19891215 TZHC Dar es Salaam

IN Tlfo HIGH CUUl:i.T 0}' '1.1hl\:'.i'.JRiHA AT DAR ES i:iALJ...AN. 1-'C. ClVlL Al-':VtAL i'JG. 82 uF 1987 (From >the Decision_ of Kilosa District Court on Civil· Appeal No. 2~. of 1987) Original Civil Case No: 14 of 1987 of Gairo Pr. Court. ALl!XANI;l;R 1'1HONYA. 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 CO o O O O O .APPBLLANT versus KU.S~LULA Jv1UNING,1.i-i) ·-,·, . , ·, lJAUDI KU.SALULA -: ) ■ 0 0 ■ 0 ■ 0 • ■• r • . . . . • . . . . . R.J!;0PONDENTS · J U D G M :ii; N T MAPIGANO.L J. Al'exander Mnjlonya, the appelJ..ant, is dissatisfied with the judgment of the district -~. court of Kilosa dated 1_9th Uct ober, +987 dismissing his appeal from the Judgment of ·the primary court of Kilosa at Gairo dated 24th July, 1987~ Hence this appear. The a-ppel:1.ant brought a suit in the ~rimary Court against the two respondents Kusalula' I"luningwa and Daudi Kus&lula claiming six head bf cattle and a sum of ~hs. 400/=. He stated that the property had ·been left.behind by his maternal brother, one Nbaigwa Mkwama, who diedint<.:- s.tatec: ·at·Madost Gairo in 1979. ''.l'he two courts below were of the view that the appellant· had no cause of action at all against the respondent. The appe1l~rit would have this c dur.t difier with the lower courts. I am afrafd I, cannot .~ . do .so. Indeed, my opinio,.n ts that this action borders on the vexatious~ "\; . t That must be so because there was overwhelming evidence thb.. ticthe responderi-ts did not inherit; any of the _property left behind. gy the late Mbaigwa 1'1kwama. There was also overwhelming evidence thEt the distrubution of the deceased's estate was not made ' by any of the + respondents but by one Lea I4kwama the sii:. ter of the deceased. And the truth appears to be that the decea::,ed left behind four head of cattle only, one of which was sold in order to defray medical and .. ':'- . funeral expenses. Bo one is bound to wonder why the appellant brought the suit ggainst the respondents. If he.wap at all entitled to a share . proper in the estate, which is doubtful, then he should have sued.,. the person. There is here a complaint thdt the primary court.did not accord L..ppcllo.nt thi sufficient oppor!3ni ty to brin_g all his witnesses to the witness-- -r , . box. This 1allegati_ori cannot be accepted as the app· is giiten the lie by the record. He called two witnesses who gave - 2 - stc. fed thc.t h.:: knl;w nothini; ai:,out this c2,.se. The appel ant fc.il .c:. to brin€, his otht:r "secret witnesses" even when he had bt:'311 gr&.nt~d two adjournrnE:nts a1,d he anilqunced to the court on 19th June·, 1987- • th&t he was dispensing with ti1ose witnesses. Bo his complaint tr •._ t he did noi bet a fair h~aring 6annot be true. -'rhe a:p_Jeal is dis1,1issed arid ·the r0spondeuts are awc.trded ti:. . E::..i::· fulJ.. costs. Delivered to the parties a\ Morogoro. D. P. Ml-i.PIGANO JUDGE. 15th De(;lerriber 1••J:.9_89~ e