0cr tanlzlii nongwaCIVIL APPEAL NO

(TEMEKE HIGH COURT SUB-REGISTRY) ONE-STOP JUDICIIAl CENTRE AT TEMEKE CIVIL APPEAL NO. 12277 OF 2024 (Originating from Probate and Administration Cause tyo. 1164 of2024 of District Delegate Court of Temeke at, One Stop Judicial Centre -Temeke) NONGWA DONALD KUSENHA.......................................... APPELLANT I ' VERSUS MALUGU DONALD KUSENHA I .................................. lstRESPONDENT I MBELEJE DONALD KUSENHA................................. 2ndRESPONDENT JUDGMENT Date of last order: 24/08/2024 Dateof Judgment: 24/09/2024 OMARI, J. This matter dates back to 09 August, 2()i00 when Donald Mazengo Kusenha died intestate. The parties have been in court since 2001 as they cannot come to terms on who should be appointed the administrator of the estate of the late Donald Mazengo Kusenha. Nonetheless, in 2023 the Appellant herein filed a Petition for letters of administration seeking to be appointed as the Administratrix of the estate of the late Donald Mazengo Kusenha at the Court of District Delegate of Terpeke at One Stop Judicial Centre- Temeke in Probate and Administration' Cause No. 1164 of 2023. She was Page 1 of 14 dissatisfied and aggrieved with the decision of the Court of District Delegate of Temeke at One Stop Judicial Centre in Probate and Administration Cause No. 1164 of 2023 preferred this appeal on five grounds as follows: 1. That, the trial court magistrate erred in law and fact by Introducing new issues which had not abalienating by the parties. That, the trial court magistrate misdeeds came up with other issues, the identification of beneficiaries and deceased properties which at the first sight before hearing departed from it by directing the parties to determine the same after due appointment of the administrator of the estate. Even if could be determined earlier, worsen enough, the Appellant was not afforded right to be heard. 2. That, the trial court magistrate erred in law and fact for failure to appoint the Appellant by fulcrum from the evidence of the Respondents which was marred and tainted with allegations, instead of substantive evidence. That, despite those allegations against the Appellant, the Respondents in their Caveat, they did not outvote to be appointed, except dispersions with a lot of allegations against the Appellant, of which, in law, if not proved, does not bar the Appellant from being appointed. Page 2 of 14 to the Respondents to tender their birth certificates, and affirmatively rely upon it on his decision, while the fact was that, the issue of paternity was substantively ignored by the magistrate to be entertained at the earliest stage oefore appointment of the administrator. That, the decision of the trial magistrate was tainted with procedural irregularities to | admit birth certificates of the respondents while the issue at the table was to determine the appointment of the Appellant, and|not paternity of the Respondents. 4. That, the trial magistrate erred in I law and fact by determining the beneficiaries of the deceased estate at the stage of petitioning for administration of the estate. That,! the issue agreed and drawn, was to determine as to whether the Petitioner qualifies to be appointed as the administratrix iof the estate of the late Donald Mazengo Kusenha. A mere fact of departin'g from the substantive issue and came with other findings which were not part and parcel, was simply irregularities. 5. That, the trial court magistrate erred in law and fact to rely on unrelated Issue contrary to the issue drawn for determination by dismissing petitioner's application for appointment as the Administratrix of the estate. That, the decision of the trial magistrate Z7 I I taken by the appellant to revoke the 1st Caveator from administration of the estate, could not be accounted and amount to conflict, rather than a procedural requirement once the appointee turns vice versa. It is on the basis of the above rather convoluted ground of appeal that the Appellant prays to this honourable Court for the following orders inter alia that this appeal be allowed and the whole decision of the trial court be quashed. The Respondents resisted the appeal. The appeal was heard in writing whereby the Appellant's submission was drawn and filed by Eliaicha Ndowo and those of the Respondents were drawn and filed by Emmanuel Bwile both are learned advocates. Mr. Ndowo began his submission with a background of the matter stating that the Appellant and 2nd Respondent had filed an application for the revocation of the 1st Respondent in Probate Cause No. 46 of 2001 at the Primary Court of Dodoma at Dodoma. The application was successful, however, the 1st Respondent was not pleased and, thus filed Revision No.01 of 2021 at District Court of Dodoma at Dodoma to challenge the decision. He was successful and the District Court appointed the 1st Respondent as the Administrator of the estate of the late Donald Mazengo Kusenha. The Appellant filed another application for revocation in 2022. Page 4 of 14 of Dodoma at Dodoma which sustained the revocation of the 1st Respondent. It is after all tipis that the Appellant filed Probate Cause No I I 1164 of 2023 before the Court of the District Delegate at One Stop Judicial Centre Temeke. This matter was faced with objections from the Respondents and the same Vvere I sustained, I thus, this appeal. Counsel sought to submit jointly on the first, third, fourth and fifth grounds of appeal. He stated that at the hearing, three issues were agreed upon as depicted in proceedings, yet the District Delegate suo motu and without affording the parties a right to be heard I came up with other issues such as identification of the deceased's properties and the beneficiaries