Hassan Said Kimwaga vs Ashraf Said Kimwaga (Civil Appeal No. 1615 of 2024) [2026] TZCA 241 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: GALEBA, 3.A.. MASOUD. 3.A. And FELESHI. J.A.^ CIVIL APPEAL NO. 16X5 OF 2024 HASSAN SAID KIMWAGA ............................................................ APPELLANT VERSUS ASHRAF SAID KIMWAGA (As the Administrator of the estate of the Late SAID SEIF KIMWAGA) ......................... .RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Mwanza) fltemba. J.1 dated the 20th day of October, 2023 in PC Civil Appeal No. 35 of 2023 JUDGMENT OF THE COURT 23r dFebruary & 5t h March, 2026 MASOUD, 3.A.: This is a third appeal. It revolves on the estate of the late Said Seif Kimwaga (the deceased) who died testate on 8th May, 2020, and consequently thereafter on 22n dJune, 2021, the respondent was appointed by the Ilemela Primary Court (the trial court) in Probate and Administration Cause No. 83 of 2020 to administer the deceased's estate. Dissatisfied with the appointment, the appellant lodged an application seeking to revoke the respondent's appointment sometime in October, 2021. The complaints raised in that application were that, he was sidelined and not included as one of the heirs although he is the deceased's son, and l

that distribution of the estate of the deceased was not in accordance with the law. The reply by the respondent was to the effect that, there was no good cause shown to warrant revocation, and further that, the appellant was not a biological son of the deceased, and therefore, not entitled to inherit from the deceased's estate. The application was unsuccessful as the trial court was, in its decision dated 25th August, 2022, satisfied that, the appellant did not prove his case on balance of probability. It, thus, dismissed it. Notably, earlier on 1s t December, 2021, the trial court had issued an order for DNA test to determine whether the appellant was a biological son of the deceased which was however declined by the appellant. Since the appellant was aggrieved by the trial court's decision, he initiated his first appeal before the District Court of Ilemela (first appellate court) to challenge that decision. He raised a number of grounds in his bid to fault the decision. The grounds revolved on the failure of the trial court to properly evaluate the evidence and on the birth certificate as the only proof left that he was the biological son of the deceased. Worth noting is that, at the hearing of the first appeal at page 243 of the record of appeal, the appellant had referred the first appellate court to his birth certificate issued in 2013 in his bid to reinforce his case. On the contrary, it is also evident that there was a counter argument by the respondent shown at pages 244 to 245 of the same record that, the birth 2

certificate was not, by itself, proof of biological and blood relationship between the appellant and the deceased. Nevertheless, after hearing the parties, the first appellate court was of the view that, the appellant had failed to prove his case. With particular reference to the birth certificate, the court at page 246 reasoned that, the certificate bearing the appellant's name cannot, in light of the other evidence on record, be held to be sufficient, by itself, to establish that the appellant was the biological son of the deceased. The best proof in modern days is, the court further reasoned, through scientific methods and not identity cards and certificates. It, therefore, dismissed the appeal for lack of merit. As the appellant was still aggrieved by the decision of the first appellate court, he filed a second appeal before the High Court, raising several grounds which, in their totality, boiled down to issues revolving on evaluation of evidence, biological father of the appellant and the birth certificate of the appellant as the only proof of his biological father. Notably, before the hearing, the second appellate court at page 258 of the record of appeal ordered for DNA test which could not however be complied with as the appellant was unwilling to take the test as shown at page 262 of the same record. 3

At the hearing of the second appeal conducted by filing written submissions, both parties canvassed the issue of whether the birth certificate on record was conclusive evidence that the deceased was the appellant's biological father. The rival submissions are found at pages 265 through 286 and at pages 329 through 333 of the record of appeal. The argument by the appellant on the above issue found at page 271 of the record had it that the birth certificate was admitted in evidence without being objected by the respondent. It was, therefore, by itself, the appellant argued, enough to prove that the deceased was his biological father. He added, in his argument, that, since the birth certificate was issued by RITA way back in 2013 before the deceased's death, it is the only acceptable proof at the moment in the absence of his parents who are both dead. On the other hand, the arguments in reply by the respondent at pages 281 to 282 of the same record were that, the birth certificate is not conclusive proof of the appellant's biological father and the same has, in the circumstances of the case, to be considered in light of the refusal by the appellant to take DNA test after it was ordered by the court upon the consensus of the parties. In that context, it was argued, the High Court should find that the appellant did not prove his case. 4

After the hearing and having considered the rival arguments from both sides, the High Court determined the appeal against the appellant, having found that he did not discharge his burden of proof. In particular, the court at page 349 of the record of appeal found that the only evidence adduced on record by the appellant was his birth certificate and identity card issued in 2013 and 2015 respectively when he was already an adult. The High Court reasoned that the possibility of registering a different name other than that of his biological father in the birth certificate cannot, in the circumstances, be ruled out. Besides, the High Court was, at page 348 of the same record, contented that there is, on record, overwhelming evidence, for example that of the appellant's uncle, Hamidu Said Kanuma (SU2), to the effect that the appellant was not a biological son of the deceased. As such, the appeal was dismissed for want of merit. It is this judgement of the second appellate court that the appellant is challenging before us. The appeal is predicated on a certified point of law which revolved on the issue of: "whether it was correct for the learned Judge to raise the issue suo motto on the admission o f the birth certificate o f the appellant and dispose it without affording the parties right to be heard, even though the issue o f admission o f the birth certificate had never been contested by the parties 5

