t AISHA IBRAHIM KILANGI VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MBEYA SUB-REGISTRY

AT MBEYA PC. PROBATE APPEAL NO. 7948 OF 2024 (Arising from the District Court of Mbeya at Mbeya in Civil Appeal No. 10 of2023, Originated from the Primary Court of Mbeya District at Mwanje/wa in Probate Case No. 54 of 2019) AISHA IBRAHIM KILANGI (suing as an Administratrix of the Estates of the Late Marian Pangamawe Mnima........ ................APPELLANT

VERSUS HAWA MOHAMED KILANGI (as Administratrix of the Estates of the late Madaraka Ibrahim Kilangi)............................ 1st RESPONDENT SHAMILA MURALD KILANGI (as Administratrix of the Estates of the Late Madaraka Ibrahim Kilangi).......................... 2nd RESPONDENT

JUDGMENT 23rd July & 27th August, 2024 TIGANGA, J. In this second appeal, Aisha Ibrahim Kilangi (Aisha or the appellant) is suing as administratrix of the estates of the late Mariam Pangamawe Mnima. Previously, in the two lower courts; Mwanjelwa Primary Court and the District Court of Mbeya, Aisha was suing under Power of Attorney from the same Mariam Pangamawe Mnima. To appreciate the genesis of the instant appeal, I find it appropriate to briefly narrate the background of the matter as gathered i from the record. Briefly stated Madaraka Ibrahim Kilangi (the deceased) died intestate in 2019, living behind innumerable properties. The deceased was survived by two wives (Hawa Mohamed Kilangi and Shamila Mulad Haji, now the administratrix of the estate of the deceased and respondents herein). The two wives and one Mwanakombo Ibrahim Kilangi (sister of the deceased) successfully petitioned for administration of the estates of the deceased before Mwanjelwa Primary Court vide Probate and Administration Cause No. 54 of 2019. It appears the collaboration of the administratrixes did not persist as there were complaints from Hawa Kilangi, one of the administratrixes that Shamila and Mwanakombo were not cooperating with her in collecting and distributing the deceased's estates. Later on, in 2022, Hawa Kilangi and other beneficiaries of the estates applied for revocation of the letters of

administration held by the trio. Among the reasons for the revocation were that Shamila and Mwanakombo were misappropriating the deceased's estates and there was uneven distribution of the properties amongst the beneficiaries of the estate. They claimed that few beneficiaries were given more properties than others. One of the uneven distributions complained of 2 was that the deceased's mother aged 85 years was given three houses, more than 5 cars, and farms. Having considered the evidence of the parties, the Primary Court was satisfied with the reasons put forward for it to revoke the letters. It thus granted the application. It also appointed the respondents herein to take over the office of the administrator of the estate. It further ordered the properties purported to have been already distributed to be returned to the newly appointed administratrixes for re-distribution. The decision was challenged before the District Court through Probate Appeal No. 5 of 2022 by the said Mwanakombo, Shamila, and other beneficiaries. The appeal, however, was dismissed at the earliest stage on the preliminary objection raised by the respondents and conceded by the appellants' counsel that it was time-barred. Surprisingly, though Probate Appeal No. 5 of 2022 was dismissed upon the consensus of the counsel for parties, a second appeal, Probate Appeal No. 19 of 2022 was filed to this Court to

challenge the decision of the District Court which was made on the concession of the respondent therein. As it was for the first appeal, on 26/05/2023 the second appeal was also dismissed for lack of merits. After finalization of the appeal in this Court, the administratrixes returned to the Primary 3 Court to file accounts of the estate and they were availed with more time to complete the distribution of the estates to the heirs. There and then, the administratrixes were reporting to the Primary Court about the distribution processes. In the report, they also complained that one Aisha Ibrahim Kilangi (the appellant herein) had withheld some documents in respect of the properties ordered to be returned to them (administratrixes) for distribution. Thereafter, in July 2023, Aisha under the Power of Attorney from Mariam Pangamawe Mnima approached the Primary Court seeking for revocation of the respondents' letters of administration of the estates. The application was based on two reasons one, that the respondents did not perform their administration duties within the prescribed time, and two, that they have been discriminating against her (Mariam Pangamawe Mnima) for her old age. The Primary Court, having considered the rival submissions by the parties, dismissed the application. It held that the application intended to prolong the administration process and that the applicant did

