JULIUS MOIKAN VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB - REGISTRY

AT ARUSHA PC CIVIL APPEAL NO. 8423 OF 2024 (C/F District Court of Arusha at Arusha in Civil Appeal No. 38 of 2023) JULIUS MOIKAN....... ............................................................. APPELLANT

VERSUS ANNA MOIKAN LELENDITA (As Co-administratrix of the Estate of late Leah Moikan)............................................... 1st RESPONDENT RAMADHANI MFINANGA (As Co-administrator of the Estate of the late Leah Moikan..... ..................................... 2nd RESPONDENT

RULING 27th February & 7th March, 2025 KAINDA, J.: The first respondent, Anna Moikan Lelendeta went to the trial Arusha Mjini Primary Court where she lodged a probate matter praying to be declared an administratrix of the estate of the late Leah Moikan. On 25th April, 2022, the first respondent was appointed as administratrix of the said estate. He was ordered to collect and distribute the properties to the heirs of the deceased. The trial primary court held at page 3 of its decision, I quote; " Msimamizi wa mirathi akakusanye ma/i zote za marehemu na kuzigawa kwa warithi halali wa marehemu na kisha kuleta mrejesho hapa mahakamani ndani ya kipindi cha i miezi minne (04) yaani hadi ifikapo tarehe 25.08.2022 awe amekwishafanya hivyo." Sometimes later, and before the first respondent had filed the statement of accounts and inventories, the appellant, Julius Moikan, filed an objecting proceedings to the effect that, the first respondents' appointment as administratrix of the estate of the late Leah Moikan should be annulled on the ground that she failed to live to all what she was expected to perform as an administratrix. On 19th May, 2023, the trial primary court annulled her appointment and substituted with the appointment of the second respondent. In its considered ruling, the trial magistrate held at page 6 and 7, I quote the relevant part; "... Hi kuondoa tofautiza pande zote

mbiiianahitajika msimamizi huru wa mirathi ambaye atakuwa Katikati ya wanufaika aweze kufanya utafiti na kubaini malalamiko ya pande mbiii na abaini maii haiisiza marehemu azikusanye na kuzigawa kwa warithihaiaii wa marehemu.... Mahakama imetengua uteuzi wa msimamizi wa mirathi ANNA M. LELENDITA...na mahakama imemteua daiaii wa mahakama RAMADHANIMFINANGA T/A AR COMPANY LIMITED kuwa msimamizi mpya wa mirathi ya marehemu Leah Moikan." 2 The first respondent was not amused with the decision which annulled her appointment and went to the District Court where she filed an appeal, Civil Appeal No. 38 of 2023 on which the appellant was impleaded as a sole respondent. At this point, it is instructive to note that the second respondent, Ramadhani Mfinanga, despite the fact that he was appointed a co- administrator, was not impleaded. In its considered decision which was delivered on 15th March ,2024, the first appellate District Court restored the first respondent to be a co-administratrix of the estate of the late Leah Moikan. This decision prompted the appellant to call on the doors of the court appealing against the decision fronting the following two grounds of appeal; 1. That, the learned magistrate grossly erred in law by entertainment the appeal out of time prescribed by law.

2. That, the learned magistrate grossly erred in law by joining the respondent as a co- administrator despite all valid reasons for her revocation. At the hearing of the appeal, the appellant was represented by Mr. Joshua Albert, learned counsel while the respondents were in person. Before the matter could take on, I asked the parties to address the court on propriety or otherwise of the appeal before the court with regard to the proceedings in the first appellate district court in absence of the second respondent, Ramadhan Mfinanga, in his capacity as administrator of the 3 probate at hand who was not impleaded in the district court proceedings. Mr. Joshua readily conceded that it was a serious irregularity for the district court to proceed with hearing of the matter before it in the absence of the second respondent. He implored the court to use its revisionary power and nullify the first appellate district court proceedings and set aside the judgement thereon. On their party, the respondents being layperson, they did not have any valuable submission on the legal point put before them. Indeed, the record is loud. As stated above, the second respondent being appointed administrator of the estate at issue, was a necessary party to be joined in the matter before the first appellate district court. In the circumstances, as correctly conceded by the counsel for the appellant,

the presence of the second respondent in the district court was a crucial matter and it ought to have been considered by the first appellate district court. However, it missed its eye. Consequently, I hereby nullify the proceedings of District Court of Arusha at Arusha in Civil Appeal No 38 of 2022. The judgment is set aside as it stems from a nullity proceeding. To this end, the decision of the trial Primary Court dated 19th May,2023 which appointed the second respondent as administrator of the late Leah Moikan is in force. Any party who is not fine with that decision, may fault it in accordance with the laid down procedures. 4 Since the point led to the determination of this appeal were raised by this court, I make no order as to costs. It is so ordered. S. J. KAINDA

JUDGE 7.3.2025 Ruling is delivered under my hand and seal of the court in chambers this 7th day of March, 2025 in the presence of the appellant and the first respondent in person. The second respondent was absent. Right of appeal to the Court of Appeal is fully explained to the parties. S. J. KAINDA

JUDGE 7.3.2025 5