Latifa Awadh Saleh & Others vs Mariam Mbarak Ahmed & Another (Civil Appeal No. 607 of 2025) [2026] TZCA 133 (26 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: GALEBA. 3.A., MASOUP. J.A. And FELESHI, J.AQ CIVIL APPEAL NO. 607 OF 2025 LATIFA AWADH SALEH..........................................* .......... , 1 s t APPELLANT ABRA AWADH SALEH BADER ........................ ........... -2N DAPPELLANT JAMILA AWADH SALEH BADER alias JAMILA AWADH SALAH SHARIF ......................................... 3B D APPELLANT VERSUS MARIAM MBARAK AHMED ........................ ......................1 st RESPONDENT SALEH AWADH BADER ............... ................................... 2N D RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Iringa) (MwiPQDO, J.^ dated the 27th day of December, 2024 in Probate and Administration Cause No. 02 of 2023 RULING OF THE COURT 23rd & 26th February, 2026 FELESHI, J.A.: The dispute before the High Court from which this appeal emanates, involved the 1s t respondent, Mariam Mbarak Ahmed, a biological mother of the appellants and the 2n d respondent concerning the administration of the estate of their late father, Awardh Saleh Bader (hereinafter referred to as the deceased), who passed away on 19th i April, 2020 testate. He was survived by seven heirs, five daughters and two sons. In his Will, the deceased declared that he was a practicing Muslim and that his estate was to be governed by Islamic law. He distributed the greater part of his estate, comprising farms, houses, shops, plots and shares, mainly to his widow (the 1s t respondent) and his daughters (including the appellants). The two sons, one being the 2n d respondent, were excluded on the assertion that they had already received their shares during the lifetime of the deceased. The Will further contained charitable bequests to wakf and orphanage institutions. The executor named in the Will subsequently renounced executorship in Probate Cause No. 02 of 2022. Following that renunciation, the 1s t respondent petitioned the High Court for letters of administration with the Will annexed under section 55 (1) of the Probate and Administration of Estates Act, Cap. 352 (the Act). In her petition, she expressed her intention to administer the estate in accordance with Islamic law so as to ensure fairness among the heirs. The petition was met with caveats from both sides. The appellants objected to the appointment of the 1s t respondent as administratrix on the grounds that, she was physically unfit due to advanced age, being about 80 years old, and that she would not distribute the estate impartially, for she wouid allegedly favour her sons. On the other hand, the 2n d respondent challenged the legality of the Will itself, contending that it contravened Islamic law. As a result of those caveats, the proceedings were converted into a contentious cause pursuant to section 52 (b) of the Act, the petitioner becoming the plaintiff and the caveators the defendants. The High Court framed two issues for determination: one, whether the petitioner was competent to administer the estate; and two, whether the Will was valid. Upon hearing the parties and evaluating the evidence, the High Court delivered its judgment on 27t h December, 2024. The Court found that although the Will complied with the formal requirements of execution, it was substantively invalid and void ab initio. The Court reasoned that since the deceased had professed and lived as a Muslim, succession to his estate was governed by Islamic law, applying the established intention-and-mode-of-life test. Under Islamic principles, testamentary power is limited to one-third of the net estate after settlement of debts and funeral expenses, unless the heirs consent to a larger disposition after the death of the testator. Furthermore, Qur'anic heirs, including sons, cannot be excluded without lawful cause and their consent. Tine High Court concluded that the Will effectively disposed of nearly the entire estate in favour of the widow, daughters and charitable institutions, while excluding the sons, contrary to Islamic succession principles. The alleged lifetime gifts to the sons were found not to have been proved. Accordingly, the Will was declared void. As regards the competence of the petitioner, the High Court held that the 1s t respondent was fit to administer the estate as no credible evidence of incapacity or bias had been established. The Court observed that, she was conversant with the estate and had expressed willingness to administer it in accordance with Islamic law, Consequently, she was appointed administratrix and the estate was ordered to be administered strictly in accordance with Islamic principles. Being dissatisfied, the appellants lodged the present appeal on two grounds: one, that, the trial court erred in holding the Will invalid; and two, that, the trial court misdirected itself on the facts and evidence in appointing the 1s t respondent as administratrix. The appeal, however, encountered preliminary objection raised by the 1s t respondent's advocate on three points of law: one, the appeal is incompetent for contravening rule 96 (1) (a) of the Tanzania Court of Appeal Rules, 2009 (the Rules); two, that, the appeal is incompetent for failure to attach the letter (sic) of appointment; and three, that, the appeal is incompetent for being preferred by a wrong party and against a wrong party. At the hearing, M r. Rutebuka Samson Anthony and Dr. Aloys Rugazia, both learned advocates, teamed up representing the appellants, whereas Messrs Flavian A. John Walter and Josia Shayo, both learned advocates, represented