Abdallah Juma Kalyatila (Administrator Of Estate Of Late Juma Kayatila) vs Ashura Juma Masoud (Civil Appeal No. 20603 of 2025) [2026] TZHC 2856 (2 June 2026)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT SUMBAWANGA PC CIVIL APPEAL NO. 20603 OF 2025 (Originating from Probate Appeal No. 000004100 of 2025 in the District Court of Mpanda at Mpanda) ABDALLAH JUMA KALYATILA (Administrator of the Estate of the late Juma Kayatila) …………………. APPELLANT VERSUS ASHURA JUMA MASOUD ……………………………… .. ….. RESPONDENT JUDGMENT MWENEMPAZI, J. This is a second appeal arising from the judgment of the District Court of Mpanda in Probate Appeal No. 000004100 of 2025, delivered on 18 July 2025 by Hon. R.M. Mwalusako, Senior Resident Magistrate. The appellant, Abdallah Juma Kalyatila, in his capacity as Administrator of the Estate of the Late Juma Kalyatila, is dissatisfied with the decision of the District Court and ha s preferred the present appeal before this Court.

2 The dispute concerns ownership of a farm known as Milala Shongo Farm. The respondent, Ashura Juma Masoud, claimed entitlement to the farm on the basis that during his lifetime the deceased, Juma Kalyatila, had distributed his farms among his wives and children, and that the disputed farm ultimately devolved to her through inheritance. The appellant, on the other hand, maintained that the farm formed part of the estate of the deceased and ought to be administ ered and distributed as estate property. The matter originated in the Primary Court, which found in favor of the respondent. The trial court was persuaded by the evidence that the deceased had, before his death, allocated his farms among his wives and children and that the respondent's claim to the disputed farm stemmed from that prior distribution. Aggrieved by that decision, the appell ant lodged an appeal before the District Court of Mpanda, challenging, among other things, the finding that the deceased had distributed the farms during his lifetime and the conclusion that the Milala Shongo farm belonged to the respondent. After hearing the parties and reviewing the record of the Primary Court, the District Court dismissed the appeal. The appellate court held that the disputed land had devolved by inheritance and that such inheritance could be proved by oral testimony even in the absence of documentary evidence.

3 The court further found the respondent's evidence and that of her witnesses more credible and weightier than that adduced by the appellant, and consequently upheld the decision of the Primary Court. Still dissatisfied, the appellan t has now appealed to this Court on three grounds: that the first appellate court erred in affirming the finding that the deceased had distributed his farms among his wives and children without documentary proof; that it erred in holding that the Milala Sh ongo farm belonged to the respondent despite the absence of documentary evidence of allocation or transfer; and that it erred in maintaining the order directing the farm be returned to the respondent. The appellant accordingly prays that the decision of th e District Court be quashed, that the disputed farm be declared part of the estate of the late Juma Kalyatila, and that such other relief as this Court may deem fit be granted. At the hearing of the appeal, learned counsel for the respondent, Ms. Sekela Am ulike, withdrew the preliminary objection that had earlier been filed, and the Court accordingly marked the objection withdrawn and proceeded to hear the appeal on its merits.

4 Arguing the first ground of appeal, the appellant submitted that the late Juma K alyatila never distributed or allocated his farms to any member of his family during his lifetime. He contended that the deceased lived and cultivated together with his family until his death and that there was neither documentary evidence nor minutes of a ny family meeting to support the allegation that a distribution had been made. According to the appellant, all the deceased's sixteen children and three wives were adults at the time of his death, yet none of them had knowledge of the alleged distribution. He therefore questioned how a grandchild could possess knowledge of such allocation when the immediate family members were unaware of it. In support of the second ground, the appellant argued that the disputed Milala Shongo farm belonged to the late Juma Kalyatila. He maintained that the respondent acknowledged this fact and that all family members recognized the farm as the deceased's property. He further contended that no family member regarded the respondent as the owner of the farm and that the witness es who testified in her favor were merely neighbors. Regarding the third ground of appeal, the appellant submitted that the evidence presented to the lower courts established the inheritance rights of the estate he administers. He argued that the deceased spent his final days

