nyamuhika a maharagande others vs mahiku a maharagande 2016 tzhc 2134 28 january 2016

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT PAR ES SALAAM MISC. CIVIL APPLICATION NO. 484 OF 2015 (PC Civil Appeal No.7/2009) 1. NYAMUHIKA A. MAHARAGANDE 1st a p p l i c a n t 2. MADARAKA A. MAHARAGANDE . 2nd APPLICANT 3. IBARIKI A. MAHARAGANDE..... 3rd APPLICANT 4. MBARALA A. MAHARAGANDE .... 4th APPLICANT 5. MTEGAME A. MAHARAGANDE ... 5th APPLICANT 6. SALEHE A. MAHARAGANDE...... 6th APPLICANT Versus MAHIKU A. MAHARAGANDE.............. ... RESPONDENT The date of last Order: 26/11/2015 The date of Ruling: 28/01/2016 RULING FELESHI, J.: This ruling originates from an application made under section 5(1) (c) and 2(c) of the Appellate Jurisdiction Act, [CAP. 141 R.E, 2002], Rule 45(a) of the Court of Appeal Rules, 2009 G.N. No. 368 of 2009 and section 95 of the Civil Procedure Code, [CAP. 33 R.E, 2002] for the Court to certify that there is a point of law to be determined by the Court of Appeal of Tanzania and grant leave to the applicants to appeal to the Court of Appeal against the Judgment and Decree in Primary Court Civil Appeal No. 7 of 2009. The Points of law sought to be certified with leave to appeal to the Court of Appeal of Tanzania are stated under paragraph 8 of the applicants' affidavit to wit:- (i) Whether it was proper for the respondent to apply before the Primary Court for an order of selling the property while the same property had already been sold to another person. (ii) Whether it was proper for the Court (Primary Court) to interfere in the transaction of selling the property while there was an appointed administrator whose duties had not ceased. (iii) Whether it was proper for the High Court to find that the Primary Court was right to order sale of the property without considering the time limit from the date the respondent was appointed and the time of distribution of the estate. (iv) Whether it was proper for the High Court to find that the Primary Court proceedings were valid without considering the applicable law in the distribution of the estate of the late Abdallah Maharagande. I have considered the submissions by parties but I have discarded reliance on them for the same went into the extent of substantiating the intended grounds of appeal the mandate which is not vested to this Court as this Court is not the Court of Appeal of Tanzania. The task vested to this Court is only to ascertain whether the intended grounds of appeal amounts to points of law worth to be placed before the Court of Appeal for consideration and then certify and or grant leave to that effect (if any). Considering the requirements of the law regarding Certification on Point of Law and granting leave to appeal to the Court of Appeal of Tanzania, this Court has been satisfied and is of the considered view that only three out of the four intended points are points of law worth to be placed before the Court of Appeal of Tanzania for consideration. The 4th point/ground is a point of fact that does not fall under this application. In the premises, the applicants are hereby granted leave to appeal to the Court of Appeal of Tanzania. Besides, a Certificate on Point of Law is Page 2 of 3 also issued that the following intended grounds to be placed before the Court of Appeal for determination, that is:- (i) Whether it was proper for the respondent to apply before the Primary Court for an order of selling the property while the same property had already been sold to another person. (ii) Whether it was proper for the Court (Primary Court) to interfere in the transaction of selling the property while there was an appointed administrator whose duties had not ceased. (iii) Whether it was proper for the High Court to find that the Primary Court was right to order sale of the property without considering the time limit from the date the respondent was appointed and the time of distribution of the estate. Considering the circumstances of the case, I make no order as to cos' Ruling delivered in chambers this 28th day of January, 2016 in presence of 2nd, 3rd Applicants, 1st, 4th, 5th and 6th Applicants being absent \ and the Respondent being pr<