Dalli Yusuph Musa vs Salumu Ahmad Nandonde & Another (Civil Appeal No. 1933 of 2025) [2026] TZCA 442 (28 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: KEREFU. J.A.. MWAMPASHI., J.A And ISMAIL., 3.A.) CIVIL APPEAL NO. 1933 OF 2025 DALLIYUSUPH MUSA (As the Administrator of the Estate of the Late YUSUPH DALLI MUSA) ......................APPELLANT VERSUS SALUMU AHMAD NANDONDE........................... .............. 1 st RESPONDENT ZAWAYAYI ABDALLAH.....................................................2 nd RESPONDENT [Appeal from the Ruling of the High Court of Tanzania (One Stop Judicial Centre) at Temeke Dar es Salaam] fBarthv, J.) dated 01s t day of August, 2025 in Miscellaneous Civil Application No. 10220 of 2025 JUDGMENT OF THE COURT 21st & 28th April, 2026 MWAMPASHI, J.A.: This is an appeal against the decision of the High Court of Tanzania at One Stop Judicial Centre Temeke (Barthy, J) in Miscellaneous Civil Application No. 10220 of 2025 dated 01.08.2025. In that decision, the High Court dismissed the application by Dalli Yusuph Musa (as the administrator of the estate of the late Yusuph Dalli Musa), the appellant herein, for extension of time within which to lodge an appeal to the High Court against the decision of the District Court of Kinondoni in Civil Revision No. 02 of 2022 dated 27.02.2024 which nullified the appellant's grant of letters of administration of the estate of the late Yusuph Dalli Musa. The material facts giving rise of the appeal as discerned from the record of appeal are not complicated. On 28.10.2019, the Primary Court of Ki nondon't in Probate Cause No. 157 of 2019 granted to the appellant letters of administration to administer the estate of his late father, Yusuph Dalli Musa who died interstate on 09.04.2019. It appears that the grant of the letters to the appellant discontented Salumu Ahmad Nandonde, the 1s t respondent herein, who complained and raised an objection before the Primary Court praying for the revocation of the grant of the letters to the appellant. In its ruling dated 15.01.2021 which, we think, was made in the same Probate Cause No. 157 of 2019 but which was erroneously given a new registration number as Probate Cause No. 157 of 2020, the objection raised by the 1s t respondent was dismissed for being baseless. Aggrieved by the dismissal of his objection, the 1s t respondent, in collaboration with Zawayayi Abdallah, the 2n d respondent herein, filed Civil Revision No, 02 of 2022 to the District Court of Kinondoni. In that application which was filed on 11.01.2022, the respondents sought for revision of the ruling of the Primary Court dated 15.01.2021. The District Court heard the application ex-parte against the appellant and granted it by nullifying the Primary Court's proceedings and decisions dated 25.10.2019 and 15.01.2021. Consequently, the letters of administration of the estate of the late Yusuph Dalli Musa which initially, had been granted to the appellant by the Primary Court, were revoked and any party interested, was advised to apply for the same in accordance with the law. The decision of the District Court aggrieved the appellant. Desirous of appealing against the decision to the High Court but finding himself out of time, the appellant had to file Miscellaneous Civil Application No. 10220 of 2025 to the High Court for extension of time within which to lodge his intended appeal. As we have alluded to earlier, the application was dismissed. The High Court found that, the appellant had delayed for about 485 days which he had failed to account for. It was also found that, the illegality raised by the appellant was not apparent on the face of the record. In the instant appeal, the High Court is being faulted on grounds that; one, the trial Judge erred in law and fact in holding that illegality on time limitation was not apparent on the face of records; two, the trial Judge erred in law and fact in failing to determine the issue of improper service of summons and in not assigning reasons for such omission; 3 three, the trial Judge erred in law and fact in holding that the appellant was required to account for the delay of each day from the date of the substituted service; four, the trial Judge erred in law and fact in holding that the appellant had delayed for a period of 485 days and five, the trial Judge erred in law and fact in disregarding and failing to determine the cardinal issue of the right to be heard without providing any reason for such omission. At the hearing of the appeal, the appellant and the respondents had the services of Messrs. Fredrick Massawe Augusti and Mussa Kiobya, both learned advocates, respectively. The preliminary objection, notice of which had earlier been filed by the respondents on 13.04.2026, having been withdrawn by Mr. Kiobya for being misconceived, Mr. Augusti took the floor to argue the grounds of appeal. He adopted the appellant's written submissions earlier filed on 26.11.2025 and prayed for the appeal to be allowed without more. On the 1s t ground of appeal, the High Court is being faulted for holding that the illegality raised by the appellant to substantiate extension of time was not apparent on the face of the record. It was submitted for the appellant that, contrary to the High Court holding, the fact that the respondents' application for revision to the District Court was time barred was clearly evident on the record. It was expounded that, while the appellant was granted with letters of administration of the estate of his late father on 28.10.2019 in Probate Cause No. 157 of 2019, Civil Application No. 02 of 2022 for