Majaliwa Mohamed vs Kudra Mohamed Majaliwa

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA PC PROBATE APPEAL NO. 15841 OF 2024 (Arising from Probate Appeal No. 4 of2023 of the District Court ofIringa at Iringa before Hon. A.F Ngwaya, SRM, Original Probate Cause No. 9 of 2014 of the Primary Court ofIringa District at Iringa Urban before Hon. A.B. Fungo, SRM) MAJALIWA MOHAMED ......... ................. ...... ...... APPELLANT VERSUS MOHAMED KUDRA MAJALIWA _______ .____ _____.____ RESPONDENT RULING 12'' Sept & 2$h Oct, 2024 D.B NDUNGURU, J This is a ruling on a preliminary objection raised by the respondent that the appellant's appeal is time barred. This matter originates from Iringa Urban Primary court where the appellant raised an objection on the inventory filed by the respondent as the administrator of the estate of the late Mohamed Majaliwa. The trial court blessed the distribution of the deceased's estate. The appellant aggrieved by this, filed an appeal to the District Court. The first appellate court upheld the decision of the trial court. Still aggrieved, he filed this appeal. i The preliminary objection was argued orally. The appellant is represented by Omary Khatibu whereas the respondent enjoyed representation by Mr. Muharami Chuma, both learned advocates. In supporting the preliminary objection, the respondent's counsel argued that the appeal has been filed after the expiry of the prescribed time which is 30 days as provided by section 25 (1) (b.) of the Magistrates' Courts Act [Cap. 11 R.E 2022]. In his view, the appeal was filed after 35 days as the impugned judgment was delivered on 29th May, 2024 and the present appeal was filed on 3rd July, 2024. He contended that attaching a copy of judgment for appeals to this court in matters originating from Primary Court is not a legal requirement. To cement his contention, he cited the cases of Upendo Eligi Kessy & Another v. Honorata Eligi Kessy, Civil Appeal No. 512/2020, Court of Appeal - Arusha (unreported) and Sophia Mdee v. Andrew Mdee & 3 Others, Civil Appeal No. 5/2015, Court of Appeal ~ Arusha (unreported). He, thus, urged the court to dismiss the appeal with costs The appellant's counsel on the other hand argued that the appeal is timely filed. He submitted that upon delivery of judgment, he wrote a letter requesting for a certified copy of judgment which is a necessary 2 attachment in filing this appeal. The said document was ready for collection on 12th June 2024. In his view, memorandum of appeal must be attached with a copy of judgment when filing as provided under Order XXIX Rule 1 of the Civil Procedure Code [Cap. 33 RE 2019]. He contended that the time that the respondent was waiting to be supplied with the necessary documents ought to be excluded as provided under section 19(2) of the Law of Limitation Act [Cap 89 RE 2019]. In his rejoinder, the respondent's counsel essentially reiterated his submission in chief. The main issue for my determination is whether the appellant's appeal is time barred. I have considered the record, the parties' submissions and the law. The relevant section governing appeals to the High Court on matters originating from Primary Courts is section 25 of the MCA. Section 25(1) (b) of the Act prescribes the time limit which is 30 days after the date of the decision of the District Court. The relevant section provides: "25(1) Save as hereinafter provided:- (b) in any other proceedings any party, if aggrieved by the decision or order of District Court in the exercise of its appellate or revisionai jurisdiction 3 may within thirty days after the date of the decision or order, appeal therefrom to the High Court; and the High Court may extend the time for filing an appeal either before or after such period of thirty days has expired. Further, section 25(4) reads as follows: (4) Upon receipt of a petition under this section, the district court shall forthwith dispatch the petition, together with the record of the proceedings in the primary court and district court, to the High Court. From the above sub section, it is clear that a person who intends to appeal to the High on matters originating from Primar Court has to lodge his petition to the District Court and the district court shall forward the record to the High Court. In the case at hand, the appeal was filed on 3rd July 2024 which is beyond 30 days counting from 29th May when the District Court passed its judgment. The appellant's counsel, relying on Order XXIX Rule 1 contended that he was waiting to be supplied with a certified copy of judgment to accompany the petition of appeal. The same was supplied to them on 12th June 2024. In Gregory Raphael v. Pastrory Rwehabula (2005) TLR 99 this court stated: 4 "As it can be seen, attachment of a certified copy of judgment is not one of the contents of the petition of appeal as it used to be in appeals originating from District Courts and Courts of Resident Magistrate as is provided under O. 38 Rule 1 of the Civil Procedure Code, 1966 which law is not applicable in Primary Courts. ... Attachment of copies of decree and judgments is a condition precedent in instituting appeals originating from district courts and courts of resident magistrate." Based on the above authority, it is clear that attachment of judgment with the petition of appeal is not a legal requirement in instituting an appeal to the High Court in a matter originating from Primary Court. In the upshot, I hold that the appeal is filed out of the prescribed time. I uphold the preliminary objection. The appeal being time barred is hereby dismissed. Taking into account the relationship of the parties I make no order as to costs. D.B. NDUNGURU JUDGE 29/10/2024 5