not show if the application for revocation was in the interest of other beneficiaries as it was not established who would be the administrator if the respondents (wives of the deceased) were revoked. 4 Dissatisfied, under the same power of attorney, the appellant appealed to the District Court. The District Court ordered the matter to be disposed of by way of written submissions. Before the appellant had filed the submissions in chief the Donor/principal of the Power of Attorney passed on. After addressing the District Court on the recourse, the District Court dismissed the matter for lack of locus standi of the appellant. It held that among the reasons for putting to an end the Power of Attorney is the death of the donor, as the Power of Attorney dies with the donor. It further directed the administration process which was halted by the appeal to proceed. It is the same decision of the District Court; the appellant is challenging this appeal after obtaining letters of administration of the estates of the late Mariam Pangamawe Mnima. The appeal is premised on three grounds as follows: - 1. That the first appellate court, erred in law and facts when proceeded to dismiss the Probate Appeal No. 10 of 2023 on the ground that Aisha Ibrahim Kilangi had no locus standi as a done of the Power of Attorney of the late Mariam Pangamawe Mnima, without waiting for the appointment of the personal legal 5 representative of the appellant, who died on the 26th day of December 2023.

2. That the first appellate court erred both in points of law and fact in not determining the reliefs to which the appellant was entitled, the proper relief was to stay the proceedings in Probate Appeal No. 10 of 2023 and let the appointed personal legal representative of the late Mariam Pangamawe Mnima be joined in the case as provided by law.

3. That the first appellate court erred in law and failed to exercise its appellate jurisdiction properly, hence making and delivering an illogical, improper, and unjustifiable decision against the appellant. Owing to the grounds raised, the appellant prayed for an order of nullifying and setting aside the decision of the District Court, an order for an appeal to be determined on merits, and that the appointed legal representative of the late Mariam Pangamawe Mnima be joined in the case. She also prayed for any other order this court may deem fit and just to grant. The appeal was viva voce argued. Mr. Stanslaus Michael, a learned advocate represented the appellant while Mrs. Joyce Kasebwa also a learned advocate represented the respondents. 6 Arguing for the appeal, Mr. Michael combined the 1st and 2nd grounds and argued them together. He contended that the District Court erred when it dismissed the appellant's appeal which was filed under the power of attorney. He stated that as the donor of the Power of Attorney died before the submission was filed and the appellant wrote a letter asking the District Court to stay the proceedings, pending the appointment of the administrator of the estate of the donor, the District Court had to abide by the law by staying the proceedings. According to Mr. Michael, a party to the case does not die with it. To substantiate his argument, he

referred this Court to the decision of the Court of Appeal of Tanzania in The Registered Trusted of Shadhily vs Salim Omary, Civil Application No. 275 of 2016, and, Simon Mtwanga vs Majaliwa Mbande & Another, Civil Appeal No. 293 of 2017. In the two cases, the CAT showed the importance of staying the proceedings up to when the administrator is appointed and joined to the case. On the third ground of appeal, Mr. Michael submitted that the District Court's decision was improper because Rule 12 (1) of the Civil Procedure (Appeal Originating from Primary Court) Rules GN. 312 of 1964, the District Court was bound to stay the proceedings pending the 7 other legal procedure. Mr. Michael concluded by praying the appeal be allowed and ordering the restoration of the appeal in the District Court for it to be heard on merits. In reply, Mrs. Kasebwa for the respondents resisted the appeal. She argued the grounds of appeal in the order argued by Mr. Michael. She supported the District Court's decision to dismiss the appeal on the ground that the Power of Attorney died with the donor. Thus, the case would not have proceeded while the Power of Attorney had ceased. Mrs. Kasebwa distinguished the decisions in Registered Trustee vs Salim Omary, (supra), and Simon Mchangwa vs Majaliwa Bande & Another (supra) cited by Mr. Michael on the reason that in those cases parties to the case were the ones

