20170421 TZHC Arusha

I ·IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY OF ARUSHA] AT ARUSHA ' CIVIL REVISION NO.1 OF 2017 (Originating from Arusha Arumeru District Court Misc. Civil Appl No.23/2016) • JUMANNE ABEID KIMOLO ............ j •••••••••••••••••••••••;••••••• APPLICANT VERSUS ABEID MUSTAPHA KIMOLO ........... ~ ........................... RESPONDENT ' RULING Date of last Order: 29/3/2017 Date of Ruling: 21/4/2017 BEFORE: S.C. MOSHI, JUDGE. '• On 19/10/2016 Fredrick Simon Kinabo filed a Chamber Summons under Section 47(1) (b) of the Magistrates' Courts Act Cap.11 R.E. 2002 where he prayed that the proceedings in Enaboishu Primary Court Probate and Administration Cause (Shauri la Mirathi No.18 of 2016) be transferred to Arumeru District court. I I called the file for inspection and examination to satisfy myself of the correctness, propriety and legality of the 'decisions made therein. I On 8/12/2016 the District Court granted the application and it ordered the case file to be transferred from the Primary Court to Arumeru District Court. j However, upon perusal of the record I have learned that, the case so transferred is a probate matter; under Section 18 of the Magistrates' Courts ' 1 I ' Act [Cap.11 R.E. 2002] Jurisdiction of customary law anq Islamic Law is bestowed upon Primary Courts and it reads thus:- 1 ' (1) A primary Court shall have and exercise jurisdiction- (a) In all proceedings of a civil nature (i) Where the law applicable is Customary Law or jslamic Law. I I Provided that no Primary Court shall have jurisdiction in ay proceedings affecting the title to or any interest in land registered under I the Land Registration Act. 1 So the jurisdiction is vested upon thJ Primary Court save for situation where the High Court gives leave per Section 63 of the _same Act which reads thus:- (1) Subject to the provisions of any;law for the time being in force, where Jurisdiction in respect of the same proceedings is conferred I on different courts, each court shall I have concurrent jurisdiction I therein: Provided that no civil proceedings in respeat of marriage, guardianship or inheritance under customary law, or the incidents thereof, and no civil proceedings in respect of immovable property, other than proceedings relating to land held on a !government lease or a right of occupancy granted under the Land Act of proceedings under Section 22 of 1 . 23 of the Land Act shall be commenced in any court other than a Primary court unless the Republic is a party ther~to or unless the High Court gives leave for such proceedings to be commenced in some other court. ' 1 The circumstances under which the High Court may order transfer is explained under Section 47 of the Act. ' That said, I reverse the ruling which was delivered Ion 18/12/2016. I order that the case proceed before the Primary r Court from where it ended. I ' The case file should be returned batk to Enaboishu :Primary Court for continuation of hearing. i , ' I 2 The Resident Magistrate of the Arwmeru District Gourt should call parties and read the decision to them. 1 I ~~ I S.C. ~~I JUDGE 21/04/20 7 1 3