Raufu Hamdan Selemani & Another vs Yazidi Yusuph Amiri (Civil Appeal No. 614 of 2024) [2026] TZCA 155 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: GALEBA. 3.A.. MASOUD. 3.A. And FELESHI, J.A J CIVIL APPEAL NO. 614 OF 2024 RAUFU HAMDAN SELEMANI .............. ............ ......................1 st APPELLANT MNAWARU HAMDAN SELEMANI ............................................ 2 nd APPELLANT VERSUS YAZIDI YUSUPH AMIRI....................... . ............. . ....................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Bukoba) fNaiawana, J.* ) dated the 21st day of February, 2023 in Probate Appeal No. 08 of 2022 JUDGMENT OF THE COURT I8 h & 2 ? hFebruary, 2026 MASOUD. J.A.: This appeal relates to the demise of one, Hamdani Kajuna Selemani (the deceased) on 23rd June, 2021, the subsequent petition by the respondent vide Probate and Administration Cause No. 4 of 2021 in the Primary Court of Bukoba District at Katerero (the trial court) for probate of the said deceased's estate for the execution of the said deceased's Will and the eventual appointment of the respondent as the administrator. After hearing of the objection proceedings following the objections that were raised by the first appellant as to the appointment of the

respondent and the validity of the Will, the trial court in its decision dated 10th September, 2021 found that the objections were all devoid of merits and that the Will was valid. Consequently, it proceeded to hear and determine the petition by the respondent on 22n d September, 2021. In so doing, the trial court appointed the respondent as an executor of the said Will and as also an administrator of the deceased's properties which were not covered in the Will. The appellants were not happy with the above decision of the trial court of 22n d September, 2021. They decided to challenge it before the District Court of Bukoba (the first appellate court). After hearing of the appeal, the first appellate court determined the appeal in favour of the appellants. In particular, it declared the Will invalid, revoked the appointment of the respondent as an administrator of the properties not listed in the invalid Will, and ordered the procedure for the administration of the deceased estate without Will to start afresh. As it turned out, the respondent was aggrieved by the decision of the first appellate court. He decided to appeal against that decision before the High Court at Bukoba (the second appellate court). Among other things, the respondent complained that, the first and second appellants herein had no locus stand to challenge the ruling of the trial court of 22n d September, 2021 as they were not part to it. That, as to the second

appellant, he had no locus to appeal against the ruling because he was not an objector in the trial court proceedings, and that, as to the first appellant, he was not part to the ruling as his right of appeal only accrued from the ruling of the trial court of 10th September, 2021 relating to the objections. Having heard the parties, the High Court was satisfied that, the objection proceeding before the trial court was only between the first appellant as an objector and the respondent Thus, the parties appearing in the relevant ruling of the trial court on the objection handed down on 10th September, 2021 was the first appellant herein as an objector and the respondent. In the court's finding, since the first respondent did not appeal against the ruling of 10th September, 2021, it is assumed that he was satisfied with it and has, as such, no right of appeal against the trial court's ruling of 22n d September, 2021. It was the High Court's view that the appellant could have lodged application for revocation of the appointment of the respondent if at all they had grounds instead of filing the appeal to the District Court. Worth noting is that, with regards to the second appellant, who on record was not an objector but testified for the objector as SM5, the High Court found that, the trial court had left at his liberty to accept to be joined in Probate and Administration Cause No. 4 of 2021 with a view to being

appointed as an administrator of the deceased's estate not mentioned in the Will. However, pursuant to the ruling of the trial court of 22n d September, 2021, it is evident that the second appellant had declined on reason that he was not satisfied by the ruling of the trial court of 10th September, 2021 which dismissed the objections by the first appellant. Thus, since the second appellant did not join such proceeding, he was not a party thereto and could not challenge such ruling by way of an appeal. With the above findings, the High Court found that since the appeal before the District Court was preferred by the appellants who had no locus standi, the proceedings of that first appellate court, the resultant judgment, and orders were all a nullity. It, accordingly, quashed the judgment and set aside the resultant orders of the District Court. Aggrieved by the decision of the High Court, and having obtained a certificate on a point of law, the appellants lodged the instant appeal before this Court against the decision of the second appellate court. The certified point of law with which they sought to fault the decision of the second appellate court, and which is now for our determination, is whether the appellants had locus standi to appeal to the District Court against the decision of the trial court.

