Mbilwa Mimbi HUKUMU

The Judiciary of Tanzania

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

AT SHINYANGA PROBATE APPEAL NO. 000024079 OF 2024 ARISING FROM PROBATE CAUSE NO. 9651 OF 2024 OF BARIADI DISTRICT COURT AT BARIADI. MBILILWA MIMBI .................................................................... APPELLANT Versus MATONDO NZIGE ............................................................... RESPONDENT

JUDGMENT 29th October 2024 F.H. MAHIMBALI, J This appeal traces its genesis from Probate Revision Cause No. 9651 of 2024 in which the appellant had filed revision application after his appointment as administrator of the estate of the late Nzige Ndaki @ Mbugayamalalula was revoked by the trial court (Somanda Primary Court) on fraud reasons. Aggrieved by the said revocation, the appellant filed revision application before Bariadi District Court in which Somanda Primary Court traces its territorial jurisdiction. 1 Prior to the hearing of the said revision application, the respondent had filed an objection on point of law that, the revision application was not an alternative to appeal. According to the digital record of the district court, on the date set of hearing of the said revision application (14/08/2024), it appears the trial magistrate either deliberately skipped the hearing of the P.O filed or overlooked it. She is recorded to have written the following: Advocate Esther Silas: It is for hearing; we are ready to continue. Crt: P/G submissions continue in court. SUBMISSION FROM APPLICANT: I have nothing to say. Crt: I hereby Dismiss the matter for want of prosecution in accordance with Order IX Rule 5 of CPA Cap 33 R. E 2022 and Order VIII Rule 21 of CPC failure to comply with court Order. Sgd: C. E. Kiliwa PRM 14/08/2024 The appellant has been aggrieved by the decision of the District Court, thus the basis of the current appeal founded on five grounds of appeal, namely: 1. That the district court wrongly erred law by wrongly dismissing the revision based on order VIII, Rule 21. 2 2. That the District Court erred in law by dismissing the revision without indicating properly the law relied upon.

3. That the District Court erred in law by dismissing the case for want of prosecution while the appellant was present before the court and the court was also supposed to consider the appellant’s revision.

4. That the District Court erred in law by dismissing the case for want of prosecution without considering the preliminary objection being raised by the respondent.

5. That the District Court erred in law by dismissing the case for want of prosecution while the case was coming for hearing and the court failed to indicate the hearing was for what: whether for the revision or preliminary objection being raised by the Respondent in his counter affidavit. During the hearing of the appeal, the appellant appeared in person whereas the respondent didn’t enter appearance. The matter was thus ordered to proceed exparte against him. However, the appellant had nothing more to submit but just pressed for the appeal to be allowed basing on his 3 grounds of appeal in which he prayed this court to adopt them to form the essential part of his submission. In digest to the appellant’s grounds of appeal and in my close scrutiny of the district court’s digital record on revision proceedings, there is only one single question for determination, whether the district court properly dealt with the matter. So long as the case was set for hearing and that there was P.O filed, unless it was first determined or withdrawn form record, there was no way the hearing of the revision application could have superseded the P.O filed (See Charles Expedito Luhunga @ Ubaya and 2 Others V. Republic, Criminal Appeal No. 453 of 2022(2024), TZCA 852 of 5th Sept 2024 and Khaji Abubakar Athuman Vs. Daud Lyakugile t/a d.c. Alluminium and Mwanza City Council, Civil Appeal No. 86 of

2018, CAT at page 11 – 13 to mention but a few). Thus, it was legally wrong to dismiss the appellant’s revision on the ground of want of prosecution while the respondent was first to be invited to argue his P.O. Therefore, it was wrong in order of submission to invite the appellant where the is P.O in place. Otherwise, a dismissal of a case for want of prosecution can be done even if the parties are present but have refused or neglected to prosecute their cases. But that was not the 4 case at the present situation. The records of the case as digitally stored does not support the course undertaken by the district court’s magistrate. Secondly, the provision of the law used – Order VIII, Rule 21 as enabling provision in dismissing the said revision is improper as that provision only applies in suit cases passing through First Pre-Trial Conference, that any party not in compliance from what was scheduled and agreed during the pre-trial conference suffers the legal consequences thereof. It does not apply to revision proceedings, appeals or applications. Therefore, in place being P.O and the main application, the revisionary magistrate ought to have clearly stated so in her order as to which hearing the said submissions should have based. All this said and considered, the appeal is meritorious and is hereby allowed. Further, on the revisionary powers vested to this court under

the provisions of section 30 of the MCA, Cap 11 R.E 2019, I hereby quash and set aside all the proceedings and orders done by the District Court in determining the said revision application before it improperly. In its place I order and direct that let the revision application be reheard before another magistrate with competent jurisdiction expeditiously. 5 It is so ordered accordingly. No order as to costs as the material error was manifestly done by the court itself. Thus, awarding costs in the circumstances is not justifiable. DATED at SHINYANGA this 29th day of October, 2024. F.H. Mahimbali Judge. Judgment delivered today the 29 October 2024 in chamber court in the presence of the appellant only, the respondent being absent thus exparte proceeding and order against him. F.H. Mahimbali Judge. 6