carolina hopkin administratix of the estate of the late stella ngalawa vs wilbroad kapufiadministrator of the late anatory kapufi 2023 tzhc 19967 9 august 2023

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. CIVIL APPLICATION NO. 28 OF 2Q22 (Originated from PC Civil Appeal No. 7 of2021 of High Court of Tanzania at Sumbawanga) CAROLINA HOPKIN (Administrator of the estate of tfie late STELLA NGALAWA...................... ............. VERSUS hl ?! WIL BROAD KAPUFI (Administrator of the estate of the late ANATORY KAPUFI............ ................................... ....RESPONDENT RULING 07h & dsh August, 2023..- ■? . MRISHA/J., ''• %•?.>., y(id--" In this case the applicant has filed an application through a Chamber summons supported by an affidavit sworn in the name of Carolina Hopkin. In this application, the applicant prays to this honourable court to i grant her leave and certificate on points of law for her to appeal to the Court of Appeal of Tanzania. When the respondent was served with the Chamber Summons and an affidavit of the applicant, the learned counsel for the respondent replied by filing a counter affidavit along with the notice of preliminary objection on points of law that: i. The application is bad in law for being omnibus/ 11 ii. The application is not specific on what the applicant intends the _• '>'■ S >4-’- •‘ A ■>;if'.- •> ' court to grant to him. , Practically, the preliminary objection was to be heard first. At the hearing, the appellant was represented by Mr. Mathias Budodi, learned advocate whereas, the respondent enjoyed the services of M/s Tunu Mahundi, learned advocate.1 , When the matter was called for hearing of preliminary objection, the applicant conceded the two limbs of preliminary objection that upon reflection, he had noted that the preliminary objection has merit as the application is bad in law for being omnibus and also noted that there are 2 other anomalies in the application, which he referred/cited as Misc. Land Application instead of normal civil registry of the High Court. Moreover, the applicant's counsel indicated that the enabling provision of the application cited was section 5(l)(c) of the Appellate Jurisdiction Act, 1979(the AJA) instead of section 5(2)(c) of the AJA. Finally, he prayed that the instant appeal be struck out without costs, blit with the leave to re-file. In response, Ms. Tunu Mahundi, the learned Advocate did not dispute the . 'wk prayer. However, she prayed to this Court the application without leave to re-file, ' Now, following the concession by the learned advocate for appellant, on the two points of preliminary objection which is based on an omnibus application, and the anomalies shown by the applicant's counsel as well as the prayer that the application be struck out without costs which prayer was not objected by the counsel for respondent, save for the prayer that the application be struck out with leave to re-file; I find that the applicant's prayer has merit and deserves to be answered positively. However, given the nature of the case at hand and the fact that the instant application originates from a pending probate case, I am of the view that 3 denying the applicant leave to refile his application will lead to unnecessary numerous applications and the purpose of having courts of law to dispense justice timely will not be met. Therefore, due to the foregoing reasons, I find that the objection raised by k. the respondent's counsel has merit. The same is hereby sustained. Consequently, the instant application is struck out for being incompetent, and the applicant is granted leave to refile his application with 14 days from the date of this ruling. In the end, taking into account the nature of this case, I make no order as to costs. DATED and delivered at SUMBAWANGA this 9th day of 2023 in the presence of respondent and in the absence of applicant. JUDGE 09.08.2023 4