Malusu Kilima vs Mlumbi Mkimbo (appearing by her lawful attorney) Shinguna (Civil Appeal No. 74 of 1997) [1999] TZHC 127 (18 June 1999)

l.?i 'mE..liI.aH. OOU!t'l' O'F T z WI A,, . AT pliR il§. SALMM -CIVIL .APPEAL NOe 74 OF 199'1' M Jal.,l.~ • • • • • • • • • • • • .APJ;LI.C.AN'l BWETWEEN MLUMBI MialMBO {appea.ri;..g cy her t,awful Att,orney) SHINGUl):.A,.. • ·• • • • •• • • • • RULING ----- One Rw.umbt. . »-0.., d$ instit\lted. -Oi ~ ~ 52 -o£' 1997 at the Court of Resident, 'isu.ate. at Kisutu. She was suing . Jsth.er Kamana., .·the respondent .before llls. Mal.usu Kili;llb-a swears that Hulwnb-i 14lculabo "l'faft 9Urrlved. l1y her. suit. . She. has,· in the urse of time, applied for and was grantd letters of adalinis. to enable her to ad.lll;i.n.iater the ~ s eete.te <Uld l:i. tgate on her 'behalf • .Aco<U'dging to the a.ffidavi t evidence of th ~t ·her departed . r.ela~~ ~a.seed ~- .Q11 ,~th, O<>~~oe:r,,_· 1995-· . At ::ij1?,t _s_time a Shiguna ..:t.· a was the deoeaeed 1 '?_. a-~rney ~ .had the conduct of proceedings

• ... .,. ,. __.. .. - . ..------ ··- . . before the lower court. His .ag~, ·<if .oo~~,abated 'When his p:d.u~ ' . died.· The purpose of the instant application, therefore, is for orders that. li:Ial~'l Kilimbas. appii:oant, ·be substituted for th>e~<looeased so that $ha. mey pQ"SW:e the pending appeal. -' .,-. The :rapondent has ~~sd.tl!o /j~~iru,. ·st. ~ epplicati-0n One, that the appli-0~~ i.e t.; .. s8COJ:ldlyt thet it is time ... ba.rad. That rsspondent swere in her cote: a.ffidsvit that the application is incompeten't because the apeal that we.s :filed qy Shingun-. J ...... :Shi..gwia:.is. incompete.mt as he did so. »ell afi.er the death of his principa.1• ,.. r . . . . Now, as regards the- first objec-t.ion the :reoord of proceedings>shows. that on· 30th April, 1997, -the suit was dismissed' bacaus·e it' was: held to be ;res · judioata. . If. that is so the· sui it rama.ind Jach ve from 6th o-t, 1995,• when the plaintiff ·di Obviotlf;ly the d:eath of -the plaintiff ··put . to a.ti· erid the power of attornei · Shigun J.· Sh±guna ·h~ been granted:. It. follows that the suit after the death oi th'e :~~nt.iff ou.ou· only .be legally : .,· . ·: ··; . ,, -.-~. : ... _ .. -• .. : .· · •··. . prosecuted by the administrator of the estate • • .,, . : -· . ;, ' ··21·' ' ..... ·'

}1 2 Thus whatever took place after- 6th October, 1995, is invaliJ Si1~.ilarly since Shiguna J, Shi.g;Lma had n.o aJ.tthori ty to · / · institute this appeal, the appeal itself .is also a nothing. / For thE: se reasons the~,e is no valid. appeal before me• / Upon the foregoing considerations the proceedings: before i the subordinate court that were held after 6th October, 1995 1 ~ including the order by which the suit was dismissed are quashed. On the same parity, the appeal before me. is struot _out with I costs, The suit shall proceed from where it had reached beore the pltiff passed away, The applicant mey- wish to apply j to be· joined as• an administrix, subject to the law of lirni tation• r The need to consider the second isoue ceases to exist. Delivered. Applicants In person

• Respondent r In person.