who passed on, unlike this case where the parties are alive. Since the donor of the Power of Attorney died, then the Power of Attorney died with her, so there was nothing to stay before the District Court. According to her, the matter would not have stayed waiting for the administrator to be appointed as the administrator would have been appointed to administer the estate of Mariam which was not at issue but the deceased's estates. It was Mrs. Kasebwa's view that the late Mariam (donor of a power of attorney) was part of the beneficiary in the case 8 that involved the estate of the late Madaraka Kilangi, and the appellant was advised to go and file a probate case to administer the estate of the deceased Mariam. In the appeal at hand, the appellant appealed against the wives of the late Madaraka Kilangi, and the said wives could not inherit the properties of Mariam who is their mother-in-law. Therefore, it is the Primary Court that can entertain the issue of the probate of Mariam Pangamawe and not this Court, Mrs. Kasebwa argued. Mrs. Kasebwa went on to argue that even if the appellant wants to say that the late Mariam was given some of the properties of the deceased Madaraka. The Primary Court had already ordered the said properties to be returned to the children of the deceased Madaraka. As to the 3rd ground, Mrs. Kasebwa submitted that there was no reason to stay the

proceedings before the District Court because the appellant had no power to continue defending the person who donned the Power of Attorney as the Powers also died with her. In the end, Mrs. Kasebwa prayed for the appeal to be dismissed with costs. In rejoinder submission, Mr. Michael insisted that as they agree that power of attorney dies with the donor, but the donor was a proper party to the Probate Appeal No. 10 of 2023, the remedy was thus, to stay the appeal pending for appointment of legal representative. He also 9 insisted that the cited cases are relevant to the matter at hand. He thus, maintained for the previous prayer that the appeal be allowed. I have considered the grounds of appeal, the rival submissions by the counsel for the parties, and the record of the two lower courts. The three grounds of appeal, in my view, can be conveniently resolved through a single issue of whether the District Court was legally proper when it dismissed the appeal following the death of one of the parties whose appearance was through the power of attorney. It should be noted at the outset that a holder of a power of attorney appears in court on behalf of the person who issues it. That is to say, the relationship between the donor of a power of attorney and the donee (holder of power of attorney) is of principal and agent. See Order III Rule 6 of the Civil Procedure Code, [Cap 33 R.E

2019]. In that regard, anything done by the agent is on behalf of the principal. In this matter therefore, the appellant (Aisha) was a party to the suit in Mwanjelwa Primary Court and the District Court of Mbeya on behalf of Mariam Pangamawe Mnima. As to the issue under consideration, the counsel for the parties are correctly at one, and the District Court rightly held; that a Power of Attorney being a document permitting another person to act on his/her io behalf, during life, when that individual passes away, the document becomes null and void. The contention here is, does the death of a party to a case mean the death of the case? According to Mr. Michael, the answer to the question is in negative on the reason that the law requires the staying of the suit pending for appointment of a legal representative of the deceased party. On the other hand, Mrs. Kasebwa was of the view that it depends on the circumstances of the case. As to this matter, she argued that since the case was about the estates of the late Madaraka, and the deceased donor of the power of attorney was a beneficiary of the estate, upon her death there was nothing that could be in her interest to warrant a stay of the suit. In resolving this issue, being abreast of the matter originated in the Primary Court I have traveled through the rules governing Civil Procedure (Appeal Originating from Primary Courts) and

