Enock Andrew Mziray vs Rithajohn Makala (Civil Appeal No. 1169 of 2024) [2026] TZCA 626 (3 June 2026)

IN THE C OURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: MWARIJA J.A.. GALEBA. J.A. And KHAMIS, 3.A.^ l CIVIL APPEAL NO. 1169 OF 2024 ENOCK ANDREW MZIRAY .......................................................... APPELLANT VERSUS RITHAJOHN MAKALA............................................. ........... ....RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Dar es Salaam) (MaghlmbLL) dated the 12th day of March, 2024 in Miscellaneous Civil Application No. 364 of 2024 RULING OF THE COURT 28th April & 3rd June, 2026 GALEBA. 3.A.; This appeal arises from a probate and administration dispute. On 16th December 2022, in Probate and Administration Cause No. 62 of 2014, the High Court of Tanzania at Dar es Salaam (Rwizile J.) nullified the will of the late Dr. Tito Andrew Mziray (the late Dr. Andrew) who had passed away earlier on. The court granted the letters of administration to the parties to this appeal as joint administrators. It appears the joint administration of the late Dr. Andrew's estate did not go well such that the respondent in this appeal, approached the High Court in Miscellaneous Civil Application No. 364 of 2023, moving it to revoke the appointment of the appellant in this appeal. In determining that matter, the High Court (Maghimbi J.)/ made a finding that, the joint administrators had failed to co-administer the estate of the late Dr. Andrew, hence revoked their appointment, and made the following order: "i. The Administrator General is appointed the new administrator o f the estate o f the late Dr. Tito Andrew Mziray. 2. Subsequent to that, the parties are ordered to surrender to the court within 14 days o f this ruling the letters o f administration issued to them in Probate [and Administration] Cause No. 62 o f 2014 in terms o f section 51 o f the Act. 3. The Administrator Genera! should be handed by the respondent herein, all the estate in possession o f any o f the parties in this application , the heirs or any person who came into possession o f such estate. 4. On her part, the Administrator General shall Hie in this Court an inventory as [prescribed] by section 107 o f the Probate and Administration o f Estates Act, within the prescribed time. 2 5. Given the nature o f what has been decided\ and this being a probate matter, no order as to costs." Both parties to this appeal were aggrieved by the above order. Whereas the appellant filed the appeal, the respondent filed a cross appeal. One of the grounds by the appellant was that, the High Court in appointing the Administrator General, did not observe the requirements of the Administrator General (Powers and Functions) Act, Cap 27 of the laws. The respondent's ground in her cross appeal relevant to the above order was that; the issue of appointing the Administrator General as the administrator of the estate, was raised by the court suo motu and determined without affording the parties the right to be heard before their appointment was revoked. In short, both parties to this appeal, are moving the Court to revoke the appointment of the Administrator General. At the hearing of this appeal, the appellant was represented by Mr. Roman Masumbuko, learned advocate, whereas the respondent had the services of Messrs. Peter Swai and Deogratius Ogunde Ogunde, both learned advocates. Considering the nature of the parties' respective prayers in this appeal, namely, revocation of the appointment of the Administrator General, before hearing could take off, we asked learned advocates to address us on whether, the Administrator General was supposed to be served with a notice of appeal in the context of rule 84 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). If yes, whether the appellant effected service of the said notice of appeal to the Administrator General as per the law and if no, why. Rule 84 (1) of the Rules provides as follows: "84. (1) An intended appellant shall, before, or within fourteen days after lodging a notice o f appeal, serve copies o f it on all persons who seem to him to be directly affected by the appeal; but the Court may, on an ex parte application, direct that service need not be effected on any person who took no part in the proceedings in the High Court." [Emphasis added] Mr. Masumbuko emphatically contended that, the orders which this Court will make, will have no legal effect to the Administrator General, and therefore, there was no need to serve the notice of appeal to her. He urged us to proceed with hearing of the appeal. Initially that was Mr. Swai's contention also before he changed position. We will get back to this point in due course. For now we wish to observe that there was yet another issue which we raised with learned counsel as below. 