Dr. Christian S. Kimisha vs Peter Leo Kafuvi and Others (Land Appeal No. 29317 of 2025) [2026] TZHC 3123 (10 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF TABORA AT TABORA LAND APPEAL NO. 29317 OF 2025 (Originating from the decision of the District Land and Housing Tribunal for Tabora Land Application No. 64 o f2022) DR. CHRISTIAN S. KIMISHA (Administrator of the Estate Of the late JOHANES KIMISHA)...........................APPELLANT VERSUS PETER LEO KAFUVI.............................................1 st RESPONDENT LEONARD KISHIWA...........................................2 n d RESPONDENT MANONI NDOFU................................................3 r d RESPONDENT STEVEN MICHAEL LUSAMBO ............................... 4™ RESPONDENT FOSTER MICHAEL LUSAMBO ............................... 5 th RESPONDENT NGONIYONA .................................................... 6 th RESPONDENT SOJI CHARLES...................................................7 th RESPONDENT JUDGMENT 1CF & lCfhJune, 2026 MPAZE, J.: In his capacity as the administrator of the estate of the late Johanes Kimisha, the appellant instituted a land dispute before the District Land and 1

Housing Tribunal for Tabora (the DLHT) against the respondents, alleging trespass upon a parcel of land measuring approximately 12 acres situated at Imalamakoye B hamlet, Imalamakoye Village, within Urambo District, which he contended forms part of the estate of the deceased. Upon hearing both parties, the DLHT dismissed the claim and declared that the disputed parcel of land belongs to the 1s t , 3r d , 6th , and 7th respondents. Aggrieved by that decision, the appellant lodged the present appeal on four grounds. When the appeal came for hearing on 05/05/2026, learned counsel for the appellant applied for leave to amend the memorandum of appeal by introducing an additional ground. The application was not opposed by the respondents, and the same was duly granted by this court. Consequently, the court directed that the appeal be disposed of by way of written submissions. When the matter came up on 10th June 2026 for confirmation of compliance with the scheduling order, both parties, through their respective counsel, Mr. Saleh Makunga for the appellant and Mr. Ally Maganga for the 2

respondents, confirmed compliance and jointly prayed that the matter be fixed for judgment. However, before fixing the matter for judgment, this court, suo motu, directed the parties to address it on the issue of whether the suit before the trial Tribunal was instituted within the prescribed limitation period under sections 9 and 35 of the Law of Limitation Act, [Cap 89 R.E 2023] (the LLA), noting from the record that the deceased passed away in the year 2000. On his part, Mr. Maganga, learned counsel for the respondents, submitted that it is undisputed that the deceased died in the year 2000. He argued that, pursuant to section 9(1) of the LLA, the cause of action in respect of a deceased person's estate accrues upon the death of that person. In the present matter, the proceedings were instituted approximately twenty-one years after the death of the deceased. He further submitted that paragraph 22 of the LLA prescribes a limitation period of twelve years for actions relating to land. Consequently, the suit was instituted outside the statutory limitation period. Counsel further contended that although section 35 of the Law of Limitation Act provides that time does not run in respect of the grant of 3

probate or letters of administration, the commencement of probate proceedings does not revive a cause of action that has already become statute-barred. He submitted that the respondents, namely Peter Kafuvi, Leonard Kishiwa, Steven, and Foster Michael Lusambo, had been in occupation of the disputed land even prior to the death of the deceased in 2000, and that no dispute arose during the lifetime of the deceased. According to learned counsel, the dispute only emerged after Dr. Christian Kimisha surfaced following the death of his father and asserted ownership of the land on behalf of the estate. Accordingly, by the time the suit was filed before the DLHT, it was already time-barred. He further submitted that the Tribunal lacked jurisdiction to entertain a time-barred claim, as doing so would be contrary to section 9(1) of the Law of Limitation Act. He added that the appellant ought to have first sought leave for extension of time before instituting the proceedings, and that failure to do so rendered the proceedings incompetent. 4

On his part, Mr. Saleh Makunga, learned counsel for the appellant, submitted that the DLHT had jurisdiction to entertain the matter. He argued that upon discovering that the land belonging to his late father had been encroached upon, the appellant initiated probate proceedings and was subsequently appointed as the legal administrator of the estate. He further contended that prior to that appointment, the appellant had no knowledge of the alleged encroachment upon the land previously occupied and utilized by the deceased. It was his submission that, in the case of an administrator, time begins to run from the date of knowledge or discovery of the interference with estate property. He relied on various appellate authorities for the proposition that where an administrator becomes aware of an invasion or interference with estate property, the limitation period should be computed from the date of such knowledge. In the circumstances, learned counsel submitted that the Tribunal properly assumed jurisdiction and was competent to hear and determine the dispute. Having heard the parties, the court proceeded to prepare this judgment.