the Magistrates Courts (Civil Procedure in Primary Court) Rules GNs. Nos. 310 of 1964, and 119 of 1983 respectively, I did not find any provision providing for the procedures of what will done upon the death of a party either in the Primary Court or in the District Court. In that regard, and considering that the matter at hand is of a civil nature an inspiration may be taken li from the Civil Procedure Code [Cap.33 R.E 2019]. That is Order XXII Rule 1 of the CPC which provides that; '7. The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives." (bold emphasis added). The plaintiff referred to the above provision includes the appellant and the suit includes an appeal. See, Order XXII Rule 11 of the CPC. From the above provision, the general rule is that civil cases do not abate for the reason of the death of a party. However, the conditional precedent for that is when the right to sue survives. This means that it is the nature of the claim or the subject matter that determines whether or not the suit abates upon the death of a party. For instance, when a deceased party was suing for recovery of debt, in such a claim the right to sue survives, but if the suit was about a petition of divorce, the right to sue does not survive upon the death of one of the parties to the marriage. Now, the question is whether in the case before the

District Court, there was a surviving right to sue after the death of the donor of the power of Attorney. I agree that in the two cases cited by Mr. Michael, that is The Registered Trustee vs Saiim Omary, (supra), and Simon 12 Mchangwa vs Majaliwa Bande & Another (supra) there were surviving rights to sue, this finding is based on the following instances for instance, in the latter the deceased, second respondent was in the original suit relating to a sale transaction of a landed property. In that regard, the appeal challenging the decision of the original case would not have been justly disposed of in the absence of one of the parties. Thus, the CAT adjourned the appeal pending an interested person to appoint the legal representative of the deceased. To the contrary, in the instant matter, the appellant under the power of attorney of Mariam Pangamawe Mnima (the deceased donor/principal) was just one of the beneficiaries of the estates of the deceased Madaraka. She instituted an application seeking for revocation of the letters of administration that were granted to the respondents. The reasons for revocation were that, the administratrixes/respondents did not complete their duties within the prescribed time and that she was segregated for her old age. Having scrutinized the claim and the counterarguments, the trial Primary Court resolved that the claim was farfetched and

unsubstantiated. It was again resolved that the application intended to unreasonably prolong the administration processes. In that regard, the appeal to the District Court was to 13 challenge that decision. Having considered the nature of the claim that resulted in this appeal and the fact that the late Mariam Pangamawe Mnima gave the power to sue the appellant as the beneficiary of the deceased Madaraka's estates, I am of the considered opinion that the right to sue cannot survive upon her death. The reasons for that finding are not far fetched, One may ask, can a deceased's legal representative still have a right to claim that the deceased was segregated for her old age, or may she still maintain that the administratrixes/respondents' letters of administration be revoked for failure to fulfill their administration duties on time? Further to that, will that be in the interests of justice for other beneficiaries? And can she be in a position to be appointed as the administrator of the estate of the late Madaraka based on the fact that he is appointed as one of the beneficiaries of the late Madaraka's estate? Further to that, if the court finds that the administratrixes did not complete their duty on time and therefore revoke the said letters, will the legal representative be appointed as administrator on the position of those she has asked for revocation? In my strong view, the

answer to these questions is in the negative, and this Court is not prepared to furtherance the protracting of the administration process that is in the hands of the respondents. 14 Therefore, it suffices to find that the right to sue in this case did not survive. Therefore, the district court was justified in halting the proceedings. However, as far as I have no problem with the halting of the proceedings, I have a problem with the kind of order given, it is my considered view that the order for dismissal issued by the District Court was not appropriate to the circumstances of the case. On that, I am guided by the decision in Mabibo Beer Wines & Spirits Limited v. Fair Competition Commission & Others, Civil Application No. 132 of 2015, Court of Appeal of Tanzania at Dar es Salaam (unreported) in which it was held inter alia that, dismissal is ordered where the matter was heard on the merits. As this matter was not heard on merits for it to be dismissed, the appropriate order was to mark the appeal abated the order which I substitute for the dismissal order. In the premises, save for the substituted order, I find the appeal lacking in merits. It is thus, dismissed. Considering the parties' relationship, I make no order as to costs. It is accordingly ordered. 15 DATED and delivered at MBEYA on this 27th day of August 2024. J.C. TIGANGA

JUDGE 16