At the hearing of this appeal, the appellant appeared in person unrepresented. On the other hand, the respondent was represented by M r. Lubango Shiduki, learned advocate. While the appellant had lodged his written submission which he adopted for the hearing without having anything to elaborate on and which he also maintained in his eventual rejoinder, M r. Shiduki, with our leave, submitted in reply orally. Thus, submitting in reply, M r. Shiduki's arguments were anchored on the following: The certified point of law is misplaced because throughout the proceedings right from the trial court where the birth certificate was tendered as an exhibit, the same has remained an issue all along. On this score, he took us to relevant pages within the record of appeal where the parties addressed the courts on the birth certificate. With regard to the instant appeal, he also showed us the grounds of appeal bearing on the birth certificate, arguments of both parties touching on the birth certificate and the reasoning and finding of the High Court on the same birth certificate. In so doing, he rested his submission by pointing out that the ground of appeal certified for this appeal to determine is without merit as the record tells it all that the finding of the High Court on the birth certificate was not raised by it suo motto but it arose from what was put to the Court by the parties for determination. He urged us to dismiss the appeal. In his rejoinder, the 6

appellant, as we indicated above, maintained the position reflected in his written submission. It is not without relevance to note that, the appellant's written submission which he also maintained in his rejoinder had it that the learned Judge at page 349 of the record of appeal raised the issue of admission of the birth certificate suo motto and disposed it without affording the parties a right to be heard on it. He urged us to find merit in the appeal and do the needful in accordance with the law. He cited the case of Ex-B8356 S/SGT Sylvester S. Nyanda v. Inspector General of Police and Another, Civil Appeal No. 64 of 2014 (unreported); and Wegesa Joseph M. Nyamaisa v. Chacha Muhogo, Civil Appeal No. 161 of 2016 (unreported) among others. The crucial question in this appeal in which there are concurrent findings of facts by the courts below, is as to whether it is a fact on record that the learned Judge raised the issue suo motto on the admission of the birth certificate of the appellant and disposed it without affording the parties right to be heard. This is what we are to establish first herein below. We have, painstakingly, all along shown that the issue of whether the deceased was the appellant's biological father was at the heart of the entire proceedings of the courts below. It is against this backdrop that, the courts 7

below had invariably ordered, though in vain, for DNA test to be taken which orders are not disputed and that it is the appellant who had always declined taking the test. Thus, in the absence of the DNA test, the obvious issue canvassed by both parties is whether the birth certificate tendered by the appellant at the trial court without being objected by the respondent was conclusive evidence that the deceased was the appellant's biological father. As noted herein above, the appellant had, in his argument at the High Court, invited the High Court to take into account that, his birth certificate issued in 2013 was not objected when tendered at the trial. It should for that matter, he argued, be taken as proof that the deceased was his biological father. Conversely, the respondent invited the court to consider the appellant's birth certificate in light of his consistent refusal to take DNA test despite the orders of the courts below. It was also argued that the refusal to take DNA test should in the circumstance invite the Court to invoke adverse inference principle against the appellant. It appears to us that, it was in the course of resolving the issue arising from the rival arguments by both parties that the second appellate court at page 349 of the record of appeal observed and reasoned thus: "The appellant did not bring even a single witness to support his story. The only evidence was the birth certificate which was issued in 2013 and an identity card issued in 2015 when the appellant was already 8

an adult, therefore, he could have registered a different name from that o f his real father. Still, SU2 said the name o f the said father was unknown which is why they used the name Said which is also the appellant's maiden name. It should be noted that SU2 and Jamiia both use the name Saidi' as their middle name." It is the above excerpt which is the basis of the appellant's complaint and which was certified by the High Court as a point of law. As it flows from the foregoing, the excerpt is clearly within the fours of the rival arguments of both parties. If we say, for the sake of argument that, the complaint is per se on raising issues of admission of the birth certificate, it is still clear that those issues were at the centre of the appellant's argument before the High Court. For ease for reference, we find it fit to reproduce the relevant part of the appellant's submission at page 271 of the record of appeal thus: "...it is quite dear that the document [i.e birth certificate] speaks [for] itself.... when the birth certificate was produced before the trial court, the respondent did not dispute on the said birth certificate....it is undisputed fact that, the appellant had registered the birth certificate way back since 2013 even before the deceased died." Replying to the above argument, the respondent is on record at pages 281 to 283 of the same record to have argued thus: 9

"... We wish to submit that a birth certificate , by itseif and under the iaw, does not prove the biologicaland blood relationship between a child and a parent, apart from merely showing the particulars o f the birth o f the child ...Apart from [the] birth certificate, there was another means to prove that the appellant was the biological son o f the late Said Self Kimwaga. The appellants claims needed a scientific test by way o fDNA test to establish that he is biologically the son o f the deceased. the court was entitled to hold that the said issue neededa DNA test .... Surprisingly the appellant acted against .. and refused to take DNA test with no sufficient reasons. ... Since the law requires that the one who alleges must prove it, and to the extent that the appellant refused to take DNA test, it is our submission that the appellant tries to avoid proving his case." Apparently, the above excerpts from the respective submissions of the appellant and respondent in the second appellate court reflect in all fours what the judge had said in her observation, reasoning and conclusion as she was determining the appeal. Thus, the complaint that the learned Judge raised the issue suo motto and resolved it without affording the parties a right to be heard does not hold water. In our view, the ground of appeal therefore fails. 10

As a result, the appeal stands dismissed in its entirety. In view of the nature of the case, we make no order as to costs. DATED at DODOMA this 04th day of March, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 5th day of March, 2026 via virtual court in the presence of the Appellant in person, Mr. Lubago Shiduki, learned counsel for the Respondent and Mr. Oscar Msaki, Court Clerk; is hereby certified as COURT OF APPEAL 11