Luther Robert Mnkyala vs Paulina Luther Lyanga (Civil Appeal No. 23280 of 2025) [2026] TZHC 2978 (8 June 2026)
Judgment
1 | P a g e IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA PC. CIVIL APPEAL NO. 23280 OF 2025 (Arising from the District Court of Singida at Singida in Probate Appeal No. 000003427 of 2025 and Original from Singida Primary Court Probate Cause No. 14/2013). BETWEEN LUTHER ROBERT MNKYALA ( A minor suing through her mother and next friend FATUMA TWAHILI HAMISI ………………………….…………………..…. APPELLANT VERSUS PAULINA LUTHER LYANGA (Administratrix of Estate of the late ROBERT RUBEN MNKYALA ………………………………..…………………..……………….. RESPONDENT JUDGMENT Date of last order: 13/04/2026 Date of Judgment: 08/06/2026 LONGOPA, J.: On 8 September 2025, the appellant, one Luther Robert Mnkyala, Minor (Suing through next friend her mother Fatuma Twahili Hamisi) instituted this appeal against the whole of the decision of District Court of Singida exercising its appellate jurisdiction which dismissed the earlier
2 | P a g e appeal. The appellant was dissatisfied with the decision of the first appellate court hence preferred this second appeal on the following grounds of appeal, namely that:
- That the district court of Singida sitting as an appellate court erred in law and facts by approving the decision of primary Court without considering the grounds of appeal raised, nature of the probate and agreement by parties as family.
- That the district court of Singida sitting as an appellate court erred in law and facts by basing its decision out of its own findings other than grounds of appeal raised hence prejudice to the respondent who is a minor.
- That the district court of Singida sitting as an appellate court erred in law and facts by misdirecting itself on the facts and records of the primary court to approve the decision of primary Court despite the fact that appointing a co-administrator was the decision of the majority of heirs to safeguard the interests of the minors in the estate. It was the appellant’s prayer that this court be pleased to allow the appeal, set aside the decision of the District Court of Singida exercising its
3 | P a g e appellate jurisdiction be reversed and set aside as well as costs be borne by the respondent and any other order (reliefs) that this court might deem fit and just to grant. The appellant enjoyed the legal service of Faraji Taratibu, learned advocate while the respondent appeared in person fending for oneself. The matter was agreed to be disposed by way of written submissions and the parties complied with the court’s order to file the submission timeously. The counsel for appellant stated that in 2024 the appellant has initiated proceedings against the respondent who was on 29 April 2013 appointed as administratrix of the estate of Robert Ruben Mnkyala in Administration Cause/ Civil Case No. 14/2013 in the Singida Urban Primary Court. The basis for challenging the administratrix of the estate was on account of failure to properly accounts for the estate, misappropriation of funds and unequal distribution believing that two minors of the deceased deserved more given their basic needs in comparison to appellant’s e lder sister who is above 18 years old who benefitted more.
4 | P a g e It was stated that the trial court denied revocation leading to Probate Appeal No. 28669/2024 in the District Court of Singida. However, the matter was marked settled after agreement by both parties that a co- administratrix be appointed for purposes of safeguarding the interests of both parties. It was noted that this deposition is not disputed and it is reflected in lower Court records to wit judgments, minutes of family meeting dated 26-08-2024 as well as application for appointment of co- administratrix made by the respondent herein through letter dated 06-12- 2024). Accordingly, that in execution of settlement by parties as ordered on 05-12-2024 in Probate Appeal No. 28669/2024, the respondent herein applied for appointment of a co-administrator which was not opposed by the appellant herein. However, the trial court and the first appellate Court denied the same hence this appeal. With respect to the 1 st ground of appeal on failure to consider strengths of the grounds, it was stated that Rules 9(1) (e) of the Primary Courts (Administration of Estates) Rules (G.N. No. 49/1971 read together
5 | P a g e with Rule 2(b)(c) of the Fifth Schedule to the Magistrate’s Courts Act, ( Cap. 11 R.E. 2023] gives power to the Court to revoke the appointment of the administrator of estate for a good and sufficient cause and to appoint one or more persons to be administrators. It was argued that despite the strong and sufficient grounds advanced which were also undisputed by the administratrix and the fact that the administratrix had sickness yet the Court refused to revoke or appoint a co-administratrix. This is an error which needs to be corrected by this court to ensure that the longtime probate comes to an end while safeguarding the interests of heirs. The learned counsel also added that in addition to the Rules cited, the first Appellate court could have referred to Section 22 and Section 49 read together with section 49(2) of the Probate and Administration of Estates Act Cap. 352 R.E. 2023] which allow for the appointment of more than one administrator provided that the reason of sickness was uncontested and well advanced.
