Flora Mtui & Others vs Giliad Shija Mihambo (Civil Appeal No. 625 of 2024) [2026] TZCA 195 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: GALEBA, J.A., MASOUP. J.A, And FELESHI. 1 A J CIVIL APPEAL NO. 625 OF 2024 FLORA MTUI......................................................................... -1 st APPELLANT JANE KIRAMA NGOWI..... ...................................................... 2n dAPPELLANT VERONICA GERALD RWEGASORE .......................................... 3rd APPELLANT JOYCE JULIUS LESHABARI.................................................... 4th APPELLANT VERSUS GILIAD SHIJA MIHAMBO..................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Moshi) fSimfukwe, J.) dated the 23rd day of June, 2023 in DC Civil Appeal No. 08 of 2022 JUDGMENT OF THE COURT Iff" February & 3rd March, 2026 MASOUP. J.A.: The late Edith John Ngowi died on 14th February, 2012, leaving behind six children. Following her demise, Giliad Shija Mahimbo, the deceased's only son (respondent herein) petitioned for letters of administration of the deceased's estate before the District Court of Moshi (the trial court). The petition was accompanied by exhibit P3, minutes of a meeting held on 13th March, 2021 which was also attended by the appellants. The petition by the respondent was objected to by his biological sisters, the appellants herein, namely, Flora Mtui, Jane Kirama Ngowi, Veronica Gerald Rwegasore, and Joyce Julius Leshabari, save for one, Renata Ngowi who was not part to such proceedings. The reasons for the objection were twofold, namely, that the heirs of the deceased inclusive of the appellants did not consent for the respondent to petition for letters of administration for the deceased's estate, and that, the deceased had left a Will and only one house situated at Plot No. 113 Block CCC Section III, Moshi Township, as the property at Marangu belonged to Renatha Ngowi. The objection was disputed by the respondent, arguing that, while the former property belongs to him as his deceased mother held in the capacity of his guardian, the latter belonged to the deceased. After the hearing at the trial court, the objection by the appellants was resolved in their favour and the petition was, as a result, rejected. Notwithstanding rejecting the petition, the trial court held that, the disputed properties situated at Moshi Township and at Marangu belonged to the deceased's estate and Renatha Ngowi, respectively. The respondent was aggrieved by that decision. He filed an appeal before the High Court which was eventually decided in his favour. In its decision, the High Court was satisfied that, the respondent had obtained a valid written consent of the appellants in the meeting of 13th March, 2021 whose minutes (exhibit P3) were annexed to the petition by the respondent. According to the High Court, the meeting was attended by the appellants and had nominated the respondent to be the administrator of the deceased's estate. The High Court reasoned that, since the written consent was apparent in the minutes of that meeting which the appellants also attended, the appellants could not be heard arguing that the respondent did not obtain their consent. Clearly, the High Court treated exhibit P3 as equivalent to the prescribed Form 56 consent which must mandatorily accompany a petition of intestacy administration according to rules 39 and 71 (1) and (4) of the Probate and Administration Rules, GN No. 163 of 1963 (the Probate Rules). Before us, the appellants, represented by Mr. Chiduo Zayumba, learned advocate, challenged the decision of the High Court on several fronts. One such ground, which is the first ground of appeal, complained about the finding by the High Court that the required heirs' written consent was obtained and filed through exhibit P3 which had accompanied the petition lodged at the trial court. On the other hand, the respondent, represented by Mr. Charles Mwanganyi, learned advocate, vigorously opposed the complaint. In his submission, all what Mr. Zayumba was saying is that, the petition by the respondent at the trial court did not comply with the requirements of rules 39 (f) and 71 (1) and (4) of the Probate Rules which require a petition to be accompanied with written consent of the heirs. Relying heavily on the case of Neema Gabriel Majaliwa v. Saraweki Israel Salema and 3 Others [2024] TZCA 1308, the learned counsel argued that, in so far as there was no any written consent, in a prescribed form, filed with the petition, the finding by the High Court that the consent was reflected in the minutes, exhibit P3 is erroneous as there was no competent petition before the trial court. She thus invited us to disagree with the holding of the High Court. While Mr. Mwanganyi entirely agreed with Mr. Zayumba on the import of the provisions of rules 39 (f) and 71 (1) and (4) of the Probate Rules and the mandatory requirements which must be complied with by the petitioner, he was of the view that the minutes, exhibit P3 which had accompanied the petition at the trial court, in the circumstances of the instant case, constituted a sufficient written consent of all of the heirs including the appellants herein. He added that, having attended the meeting, participated in the nomination of the respondent for his eventual appointment by