Edward Oloitay Mollel (As Personal Legal Representative Of Late Lobikieki Oloitay Mollel [Deceased]) vs Loshilaari Lobikieki Mollel (Civil Appeal No. 000006287 of 2026) [2026] TZHC 3097 (9 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA CIVIL APPEAL NO. 000006287 OF 2026 EDWARD OLOITAY MOLLEL (AS PERSONAL LEGAL REPRESENTATIVE OF THE LATE LOBIKIEKI OLOITAY MOLLEL [DECEASED]), .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS LOSHILAARI LOBIKIEKI MOLLEL .............................. RESPONDENT / DEFENDANT JUDGMENT NDUMBARO, J 26/05/2026 & 09/06/2026 NDUMBARO, J This is an appeal against the ruling and orders of the District Court of Arumeru on the 17th day of February 2026. The trial court, in its determination of Misc. Civil Application No. 23549 of 2025 revoked the grant of Letters of Administration previously issued to the Appellant, Edward Olitay Mollel , on 30th September 2024, in respect of the estate of his late brother, Lobikieki Oloitay Mollel . The trial court revoked the said appointment based on two reasons: first, a lack of jurisdiction, finding that the deceased lived a Page. 1

"customary mode of life" despite professing Christianity, whereby the jurisdiction vested in a Primary Court; and second, findings of procedural irregularities regarding beneficiary consent and the authenticity of family minutes. The appellant is challenging the decision of Arumeru District Court decision on three grounds;

1. The District Court erred in Law and fact by misapprehending material evidence placed before the court, thereby arriving at a wrong decision that the District Court had no Jurisdiction to determine probate and administration of the cause of Lobikieki Oloitay Mollel (the deceased), thereby vitiating the whole proceedings thereof.
2. The District Court erred in law on the basis of hearsay evidence and sentiment, thereby ignoring to adopt the principle of jurisprudence enunciated by the High Court of Tanzania at Arusha vide a case of Joel Lesian Mollel versus Thobias Lesian Mollel (PC. Civil Appeal No. 56 of 2021) [2023] TZHC 22193 (12 October 2023).
3. The decision of the district court is a nullity for being procured by concealing material information by Misrepresentation of facts in the affidavits supporting the application, designed to gain some advantage or benefit at the hands of the court. When the matter was for hearing, the appellant was represented by an advocate, Emanuel Ole Kokan, and the respondent was represented by an advocate, Bethy Sanare. With leave of the court, the matter was disposed of by way of a written submission. It was the submission of the counsel for appellant that, immediately before his death, the deceased professed Christianity; he tendered a baptism certificate, and it was admitted as exhibit P1, to prove that he was a Christian; argued that said primary court had no jurisdiction to handle Christianity probate Page. 2

rather than customary and Islamic probate as it was stated in Section 18(1)(a)(i) of the Magistrate Courts Act Cap 11. Revised Edition 2023, and paragraph 1(1) of the Fifth Schedule to the MCA. Supporting the argument with the case of Godwin Theodory Mwesigwa and Another versus Projestus Theodory Rwechungura (as the Administrator of the Estate of the late Theodory Bagaya Bernardo) Pc. Civil Appeal No. 19294 of 2024, page 14, Tanzill that; “….It is my finding that both lower courts dived into great error to reach their conclusions that the deceased lived under customary life on the reason that he was living a village life. Living a village life is not proof of the mode of life the person is living or has lived. There must be other indicators showing that the deceased lived a village life, and he lived a customary life of that place….” Further faulted that the court was fuctus officio as it initially appointed the respondent as administrator and thereafter went into revoking the said appointment. On 2 issue was that the principle laid in the case of Joel Lesian Mollel nd versus Thobias Lesian Mollel (PC. Civil Appeal No. 56 of 2021) [2023] TZHC 22193 (12 October 2023), was not adhered to; whereby in the cited case, the high court overturned the decision of the trial court and the district court on the sole ground that the primary court had no jurisdiction to entertain a probate matter whose deceased was living a Christian life, no matter how short the period of conversion could have been. Similar to the life of the late Lobikieki Oloitay Mollel, who lived a partial customary life and later converted himself into a respected Christian life together with his family. The jurisdiction Page. 3

