Winford Fidelis Kimambo vs Rukia Vincent Kimambo (Civil Appeal No. 829 of 2024) [2026] TZCA 412 (14 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MWANDAMBO. J.A.. MWAMPASHI. J.A. And MLACHA, J.A.) CIVIL APPEAL NO. 829 OF 2024 WINFORD FIDELIS KIMAMBO . ..... . ...................... . ....... . APPELLANT VERSUS RUKIA VINCENT KIMAMBO...........................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Manyara Sub-Registry at Babati) (Mirindo. J.l dated the 3r d May, 2024 in Civil Appeal No. 28264 of 2023 JUDGMENT OF THE COURT 27t h February & I4h April, 2026 MLACHA. 3.A.: This appeal originates from the decision of the District Court of Simanjiro in Probate and Administration Cause No. 1 of 2023. It is a struggle to control the estate of the late Vincent Fidelis Kimaro who died intestate on 22. 11. 2007 at Mirerani area, Simanjiro District, Manyara Region. It touches the practice and procedure of administration of estates in the District Court and the High Court on what is to be done once an administrator of the estate or executor of a will dies. It is a battle between a daughter and her uncle. i Briefly stated, the background facts can be presented as follows. Vincent Fidelis Kimambo died at Mirerani area, Simanjiro District Manyara Region. Following the death, the Kimambo clan convened a meeting at Old Moshi, under the Chairmanship of Lemwel Kimambo and proposed the deceased father, Fidelis Jacob Kimambo, to be the administrator of his estate. Backed with the minutes of the meeting and the necessary documents, he filed Probate and Administration Cause No. 2 of 2022 at the District Court of Simanjiro at Orkesumet seeking to be appointed the administrator. He stated, among other things that, the late Vincent was survived by one daughter whose whereabouts couid not be located. As there was no objection to the petition, Fidelis Jacob Kimambo was appointed the administrator of the estate on 12. 7. 2022. Later, Rukia Vincent Kimambo appeared claiming to be a daughter of the deceased and filed Miscellaneous Civil Application No. 5 of 2023 seeking revocation of the appointment of Fidelis Jacob Kimambo. Fidelis died before the application for revocation was determined. Faced with this predicament, the District Court marked the petition and the application as abated and made an order directing whoever was interested in the estate to file a fresh petition to be appointed an administrator. 2 Rukia Vincent Kimambo, the respondent herein, filed Probate and Administration Cause No. 1 of 2023 seeking to be appointed the administrator of the estate of the late Vincent. Winford Fedeiis Kimambo, the brother of Vincent, the appellant herein, appeared and took three steps. One, he filed Miscellaneous Civil Application No. 6 of 2023 at the High Court of Tanzania at Babati seeking revision of the decision of the District Court. He was found as having no locus standi in the petition and the application was dismissed. Two, he filed Administration Cause No. 1 of 2023 at the Primary Court of Moshi District at Old Moshi seeking to administer the estate of the late Fidelis Jacob Kimambo. He was appointed the administrator of the estate of the late Fidelis Jacob Kimambo. Three, he filed a caveat in Probate and Administration Cause No. 1 of 2023 objecting the appointment of Rukia. The District Count upon receiving the caveat, marked the petition as contentious and directed Rukia to file a civil suit which she complied and filed Civil Case No. 1 of 2023. On being served with the plaint, Winford filed a written statement of defence (WSD) with two preliminary objections. One of the objections which was sustained, challenged the jurisdiction of the District Court to entertain both the petition and the civil case. The objection was sustained and the petition and the suit were dismissed. Rukia was aggrieved by the decision of the District Court dismissing the petition and appealed to the High Court of Tanzania at Babati in Civil Appeal No. 22 of 2022 (also Referred to as Civil Case No. 000028264 of 2023 in the electronic Judicial systems). The High Court (Mirindo, J.), guided by sections 46 and 52 (b) of the Probate and Administration of Estate Act (the PAEA), rules 46 and 82 (b) of the Probate Rules and our decisions in Professor (Mrs) Esther Mwailambo v. Davis J. Mwaikambo and 4 others, [2001] TZCA 36; Monica Nyarakare Jigamba v. Mugeta Bwire Bhakome and Another [2020] TZCA 1820 and Nuru Hussein v. Abdul Ghani Ismail Hussein [2000] TLR 2027 had the view that the filing of the suit by way of a plaint was wholly unnecessary because the words "as nearly as a civil suit"do not call for the filing of a suit with a plaint but called for the filing of a counter affidavit, frame of issues and bringing evidence to prove facts arising out of the objection. It vacated the decision of the District Court and ordered Probate and Administration Cause No. 1 of 2023 to be heard afresh by another Magistrate. 