Nobert Joseph Fuunay vs Yasenta Joseph Fuunay (Civil Appeal No. 000007031 of 2026) [2026] TZHC 3065 (8 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA CIVIL APPEAL NO. 000007031 OF 2026 NOBERT JOSEPH FUUNAY...............................COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS YASENTA JOSEPH FUUNAY (AS ADMINISTRATOR OF THE ESTATE OF THE LATE JOSEPH FUUNAY)...............................RESPONDENT / DEFENDANT JUDGMENT MAHIMBALI, J This appeal arises from the Judgment and Decree of the District Court of Karatu delivered on 28th February 2026 in Civil Revision No. 31597 of 2025. The background to this appeal is fairly straightforward. Following the death of one Joseph Fuunay on 6th January 1999, the respondent, on 4th April 2025, filed a Petition for Letters of Administration in the Karatu Urban Primary Court in respect of the deceased's estate. Upon hearing the petition, the Primary Court appointed the respondent as the Administrator of the deceased's estate. Subsequently, while the respondent was in the process of filing the inventory and accounts of the estate, the appellant lodged a caveat objecting to the respondent's appointment. The appellant contended that the respondent had not been nominated by the family, as allegedly Page. 1

reflected in family meeting minutes, and further asserted that the respondent lacked the capacity to administer the estate. Upon hearing the objection, the Primary Court overruled the same and maintained the respondent's appointment as Administrator. Being dissatisfied with that decision, the appellant filed Civil Revision No. 31597 of 2025 before the District Court of Karatu, seeking revision of the proceedings and decision of the Primary Court. Upon considering the matter, the District Court dismissed the revision and upheld the decision of the Primary Court. Still aggrieved, the appellant preferred the present appeal before this Court. Although the Memorandum of Appeal contains eleven (11) grounds of appeal, a careful examination of those grounds reveals that they revolve around the following complaints:

1. That the appellant was denied the right to be heard before the respondent was appointed Administrator of the deceased's estate;
2. That the respondent lacked the legal and practical capacity to administer the estate;
3. That the respondent was appointed Administrator without family or clan approval;
4. That the District Court failed to nullify the proceedings despite alleged irregularities; and
5. That the decisions of the subordinate courts were improperly influenced. At the hearing of the appeal, Mr. Gabriel Rwahila, learned Advocate, appeared for the appellant, while Mr. Bunganya Panga, learned Advocate, appeared for the respondent. By consent of the parties, the appeal was disposed of by way of written submissions. In support of the appeal, learned counsel for the appellant argued the first and second grounds together, contending that the appellant's constitutional right to be heard was violated. Page. 2

Counsel submitted that the appellant lodged his caveat on 22nd May 2025, objecting to the respondent's appointment as Administrator. However, despite the existence of the caveat, the trial court proceeded to appoint the respondent as Administrator on the same date without first hearing the appellant. According to counsel, this amounted to a violation of Article 13(6)(a) and (b) of the Constitution of the United Republic of Tanzania, which guarantees the right to a fair hearing. Reliance was placed on Monica Nyamakara Jigamba v. Mugeta Bwire Bhakome , Civil Application No. 199/01/2019. With regard to the third ground of appeal, learned counsel submitted that family or clan consent is an essential requirement in probate proceedings under Rules 73 to 75 of the Primary Courts (Administration of Estates) Rules, G.N. No. 49 of 1971. According to counsel, no family meeting was convened and no valid family resolution existed appointing the respondent as Administrator. Addressing the fifth ground of appeal, counsel argued that the respondent was incapable of discharging the duties of Administrator because of advanced age, ill-health, and inability to comprehend matters relating to the administration of the estate. Counsel submitted that such incapacity rendered her unsuitable for appointment under Rule 2 of the Fifth Schedule to the Magistrates' Courts Act, Cap. 11 R.E. 2023. Counsel accordingly prayed that the appeal be allowed. In response, learned counsel for the respondent submitted that the appeal substantially raised only two issues, namely the alleged denial of the right to be heard and the respondent's alleged incapacity. Regarding the first issue, counsel argued that when the petition for letters of administration was heard and determined, no caveat had been filed before the court. Counsel further submitted that the appellant had been aware of the proceedings and had attended court Page. 3

