William Festo Makune vs Ruth Makune (Civil Appeal No. 779 of 2023) [2026] TZCA 451 (29 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A.. MASOUD. 3.A. And MLACHA. J J U CIVIL APPEAL NO. 779 OF 2023 WILLIAM FESTO MAKUNE..................................................................APPELLANT VERSUS RUTH MAKUNE................................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Tiqanqa, J.) dated the 30th day of November, 2020 in PC. Civil Appeal No. 61 of 2020 RULING OF THE COURT 23rd & 28th April, 2026 LILA, JA: The appeal came for hearing on 23.4.2026 and the parties to it were duly represented. Mr. Francis Stolla and Mr. Kelvin Mutatina, both learned advocates, appeared to represent the appellant and the respondent respectively. The appellant and the respondent were also present in Court. Ahead of the hearing of the appeal, consistent with the settled practice that preliminary points of objections must be heard and determined first, the Court wished to hear the learned counsel of the

parties on the preliminary points of objection raised by the respondent through her counsel, a notice of which was lodged on 20/4/2026. The points of objection are couched thus: "(a) That, the appellant herein being the grandson o f the /ate Johana Makune Shi/atu had no locus standi to commence any objection or initiate any probate proceedings regarding the estate o f the grandfather in h is personal capacity, rendering the ruling in C ivil Application No. 07 o f 2019 o f the D istrict Court o f Kwimba a t Ngudu dated 08/07/2020 a nullity. (b) The applicant illeg ally sued the respondent in her own personal nam e/capacity while she was adm inistratrix o f the estate o f h is late father Johana Makune Shi/atu from 24/04/2019." In elaborating the points of objection, Mr. Mutatina opted to start with the second point of objection and was brief and straight forward to the point. He urged the Court to satisfy itself on the competence of the appeal after having noted that the respondent was wrongly dragged in the District Court by the appellant in Revision Application No. 07 of 2019 of the District Court of Kwimba at Ngudu in her personal name and capacity. In recalling the background of the matter so as to justify the point of

objection preferred, he argued that, at the time of lodging the said application, the respondent was already appointed an administratrix of the estate of the late Johana Makune Shilatu on 24/4/2019 by Ngulla Primary Court in Probate and Administration Cause No. 07 of 2019 as reflected at page 13 to 18 of the record of appeal. It is such appointment, he explained, which prompted the appellant to lodge the revision application against the respondent before the District Court (Revision Application No. 07 of 2019) but in her personal capacity instead of in her capacity as administratrix of the deceased's estate. Mr. Mutatina's further argument was that, since the application intended to challenge her appointment, Mr. Mutatina insisted that, the application ought to have been initiated against the respondent in her capacity as such. By failure to do so, the proceedings and ruling are a nullity and the consequential orders could not stand in the eyes of the law, he submitted. To remedy the anomaly, he urged the Court to invoke its revisional powers to nullify the proceedings, quash the ruling and set aside the orders of the District Court in Revision Application No. 07 of 2019 of the District Court of Kwimba at Ngudu dated 08/07/2020 and the High Court proceedings and judgment which emanated therefrom. 3

The anomaly being obvious, Mr. Stolla, exhibiting his usual professionalism, readily conceded to the point of objection raised in that respect. To us, the above point of objection was sufficient to dispose of the appeal such that we saw no compelling reasons to hear the parties' advocates on the first point of objection. We, indeed, agree with both learned counsel that the proceedings in revision application under discussion cannot escape the wrath of being declared a nullity. It is apparently clear that application No. 07 of 2019 was instituted by the appellant against the respondent at the time when the respondent was already appointed administratrix of the deceased estate by Ngulla Primary Court without indicating that she was the administratrix of the estate. In a plethora of decisions, the Court has condemned that practice as violative of the provisions of rule 6 of the 5th schedule to the Magistrates' court Act, Cap 11 of the Laws. That Rule provides: "An adm inistrator m ay bring and defend proceedings on behalf o f the estate".

The above Rule which is applicable in Primary courts is worded in such a way that it, in effect, reflects the same powers enjoyed by administrators under section 71 of the Probate and Administration of Estates Act, Cap. 352 which is applicable in the District Court, Resident Magistrates' Court and the High Court the Court which has been a subject of interpretation by the Court in various decisions. In all cases, the Court has consistently declared the omission fatal rendering the proceedings and consequential orders a nullity. The relevant section 71 provides that: "71. A fter any grant o f probate or letters o f adm inistration , no person other than the person to whom the same sh all have been granted sh all have pow er to sue or prosecute any suit, or otherwise act as representative o f the deceased, u ntil such probate or letters o f adm inistration sh all have been revoked or annulled." In interpreting section 71 above, the Court has, in a plethora of its decisions, discouraged the practice of dragging in court in their personal capacities as did the appellant herein an administrator/administratrix or a holder of letters of administration in matters relating to their capacity as such. A few of our recent decisions on the subject include, Malietha Gabo vs Adam Mtengu, Civil Appeal No. 485 of 2022 and Eliminata Masinda 5

and Another vs Masweti Masinda and Another, Civil Appeal No. 491 of 2023. The provisions of Rule 6 above being p a ri m ateria to section 71, we can borrow leaf from the cited decisions and hereby hold that, it was fatal for the appellant to institute the revision proceedings (Revision Application No. 07 of 2019) against the respondent before the District Court of Kwimba at Ngudu in her personal capacity. In similar veins, the appeal, proceedings and judgment of the High Court in PC (HC) No. 61 of 2020, the subject of this appeal, which emanated from the faulty proceedings of the District Court, was also wrongly instituted and prosecuted by the respondent in her personal capacity. The above said, the second point of objection is hereby sustained. Consequently, the appeal before us is hereby struck out. Exercising our powers of revision bestowed on the Court under section 6(2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2023, we hereby revise and quash the application, proceedings, judgement and set aside the orders issued by the District Court. In consequence thereof, the respondent remains to be the administratrix of the estate of the late Johana Makune Shilatu as she was appointed by Ngulla Primary Court who should proceed to exercise all 6

the powers of an administratrix in respect of the deceased's estate according to law. Considering the nature of the appeal and the parties involved being relatives, we hereby order each party to bear its own costs. It is so ordered, DATED at TABORA this 28th day of April, 2026. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 29th day of April, 2026 in the presence of Mr. Francis Stolla, learned counsel for the Appellant, Mr. Kelvin Mutatina, learned counsel for the Respondent by virtual Court, and Mr. Magesa Fabiane Mgeta, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL