Richard Joseph Mrema vs Sophia Martin Mtali (Civil Application No. 574 of 2026) [2026] TZCA 525 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 574 OF 2026 RICHARD JOSEPH MREMA.................................................................. APPLICANT VERSUS SOPHIA MARTIN MTALI ................................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania Temeke Sub Registry, One Stop Judicial Centre) fMnvukwa. J.) Dated the 13 day of December, 2024 in Civil Appeal No. 22895 of 2024 RULING 7h& 12t h May, 2026 MURUKE. J.A.: The applicant, Richard Joseph Mrema, has moved this Court to stay execution of the decree dated 13th December, 2024 in Civil Appeal No. 22895 of 2024, pending hearing of intended appeal. The application is supported by an affidavit sworn by the applicant himself, articulating reasons for staying execution proceedings. The respondent, Sophia Martin Mtali, filed replying affidavit to oppose the application on 16th June, 2025. When application was called on for hearing, Mr. Musa Joseph Nyamwelo, learned counsel represented the applicant, whereas Mr. Deogratius Ogunde Ogunde, also learned counsel, appeared representing the respondent. At the onset, the respondent counsel informed the Court l

that he is not objecting to the application, he however, informed the Court that orders sought to be stayed are of two different types, namely stay of execution of sale of the properties and the one involved on the affairs of the issues of marriage. On the properties the respondent counsel submitted that, the applicant be ordered to furnish Bank guarantee of value of 40% and 50% of the house at Mpiji Magowe, Ubungo and the property on Plot No. 56& 57 Block C, Ilazo Extension Dodoma, respectively. On the issues of marriage, he prayed not to grant order of stay, as it will affect them. The applicant counsel welcomed the respondent's counsel concessions, and further submitted that, applicant has filed Notice of appeal annexure MK-3, attached to the affidavit in support of Notice of Motion. The applicant was served with the notice of hearing of the execution of the decree annexture MK-6, on 10th March, 2025 and filed present application on 18th March, 2025. The applicant is ready to furnish security as may be directed by the Court. Having heard in brief both counsel's submission, examined the Notice of Motion, affidavit for and against the application, the issue for determination is whether the applicant has satisfied the condition for granting orders sought. 2

First, the applicant filed Notice of Appeal annexure MK- 3 attached to the affidavit in support of the application and filed present application within 14 days in compliance with Rule 11 (4) of the Tanzania Court of Appeal Rules 2009 (the Rules) as notice of hearing of execution was served to the applicant on 10th March, 2025. Secondly, the applicant has averred in the notice of motion that, he will suffer substantial loss if execution will proceed. Third, at paragraph 11 of the affidavit in support of the application the applicant has undertaken to furnish security in compliance with Rule 11 (5) (b) of the Rules. Four; mode of execution is by selling the matrimonial home subject of the appeal that will render the intended appeal nugatory. I agree with both counsels submission that security is necessary to guarantee the respondent satisfaction of decree in case of dismissal of the intended appeal. I understand that a mere undertaking to furnish security suffices, as no particular form of security is required, as was held in the case of Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010 (unreported) where the Court discussed the mode of giving security and stated as follows: 'To meet this condition the iaw does not strictly demand that the said security must be given prior to the grant o f Stay order. To usf a firm undertaking 3

by the applicant to provide security might prove sufficient to move the Court a thing being equal to grant the stay order provided the Court sets a reasonable time limit within which the applicant should give the same". Taking all the circumstances of this application in to account and in order to prevent the intended appeal from being rendered nugatory, in terms of the Notice of appeal annexure MK-3 dated 3rd January, 2025, there is a need to grant order of stay of the decree sought to be executed. However, before granting, as both the applicant and the respondent were present before me, I inquired on status of the issues of the marriage as they are likely to be affected by the stay order as correctly submitted by M r. Ogunde the respondent's counsel. The respondent informed the Court that issues are both in boarding school, she, however quickly complained that the applicant is not paying school fees promptly and maintenance costs as ordered by both two lower courts. On the other hand, the applicant while admitting his failure to pay school fees promptly, he replied that he has an obligation to pay school fees for the issues as a father. He, however wondered, the issues are in boarding school and the respondent is now married to another man, it will be prudent if he will deposit the maintenance costs in to the issue's personal account to avoid maintaining the respondent with her new husband. The respondent while admitting to 4

have been married after decree for divorce, she informed the Court that they share equal time they stay with issues by the applicant during vacation, while insisting on the payments of maintenance costs It is worth reminding the parties that the duty to maintain the issue of marriage by the parents is personal and cannot be delegated, more, so same is legal, continuous, and enforceable, it is not an option. Court of law jail defaulters and attach salary to ensure that children are fed, clothed and schooled. Before proceeding further, I have noted two undisputed facts, one; the issues of marriage subject to an order of custody are both are in boarding school, and two; the respondent exercising her rights, is now married to another person after divorce. Costs to maintain the issues is used during school vacations according to the applicant and the respondent they share equal time to stay with the issues during school vacation. It is prudent that the amount of maintenance cost be deposited into the issue's personal account monthly and the respondent to be given copy of deposit slip to ensure compliance. For interest of the issues of marriage the private arrangement between the applicant and the respondent is supported by this Court. I have no reason to interfere because issues of marriage needs both their parents love and affection for their wellbeing. The applicant and the 5

respondent should consider issues wellbeing first, rather than their personal interests and sentiments after divorce. On the balance of convenience, serve for the payments of School fees, and maintenance costs, pending the intended appeal, the decree in Civil Appeal No 22895 of 2024, dated 13 December 2024, is hereby stayed on the following conditions. The applicant to file an indemnity with the Court to guarantee maintenance of the status quo of the property subject for execution, within 30 days from the date of the ruling and serve the respondent the copy within seven days from the date thereof, to ensure compliance. Ordered accordingly. DATED at DAR ES SALAAM this 7th day of May, 2026. Ruling delivered this 12th day of May, 2026 in the presence of Mr. Daniel Yona, learned counsel for the appellant, in the presence of the respondent in person-unrepresented and Ms. Janekissa Bukuku, Court clerk; is hereby certified as a true copy of the original. Z. G. MURUKE JUSTICE OF APPEAL