revision by the respondents was filed in the District Court on 11.01.2022 which is beyond the period of 12 months prescribed by section 22 (4) of the Magistrates' Courts Act, [Cap. 11 R.E.2023] (the MCA). In conclusion on the 1s t ground of appeal, it was submitted for the appellant that, the illegality on time bar was apparent on the face of the record. Reliance placed on the decision of the Court in Ramadhani Bakari & 95 Others v. Agha Khan Hospital [2023] T7CA 17552, it was also argued that, the mere fact that illegality was raised as a ground for extension of time, it sufficed for grant of extension of time. Responding to the 1s t ground of appeal, Mr. Kiobya simply submitted that, as rightly held by the High Court, the time bar illegality raised by the appellant as a ground for extension of time was not apparent on the face of the record. The issue being raised on the 1s t ground of appeal is whether or not the illegality attached to the complaint that the application for revision before the District Court was time barred is apparent on the face of the record. On this issue, we think, it is apposite to begin our discussion by addressing the argument that where, in an application for extension of time, illegality is raised as a ground, time has to be extended without more. Having revisited the decision in Ramadhani Bakari &95 Others (supra) on which the appellant based his contention that raising illegality suffices for extension of time without more, we are of settled mind that the decision in that case was given perincuriam. In times past, before the decision in Ramadhani Bakari & 95 Others (supra), it had been realized that the principle on illegality as a ground for extension of time, appeared to be so wide. On that account, the Court in Lyamuya Construction Company Limited v, Board of Registered Trustees of Young Women Association of Tanzania [42011] TZCA, restricted the principle by stating that: "Since every party intending to appeal seeks to challenge a decision either on point o f law or fact, it cannot in my view, be said that in VALAMBHIA's case, the Court meant to draw a general rule that every applicant who demonstrates that his intended appeal raises points o f law should as o f right be granted extension o f time if he applies for one. The Court there emphasized that such point o f law must be that o f sufficient importance and, I would add that it must be apparent on the face o f the record, such as the question o f jurisdiction; not one that would be discovered by long drawn argument or process". [Emphasis supplied] The above position on restriction of the principle on illegality to the effect that where illegality is raised as a ground for extension of time, the alleged illegality must be apparent on the face of the decision intended to be challenged, had been restated and emphasized by the Court in a number of its decisions including Tumsifu Kimaro (The Administrator of the Estate of the Late Eliamini Kimaro) v. Mohamed Mshindo [2018] TZCA 40. That being the position, the High Court cannot be faulted for holding that illegality raised by the appellant as a ground for extension of time, needed to be apparent on the face of the record. As regards the holding by the High Court that the illegality on time bar raised by the appellant was not apparent on the face of the record, we are unable to fault the High Court. Having gone through the affidavit filed in support of the application for extension of time before the High Court, we have noted that there was no mention therein of the decision of the Primary Court dated 15.01.2021 which is very momentous in as far as the issue whether the application before the District Court was time barred or not. It should be pointed out that, contrary to the appellant's stance that it is the decision of the Primary Court dated 25.10.2019 in Probate Cause No 157 of 2019 which was placed before the District Court for revision, the record is clear that the decision by the Primary Court which was subjected to revision by the District Court in Civil Revision No. 02 of 2022 and which was allegedly filed out of time was the decision dated 15.01.2021. Since the existence of that decision was neither disclosed to the High Court in the application for extension of time nor was it placed before it, the holding that the illegality raised was not apparent on the face of the record was in order. If we may go a little further on the appellant's complaint that the application for revision to the District Court was filed out of time, having gone through the record of appeal before us, we are satisfied that the application was not filed out of time as claimed by the appellant. The application was filed within the period of 12 months prescribed by section 22 (4) of the MCA which states that: "Proceedings shall not be revised under this section after the expiration o f twelve months from the termination o f such proceedings in the primary court and no proceedings shall be further revised under this section in respect o f any matter arising thereon which haspreviously been the subjectofa revision order under this section". [Emphasis added]. As we have alluded to earlier, the decision which was the subject of revision by the District Court in Civil Revision No. 02 of 2022 appearing at page 41 of the record of appeal, was rendered out on 15.01.2021. On the other hand, as it is reflected at page 29 of the record of appeal, Civil Revision No. 20 of 2022 was lodged on 11.01.2022, hence within the prescribed period of 12 months as the decision sought to be revised was rendered on 15.01.2021. In the totality