MENGI 22900

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB- REGISTRY)

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 22900 of 2024 (Arising from Miscellaneous Civil Application No. 26204 of 2023 and Probate and Administration Cause No. 390f 2019Probate and Administration Cause No. 39 of 2019) ABDIEL REGINALD MENGI AND BENJAMIN ABRAHAM MENGI (As Administrators of the estate of the late Dr. REGINALD MENGI) •••• II. II 11 •••• ' •••••• II 1.1. I. II. 111 •••••• 11 •• 1 •••• 1 ••••••••••••••••••••• II 11 ••••••• I •• APPLICANT

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 Ryan Saashisha Mengi (A minor) 3RDRESPONDENT

RULING 30th Oct. & 10th Dec., 2024 DYANSOBERA, J.: In this application, the applicant is seeking indulgence of this court to order stay of the proceedings in Miscellaneous Civil Application NO.26204 of 2023 pending the hearing and determination of Civil Application No. 604 /01 of 2024 and Civil Appeal No. 253 of 2023 pending at the Court of Appeal of Tanzania. Page 1 of 4 The application has been taken out at the instance of M/s Vision and Roman Attorneys for the applicant and is supported by the affidavit of Abdiel Reginald Mengi jointly drawn by Michael J.T. Ngalo and Roman S.L. Masumbuko. The application was resisted by the respondents by way of counter affidavit. On 3rd day of October, 2024 when the application was called on for hearing, Mr. Roman S.L. Masumbuko, learned counsel, represented the applicant while Mr. Audax Kahendaguza Vedasto, learned advocate, stood for the respondents. Taking the floor, counsel for the applicant stated that they are applying for stay of proceedings in Misc. Civil Application No. 26204 of 2023 pending the hearing and determination of Civil Application No. 604/01 of 2024 and Civil Appeal No. 253 of 2024 both which are before the Court of Appeal of Tanzania. The application is supported by the affidavit of Abdiel Reginald Mengi, the applicant which was adopted to form part of the applicant's submission. Expounding the application, counsel for the respondent forcefully submitted that where there are matters before the Court of Appeal, this court cannot determine them as that would be tantamount to terminating the proceedings that are before the Court. In re-enforcing his stance, counsel cited the case of Kanisa la Pentecost Mbeya v. Samson Sikazwe and Others, Civil Appeal No. 210 of 2020 at p.

6. In clarification of the preliminary points, Mr. Roman asserted that there is a pending appeal before the Court of Appeal and at the same time there is at the same Court, a pending application for extension of time to file revision. Counsel further argued that the respondent sued the applicants before Temeke and yet there is another application before this court. It was contended on part of the applicant that the respondents are riding three horses at the same time. Carrying the submission further, counsel for the applicant pointed out that the High which decided the matters in Probate and Administration Cause No. 39 Page 2 of 4 of 2019 on inventory. That decision is being challenged before the Court of Appeal and at the same time, has come to this court. This court was referred to the case of Mohamed Enterprises (T) Ltd v. Masoud Mohamed Nasa, Civil Application No. 33 of 2012 at P.1S. counsel for the applicant was emphatic that the respondents are doing what the Court of Appeal castigated in the cited case. Mr. Roman beseeched the court to stay the proceedings so as to allow the Court of Appeal to proceed with the determination of matters before it. In his submission in reply, Mr. Audax Kahendaguza Vedasto contended that the proceeding to be stayed must be that which was subsequently filed. He pointed out that the respondent's request cannot be legally accommodated as what

the respondent seeks to stay is the matter that was first filed in court. According to him, what is barred is the repetition of hearing the matters which is directly and substantially in issue in the former and subsequent suits. The hearing of this application was conducted in tandem with the hearing of the preliminary objection filed by the applicant who featured in the impugned Miscellaneous Civil Application No. 26204 of 2023 as the respondent. The present respondents were the applicants. In that matter, I granted the stay of the proceedings in Miscellaneous Civil Application No. 26204 of 2023 in the following terms; 'For the foregoing and in the circumstances of the case, I invoke the provision of Section 95 of the Civil Procedure Code and stay these proceedings pending further directions of the Court of Appeal' In the light of the said order, I make a finding that this application has been overtaken by events and is, accordingly, struck out with costs to the respondents. Page 3 of 4

JUDGE 10.12.2024 This ruling is delivered under my hand and the seal of this Court on this 10th day of December, 2024 in the presence of Mr. Fraterine Munale accompanied with Mr. Safari Malata, learned counsel for the applicant and in the presence of Mr. Joseph Rugambwa, learned Advocate for the respondents. ~, 0 y

JUDGE Page 4 of 4