Ruling RAMADHANI YUSUPH HUSSEIN v ZAITUNI HUSSEIN ZEDI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MWANZA

AT MWANZA PC CIVIL APPEAL NO. 27624 OF 2023 (Originating from the Ruling of the District Court of Ilemela at Mwanza (Hon. S.T. Kiama – RM) dated 30/08/2023 in Misc. Application No. 11 of 2023, originating from Probate Cause No. 109/2022 of Ilemela Primary Court) RAMADHANI YUSUPH HUSSEIN…………………….……..…………. APPELLANT

VERSUS ZAITUNI HUSSEIN ZEDI………………………..……………………. RESPONDENT

RULING 6th & 7th June 2024 ITEMBA, J. This matter originates from probate cause No. 109 of 2022 at Ilemela Primary Court (the trial court) where the respondent was appointed as administratrix of the estate of Hussein Zedi. After closure of the probate cause on 4/10/2022, the trial court reopened the matter on 10/1/2023 where the court heard and granted a prayer from the respondent herein to sell the deceased’s house and distribute the proceeds to the heirs. Aggrieved by an order of the trial court the appellant herein filed revision application to the District Court of Ilemela District (Misc. Civil Application No. 11 of 2023). The application was faced with a preliminary objection that, it was filed as an alternative to appeal. The District Court sustained the preliminary objection hence this appeal. Likewise, the present appeal did not commence smoothly. It faced three points of preliminary objections that; 1 1. The appeal is time barred; 2. The appeal was filed without a correspondence of Kiswahili version; 3. The respondent is wrongly sued under her personal capacity and not as administratix of the estates of the late Hussein Zedi. At the hearing, Mr. Bruno Mvungi represented the applicants while the respondent had the services of Messrs. Joseph Madukwa and Madulu Madulu all learned counsels. Upon some deliberations, the appellant’s counsel abandoned the first two points of

preliminary objection and maintained the last point. On his part, Mr. Mvungi conceded to the 3rd point of preliminary objection. Following consensus of parties, I had an opportunity to peruse the records of the two lower courts to see whether the point of preliminary objection carries merit. As I have stated above, the trial court appointed the respondent to be the administratrix of the estates of Hussein Zedi on 4th July 2022. Therefore, an application before the District Court being filed on 26th day of March 2023 was supposed to be instituted against the respondent under her administrative capacity. In the case of Abdulatif Mohamed Hamis vs Mehboob Yusuf Othman & Another (Civil Revision 6 of 2017) the Court of Appeal held at page 22 and 23 that; 2 “We have purposely supplied emphasis on the extracted entry to underscore the fact that the 1st respondent's ownership of the suit land was not in her personal capacity, rather, it was on account of her being the legal representative of the deceased. Thus, in our view, to the extent that the suit land was vested upon the 2nd respondent by virtue of her capacity as the deceased's legal representative, any suit with respect to that property ought to have been instituted against her in that capacity.” (emphasis supplied). The Court went further that: ‘Since, as we have just remarked, the legal representative of the deceased was a

necessary party, her non-joinder was fatal and the trial court, either on its own accord, or upon a direction to the 1st respondent, was enjoined to strike out the name of the 1st respondent and substitute to it her name with the caption: “the legal representative of the deceased’. Guided by the above cited authority, the Miscellaneous Civil Application no. 11 of 2023 before the District Court was instituted against the wrong party. This is an irregularity which goes to the root of the case and cannot be left to stand. Consequently, I hereby strike out the name of the respondent who was improperly joined in her personal capacity. As a result, the entire proceedings of the District Court in crushes down. The ruling and orders thereof are set aside. Therefore, the status of this matter 3 goes back to where it was, immediately before the institution of Miscellaneous Civil Application no. 11 of 2023. The applicant, if he still wishes, may re-institute the application against the right parties. Considering the fact that this is a probate matter, I order no costs. It is so ordered. Right of Appeal fully explained to the parties. Dated at Mwanza this 7th day of May 2024. L. K.J. ITEMBA

JUDGE 4