the 1 s t and 2n drespondents, respectively. Arguing the first limb of the preliminary objection, M r. Shayo submitted that the record of appeal is incompetent for contravening rule 96 (1) (a) of the Rules. He argued that the index to the record is titled in the name of the High Court of the United Republic of Tanzania, Iringa Sub-Registry at Iringa, instead of being directed to this Court. According to him, that irregularity is fatal as the index forms part of the record required under Rule 96 (1) of the Rules. He relied on Babito Ltd v. Freight Africa NV Belgium & Others [2018] TZCA 374, for the proposition that contravention of rule 96 (1) renders an appeal incompetent. On the second limb, M r. Shayo submitted that the record of appeal is incomplete for failure to include the letters of administration, which constitute the very instrument being challenged in this appeal. He argued that the letters of administration are equivalent to a decree by virtue of section 72 (1) of the Act and therefore fall within the ambit of rule 96 (1) (h) of the Rules. He relied on Ramadhani Omary Mbuguni v. Ally Ramadhani & Another [2022] TZCA 267, where this Court held that letters of administration are an essential document through which standing is traced and without which the Court lacks basis to recognize representative capacity. Counsel urged the Court to find the omission fatal and to strike out the appeal. As to the third limb, M r. Shayo argued that after being granted letters of administration, the 1s t respondent acquired legal representative capacity and could only be sued in that capacity. He contended that the appellants erred in suing her in her personal capacity. He relied on Malietha Gabo v. Adam Mtengu [2023] TZCA 17318, where this Court reiterated that it is improper to sue an administrator personally in matters relating to the estate. He summed up urging the court to find the pointed-out irregularities fatal, rendering the appeal incompetent to be entertained and that should be struck out. In reply, Mr. Rutebuka, opposed the preliminary objection. Regarding the first limb of objection, he contended that, rule 96 (1) (a) of the Rules merely requires the record to contain an index and does not prescribe the manner in which it should be titled. According to him, the impugned index is proper as it bears the title of the High Court from which the documents listed therein originated. He added that in his long practice, he has consistently titled indexes in similar fashion without objection. Dr. Rugazia associated himself with those submissions and emphasized that even proceedings and judgments originating from the High Court retain their original titles when included in the record of appeal. They prayed for dismissal of the first limb. On the second limb, M r. Rutebuka conceded that the tetters of administration were not included in the record. However, he attributed the omission to the failure by the Deputy Registrar to supply the document. He informed the Court that, upon informal request, he was told that letters of administration are issued only to the appointed person, in this case the 1s t respondent. Alternatively, Dr. Rugazia argued that, if the Court finds the omission fatal, the proper course would be to allow filing of a supplementary record under rule 96 (7) of the Rules. Regarding the third limb, M r. Rutebuka argued that the appeal was preferred against the same parties as they appeared in the High Court. He maintained that an appeal is a continuation of the proceedings below and that this Court has discouraged alteration of parties' names at the appellate stage. Dr. Rugazia reiterated M r. Rutebuka viewpoint that, the names should remain as they appeared in the lower court proceedings. In rejoinder, M r. Shayo reiterated his submission in chief and added, with respect to the second limb, that a prayer to file a supplementary record should not be entertained, as it would amount to pre-empting the preliminary objection. He therefore implored the Court to strike out the appeal. On the third limb, he further submitted that although the 1s t respondent appeared in her personal capacity during the petition proceedings, her capacity changed upon the grant of letters of administration. Consequently, the appeal could not properly be preferred against her in her personal capacity if the Court is to make a meaningful order regarding the complained appointment. 8 We have followed the contentions of counsel for both sides. We are obliged to discuss their merits or demerits. And we take the liberty to start with the 2n d limb, that the appeal is incompetent for an incomplete record, specifically the non-inclusion of the letters of administration. In essence, the appellants' counsel does not oppose in toto that the letters of administration are vital to be included and form part of the record of appeal, only, to D r. Rutebuka that the same was not availed by the Deputy Registrar, whereas M r. Rugazia found that it is the omission curable by filing supplementary record as per the dictates of Rule 96 (7) of the Rules. Rule 96 (1) (h) of the Rules, requires a record of appeal to contain, among other documents, the decree or order appealed from. Section 72 (1) of the Act provides that an order granting or refusing probate or letters of administration shall operate as a decree for purposes of appeal. It provides that: "72 -(1) An appeal shall He from an order granting or refusing probate or ietters o f administration made in contentious cases as if such order were a decree, and from any other order made in such cases if an appeal would