At the hearing, the appellants appeared in person unrepresented. On the other hand, the respondent was virtually represented by Mr. Dunstan Mutagahywa, learned advocate. Both sides had lodged their respective written submissions in support of the appeal and against the appeal. They both adopted them at the hearing with some elaborations. The substance of the submissions by both sides revolved on the certified point of law and the reasoning by the High Court for the impugned decision. While the appellants were, essentially, saying that, in view of the record of the entire trial court proceedings, it is unfounded to hold that the appellants did not have locus standi to challenge the respondent's appointment by way of an appeal, the respondent's counsel was of the opposite view. The learned counsel's arguments in elaboration mirrored the observations by the High Court. One, that, the first appellant objected to the validity of the Will and the appointment of the respondent as the administrator and executor, but he did not appeal against that decision after the trial court had overruled the objections. Two, that, since the first appellant did not appeal against the ruling that overruled him, he is precluded from challenging the respondent's appointment. And three, as to the second respondent, he is precluded from appealing against the ruling that appointed the respondent as he was neither an objector nor a

part to the petition, having declined the invitation to join in the petition as a co-petitioner. For their part, the appellants, arguing through the second appellant, were of the submission that, since the second appellant is reflected in the substance of the trial court proceedings opposing the appointment of the respondent, it is ironic to hold that he could not challenge the decision appointing the respondent as the executor and administrator. In fortification, the first appellant took us through some pages of the relevant proceedings that reflect the opposite stance taken by the second respondent to the appointment of the respondent. With the substance of the rival submissions in mind, we took stock of the entire trial court proceedings. It was not hard on our part to note on record that the ruling of the trial court which was challenged by the appellants at the first appellate court and which gave rise to the instant appeal is the trial court's ruling of 22n d September, 2021. The memorandum of appeal which was lodged in the District Court on 7th October, 2021 found at page 132 of the record of appeal bears that fact loud and clear. We say so because, it exclusively referred only to the ruling dated 22n c t September, 2021 as the one that was being challenged

in that appeal. In relation to that observation, the relevant part of the said memorandum reads thus: "IN THE DISTRICT COURT OF BUKOBA A T BUKOBA PROBATE APPEAL No. 10 o f2021 (Appeal originating from Shauri la M irathi Namba 4/2021 o f Prim ary Court o f Katerero made on 22nd September, 2021) BETWEEN RAUFU HAMDAN SELEMANI. ....... 1st APPELLANT MNA WARU HAMDAN SELEMAN. ...2nd APPELLANT AND YAZIDIYUSUPH AM IRI ................. RESPONDENT MEMORANDUM OF APPEAL The above named being aggrieved and dissatisfied with the attached decision o f A. A. MADULU (RM) o f the Prim ary Court o f Katerero made on 22nd September, 2021 in Shauri ia M irathi Namba 4/2021 appeal to this Honourable Court on the follow ing grounds: - " The grounds of appeal that follow from that memorandum which we need not reproduce them here, were evidently challenging the appointment of the respondent as the executor and the administrator and

the validity of the Will. Apparently, the gist of the complaints in those grounds was, by and large, not the substance of the ruling of 22n d September, 2021 but the ruling of the trial court of 10th September, 2021 which was, unfortunately, not being challenged by the appellants in that appeal. The fact that the appeal by the first and second appellants at the District Court was against the ruling of the trial court of 22n d September, 2021 regarding the appointment of the respondent as the executor and administrator, and not the ruling of the trial court of 10th September, 2021, is reflected in the record of the proceedings of the said appeal in the District Court found at page 182 of the record of appeal. The record reads thus: "IN THE DISTRICT COURT OF BUKOBA A T BUKOBA PROBATE APPEAL No. 10 o f2021 (Appeal originating from Shauri ia M irathi Namba 4/2021 o f Prim ary Court o f Katerero made on 22nd September, 2021) BETWEEN RAUFU HAMDAN SELEMANI. ....... 1st APPELLANT MNA WARU HAMDAN SELEMAN. .... 2ndAPPELLANT 8

AND YAZIDI YUSUPH AMIRI. .................. RESPONDENT PROCEEDINGS DATE: 11.10.2021 CORAM: HON. D. P. Nyamkenya - SRM 1st APPELLANT- Absent 2ndAppellant- Absent Respondent - Absent Order: (1) Mention on 26.10.2021 (2) Parties to be notified (3) calling for record to be issued." It is apparent from the record that, the objection to the petition was incidentally raised by the first appellant when he appeared as a witness meant to testify for the petition, and not by both the first and second appellants. Thus, when the first appellant appeared as a witness to, supposedly, testify for the petition, it turned out as is evident at page 30 of the record of appeal that, he was essentially against it. Going by the record, the objection by the first appellant was not only to the appointment of the respondent (the petitioner) but also on the validity of the Will. The relevant part of the proceeding appearing at pages

30 through 31 of the record of appeal where it became clear to the trial court that, the first appellant was objecting the petition reads thus: "SM3: Raufu Hamdan Mbembe, Mkulima, Miaka 45, Muisiam, Am ethibitisha: Victoria - Sgd Theopista- Sgd Sgd - A. A. Maduiu - RM 18.08.2021 M im i n i mtoto wa marehemu, fam iiia Hikaa kikao cha m irathi na kumpinga m sim am izi wa m irathi kusimamia ambaye ametajwa na marehemu kwenye wosia. Niiivyoona tangazo, nimekuja/ wamenituma rtije kupinga. M ahakam a: Nasitisha kusikiliza shauri upande wa muombaji kwa kuwa shahidi amekuja kupinga uteuzi wa muombaji, sema hajafahamu utaratibu kwakuwa aiitakiw a yeye ndiye aanze kabla ya mwombaji: Victoria - Sgd Theopista- Sgd Sgd - A. A. Maduiu - RM 1.08.2021 10