of the primary court in respect of the Probate and administration of estates is limited to matters of customary and Islamic law by virtue of Section 18 (1)(a)(i), (2), and 19(1)(c) of the MCA, as well as item 1(1) of the Fifth Schedule to the same law. Therefore, inviting the court to make findings that the district court was a proper forum with jurisdiction to entertain and grant letters of administration of the estate of the late Lobikieki Oloitay Mollel to Edward Oloitay Mollel, not the primary court whose jurisdiction is limited to customary and Islamic law. In 3 ground, the appellant argued that the judgment was obtained with rd fraud and misrepresentation of a material fact from, referring to paragraph 13 of page 2 of the applicant affidavit; that the administrator of the estate of Lobikieki (Edward Oloitay Mollel) distributed properties not belonging to the estate of the late Lobikieki Oloitay Mollel, and did not participate in the family meeting which endowed the respondent; the court went into taking the fact without appellant adducing any cogent evidence to prove those allegations. Supported the argument with the decision from Indian High court in the case A.V. Papayya Sastry & Ors vs Government of A.P. & Ors Appeal (civil) 5097-5099 of 2004, citing a case of Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341: (1956) 1 QB 702: (1956) 2 WLR 50, that “No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court… can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.” The position of law in Tanzania is provided in the case of Yusufu Selemani Kimaro Versus Administrator General and Page. 4

Others, Civil Appeal No. 266 of 2020, as: "The rule as to fraud applies equally, whether the judgment or decree impugned was passed by an inferior court or superior court. Whenever it is shown that a judgment which is relevant was obtained by fraud, every court will treat it as a nullity, that fraud vitiates the proceedings of the court." Therefore, the appellant prays that the position of administrator of the estate of the late Lobikieki Oloitay Mollel be restored and confirmed, and the decision and orders of the District Court of Arumeru be quashed and set aside with costs. In reply, the respondent initially raised an objection to the tenability of this appeal as the respondent sued as representative of the late Lobikieki Oloitay, while his administration was revoked vide Miscellaneous Application No. 23549 of 2025, before the Arumeru District Court, supporting the argument with a case of Eliminata Masinda and Another vs. Msweti Masinda and Another, Civil Appeal No. 491 of 2023 [2026] , the Court of Appeal, citing the case of Malietha Gabo vs. Adam Mtengu (Civil Appeal No. 485 of 2022) [2023] that; ”…. we are fortified in that regard because the only person who can act as the representative of the deceased, is the grantee of the letters of administration as provided under the provisions of section 71 of the Probate and Administration of Estates Act (CAP 352 R.E. 2002)." Considering the merit of the appeal, the respondent argued that the trial court was right to revoke the administration on the grounds of the mode of life; argued that the mere Christian affiliation does not automatically oust Page. 5

customary law; there must be clear evidence of lifestyle detachment from customary practice after the deceased was baptised. The mode of life of the deceased was customary and not Christian, as asserted by the appellant. Supported the argument with a case of Benson Benjamin Mengi and 3 Others vs. Abdiel Reginald Mengi and Another, Probate and Administration Cause No. 39 of 2019 (unreported) at page 17, where it was stated that the dominant mode of life that the deceased professed was customary law, as he was baptised at an advanced age and lived approximately seven years thereafter until his demise. On the 2 ground, the matter was quashed by the High Court and nd ordered for retrial because the mode of life of the deceased was not ascertained. The trial court properly rehandled the matter and considered two tests as the deceased's intention and the mode of life. The appellant herein did not adduce any evidence to prove the intention of the deceased; therefore, the court employed the mode of life test. Further, the primary court had jurisdiction to handle Christian probate if it was proved that the deceased lived a customary life; supported the argument with the case of Gibson Kabumbire vs. Rose Nestory Kabumbire, Probate Appeal No. 12 of 2020 HC , that primary courts have jurisdiction in Probate matters concerning Christians where it is proved that they lived a customary mode of life. That, merely being a Christian does not mean one has been detracted from his or her customary life; there must be evidence to support the same. There is a distinction between Christians who live and practice normal customary life and those who Page. 6

have professed the Christian religion, and either by a declaration or by their acts or manner of life is evident that they have professed as such and intended that their estate will be administered under the applicable law to Christians. On the 3 issue, the respondent acted in a manner that concealed rd material information by Misrepresentation of facts in the affidavits supporting the application, designed to gain some advantage or benefit. The respondent argued that concealment of material fact and misrepresentation are serious allegations which ought to be proved beyond a reasonable doubt, referring to section 3(2) (a) of the Evidence Act Cap 6 RE 2023. Faulted that the claim was not proved on the required standard, referring to the case of Ignasi Kimalila vs. Republic (High Court Criminal Appeal No. 55 of 1982) [1983] TZHC 273. Hence, the claim is unfounded, baseless, misconceived, and misleading. Hence, made a prayer that the appeal be dismissed with costs. Having heard the parties' submissions, it is time for the court to consider the merit of the submissions. Primarily, the appellant is challenging the revocation of his appointment as administrator; the mode of life of the deceased was determined by the trial, which guides the choice of law and jurisdictional findings, while the respondent initially raised an objection in respect of the jurisdiction of the appellant suing in the capacity of administrator, as he was revoked. In the merit of the appeal, all appellant claims were faulted. In determining whether the Appellant retains legal position as administrator ( locus standi ) following the revocation of his appointment, whereby the respondent contends that, upon revocation, the appellant ceased Page. 7