At this stage, I find it unnecessary to reproduce the grounds of appeal for reasons that will become apparent in the course of this judgment. I shall first address the issue raised by this court suo motu concerning the jurisdiction of the DLHT, as its determination may be dispositive of the entire appeal. Should it not dispose of the appeal, I shall then proceed to consider the remaining grounds of appeal. At the beginning of this judgment, I stated that the dispute before the trial Tribunal concerned a parcel of land allegedly belonging to the estate of the late Johanes Kimisha, which the appellant contended had been trespassed upon by the respondents. From the submissions of both parties, it is evident, and indeed undisputed, that the deceased passed away in the year 2000. The controversy that now falls for determination is whether the suit instituted before the DLHT was barred by limitation. While learned counsel for the appellant maintained that the suit was instituted within time, learned counsel for the respondents argued that it was statute-barred. The question that therefore arises is whether, at the time of its institution, the suit was already barred by operation of law. 6

The record of the DLHT reveals that the suit was instituted on 22n d September, 2022 approximately twenty-two years after the death of the deceased. The law governing limitation of actions in civil proceedings is the LLA, as applicable. Generally, section 5 of the Act provides that; 'Subject to the provisions o f this Act the right o f action in respect of any proceeding, shall accrue on the date on which the cause o f action arises This The effect of this provision is that, as a general rule, time begins to run from the date when the cause of action accrues. However, section 5 is expressly made subject to other provisions of the LLA. Consequently, where the LLA contains a specific provision governing the accrual of a particular cause of action, such specific provision prevails over the general rule embodied in section 5. In the present matter, the applicable provision is section 9(1) of the LLA, which specifically governs suits relating to land forming part of a deceased person's estate. The provision must also be read together with section 35 of the LLA. Section 9(1) provides; 7

Where a person institutes a suit to recover land o f a deceased person, whether under a wiii or intestacy and the deceased person was, on the date o f his death, in possession o f the land and was the last person entitled to the land to be in possession o f the land, the right o f action shall be deemed to have accrued on the date o f death,' The language employed in the above provision is clear and unambiguous. For purposes of a suit seeking recovery of land belonging to a deceased person, the legislature has expressly deemed the cause of action to accrue on the date of the deceased's death. In such circumstances, the accrual of the cause of action is not dependent upon the date when the administrator obtains letters of administration, nor upon the date when he discovers the alleged trespass or interference with the estate property. Accordingly, the appellant's submission that time began to run upon discovery of the alleged encroachment finds no support in section 9(1) of the LLA. The section creates a statutory deeming provision fixing the date of accrual as the date of death of the deceased. Being a specific provision governing actions for recovery of land belonging to a deceased person's estate, it overrides the general principle contained in section 5 of the LLA. 8

Since it is common ground that the deceased died in the year 2000, the right of action is deemed to have accrued in that year. The Court of Appeal authoritatively interpreted this provision in Lesusu Lesilale Saiduraki v. Melaveki Saiduraki Laizer (Civil Appeal No. 529 of 2021) f20241 TZCA 1283 (13 December 2024), where it stated; '...In the light o f the above provisions, the right o f action or right to sue to recover the land o f a deceased is within twelve years and the time is calculated from the date o f his demise...' The submission by Mr. Saleh that time ought to be calculated from the date when the administrator became aware of the alleged encroachment, or from the date when he was appointed as administrator of the estate, is misconceived in light of section 35 of the LLA, which provides; 'For the purposes of the provisions o f this Act relating to suits for the recovery o f land, an administrator of the estate o f a deceased person shall be taken to claim as if there had been no interval o f time between the death o f the deceased person and the grant o f the letters of administration or o f the probate ' Criticising a similar argument advanced before it, the Court of Appeal in Lesusu Lesilale Saiduraki {supra) stated; 9

