Judith Dominic Kihampa vs KCB Bank Tanzania and Others (Civil Application No. 554 of 2026) [2026] TZCA 494 (5 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 554 OF 2026 JUDITH DOMINIC KIHAMPA .................................................. APPLICANT VERSUS KCB BANK TANZANIA......................................................1ST RESPONDENT ROADMIX TANZANIA LIMITED ....................................... 2 nd RESPONDENT WALLECY MOHAMED BROWN ......................................... 3 rd RESPONDENT LOCUS DEBT MANAGEMENT LTD..................................... 4™ RESPONDENT [Application for interim injunctive order from the decision of the High Court of Tanzania, Land Division at Dar es Salaam] (Maruma. J.^ Dated 31s t day of December, 2025 in Land Case No. 15966 of 2024 RULING 22nd April & 5th May, 2026 N6WEMBE. J.A.: This ruling emanates from the application lodged by the applicant to the Court under rule 4 (2)(a) and (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicant prayed for interim injunctive order to restrain the respondents from auctioning the suit property situated in CT No. 179808, L.O. No. 920497, Plot No. 1748 Block A, Kinyerezi Area, within Ilala Municipality in the Region and City of Dar es Salaam pending final determination of the appeal filed in the Court. The application was supported with an affidavit sworn by the applicant. The applicant identified as a wife of Mr. Wallecy Mohamed l Brown, the 3rd respondent herein. In her affidavit, she gave a brief background and the essence of the present application. She explained that she sued the respondents after having learnt that the 1s t respondent intended to sale the said property which is a matrimonial asset. The main Land Case 15966 of 2024, before the High Court was dismissed with costs. The dismissal aggrieved the applicant; hence she duly took essential steps by instituting a Civil Appeal No. 256 of 2026 to the Court. While the appeal is still pending before the Court, the respondents initiated the process of execution by selling that property in a public auction. She further alleged in her affidavit that on 16/03/2026 the 4th respondent published a notice of auction of the said property in Zanzibar Leo Newspapers. Following that advertisement, the applicant was worried that in the absence of a temporary injunction, the auction of the said property may proceed and she will suffer irreparable loss should the property be sold prior to the final determination of the pending appeal to the Court. In turn the 1s t respondent filed affidavit in reply through M r. Conrad Simon Lushakuzi, identified as a Principal Officer of KCB Bank Tanzania. In that affidavit, he narrated a background of the dispute and that the said auction has been contemplated after the 2n d respondent defaulted to repay the loan which was secured by the said property. Also, that the applicant consented to the mortgage deed, hence she cannot suffer any loss, instead the 1s t respondent's monies secured by the said property may not be recovered. At the hearing, Mr Fredrick Ododa, learned advocate entered appearance for the applicant and Mr. Emmanuel Machibya, learned advocate represented the 2n d and 3rd respondent, while the 1s t and 4th respondents were represented by Mr. Erick Kanga, learned advocate. Mr. Ododa in his oral account adopted his affidavit in support to the application and reiterated its contents. He pointed out that the intention of the applicant was to furnish security, but he quickly admitted that until the time of filing this application, the applicant did not manage to secure reliable security and she did not state it in her affidavit as required by law. In submitting for the 1s t and 4th respondents, Mr. Kanga argued that the dispute between the parties originates from a mortgage loan which, according to him, is not subject to the instant application. He argued further that, the application is not supported by any law. He cited the decisions of the Court in Gazelle Tracker Limited v. Tanzania Petroleum Development Corporation (Civil Application No. 15 of 2006) [2006] TZCA 290 (10 March 2006) and Hyasinta Elias Malisa v. The Ministry of Land, Housing & Human Settlements Development & Others (Civil Application No. 614/17 of 2021) [2023] TZCA 17752 (11 October 2023). In the two cases above, the Court desisted from granting similar applications like in the instant matter. He argued further that, the application should also be struck out for failure to provide security. In the circumstances, he implored the Court to strike out the application with costs. Mr. Machibya admitted that his clients did not file affidavit in reply, hence he had a brief reply on points of law. He pointed that failure to provide security, the Court cannot grant the prayed reliefs. Hence, the application is prone to be struck out. I have dispassionately considered the arguments of learned counsel and I have perused the contents of the record of this application, I find in order to determine conclusively this application, two legal issues are inevitable: one whether the present application is proper in law; and two, whether the application has merit. In addressing the first issue, the decisive question on this application is whether the Court can be properly moved to issue temporary/interim injunction under rule 4 (1) (2) of the Rules. The said provisions are reproduced hereunder: "4.-(l) The practice and procedure of the Court in connection with appeals, intended appeals and revisions from the High Court, and the practice and procedure o f the Court in relation to review and reference; and the practice and procedure o f the High Court and tribunals in connection with appeals to the Court shall be as prescribed in these Rules or any other written law, but the Court may at any time, direct a departure from these Rules in any case in which this is required in the interests ofjustice. (2) Where it is necessary to make an order for the purposes of- (a) dealing with any matter for which no provision is made by these Rules or any other written law; (b) better meeting the ends o f justice; or (c) preventing an abuse o f the process o f the Court, the Court may, on application or on its own motion, give directions as to the procedure to be adopted or make any other order which it considers necessary." (Emphasis provided) The contents of the above provisions are that the Court may give directions as to the procedure to be adopted or make any other order which it considers necessary for the purpose of dealing with matters for which there is no established procedure and for the ends of justice. The main theme is giving direction as to the procedure to be followed. All the above does not show that the Court, for the purpose of rule 4 (2) (a) and (b), can issue injunctive orders. In akin situation, in the cases of Hyasinta Elias Malisa v. The Ministry of Land, Housing & Human Settlements Development & Others (supra) and Gazelle Tracker Limited v. Tanzania Petroleum Development Corporation (supra), the Court held that it has no jurisdiction to issue injunctive orders as prayed by the applicant. See also; Maginga Business Holding Company Limited Others v. CRDB Bank Pic (Civil Application No 1273 of 2024) 2024 TZCA 1309 (2 December 2024) and Prada Enterprises Co. Limited v. Joyce Alex Khalid & Others (Civil Application No. 279/01 of 2020) [2023] TZCA 17468 (3 August 2023). In the latter case, the Court observed inter alia that: "This Court does not have powers to issue such injunctive orders in view o f what we have discussed above and, therefore the relief sought is misplaced. In circumstances, the proper cause o f action was to seek for an order for stay of execution had there been an executable decree." In all the above cases, the Court declined to grant an injunctive order under rule 4 (1) (2) and (3) of the Rules. The Court strongly maintained that it lacked jurisdiction to issue the prayed order in this application. Injunctive orders are exclusively preserved to the trial court 6 to prohibit either party from doing certain acts relevant to the pending case before it, while the Court has exclusive jurisdiction under rule 11 of the Rules to issue Stay of Execution if properly presented before it. The record of application indicates vividly that the applicant does not seek for stay of execution but an interim injunctive order. The law as it is, such application is misplaced. Based on the stance of this Court in the above cited cases, in akin situation, the Court proceeded to strike out the application before it for being incompetent or misplaced. For the reasons so stated, this application is misplaced and I proceed to strike it out with costs. DATED at DAR ES SALAAM this 4th day of May, 2026. P. 3. NGWEMBE JUSTICE OF APPEAL Ruling delivered this 5th day of May, 2026 in the presence of M r. Fredric Udoda, learned counsel for the Appellant, Mr. Erick Kanga, learned counsel for the 1s t and 4th Respondents and Mr. Fidelis Choka, Court clerk, is hereby certified as a true copy of the original. 7