6 | P a g e It was argued that appointment of a co-administrator is generally necessitated to ensure proper management, transparency, and protection of beneficiaries' interests, particularly when the initial administrator acts negligently, acts alone to the detriment of the estate, or when the estate is complex. In the matter at hand, the first appellate court ought to consider these grounds for effective management of the estate. Further, it was argued that before first appellate court and trial court, this was a long-time probate in which the administratrix did not account for the estate, did not tell the income and expenditure in so far as the property in Misuna area (Singida) is concerned, misappropriated the same and did not bother the welfare of the minor heirs. These would suffice to warrant the appointment of administratrix be revoked as there was loss of confidence and disqualification. It was emphasized that probate involved family business for which the family itself decided the best way to end the probate. As such, having given too much power to the administratrix (respondent herein) who abused such powers the family decided to make the amends by appointing
7 | P a g e a co-administrator through the settlement made in Probate Appeal No. 28669/2024 . At this juncture, the appellant’s counsel stated that parties’ agreement ought to be recognized by the first appellate court whereas- court should not be a stumbling block to deter the initiative citing Mulla, The Code of Civil Procedure, 15th Ed ., 2012 at page 57 that to reiterate that court should enforce contracts entered into by parties. The appellant was of the view that failure to consider all grounds of appeal or preliminary objection amounted to fatal irregularities. The cases of Salum Njewete @ Salum @Scorpion vs Republic (Criminal Appeal No. 182/2019[2022] TZCA 650 (24 October 2022) at page 10 and Nyakwama Odere @Okware vs Republic (Criminal Appeal No. 507/2015) were cited to cement that failure to consider grounds of appeal makes the decision nullity. The appellant argued that reasoning of the findings of the trial court magistrate on basis of the application for a co-administrator was not about sickness of the administratrix but contest on who to administer the estate. It was added that the request letter (application for a co-administrator)
8 | P a g e dated 06-12-2024 was clear and grounds of appeal are clear on reasons for application of a co-administrator. On the 3 rd ground on misdirection by first appellate court to uphold the trial court decision despite that appointment would have resulted to safeguarding interests of the minors in the estate, it was submitted that the application for a co-administrator was tempted by the need to safeguard interests of heirs-especially minors, to avoid litigation on family matters, to rebuild the family on the prevailed misunderstandings/conflict after discovery of misuse of the state of the deceased and minimize wastage of time. In Mary Mgaya vs Salimu Said (Administrator of Estate of Said Saleh) & Another , Civil Appeal No264/2017, the court revoked the appointment on account of monopolization of deceased’s estate and use as their own. It was argued at this juncture that had the first appellate court magistrate considered this fact which is vital for the family build up and
9 | P a g e need to finalize a probate which stayed for more than ten (10) years, it would not have approved the trial court decision. It was stated that finding that the best option was for the respondent to apply for being discharged so a new administrator could be appointed was erroneously arrived at. Accordingly, the appellant argued that the first appellate court made an error which will even prolong the administration of the estate. Thus, urged this court to step into the shoes of the first appellate court and make appropriate orders to safeguard the interest of heirs, family values and proper determination of the probate. Thus, the appellant prayed for the appeal to be allowed with costs. Conversely, the respondent opposed the appeal. It was argued that first and foremost, attention should be drawn to the effect in Probate Case No.14/2013 before the Singida Urban Primary Court was an application for revocation on a number of grounds for revocation including
10 | P a g e misappropriation of funds and unequal distribution of estates were raised yet the trial Court disregarded them by dismission the said application. According to the respondent the major issue which was in issue in Probate Case No. 14/2013 before the Primary Court of Singida Urban was an application for the appointment of the co-administrator to assist the existed administrator of estate and the major reason for the application was health inability of the administrator of estate, the proof for this is reflected from the ruling of the trial court in Probate Case No. 14/2013 at page 2 of the ruling is vivid truth that no revocation application was there in such application. At this juncture, it was humbly submitted that revocation has never been a matter before the Court in Probate Case No. 14/2013 which is the major base and foundation of PC Probate Appeal No.000003427 of 2025 as well as this appeal. With respect to agreement of the parties, it was submitted that it is foundational legal principle that private agreements cannot defeat, override