' The argument by Mr. Sambo that the right o f action accrues from the date o f dispossession ofthe land pursuant to section 9 (2) ofthe LLA is, with due respect, notfitting in the circumstance of this case. We are justified with the import o f section 35 o f the LLA which reads', For the purposes o f the provisions o f this Act relating to suits for the recovery o f land, an administrator o f the estate o f a deceasedperson shall be taken to claim as if there had been no interval o f time between the death ofthe deceased person and the grant ofthe letters o f administration or, as the case maybe, ofthe probate' The Court went further to elucidate; ' Going by its plain meaning, it does not exclude the time from the date o f death ofthe deceased to the date o f appointment ofthe administrator. It is settled that the time will start to run from the date of death ofthe deceased and not at the pleasure ofthe heirs. The law requires the heirs to be vigilant and take action timely for the recovery ofthe deceased's land \ [Emphasis added] The import of the foregoing pronouncement is that neither the appointment of an administrator nor the date upon which the administrator acquires knowledge of the alleged trespass has any bearing on the computation of time for purposes of limitation. 10

The law fixes the accrual of the cause of action at the date of death of the deceased, and time begins to run from that date irrespective of when letters of administration are obtained or when the heirs become aware of the alleged invasion of the estate property. Likewise, in Yusuf Same and Another v. Hadiia Yusuf [1996] TLR 347, where, applying sections 9(1) and 35 of the LLA, held; 'Applying these provisions to the present case respondents right o f action accrued from January, 1977 were the deceased died. The computation o f this period still begins from that date despite the fact that respondent was granted letters of administration on 25th February 1992\ that is about twelve years after death o f the deceased. In fact, what actually happened is that by the time when respondent was granted the letters o f administration her cause o f action had already been time barred. And at the time she filed the suit on 8th July, 1993 respondent was late by over two years. The arguments o f Mr. Raithatha on the issue o f limitation are valid hence it is held that the suit against the appellant was incompetent as it was time barred.' See also; Seif Chande Mavanaa vs Hussein Malid Tekwa (Land Appeal No.26495 of 2025) [2025] TZHC 7922 (11 December 2025). Guided by the above authorities, and considering that Item 22 of Part I of the Schedule to the LLA prescribes a limitation period of twelve years 11

for actions seeking recovery of land, I find that the cause of action in the present matter accrued in the year 2000 upon the death of Johanes Kimisha. The suit was instituted before the DLHT on 22n d September 2022, approximately twenty-two years thereafter. It follows, therefore, that the suit was instituted well outside the prescribed limitation period and was consequently time barred. The question that follows is; what is the legal consequence of instituting a suit after the prescribed limitation period has expired? The answer is found in section 3(1) of the LLA which provides; Subject to the provisions o f this Act, everyproceeding described in the first column o f the Schedule to this Act and which is instituted after the period o f limitation prescribed therefore opposite thereto in the second column , shall be dismissed whether or not limitation has been set up as a defence ' The The wording of the provision is couched in mandatory terms. Accordingly, once it becomes apparent that a proceeding was instituted outside the prescribed limitation period, the court or tribunal is bound to dismiss it. Where the issue of limitation has not been raised by the parties, the court must first bring the matter to their attention and afford them an 12

opportunity to be heard thereon before making an appropriate determination, as the issue goes to the jurisdiction of the court or tribunal. It is also settled that a suit instituted outside the prescribed period of limitation, without extension of time where such extension is permissible, is incompetent from its inception. Consequently, the DLHT lacked jurisdiction to entertain and determine the dispute once the claim had become time barred. Having arrived at that conclusion, I find that the issue of limitation is dispositive of the entire appeal, rendering it unnecessary to consider the remaining grounds of appeal. In the result, although I agree with the ultimate outcome reached by the DLHT, I arrive at that conclusion on different grounds. Having found that the suit was instituted outside the prescribed limitation period, I hold that the Tribunal lacked jurisdiction to entertain and determine the dispute. Consequently, the proceedings before the DLHT are hereby quashed, and the judgment and decree emanating therefrom are set aside for having been rendered without jurisdiction. 13

In their stead, I substitute an order dismissing the suit as being time barred under the provisions of the Law of Limitation Act [Cap 89 R.E 2023]. Accordingly, the appeal is dismissed. Given that the issue of limitation was raised by this court suo motu, I make no order as to costs. It is so ordered. Dated at Tabora this 10thDay of June, 2026. Court: Judgment delivered in the presence of Mr. Saleh Makunga, the Learned Advocate for the Appellant and Mr. Ally Maganga the Learned Advocate for the Respondents. 14

M.B.Mpaze Judge 10 / 6/2026 15