He there from in a suit according to the provisions o f the Civil Procedure Code or any enactment replacing the same." [Emphasis supplied] The legal position is long settled. In Dr. Fortunatus Lwanyantika Maisha v. Dr. William Shija [1997] TZCA 51, this Court held that, failure to include the order appealed from renders an appeal incompetent. In probate disputes, the Court in Ramadhani Omary Mbuguni (supra) held that: "Letters o f administration being an instrument through which the applicant traces his standing to commence the proceedings, was in our view an essential ingredient o f the application in whose absence the Court cannot have any factual basis to imply the asserted representative capacity.... Failure to plead and attach the instrument is a fatal irregularity which renders the proceedings incompetent for want o f the necessary standing....In our opinion , therefore/ the application is incompetently before the Court and it is accordingly struck out." We have thus repeatedly stated that an incomplete record renders appeal incompetent. In Mussa Shaibu Msangi v. Sumry High Class Limited & Another [2025] TZCA 692, we had this to say: 10 "... we wish to state by way o f winding up that, it is the position o f rule 96 (1) or (2) o f the Rules, that a record o f appeal must be perfected by all documents necessary for the appeal. Otherwise, an appeal whose record o f appeal is incomplete, is incompetent. " In the present matter, the letters of administration being the very subject of challenge, are absent from the record. Without that instrument, the record is incomplete. The explanation advanced by counsel does not absolve the appellants from their duty to ensure compliance with the Rules. We have also considered D r. Rugazia's suggestion that this Court would grant an indulgence to pave the way for the filing of the supplementary record. We think counsel was right, and this would have been an appropriate remedy, if it were the appellants' prayer pre-notice of preliminary objection, as it was argued by M r. Shayo. Allowing the appellants to file supplementary record under Rule 96 (7) of the Rules is as good as allowing a person to amend any document after the other party has raised and argued a preliminary objection. In this pertinent case, to do so will inevitably defeat the 1s t respondent's preliminary objection, a practice this Court has repeatedly decried. We declined to do so in several cases like Kanjibhai M. Patel v. Dahyabhai F. i i Mistry [2003] T.LR. 437, Jaluma General Supplies Ltd. v. Stanbic Bank (T) Ltd., Civil Appeal No. 34 of 2010 and Method Kimomogoro v. Board of Trustees of TANAPA, Civil Application No. 1 of 2005 (all unreported). In Method Kimomogoro (supra), for example, the Court stated as follows: "This Court has said in a number o f times that it will not tolerate the practice o f an Advocate trying to pre-empt a preliminary objection either by raising another objection or trying to rectify the error complained o/7 '[Emphasis added]. For the sake of completeness, even when we would have been fortified to allow the parties to file supplementary record, yet, another point of law was taken in the 3r d limb which we also find fatal, rendering the appeal incompetent. In this limb, Mr. Shayo has submitted that after the grant of letters of administration, and the fact that the appellants are challenging that grant, they were supposed to implead the 1st respondent in her capacity of administratrix of the estate and not in her own name. Counsel for the appellants were of the different view that since this is a continuation of proceedings in which the 1s t respondent's name 12 appeared in the High Court proceedings, impleading her name in this appeal is proper. With due respect, we do not accede to the counsel's arguments. Section 71 of the Act provides in clear terms that after grant of probate or letters of administration, no person other than the person to whom the grant is made shall have power to sue or be sued as representative of the deceased until the grant is revoked. It provides: 71. After any grant o f probate or letters o f administration ; no person other than the person to whom the same sha/i 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 o f administration shall have been revoked or annulled. This principle was reaffirmed in Malietha Gabo v. Adam Mtengu (supra) and in Evelyne Mbuna v. Joseph Mshana [2025] TZCA 684, where this Court held that it is improper to sue an administrator in personal capacity in matters concerning the estate. The argument that an appeal is merely a continuation of proceedings does not override the express command of the statute. Capacity is a matter of law. Failure to reflect the correct representative capacity renders the appeal improper. 13 Having upheld the second and third limbs, which go to the competence of the appeal, consideration of the first limb would serve no useful purpose. It would be an academic exercise, which this Court ordinarily refrains from undertaking. For the foregoing reasons, we find merit in the second and third limbs of the preliminary objection. The appeal is incompetent and is hereby struck out. We order that each party shall bear its own costs. DATED at DODOMA this 26th day of February, 2026. Ruling delivered this 26th day of February, 2026 in the presence Mr. Rutebuka Anthony, learned counsel of the appellants, Mr. Adolf Temba, M r. Walter Shayo, both learned counsel for the 1s t and 2n d respondents respectively and Ms. Oscar Msaki, Court Clerk via virtual Court; is hereby Z. I N I . GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL ce