Hilda Julius Makukura vs Naman Joel Mkumbo & Others (Civil Application No. 0594 of 2026) [2026] TZCA 560 (13 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 0594 OF 2026 HILDA JULIUS MAKUKURA.......................................................APPLICANT VERSUS NAMAN JOEL MKUMBO ..... . ............................................. 1 st RESPONDENT HASSAN SELEMAN GUNGUTI (as the lawful Administrator of the estate of the late Seleman M. Gunguchi) . ............... 2 nd RESPONDENT THE ATTORNEY GENERAL . ........................................... 3 rd RESPONDENT THE REGISTRAR OF TITLES . ...................... . .....................4™ RESPONDENT THE ASSISTANT COMMISSIONER FOR LANDS ................. 5 th RESPONDENT (Application for stay of execution of the judgment and decree of the High Court of Tanzania, Land Division at Dar es Salaam) fLaltaika. J.) dated the 30th day of May, 2025 in land Case No. 28179 of 2024 RULING 28^ April & l 3 h May, 2026 ISMAIL. 3.A.: This is an application through which the applicant, one of the losing parties in the trial proceedings, seeks an order for stay of execution, as she pursues an appeal which is impending in this Court. The judgment and decree from which the impending appeal arises were bred from a suit which was jointly instituted by the 1s t and 2n d respondents, against the i

applicant and the rest of the respondents. The subject matter of the tussle was a piece of land known as Plots Nos. 604 and 605 Block 'D' Buyuni, Dar es Salaam, comprised in the Certificates of Title Nos. DSMT1009696 and DSMT1009643. The High Court, Land Division (the trial court), before which the matter was tried, declared the 1s t and 2n d respondents as lawful owners of the land in dispute. The trial court further ordered cancellation of the certificates of title, hitherto, issued in the applicant's name. Vide a Notice of appeal instituted in the trial court on 19th June, 2025, the applicant notified the parties that she intended to challenge the said decision through an appeal to this Court. She also applied to be furnished with necessary documents from the trial court to facilitate the appeal process. As the appeal process awaited the furnishing of the necessary documents, the 1s t and 2n d respondents instituted an application for execution of the decree. The mode of execution chosen by the said respondents is through eviction of the applicant from the suit land and hand it over to the decree holders. This is what triggered the instant application. The Notice of Motion instituting the application is supported by an affidavit sworn by the applicant, giving a factual account of the matter 2

and what she craves. Of significance, are paragraphs 10, 11, 12, 14, 15 and 16 which demonstrate the applicant's compliance with the imperative requirements set out in rule 11 of the Tanzania Court of Appeal Rules, 2009 (the Rules). Equally significant, is the fact that, none of the respondents filed affidavits in reply in support of or opposition to the application. At the hearing of the application, Mr. Masatu Makaki, learned counsel, appeared for the applicant, whilst Mr. Emmanuel Dominic Kusekwa, learned advocate, represented the 1s t and 2n d respondents. The 3rd , 4th and 5th respondents enlisted the services of Mr. Edwin Joshua Webiro, learned State Attorney. Mr. Makaki, who set the ball rolling, urged the Court to grant the application on the basis of the applicant's depositions in the affidavit in support. Neither Mr. Kusekwa nor Mr. Webiro were opposed to their counterpart's prayer for grant of a stay order. When probed on the requirement of furnishing security for the due performance of the decree, Mr. Makaki referred me to paragraph 14 of the affidavit in which the applicant expressed her readiness to execute a commitment bond through which she would undertake to ensure that, the property in dispute remains in the same condition as it was on the date the impugned

judgment was pronounced. The learned counsel maintained that, the applicant's proposal is not novel, insisting that on numerous previous occasions, the Court accepted this as a sufficient cover. He referred me to our decision in Mapius Otieno v. Machimu Mayala [2024] TZCA 515 in which a commitment of conservation of the landed property was deemed a sufficient security for the due performance of the decree. While Mr. Webiro supported the argument raised by counsel for the applicant, Mr. Kusekwa was of a different proposition. He firmly argued that, the judgment creditor's property cannot be used as security for the due performance of the decree. He bolstered his argument by referring me to the decision in Zanzibar Telecommunication Ltd v. Commission General, Tanzania Revenue Authority [2025] TZCA 1270. Mr. Kusekwa held a conviction that security must be in the form of money or bank guarantee and not a mere commitment bond. In his brief rejoinder, Mr. Makaki faulted his colleague for not coming out clean on whether the decree in the case he cited was a money decree or in a land ownership matter as the case at hand. He maintained that a commitment bond suffices. I have unfleetingly gone through the notice of motion, its supporting affidavit and the parties' unanimous submissions on the merits of the

