Rose Nestory Kabumbile vs Gibson Kabumbile (Civil Appeal No. 234 of 2024) [2026] TZCA 156 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: GALEBA, 3.A.. MASOUP, J.A. And FELESHI, J.A.) CIVIL APPEAL NO. 234 OF 2024 ROSE NESTORY KABUMBILE ...................... ................................ APPELLANT VERSUS GIBSON KABUMBILE............... ................. ...............................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Mwanza) (Manvanda, 3.1 dated the 13th day of August, 2021 in Prohate Appeal No. 12 of 2020 JUDGMENT OF THE COURT 23rd& 27hFebruary , ■ 2026 MASOUP. J.A.: This is an appeal against the judgment of the High Court of Tanzania at Mwanza dated 13th August 2021 in Probate Appeal No. 12 of 2020. It involves a dispute concerning the administration of the estate of the late Nestory Rwechungura Kabumbile (the deceased), who died on 11th July 2016, allegedly, leaving a Will. The appellant, Rose Nestory Kabumbire, the deceased's widow, instituted Probate and Administration Cause No. 162 of 2016 at the Mwanza Urban Primary Court (the trial court) on 31st October 2016, seeking appointment as administratrix of the estate and probate of the Will. The respondent, Gibson Kabumbile, the deceased's son, objected to

the application. The thrust of his objection was that, the Wiii purported to dispose of properties that did not exclusively belong to the deceased. It included, in his view, clan properties and a property in Mwanza, which belongs to him as his personal property. The trial court granted the application on 25th February, 2019 and appointed the appellant as the administratrix and directed that the estate be administered in accordance with the Will, having satisfied itself as to its validity. However, the court cautioned that the execution of the Wili should not interfere with a prior High Court judgment that had resolved ownership disputes concerning certain properties. The respondent was not happy with the decision of the trial court. He believed that he had good reasons to fault it. He thus appealed to the District Court of Nyamagana (the first appellate court) in Probate Appeal No. 03 of 2019. Having heard the parties, the first appellate court dismissed the appeal and affirmed the trial court's decision. Since the respondent was stiil aggrieved, he lodged his second appeal in the High Court at Mwanza (the second appellate court) inviting the court to interfere with the concurrent findings by the two lower courts. Among his grounds, he contended that both the trial court and the first appellate court erred in law and fact by directing administration of the

deceased's estate according to the Will without properly resolving ownership of the listed properties and the illegality of the Will. After hearing the parties, the High Court partly allowed the appeal by allowing the grounds of complaint which related to the Will. In relation to that Will and having been unable to locate it on record despite noting that the same was in the proceedings accordingly marked and admitted, it ruled and held that there was no proof of the Will on record. In addition, the High Court found that there were inconsistencies as to the manner in which that exhibit, upon being admitted at the trial court was marked. Clarifying the finding, the High Court had it that while in the trial court proceedings the exhibit is referred to as a "WHF, exhibit B, the trial court's judgment referred to it as "Wosia" exhibit C. In the end, the High Court found it fit to hold that the deceased died intestate. It, thus, ordered the estate to be administered under the applicable customary law but subject to the High Court's decision on ownership of relevant landed properties. The High Court left undisturbed the appellant's appointment as administratrix. The appellant was dissatisfied with the decision of the High Court. She sought and obtained a certificate of the High Court certifying a point of law to the effect that, the learned Judge of the High Court erred in

declaring that the deceased died intestate while his Will was tendered and admitted in evidence at the trial court, but the said copy subsequently went missing from the court file during hearing of the second appeal. When the appeal was called on for hearing, the appellant appeared in person unrepresented. On the other hand, the respondent appeared through Mr. Inhard Mushongi, learned advocate. Both sides had lodged their written submissions which they respectively adopted for purposes of the hearing. In the course of expounding on their written submissions, it became obvious that parties were in agreement that the High Court erred in holding that there was no proved Will because of the absence on record of the Will which was tendered and admitted by the trial court in evidence, and for that matter, that, the distribution of the estate of the Late Nestory Rwechungura Kabumbile is to be dealt with as if the deceased died intestate. Both sides underlined that the failure by the High Court to locate the admitted Will on record was the reason behind such finding which is erroneous. That, neither the appellant nor the respondent was aware of that fact during the hearing of the second appeal. It was the appellant's submission that, the missing exhibit was noted by the Court as it was composing its judgment and not in the course of

the hearing. The parties were not, it was argued by the appellant, informed about the missing exhibit on record, and were not afforded an opportunity to address the Court on it before the decision was made. On this score, we understood the appellant's submission as also referring to an issue of incomplete record of appeal before the second appellate court which was noted by the court when it was composing its judgment and was never brought to the attention of the parties for them to address the court on it. The case of Juma Said v. Republic [2021] TZCA 717 was cited in support of the argument on the failure of the second appellate court to afford the parties opportunity to be heard on the missing exhibit, and the position of the law that, where a judge raises a matter in the course of composing a judgment without affording the parties opportunity to be heard on it, the omission vitiates the resulting judgment which must as a result be nullified. In relation to the foregoing, Mr. Mushongi, addressed the Court on the way forward. He urged us to nullify the judgment and subsequent orders and remit the record to the High Court to compose afresh judgment in accordance with the law. The appellant had no qualms with the prayer by the respondent's counsel as to the way forward and actually informed us that she was in possession of a copy of the Will.

