abdiel reginald mengi benjamin abraham mengi administrators of the estate of the late reginald abraham mengi vs jacqueline ntuyabaliwe mengi 3 others 2023 tzhc 22013 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE MISC. CIVIL APPLICATION NO.44 OF 2022 (Arising from the decision of this court) fMugeta, J) Dated 11th August 2022 in Civil Revision No. 1 of 2022 ABDIEL REGINALD MENGI AND BENJAMIN ABRAHAM MENGI (Administrators of the Estate of the fate Reginaid Abraham Mengi).......... .................. APPLICANTS VERSUS JACQUELINE NTUYABALIWE MENGI.............. 1st RESPONDENT JACQUELINE NTUYABALIWE MENGI as a Next friend of JAYDEN KIHOZA MENGI (a minor)...2nd RESPONDENT JACQUELINE NTUYABALIWE MENGI as a Next friend of RAYAN SAASHISHA MENGI (a minor)........3rd RESPONDENT ABDIEL MENGI AND REGINA MENGI (Administrators of the Estate of the fate Mercy Anna Mengi)..........4th RESPONDENTS RULING 18th August & 29th September 2023 1 Rwizile, J. The application is for leave to appeal to the Court of Appeal against the decision of this court. The application is supported by an affidavit of Abdiel Reginald Mengi one of the applicants. It is preferred under section 5(l)(c) of the Appellate Jurisdiction Act [Cap 141, R.E 2019] and Rule 45(a) of the Court of Appeal Rules, 2009. However, the 1st to 3rd respondents resisted the application. A counter affidavit was filed. The application was orally heard. The applicants, who have been in the service of Mr. Roman Masumbuko of Roman Attorneys submitted that the applicants are applying for leave to appeal to the Court. The learned advocate added, grounds for leave to the Court were stated in the cases of Lightness and 5 Others vs. Said Kasim Chageka, Civil Application No. 450/17 of 2020, and Airtel (T) Ltd vs. KMJ Telecommunications Ltd, Civil Application No. 393/16 of 2021. According to the learned counsel, grounds for leave have been shown under para 16 of the affidavit supporting this application. He argued that there are novel points of law and fact that need the determination of the Court Appeal and so prayed, that the application be granted. Mr. Joseph Rugambwa learned counsel appeared for the 1st 2 to 3rd respondents, while Ms. Tenga, Mfinanga, and Laizer learned counsel appeared for the 4th respondent but did not resist this application. When submitting, Mr. Rugambwa raised a point touching on the competence of this application. He argued that the affidavit supporting this application was taken by one applicant. It is not shown, he insisted, if the other applicant consented to the same and the affidavit does not show it is sworn on his behalf. In his view, this is contrary to the law as held in the case of Mohammed Abdallah Nur and 3 Others vs. Hamad Masauni and 2 Others, Civil Application No. 436/16 of 2023. Submitting on whether leave should or should not be granted, it was his argument that the applicants did not show grounds for which leave should be granted. It was his prayer that it should not be granted. By way of a rejoinder, Mr. Roman was of the view that objections in respect of the affidavit were taken before and dismissed. He said, this point raised now should not be considered. He said the case cited dealt with Rule 49 of the Court of Appeal Rules, which do not apply to this court. I was asked to grant the application. Upon going through the pleadings, it is clear to me that the application arose from a matrimonial cause. I am certain, it is because the decision of this court nullified the deed of settlement in Matrimonial 3 Cause No 18 of 2015. The law that deals with appeals in matrimonial proceedings is the Law of Marriage Act. Section 80(4) of the same provides an automatic right of appeal on a point of law or fact or a mixture of both. It states as hereunder; Any person aggrieved by a decision or order of the High Court in its appellate jurisdiction may appeal therefrom to the Court of Appeal on any ground of law or mixed law and fact. Based on the consideration of the law and the decision of the Court of Appeal in the case of Hermina Nyoni vs. Yeremia Magoti, Civil Appeal No. 61 of 2020, I am of the view that, this rule applies in all matrimonial proceedings whether in appeal or revision. To be specific, I am not aware of the law which bars automatic appeal from a revisional order of the High in Matrimonial proceedings. I take the view that this application was misplaced. It is therefore dismissed. I make no order as to costs. A.K. RWIZILE JUDGE 29.09.2023 4