application. I am convinced that the application has fully met the conditions set out in rule 11 of the Rules. I also take cognizance of the fact that, none of the respondents have registered any opposition to the granting of the prayer sought. It serves right, therefore, that this application should be granted. Regarding the 'emotive' issue of security, I wish to begin by restating the general principle which was enunciated by the Court in Mantrac Tanzania Limited v. Raymond Costa [2011] TZCA 519. We reasoned as hereunder: ".. the other condition is that the applicant for stay order must give security for the due performance o f the decree against him. To meet this condition■ , the iaw does not strictly demand that the said security must be given prior to the grant o f the stay order. To us, a firm undertaking o f the applicant to provide for security might prove sufficient to move the Court, ail things being equal, to grant a stay order, provided the Court sets a reasonable limit within which the applicant should give the same." From this excerpt, the obvious conclusion is that furnishing of security is a condition precedent for the issuance of a stay order. The question that calls for determination relates to the form in which such

undertaking should be. Mr. Makaki is strenuously of the contention that a commitment bond carries all what it takes to meet the requirement, while Mr. Kusekwa is not persuaded. I need to recapitulate the settled view, accentuated by this Court many a time that, determination of security which is reasonable in the circumstances of the case is a matter that falls under the Courts discretion. Thus, in B. R. Shindika t/a Stella Secondary School v. Kihonda Pitsa Makaroni Industries, Civil Application No. 269 of 2015 (unreported), we observed as follows: "That Rule leaves it open to the Court to exercise its discretion in determining reasonabie security to be deposited. We are weii aware that the discretion is to be exercised judiciously. The amount to be deposited will therefore very much depend on the circumstances o f each case ." Mr. Kusekwa has urged me to follow the footsteps we took in Zanzibar Telecommunication Ltd (supra). I have methodically gone through the said decision. I must say, with profound respect to the learned counsel, that, that is not the said decision was all about. The decision only guided that security for the due performance of the decree may be in a variety of forms. It did not confine it to effecting a cash 6

deposit or furnishing of a bank guarantee. I, therefore, find plausibility in the submission by Mr. Makaki that circumstances of this case, in which the decree is not a money decree, security may take the form of a commitment bond executed by the applicant to the effect that, the state of the object of execution will not be tampered or its value dissipated. This, as Mr. Makaki contended, is in line with the holding of the Court in numerous decisions. In Mapius Otieno (supra), for instance, it was held as follows: "Since the suit property is a farm which is an immovable, as per the principle in Mohamed Masoud and 16 Others v. Tanzania Road Haulage (Civil Application No. 58/17 o f 2019) f20191TZCA 198 (17th Junef 2019), commitment to ensure that the suit property shall remain as it was at the date o f the decree is a sufficient security ." That said, therefore, as I grant this application, I order that subsequent to this grant and, in any case, within 14 days from the date hereof, the applicant should furnish the said commitment bond, undertaking to conserve the subject matter of the dispute between the parties, that the same shall remain in a state at which it was, when the

decree was issued by the trial court. Costs to abide the result of impending appeal. It is so ordered. DATED at DODOMA this 12th day of May, 2026. Ruling delivered virtually this 13th day of May, 2026 in the presence of Mr. Masatu Makaki, learned counsel for the applicant, Mr. Emmanuel Dominic Kusekwa, learned advocate for the 1s t and 2n d respondents, Mr. Edwin Joshua Webiro, learned State Attorney for the 3rd , 4th and 5th respondents and Mr. Shabani Kanyai, Court Clerk, is hereby certified as a true f n n v n f fhf> nrininal. M. K. ISMAIL JUSTICE OF APPEAL 8