MABULA NDIMILA v JUAKALI NSIA NDIMILA

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA D.C CIVIL APPEAL NO. 000008472 OF 2026 MABULA NDIMILA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS JUAKALI NSIA NDIMILA .............................. RESPONDENT / DEFENDANT JUDGMENT MWAKAHESYA, J JUDGMENT Date of Last Order 10.06.2026 Date of Judgment:03.09.2026 MWAKAHESYA, J.: The appellant herein, Mabula Ndimila, seeks to challenge the decision of the Shinyanga District Court (the district court) in Civil Revision No. 000001206 of 2026 wherein the District Court upheld the decision of the Primary Court of Shinyanga at Samuye (the primary court) in Probate Cause No. 02 of 2024 dismissing the appellant’s objection to the appointment of the respondent as the administrator of the estate of the late Ndimila Mihambo Ndimila (the deceased) and the distribution of the said estate by the respondent. A brief background of the events leading to this appeal is that at the primary court the appellant challenged the appointment of the respondent as an administrator of the estate of the deceased who passed away in the year 1985. It was not in contention that following the deceased’s demise, his estate was left in the care of his widow, who also passed away in the year 2010 leaving the estate in disarray. This prompted the election of the respondent through a clan Page. 1 meeting, to be the administrator of the said estate, the appellant having waived his participation in the said meeting despite having notice of the same. The appellant objected the appointment of the respondent at the primary court, but the latter overruled the objection. The appellant, aggrieved, filed for revision before the district court citing a number of illegalities in the decision of the trial court, amongst them being: the judgment bearing the date 25.22.2024; the respondent being recognized as an administrator prematurely, i.e., before his appointment; the estate having been fully administered before the appointment of the respondent thus rendering the respondent’s appointment unlawful; and the trial court visiting the locus in quo. The district court, having heard the parties, dismissed the appellant’s application and confirmed the trial court’s decision. Still aggrieved, the appellant seeks this court to overturn the lower courts’ decisions on the following grounds: 1. That, the district court erred in law in not dealing with the confusing title of the case and the status of the appellant in the case at the primary court; 2. That, the district court erred in law in holding to the effect that the prior distribution of estate does not bar subsequent court appointment of an administrator; 3. That, the district court erred in law in holding to the effect that the minutes of the clan member (sic) are not a basis for appointing an estate administrator; 4. That, the district court erred in law in holding that it was not wrong for the trial court to visit the locus in quo; and 5. That, the district court erred in law in holding that the errors in the judgment (sic) dates does not amount to error, which need interference of the court. Thereby, the appellant beseeched this court to: allow the appeal; set aside the ruling of the Shinyanga District Court; restore the status quo; and grant costs in this appeal and in the courts below. At the hearing of the appeal both parties were represented. The appellant enjoying the services of Mr. Mikaeli Vicent Masalu, learned advocate, while Ms. Gloria Ikanda, learned advocate represented the respondent. The hearing of the appeal was by consensus to be by way of written submissions. The parties duly filed their submissions, the appellant opting out of filing a rejoinder. However, for apparent reasons to be revealed shortly, I shall not reproduce the said submissions. As detailed previously, at the district Page. 2 court, the appellant filed an application for revision while challenging the decision of the primary court in Probate Cause No. 02 of 2024. The application was made under section 22(1) of the Magistrates’ Courts Act (the MCA) which reads: “22.–(1) A district court may call for and examine the record of any proceedings in the primary court established for the district for which it is itself established, and may examine the records and registers thereof, for the purposes of satisfying itself as to the correctness, legality or propriety of any decision or order of the primary court, and as to the regularity of any proceedings therein, and may revise any such proceedings.” It has not been ascertained as to why the appellant chose to challenge the decision of the primary court by way of revision instead of appeal as per section 20(1)(b) of the MCA which provides that: “20.– (1) Save as hereinafter provided- (a) N/a. (b) in any other proceedings, any party, if aggrieved by an order or decision of the primary court, may appeal therefrom to the district court of the district for which the primary court is established.” [Emphasis mine] I duly invited the parties to address the court on the issue, the same having come to the attention of the court at the time of composing the judgment. Submitting for the appellant, Mr. Elias Magembe Mhela, learned advocate was of the view that it was proper to challenge the decision of the primary court by way of revision guided by section 22 of the MCA. He elaborated that, although the law requires for the court itself to call for and examine the records of the primary court, in practice parties can move the court to revise the lower court’s decision. Meanwhile, Ms. Gloria Ikanda, learned counsel for the respondent was of the view that as per section 20(1)(b) of the MCA, a person aggrieved with a decision of the primary court may appeal to the district court. The learned counsel was of the further view that the appellant erred when he sought redress at the district court by way of revision instead of appeal. To the learned counsel, the application before the district court was erroneous. She subscribed that, the proceedings of the district court were therefore null and void. That marked the end of the parties’ address to the court. It should be noted that there was nothing barring the appellant from appealing against the decision of the primary court as per section 20(1)(b) of the MCA. The appellant having Page. 3 chosen to challenge the decision of the primary court by way of revision fell into an error. It is notably that appeal and revision are two distinct remedies that are not to be used in the alternative (see: Halais Pro-Chemie v. Wella AG [1996] T.L.R. 269; and Restituta Frank Msongole vs Maiko Ngaya Shoo & Another (Civil Application No. 473/17 of 2022) [2023] TZCA 17880 (23 November 2023) TanzLII). Meanwhile, revision can only be invoked in matters which are not appealable and where the appellate process has been blocked by judicial process. The learned district court magistrate noted the anomaly while composing her ruling wherein she made the following comment: “…on the reason not known to this court, insteady (sic) of appealing against the decision the applicant filed for this revision on allegation that the trial court decision tainted with illegality…” Surprisingly, instead of resolving the error, the learned magistrate proceeded to decide the application on merit. On this, the learned magistrate strayed into an error. As indicated, the proper course to be taken by the appellant was to appeal to the district court and not to file for revision. This in turn vitiates the proceedings and resultant decision of the district court, the same are a nullity. In the end, in the exercise of the revisional powers of this court, I proceed to quash the proceedings and ruling of the district court and set aside the resultant orders arising therefrom. No order for costs. DATED at SHINYANGA this 03rd day of September, 2026. Dated at SHINYANGA this 3rd of September 2026 . N. L MWAKAHESYA JUDGE OF THE HIGH COURT Page. 4