which as a result led him to draw a negative inference on the Appellant's appointment. This, according to Mr. Ndowo goes against what was observed by the Court of Appeal of Tanzania in the case of Ramadhan Omary Mbuguni (Legal Representative of the late Rukia Ndaro) v. Ally Ramadhan and Another, (Civil Application No. 140/12, of 2023) [2024] TZCA 344. In this case the Court of Appeal was of the view that parties need to be heard in order for a court to reach a fair decision. He went on to argue that in Ispite of the| Respondents Caveat they have not named anyone to be appointed as an {administrator; thus, their intention Page 5 nlf 14 counsel reffered to the case of Abraham Ally Sykes & Another v. Mluguru Paula Sykes & Khwemah Ally Sykes (administrators of The Late Zainabu Sykes) & 2 Others, (Misc. Civil Application No. 85 of 2020) [2022] TZHC 9795 arguing that the court not presented with any evidence on the Appellant's competence, thus there is no reason as why she was denied the appointment. Mr. Ndowo continued to state that the proceedings of the District Court comprise of 9 pages, and, the 9 pages do not depict all of the evidence of the parties contrary to the case of Malima Buharage v. Mgala Msimu and Another (Land Appeal No. 28 of 2023) [2023] TZHC 22287 in which it was held that a record must speak for itself and enshrine what transpired in court with clarity and comprehension. He pointed out that in this particular case the record only goes to the date when issues were framed thus no recording of evidence was done. When Mr. Bwile took the baton, he commenced by praying that the appeal be dismissed as it is lacking in merit. He then segued to reply the Appellant counsel's submission agreeing that there were three issues that were framed by the court however, he disagreed with the argument that the court suo motu raised and determined other issues without according the Page 6 of 14 Delegates ruling and specifically page 4|through to page 7 and find it was only the three farmed issues; that were determined. He contended that the cited case of Ramadhan Omary Mbuguni (Legal Representative of the late Rukia Ndaro) v. Ally Ramadhan and Another (supra) is misplaced and distinguishable as both parties were accorded the right to be heard as can be seen in the court's ripcord. I Mr. Bwile then went on to I explain that what the Appellant's counsel is referring to as new issues in the ruling was actually part of determination of the second issue that is the competence of the Petitioner (who is now the Appellant) as weighed Iby the refdrence to the case of Emmanuel William v. William Masuriga and Another (Probate and Administration Cause No. 10 of 2023) [2023] TZHC 21496. He then distinguished the Abraham Ally Sykes & Another! v. Mluguru Paula Sykes & Khwemah Ally Sykes (administrators of The Late Zainabu Sykes) & 2 Others (supra) case that was cited by the Appellant as being one that concerns the revocation of an administrator while the case at hand concerns the appointment of an administrator as per the case of Emmanuel William v. William Masunga and Another (supra). Page 7 14 Respondent's failed to name an administrator in lieu of the Petitioner is a misconceived argument as it is not supported by any legal authority nor with any legal basis as they entered a Caveat and made an appearance to the same. He also distinguished the Malima Buharage v. Mgala Msimbu and Another (supra) since the trail court's proceedings were adequate. Counsel concluded his submission with a reiteration of his prayer that the appeal be dismissed in its entirety for it lacking in merit. In his rejoinder, Mr. Ndowo explained that, his argument was not just the denial of the right to be heard but also the new issues advanced by the trial court and decided without affording the right to be heard. The said new issues are the identification of the beneficiaries and the properties of the deceased on which the trial court only heard the Respondents without affording the Appellant the right to be heard, thus contravening the principle in the case of Ramadhan Omary Mbuguni (Legal Representative of the late Rukia Ndaro) v. Ally Ramadhan and Another (supra). He further contended that the Emmanuel William v. William Masunga and Another (supra) is inapplicable to this case for it concerns a Petition for un-administered assets and not the Petition in question. Counsel concluded the rejoinder by raising a concern on the number of pages of the proceedings that the Respondent's counsel Page 8 of 14 - ------- ,------- --------- ----------------- ----------------- -- --------- —---- _ r — ZJ™ and not the 35 that the Respondents referred to. Having considered the submission made by both counsel on behalf of the parties and having gone through the record, there is only one issue for determination by this court;i that is whether the appeal is meritorious and if so what is the way forward. I shall do so by dealing with the grounds the same way the Appellant; submitted on the grounds of appeal, the first, l third, fourth and fifth grounds jointly then the second ground. Basically, the Respondents contested the Appellant's Petition for letters of administration for reasons]they stated in their Affidavit that is in the record. The proceedings de'pict that on1 22 March,2024 three issues were agreed upon that is: 1. Whether the court has jurisdiction. 2. Whether the Petitioner is competent to be appointed as administratrix of the estate of the late Donald Mazdngo Kusenha. 