We have considered the submissions by the appellant and the learned counsel for the respondent in light of the record before us. We, particularly, paid attention to, the proceedings of the trial court in which the Will, exhibit B, was admitted from SM2 Justus Katto Lukaza found at page 8 of the record of appeal; the Wilt, exhibit C referred in the trial court's decision at page 22 of the same record as an exhibit tendered by SM2 at the trial; and the entire proceedings and judgments of the first and second appellate courts. Having done so, we were satisfied that while the proceedings of the trial court show that there was a Will which was tendered by SM2 and admitted as exhibit B, the judgment of the same trial court referred the only Will which was tendered by SM2 at the trial as exhibit C. When dealing with the issue of the Will and its validity, the High Court endeavored to land its eyes on it on record in vain as it was composing the judgment. We have indeed no doubt that it did so as it was composing the judgment and without engaging the parties because, throughout the proceedings of the appeal before the High Court, there is nothing suggesting that the issue as to the missing exhibit (i.e the Will) was ever discussed by the parties. In other words, there is nothing suggesting that, such an issue was either raised by the parties or by the court and the

parties, thereafter, were invited to address the said court on it before the court could decide on the issue. What is on record is clear that the High Court, in the course of composing the judgment struggled in vain to get hold of the Will on record. Having failed to trace or locate it within the record, it proceeded to determine the appeal before it based on the incomplete record due to the absence of the Will. We have no doubt that the decision was surely to the detriment of the parties and was arrived at without inviting the parties to address it on the missing record and as to the way forward. The High Court is on record at pages 514 to 516 of the record of appeal, to have stated and held, without involving the parties thus: 'This court has taken pain to navigate through the proceedings and have been unable to trace any "W ill" in the file o f this appeal, which also contains the records from the tria l court and the first appellate court. Instead, this court when going through the proceedings and the judgm ent o f the trial court found that, while the trial court in its judgm ent refers to a "W ill" tendered by SM2, Justus Katto Lukaza, as exhibit C, the evidence in the proceedings indicates the said Justus Katto Lukaza tendered a document termed as "Wosia" which was admitted as exhibit n B "

A question that arises is thatf in absence o f the W ill tendered or any copy thereof, can the "W ill" referred to by the trial court in its judgm ent as exhibit C be the same as the "Wosia" tendered by SM2 and marked exhibit B in the proceedings? The answer is in negative because, this court cannot presume a fact to exist and take the same to be true. Moreover, reliance could have been on the court record which is presumed to reflect accurately what happened in trial court. However, in the matter at hand, the record is not consistent as indicated above, hence unreliable. The judgm ent refers to a different document from the proceedings. Due to absence o f the W ill in the case file, the court cannot determine propriety or otherwise and validity o f an alleged "w ill" which cannot be traced and found on record. Based on the above analysis and findings, this court holds that there is no proved " W ill". Consequently, for that reason, the distribution o f the estate o f Late Nestory Rwechungura Kabumbile is supposed to be done as if the deceased died intestate." Having failed to locate the Will in the record before it and without involving the parties and without involving the first appellate court and 8

the trial court as to tracing the missing exhibit, the High Court concluded that the Wili that was admitted at the trial court as an exhibit is untraceable and for that matter, the estate should be dealt with without Will as if the deceased died intestate. In view of the foregoing, we agree with the appellant and the learned counsel for the respondent that, the course taken by the learned Judge of the second appellate court vitiated the proceedings and the judgment because of infringement of right to be heard of the parties by deciding on the issue suo moto without affording them opportunity of being heard; and by deciding the appeal without having complete record of the trial court. See for instance, Mbeya-Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2001] TZCA 92; Abbas Sherally and Another v. Abdul S. H. Fazalboy, Civil Application No. 33 of 2002 (unreported); and John Morris Mpaki v. NBC Ltd and Ngalagila Ngonyani, [2014] TZCA 2410. In the latter, we specifically held that: "... it is trite law that any decision affecting the rights or interests o f any person arrived at without hearing the affected party is a nullity, even if the same decision would have been arrived at had the affected party been heard..,"

In the event, we allow the appeal, nullify the second appellate court's proceedings, quash the judgment thereof, and set aside the decree and all orders emanating therefrom. As to the way forward, we remit the case file to the High Court for re- hearing and determination of the appeal afresh in accordance with the law. Given the nature of the matter, we make no order as to costs. DATED at DODOMA this 27thday 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 Appellant in person, Mr. Inhard Mushongi, learned counsel for the Respondent and Mr. Oscar Msaki, Court Clerk; is hereby certified as a true copy of the original. D- P- KINYWAFU C JN [ SJxIl DEPUTY REGISTRAR / ^ / / COURT OF APPEAL D. P. KINYWAFU 10