Court name
Court of Appeal of Tanzania

Hussein Alli Kasweswe vs Mzee Hamisi Kasweswe () [1985] TZCA 11 (08 October 1985);

Law report citations
1985 TLR 252 (TZCA)
Media neutral citation
[1985] TZCA 11

Mustafa, J.A.:  Letters of administration were issued in Probate and Administration Cause No. 44 of 1977 on 2.9.77 by the High Court to four administrators Hussein Ali Kasweswe, Mzee Bin Hamisi Kasweswe, Ashura Ali Kasweswe and Zuena Hamisi Kasweswe. C
On 26.9.79, three of the administrators Hussein, Ashura and Zuena filed a Chamber Application in the High Court asking for the annulment
of a sale of house No. 39, Kariakoo, belonging to the estate, by Hamisi to two buyers and for other consequential orders.  Hamisi, as administrator had sold the house, and D had taken his one fourth share of the money and deposited the shares of the other three beneficiaries, the remaining administrators, in court for collection by the beneficiates.
There was no allegation of fraud or improper practices on the part of the vendor or purchasers in the sale transaction.  The three applicants wanted the house to remain as E the property in their joint names, and were prepared to refund the money to the purchasers and pay the sum due to Hamisi.
The judge (Mtenga, J.) heard the application and held that in terms of section 100 of the Probate and Administration Ordinance Cap. 445, Hamisi as a single administrator had F powers to sell the house and that the sale was proper in the circumstances and dismissed the application.  The application was made pursuant to Rule 105 of the Probate Rules seeking for the court's directions.  From that Ruling the three administrators are appealing to this court. G
Mr. El-Maamry for the purchasers and Mr. Raithatha for Hamisi raised a preliminary objection to the appeal and submitted that it was incompetent, as no leave to appeal has been obtained from the High Court.  They referred to section 4(1)(C) of the Appellate Jurisdiction Act and submitted that the ruling of Mtenga, J. was an order and required H leave.
Mr. Marando for the 3 administrators submitted that the ruling was in fact a decree conclusively determining the issues in controversy between the parties and that there was a right of appeal without leave.
We have heard arguments from both sides and looked at sections 3, 22, order 43 Rule I 2 of the Civil Procedure Code and Rule 105 of the

Probate and Administration Rules and we are satisfied that the application was not A something in the nature of a suit as the applicants only asked the court for directions by way of a chamber summons and no evidence as such was adduced.  We are satisfied that the ruling was an order and as no leave to appeal was obtained from the High Court, the appeal is incompetent.  It is struck out with costs. B
Order accordingly

C