Mary Donat Mashiku vs Martha Donat Mashiku (Civil Appeal No. 07 of 2024) [2026] TZCA 365 (27 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. 3.A.. MGONYA. J.A. And KHAMIS. J.A.> CIVIL APPEAL NO. 07 OF 2024 MARY DONAT MASHIKU..........................................................APPELLANT VERSUS MARTHA DONAT MASHIKU (Administratrix of the estate of the Late DONAT SAMIKE MASHIKU) ................... . RESPONDENT (Appeal from the ruling and drawn order of the High Court of Tanzania Temeke Sub Registry, One Stop Judicial Centre at Temeke) (Omari, J.) dated the 10th day of October, 2023 in Civil Appeal No. 18 of 2023 JUDGMENT OF THE COURT 24th February, & 27th March, 2026 SEHEL. J.A.: This is a second appeal emanating from the decision of the High Court of Tanzania at the One Stop Judicial Centre at Temeke (the first appellate court) which dismissed the appellant's appeal for extension of time to file an appeal against a decision of the Primary Court of Kinondoni at Kinondoni (the Probate Court). The brief facts pertaining to the present appeal are such that: 1 On 23r d September, 2014, the Probate Court granted letters of administration to the appellant and the respondent to jointly administer the estate of the late Donat Samike Mashiku, the husband and father of the appellant and the respondent respectively. In the course of administering the estate, the respondent filed an inventory which was objected to by the appellant who sought for removal of the respondent from administering the deceased's estate. Among others, her grounds were that the respondent included the appellant's own property in the deceased's estate and that the distribution was unfair as she was granted less than her legal entitlement which was 1/4 shares. Having heard the parties, the Probate Court dismissed the application on 6th July, 2022. Aggrieved, on 3r d August, 2022, the appellant lodged a complaint letter to the Magistrate in Charge of the Probate Court. She was directed to appeal against the decision as the court was functus officio. As she was late, the appellant sought an extension of time in Probate and Administration Cause No. 120 of 2022 before the District Court at the One Stop Judicial Centre at Temeke (the District Court). Nonetheless, the application was dismissed on 24th January, 2023 for lack of merits. Since the appellant was still not happy with the decision of the District Court, she filed an appeal before the first appellate court 2 which as intimated earlier on, was dismissed. Upon such dismissal, the appellant filed this appeal raising the following six grounds of appeal: 1. The High Court Judge erred in iaw by hoiding that iiiegaiities are normal grounds o f appeai and thus they cannot be a ground for extension o f time. 2. The High Court Judge erred in iaw for refusing to consider the Appellant's delay as a technical delay rather than a normal delay. 3. The High Court Judge erred in law for holding that the Appellant failed to account each day. 4. That the High Court Judge erred in law for holding that the District Magistrate did not consider the duration the matter has been in court as a factor in refusing to grant extension o f time to the Appellant. 5. That the High Court Judge error in law by ignoring to determine the Appellant's J d ground o f appeal without adducing any reasons thereof. 6. That the High Court Judge error in law for failure to observe that the Primary Court Kinondoni at Kinondoni had no original Jurisdiction to determine Probate matter where the deceased prophesised Christian faith. 3 At the hearing of the appeal, Messrs. Ndanu Emmanuel and Laurean Mussa, both learned advocates, appeared for the appellant and the respondent, respectively. Both the appellant and the respondent filed their respective written submissions pursuant to ruie 106 (1) and (8) of the Tanzania Court of Appeal Rules which were adopted in their oral submissions. Highlighting on the first ground of appeal, Mr. Emmanuel submitted that the illegality raised by the appellant before the first appellate court was not adequately considered. Elaborating, he argued that in paragraph 6 of the affidavit supporting the application for extension of time, the appellant raised two issues of illegalities: one, her property which was not subject to probate was included in the deceased's estate and that, in her reply to the counter affidavit, the appellant attached the Title Deed and the Sale Agreement. And two, the appellant was not given her lawful share in the distribution of the deceased's estate as required by the law. He referred us to page 11 of the record of appeal where the Probate Court ruled that the appellant was entitled to V * of the properties but the administratrix distributed to her 1/3 shares while the deceased was not professing a Muslim religion. Mr. Emmanuel asserted that, despite the appellant raising the grounds of illegality to justify extension of time, both the District Court and the 4 High Court did not adequately consider them in line with the general denial by the respondent. Mr. Emmanuel further submitted that the respondent did not provide any evidence to prove that the property was registered in the deceased's name. He cited the case of Lyamuya Construction Company Ltd v. Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 for the preposition that the two-pointed illegalities were apparent on the face of record and they do not require a long-drawn process of reasoning. For the reasons submitted, Mr. Emmanuel invited us to allow the appeal and grant the appellant the requested extension of time. In reply, Mr. Mussa briefly submitted that the appellant failed to advance sufficient reason as to why she delayed in filing the intended appeal. He asserted that the alleged grounds of illegality were not apparent on the face of record as they require a long-drawn process of reasoning in establishing whether the property belonged to the appellant and whether the distribution was in with the law. He stressed that the alleged illegalities required evidence to be adduced to establish them thus disqualified them to be sufficient grounds for granting extension of time. He also referred us to the case of Lyamuya Construction Company Ltd v. Board of Registered Trustee of Young Women's Christian Association of Tanzania for the preposition that the illegality must be of sufficient importance and it must also be apparent on the face of the record such as the question of jurisdiction and not one to be discovered by long drawn arguments. With such submission, the respondent prayed that the appeal be dismissed for want of merits. Having heard the parties' submissions and upon examination of the records of appeal, the issue which stands for our determination is whether the illegalities raised by the appellant were sufficient to warrant the High Court to exercise its discretionary power to extend time within which to file an appeal. In its numerous decisions, the Court echoed that, a claim of illegality of the challenged decision constitutes a good cause for extension of time whether or not a reasonable explanation has been given by the applicant and that in the application for extension of time, the Court has a duty to consider the ground of illegality raised by the applicant - see the cases of VIP Engineering and Marketing Limited & 2 Others v. Citibank Tanzania Limited [2007] TZCA 165; Vodacom Tanzania Limited v. Innocent Daniel Njau [2019] TZCA 807 and the Principal Secretary, Ministry of Defence, National Service v. Devram Valambhia [1992] T.L.R. 185. In the latter case, the Court stated: '"Where, as here, the point o f law at issue is the illegality or otherwise o f the decision being challenged, that is o f sufficient importance to constitute "sufficient reason" ...for extending time; when the point at issue is one aiieging illegality o f the decision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and, if the aiieged illegality be established, to take appropriate measures to put the matter and the record righ t " [Emphasis added] As intimated above, under paragraph 6 of the supporting affidavit for extension of time and paragraph 7 of the reply to the counter affidavit, the appellant averred that the property situated at Mtambani in Bagamoyo Urban area was registered in her sole name thus not subject to the Probate case. She also attached a copy of the Certificate of Title bearing her name and copy of a sale agreement which she claimed proved as to how the property came into her ownership. Upon our review of the ruiing of the High Court, we observed that the High Court dismissed the claim of illegality on account that it was 7 not apparent on the face of record as it required long drawn arguments to establish it. For ease of reference, we reproduce part of the reasoning of the High Court hereunder: "In my considered view, the fact that the appellant is contending that her properties were included in the list o f the deceased's properties, that is, the estate and that she is not satisfied with the distribution are not questions that would not require long drawn arguments to establish. On this one, I am also in agreement that the respondents counsel ...the said points of illegalities are normal grounds o f appeal which would be subject to long drawn argument or process. In that respect, I find the first ground of appeal as unmeritorious. ” With due respect, we differ with the findings of the High Court. We entertain no doubt that, where there is an allegation that one's own property has been a subject of a Probate Cause, the court has a prima facie duty to ascertain such an allegation in order to put the matter and the record right. In our view, we think such an allegation is a point of illegality worth consideration in an application for extension of time. We strongly believe that, if left unattended, the ultimate decision of the Probate Court would affect the rights of the parties - see the case of 8 Vodacom Tanzania Limited v. Innocent Daniel Njau (supra). Therefore, we find that the appellant demonstrated a sufficient cause warranting the grant of an order for extension of time to file an appeal against the decision of the Probate Court. Of course, we are alive with the settled position of the law that this Court cannot interfere with the High Court's exercise of its discretion unless it is satisfied that the decision concerned was made on a wrong principle or that certain factors were not taken into account. This position was stated by the erstwhile Court of Appeal for East Africa in the case of Mbogo & Another v. Shah [1968] 1 E.A. 93 that: "A Court o f Appeal should not interfere with the exercise o f the discretion o f a judge unless it is satisfied that he misdirected himself in some matter and as a resuit arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was dearly wrong in the exercise o f his discretion and that as a result there has been misjustice." In the circumstances of the appeal before us, and on the spirit of the principle stated in Mbogo & Another v. Shah (supra), we find it appropriate to interfere with exercise of the discretion of the High Court as indeed, the High Court omitted to consider an illegality raised by the appellant which was apparent on the face of the record. We are thus of the opinion that, the appeal has merits. At the end, we quash the decisions of the two lower courts and set aside the resultant orders. We grant the appellant thirty (30) days within which to file the appeal to the District Court, to be reckoned from the date of delivery of this judgement. DATED at DODOMA this 26th day of March, 2026. Judgment delivered this 27th day of March, 2026 in the presence of Mr. Ndanu Emmanuel, learned counsel for the Appellant, Laurian Mussa, learned counsel for the Respondent via Teleconference and Mr. Julius B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Kiliml perk; is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 10