants namely George Anael Mmari and C Anande Anael Mmari, are the children of the deceased, one Anael Kikoka Mmari.
According to the evidence that was adduced before the trial court, the two appellants are the only children surviving the deceased, born of him with two different mothers who were not cohabiting with the deceased at the time of his D death. He died on 30 April 1993. The deceased was then cohabiting with the respondent who had then lived with him for about fifteen years. During his life time the deceased had managed to acquire various properties including the house in dispute. E
It was while the deceased was sick and admitted at Hindu Mandal Hospital within the City of Dar es Salaam that on 25 January 1995 he is said to have drawn up his will by which he purported to bequeath his various properties to his two children and the house in dispute to the respondent. Such will was attested by the F respondent who is the deceased's wife and one Dr Gloria, only. It is this doctor Gloria who was then attending the deceased while hospitalized at Hindu Mandal hospital. As it will have been noted, besides the respondent, the deceased's wife, the will was actually attested by one witness only, the doctor, one Gloria. Yet in G law, according to Rules (5) and (19) of the Local Customary Law (Declaration) (No 4) Order 1963, GN 436/63, Third Schedule, a will drawn up by a literate person, for it to be valid it must be attested besides the wife (wives), by at least two persons of whom one must be a relative of the deceased. That was clearly not complied H with in the will the subject of this appeal. Apparently the validity of such will was challenged by the two appellants before the trial court, but the trial court honoured such will. The will was challenged for want of a clan member to witness it and that the same had been written under undue influence of the respondent while the deceased was seriously sick. I
A Nevertheless, the lower appellate court, (H Kalombola, Esq SRM), surprisingly found that because the Administrator had not disputed such will, then there was nothing wrong with it, and therefore upheld the decision of the Primary Court to give effect to such will. That once more aggrieved the appellants, hence their appeal to this court. B
As pointed out earlier the deceased's will is clearly defective, for want of proper attestation. It lacked one more witness who ought to have been a relative of the deceased. As such it cannot be effected. It is null and void. In the circumstances, the deceased is to be taken to have died intestate and therefore administration of his estate is to be done in accordance with the applicable law, as if he had died intestate. C
Accordingly when this appeal came up for hearing on 2 February 1995, I allowed the appeal, set aside the order of the lower court, declaring the will null and void, with an order that the estate of the deceased should be administered afresh as if D he had died intestate, and that the case should be remitted back to the lower trial court to make necessary orders for the administration of the deceased's estate, reserving my reasons which I hereby give. E
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