Jonas Samson Ndawavya vs Theresia Thomas Madaha,Civil Applications no 344)08 of 2023.

The applicant in this application seeks for an order to be made aparty to the Civil Application No. 31/08 of 2023 in place of the latePaulina Samson Ndawavya, now the deceased. The application is made by notice of motion taken out under Rule 57 (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and supported by an affidavit sworn

to by the applicant. It is deposed that Paulina Samson Ndawavya was the respondent in Civil Application No. 31/08 of 2023. Following death of the said Paulina Samson Ndawavya on 3rd May, 2017, the applicant petitioned for and was granted letters of administration to administer the deceased’s estate by Mwanza Urban Primary Court on 19th September, 2018. On the other hand, the respondent did not file any affidavit in reply.

Among other  things a court had this to say:

The question that follows is whether the Deputy Registrar of the High Court while exercising powers of execution can vary the decision of this Court. The answer to that question is no. We have earlier on shown that, this Court has declared, not once but twice, the status of the applicant. In Civil Application No. 171/08 of 2020, this Court on two different occasions, that is, on 23rd November, 2021 and on 6th December, 2022, recognized the applicant as the dully appointed administrator of the estate of the late Paulina Samson Ndawavya. 

Taking into consideration the Court’s decision and the fact that the counsel for the respondent while under oath recognized status of the applicant, we hold it firmly that the applicant is the legally appointed 

administrator of the estate of the late Paulina Samson Ndawavya who died on 3rd May, 2017. With regard to the effect of the decision of the Deputy Registrar, we cannot, at this stage, say anything because we are not sitting on its appeal.

Lastly, we wish to briefly say a word on the submission made to us by Ms. Kiumba that, the learned counsel for the respondent 

discovered the status of the applicant after the appeal was determined and the application for review was filed. With due respect to such submission, one of the duties of an advocate is to make due diligence. 

on the status of the opposite party before filing any document to the Court. Unfortunately, it appears that this was not done by the learned counsel for the respondent and cannot be entertained by the Court in this application.

All said, we are satisfied that the applicant is the legally appointed administrator of the estate of the late Paulina Samson 

Ndawavya and thus he has locus standi to apply to be joined in Civil Application No. 31/08 of 2023. In the circumstance, the objection raised by the learned counsel for the respondent is overruled. 

Accordingly, we allow the application, and order that, the applicant, as administrator of the estate of the late Paulina Samson Ndawavya, be, and he is hereby, joined as a party in Civil Application No. 31/08 of 

2023 in lieu of Paulina Samson Ndawavya. Costs shall abide to the outcome of the main application, Civil Application No. 31/08 of 2023.