monica nkoma another vs emmanuel kenneth mbyela another 2023 tzhc 23093 23 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY)

AT IRINGA MISC. CIVIL APPLICATION NO. 23 OF 2023 (Arising from CiviiAppeal No. 08 o f2022 o f the High Courtof Tanzania atlringa before Hon. S.M. Kalunde, J. arising from CivilAppeal No, 8/2020 o f the Resident Magistrate Court o f Njombe at Njombe before Hon. HA. Makube, SRM. Original Probate and Admistration Cause No. 19/1992 o f the Primary Court o f Njombe District at Njombe Urban before HON. B.H. Mwangi, RM) MONICA NKOMA ......... ................................... 1st APPLICANT NEEMA MBEYELA ............ ............................ . 2nd APPLICANT

VERSUS EMMANUEL KENETH MBEYELA., 1st RESPONDENT CURTHBERT KENETH MBEYELA 2nd RESPONDENT

RULING 2TJ& 23d November, 2023 I.C. MUGETA, 3: This is an unopposed application for leave to appeal to the Court of Appeal against the decision of this court and a certificate on a point of law. The application is made under section 5(l)(c) and 2(c) of the Appellate Jurisdiction Act and rule 45(a) of the Court of Appeal Rules. To be specific the prayer reads: "This Honourable court may be pleased to grant leave to the Court o f Appeal o f Tanzania against the Page 1 of 4 decision o f the High Court o f Tanzania at Iringa District Registry in Civil Appeal No. 8 o f 2022 which was delivered (fh October, 2023 by Hon. S.M. Kaiunde, J. and subsequently issue certificate on point o f law for determination in the Court o f Appeal as required by the law". This is an omnibus prayer because one cannot apply for leave and certificate on a point law at the same time. However, as this case originated in Primary Court, it is my view the correct application is on a certificate on a point of law in terms of section 5(2)(c) of the Appellate jurisdiction Act. This is what I am going to deliberate on. The reasons for the application are stated at paragraph 14(a) - (f) of the affidavit supporting the application sworn jointly by the applicants. They include the complaints that the first appellate court wrongly entertained jointly Probate Appeal No. 8/2019 and Civil Appeal No. 8/2020

both originating from Probate and Administration Cause No. 19/1992, that the appeal to this court was filed by improper parties, that this court erred to hold that issues of time limitation raised by the applicants were matters of facts, that the respondents were time barred when they filed Probate and Administration Cause No. 19/2019 at Njombe Urban Primary Court and that Page 2 of 4 the Resident Magistrates' Court of Njombe had no jurisdiction to entertain Civil Appeal No. 8 of 2020. In the case of Mohamed Mohamed and Another v. Omari Khatib, Civil Appeal No. 68/2011, Court of Appeal(unreported) the Court stated what constitutes a point of law: "... for instance, where there is a novel point, where the issue raised is unprecedented, where the point sought to be certified has not been pronounced by the Court before and is significant and goes to the root o f the decision, where the issue at stake involves jurisdiction where the court(s) below misinterpreted the law etc... Matters relating to the propriety of filing Probate Appeal No. 8/2019 and Civil Appeal No. 8/2020 and time limitation were not raised in this court. They cannot be certified as point of law to the Court of Appeal. Issues which were raised and considered by this court related to locus standi and jurisdiction of the first appellate. These are points of law. Issue of focus standi go to the root of the decision

while matters of jurisdiction are fundamental to justice. Accordingly I certify for determination by the Court of Appeal two points: 1). Whetherparties to this case at appeal levels were proper. Page 3 of 4 2). Whether the first appellate court hadjurisdiction. The application is granted without orders as to costs which shall be in the course of the intended appeal. Court: Ruling delivered in chambers in the presence of the Jerome Msemwa, learned advocate for the 1st and 2nd applicants, Marco Kisakaii, learned advocate for the respondent and applicants and respondents are absent. Sgd. I.C MUGETA

JUDGE 23/ 11/2023 Page 4 of 4