Bonaventura Michael Kimambo and Others vs John Michael Kimambo (Land Revision No. 6 of 2021) [2025] TZHC 8407 (18 December 2025)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND REVISION NO. 6 OF 2021 BONAVENTURA MICHAEL KIMAMBO (as Administrator of the estate of the late Marselina Michael Kimambo)………………………………….. 1 ST PLAINTIFF GEORGE ONESMO SWAI ………………..……………..…..………..…..2 ND PLAINTIFF INNOCENT ALEX BARIDI ……………………………….……………….3 RD PLAINTIFF EMMANUEL DAUDI MREMA ……………..….……..……………………4 TH PLAINTIFF PHILOTHEA ANDERSON RINGO …………….…….………….………..5 TH PLAINTIFF GABRIEL DAUDI MREMA ……………………………..…….….………..6 TH PLAINTIFF JOB MSHIU …….………………………..……………….……….………..7 TH PLAINTIFF VERSUS JOHN MICHAEL KIMAMBO ……….…………………....……………….. DEFENDANT RULING 5 th & 18 th December, 2025 A.P.KILIMI, J.: The plaintiffs in this case namely; BONAVENTURA MICHAEL KIMAMBO, GEORGE ONESMO SWAI, INNOCENT ALEX BARIDI, EMMANUEL DAUDI MREMA, PHILOTHEA ANDERSON RINGO, GABRIEL DAUDI MREMA and JOB MSHIU , hereinafter first, second, third, fourth, fifth, sixth and seventh respectively, have brought this matter contesting against the Defendant by praying for the judgment and decree on the following orders, namely: -

2 (a) Declaratory Order that the 2 nd , 3 rd , 4 th , 5 th , 6 th and 7 th Plaintiffs are in lawful occupation of the Suitland. (b) Declaratory order that the Suitland is lawful property of the second, third, fourth, fifth, sixth and seventh plaintiff. (c) Permanent restraining order against the Defendant from interfering with the 2 nd , 3 rd ,4 th , 5 th , 6 th and 7 th Plaintiffs’ occupation of the Suitland or dealing with the Suitland in any manner whatsoever. (d) General damages. (e) Costs of the suit. (f) Any other relief this Court may deem just and equitable to grant. In the amended plaint duly signed and verified by all Plaintiffs filed on 6 th October 2022, at para 3 it avowed the disputed land is situated at Manambeni Hamlet, Korini Kusini Village, Mbokomu Ward, Moshi District which is approximately 1.25 acre, with the boundaries as follows, North: 52 and 04 paces, Bonaventura Kimambo and Onesmo Makundi South: 50 paces Edmund Mmbando East: 75 paces, Odilia Mkala and Anna Urio West: 60 and 25 paces Andrew Tairo and Robert Benson Maeda. Furthermore, the plaint averred at paragraphs 6, 7 and 9 that, the original owner of the suit land was one MICHAEL JUSTINE KIMAMBO who died in the year 1987, before his death in 1987 he distributed his land to his three wives namely Grace Mlay, Bertha Machoo and Zita. Bertha Machoo who is a biological mother of the Defendant John Michael Kimambo was given a parcel of land located on Northern Western side of the suit land. He also gave to her daughter Marcellina d/o Michael Kimambo the suit land above measuring one and a quarter acre in the year 1987. The said Marcellina d/o Michael Kimambo is the mother of 2 nd to 6 th Plaintiffs mentioned above. On 09th November, 1996 the 2nd to 6th Plaintiffs' mother