11 | P a g e or circumvent the mandatory requirements of the law. As such freedom of contract cannot supersede the requirements of the law. Additionally, the respondent argued that it is not disputed that there was PC Probate Appeal No. 28669 of 2024 which was withdrawn in the court on account that the parties had agreed to have a co administrator and such application does not bar the court to scrutinize the application before it lodged with aim of appointment of the co-administrator if such application is violative of law. The respondent stated that on the first ground the first appellate court the submission by the appellant should be disregarded as the application was for appointment of co-administrator but submission are to the effect that the matter was the application for revocation of the administrator of estate in Probate Case No. 14/2013 which was not at issue in Probate Case No. 14/2013. Also, submission on agreement by family for appointment of co-administrator were strongly opposed as it could not supersede requirements of the law. A principle in the case of NMB Bank PLC vs Shimilangwada Estate Company Limited & Others (Civil
12 | P a g e Appeal No. 709 of 2024) [2025] TZCA 1218 (26 November 2025) (TANZLII), at page 18, was cited to reiterate legal position that parties cannot agree on illegalities. As such, authorizing agreements between parties that defeat or circumvent mandatory legal requirements undermines the rule of law and renders such agreements unenforceable or void, as courts generally refuse to uphold contracts that are illegal or contrary to public policy. Thus, it was prayed that the first ground be overruled. On the second ground of appeal, the respondent submitted that there was no prejudice caused by decision of the first appellate court which properly executed its task and roles imposed by the law that the first appellate court has the jurisdiction of going through and assessing the evidences in record before the trial court so as to ensure that the court derivers a well-informed decision upon assessing the evidences in record. It was added that courts have powers to compound grounds of appeal and consider them jointly. At this juncture, the reference is made from the case of Mwajuma Bakari vs Julita Semgeni & Another (Civil
13 | P a g e Appeal 71 of 2022) [2022] TZCA 266 (12 May 2022) (TANZLII) at page 7- 8, citing the Malmo Montagekonsult AB Tanzania Branch v. Margret Gama , Civil Appeal No. 86 of 2001 (unreported), to reiterate the position though courts are enjoined to consider the grounds of appeal presented to it either generally or one after another, and failure to consider the grounds is fatal to the decision. Also, there are possibilities to only consider grounds generally or address the decisive ground of appeal only or discuss each ground separately. It was stated that nature of appeal in PC Probate Appeal No.000003427 of 2025, the grounds of appeal had the similarities which sufficed the same to be decided generally and jointly as per principle in the case of Mwajuma Bakari vs Julita Semgeni & Another (supra) as shown on page 6. Moreover, it was argued that the first appellate court is not barred from going through the entire evidence, do exhaustive assessment of the evidence and have a different reasoning other than the reasoning of the trial Court as decision in the case of Catic International Engineering
14 | P a g e (T) Limited vs Hans Poppe Hotels Limited (Civil Appeal No. 115 of 2023) [2025] TZCA 540 (30 May 2025)(TANZLII) at page 16, where the duty of the first appellate court to revisit evidence, evaluate it afresh and reach on its own independent decision was reiterated. It was a humble submission by the respondent that first appellate court applied that principle to arrive at its findings. Thus, urged this court to find that second ground of appeal had no merits. On the third and last ground of appeal, it was submitted that the interest of the heirs in any probate are not safeguarded by non-closure of the probate case or keeping the probate case open until the heir who is a minor to attain the age of majority. That is not the position in law but correct position is that every probate has to be closed within the timeframe set by the law unless there is an issue to be resolved like disputes on ownership of property, court procedures or missing documentations. Expounding the reasons, respondent noted that such delays may be attributed to: one, disputes among beneficiaries on disagreement over