5 with his family and that, had he intended to allocate the disputed property to a particular person, he would have expressly communicated that intention before his death. In reply, learned counsel for the respondent opposed the appeal. She submitted that this was a second appeal following the dismissal of the appellant's first appeal and that both the trial court and the first appellate court had concurrently found that the appellant failed to establish his claim. Counsel referred th is c ourt to Damiani Mlinga v. Republic, Civil Appeal No. 25 of 2002 [2004] TZCA 53; [2002] TLR 167, and Baby Salehe v. Rahim Hussei n, Civil Appeal No. 625 of 2002 [2025] TZCA 381, for the principle that a second appellate court should be reluctant to interfere with concurrent findings of fact unless a point of law or a misapplication of legal principles is demonstrated. Counsel further argued that the courts below did not misdirect themselves in evaluating the evidence. According to her, the evidence establishe d that the deceased had allocated the disputed farm to Hawa Juma, who continued to occupy and use it throughout her lifetime. After Hawa Juma's death, her children pursued succession proceedings regarding her estate. Counsel also

6 noted that Hawa Juma had p reviously defended her interest in the land before the Ward Tribunal. Regarding the appellant's complaint that there was no documentary evidence of allocation, counsel submitted that proceedings before the Primary Court are not limited to documentary proof and that credible oral evidence can establish ownership or title. In support, she relied on Abas Kondo Gede v. Republic , Criminal Appeal No. 472 of 2017 [2020] TZCA 391; [2020] TLR 1, where the Court recognized that credible oral evidence may, without doc umentary corroboration, be sufficient to prove a fact or title. She therefore maintained that the respondent had successfully proved her claim before the trial court and that the District Court rightly affi rmed the findings. She urged this Court to dismiss the appeal with costs. In reply, the appellant maintained that the alleged allocation was unfair and implausible. He questioned how the disputed property could have been allocated to a single individual without the other family members' knowledge. He furt her complained that after the succession proceedings concerning the estate of the late Juma Kalyatila concluded, the respondent instituted separate probate proceedings relating to the estate of Hawa Juma, which,

7 in his view, was inconsistent with fairness and the rights of the deceased's beneficiaries. Having considered the record of the Primary Court, the judgment of the District Court, the petition of appeal, and the parties' submissions, I am of the view that the three grounds of appeal may be convenient ly addressed under two issues. The first is whether the courts below erred in finding that the late Juma Kalyatila had allocated the Milala Shongo farm to Hawa Juma during his lifetime, despite the absence of documentary evidence. The second is whether the re is any legal basis for this Court, sitting as a second appellate court, to interfere with the concurrent findings of the two courts below. On the first issue, the appellant ’ s main complaint is that the alleged allocation of the farm was not proved by documentary evidence. His argument is that, in the absence of written proof, minutes of a family meeting, or transfer documents, the lower courts ought not to have found that the disputed farm had been allocated to Hawa Juma. With respect, I am unable to agree with the appellant ’ s proposition in the broad terms in which it is advanced. The record shows that the dispute

8 concerned family land whose history of occupation and use was traced through oral testimony. It was not shown that the disputed farm was registered land requiring formal transfer documents as the only mode of proving ownership. The evidence relied upon by the respondent consisted of family history, occupation, use, and previous dealings over the land. The Primary Court believed that eviden ce, and the District Court, on re - evaluation, agreed with that conclusion. It is correct that documentary evidence may be useful and, in appropriate cases, highly probative in proving ownership or transfer of land. However, it is not the law that every cla im relating to customary or family land must fail merely because no written document is produced. In proceedings before Primary Courts, facts may be proved by oral evidence, and where such evidence is credible and consistent, it may be sufficient to establ ish the fact in issue. The real question is not whether the respondent produced a document, but whether the evidence as a whole was sufficient to satisfy the court that Hawa Juma had been allocated and had occupied the disputed farm. From the record, the r espondent ’ s evidence was that the late Juma Kalyatila had farms which he allocated to his wives, and that the Milala Shongo farm