4 The ruling of the High Court challenged in this appeal is dated 12th March, 2024. On 9th April, 2024, the appellant's advocates wrote a letter to the Deputy Registrar of the High Court, requesting for a copy of the proceedings, under rule 90 (1) of the Rules. The letter was served on the respondent on 16thApril, 2024. Counting from 12th March, 2024 being the date of the impugned ruling to 16th April, 2024 when the letter was served on the respondent, it was more than 30 days, contrary to rule 90 (3) of the Rules, which provides as follows: "(3) An appellant shall not be entitled to rely on the exception to sub-ruie (1) unless his application for the copy was in writing and a copy o f it was served on the Respondent within thirty days, un/ess the respondent acknowledges receipt or the Court orders otherwise," [Emphasis added] In response to our query on this point, Mr. Masumbuko did not think there was anything alarming. He raised a couple of points to explain his position. One, at the time the impugned ruling was given that is, on 12th March, 2024, rule 90 (3) had not set any timeline to serve the letter on the respondent, the amendment to the Rules which introduced the thirty (30) days requirement, took effect on 22n d March, 2024, when the amendment was gazetted. Otherwise previously there was no clear timeframe for service of the letter. Two, the Rules even now do not provide that service of the letter has to be within thirty (30) days from the date of the challenged decision. Three, assuming that the letter was served out of time and therefore the appeal be deemed time barred and thus incompetent, still the Court is seized of the matter as the decision of the High Court is a nullity for the court did not have jurisdiction to appoint the Administrator General in terms of sections 5 and 6 of the Administrator General (Powers and Functions) Act, as complained in the memorandum of appeal. In this case, Mr. Masumbuko contended that the Court has consistently, under section 6 (2) of the Appellate Jurisdiction Act, (AJA), revised decisions of the High Court when they are nullities, even where appeals are for some reason incompetent. He undertook to supply authorities to support his argument. Tine summary of his points were that; first the appeal was competent because, when the ruling challenged was being passed the alleged thirty (30) days had not been set, and second, the Rules even now do not compel service of the letter to the respondent to necessarily be done within thirty (30) days of the decision challenged. Third, that even if we fault him on that point, this Court should still hear him because the impugned decision is a nullity, we invoke our revisionary jurisdiction and declare it accordingly. Mr. Swa* agreed that, indeed the appeal was incompetent because the letter to his client was served beyond the thirty (30) days from the date of the ruling, and prayed that the respondent's cross appeal, be struck out. As for the way forward, the learned counsel, was of the view that, the appeal may still be heard as had been submitted by Mr. Masumbuko although h,e was visibly adamant in making that proposal. In resolving the issue regarding the time within which the letter requesting for copies of proceedings should be served to the respondent, we will discuss it along with case law in a chronological order from the earliest decision we were able to trace to the most recent. We will start with the case of the Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R. 387, where the Court held as follows: "There must be a time limit within which the appellant is to serve the respondent with a copy .o f the letter to the Registrar. We think that the period o f 30 days within which the appellant is required under rule 83 (1) [now Rule 90 (1) o f the Rules] to apply to the Registrar for a copy of the proceedings should be construed to be co-extensive with the period within which the appellant has to send a copy o f that letter to the respondent" [Emphasis added] After Valambhia (supra), the case of Hamad Juma v. Mohamed Geregeza [2005] TZCA 216 followed, where this Court in December 2005, stated as follows: "In the instant case, the decision o f the High Court was given on 10/10/2002. Under rule 83 (1) application for copy o f the proceedings ought to have been made within thirty days o f the above date o f the decision. So, by 2/12/2004 when the letter was written it was already time barred. Furthermore, in line with Valambhia's case (supra) the letter was also supposed to be served on the applicant within thatperiod o f thirty days. Unfortunately, there is no record that was done ." [Emphasis added] 8 The same legal position was restated in the case of IBM Tanzania Limited v. Commissioner General (TRA) [2025] TZCA 1240, where this Court stated: "Much as the appellant's contention may carry some truth that, the period o f thirty days was introduced in rule 90 (3) o f the Rules by virtue o f the Tanzania Court o f Appeal (Amendment) Rules 2024 (GN No. 188 o f2024), we think , the learned counsel's argument that it was not a requirement o f the law, or rather, there was no guidance in that aspect, is misplaced. We say so because, even before the amendment o f the Rules, the Iaw was quite settled way back since the 1990’ s that the letter requesting for documents must be served on the respondent within thirty days from the date o f the decision to be challenged." [Emphasis added] From the above authorities, it is clear that the requirement to serve a letter requesting for copies of proceedings to the respondent, is not a new phenomenon as Mr. Masumbuko was impressing on us. The requirement has always been part of this Court's appellate process and the amendment of the Rules in 2024 was to make it formal and statutory. 