Daati Siima & Another vs Erro Siima (Civil Appeal No. 141 of 2024) [2026] TZCA 333 (23 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: KORROSO. J.A.. MASHAKA. 3.A., AND NGWEMBE. J.A.^ CIVIL APPEAL NO. 141 OF 2024 DAATI SIIMA BURA SIIMA 1 st APPELLANT 2 nd APPELLANT VERSUS ERRO SIIMA RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Arusha) 19th February & 23rd March, 2026 NGWEMBE. J.A.: This ruling is in respect of competence of this appeal. The appeal was against the decision of the High Court confirming the subordinate courts' findings in respect of the caveat raised by the appellants against the respondent who by then was the petitioner for the letters of administration. The estate whose administration remains in serious dispute between the parties is of Siima Waree, a farmer from Karatu who passed away on 09/09/2009. f Robert, J.1 ) Dated 31st day of August, 2022 in PC Civil Appeal No. 22 of 2021 RULING OF THE COURT 1

The deceased was originally from Mbulu District but later he settled in Karatu District within the Region of Arusha, where he established two homes, one in Kilimamoja and another in Rhoita area. In 1963, he contracted a customary marriage with Daati Slaa Suoo, the 1s t appellant. The union was blessed with eleven (11) children. It is also on record that the deceased had another wife before he married the 1s t appellant. The 2n d appellant, Bura Siima and the respondent, Erro Siima are both children of the deceased and 1s t appellant The deceased was survived by his widow, the 1s t appellant and children. It is on record that after the demise of the deceased, misunderstandings and disputes emerged between the 1s t appellant and her own children in respect of utilization of some properties of the deceased's estate, particularly the farms. The dispute culminated to several criminal cases and land matters before the Primary Courts and Land Courts respectively. Eventually, the respondent was appointed by a family meeting which was convened at the Ten-cell leader's office and appointed him to administer the deceased's estate. Consequently, the respondent petitioned for letters of administration at Karatu Primary Court in Probate and Administration Cause No. 72 of 2020. Soon after the citation was issued, the appellants filed caveat over the appointment of the respondent. 2

In determination of the petition, the trial court suo mottu posed a question of whether it had jurisdiction to entertain the probate matter as the deceased was a Christian, baptized at his last days of his life. Having satisfied on its jurisdiction, it dismissed the caveat and appointed the respondent as the administrator of the estate of the late Siima Waree. Aggrieved by the decision of the Primary Court, the appellants lodged their appeal to the District Court of Karatu. Their main complaints were on failure of the Primary Court to properly consider the religious conversion of the deceased and the question of jurisdiction of the Primary Court. However, upon full determination of the appeal, the District Court upheld the decision of the trial court and dismissed the appeal. Still dissatisfied, they appealed to the High Court which likewise, dismissed their appeal. Contemplating to challenge that decision as well, they duly obtained certificate on four points of law to the Court. Owing to what transpired before us and which will be revealed in the course, the grounds will not be reproduced hereunder. At the hearing of the appeal, the appellants were represented by Mr. Emmanuel Safari, learned advocate and on the other side, Messrs. Sheck Mfinanga and Pascal Temba, learned advocates appeared for the respondent. 3

Having observed the background of the matter and the status of the parties, the Court invited the learned advocates for both parties to address on competence of the present appeal. The essence was that, while the parties' dispute was mainly on dismissal of the caveat and appointment of the administrator the appellants and the respondent are reflected in their own names and personal capacities. It was important for the parties to address the Court on this issue because the Primary Court on dismissing the caveat, proceeded to appoint the respondent as an administrator and the dispute is wholly over administration of the deceased's estate, but none of the parties is ever cited as the administrator. It is essential to determine this point of law because it goes to the jurisdiction of the Court and locus standi of the parties, especially the respondent who was appointed an administrator of the deceased's estate. The learned counsel for the respondent submitted that, the law requires the administrator to be the one to sue or be sued on his capacity as an administrator not in his individual capacity. He buttressed his argument with the decision of the Court in Fatuma Thabit Tibyajutendwa v. Robert Korinako & Others (Civil Appeal No. 154 of 2021) [2024] TZCA 691 (7 August 2024). He thus, implored the Court to nullify the whole proceedings from the District Court and the High Court for 4

failure to sue the respondent in his capacity as an administrator of the deceased's estate, thus had no locus standi to be sued in his personal capacity. In the contrary, the learned counsel for the appellants, was firmly determined to defend the competence and locus standi of both parties to the suit. He maintained that the appeal is competent, the record of appeal is correct as the appeal originates from caveat. To him, the status of the administrator is what puts parties in dispute, hence the respondent would not be cited as an administrator, the status which was obtained after dismissal of the caveat. The learned advocate insisted that the decision cited above is distinguishable from the underlying facts of the instant appeal. To him, the citation of the parties in their personal capacities are correct and the appeal is competent. We have paid a deserving serious consideration to the rival arguments of the learned counsel and upon careful review of the proceedings and decisions of the lower courts, we are in cognizant, correctly as Mr. Safari's submission that the appeal originates from the determination of the caveat preferred by the appellants herein at the trial court. It is also true that when the caveat was raised, the respondent had not yet attained the capacity of an administrator. 5

