Fatma Mwamakamba vs Sophia Mwases (Civil Appeal No. 485 of 2026) [2026] TZHC 3089 (12 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MBEYA SUB - REGISTRY) AT MBEYA CIVIL APPEAL NO. 485 OF 2026 (Originating from Civil Revision No. 23183 o f2025, District Court of Mbaraii, Arising from the Decision by the Primary Court of Igurusi Probate and administration Cause No. 12 o f2020) FATMA MWAMAKAMBA...............................................APPELANT VERSUS SOPHIA MWASES .................................................. RESPONDENT JUDGMENT 14th May & 12thJune, 2026 POMO, J. On 22n d day of December, 2023, the District Court of Mbaraii, Hon. E.S. Mwambapa, PRM marked withdrawn the Respondent's Revision Application No. 23183 of 2025 following the Appellant's preliminary objection on point of law that it was time barred the objection which was conceded to. However, the respondent prayed for it to be marked withdrawn with no order as to costs. The learned magistrate granted the prayer of withdrawing by marking it withdrawn with costs. The appellant (then respondent) irrespective of her objection being upheld is no happy with the order of the district court which marked the matter withdrawn, hence this appeal containing tow grounds, namely: - 1. That, after the respondent to have conceded the Preliminary Objection relating a time limit ; the Court erred in law to grant a remedy o f withdrawing the said Application/ to strike the said Application , instead o f dismissing the said Application 2. That ; the Court erred in Law to deliver the ruling which contradicted itself on the "costs follow event principle " thus delivered a problematic ruling. During the hearing of the appeal, the appellant enjoyed legal representation of Mr. Amani Angolwisye, learned advocate while the respondent had the service of Mr. Gerald Msegeya, also a learned advocate. I allowed appeal be disposed by filing submissions and were dully filed by both sides as scheduled by this court. In his briefly submission, Mr. Angolwisye, argued in support of the first ground of appeal by stating that since the respondent had admitted to the preliminary objection related to the time limit, the court erred to withdrew the matter instead dismissing in accordance with per section 3(1) of the Law of Limitation Act [Cap.89 R.E. 20231 and also referred to the decision of this court in Fred Yawanga vs Mariam Ndimbo (Civil Appeal No. 2 29303 of 2024) [2025] TZHC 6737 (10 November 2025) TanzLII hence prayed the order be reversed from withdrawal to dismissal with costs. Regarding the second ground, Mr. Angolwisye, submitted that, as long the district court was by then not a taxing court, it wronged when it entered into discussing in detail on costs while costs follow event. Having so submitted, he prayed the appeal be allowed with costs. In reply submission, Mr. Msegeya, argued that a party is entitled to withdraw proceedings at any stage before final determination subject to the court's discretion and terms as to costs. That, in this matter, the respondent conceded to the preliminary objection and thereafter opted to withdraw the matter with leave to re-file and thus cited Order XXIII Rule l(l)(2)(a)(b) of the Civil Procedure Code [Cap.33 R.E.2023] and the case of Control and Superintendence Ltd vs MSK refineries Ltd (Civil Appeal No.5601 of 2023) T7CA 717 (14 July 2025) TanzLII. He therefore argued that the district court properly exercised its discretion in allowing withdrawal as prayed and awarding costs to the appellant. Moreover, Mr. Msegeya, argued that the herein being a probate matter, court are enjoined to exercise caution and flexibility to allow parties to ventilate disputes properly rather than shutting them out on technicalities. He thus prayed the appeal be dismissed with costs. There was no rejoinder, as such, this marked the end of parties' submissions. I have dispassionately considered the rivalry submissions for and against the appeal as well the lower court's record. The issue mainly calling for determination is whether this appeal is worth allowing or otherwise. As the lower record reveals, the respondent's revision application before district court, deadly met with the appellant's objection on point of law that it was time- barred and it was conceded to by the respondent. Nevertheless, the respondent prayed and was granted leave to withdraw it with costs. The district court's findings, allowing the respondent to withdraw the matter, is what is mainly aggrieved the appellant. I am now called to resolve it. Faced with similar prayer for withdrawing the matter after the preliminary objection was lodged against it, in Petrina Aloyce vs Christina Leonard Nyumayinzu (Civil Appeal No 138 of 