Omary Lucas Kachima vs Sophia Lucas Kachima (Miscellaneous Civil Application No. 31488 of 2025) [2026] TZHC 3130 (10 June 2026)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF TABORA AT TABORA (Arising from High Court of Tabora subregistry in PC Civil Appeal No.12 of 2012 ,Tabora District Court in Probate Appeal No.10 of 2010 originating from Isevya Primary Court in Probate case No.19 of 2008) MISCELLANEOUS CIVIL APPLICATION NO. 31488 OF 2025 OMARY LUCAS KACHIMA……………........................... APPLICANT Versus SOPHIA LUCAS KACHIMA……………………............. RESPONDENT RULING 10 th & 10 th June, 2026 MPAZE, J.: The applicant has moved this Court by Chamber Summons brought under Rule 45(a) and (b) of the Tanzania Court of Appeal Rules, 2009, seeking a certificate that the intended appeal to the Court of Appeal involves a point of law arising from the judgment of this Court in PC Civil Appeal No. 12 of 2012 delivered on 30th July, 2013. The application is supported by the affidavit of Omary Lucas Kachima and was heard ex parte. I have carefully considered the Chamber

2 Summons, the supporting affidavit, the annexures thereto and the written submissions filed by the applicant. The background of the matter is not in dispute. The dispute originated from probate proceedings relating to the estate of the late Lucas James Kachima. The applicant's claim was unsucce ssful before the Primary Court, the District Court and subsequently before this Court in PC Civil Appeal No. 12 of 2012. Following the grant of extension of time by the Court of Appeal in Civil Application No. 531 of 2025, the applicant lodged the present application seeking a certificate on a point of law. The law is settled that a certificate under Rule 45 is granted only where the intended appeal raises a genuine point of law and not merely questions of fact or the sufficiency of evidence. A point of law is one whose determination requires the interpretation, application or ascertainment of legal principles. In paragraph 4 of his supporting affidavit, the applicant proposed the following issues as constituting points of law ; (i) Whether the second appellate court properly evaluated the evidence tendered by the applicant.

3 (ii) Whether the trial court and the appellate courts properly considered the lifestyle or mode of life of the late Lucas James Kachima in determining the dispute. (iii) Whether the applicant has a legal right of inheritance as a biological child of the late Lucas James Kachima notwithstanding the finding that he was born out of wedlock. (iv) Whether House No. 584 on Plot No. 18/G18 situated at Zahanati Street, Kiloleni Ward, Tabora Municipality formed part of the estate of the late Lucas James Kachima . I have carefully examined each of the above proposed points. The first proposed point concerns the evaluation of evidence by the courts below. Whether evidence was properly assessed, s ufficient, or persuasive is generally a matter of fact. The applicant's complaint essentially challenges the conclusions reached by the courts upon the evidence on record. Such a grievance does not raise a point of law warranting certification. The second proposed point relates to the deceased's mode of life. Whether a deceased person lived according to a particular customary, statutory or religious system is a question dependent upon the evidence adduced in each case. The complaint advanced by the applican t is directed at the manner in which the courts below assessed that evidence and

4 arrived at their factual findings. Accordingly, this issue does not, in the circumstances of this case, amount to a point of law. The fourth proposed point concerns whether th e house situated on Plot No. 18/G18 formed part of the estate of the deceased. Determination of that issue depends on proof of ownership and other factual matters established through evidence. The issue therefore turns principally on factual findings and d oes not qualify for certification as a point of law. In Dorina N. Mkumwa v. Edwin David Hamis (Civil Appeal No 53 of 2017) [2018] TZCA 221 (11 October 2018) , the Court of Appeal emphasized that; ‘ Therefore, when High Court receives applications to certify point of law, we expect Rulings showing serious evaluation of the question whether what is proposed as a point of law, is worth to be certified to the Court of Appeal. This Court does not expect the certifying High Court to act as an uncritical conduit to allow whatsoever the intending appellant proposes as point of law to be perfunctorily forwarded to the Court as point of law .’ Guided by the above principle, I am not persuaded that the first, second and fourth proposed points raise questions of law fit fo r certification.

5 However, the third proposed point stands on a different footing. The applicant contends that although he was acknowledged to be the biological child of the deceased, he was denied inheritance rights on account of having been born out of we dlock. The question raised thereby is not merely factual. Rather, it concerns the legal consequences of such status under the applicable law of succession and inheritance. In my considered view, the issue calls for the interpretation and application of leg al principles governing inheritance rights and therefore raises a substantial and arguable point of law deserving consideration by the Court of Appeal. Accordingly, I certify the following point of law for appeal to the Court of Appeal ; ‘ Whether a child bo rn out of wedlock, but established to be the biological child of the deceased, is legally entitled to inherit from the estate of his biological father under the applicable law . ’ The determination of this question requires the interpretation and application of the relevant principles of inheritance law and therefore properly falls within the ambit of Rule 45 of the Tanzania Court of Appeal Rules, 2009.

6 Consequently, the application succeeds to that extent only. A certificate on the above point of law is hereby issued. It is so ordered. Dated at Tabora this 10 Day of June, 2026. M.B Mpaze Judge Court : Ruling delivered in the presence of the Applicant but in the absence of the Respondent. M.B.Mpaze Judge 10/6/2026