15 | P a g e property, distribution, or the validity of a will, the matter may go to court and delay the process until a judgment is made. Two, absence or loss of a will where a deceased left a will but it cannot be found or is unclear, the court must first determine its validity, which takes time. Three, challenges to the will (contesting the will), on account of the will being made under pressure, fraud, or that the deceased lacked mental capacity. Four, incomplete or missing essential documents such as a death certificate, property titles, or identification of beneficiaries can halt the process. Five, outstanding debts of the deceased which must be settled before distributing the estate and existence of complex or disputed debts can delay completion. Six, delay in appointing an estate administrator or executor, if no one was appointed, or there is disagreement over who should manage the estate, the court must intervene, which can take time. Seven, property involved in other legal disputes, if estate assets are tied up in other court cases (ownership disputes), the estate cannot be finalized until those cases are resolved. Eight, missing or unreachable beneficiaries, if some heirs cannot be located or are abroad, tracing and involving them may delay distribution. Nine, court process delays, backlogs or lengthy
16 | P a g e legal procedures in court can slow down the finalization of the estate. Ten, complexity or large estates involving many assets, businesses, or properties in different locations require more time for valuation and distribution. It was added that, the probate case need not to wait for the heir who is a minor to attain the age of majority but appointed administrator of estate has the duty to ensure assets of the deceased beneficial to the heir who is minor are well preserved and upon taking the requisite steps, the inventory and accounts of estates has to be filled in the probate court , thereafter the probate case has to be closed in the time prescribed by the law and not otherwise in particular Rule 10 of the Primary Courts (Administration of Estates) Rules G.N. No. 49 of 1971 as amended by the Primary Courts (Administration of Estates) (Amendments) Rules, Government Notice No. 428 published on 11/7/2025. At this juncture, the respondent cited the principle in Beatrice Brighton Kamanga and Another vs Ziada William Kamanga (Civil Revision 13 of 2020) [2020] TZHC 1428 (10 July 2020) (TANZLII) at page
17 | P a g e 23, where the Court reiterated that there is no endless administration or a life administrator in our laws and failure to finalise the administration of estate within time makes the existence of the administrator illegal and his activities after the expiration of time becomes null and void. It was added that best manner of dealing with overstayed administrator or failure to discharge duties by the administrator was not appointment of co-administrator but lodging application for revocation. As such, the trial court and the first appellate court acted properly to find that the application for the appointment of the co administrator was not justifiable since the trial court was barred to appoint another administrator in the existence of active and operative probate case with active administrator of estate. Further, it was noted that Sections 22 and 49 of The Probate and Administration of Estates Act [Cap. 352 R.E. 2023] cited by the appellant are not applicable since the matter at hand originates from the Primary Court to which the cited law (The Probate and Administration of Estates Act [Cap. 352 R.E. 2023]) is not applicable. Generally, as per respondent’s
18 | P a g e submission, jurisdiction of Primary Courts in probate and administration cases is provided under section 19 (1) (c) The Magistrates’ Courts Act, Cap. 11 R.E 2023 and the Fifth Schedule of the Act may not be exhaustive thus it must be read jointly with the Primary Courts (Administration of Estates) Rules G.N. No. 49 of 1971 as amended by the Primary Courts (Administration of Estates) (Amendments) Rules, Government Notice No. 428 published on 11/7/2025 and where there is a lacuna in both Laws the court must apply The Magistrates' Courts (Civil Procedure) in Primary Courts Rules GN 310/1964 and GN 119/1983. At this juncture, it was stated that the third ground of appeal also has no merit and it should be dismissed. Having heard the rivalry submission of the parties, this court is enjoined to determine the merits or otherwise of the appeal. The proceedings of the trial primary and first appellate courts, decisions of both trial and first appellate courts, the submissions of the parties, and applicable legal principles in view of the preferred grounds of appeal.
