CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL No. 21790 OF 2024 (Originating from the decision of the district court of Kinondoni in Probate and Administration Cause No. 8 of 2018) CATHERINE PAUL MOSHI..................................................................... APPLICANT VS GLORIA PAUL MOSHI (The Administratrix of the Estate of Late Paul Moshi Beda).................. RESPONDENT RULING 24th September & 21st October, 2024 BARTHY, J.: The appellant Catherine Paul Moshi aggrieved by the decision of Kinondoni district court arising from the ruling on Probate and Administration Cause No. 8 of 2018, appealed to this court advancing eight grounds of appeal. Before the hearing of the matter, the respondent raised the preliminary objection on one point as follows; The appeal is incompetence and misconceived in law for being grounded on interlocutory order. i At the hearing of the preliminary objection the parties were dully represented. By party's consensus the preliminary objection was disposed of by way of written submissions, save for rejoinder submission was not filed by the respondent's side. In her submission, Ms. Magreth Maggebo, representing the Respondent, argued that the appeal is legally flawed and incompetent because it is based on an interlocutory order. She contended that the law prohibits appeals on such orders, citing section 5(l)(d) of the Appellate Jurisdiction Act [CAP. 141 R.E. 2019]. This provision states that prohibits appeal or application for revision shall lie against or be made in respect of any preliminary or interlocutory decision or order of the High Court. Ms. Maggebo further referred to Ha/sbury's Laws of England (4th Ed.) Vol. 26 para. 506, which defines an interlocutory order as one that does not settle the final rights of the parties and is made before judgment, leaving the core dispute unresolved. Ms. Maggebo contended that the appellant's appeal is merely a tactic to cause unnecessary delays and misuse the court's process. She cited cases such as Jeremia Ushindi and Others vs. Adam Boniventura Chimwenda, Misc. Land Application No. 106 of 2022 (High Court of Tanzania, Dodoma), where 2 the court referred to Shenaz Ismail Noray vs. Dhirajial Mulji Durasa, Land Case Revision No. 23 of 2019 (HC-Land) (unreported). In these cases, the court highlighted the principle that discourages multiple appeals and revisions before the trial tribunal reaches a final determination, in order to avoid causing injustice. Ms. Maggebo emphasized that permitting appeals or revisions on interlocutory decisions that do not conclude the matter would lead to an abuse of the court process and unnecessarily extend the proceedings. Based on these arguments, the respondent's counsel prayed that the preliminary objection be upheld and that the appeal be dismissed with costs. On the appellant's reply to submission, Mr. Joshua Reuben Marwa learned advocate contended that, the respondent's preliminary objection is baseless and serves as a delay tactic in the appeal process. He went further to state that under Section 83(1) of the Probate and Administration of Estates Act, Cap 352, R.E. 2002, the appeal is valid and not an interlocutory order. Mr. Marwa further argued that the application for revocation was independent and concluded the matter, making it a final decision, not interlocutory. He referenced with the case of Lazaro Simon Magela vs. 3 Mwaloni Filling Station and Everlyne Lucas Mushi vs. John Chiwanda Matwanga to support the claim that the current case is not interlocutory and should be heard on its merits. Regarding the cited case of Jeremia Ushindi & Others vs. Adam Boniventura Chimwenda and Shenaz Ismail Noray vs. Dhiraji Mulji Durasa to argue otherwise, Mr. Marwa distinguished the cases as involving preliminary objections and not applicable to the current matter. The appellant concludes by urging the court to overrule the preliminary objection and proceed with the appeal. Before embarking on determining the preliminary objection raised by the respondent's counsel the background of this matter stems from the ruling of the district court's upon dismissing the application to revoke the respondent's appointment as administratrix in Probate and Administration Cause No. 9 of 2018. The appellant was unamused by the said decision and appealed to this court. Having carefully considered the submissions from both sides, the court must now determine whether the preliminary objection raised by the Respondent has merit. The issue is whether the objection, based on the 4 claim that the application is misconceived in law for being founded on an interlocutory order, is valid. The Respondent's counsel, Ms. Maggoti, in support of the objection, cited Section 5(l)(d) of the Appellate Jurisdiction Act [CAP. 141 R.E. 2019]. However, it is a well-established legal principle that a preliminary objection must be based on a pure point of law, not facts that require evidence or further investigation. In this matter, the provision of law cited by Ms. Maggebo requires closer scrutiny. According to the preamble of the Appellate Jurisdiction Act, its purpose is to govern appeals to the Court of Appeal. Therefore, the application of this Act is limited to appeals from the high court to the Court of Appeal. It does not extend to appeals from subordinate courts to the high court, as those are governed by different procedural rules and laws. This distinction is critical because the Ms. Maggebo's reliance on the Appellate Jurisdiction Act to argue that the present matter involves an interlocutory order is misplaced. The provision cited does not apply to appeals from subordinate courts to the high court. The Respondent's counsel has raised the preliminary objection without citing the relevant provision of the law (non-citation). In a similar situation, 5 in the case of Mathias Ndyuki & Others vs Attorney General (Civil Application No. 144 of 2015) [2016] TZCA 207 (14 January 2016), the court observed that the failure to properly move the court by citing the enabling provision rendered the objection incompetent. Therefore, the preliminary objection lacks merit in light of the proper legal framework and is hereby struck out. The application shall proceed to be heard on its merits. It is so ordered. Dated at Temeke this 21st of October, 2024. G. N. BARTHY JUDGE 6