4 Winford was aggrieved by the decision hence the appeal before the Court. The appeal is premised on one ground which carry the complaint that, the decision of the High Court ordering retrial of Probate and Administration Cause No. 1 of 2023 was illegal. The appellant was represented by M r. Yoyo Asubuhi, leaned advocate, whereas the respondent appeared in person, unrepresented. On taking the floor, M r. Asubuhi submitted that, the order of the High Court directing the hearing of the objection lodged in Probate and Administration Cause No. 1 of 2023 by another Magistrate was problematic and illegal. Amplifying, he contended that, much as he had no problem with the interpretation of section 46 of the PAEA and rule 46 of the Probate Rules given by the learned Judge, he was not happy with the order of the Judge which, if left to stand, may leave a bad precedent because Form No. 33 was supposed to be lodged in Probate and Administration Cause No. 2 of 2022 not in Probate and Administration Cause No.l of 2023. He contended that, the filing of Probate and Administration Cause No. 1 of 2023 was misconceived because the law did not call for the filing of a new petition in the manner it was done. He contended further that it was important that 5 the administrator be replaced in the original file because it was still pending. In view of this anomaly, Mr Asubuhi urged the Court to allow the appeal and direct the parties to return to Probate and Administration Cause No. 2 of 2022 and take the necessary steps according to the Law. The Respondent being a layperson in law did not have much to say. She subscribed to the order directing the parties to return to Probate Cause No.l of 2023, file a counter affidavit, frame issues and proceed for hearing before another Magistrate. He urged the Court to dismiss the appeal. We had time to examine the record of appeal and consider the submission of the parties. We shall start with section 46 of the PAEA and rule 46 of the Probate Rules. Section 46 of the PAEA provides as under: "On the death of a sole or sole surviving executor who has proved the will or o f a sole or sole surviving administrator, letters o f administration may be granted in respect o f that part o f the estate not fully administered, and in granting such letters of administration the court shall apply the same 6 provisions as apply to the original grants. Provided that where one or more executors have proved the will or letters of administration with wiii annexed have been issued, the court may grant letters of administration under this section without citing an executor who has not proved a w iii" [Emphasis added] Rule 46 of the Probate Rules States as under: "A petition under section 46 o f the Act for grant p f letters o f administration in respect of unadministered estate upon the death o f sole or surviving executor or a sole or surviving administrator shall be in the form prescribed in Form 33 set out in the First Schedule and shall describe and state the value o f the estate remining unadministered and shall be supported by a certificate o f death or an affidavit as to the death of the executor or the administrator of the sole or sole surviving executor or administrator, as the case may te/lEmphasis added] The above provisions show that, where the executor or administrator dies, letters of administration may be issued to another administrator to administer the unfinished part of the estate. A petition to obtain letters of administration is made in Form No. 33 meaning that, any interested person must file and submit it to the court which had granted the former letters of administration. The law requires this form to be accompanied by a death Certificate or an affidavit to prove the death of executor or administrator. The court will then take Form No. 33 as a petition and treat it as suchs following the procedures which are ordinarily followed when a petition is lodged in court. We find inspiration in this regard from decisions of the High Court in Emmanuel William v. William Masunga & Another [2023] TZHC 21496 and Josephat Kiriwaggulu v. Rehema Mpingi Binamungu [2020] TZHC 1306. As a matter of law and practice a petition can be objected. Where there is a caveat to object the appointment, rules 82 of the Probate Rules and section 59 (2) of PAEA come into play. They regulate the filing of a caveat and the procedure subsequent thereto. Of