HAMOOD MOHAMED HAMOOD CIVIL PO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA LAND CASE NO. 5 OF 2023 HAMOOD MOHAMED HAMOOD (Administrator of the estate of the late MOHAMED HAMOOD ALLY) ……………….APPLICANT Versus SOUD MOHAMED …………………………….………….1ST RESPONDENT MOZE MOHAMED MOHAMED…………….……………2ND RESPONDENT MOHAMED SALUM MOHAMED…………….………….3RD RESPONDENT SHINYANGA MUNICIPAL COUNCIL……..……..……4TH RESPONDENT REGISTRAR OF TITLE………………………..…..……..5TH RESPONDENT COMMISSIONER FOR LANDS………………..………..6TH RESPONDENT THE ATTORNEY GENERAL……………….…………….7TH RESPONDENT RULING 23rd & 24th September, 2024. S.M. KULITA, J. This matter was stayed pending determination of the Probate and Administration Cause No. 202407101000016357, Petitioned by Haroon Ally 1 Salum, which was before Hon. Massam, J. It has been addressed by the Counsels for both parties that the said case was dismissed for want of prosecution on 27/09/2024. Advocate for the Petitioner in that case, Mr. Paul Kaunda, alleged that the said case was wrongly dismissed on that date as the summons that was served to him through the electronic means shows that the said case was scheduled for hearing on 28/09/2024. He averred that, it is when he attended the High Court for that case, which is a petition for the administration of estates for the late Mohamed Salum Mohamed, the 3rd Defendant, on that 28/09/2024, he found it already dismissed for want of prosecution on 27/09/2024. Mr. Kaunda further stated that the said fault led him to lodge an application for restoration of that said case. He said that the said application is still pending for assignment. On the other hand, Advocate for the Plaintiff in this matter, Mr. Frank Samwel, admitted on the existence of the said fault in determination of that said case, but he was quick to respond that, inspite of that said fault, still the Counsel, Mr. Kaunda and his clients have the intention to delay justice on this case as the Defendants herein are unlawfully benefitting from the suit property. He said that, the said delay tactic includes the non-attendance 2 of Mr. Kaunda and/or the Petitioner for that case three consecutive times without notice. According to the submissions of both Advocates, the culpability that happened in the said Probate and Administration Cause is not the fault of the Petitioner or his Advocate, Mr. Kaunda. However, the allegations by Mr. Frank Samwel, Advocate, that, that the Petitioner for administration of estates and his Advocate apply delay tactic in this matter for their personal interests, as the said petitioner uses to collect rent from the suit premise, makes me to find a way forward in dealing with this matter. Apart from the said allegation by Mr. Frank Samwel, Advocate which cannot be fully acted upon, as the suit is still pending, for the sake of justice and making this suit being earlier determined, I find it better to adopt the means that will make the case be quickly disposed without affecting justice to either party. What made this case to stay is the death of the 3rd Defendant on 19/07/2023, as it was so alleged by the Defendants’ Counsel, Mr. Kaunda, who actually proved the same by providing the death certificate. That led the said Advocate not to file the Written Statement of Defense (WSD) for that said 3 person, pending the appointment of the administrator for the deceased’s estates. The fact that a long time has passed without the said administrator being appointed, under the provision of Order XXII, Rule 4(1) of the Civil Procedure Code [Cap 33 RE 2022] read together with section 3 of the same Act, which provide that, if the party to a civil case is dead, another person can step into the deceased’s shoes as his/her legal representative. That said person, according to section 3, can either be; the Administrator of estate, a person who intermeddles/interferes or deals with the deceased’s estates, or the deceased’s heirs. Now, the fact that the appointment of the administrator for the deceased’s estates takes a long time to be affected, since the said 3rd Defendant had passed away on 19/07/2023, I hereby vacate the mode of representation by using the administrator of estate. Instead, I hereby adopt the means of representation by entailing a person who deals with the deceased’s estates, or the deceased’s heirs, instead of waiting for the purported administrator to be appointed by the court, upon determination of the Probate and Administration Cause. 4 That was also a position of this court in HABIB ABDALLAH SULTAN V. ASHURA SAID MAKUKULA & ANOTHER, Miscellaneous Civil Reference No. 18 of 2019, HC DSM District Registry. That being the case, I hereby order that, a person who petitions for the administration of estates of the deceased, late Mohammed Salum Mohamed (3rd Defendant) one Haroon Ally Salum, should step into the shoes of the deceased as his legal representative. In that sense, both parties should amend their pleadings to that extent, and that should be done in 3 (three) days’ period from today. It is so ordered. S.M. KULITA JUDGE 24/09/2024 DATED at SHINYANGA this 24th day of September, 2024 5 S.M. KULITA JUDGE 24/09/2024 6