Hamisi MKandwa vs Administrator General (Civil Application No 603/17 of 2024) [2025] TZCA 911 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO 603/17 OF 2024 HAMISI M KAN D W A........................................................................... APPLICANT VERSUS ADMINISTRATOR GENERAL (Administrator of the estate Of the late MKANDWA HAMIS.......................... RESPONDENT (Application for extension of time to file appeal out of time against the Judgment and Decree of the High Court of Tanzania (Land Division) at Dar es Salaam) (Maqhimbi, J ) Dated 8th July, 2021 in Land Case No. 110 of 2018 RULING 27th & 29th August, 2025 NGWEMBE, JA.: This is an application for extension of time to file appeal against the judgment and decree of the High Court of Tanzania, Land Division at Dar es Salaam in Land Case No. 110 of 2018. The case was instituted by Zaria Omari, a co-administratrix with the applicant herein over the estate of the late Mkandwa Ha mis (deceased) having been appointed by Mbagala Primary Court in Probate and Administration Cause No. 98 of 2015.

The applicant herein is one of the children of the deceased and Zaria Omari was the wife of the deceased. After death of the deceased, the applicant and Zaria Omari were jointly appointed Co-administrators of the deceased estate. While exercising their function, they disagreed on one property, which is the centre of the dispute in this application. The said property is Plot No. 68 Block "H" located at Kariakoo Likoma within Dar es Salaam city (suit plot). While Zaria Omari claimed the same to belong to the deceased estate, the applicant claimed to be the true owner of the suit plot got from his grandmother. Consequently, Zaria Omari, instituted a suit before the High Court (Land Division) claiming among others, a declaration that the suit plot belonged to the deceased Mkandwa Hamisi; the applicant to surrender all documents related to the plot; and vacant possession. After a full trial, the High Court found that the suit plot belonged to the deceased and was part of the deceased estate. The High Court's decision was delivered on 08/07/2021 and the applicant lodged notice of appeal on 15/07/2021, thus within time. However, it is unknown as to what prevented him from proceeding with the appeal to the Court.

According to the record, on October 2022, the probate court revoked both administrators for their absolute failure to administer the estate and by a letter referred the matter to the District Court of Temeke, requesting the latter to appoint the Administrator Genera! to administer the estate of the deceased. H ie referred matter was admitted as Miscellaneous Civil Application No. 109 of 2022 whereas the District Court (Millanzi, PRM) in its decision delivered on 07/02/2023, appointed the Administrator General to administer the estate of the deceased. On 13/08/2024 the applicant preferred this application for extension of time under rule 10 of the Rules against the Administrator General who administers the estate of the deceased. The impleading of the instant respondent takes base from the background given, that the applicant and Zaria Omari were previous administrators, their appointment was revoked, hence both of them lost the capacity of administering the deceased estate. In his notice of motion, the applicant raises illegality as a ground for extension of time, that such illegalities cannot be left to stand. According to him, the illegality is on the judge's treating joint venture investment agreement as proof of ownership; failure to join necessary parties; and ignoring the certificate of occupancy. In his affidavit the 3

applicant states that when he was contemplating to file his appeal, the Administrator Genera! had already been in place. As to the reasons for delay, the applicant's affidavit indicates that he failed to appeal within time because he was waiting for the copies of record from the High Court and preparation of the records took some time. Also, he raised the demise of his previous advocate. Hence, implored the Court to grant him extension of time to appeal against the High Court's judgment. At the hearing of this application, Mr. David Pongolela, learned advocate entered appearance for the applicant and Mr. Ayub Sanga together with Joseph Tibaijuka, Swalehe Njoma and Emma Ambonisye appeared for the respondent. Before I could invite the applicant to elaborate on the application, Mr. Sanga, raised an objection orally concerning the validity and competence of the application itself. He explained that the judgment of the High Court and notice of appeal had different parties, that is, the applicant and Zaira Omari, while this application is against the Administrator General who was not a party to the original trial. Further, Mr. Sanga pointed that, the respondent is a stranger to the application. Since the applicant failed to apply at the High Court for substitution of parties to the suit, the instant application becomes

incompetent. He buttressed his argument with a decision of the Court in Salim Amour Diwani v. The Vice Chancellor Nelson Mandela African Institution of Science & Technology & Another (Civil Application No. 116 of 2021) [2023] TZCA 33 (21 February 2023). Hence, he urged the Court to strike out the application. This being a point of law, I entertained it and invited the learned counsel for the applicant to respond therefrom. Mr. Mpongolela hurriedly conceded to the objection that it is evident, the respondent herein was not a party to the original trial. Therefore, he invited the Court to strike out the application with a view to allow the applicant to start afresh. It is settled law in our jurisdiction that court records are considered authentic and should not be easily altered as parties would wish to. It bears reaffirming that parties in the proceedings should at any given time, appear as they did in the original proceedings unless there is a reason for not observing that and only with the leave of the court. See Salim Amour Diwani (supra) at page 4 and Hellena Adam Elisha @ Hellen Silas Masui v. Yahaya Shabani & Another (Civil Application No. 118 of 2019) [2021] TZCA 669 (11 November 2021).

In many other decisions, the Court has maintained that at any given time appearance of parties must be maintained as they did in the original proceedings, unless there is a good reason for changes like the placement of an administrator of the deceased estate who originally was a party. See Halfani Sudi v. Abieza Chichili [1998] T.L.R. 527 and Isaack Wilfred Kassanga vs Standard Chartered Bank Tanzania Limited (Civil Application No. 453 of 2019) [2022] TZCA 222 (22 April 2022), where the Court underscored the significance of the authenticity and accuracy of the court record, which includes a citation of parties' names as they appear in the original proceedings. Clearly my reading the record of this application, it is crystal clear as was observed by the learned State Attorney and as conceded by Mr. Mpongolela, that the respondent herein was not a party to the previous proceedings. The original parties to the dispute were the applicant and Zaria Omari as prefaced in the judgment and notice of appeal. For whatever reasons, the Administrator General could not easily be impleaded in this application without first following a certain legal process, including applying for substitution of the names in the original record. Since the applicant has admitted to have wrongly impleaded the respondent herein, the application is incompetent.

In view of the above reasons, I hold that this application is incompetent. Consequently, I hereby strike out the application with no order as to costs. DATED at DODOMA this 29th day of August, 2025. P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 1st day of September, 2025 in the presence of Mr. David Pongolela, learned Counsel for the Applicant, Ms. Victoria Lugendo, learned Counsel for the Respondent via virtual Court and Emmanuel Saanane, Court Clerk; is hereby certified as a true copy of the original.