3 died, and her piece of land in which she had already constructed a three roomed residential house, was inherited and distributed customarily to her five children 2nd, 3rd, 4th, 5th and 6th Plaintiffs, thereafter these Plaintiffs had been in possession of the suit land each one occupying a portion of land allocated to him/her by the Clan Meeting. Years later, on 2 nd July, 2002 the first Plaintiff applied at Moshi Urban Primary Court, in Probate no. 21/2002 and was appointed administrator of the estate of the late Marselina Kimambo, the 2 nd to 6 th Plaintiffs' deceased mother. The plaint at paragraph 13 also averred that the first Plaintiff did not file any inventory to show distribution of the suit land to the Plaintiffs mentioned due to lack of knowledge of legal procedure since the suit land had already been distributed customarily to five Plaintiffs by the Clan Council on 14 th November,1996. These plaintiffs later gave three portions from the suit land measuring 23 by 12 meters, 23 by 12 meters and 28 by 12 meters to the 7th Plaintiff, who had developed by constructing a permanent block three residential houses from 2004. And lastly at para 17 the plaintiffs averred that, in 2020 the Defendant started to claim once again the suitland and in cooperation with one Riley Maluta Kimambo now deceased, they claimed that the suitland belongs to the Defendant, that he was given the land by his deceased father Michael Kimambo, the late Riley Maluta Kimambo petitioned for letters of administration aiming to include the suitland as part of the estate of Michael Kimambo, the 1st Plaintiff lodged his objection against the petition by the Defendant but the trial court appointed both the first Plaintiff and the deceased Riley Maluta Kimambo as joint administrators of the estate of the deceased in Probate No. 148/2020 on 28th December 2020.

4 In his written statement of defence filed on 7 March 2023 by the order of this court, apparently in alternative to normal defence it contained two preliminary objections on point of law, but since the respondent was unrepresented, it appears he opted to procced with main trial because he argued nothing in respect to the objections raised. In alternative to the said objections, the defendant vehemently denied all claims by the plaintiff and averred they should proof the alleged facts thereof. When the parties appeared before me for hearing, the plaintiff was represented by Mr. Chiduo Zayumba, Learned advocate while the defendant stood himself. Two issues for determination were drawn and agreed upon the parties as follows: -

1. Whether the suit land is legally owned by the Plaintiffs or the Defendant.
2. To what reliefs are parties entitled to. The counsel for plaintiffs was able to call six witnesses while the defendant brought four witnesses. PW1 Bonaventure Michael Kimambo, the first plaintiff testified to the effect, he knew the disputed land mentioned above belonged to his grandfather Ndeinasia Justine Kimambo, later in 1970 the ownership of it went to his father Michael Justine Kimambo, now deceased. The said Grandfather gave his father the Land approximately three acres out of 7 acres he possessed. PW1 further said in 1987, before the death of his father, he divided the land to his three wives, and the other land gave to the child of his sister Yasinta Silayo, and the remaining part declared it belong to him and Marcelina Michael Kimambo. Marcelina Michael Kimambo is the mother of

5 Plaintiff number two to six. He mentioned the three wives to be Grace Mlay, Zita and Bertha Mashoo. The mother of Defendant named Bertha Mashoo was given land ¼ acre, The mother of Marcelina Michael Kimambo got nothing because she was remarried, instead the land in dispute which is 1¼ acres was given to Marcelina Michael. He also said before his father passed away informed him that Marcelina was given the large part because he took care of him when he was sick. Marcelina Michael until she died, she has built one room and cultivated the land, later her children after growing up built two room for their mother. He also added that the defendant who is a young brother was given land from his mother Bertha Mashoo. PW1 in other part said, in November 1996 when his sister Marcelina Michael died, the clan meeting was convened, thereat he was selected and one Veronica Kimambo to supervise children. Then the land of the deceased was decided to be given to her children who are Philothea Anderson Ringo, Gabriel Daudi Mrema, Emanuel Daudi Mrema and Innocent Alex Baridi, then the said clan meeting was documented in a paper, he tendered the same for identification and marked ID1. Later, in the year 2002, Defendant and his brother Anthony Michael Kimambo brought chaos claiming the said land, the case was filed at Moshi Primary Court, against the five children of Marcelina Michael and the court ordered them not to entered their land. Thus, since 2002 till 2021 defendant came again and said the property belong to him. PW1 further has said he was appointed by Moshi urban Primary Court to be the administrator of the deceased estate of Marcelina Michael, PW1 tendered a letter for appointment as administrator of the Estate of Marcelina Kimambo which was admitted and marked “P1”.

6 In respect to 7 th Plaintiff, PW1 stated to the effect that, 7 th Plaintiff entered agreement with all children of deceased to build Houses for them to live, in exchange of giving part of the land, the clan meeting consented to the said proposal. Then three Houses were built for residential purpose of the children, PW1 added they lived in peace, the conflict arose in 2021. Before that year the Defendant was present and did say nothing to the said buildings which started earlier and now is about 18 to 20 years. In cross examination by the defendant, PW1 said according to the clan meeting they selected two administrators, but the other was very old so he went alone to petition. When was appointed as administrator he had nothing to administer because the deceased divided all of his property. He also said he was given a duty by clan to take care of children after the death of their mother, he don’t know their father’s name, that is why their grandfather before death said those children belong to Kimambo’s clan. The remaining plaintiffs’ witnesses may be grouped into three clusters, the first is those who were closely relatives to the deceased Michael Justin Kimambo and Marcelina Michael Kimambo, who are PW4, Anna Elinamu Orio and PW6, Oridia Justine Kimambo, both said they was present at the clan meeting of the late Michael Justin Kimambo, they further reiterated on what was stated by PW1 in respect to distribution done by deceased Michael Kimambo before his death and how the children of Marcelina inherited the land from their mother. The second cluster are children of the late Marcelina Michael Kimambo who are PW2 Gabriel Daud Mrema and PW5 George Onesmo Swai both stated that they were present at clan meeting held on 14/11/1996 which decided the land which was given to their mother by their grandfather as stated by PW1 above be given to all five children of Marcelina Kimambo as heirs of her estate. Later they entered agreement with Job Mshiu, and

7 agreed he will take a land not exceed ¼ acre, and built three houses for three children, the same was built in 2004, 2007 and 2009 respectively, the three house belong to George Onesmo, Innocent Baridi and Emmanuel Daudi. And the last one was PW3. Job Nelson Mshiu, as testified above he secured land from the children who inherited land of the late Marcelina Michael Kimambo after he entered the agreement in consideration to build three houses for three children, the land given to him as consideration is a portion of land measures ¼ acre. PW3 tendered three agreements of the said buildings he built and the land given to him which were admitted collectively as P3. The defendant’s case started with the defendant himself, he testified to the effect that, sometime before the death of his father late Michael Kimambo called them as men and told them that their sister Marcelina has children by different men. Then he told them after giving land to them as men, he will give land to Marcelina to take care of the children, after they are grown up, they will go to their father, and Marcelina will have no power to add any part of land. DW1 further said he returned to Arusha, sometime later he returned home and found that his father has distributed land to Bonaventura Michael Kimambo, Mose Michael Kimambo, Antony Michael Kimambo and Marcelina Michael Kimambo. DWI also said after the death of his father in 1987, his elder brother Bonaventura Kimambo (PW1) was selected by clan to administer the estate of their deceased father. He came at Moshi 1989 and told him to show his portion of land, Bonaventura replied him to come with his brother Laurian. He returned again on 1991 the answer remains the same. He went and returned again between the year 1992 and 1993 he can’t recall exactly and found already Bonaventura has given the land to his brother Laurian. When

8 he requested for his land, he was told he should wait until December but the same was not honored. He took the matter to the church for two consecutive years 1996 and 2000 nothing was honored despite of many promises, he took the matter at police later to ward land tribunal for three years, he was later advised to go to District Commissioner where he was advised to file Probate case at Primary Court, but he had no a Certificate of Death. DW1 further said later he was called and went to the court in the case of Probate Cause 148 of 2020, the case was for administration of the late Michael Justine Kimambo, thereat administrators appointed were Bonaventura Michael Kimambo and Riley Maruta Kimambo, whom the court tasked them to collect deceased estate, till the date of this testimony the case is pending in Primary Court Moshi Urban, he added that Marcelina Kimambo was given a land merely for building three rooms house. DW1 also tendered several documents for identification purpose received as ID1 both of them were uncertified copies which I hold I can’t accord any weight to them. When he was cross examined by Mr. Zayumba, DW1 had this to say; since his father passed away it is almost 33 years, during the time he was doing effort to fight for his right to leaders and tribunals, he is afraid to go to the area in dispute where includes Tomb of his father because he can be killed, all his fellow children were given land except him. Further said there is a case at Primary court Probate 148 of 2020 which was stopped pending this case. DW2 Antony Michael Kimambo, a brother of one mother with the Defendant testified that, he knows the area the Plaintiffs has built is the land remained for Defendant, because her sister Marcelina was given a land to take care of her children only, the land remained is the land of Defendant and Laurian Michael Kimambo, he was present when his late father uttered

9 the same, therefore he gave the Land to his children and not to his wives. DW2 further reiterated on what DW1 said in respect to dishonored promises given by Bonaventura Kimambo to the defendant and steps taken and later how gave land to Laurian Kimambo. He also added that, the probate was filed of the deceased Michael Justine Kimambo, people appointed are Bonaventura Kimambo and Maruta Kimambo. When DW2 was cross examined by Mr. Zayumba had this to say; since their father died it is almost 33 years, his land gave to the son of his sister called Amani Kimaro, he gave that land while his mother was present, it is not true that the said land was given to their mother. Defendant was given a piece of land, he said is a small portion and refused, but later when he came back the said place was already built a house, Bonaventura Kimambo was appointed by the clan, but he did division of properties without being filed the probate cause, he added their father died intestate. DW3. Laurian Michael Kimambo, also a brother to the defendant testified that, before the death of his father Michael Justini Kimambo, he had a farm and distributed to his brother Bonaventura Moses and Antony, after his death he was given a piece of land by following the map of division of land left by their late father which was left to one Christopher Justine Kimambo, then after being given his part, it remain a part of land for his young brother who is the Defendant, later the said land was invaded by the children of their sister and build therein. In the cross examination made by Mr. Zayumba learned counsel, DW1 had this to say; no any wife of deceased was given land but only children were given. Marcelina was not given any land, there is a map showing distribution of the Land of their late father, Marcelina was living at the disputed land for farming, in her mother womb they were born two, himself and his sister Julita, no any of their sisters were

10 given land, so even Marcelina being also their sister was not given land. In re-examination DW1 said, Marcelina was not given land, the land was given to Defendant, and Marcelina has only a right to stay on that land for farming. The last witness in Defendant case was DW4, Semeni Robert Njau, he is a division officer (Afisa Tarafa) of Hai Mashariki, he testified that Defendant came to his office on 7/11/2019 to complain against Bonaventura Kimambo, he complained that he was not given land as heirs, He did call them for meeting on 19/11/2019 but quorum was incomplete, he scheduled to be on 23/11/2019, whereon both attended, but the dispute remained unresolved, then it was resolved that on Christmas holiday since all clan members come to their homeland the same be discussed, and result be communicated to his office, again it was unfruitful. Another meeting held on 1/2/2020, wherein after long deliberations they reached the conclusion that Administrator appointed was not approved by the law. Christopher Kimambo who is the clan leader prayed to be given time, they gave him time until 17/4/2020, still it remained unsolved. Later on 5/5/2020 he received message from Bonaventura Kimambo that the dispute has failed due to chaos, thus his office wrote a letter to Defendant to go the law enforcing organs to settle the matter. When he was cross examined by Mr. Zayumba he said, since defendant father died in 1987 until when defendant came to his office it is almost 32 years. After I heard all witnesses for both parties the counsel for plaintiff prayed to file final submission, I conceded for both parties to do so, however is only the counsel for plaintiffs filed the same and on time scheduled. Starting with the first issue, which is whether the suit land is legally owned by the Plaintiffs or the Defendant. I have considered the evidence adduced by both sides; I have noted briefly that the genesis of this matter is

11 the piece of land which formerly was owned by Michael Justine Kimambo deceased. According to the evidence it is alleged by plaintiffs’ side that the said land was given to Marcelina Michael Kimambo who is also a deceased, their relations was a father and daughter respectively. It is undisputed that the father died on 1987 while the daughter died in 1996. The plaintiffs also allege that after the demise of the daughter the clan sat and distributed the said piece of land to her five children (second to sixth plaintiff hereinabove). In the other hand, the defendant DW1 is disputing all the above assertions and was supported by his two blood brothers who came to testify before me as DW2 and DW3. Moreover, before I proceed further with the merit of this matter at hand, I have noted according to the evidence of DW1 there is pending probate case at Moshi Urban Primary court (henceforth “probate court”), and in this respect I quote his testimony hereunder; “we went to the court in the case of Probate Case 148 of 2020, the case was for administration of the estate of the late Michael Justine Kimambo , appointed administrators were Bonaventura Michael Kimambo and Riley Maruta Kimambo. Then we were required to collect deceased estate, till now the case is in Primary Court Moshi Urban , a letter to go to the village government, I went there to the village, they wrote a letter to the clan members not to do anything, Marcelina Kimambo was given a land merely for building three rooms .” (Emphasis added)

12 Having considered the first issue in the light of the above evidence, on 31 st March, 2023 I delivered a judgment after probing myself whether the dispute at hand is a pure land matter or is a probate matter to be decided by probate court seized by the above probate cause. Having considered the evidence adduced by both parties it was my finding that this matter should be determined by probate court vide Probate Cause 148 of 2020 pending at Moshi Urban Primary court, thus I concluded that this court is not vested with jurisdiction to determine the dispute between the parties herein, and I proceeded to dismiss this matter. The Plaintiffs being aggrieved with my decision above appealed to the court of Appeal vide Bonaventura Michael Kimambo & Others vs John Michael Kimambo (Civil Appeal No. 475 of 2023) [2025] TZCA 772 (TanzLII) . On 30 th day of July, 2025 at page 13 the Court of Appeal considered the first ground of appeal, thereafter quashed and set aside the judgment and decree of this court and remitted the case file to this court for me as a trial Judge to determine the issue of jurisdiction after hearing the parties before composing judgment. On 5 th December, 2025 when the matter was placed before me to comply with the order of the Court of Appeal, the plaintiffs as usual had the service of Mr. Chiduo Zayumba learned counsel whereas defendant stood himself unrepresented. In rolling the ball first was Mr. Zayumba, he started by recapitulating the facts of his case that, the 2 nd to 6 th plaintiffs’ claims that acquired the said land customary from the late Marcelina Kimambo in 1996, about 29 years ago. Marcelina, who was the biological mother of the 2 nd to 6 th plaintiffs also acquired ownership in 1987 as a gift from her late father

13 Michael Justin Kimambo, who was also the biological father of the defendant and the maternal grandfather of plaintiffs 1 to 6. The counsel added that their mother Marcelina passed away and the clan distributed the land in 1996 to the 2 nd to 6 th plaintiffs according to customary law, hence they proceeded to make development therein. In respect to the jurisdiction of this court, Mr. Zayumba argued that section 3 of the Land Disputes Courts Act No. 2, Cap 216, subsection (1), states that every land dispute must be filed in the court that deals with land matters within the relevant area. The counsel proceeded that there are various judicial decisions confirming that when a clan or family had a meeting after a person dies and decides to distribute the deceased’s property, the person who is allocated the property acquires customary ownership right, provided there is no objection. He supported his contention with the decision of Edward Nti Nkule vs. Evarist Mtafao , Misc. Land Appeal No. 11/2022 [2022] TZHC 100400 (10.06.2022) and Moya Luminu vs. Government of Malendi Village & Attorney General , Civil Appeal No. 277/2024 [2025] TZCA 139 (16.10.2025), then the counsel was of the view if the above is done there is no need to go to the probate court. Repeating the above but in other way, Mr. Zayumba said the plaintiffs say they inherited the land customarily in 1996 from Marcelina Kimambo their mother. After her death, the clan and family met and distributed the land among the grandchildren. Almost 30 years has passed before the defendant came forward claiming what he calls inheritance rights. The counsel further said plaintiffs claims that their mother received the land in 1987 as a gift while her father was still alive, and therefore the land was not inherited but a gift i nter vivos from their grandfather Michael Kimambo. Therefore, he was of the view, this is not a probate matter.

14 Elaborating about the probate filed, it was Mr. Zayumba contention that, someone named Riley Maluta Kimambo had been appointed as administrator of the estate of the late Michael Justin Kimambo (father of the defendant and grandfather of plaintiffs 2–6). However, he died before the case ended, and no one else applied to be administrator. The counsel was also of the view that, since the case began with the said administrator, and given that the plaintiffs say the land belongs to them while the defendants say it belongs to the deceased, the legal position is that such disputes should be filed in a land court to determine whether the property belongs to deceased or the other. To support his view, he invited me to consider the case of Salima Moshi Athumani vs. Asha Kimolo , TLR 2010 at page 36 when the quoted the case of Ibrahim Kusaga vs. Ibrahim Mweta , TLR 1986 page 30. While ending his submission, Mr. Zayumba said in his view this land court has the jurisdiction to hear and determine this matter because the late Michael Justin Kimambo transferred the land as a gift, not as inheritance therefore, ownership passed to Marcelina. Furthermore, he argued that even if the land had been considered to be part of Marcelina’s estate, the plaintiffs claim that the clan distributed the land in 1996; thus, legally they have acquired ownership since that time. It has been nearly 30 years before the defendant raised any dispute. Finally, the counsel added that plaintiff No. 7 is neither a child nor a grandchild nor relative of the Kimambo family. His rights arise from an agreement made over 20 years ago, and such rights cannot be enforced in a probate court but in a land court, thus he concluded this is a land matter, not a probate matter, and this court has jurisdiction to hear and determine the dispute.

15 On part of the defendant, addressing the same issue of jurisdiction of this court, he said this matter has already been heard at the Primary Court and was at the stage of distributing the estate because the order was issued to collect the assets of the late Michael Kimambo and the first plaintiff was appointed by the clan since 1987 but he did nothing, rather used the properties of the deceased for his own benefit, and he never distributed the deceased’s assets to his younger siblings including him as required by law since 1987. The defendant further said he decided to go to the local leaders, and later the clan met and appointed his late elder brother’s son, Riley Maluta who was assisted by the first plaintiff in collecting and distributing the estate, but in the course of their administration, the defendant and administrator went to the land in dispute, unfortunately they were chased by armed group of people gathered at the suit land, thus their mission became impossible. He then said that the Primary Court magistrate scheduled another date and promised security for the exercise, but before it was done, Plaintiffs filed this matter in this court, and that is why the distribution did not proceed. Nevertheless, the defendant was of the view that this court has jurisdiction to resolve this issue so that the children of the deceased can receive their rights. Having considered the submissions by the parties above, on the outset I wish to highlight that, the plaintiffs have prayed to this court as a land court to issue declaratory order that the Suitland is lawful property of the second, third, fourth, fifth, sixth and seventh plaintiff. But from the plaintiffs evidence it was averred that the second to sixth defendant inherited the said land from their deceased mother Marcelina Michael Kimambo who was given that land by the late his father, nonetheless, as said above the defendant and his two brothers who are sons of the deceased have testified disputing it

16 strongly. Therefore, in my view the gist of the matter is claim of ownership accruing from inheritance of one Marcelina Michael Kimambo. According to the evidence of defendant, he said the first plaintiff and one Riley Maruta Kimambo were appointed in probate cause no. 148 of 2020 at Moshi Urban Primary Court to be administrator of their late father which is pending to date, moreover in his submission he has said what happen on the course of their administration. It is also noteworthy, the first plaintiff has sued as an administrator of the estate of Marcelina Michael Kimambo and he tendered letter of administration which was admitted as exhibit P1, also at page 27 of the typed proceeding of this court, when he was traversed, he said that the said probate is neither closed nor inventory filed. In view of above evidence, the first plaintiff has a duo administration, first of his late father Michael Justine Kimambo and the late Marcelina Michael Kimambo the mother of 2 nd to 6 th plaintiffs and both probates are unclosed. The concern above has triggered me for the sake of justice and judicial notice to call and peruse the record of the above said probate court, according to the record of Probate no. 148 of 2020 at Moshi Urban Primary Court, It shows that the first plaintiff and his co- administrator filed inventory and account of estate of the late Michael Justine Kimambo, in inventory it depicts land value at Tshs. 150 million as estate, while accounts show the deceased Marcelina Michael was Kimambo was allocated 0.55 of the above land. Thereafter, the defendant objected the said filing of inventory and accounts on the said probate court, on 12/08/2021 defendant, both administrators and other witness were heard by the Primary court in regard to the objection raised, before the said court conclude the matter, on 8/10/2021 the first plaintiff informed the probate court that he has filed a land matter in this court against the defendant, thus the probate court stayed the dispute up to date.

17 Now, as evidenced above and having considered submissions from the defendant above, there is contentious probate matter in Probate no. 148 of 2020 which is still pending, wherein the first plaintiff as administrator distributed 0.55 of land to the late mother of 2 nd to 6 th plaintiffs, and having regarded that the first plaintiff is also the administrator of the said estate of the mother of the 2 nd to 6 th plaintiffs, in the circumstances, it is my my considered view their title of 2 nd to 6 th plaintiffs in respect to the said land which is subject to this dispute cannot be denied to accrue from inheritance of their mother, which in the premise stated above should be settled by the said Probate no. 148 of 2020 pending at the Primary court. I have reached the above finding, because as alluded above first, plaintiff and co- administrator filed inventory and included the estate of Marcelina Michael Kimambo; second, the said probate court is seized with the jurisdiction because the matter is still pending; third, the first plaintiff as administrator of the estate of the mother of 2 nd to 6 th plaintiff is at position together with other witnesses to explain with evidence to the said probate court on how the land in dispute belonged to the deceased Marcelina Michael Kimambo. And lasty, the above is within the powers of the said probate court. Perhaps I should stress that, the powers of the primary court in appointment of administrators of the estate are governed by the fifth schedule to the Magistrates Courts Act, Cap 11 R.E 2019. A primary court exercising jurisdiction on a probate and administration its powers are limited to appointing the administrator, approving the rightful heirs, hearing of matters accrues in the course of administration of estate in respect to inheritance, sale, partition, division or other disposal of the property and supervising the administrator to account for administration of deceased

18 estate. (See rule 8 of the Primary Courts (Administration of Estate) Rules, GN. No.49 of 1971). Being guided by the above authorities of the law and having reflected on the matter at hand and the stage reached at the probate court above, it is my settled view that, all matters pertaining to the estate of the late Marcelina Kimambo should be ascertained at the said court. Basing on that foundation, I am not ready to buy the argument by Mr. Zayumba that since the 7 th plaintiff being neither a grandchild nor relative of the Kimambo family then his rights cannot be enforced in a probate court but in a land court. Having observed as above, I am of the considered view, even those clan members whom are acquainted of what transpired about the said distribution as claimed by Mr. Zayumba that they distributed the land in dispute customarily to 2 nd to 6 th plaintiffs need to prove before that probate court on whether the title to the land in dispute belong to the late Marcelina Kimambo henceforth should be bequeathed to 2 nd to 6 th plaintiffs. It is also my opinion if it happened, the same is proved at the probate court, then the next dispute on whether the title of the land in dispute passed to second to sixth plaintiffs who are children of the deceased Marcelina Kimambo will be simple and straight forward since are sole heirs. As alluded herein above, even in this case, since the matter emanates from inheritance and there is a pending probate matter at the probate court, in my view, since the probate court is still seized with the matter this means the administrator has not filed a final account and the court have not approved the same, with respect, it is a misdirection for PW1 who was the administrator appointed at the probate court instead of telling what transpired with evidence if at all the clan conclusively distributed the land in dispute to legal heirs, he has resorted to assemble the alleged heirs and jumped to this court as pure land court to seek for declaration orders in

19 respect to ownership of the suit land. I think under the circumstances logically he ought to exhaust the task started. Therefore, for foregoing, I disagree with the contention by Mr. Zayumba when he argued that, since the late Michael Justine Kimambo gave the land in dispute to the mother of 2 nd to 6 th plaintiffs as a gift, therefore the dispute of the parties is not a probate matter. As alluded above it is a probate matter because 2 nd to 6 th plaintiffs claim to inherit the said land from their mother, upon which the first plaintiff is administrator of the estate, but also on the facts depicted above the is a progression of administration of her estate in probate matter depicted above. In the premise, I am of the stance that, those cases cited by Mr. Zayumba are out of context and are not only inapplicable in the circumstances of this case but also distinguishable. Moreover, Mr. Zayumba submitted that the plaintiffs say they inherited the land customarily in 1996 from Marcelina Kimambo their mother. After her death, the clan and family met and distributed the land among the grandchildren. Almost 30 years has passed before the defendant came forward claiming what he calls inheritance rights. What I have grasped from this counsel contention is that the six plaintiffs mentioned above had been in long uninterrupted possession of the suit land beyond the limitation time, thus becomes the lawful owner and any other person is barred from claiming the land in dispute. In my considered view since this court is not seized with jurisdiction as held above, the above argument should be tabled to the probate court to be decided. For instance, l have asked myself what is the effect of hearing this matter as land matter and decide that the 2 nd to 6 th plaintiffs are the legal owners of the land in dispute? Then what if the decision of the probate court which currently is seized with the dispute which includes the estate of their

20 mother Marcelina Michael Kimambo will be different in respect to the accounts of estate filed as depicted above? To answer these questions, in my considered view, I think there is a need to trace the root of the dispute which is the estate of the late Marcelina Michael Kimambo which subjected to be decided by the probate court in a case mentioned above. In the light of what I have demonstrated above, my final conclusion is that, since both plaintiffs and defendants are claiming interest from the deceased estate wherein the defendant is disputing the land allocated to his siblings including the late Marcelina Michael Kimambo, and the fact there is a matter at Moshi Urban Primary court vide Probate cause no. 148 of 2020 at the stage I have alluded above, I am satisfied that the crux of the dispute should be settled after the said probate court determine whether the title of the land in dispute passed to the late Marcelina Michael Kimambo as the mother of the 2 nd to 6 th plaintiffs. From the foregoing it is my finding that since the Plaintiffs have moved this court as a pure land court, and having regarded the above endeavors, I am settled that this court is not vested with jurisdiction to determine the dispute between the parties herein, rather parties are advised to return to the probate court where their matter is still pending. Consequently, I hereby dismiss this suit in its entirety. According to the circumstances of this case which has a nature from probate, I order each party to bear its own costs.

21 It is so ordered. DATED at MOSHI this 18 th day of December, 2025. X JUDGE Signed by: A. P. KILIMI Court: - Ruling delivered today on 18 th day of December, 2025 in the presence of Mr. Chiduo Zayumba learned counsel for Plaintiffs, also in the presence of the 2 nd ,3 rd 4 th 6 th 7 th and Defendant also present in person. Sgd; A. P. KILIMI JUDGE 18/12/2025 Court:- Right of Appeal explained. Sgd; A. P. KILIMI JUDGE 18/12/2025