New Precedent Set in TZ Legal System as Court Rules that Period for Presumption of Death is Seven Years

Though the High Court is not a superior court in the Tanzanian legal system, this ruling in the present time can be taken as a landmark ruling for so many cases of similar nature.

In a strange succession case, the High Court of Tanzania in Dar es Salaam was on December 7, 2021, made to borrow a specific provision from the laws of England in order to presume a person dead in the East African nation.

This is a unique precedent that the High court of Tanzania was made to set because since 1971 only the Law of Marriage Act allowed, or provided, for a presumption of death that was five years.

The Law of Marriage Act had provided that if it appears, or proved, that a person has not been heard for five years by those who might be expected to have heard of him if he were alive, there was a rebuttable presumption that person is dead.

Why did only the Law of Marriage Act allow for the presumption of death? The reasons could be many, but the two major ones were to allow a deserted spouse to apply for divorce and/or contract another marriage on the basis of the said presumed death.

In the case at hand, the above-mentioned reasons did not apply.

Protecting the estate of a husband

In the Matter of the Estate of Chrispine Kanjuna (presumed dead) Miscellaneous Civil Application No. 71 of 2021, a spouse was intending to institute and commence probate and administration cause for the purpose of protecting the estate of her husband namely a house in Ushirombo, in Moshi, Kilimanjaro region and his employment benefits.

In this case, the wife stated that one Chrispine Kajuna (her husband) had gone missing since 2014 without a trace to this day. The husband, who worked at the President’s Office, was diagnosed with mental and other bodily illness and medical practitioners recommended immediate commencement of his treatments.

These facts stated under oath were supported by evidence supplied from Emilio Mzena Memorial Hospital where Chrispine Kajuna was being treated, which showed that he was not good at adhering to medical advice and in taking prescribed medications.

Evidence supported by a letter with Ref No. CCK/361 from the hospital further showed that the husband suffered a mental illness called psychosis, a condition that affects the way one’s brain processes information, leading to confusion and loss of memory.

The wife stated before the court that the family and his employer have tracked him in vain. To cement her arguments, the wife presented letters from her husband’s employer with reference number 0.5/L/1176 of 03/11/2021 which stated that the husband disappeared in 2014.

The High Court also admitted further documents that were a family meeting minutes authorizing the wife to make the applications and a copy of the Habarileo newspaper of October 6, 2021.

The newspaper carried an advert with the husband’s photograph informing about the husband’s disappearance and appealing to anyone with information about his whereabouts to report it to the police.

It must be noted that the laws governing successions in Tanzania do not provide for the grant of letters of administration of estates of deceased persons based on presumptions of death. These laws only govern circumstances where a person is proved dead.

It is for this particular reason that the court was forced to borrow the provision of the Presumption of Death Act, 2013. Under this law, a person is presumed dead if he has not been known to be alive for a period of at least seven years.

A landmark ruling

The Tanzanian legal system allows borrowing or rather importing some provisions from the laws of England or other common law legal systems. The only court empowered with this task is the High Court of Tanzania under Article 108(2) of Tanzania’s constitution.

Though the High Court is not a superior court in the Tanzanian legal system, this ruling in the present time can be taken as a landmark ruling for so many cases of similar nature.

However, it must be noted that unless otherwise provided, this case does not in any anyway rule out the provisions of the Law of Marriage Act since the circumstances of the two cases are not the same.

Emmanuel Mwesiga is experienced in commercial and corporate law transactions and advisory. He can be reached through e.mwesiga@yahoo.com or follow him on Twitter at @EsquireMK. These are the writer’s own opinions and do not necessarily reflect the viewpoints of The Chanzo Initiative. Want to publish in this space? Contact our editors at editor@thechanzo.com for further inquiries.

Emmanuel K. Mwesiga

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