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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA PROBATE APPEAL CASE NO. 1871 OF 2024 (Originates from Probate Appeal Case No. 29/2023, Rungwe District Court at Tukuyu, which emanated from the Decision of Rungwe Primary Court at Tukuyu Probate Cause No. 14/2023) BETWEEN EDWARD MWAKIPESILE…………………….……………..…APPELLANT VERSUS BESTAUN MWAKIPESILE…….………………………….RESPONDENT JUDGMENT Date: 30 August 2024 & 6 September 2024 SINDA, J.: The appellant is challenging the decision of the District Court of Rungwe at Tukuyu (the District Court) that decided against him. The brief facts of the case are that the appellant and the respondent are both related to Johan Mwaisumo Mwakipesile (the Deceased). At a clan meeting, the respondent was appointed to administer the estate of the Deceased. An appointment that was also blessed by Rungwe Primary Court 1 (the Trial Court) after hearing of the case. Soon after, the appellant challenged the appointment of the respondent as an administratix of the Deceased estate at the Trial Court. The Trial Court ruled in favour of the respondent. Aggrieved by the decision of the Trial Court, the appellant unsuccessfully appealed before the District Court. Dissatisfied with the decision of the District Court, the appellant made this appeal on the following grounds: 1. That, both trial court and first appellate court erred both in point of law and facts for failure to consider that the petition for probate was time barred. 2. That, both trial court and appellate court erred both in law and in facts as the evidence on records was not analyzed and proved. 3. That, both trial court and appellate court erred both in law as there was serious illegalities. Hearing of the appeal was by way of oral submissions. At the hearing, the appellant was represented by Mr. Joseph Mwainyekule, learned counsel, and the respondent was represented by Mr. Victor Mkumbe, learned counsel. Mr. Mwainyekule prayed to abandon the second and third grounds of appeal. 2 Arguing on the first ground of appeal, Mr. Mwainyekule submitted that the administratix was appointed to administer the Deceased’s estate after 41 years. He added that the 41 years are out prescribed of time. He referred to Rule 31 (1) & (2) of the Probate Rules and the case of Masanja Luponya vs Elias Lubinza Mashili, P.C Probate Appeal No. 01 of 2020 (High Court at Shinyanga) to support his argument. The learned counsel continued that it is true the question of time limitation was not raised during trial. It has been raised for the first time in the District Court. That, it is trite law, an appellate court cannot allow matters not pleaded in the lower court to be raised on appeal. However, he added, the issue of time limitation is a point of law that can be raised at anytime. For emphasis the counsel cited the case of Yusuf Ismali Akandu vs The Republic, Criminal Appeal No. 623 of 2021 (CAT at Mtwara). In winding up his submission, Mr. Mwainyekule argued that the respondent was supposed to give reasons as to why she filed the matter out of time, and likewise the court was to check on that aspect. In reply to the submission, Mr. Mkumbe adopted what was written in their reply to the petition of appeal. Further, with regards to the cases cited by 3 the appellant, the learned counsel argued that the cases submitted by the appellant’s advocate are on the decision of the District Court on first appeal. That, an appellate court cannot allow matters not taken or pleaded in the court below to be raised on appeal as stated in the case of Kenedy Owino & 2 Others vs R, Criminal Appeal No. 48 of 2006 (unreported). In rejoinder, Mr. Mwainyekule submitted that the case referred to by Mr. Mkumbe, that of Kennedy Owino (supra) should not be considered because the case does not state that a point a law can be raised at any time like it was explained during his submission in chief. That, the case cited by Mr. Mkumbe, Kenedy Owino (supra) is of 2006, while the one he cited, Yusuf Ismali Akandu (Supra) is of 2021. Adding that where there are conflicting decisions then the most recent one must be relied on. I have considered the grounds of appeal, the parties’ submissions, and the evidence on record. The matter to be addressed is whether the respondent followed proper procedure in filing for letters of administration 41 years after the death of the Deceased. 4 In this appeal, it was the appellant’s contention that the respondent filed for letter of administration after a long time has passed. Thus, it is against the provisions of Rule 31 (1) & (2) of the Probate Rules which provides that: “31(1) In any case where probate or administration is for the first time applied. After expiration of three years from the death of the deceased, the petition shall contain a statement explaining the delay. (2) Should the explanation in the petition be unsatisfactory. The court may require such further proof of the alleged cause of delay as it may think fit.” The provision above, Mr. Mwainyekule added, was also discussed in the case of Masanja Luponya vs Elias Lubinza Mashili (supra). Unfortunately, I do not agree with the learned counsel for the appellant. It came to my attention that the law cited by the counsel does not apply in Primary Courts with regard to probate matters, as the laws applicable are the 5th Schedule to the Magistrates’ Court Act, Cap 11, R.E 2019 and the Primary Courts (Administration of Estate) Rules 1971 GN No. 49 of 1971. Since, time limitation is not provided for by the laws applicable in the Primary Courts, I also find that the cited case laws by the appellant’s counsel are distinguishable to the matter at hand. 5 I am thus aware that there is no statutory provision providing for limitation of time in instituting probate and administration matters in primary courts. The courts, however, have come up with conflicting decisions. The first school of thought supports the position that although there is no specific period stated for instituting probate matters, there should be no delays in bringing such matters and there should be a statement explaining why the delay. See: Ramadhan Said Abasi Kambuga & 2 Others v. Mbaraka Abasi Kambuga, Probate and Administration Appeal No. 1 of 2015 (HC at Sumbawanga, unreported). The other school of thought states that there is no time limit for petitioning for letters of administration in primary courts. See: Hezron Mwakingwe vs Elly Mwakyoma, Probate Appeal No. 03 of 2020 (HC at Mbeya) and Majuto Juma Nshauz vs. Issa Juma Nshauzi, Civil Appeal No. 9 of 2014 (HC at Tabora, unreported). This has been the practice in primary courts, whereby applications of such nature are admitted regardless of time limit. The above cases reveal that no legal provisions or requirements are necessary to date for applying for letters of administration before the primary court once the application is time-barred. 6 That being the case, I adopt the second school of thought. Since, providing reasons for delay in filing probate and administration of estates matters is not a requirement in Primary Court. I find no reason to depart from the decisions of the two subordinate courts. Besides, the records show that the appellant was involved in the whole process from the very beginning when the respondent was appointed as an administrator during the clan meeting. Bringing such claims convey that the appellant has been against the appointment of the appellant for reason not made apparent before this court nor the two lower courts. As a result, from the above findings and seeing that no beneficiary has been prejudiced by the appointment and functions of the respondent as an administratrix of the deceased’s estate. I find this appeal to be devoid of merit and is hereby dismissed. As the matter is between relatives, there are no order as to costs. It is so ordered. Right of appeal explained. 7 DATED at MBEYA this 6 day of September 2024 A. A. SINDA JUDGE 8