Eliminata Masinda & Another vs Masweti Masinda & Another (Civil Appeal No. 491 of 2023) [2026] TZCA 135 (26 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: KOROSSO, J.A.. MASHAKA. 3.A. And NGWEMBE. J.A.:1 CIVIL APPEAL NO. 491 OF 2023 ELIMINATA MASINDA .................................................... 1 st APPELLANT NICODEMUS CRECENT MASINDA...................................2 n d APPELLANT VERSUS MASWETI MASINDA.................................................. 1 st RESPONDENT JOSEPHAT MASINDA.................. ............. .................2N DRESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha} fGwae, 3 .1 * dated the 8th day of June, 2021 in PC. Civil Appeal No. 47 of 2020 JUDGMENT OF THE COURT 1 ?tn & 26th February, 2026 MASHAKA, JA.: This is a third appeal originating from the decision and order in Probate and Administration Cause No. 1 of 2009 from the Primary.Court of Babati Urban (the trial court) which revoked the letters of administration of the appellants over the estate of the late Kresent Kwaang' Masinda. The appellants were appointed on 28/1/2009 by Hon. Hante, J.S, Primary Court Magistrate as administrators of the said estate.

We find it crucial to appreciate a brief background leading to this appeal. On 26/10/2008, Kresent Kwaang' Masinda, passed away and left behind an extensive family and a vast estate. He was survived by six wives, blessed with 46 children; 41 from his marriages and five others born out of wedlock and recognized by the family. On 28/1/2009, the Babati Urban Primary Court granted joint letters of administration to the appellants; Eliminata Masinda, the sixth wife, and Nicodemus Cresent Masinda, a son from the third wife. They were entrusted with the duty of collecting, managing, and distributing the deceased's properties, which were located across Mbulu, Babati, and Karatu Districts, in Arusha and Manyara Regions. For eight years, the appellants held this position. On 24/7/2017, the respondents before the same trial court lodged an application for the revocation of the grant of appointment for the reasons that the appellants had misappropriated the deceased's estate; failed to distribute the deceased's estate to the legal heirs and beneficiaries; misuse and mismanagement of the deceased's estates. The trial court allowed the application for revocation and in lieu thereof, the respondents were appointed as the administrators of the estates of the late Kresent Kwaang' Masinda. Dissatisfied by the said ruling, the appellants lodged an appeal to the District Court of Babati District in Probate and Administration Appeal No. 12

of 2017 against the respondents. The District Court dismissed the appellants' appeal and upheld the Primary Court's decision to revoke their letters of administration and appointing the respondents as administrators of the estate of the late Kresent Kwaang' Masinda. Still dissatisfied, the appellants preferred the second appeal before the High Court against the respondents. Again, the appeal was dismissed in its entirety, upholding the revocation of the appellants' letters of administration and confirming the respondents as the administrators of the deceased's estate. Undaunted, the appellants sought and obtained a certificate on point of law to pursue a third appeal to the Court. The High Court certified three points which we find not necessary to refer for reasons to unfold in a short while. At the hearing of the appeal, Mr. Emmanuel Sood, learned advocate represented the appellants and the 1 st appellant was present in person. Messrs. Bungaya Panga assisted by Kapimpiti Mgalula, learned advocates represented the respondents whereas the 1st respondent was present before us. Before hearing could proceed in earnest, the Court called upon the parties to address it on the competence of the appeal concerning the capacity of the respondents who were standing in their personal capacity and not as administrators of the estate of the deceased.

Upon reflection, Mr. Sood quickly admitted the anomaly, and conceded that the appeal is incompetent before the Court as the respondents are in their personal capacity instead of administrators of the estates of the late Kresent Kwaang' Masinda. He thus implored us to quash and set aside the proceedings and the resultant decision of the District Court likewise of the High Court and that only the decision of the Primary Court to be salvaged. Regarding costs, he prayed each party to bear own costs. Mr. Panga subscribed to the submission of the learned counsel for the appellants and urged the Court to quash and set aside all the proceedings and judgment of the District Court and High Court save for the decision of the Primary Court. He also supported the prayer that each party to bear own costs. Having considered the record of appeal and the concession by the learned counsels, the main issue for our determination is whether it was proper for the appellants to prefer the appeal against the respondents in their personal capacity. The position is settled regarding a person who has been granted letters of administration. Section 71 of the Probate and Administration Act, Cap 352 R.E. 2002 (hereinafter referred as the PAA) provides: -

"After any grant of the probate or letters of administration, no person other than the person to whom the same shall have been granted shall have power to sue or prosecute any suit, or otherwise act as representative o f the deceased, until such probate or letters of administration shall have been revoked or annulled." In light of the above provision, it clearly demonstrates that one who has been granted probate or letters of administration is the one and only administrator with mandate to sue or prosecute any suit or act as representative of the deceased's estate. Hence, such a person is vested with authority to sue and be sued pertaining to the estate of a deceased. In the present appeal, as gleaned at page 104 of the record of appeal, the appellants were initially appointed administrators of the estate of the deceased. In that same Probate Cause No. 1 of 2019, the ruling at page 107 of the appeal record revoked the letters and the respondents were accordingly appointed as administrators as alluded to earlier. However, the subsequent proceedings from the District Court cited both the appellants and the respondents in their personal capacities. This affects the locus standi of the parties and competence of the proceedings before the lower courts, initially at the District Court to the High Court. In Malietha Gabo v. Adam Mtengu (Civil Appeal No. 485 of 2022) [2023] TZCA 17318 (8 June 2023) when the Court faced a scenario in which the

appellant was sued under his personal capacity while he was an administratrix, it held: - "In the event the appellant was the administratrix, It was Irregular for the respondent to Initiate a case against the appellant in her own capacity instead o fpursuing action against her as the administratrix o f the late Gabo Mtengu. We are fortified in that regard because the only person who can act as a representative o f the deceased, is the grantee o f the letters o f administration as provided under the provisions o f section 71 o f the Probate and Administration of Estates Act [CAP352 R.E.2002]," In light of the above, since the appellants' appointment as administrators had been revoked and the respondents were duly appointed as the administrators of the estate of the late Kresent Kwaang' Masinda in accordance to section 71 of the PAA, the appeal before the District Court and High Court ought to be pursued against the respondents in their capacity as administrators of the estate of the said deceased and not otherwise. Such omission is fatal, and it renders the proceedings, resultant judgment in the District Court and the appeal before the High Court, a nullity. See for instance, Evelyne Mbuna v. Joseph Mshana (Civil Appeal No. 437 of 2023) [2025] TZCA 684 (3 July 2025).

Consequently, we invoke our revisional jurisdiction under section 4 (2) of the Appellate Jurisdiction Act [Cap 141 R.E. 2019], nullify the entire proceedings of the District Court and High Court, quash and set aside the respective judgments. In the circumstances, the present appeal is accordingly struck out. We order that each party to bear own costs. DATED at ARUSHA this 26th day of February, 2026. W. B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 26th day of February, 2026 in the presence of Mr. Kapimpiti Mgalula, learned counsel for the Respondents, and also holding brief for Mr. Emmanuel Sood, learned counsel for the Appellants and Mr. Musa Amiry, Court Clerk; is hereby certified as a true copy of the original. F. A. MTARANIA DEPUTY REGISTRAR COURT OF APPEAL