during the probate process. Consequently, there was no infringement of his right to be heard. As to the respondent's capacity to administer the estate, counsel contended that the issue was never raised before the Primary Court or the District Court and was therefore being raised for the first time on appeal. According to counsel, the issue was clearly an afterthought. Counsel further submitted that the respondent had successfully performed her duties as Administrator, including filing the inventory and accounts, which ultimately led to the closure of the probate proceedings. This, according to counsel, demonstrated her competence and ability to administer the estate. Counsel therefore prayed that the appeal be dismissed with costs. In a brief rejoinder, learned counsel for the appellant reiterated his earlier submissions and maintained that the probate proceedings were finalized while the appellant was actively pursuing his objections before the courts. I have carefully considered the rival submissions of learned counsel, examined the record of appeal, and perused the proceedings of both the Primary Court and the District Court. The principal question for determination is whether the appeal has merit. Upon examining the grounds of appeal, I find it convenient to consolidate them into the following two issues:

1. Whether the appellant was denied the right to be heard; and
2. Whether the respondent was capable of holding the office of Administrator of the deceased's estate. Page. 4

The right to be heard is a cardinal principle of natural justice and a fundamental constitutional right. In Mbeya-Rukwa Auto Parts and Transport Ltd v. Jestina George Mwakyoma [2003] TLR 251, the Court stated: "The right o f hearing is a fundamental constitutional right in Tanzania by virtue o f Article 13(6)(a) o f the Constitution." The Court further observed that: "A decision affecting a person's rights made without affording that person an opportunity to be heard is contrary to the rules o f naturaljustice and is therefore void." The appellant contends that he filed a caveat on 22nd May 2025 prior to the appointment of the respondent and that the trial court proceeded to appoint the respondent without hearing him. I have carefully examined the record of the Primary Court. The record does not support the appellant's assertion that a caveat had been lodged and was pending determination prior to the appointment of the respondent. Neither does the record indicate that the appellant appeared before the court as a caveator before the grant was issued. On the contrary, the record shows that the appellant appeared before the court on 23rd June 2025, at which time his caveat was formally received, read, and considered by the court. The chronology of events therefore demonstrates that the caveat was lodged after the respondent had already been appointed Administrator. In those circumstances, it cannot be said that the appellant was denied the right to be heard prior to the appointment of the respondent. The right to be heard arises where a party has properly placed his objection before the court in a timely manner. Since the appellant's Page. 5

caveat was filed after the grant had already been issued, the complaint is without foundation. Accordingly, this ground of appeal fails. Whether the Respondent Was Capable of Holding the Office of Administrator. The appellant further challenges the respondent's capacity to administer the estate on account of age and alleged ill-health. Having carefully examined the record, I find that this issue was never raised before the Primary Court when the petition was being heard. Equally, it was not a matter that was determined by the District Court in the revision proceedings. When the appellant was eventually afforded an opportunity to be heard on his caveat, he neither sought revocation of the grant on grounds of incapacity nor presented any evidence demonstrating that the respondent was incapable of performing her duties as Administrator. It is trite law that an appellate court should ordinarily refrain from entertaining issues which were neither pleaded nor determined by the courts below unless exceptional circumstances exist. No such circumstances have been demonstrated in the present case. Furthermore, the record reveals that the respondent successfully carried out her responsibilities as Administrator, including the filing of inventory and accounts, leading to the completion of the administration process. These actions are inconsistent with the allegation that she was incapable of administering the estate. The appellant also challenged the absence of family or clan minutes approving the respondent's appointment. While family consensus may be desirable and often forms part of customary practice in probate matters, it is not a mandatory legal requirement for the issuance of letters of administration. Consequently, the absence of such minutes cannot, by Page. 6

itself, invalidate the appointment of an Administrator. I therefore find no merit in this ground of appeal. In light of the foregoing analysis, I find no merit in any of the grounds of appeal. Accordingly, the appeal is hereby dismissed in its entirety. The Judgment and Orders of the District Court of Karatu in Civil Revision No. 31597 of 2025, together with the proceedings and orders of the Karatu Urban Primary Court in Probate and Administration Cause No. 21 of 2025, are hereby affirmed. The matter being probate and involving siblings, I order no costs of this appeal. It is so ordered. Dated at ARUSHA this 8th of June 2026 . F. H MAHIMBALI JUDGE OF THE HIGH COURT Page. 7