3. Any other reliefs that the court deems fit and just to grant. Incidentally the issues were framed or) the same date that the Appellant is alleging the trial court stopped recording the proceedings. The said proceedings with 9 pages, that the Appellant is referring to are an extract of the physical case file before the matter migrated to the electronic Case Management System (eCMS). Page 9 of 14 ninth page that were certified on 09 May,2024 by the Senior Resident Magistrate. From then the proceedings are found in the eCMS digital file, specifically the hearing of the Petitioner's case which commenced on 26 March, 2024 and they include proceedings of T1 March,2024 when the defence was heard up to 28 March,2024 when the defence case was closed and the matter was scheduled for ruling. Thus, In my considered opinion and based on the record it would be a misnomer to conclude that the record does not "speak by It self", enshrine what transpired before the court and is not clear to the extent of being comprehended as argued by Mr. Ndowo. I therefore find the reference to the Malima Buharage v. Mgala Msimbu and Another (supra) case uncalled for, to say the least. Instead of concluding that the Ruling does not depict what is in the 9 pages he read, he could have taken the trouble to also procure the proceedings before accusing the trial court magistrate of writing a ruling without having recorded the evidence and testimony of the parties. This brings me to the issue that the court came up with issues and determined them without according the Appellant the right to be heard. Having gone through the proceedings, I see no where that the trail court heard the Respondent's on any issue to the exclusion of the Appellant. The proceedings took the normal course whereby each party did an Page 10 of 14 examination seemingly haying not read all of the proceedings the Appellant's counsel did not notice this. As regards the question of the new issues that is the identification of the properties and that of the f beneficiaries, my reading of the ruling is such that the trial magistrate began determination of the second issuje which was agreed to on page 4. I He stated that paragraph 2; of Form 2^ of the Probate Forms requires a listing of the deceased's close relatives and connected to this is the consent of the heirs under Rule 71 (1) |of Probate Rules GN. Nos. 10,107 and 369 of 1963 (the Rules). Where | consent is unavailable the Rules require that the Petitioner has to corriply with Rule 72(1) of the Rules. According to the trial court's judgement the Appellant did neither. The learned district delegate ttjien went oh to discuss the question of the wrangle as to who is entitled to be a beneficiary all of which can be seen in the proceedings. The issue of the properties was also brought up by the parties as can be seen in their testimonies and, the district delegate after observing that as per the evidence andltestimony of DW1 and DW2 it was prudent not to grant letters of administration to a person with "conflicting interests with the deceased's estate.'] He then went on to dismiss the Petition for want of merit. of appeal baseless and unmerited for they have no backing or support in the court's record. As for the remaining ground, the Appellant is contending that there is no proof other than the allegations and no proof was tendered to prove her incompetence. It is my considered opinion that the second issue which was on her competence and having not succeeded in refuting that she was incompetent and the Petition was not inconformity to the law counsel cannot argue that since the Petitioner was the only named person who petitioned for the grant then she had an automatic right to be appointed as the administrator of the deceased's estate; more so on the basis of an argument that the proceedings are only 9 pages and not 35! In addition to the qualities and qualifications stipulated in section 2(1) and section 33(1) of the Probate and Administration of Estates Act, CAP 352, R.E 2002 (the PAEA) this court in in Benson Benjamin! Meng! and others v. Abdiel Reginald Meng! and Another, (Probate and Administration Cause No. 39 of 2019) [2021] TZHC 3202 when referring to the case of Saleli Doto v. Maganga Maige and Others, PC Probate Appeal No. 6 of 2018 had the following to say: Page 12 of 14 - t~ g- - -- --- --------- I- --- -- — —--- the main consideration is die reputation and capability of such person to act faithfully, diligently and impartially in administering the estate to the rightful \ owners" ^Emphasis supplied) The Respondent's managed to establish that the Appellant had a conflict of interest with the estate of the deceased. The Appellant neither provided an acceptable alternative account nor Explained how she would rid herself of the said conflict of interests, thus tailed to establish that she would be impartial. Moreover, for one to be appointed tpe Petition need to comply to the requirements of section 56 of the PAEIa and Rule 39 of the Rules. That in my opinion is what the Appellant can| base her dissatisfaction on which, after having gone through the Petition that was file before the Court of the District Delegate leaves a lot to be desired, however this is a discussion for another day. As already stated, the District Delegate disposing the first issue as regards the jurisdiction of the court he went onlahead and to determine the second issue on the competence which was found in the negative. Having gone through the ruling and record I see nol fault in the court's ruling. On the basis of the above, I find the grounds of appeal unmeritorious and dismiss the appeal in its entirety. I Being that it is an appeal that emanates Page 13 of 14 no order for costs. Order accordingly. A.A. OMARI JUDGE 24/09/2024 Judgment delivered and dated 24th day of September, 2024 via Virtual Court in the presence of Witney Wallace Paul the Appellant's advocate and Ms. Theresia Shehe -RMA. A.A. OMARI JUDGE 24/09/2024 Page 14 of 14