essence is that, once a caveat is lodged the matter becomes contentious and will now be regulated by section 52 (b) of the PAEA which provides thus: "52-(b) in any case in which there is contention, the proceedings shall take, as 8 nearly as may be, the form o f a civ il su it in which the petitioner for the grant shaii be the p la in tiff and any person who appears to oppose the proceedings shaii be the defendant. "[Emphasis supplied] The import of this section has been an area of divergent opinion within judicial circles like the learned Resident Magistrate having the view that a civil suit must be filed while others have the view that it should not. However, the learned Judge does not appear to be in error and we share his views that, the words "as nearly as may be the form o f a civil suit' does not suggest that a civil suit should be filed. Rather, the court is simply required to enter a record that the matter is contentious and make an order directing the petitioner (now plaintiff for the purpose of the new proceedings) to file a counter affidavit. The objector (now defendant) may also file a reply to the counter affidavit, if he so wishes. Thereafter, based on the available pleadings, the court will frame issues and call upon the parties to adduce evidence, both oral and documentary using the procedure of conducting civil cases under both the Civil Procedure Code and the Evidence Act to prove or disprove facts arising out of the objection. Meanwhile, the proceedings in the petition remain at a stand still 9 pending determination of the objection. Whether proceedings will continue or not will depend on the outcome of the decision in objection. See Professor (Mrs) Esther Mwaikambo v. Davis J Mwaikambo and Others (supra), Mrs Febrona Gasper Maro & Another v. Mrs Agnes Maro [2005] TZCA 191 and Mariam Juma v. Tabea Robert Makange [2016] TZCA 736. The above discussion takes us to the question whether what was done by the High Court directing the parties to return to the District Court in Probate and Administration Cause No. 1 of 2023 was correct or not. In our view there was a flaw of procedure in the direction made by the High Court. We agree with the learned advocate that, much as it was proper on the part of the High Court to order the parties to return to the District Court to continue with the matter, they were supposed to go back to Probate and Administration Cause No. 2 of 2022 and not No. 1 of 2023. Our view is not farfetched. As intimated above, the procedure outlined under both section 46 of the PAEA and rule 46 of the Probate Rules calls for the filing of a petition in Form No. 33 to replace or take over the office of the former administrator. This in effect makes reference to Probate and Administration Cause No. 2 of 2022. It does not make reference 10 to another petition because the office of the former administrator was established by Probate and Administration cause No. 2 of 2022 but for his death. Lastly, we feel obliged to address two areas; the legality of the order of the District Court marking the Probate and Administration Cause No. 2 of 2022 and Civil Case No. 1 of 2023 abated following the death of the former administrator and the legality of the appointment done by the Primary Court appointing Mr. Winford Fide!is Kimambo to administer the estate of the late Fidelis Kimambo. In view of the discussions made above, it is obvious that the District Court was in error in marking Probate and Administration No. 2 of 2022 abated and dismissing it because section 46 of the PAEA does not give it power to mark a petition abated after the death of the administrator. Instead, it allows any interested person to file a petition in Form No. 33 and to take over the office of the former administrator. As to the appointment of Winford Fidelis Kimambo which was done by the Primary Court, we find no fault in it so long as his appointment will be limited to the estate of the late Fidelis Jacob Kimambo. Touching any asset connected to the estate of the late Vincent Fidelis Kimambo will be outside his mandate and illegal. l i That said, we allow the appeal and direct the parties to retuns to Probate and Administration Cause No. 2 of 2022 and take steps according to the law. We make no order for costs. DATED at DODOMA this 10th day of April, 2026. L. 1 S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Judgment delivered virtually this 14th day of April, 2026 in presence of Mr. Laurent Kateti, hold brief of Mr. Asubuhi Yoyo, learned counsel for the Appellant, Respondent appeared in person - unrepresented, and Ms. Christina Mwanandenje, Court Clerk, is hereby certified as a true copy of the original.