BHUKORI RAMADHAN MULIMBA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB REGISTRY)

AT MWANZA MISC. LAND APPLICATION NO. 5056 OF 2024

BETWEEN BHUKORI RAMADHAN MULIMBA................................................ APPLICANT

VERSUS AMINA MUHAMED MWIRU................................................. 1st RESPONDENT THE ASSISTANT REGISTRAR OF TITLES.............................. 2nd ESPONDENT

RULING 7th 8c 8th May, 2024 A. MATUMA, J. The Applicant is a registered owner of three plots namely; Plot No. 593 with title No. 108693, Plot No. 595 with title 106895 and Plot No. 597 with title No. 108694 all at Block "B" Ilemela Mwanza City. The first respondent was at one time married to the Applicant's father now the deceased and thus the Applicant's step mother. On 12th July, 2021 the Applicant's father passed away. The Applicant and the 1st Respondent litigated for grant of letters of administration at Arusha Urban Primary Court. Each opposing the other. The Applicant contended that the 1st Respondent had long back in 2008 divorced from his father. i At the end of the day, it was the Applicant who was appointed as administrator of the estate of his late father one Juma Ramadhan Mulimba. The 1st Respondent then decided to enter Caveat in respect of the plots registered in the names of the Applicant herein mentioned claiming interest thereon on the ground that such plots are part of the estate of the late Juma Ramadhan Mulimba, her late husband. The Applicant is now seeking this court under Section 78(4) of the Land Registration Act Cap 334 R: E 2019 to order the respondents to appear and show cause why the caveat entered should not be removed. The respondents were dully served for them to appear and show cause why the Caveat should not be removed for the Applicant to

enjoy the properties without any encumbrances. Even though, at the hearing of this application, the 1st Respondent in person was absent. One Reuben Kishosha learned advocate however appeared and informed the Court that he was sent by advocate Emmanuel Elinami to hold his brief for the 1st Respondent. He was strait forward that the brief he came to hold was only to seek adjournment and pray for time within which the 1st Respondent could file the Counter affidavit. 2 The 2nd Respondent on her part through one Felician Daniel Mseti wrote a letter to this court seeking adjournment on the ground that he had another matter to attend to the Court of Appeal. For reasons recorded in the proceedings, the prayer for adjournment was rejected and the matter ordered to proceed exparte. Mr Anthony Nasimire learned advocate who represented the applicant submitted that the applicant is the lawful owner of the landed property in question which was bought by his parents for him way back on 04/11/1995 as evidenced by the Purchase Contract "annexure BRM 2". By that time the Applicant was still a minor but when he attained the age of majority, he took all necessary steps to register that land into his name through the so- called "upimaji shirikishi" subsequently thereof he acquired certificates of tittles "annexure BRM 3". The learned advocate further submitted that the property at issue is not part

of the estate of the late Juma Ramadhan Mulimba and the 1st Respondent is neither the widow of the deceased because she was divorced. Be it as it may, whether the 1st Respondent is the widow of the late Juma Ramadhan Mulimba and thus interested party in the deceased's estate or not, the question is whether the property in question is part of the deceased's estate or not. This is because the claims of the 1st Respondent is structured on the basis of matrimonial rights on the deceased's estate to the surviving widow. That question cannot be answered and or determined between the 1st Respondent and the Applicant alone in the absence of the administrator of the estate of the deceased who is legally clothed with jurisdiction to ascertain, collect and distribute the estate to the lawful beneficiaries. The caveat was thus wrongly entered. Instead, the 1st Respondent ought to have confronted the administrator of the estate in question and give him all relevant evidence that the properties at issue are part of the deceased's estate. She could also establish her interest in the estate against the administrator of the estate. The caveat therefore is not there to serve any useful purpose because it cannot transfer the property from the Applicant into the deceased's estate nor it gives any authority to the 1st Respondent to use the property. I am aware that the Applicant is also the

administrator of the estate in question but that alone does not empower the 1st Respondent to confront him in his individual capacity. The Applicant should be confronted in both tittles; as the registered owner of the property Tor the purposes of establishing that such property was unlawfully allocated to him, and as 4 administrator of the estate to compel him to collect the alleged properties as part of the estate. All these cannot be done except in a proper forum. With all these stated and the fact that the Respondents did not file their respective Counter affidavits, I find that this application was brought with sufficient cause and should be granted. Under Section 78(4) of the Land Registration Act Cap 334 R.E 2019, I do hereby order the caveat entered against the herein mentioned properties be removed. The same is of no any legal force as of today onwards. The 2nd Respondent is ordered to remove the Caveat from the Register. 5