19 | P a g e The first aspect is the powers of the second appellate court in determination of appeals. It is settled law that the second appellate court powers on appeal is limited in so far as the concurrent findings of the subordinate courts. In Paschal Aplonal vs Republic (Criminal Appeal No 403 of 2016) [2019] TZCA 617 (28 October 2019) (TANZLII), at pages 7-8, the Court observed that: In this regard, this being a second appeal, it is trite law that the Court should rarely interfere with the concurrent findings of the lower courts on the facts unless there has been a misapprehension of the evidence occasioning a miscarriage of justice or violation of a principle of law or procedure. See – DPP vs Jaffar Mfaume Kawawa (1981) TLR 149 and Felix Kichele and another vs Republic , Criminal Appeal No. 159 of 2015 (unreported). In the latter case we said: “It is an accepted practice that a second appellate court should very sparingly depart from concurrent findings of fact by the trial court and the first appellate. Indeed, there is a presumption that disputes on facts are supposed to have been resolved and settled by the time a case leaves the High Court. That is part of the
20 | P a g e reason why under section 7(6) (a) of the Appellate Jurisdiction Act,1979 it is provided that a party to proceedings under Part X o f the CPA, 1985 may appeal to the Court of Appeal on a matter of law but not on a matter of fact. This court being a second appellate court shall exercise its mandate with care as there are concurrent decisions of two subordinate courts on the same aspect. This court can only depart in case there was violation of the legal principles leading to injustice. In respect of first ground of appeal the appellant complains that both courts erred for not according proper interpretation of Rule 9(1)(e) of the Primary Courts (Administration of Estates) Rules, G.N. No. 49 of 1971 to allow the application for appointment of co administrator as the parties wished. To get the perspective of the rule in question, it is hereby quoted in verbatim: 9(1 ) Any creditor of the deceased person's estate or any heir or beneficiary thereof, may apply to court which granted the administration to revoke or annul the grant on any of the following grounds:
21 | P a g e (a) that the administration had been obtained fraudulently; (b) that the grant had been made in ignorance of facts the existence of which rendered the grant invalid in law; (c) that the proceedings to obtain the grant were defective in substance so as to have influenced the decision of the court; (d) that the grant has become useless or inoperative; (e) that the administrator has been acting in contravention of the terms of the grant or wilfully or negligently against the interests of creditors, herein or beneficiaries of the estate. The cited provision of the Rules is exclusively designated for the annulment or revocation of the grant of letters of administration which have been granted to an administrator of the estate. It has nothing to deal with application for appointment of the co-administrator of the estate. The basis of the appeal is based on two decisions namely Probate Application No 14/2013 from Singida Urban Primary Court dated 05/02/2025 and PC Probate Appeal No 03427 of 2025 from District Court of Singida dated 07/08/2025. These decisions related to the application for
22 | P a g e the appointment of a co-administrator. It was not application for revocation of appointment. Having due regard to all the circumstances of the appeal, it is this court settled view that both trial and first appellate court acted properly within bounds of the law. The application before the trial Singida Urban Primary Court was not application for revocation of an administration of the estate but rather application for co-administrator. Invoking provisions of Rule 9(1)(e) of the Primary Courts (Administration of Estates) Rules, G.N. No. 49 of 1971 in the circumstances was out of context. Both trial and first appellate court were of the view that the trial Singida Urban Primary court was functus officio to entertain the application for appointment of the co-administrator as the same had already been determined in earlier decision in Probate Application No 14/ 2013 dated 21/10/2024 where the question of appointment of co-administrators arose and was determined to the finality.
23 | P a g e This court concurs with the decision of the first appellate court that given the trial court had determined the question of appointment of a co- administrator in its previous decision, such Singida Urban Primary Court lacked jurisdiction to re-hear the matter on application for appointment of the co-administrator. This position was reiterated in the case of International Airlines of The United Arab Emirates vs Nassor Nassor (Civil Appeal 379 of 2019) [2022] TZCA 685 (8 November 2022) (TANZLII), at page 7-8, the Court held that: As to what entails functus officio was well dealt with by the Court of Appeal for Eastern Africa in the case of Kamundi v. Republic , [1973] 1 E.A. 540 and stated as follows: “The court becomes functus officio when it disposes of a case by a verdict of guilty or by-passing sentence or making some orders finally disposing of the case". See also James Kibalo Mapalala's case at pg. 136 (supra); Tanzania Telecommunications Co. Ltd and 3 Others v. Tri Telecommunications Tanzania Ltd , Civil Revision No. 62 of 2006 and John Mgaya and 4 Others v. Edmundi Mjenga and 6 Others , Criminal Appeal No. 8 (A) of 1997 pg. 9 (both unreported). Also, in the case of NBC Limited and Another v. Bruno Vitus Swalo , Civil Appeal No. 331 of 2019 (unreported), although the facts in
24 | P a g e the said case may be slightly different from the case at hand, the principle established is relevant to this matter. In that case, the appellant raised a preliminary objection on time limitation and it was heard and overruled. Yet, the same issue cropped up again in the appellant's final submissions and the High Court once again entertained and maintained its earlier position only after it had addressed itself on the merits. On appeal to this Court, it was observed that it was not justifiable for the High Court to entertain issues which it had already determined as it was functus officio. Also, in the case of Selina Michael v. Mtanzania Newspaper and 6 Others , Civil Appeal No. 320 of 2017 (unreported), the Court observed that the successor judge was functus officio in determining what had been already determined by the predecessor judge. Given that the same Singida Urban Primary Court had determined the question of appointment of the co-administrator and ruled it out, it was violating the established principle and acting in contravention if the same court would have entertained the application for appointment of a co- administrator.