9 was allocated to Hawa Juma. The witnesses called on her side supported the position that Hawa Juma lived on, used, and exercise d control over the disputed land for a considerable period. The Primary Court accepted that evidence. The District Court also found that the evidence of the respondent and her witnesses carried greater weight than that of the appellant. The appellant has i nvited this Court to reject that conclusion on the ground that all the deceased ’ s children and wives were unaware of the alleged distribution. That argument was considered by the courts below against the totality of the evidence. It essentially attacks the credibility and weight attached to the evidence. Such matters are primarily for the trial court, which had the advantage of hearing the witnesses. Unless it is shown that the trial court misapprehended the evidence, ignored material evidence, considered i rrelevant matters, or applied a wrong principle of law, an appellate court will be slow to interfere with findings of fact. I am also not persuaded by the argument that because the deceased was educated and formerly an Akida, any allocation of his land had to be in writing. Education or official status may make written documentation more probable in some cases, but it does not create a legal presumption that a family allocation of customary land cannot be made orally or proved by

10 conduct and occupation. In the circumstances of this case, the absence of documentary evidence was a matter to be weighed together with the rest of the evidence; it was not, by itself, fatal to the respondent ’ s claim. I therefore find that the two courts below did not err merely bec ause they relied on oral evidence to conclude that the Milala Shongo farm had been allocated to Hawa Juma during the lifetime of Juma Kalyatila. The second issue is whether this Court should interfere with the concurrent findings of fact made by the Primar y Court and the District Court. This being a second appeal, the jurisdiction of this Court is not to rehear the matter as if it were a court of first instance. The Court may interfere where there is an error of law, misdirection, non - direction, misapprehen sion of evidence, or where the findings are plainly unsupported by the record. Where, however, the complaint is merely that the lower courts should have believed one side and disbelieved the other, a second appellate court will not lightly disturb concurre nt findings of fact. In the present appeal, both the Primary Court and the District Court found that the disputed farm was not part of the estate of the late Juma Kalyatila. The Primary Court found that the farm belonged to the estate of Hawa Juma,

11 and the District Court affirmed that finding after considering the appellant ’ s complaint that there was no documentary evidence. The District Court specifically reasoned that the matter was more of inheritance and family allocation than formal transfer of registe red land, and that inheritance or allocation could be proved by witnesses. I have considered the appellant ’ s grounds and submissions, but I do not find any demonstrated error of law warranting interference with the concurrent findings of the two courts bel ow. The appellant ’ s grievances are substantially factual. He disputes the credibility and sufficiency of the evidence relied upon by the respondent. However, he has not shown that the courts below acted on no evidence, misdirected themselves on the applica ble law, or reached a conclusion that no reasonable court could have reached on the evidence available. In the case of Simon Kichele Chacha vs Aveline M. Kilawe (Civil Application No. 135/28 of 2021) [2023] TZCA 17819 (10 November 2023) where it was held t hat: “ This being a second appeal, we refrain in interfering with lower courts ’ findings of facts. We held the same view in the case of Amratlal Damodar Maltaser and Another t/a Zanzibar

12 Silk Stores v. A. H. Jariwalla t/a Zanzibar Hotel [1980] T.L.R. 31 , wh ere at page 32 we said: “ Where there are concurrent findings of facts by two courts, the Court of Appeal, as a wise rule of practice, should not disturb them unless it is clearly shown that there has been a misapprehension of evidence, a miscarriage of justice, or a violation of some principle of law or procedure. ” Once the finding that the disputed farm had been allocated to Hawa Juma is upheld, the consequence is that the farm could not properly be treated as part of the estate of the late Juma Kalyatila available for administration by the appellant. It would instead fall to be dealt with in accordance with the succession proceedings relating to the estate of Hawa Juma. The Primary Court was therefore entitled to restrain the appellant from administering or distributing the disputed farm as part of the estate of Juma Kalyatila, and the District Court was justifie d in affirming that decision. In the final analysis, I find no merit in the appeal. The appellant has failed to demonstrate any legal error, misdirection, or sufficient reason for this

13 Court to interfere with the concurrent findings of the Primary Court an d the District Court. Accordingly, the appeal is hereby dismissed. The decision of the District Court of Mpanda in PC Probate Appeal No. 000004100 of 2025, which upheld the decision of the Primary Court in Probate Cause No. 19 of 2023, is affirmed. The Mil ala Shongo farm shall not be treated as part of the estate of the late Juma Kalyatila. In the circumstances of this family dispute, and considering the nature of the matter, I make no order as to costs. Order accordingly. Dated and delivered at Sumbawang a, this 2 nd day of June, 2026 T.M. MWENEMPAZI JUDGE