M ahakam a: Niko tayari kusikilizw a ieo. Victoria - Sgd Theopista- Sgd Sgd - A. A. Maduiu - RM 18.08.2021 M LETA P IN G A M IZ I SM3: Raufu Hamdan Mbembe, Mkuiima, Miaka 45, Muisiam , Am ethibitisha: Victoria - Sgd Theopista- Sgd Sgd - A. A. Maduiu - RM 18.08.2021 Kwanza wosia nimeupinga, kutokana na vigezo vufuatavyo: -Kuiaiia upande mmoja -P iii kuandika m aii zingine zikabaki hazina w arithi -Tatu Msim am izi wa m irathisio mwanaukoo, ndiyo kinasababisha kupinga wosia huo pamoja na usim am izi wa m irathi hiyo. -Nne anayesadikiwa kuwa m sim am izi wa m irathi, wana undugu na Hawa Adamu, kwa hiyo vitu haviw ezi Kwenda sawa. .......... " ii

It was then that the court suspended the hearing of the petition in order to attend the objection at earliest stage as is the rule of practice. Consequently, the objection proceedings commenced with the first appellant testifying as an objector before he subsequently called his witnesses as is clear at pages 31 through 50 of the same record. Indeed, the course taken by the trial court is consistent with the procedure that should be followed when the court is faced with such objections. See for instance, Miraji Salimu Nyangasa v. Ramadhani Omary Sewando (As Administrator of Estate of the Late Hussein Omary Sewando) [2024] TZCA 895. In that case, this Court stated, by way of guidance, that: "After receiving p roof o f publication and being satisfied that it was property done, the case w ill move to the hearing stage. I f there is an objection to the petition, it m ust be attended at an early stage. Objections may be on the appointm ent o f the petitioner or any other issue; the m ost common being on the lis t o f heirs, assets o f the deceased and validity o f the will. Ordinarily, objections are resolved before the hearing o f the petition but, given the sim plicity o f procedures at the Prim ary Court and the need for an early determ ination o f the petitions, an objection to the appointm ent o f the petitioner can be com bined 12

with the petition and be heard together. See H a d ija M a tik a (supra). I f this practice is opted, the petitioner w ill take an oath and present his case stating why he thinks he is the fit person to adm inister the estate. His witnesses w iii follow. The objector w iii come in as a respondent and adduce evidence to show why the petitioner is not the fit person but him or some other person. He may afso bring witnesses to support him. Where the objection is on the will, the lis t o f heirs, the lis t o f assets o f the deceased or the wife o f the deceased, it m ust be heard separately at an early stage, unless the objector does not object the appointm ent" Since the objection to the appointment of the petitioner and validity of the Will was in the case at hand separately determined in the ruling of the trial court of 10th September, 2021 in which the parties were the first appellant and the respondent, it means that, it was only the first appellant who should have appealed against the ruling dated 10th September, 2021 that determined the objections instead of, purportedly, appealing with the second appellant, not a party to the objection, against the ruling which appointed the respondent whereby none of the appellants was a party. Certainly, the manner in which the objection was raised and dealt with is clear that the second appellant was not a party to the objection 13

proceedings. The record bears out that, the objection proceedings were initiated by the first appellant. The second appellant was only called by the first appellant as his fifth witness to testify in support of the objection proceedings. The record appearing at page 39 of the record of appeal supports our finding. It reads, in part, thus: "SMS: MNAWARU HAMDANI SELEMANI, Kemondo, Biashara, Mwanasheria, Miaka 39, Muisfamu, Am ethibitisha: ............... " It appears to us that contrary to the appeal which was before it, the District Court in its ruling dated 29th March, 2022 appearing at pages 164 through 181 dealt with it as if it was an appeal against the ruling dated 10th September, 2021 overruling the objections by the first appellant. That, notwithstanding, whilst the District Court noted that the second appellant was not an objector but a witness of the objector, the first appellant, it proceeded to entertain the matter before it as if both appellants had locus standi to lodge the appeal, given that they were not parties to the ruling by the trial court dated 22n d September, 2022. Had it been that the appeal was against the ruling regarding the objections dated 10th September, 2021, the first appellant would have locus standi as he was an objector in that ruling. 14

In view of what we have found herein above, we are satisfied that, the certified point of law is devoid of merit and we cannot fault the High Court's decision which we hereby uphold. At the end and for the above reasons, we dismiss the appeal, in its entirety. In the circumstances, we make no order as to costs. DATED at DODOMA this 26th day of February, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 27thday of February, 2026 via virtual Court, in the presence of the 1st and 2n d Appellants in person, Mr. Dustan Mutagaiwa, learned counsel for the Respondent and Mr. Oscar Msaki, Court Clerk; is hereby certified as a true copy of the original. [Iof y \ W P. KINYWAFU ^SEPUTY REGISTRAR ^ ^ CO U R T OF APPEAL 15