25 | P a g e The importance of the court not to re-open matters already settled by the same was reiterated in the case of Reef Gold Limited vs Gold Africa Limited (Civil Appeal No. 303 of 2024) [2026] TZCA 593 (20 May 2026) (TANZLII), at pages 7-8, the Court held that: Therefore, we agree with Mr. Mwitasi's contention that ever since, as far as the proceedings were concerned, the learned Judge was too functus officio to make the orders complained of. With respect, its effect was but re-opening the proceedings which were substantively concluded, which we fault for being improper. As we pen off, it is worth noting that the functus officio maxim also intends that; one, no litigation shall be endless and two, in any judicial proceedings any court decision has to be sustainable, certain, consistent and most importantly, predictable. It is stressed, therefore, that to avoid endless litigation, and for a court of law to be predictable, judicial officers should re open the proceedings so sparingly and not casually at their pleasure. It is plain to us, in the present case that, upon the learned Judge re opening the proceedings, not only the resultant orders were made unsolicited, but also, they were
26 | P a g e improper and uncalled for in the circumstances, as observed above. Whether or not upon the proceedings being re-opened the parties appeared before the learned Judge it counts nothing. In any case, therefore, any court decision that is made unsolicited it is tantamount to running the risks of giving unpopular, in executable and worse a redundant decision which has to be discouraged. The principle of functus officio simply bars the jurisdiction of the court to re-hear a matter such court conclusively determine. In the case of CRDB Bank PLC vs The Registered Trustees of Kagera Farmers Trust Fund & Others (Civil Appeal No. 496 of 2021) [2024] TZCA 94 (23 February 2024) (TANZLII), at pages 10-11, the Court held that: For, the issue having been finally and conclusively determined by his fellow judge, the successor judge was barred, by being functus officio, to determine the same. More or less a similar instance occurred in the case of Maria Chrysostom Lwekamwa v. Placid Richard Lwekamwa, Civil Application No. 549/17 of 2019 (unreported) where a successor judge dealt with a matter which had already been fully determined by her predecessor. On revision, the Court stated: "It is trite law that when a court finally disposes of a matter, it ceases to have
27 | P a g e jurisdiction over it. The application of this principle was emphasized in the case of Tanzania Telecommunication Company Limited and Others v. Telecommunications Tanzania Limited [2006] I EA 393. Indeed, as stated above, after Makuru J. had determined the objection on the matter being res judicata on a matter that is founded on the administration of the estate of Richard Lwekamwa, there was no need for another judge to decide on the same issue as what transpired in the instant case. In consequence, we find this ground has merit" In view of the foregoing, we agree with the appellant that the trial court acted without jurisdiction and in violation of the law in entertaining a matter which had already been finally and conclusively determined by the same court. The first ground of appeal is, therefore, allowed. It would be imprudent for the Singida Urban Primary Court to grant an application for appointment of a co-administrator on the decision dated 05/02/2025 while the same Court on 21/10/2024 had declined the same alternative suggested to appoint a co-administrator to the same estate.