of the above reasons, the 1s t ground of appeal is baseless and it is accordingly dismissed. The 2n d ground of appeal was argued conjointly with the 5th ground. The two grounds which are on the propriety, effectiveness or otherwise of service of summonses on the appellant cover the second limb of illegality raised by the appellant before the High Court as a ground for extension of time. It was submitted that the appellant's complaint that the decision of the District Court was tainted with illegality for failure to properly serve him hence denying his right to be heard was not determined by the High Court. On this, the appellant referred us to our decision in Mang'eni Ibagi v. David Sospeter (as an Administrator of the estate of the late Sospeter Magambo) [2024] TZCA 638. It was further argued that, since summonses were not properly served on the appellant the substituted service was invalid for lack of foundation. In support of the 2n d and 5th grounds of appeal, it was further submitted that, the fact that summonses were allegedly served by the Sinza "E" Street Chairman who is not an authorised or registered process server was apparent on the face of the record. In support of the argument that judicial documents should be served by court process servers, the decisions of the Court in Hi-Bros Canvas Tents Limited & Another v. I & M Bank (T) Limited [2025] 77CA 329 and Tumsifu Gabriel Mmari v. Exaud Gabriel Mmari (Administrator of the Estate of the Late Silipa Yetro Lema [2025] TZCA 192, were cited. It was insisted that, the illegality arising from improper service which led to the application for revision to be heard and determined ex~parte against the appellant was apparent on the face of the record and therefore the extension of time ought to have been granted by the High Court on that ground. On his part, Mr. Kiobya submitted that the 2n d and 5th grounds of appeal are baseless. He argued that, having refused service, the appellant was properly served by way of substituted service. He expounded that, summonses notifying the appellant of the hearing date of the application 10 and of the date on which the decision would be pronounced, were published in newspapers. On our part, we firstly find that the complaint that the High Court did not determine the issue of the alleged illegality on improper service and denial of the right to be heard is unfounded. In its ruling at page 92 of the record of appeal, the High Court is on record holding that "the record shows that substituted service was effected by pubiication in compliance with a court order. As such, the question o f illegality on this ground is not apparent on the face o f the record". From the foregoing excerpt, it is thus crystal clear that, though nor rightly as we are about to observe hereunder, it cannot be said that the High Court did not determine the issue of service. The issue was determined. The issue calling for our determination in that respect, is whether the illegality relating to the alleged improper service and denial of the right to be heard was manifest on the face of the record or not. On this, having glanced at the notices of hearing (summonses) appearing at pages 32 and 33 of the record of appeal as well as the newspapers' cuttings reflected at pages 44 and 46 of the record of appeal, we have observed that, the alleged illegality is apparent on the face of the record. Without going any further, we are of a settled finding that, in these circumstances, ii the issue whether there was proper and effective service on the appellant which is legal, is manifest on the face of the record. Undeniably, it is a resolve on the propriety and effectiveness of the service that will justify the hearing and determination of the application for revision by the District Court in the absence of the appellant and without affording him the right to be heard. Having satisfied ourselves that the illegality on the alleged improper service and denial of the right to be heard exist and is apparent on the face of the record requiring no long drawn exercise to realise it, we find that good cause for extension of time has been shown. The law is settled that, where the point of law at issue is the illegality or otherwise of the decision sought to be challenged on appeal, that by itself constitutes good cause for extension of time, see- VIP Engineering and Marketing Limited & 2 Others v. Citibank Tanzania Limited [2007] TZCA 347. That being the position of the law, and having found that the alleged illegality regarding service and the right to be heard is manifest on the face of the record, we find no compelling reason of determining the remaining two grounds of appeal which are on the requirement of accounting for the delay. The ground on the alleged illegality relating to service and the right to be heard suffices to dispose of the appeal. All said and done, the appeal is allowed. Time is hereby extended for the appellant to lodge his appeal against the decision of the District Court in Civil Revision No. 02 of 2022 dated 27.02.2024 to the High Court within forty-five (45) days from the date of the delivery of this judgment. Given the nature of the matter, we make no order as to costs. DATED at DODOMA this 28th day of April, 2026. R. J. KEREFU 1USTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered Virtually this 28th day of April, 2026 in the presence of the Mr. Fredrick Massawe Augusti, learned counsel for the appellant and Mr. Mussa Kiobya, learned counsel for the respondent and Mr. Shafii Kassimu, Court Clerk; Court is hereby certified as a true copy of the origi 13