The Appellant is the first born in the family of the late
Mr. Saleem Abdi Zangie (the deceased) and Mrs. Naseem Akhter Saleem Zangie (the
Respondent. The deceased died on 13th June, 1985 in London. In
addition to his wife (the Respondent) and the Appellant, he was also survived
by one other son Khalid and two daughters, all born of the Respondent. The
deceased left behind an estate which included landed property. One such
property was a parcel of land containing houses and a borehole within the
Municipality of Moshi. The Appellant and his younger brother instituted probate
proceedings in the Court of the Resident Magistrate at Moshi and were appointed
as executors of the deceased Will dated 13th January, 1983 and
granted Letters of Probate on 3rd February, 1987. Although the
Appellant and his brother were granted Letters of Probate, they had prior to
the said grant of probate, successfully applied to be registered as the owners
of the suit land. This parcel of land became the bone of contention between the
Appellant and the Respondent. In a suit by the Respondent in the High Court at
Moshi the Respondent claimed that following the demise of her husband the
entire estate including the suit land devolved upon her and her four children
(Appellant inclusive) in accordance with Islamic law and values. However, in
the year 2000 the Appellant started problems. She filed a suit in the High
Court and prayed for a perpetual injunction against the Appellant restraining
him from arrogating the properties of the estate of the deceased to himself and
harassing her and other family members; a declaration that she had a right to
quiet possession and enjoyment of the matrimonial home; general damages for
emotional anger, mental torture, pain and suffering, and costs of the suit. The
High Court doubted the authenticity of the will relied upon the appellate in
the probate proceedings but left the probating court to deal with the
succession of the estate of the deceased. It annulled the probate
proceedings as the Court of Resident Magistrate had no jurisdiction to
entertain them, quashed and set aside “all the transactions founded on the
cause including the transfer and registration of the matrimonial property of
the Plaintiff in favour of the Defendant”. Finally, it ordered that the
deceased estate save for the matrimonial home of the Plaintiff be administered
under Islamic law and issued a restraining order to the Appellant barring him
from “interfering or in any way dealing with suit property
The Appellant was aggrieved and appealed to the Court of Appeal faulting the High Court for not ordering the parties to apply for probate or letters of administration and allow disputes as to the estate and its administration be decided in such proceedings under the Probate and Administration Act, Cap 445, and for purporting to make a division of matrimonial assets in a suit outside the ambit of section 114 of the Law of Marriage Act, 1971.