2015) [2017] TZCA 378 (28 September 2017) TanzLII, at pp.8 -10, the Court of Appeal had this to state: - 'We have thought over the appellant’ s prayer of allowing her to withdraw the appeal after the concession find ourselves loathe to accede to her prayer for the obvious reason that taking that course would have the effect of pre-empting the preliminary objection raised bv the respondent a course which we have all along been discouraging. There is a long list of cases on the point One such case is Mary John 4 MitcheU v . Sylvester Magembe Cheyo & others, Civil Application No. 161 of 2008 (unreported) in which we reiterated our earlier position we stated in Method Kimomogoro v. Board of Trustees of TANAPA, Civil Application No. 1 o f2005 (also unreported) in the following terms: "This court has said in a number of times that it will not tolerate the practice of an advocate trying to pre empty a preliminary objection either by raising another preliminary objection or trying to rectify the error complained of." [See also: Shah/da Abdul Hassana/I Kassam v. Mahedi Mohamed Gulamali Kanji, Application No. 42 o f 1999 (Unreported), Almas Iddie Mwinyi v. National Bank of Commerce & Another [2001] TLR 83, the Minister for Labour and Youth Development and Shirika la Usafiri DSM v. Gas pa Sv:z\ SI 57 others [2003] TLR 239 and Frank Kibanga v. ACCU Ltd, Civil Appeal No. 24 o f 2003 (all unreported), to mention but a few. In the light of the above authorities, the prayer by the appellant to be allowed to withdraw the appeal after the preliminary objection and the concession thereof is, for the reasons stated. refused." The import of the above authority is that, irrespective of concession to the preliminary objection raised, there is no room for withdrawing the matter to which the objection is raised against. Therefore, guided by the authority 5 (supra) to the herein impugned decision, obviously, the procedure adopted by the learned magistrate of the district court, with due respect, was contrary to the legal stance as enunciated above. The learned magistrate was enjoined to refuse the respondent's prayer for withdrawing of the matter and instead proceed to enter a proper order for a time barred matter in terms of section 3(1) of the Law of Limitation Act, TCap.89 R.E. 20231 of which is to dismiss it. See: Fred Yawanga vs Mariam Ndimbo (Civil Appeal No. 29303 of 2024) [2025] TZHC 6737 (10 November 2025) TanzLII cited by the appellant. That said, I find merit in this ground and allow it. Next is the second ground, which is on the complaint that the court erred in Law to deliver the ruling which contradicted itself on the "costs follow event principle", thus delivered a problematic ruling. Linder this ground, the appellant's complaint is that the district court laboured its-finding-as if was a taxing court. However , as argued by the learned advocate for the respondent, correctly in my view, the end result was to award costs to the appellant. Although the district court awarded costs to the appellant, in my considered view, being a probate matter, it was wrong. In Petrina Aloyce vs Christina Leonard Nyumayinzu (supra), at page 10, the Court of Appeal underscored thus: - "Regarding costs, we are alive to the general principle that they normally follow the event However, as Mr. Kayaga did not strenuously press for them and left the wisdom of the 6 Court to prevail, we are of the considered view that this being a matter stemming from the administration o f estates and any order as to costs will have the effect of depleting the estates, justice will smile if each party is ordered to bear its own costs." Again, applying the above decision, since the herein dispute was a probate matter, I am compelled to revise the district court's decision awarding costs to the appellant and substitute for it with the order that each party shall bear its costs. In the upshot, the appeal is partly allowed. Order of the District Court withdrawing the respondent's Civil Revision No. 23183 of 2025 before it following concession to the objection that it was time barred, is hereby reversed by substituting it with the order of dismissal in terms of section 3(1) of the Law of Limitation Act, [Cap. 89 R.E. 2023]. Further, being a probate matter, the order of the District Court awarding costs to the appellant is also hereby reversed to that of each party to bears its own costs. I make no order as to costs. It is so ordered Right of Appeal is explained. DATED at MBEYA on this 12th day of June, 2026 MUSA K.POMO JUDGE 12 / 06/2026 fi tor 7 Judgment delivered in chamber on this 12th day of June, 2026 in absence of both parties and their advocates. Right of Appeal Fully Explained MUSA K. POMO JUDGE 12 / 06/2026