to be the legal representative of the estate under section 71 of the Probate and Administration of Estates Act [Cap 352 R.E. 2023], which mandates that once a grant is revoked, no person other than the current grantee may act for the deceased. It is my view that since this is an appeal, and since in the trial court the appellant appeared as the administrator of the estate of the late Lobikieki Oloitay Mollel, the role of appellate court is to review what has been litigated in trial court, that said, the coram of the parties ought to be maintained as it was in the trial court; therefore, the appeal itself is competent to be tried before this court. On the issue of the legality of revocation, the trial court revoked the grant partly because the consent form did not adhere to the law as stipulated under Rule 71(4) of the Probate Rules and appeared to be signed by the same person. I observed that while beneficiary consent is a cherished practice, the trial court ought to consider that the said consent comes from the beneficiaries. Section 49(1) of the Probate and Administration of Estates Act, Cap 352 RE 2023, permits revocation only where proceedings were defective in substance, obtained fraudulently, or based on an untrue allegation of a fact essential in point of law. In this matter, it was the trial court's finding that sixteen signatures appeared to be in the same handwriting that led to the conclusion that the beneficiaries were not involved; that is to say, they did not consent. It is further the position of laws under rule 39(f), referring to rule 71(1) of the Rules of Probate and Administration Act Cap 352, is clear to the effect that written consent of the beneficiaries is mandatory; as reading the content of provisions Page. 8

is coached in mandatory terms as; "Where an application for the grant of letters of administration is made on an intestacy, the petition shall , except where the court otherwise orders, be supported by written consent of all those persons who, according to the rules for the distribution of the estate of an intestate applicable in the case of the deceased, would be entitled to the whole or part of his estate”. ( emphasis is mine) The position also emphasised in the case of Sekunda Bwambo v. Rose Ramadhani [2004] 1TLR 439 that the appointment of an administrator ought to be for the best interest of the beneficiaries. I had time to go through the trial court proceedings; the said consent was contested by beneficiaries; considering the position of law above, the trial court correctly observed. Beneficiaries did not consent; I therefore find no need to fault the observation. On the issue that the trial court became functus officio as the matter of his appointment had been settled in Misc. Civil Application No. 2678 of 2025. Under Section 11 of the Civil Procedure Code , a court is barred from trying any issue that was "directly and substantially in issue in a former suit between the same parties" and decided by a competent court. In the matter at hand, the record indicates that the deceased brother, Edward Oloitay Mollell, was appointed as administrator vide Misc. Civil Application No. 2 of 2025; the respondent herein, Loshilaari Lobikiel Mollell, deceased son, dissatisfied with the appointment, filed an appeal to this court, and the court went on to nullify the trial court decision vide Civil Appeal No. 18023 of 2025. Upon the respondent's application for the nullification of the Page. 9

administration of Edward Oloitay Mollell, the trial court went into nullifying the appointment vide miscellaneous civil Application No. 23549 of 2026 decided on12/02/2026, on the reasons "forged minutes of family meeting." It is my view that since the probate was not closed, the revocation was not fuctus officio. Therefore, the doctrine of res judicata is misplaced. On the issue of mode of life, it is apparent that baptism and Christian burial did not prove that the deceased abandoned his Maasai customs; it was apparent that the deceased kept maintaining his five wives, which is contrary to Christianity mode of life. On the issue of the forging of family minutes . The Respondent alleged the family minutes were forged and the signatures were uniform. I had time to go through the proceedings, and it is apparent that the handwriting looks similar; however, I don’t want to pray a role of a witness on this issue. Despite that, the mere fact that the appellant did not dispute that all beneficiaries did not consent or approve the revoked administrator speaks louder. The position of the law under Rule 39(f), referring to Rule 71(1) of the Rules of Probate and Administration Act, Cap 352, as clarified in the case of Sekunda Bwambo v. Rose Ramadhani [2004] 1TLR 439, it is apparent that the wishes of beneficiaries are of importance in approving an administrator. That said, I find no need to disturb the trial court's decision for the revocation of the appellant as administrator, and due to that backdrop, this court is of the view that the appeal has no merit and is hereby dismissed. Since it is a probate matter, no order for costs is awarded. Page. 10

It is so ordered. Dated at ARUSHA this 9th of June 2026 . D. D NDUMBARO JUDGE OF THE HIGH COURT Page. 11