9 There are many other cases covering the subject under discussion, but suffice it to mention only two, namely; Novatus Williams Nkwama v. TUGHE [2022] TZCA 40 and Irene Malanga v. Patrick Christopher O'dwer [2025] TZCA 161. It is appropriate at this point to highlight in a sentence or two the legal effect to an appeal, where the appellant fails to serve a copy of the letter requesting for copies of proceedings to the respondent within thirty (30) days from the date of the impugned decision as per the legal requirement. Hie outcome is that the appellant cannot rely on the certificate of delay, see rule 90 (3) of the Rules quoted above. In the context of this case, the certificate of delay contained at page 314 of the record of appeal is of no legal effect, as the appellant is not entitled to exclusion of the time required for the preparation and delivery of the copy of proceedings. As such the time for filing an appeal is counted from 9th April, 2024 when the notice of appeal was lodged up to 4th November, 2024 when the memorandum of appeal was filed. Upon counting, if it is found out that the days are sixty (60) or below, the appeal will have been filed within time, but if the days will exceed that number, the appeal will be time barred as per rule 90 (1) of the Rules. In this case, the appeal was filed 10 beyond seven (7) months. That means, this appeal was filed out time; it is time barred and therefore, incompetent. Mr. Masumbuko contended that, this Court has on numerous occasions invoked its revisional jurisdiction to entertain and determine incompetent appeals like this one, and supplied about eight authorities. We should point out here that, this Court has sparingly done so and with great caution considering the unique circumstances of each case. The circumstances of this matter however, are not appropriate for us to follow the route proposed by Mr. Masumbuko. We will explain why. At the very beginning of this ruling we indicated that, the decision of the High Court was in favour of the Administrator General who is not a party to these proceedings. When we asked Messrs. Masumbuko and Swai, whether that party would be affected by the order of this Court in case we revoke her appointment as an administrator of the estate of the late Dr. Andrew, they both contended that because the Administrator General has not taken possession of any assets, then, she was not entitled to be served with the notice of appeal in the context of rule 84 (1) of the Rules. ii In all humility, we do not agree with this contention. That is so because, we have failed to comprehend how a party asking the Court to revoke appointment of the Administrator General, can at the same time, genuinely contend that, such revocation has nothing to do with the interest of the person targeted by the revocation order. In our view, once appointed as administrator of the estate the Administrator General gained the legal power to deal with the deceased's estate, pay debts, and distribute the remaining assets to heirs. The intended revocation would strip those powers immediately. The Administrator General is affected because she would no longer act, and any actions taken by her after revocation would be void. Under the Probate and Administration of Estates Act, Cap 352, revocation ends the grant. (See section 49). It should further be noted that, an administrator remains accountable for how he managed the estate before revocation. If he misapplied the assets, fails to keep accounts, or causes loss, he/she becomes liable to the beneficiaries or the creditors. The Administrator General can be sued or be ordered to account even after his removal. We are also aware that, revocation creates a duty to deliver all estate assets, documents, and accounts to the new administrator or the 12 Court as may be decided by the Court. Failure to do so is contempt. As such, the Administrator General is "affected" because new legal obligations arise from the revocation itself. In the other words, it is our firm decision that the Administrator General is a person likely to be affected by the outcome of this appeal and was supposed to be served with the notice of appeal within fourteen (14) days of filing the same, which was not done. In law, service of a notice of appeal is an essential step in progressing the appeal, and in terms of rule 89 (2) of the Rules, failure to take such a step or taking it out of the prescribed time, vitiates a notice of appeal hence an appeal as a whole, see Bank of India (Tanzania) Limited v. Y. P. Road Haulage Limited & Others [2021] TZCA 461. That is to say, even if we would have found that, the High Court committed an illegality for which we would have retained the record in order to cure or to remove the illegality, we would at the same time, be committing another illegality, that is, to entertain an appeal to set aside orders against a party who was not served with the notice of appeal in which he has an interest. That, we cannot do in any circumstances. In view of the above, we find this appeal to be incompetent. We therefore strike it out as well as the cross appeal as per Mr. Swai's prayer. 13 As for costs, we make no order in that respect, for this appeal arose from probate and administration proceedings. DATED at DODOMA this 1s t day of June, 2026. A. G. MWARIJA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Ruling delivered virtually, this 3r d day of June, 2026 in the presence of Mr. Fraterine Lawrence Munale, learned counsel for the Appellant, Mr. Deogratius Ogunde Ogunde, learned counsel for the Respondent and Ms. Tabitha Daniel, Court Clerk; is hereby certified as a true copy of the original. V )/ I ^ ii. G.^RANGU ENIOR DEPUTY REGISTRAR COURT OF APPEAL 14