Hilda James Rubisha vs Philip Karoli Mushi and Another (Civil Appeal No. 3023 of 2026) [2026] TZHC 2950 (4 June 2026)

IN THE HIGH COURT OF TANZANIA (TEMEKE SUB-REGISTRY) ONE-STOP JUDICIAL CENTRE AT TEMEKE CIVIL APPEAL NO. 3023 OF 2026 (Arising from Probate and Administration Cause No. o f 2025 o f the District Court o f Temeke at One Stop Judicial Centre) HILDA JAMES RUBISHA ....................................................... APPELLANT VERSUS PHILIP KAROLI MUSHI................................................ 1s t RESPONDENT ADELF ANTONY SACHORE........................................... 2n d RESPONDENT RULING Date of last order: 20/05/2026 Date of Judgment: 04/06/2026 OMARI, J.: The Appellant herein, being aggrieved by the decision of the District Court of Temeke at One Stop Judicial Centre in Probate and Administration Cause No. 13306 of 2025, came to this court armed with five grounds of appeal. For reasons that shall become evident shortly, I shall neither go into the respective grounds of appeal nor the submissions made by counsel for and against the appeal.

When this matter was called for hearing, Sosteness Edison appeared for the Appellant and Margereth Mageho appeared for the Respondent. In her submission Ms. Mageho pointed out that after hearing the Appellant's counsel submission it has come to her attention that the Ruling which is attached to the Memorandum of Appeal is not the Ruling which the Appellant's counsel had submitted on, this in her opinion made the Appeal incompetent for failing to comply with Order XXXIX Rule 1 of the Civil Procedure Code , Cap 33 R.E. 2023 (the CPC) which requires a Memorandum of Appeal to be accompanied with the Judgment and Decree being appealed against. Mr. Edison, when, re-joining to the Respondent's submission asserted that the Ruling attached to the Memorandum of Appeal is the Ruling that was delivered on 05 January, 2026 and is the one that was uploaded into the eCMS. The ruling determined the legality of the Caveat. Therefore, making the Appeal competent for being attached with a Ruling that dismissed the Caveat. And, he hastened to state that if there is another Ruling, then they should be told where it is from. The above, although is contextually linked to some of the grounds of appeal, was also brought in a form of an objection (albeit during submission) by the Respondent. Since the same affects the manner in which this appeal can be determined, I refrained from going into the grounds of appeal. Page 2 of 6

Order XXXIX Rule 1 (1) of the CPC is clear, couched in mandatory terms, and it requires that a memorandum of appeal be accompanied by a copy of the decree appealed from and the judgment on which it is founded. In this case, the Appellant's Memorandum of Appeal is accompanied by a Drawn Order dated 05 January, 2026 and a Ruling dated 05 January,2026. The said Ruling somewhat fits the Appellant's description of the Ruling they are seeking to appeal from as, per Mr. Edison's submission, while the Respondent's counsel, Ms. Magohe, was of the view that the said Ruling was not the correct one. Perplexed, I got curious and went into the Probate and Administration Cause No. 13306 of 2025 file. In the said file, there is another Ruling which, albeit not dated, seems to describe what the Respondent's counsel was referring to as the correct Ruling that was delivered on 05 January,2026 but not the one accompanying the Memorandum of Appeal filed by the Appellant herein. This means, on the face of it, there are two Rulings over Probate and Administration Cause No. 13306 of 2025, and both of them were supposedly delivered on 05 January,2026. I took time and went through the proceedings of Probate and Administration Cause No. 13306 of 2025. They depict that after following the requisite procedures regarding a Caveat, the matter was heard and upon closure of the Page 3 of 6

defence case, a Ruling was scheduled to be delivered on 19 December, 2025. On the said date, the matter was adjourned to 30 December, 2025 on which date the proceedings indicate a Ruling was delivered in the presence of the parties and the matter was then again scheduled for necessary orders on 04 January,2026. The specific order states: The case adjournment window, has 05 January,2026 as the next date. On the next date, Margerth Magobo, appearing for the "Applicants" addressed the court that the matter was for appointment of the Administrator as there was no further Caveat to challenge the application since the Caveator's Caveat was dismissed on 30 December, 2025. From what is on the record, it would seem the trial court heard the Petition once more and delivered a Ruling. This is enough, for me to now go to what is before me. Before going any further, I would like to state that in probate and administration practice and procedures, where a Caveat is filed, the matter turns into a civil suit and the same is heard as such. If, after analysing the evidence and the testimonies of the parties before it, in its Judgment a court declines to uphold the grounds challenging the Petition and or the appointment of the Petitioners, it dismisses the Caveat. This, is what transpired in the trial court. "The Applicants and heirs to appear fo r an appointm ent " Page 4 of 6

Ordinarily, the next steps to follow are then, not another hearing for the Petitioner(s) to be appointed, but to proceed to appoint them. Had this procedure and practice been complied with, then there wouldn't be the quagmire of having two Rulings as a single Judgment that dismissed the Caveat would have also appointed the Petitioners. One could argue that the Ruling accompanying the Memorandum of Appeal is appealable for it stipulates that it dismisses the Caveat and appoints the Respondents. However, then it would fall short of the standards of what a decision needs to contain, which, at this point, I am convinced is innocuous for me not to delve into. At this point, it suffices to find that the appeal before me is incompetent for failing to comply with the provisions of Order XXXIX Rule 1 (1) of the CPC thus it is struck out. Furthermore, for the reasons stated above, and under the strength of section 44 (1) of the Magistrates' Courts Act, Cap 11 R.E. 2023 and the Court of Appeal case of Mashishanga Salum Mashishanga v. CRDB Bank PLC and Others, (Civil Appeal No 335 of 2019) [2021] T7CA 59 I remit the case file to the trial court for it to compose a fresh judgment and pronounce the judgment in accordance with the law. I further direct that, there be priority Page 5 of 6

in scheduling of the composition and delivery of the judgment within 14 days from the date of this Judgment. Since this Appeal emanates from a probate and administration matter, each party shall bear its own costs. It is so ordered. Judgment dated and delivered on the 04th day of June, 2026 in the presence of Sosthenes Edison, the Appellant's advocate, with both parties in attendance. JUDGE 04/06/2026 Page 6 of 6