Thus, the parties are at one on the facts of the case, that having dismissed the caveat, the Primary Court proceeded to appoint the respondent as an administrator. It is also in record that, aggrieved, the appellants preferred an appeal to the District Court against the dismissal of their caveat. Hence cited the respondent in his personal capacity. Thus, citation of the parties has been maintained from the District Court to the High Court and even before this Court. It is a legal position in our jurisdiction that administrators must be sued in their official capacity as administrators not on personal capacities in terms of section 6 of 5th Schedule to the Magistrates Courts Act, Cap 11 R.E. 2019. The parties are indifferent on the time the said status was acquired. Mr. Safari argued vigorously that names of the parties appearing in the record of appeal could not change in the course of the proceedings because of the nature of the matter itself. As earlier on alluded to, he submitted that the status of an administrator is what they have been challenging all along. Therefore, the appellants are appealing against the dismissal of their caveat which was determined by the trial court prior to the appointment of the respondent as an administrator. Thus, the respondent should be referred in his personal capacity not as an administrator. 6

We take homage to our decision in Fatuma Thabit Tibyajutendwa v. Robert Korinako & Others (supra) which provided a correct general principle of law that, it is only the lawfully appointed legal representative of the deceased who can sue and be sued for or on behalf of the deceased. As such, the respondent was appointed to be the administrator on 14th January, 2021 and the first appeal to the District Court was lodged on 28th January, 2021 when the respondent was already appointed an administrator of the deceased's estate. It would follow therefore that, any dispute in relation to the deceased's estate should be initiated in the name and capacity of the administrator. Section 6 of the 5th Schedule to the Magistrates Courts Act, Cap 11 R.E. 2019 provides that an administrator may bring and defend proceedings on behalf of the estate. Once the administrator of the estate is appointed any subsequent suit or proceedings should be in the name of the administrator. It is also, a common knowledge that, when a person becomes an administrator of the estate of the deceased, he becomes two different persons with different rights and liabilities which do not overlap. In case such person sues or is sued, specification should be carefully made as to which capacity the person is being impieaded. Even the court decree or 7

order must follow the capacity and not otherwise, this tells how significant is the capacity of the parties in any court of law. Now, the decisive question in the instant appeal is whether the respondent was sued in his representative capacity and on behalf of the deceased estate or his personal capacity? We are alive to the fact that the proceedings originated from Primary Court and the Primary Courts (Administration of Estates) Rules, GN 49 1971 do not provide for a separate proceeding in dealing with caveat. That, however, does not dismiss the general character of caveat exhibited in section 58 (b) of the Probate and Administration Act, and rule 82 (6) which as a matter of law, does not apply in Primary Court, that upon filing of a caveat, becomes a separate suit. See; Mariam Juma v. Tabea Robert Makange (Civil Appeal No 38 of 2009) 2016 TZCA 206 (29 January 2016). The appellants' appeal before the District Court as well as before the High Court was mainly on the dismissal of the caveat and the subsequent appointment of the respondent as the administrator of the deceased's estate. None of their complaint relates to the respondent's administration of estate, but on his suitability of holding the office of an administrator. This in our view was not a suit for and on behalf of the administrator of the deceased estate. We have found apposite similar decision by reiterating 8

what we said in Magdalena Anthony Sanga v. Theresia Dominicus Tweve (Civil Appeal No. 482 of 2021) [2024] TZCA 1259 (11 December 2024) when we held that ordinarily, after nullifying the will, the trial court ought to have held the caveat approved and proceed to dismiss the petition for the grant of probate to the appellant. Similarly, when the caveat is dismissed, the court will proceed to appoint the petitioner, but any appeal out of that decision, the appearance of the parties should remain the same as from the time of petition for letters of administration. See; Jacqueline Ntuyabaliwe Mengi v. Abdiel Reginald Mengi & Others (Civil Application No. 332 of 2021) [2021] TZCA 583 (12 October 2021); and Mariam Juma v. Tabea Robert Makange (Civil Appeal No. 38 of 2009) [2016] TZCA 736 (29 January 2016). “Hie above cases, the petitions had caveat and upon the decision by the trial court and the subsequent appeals, the original names of the parties did not change even after dismissing the caveat. We are therefore, satisfied that under the circumstances, appearance of the parties in their personal capacities including the respondent, is proper. Hearing of this appeal will proceed on a date to be scheduled by the Registrar. The next issue for our determination is the prayer of Mr. Safari, to file supplementary record of appeal which prayer was not opposed by Mr.

Mfinanga. Therefore, in terms of rule 96 (7) of the Tanzania Court of Appeal Rules, 2009, we grant the uncontested prayer to file supplementary record of appeal to include, notification letter from the Registrar, form No. 1, 2 and 3 of the Probate Forms and the ruling of the District Court of Karatu in Civil Revision No. 6 of 2020 dated on 16th December, 2020 to form part of the record of appeal within 60 days from the date of this order. It is so ordered. DATED at DODOMA this 19th day of March, 2026. W. B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered virtually this 23rd day of March 2026 in the presence of Mr. Emmanuel Safari, learned Counsel for the Appellants, Mr. Sheck Mfinanga, learned Counsel for the Respondent and Ms. Stella hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 10