28 | P a g e In respect of the limb challenging the first appellate court’s failure to consider all the grounds of appeal, this is not difficult to determine. It is vivid on page 2 of the decision that first appellate court considered that all the four grounds were on a singular issue which was appointment of co- administrator thus addressed them jointly. Such practice is not new in this jurisdiction as there is plethora of authorities that allows the appellate court to either determine each of the ground, or determine only few grounds that dispose the issue or determine the grounds in their togetherness. For instance, in the case of Mwajuma Bakari vs Julita Semgeni & Another (Civil Appeal 71 of 2022) [2022] TZCA 266 (12 May 2022) (TANZLII), at pages 7-8, the Court succinctly held that: It is trite law that the court is enjoined to consider the grounds of appeal presented to it either generally or one after another, and failure to consider the grounds is fatal to the decision. In the Court's decision in the case of Malmo Montagekonsult AB Tanzania Branch v. Margret Gama, Civil Appeal No. 86 of 2001 (unreported), where the High Court determined the appeal after
29 | P a g e consolidating several grounds of appeal into one, the Court observed thus: "In the first place, an appellate court is not expected to answer the issues as framed at the trial. That is the role of the trial court. It is, however, expected to address the grounds of appeal before it Even then, it does not have to deal seriatim with the grounds of appeal as listed in the memorandum of appeal. It may, if convenient, address the grounds generally or address the decisive ground of appeal only or discuss each ground separately". Other decisions which dealt with similar scenario include; Simon Edson @ Makundi v. R, Criminal Appeal No. 19 of 2017 and Nyakwama s/o Ondare @ Okware v. R , Criminal Appeal No. 507 of 2019 (both unreported). The rationale of the cited decisions is that, the appellate court is bound to consider the grounds of appeal presented before it and in so doing, need not discuss all of them where only a few will be sufficient to dispose of the appeal but it is bound to address and resolve the complaints of the appellant either separately or jointly depending on the circumstance of each appeal. Also, in the case of Marwa Chacha @ Robare vs Republic (Criminal Appeal 133 of 2020) [2022] TZCA 325 (9 June 2022) (TANZLII), at pages 8-10, the Court had observed that:
30 | P a g e The first appellate court thus decided that the grounds of appeal before it can be conveniently and more appropriately resolved upon considering them in unison rather than discussing them separately and that all the appeal grounds culminated into one pertinent issue. Whether the doctrine of recent possession was applicable against the appellant to prove his guilt and sustain the conviction and sentence meted by the trial court. It is basically a practice that has been applied in various cases. (See Samwel Japhet Kahaya Vs Republic , Criminal Appeal No. 40 of 2017, Herode Lucas and Another Vs Republic , Criminal Appeal No. 407 of 2016, Richard Lionga @Simageni Vs. Republic, Criminal Appeal No. 14 of 2020 and The Registered Trustees of Joy in the Harvest Vs Hamza K. Sungura , Civil Appeal no. 149 of 2017 (All unreported)). Indeed, the decision by the first appellate court to collapse the appeal grounds into one issue is not an abstention of duty since, thereafter, it proceeded to analyze the evidence on whether the prosecution did prove all the ingredients of recent possession. Subsequently, applied its discretion, invoked the doctrine of recent possession, and dismissed the appeal, while partially allowing it by substituting a new sentence in the second count as stated earlier on.
31 | P a g e Therefore, we find that the first appellate court did determine the grounds of appeal before it. It can be observed from those decisions that it is possible to determine an appeal by consolidating the grounds of appeal and determine them jointly. The first appellate court correctly combined the grounds of appeal and determine all of the jointly having analysed adequately on all the issues that required determination of the court. In respect of the failure by first appellate court’s failure to accommodate the agreement of the family as majority members were in favour of appointment of a co-administrator to safeguard interest of the minor in the estate, this court finds the same to be devoid of merits. Courts are guided by law in adjudicating matters before them. As the trial court found itself precluded from acting as a result of being bound by its own previous decision that addressed the question of possibilities of appointment of a co-administrator and ruled it out. As the determination of matters is a question of jurisdiction which goes to the root of the matter, the trial court could not have entertained the application in contravention
32 | P a g e of the law. Acting otherwise would be violation of the law; hence the trial could not have enforced illegalities in pretext of agreement of majority family members and safeguarding the interests of the minors in the estate. At this juncture, it is the finding of this court all three grounds of appeal are demerited. The appeal is dismissed for want of merits. There are no orders as to costs as the matter relates to administration of estate. It is so ordered. DATED and DELIVERED at Dodoma this 8 th day of June 2026. E.E. LONGOPA JUDGE 08/06/2026.