the court, and having signed in the attendance sheet, the appellants were now estopped from saying that there was no written consent on their part simply because the consent was not in the form prescribed in Form 56. He did not cite any authority in support of his point of view. We examined the record in light of the issue whether the respondent did not obtain the consent from the appellants before he petitioned for the letters of administration as required under rules 39 (f) and 71 (4) of the Probate Rules; and the issue whether such a consent can be deemed to have been obtained from the appellants in a manner not envisaged under rules 39 (f) and 71 (4). We paid a close attention to the petition including its annexures which was lodged by the respondent at the trial court found at pages 1 to 23 of the record of appeal. We think the issues at stake need not detain us much, for this Court had encountered a situation akin to the one we are faced with which involved interpretation and application of rules 39 ( 0 / 71 (1) and (4) of the Probate Rules. See for instance, the case of Neema Gabriel Majaliwa (supra) which was cited to us by Mr. Zayumba, and the case of Hassan Salum Ahmed v. Ally Salum Ahmed [2016] TZCA 643. Rule 39 of the Probate Rules which prescribes the manner in which a petition should be lodged and the documents which must be accompanied with it provides: "3 9 . A petition for ietters o f administration shall be in the form prescribed in Forms 26 or 27 set out in the first Schedule, whichever is appropriate and shall be accompanied by the following documents: (a) Subject to the provisions o f rule 63, a certificate o f death o f the deceased signed by a competent authority; (b) An affidavit as to the deceased's domicile; (c) An administrator's oath; (d) Subject to the provisions o f rule 66, an administration bond; (e) A certificate as to the financial position o f the sureties; (f) Subject to the provisions o f rules 71 and 72, consent o f the heirs; and (g) In the case o f an application for a grant to a sole administrator, an affidavit as required by rule 32. "[Emphasis is ours] We gather from rule 39 (f) above that, it makes reference to rules 71 and 72. It is rule 71 (4) which is critical to the issues before us as it provides for the format of the consent which must be in the " form prescribed in Form 56' set out in the First Schedule. The same must be duly signed by the person or persons giving the same and attested by any person before whom an affidavit may be sworn. Moreover, rule 72 (1) provides for the procedure to be followed where consent cannot be obtained or is refused which procedure entails filing an affidavit to that effect giving the reasons why such consent has not been produced. Whilst referring to the provision of rule 39 of the Probate Rules which lists documents, including consent of heirs, which must accompany the petition, we observed and held in Neema Gabriel Majaliwa (supra) that: "The legal position being as above, on a true construction o f the bolded portion o f the rule, it is plainly notable that the provision is couched in mandatory terms making it inescapable that, for a petition to be valid, there should be included in the petition the listed documents at the time of lodging it The law, as it now stands is, therefore, that such documents must be filed together with the petition for grant o f letters of administration. ... To rescue the situation ; the appellant could have filed affidavits accounting for her failure to obtain consent from other heirs in terms o f Rule 72 (1) o f the Probate Rules which were to be lodged when the petition was filed. Unfortunately, that was not done... Consequently, we agree with the learned Judge that the petition was incompetent right at the time o f lodging it No valid letters o f administration could be granted thereof." It is beyond dispute that the respondent neither obtained consent of the heirs nor filed an affidavit to show why he failed to do so as required by rules 39 (f) and 72 (1) and (2) of the Probate Rules. Since exhibit P3 is not one of the documents signifying consent of heirs under rules 39 and 71 (4), we are afraid we cannot accept the invitation by Mr. Mwanganyi urging us to rely on such an exhibit based on the circumstances of the case and uphold the finding of the High Court. If we do so we will be infringing the requirement of rule 39 and we are not prepared to do that. In our view therefore, the first ground of appeal has merit and we allow it. 8 Since there was no competent petition lodged in the trial court, everything that transpired after lodging it was therefore a nullity. With this outcome, we need not labour on the remaining grounds. Consequently, we allow the appeal, nullify the proceedings of both trial court and first appellate court, quash the judgments thereof, and set aside the decree and all orders emanating therefrom. Given the nature of the matter, we make no order as to costs. DATED at DODOMA this 3r d 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 3r dday of March, 2026 via virtual Court, in the presence of Mr. Chiduo Zayumba, learned counsel for the Appellants, Mr. Charles Mwanganyi, learned counsel for the Respondent and Mr. Osc erk; is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL D. P. KINYWAFU