Vicky Kamata case, Probate and administration of estate cause no 50 of 2021.

This case provide issue of right of concubine (presumption of marrige) after the purpoted huband dies intestate. The court had this to say.

🔴The cavetor has lleged th t some properties listed by the petitioner s

shown in this judgment re hers nd so should not constitute the est te of

the dece sed. She w s c st with the duty to prove they re her properties

or re r ther owned by someone else. In the bsence of the evidence, it will

not be simply ssumed th t they do not belong to the dece sed. If the same.

were jointly owned, she h s the duty to prove, for this court to rule in th t

f vour. But the issue before me for determin tion is if she jointly cquired

properties with the dece sed. With respect, I do not think this court is

competent to venture into th t question.

🔴 The re son for believing so wasstarted by this court in Probate nd Administr tion Cause No. 83 of 2020, Inthe matter ofTumsifu Elia Sawe and in the matter of the application for letters of administration of the estate of the Late Tumsifu Elia

Sawe, High Court, One Stop Judici l center, Temeke on  page 4, where it

was held that

‘… it is now

settled that when one spouse dies intestate as in this case,all assets falling in his hands can only be dealt with under the laws of succession. I have no doubt in my mind, the Law of Marriage Act ceases to apply. 

🔴The reasons for holding so are simple, one what constitutes matrimonial assets is defined by the Law ofMarriage Act to include the properties jointly acquired by the spouses during the pendency of

theirmarriage under section 114. Two, fortheproperties to be divided between the spouses, each spouse has to prove and establish the extent of her contribution towards the acquisition ofthe same as in the case of Bi Hawa Muhamed vsAllySeif[1985] TLR

32. 

🔴Third, and perhaps more importantly, in the absence of one.

spouse, there won’t be evidence to establish the contribution ofthe

other deceased spouse, and fourHi, when one spouse dies, the

matrimonialpropertiesjointly

acquired and those in the name ofdie

deceased definitely fall in the estate of the deceased to be distributed

to the deceasedbeneficiaries…”

🔴True to this c se, in order to est blish whether the two jointly cquired the assets, th t ought to be done in the m trimoni l m tter where spouses are in the position to prove when nd how the same properties were cquired.

I therefore do not think, this court is s of now in the position to s y whether

the s me properties were jointly cquired or not. But this does bsolve, the fact that some stage, the cavetor h s ch nce to est blish before the

court with evidence the property th t is in joint ownership for her sh re to

be excluded from the est te of the dece sed. This pplies s well to Bed 

F rms nd Bed Group where the c ve tor st ted she h s 25% nd 50%

respectively nd in the m trimoni l home.

🔴In summary, it has not been proved th t the listed items in the cavearor and the petition do not form the estate of the deceased. In the finall analysis, Im bound to hold th t the caveat falls.

Lastly, this court rules s hereunder;

i. Th t the c ve tor Vicky Paschal Kamatais not the legal wife of the

deceased

ii. That the properties listed in the petition should not be excluded from

the est te of the deceased

iii. Th t the petitioner Raymond Babu Likwelile is ppointed to dminister

the est te of the dece sed

iv. Th t before the gr nt is issued to the dministr tor, he should comply

with rule 66 of the Probate Rules, by providing the dministr tion bond

to be twice the gross value of the est te, which h s been estimated t

4 billion. This is to be done in 14 d ys from the d y of this judgement.

v.

I make no order s to costs.