June Allan Taylor & Another vs Melkiori Selengia Kinabo (Civil Application No. 290 of 2026) [2026] TZCA 482 (5 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 290 OF 2026 JUNE ALLAN TAYLOR .................................................. 1 st APPLICANT CATHERINE SELENGIA KINABO....................................... 2 nd APPLICANT VERSUS MELKIORI SELENGIA KINABO (Administrator Of the Estate of the Late Selengia Kinabo........ ..... . ................. RESPONDENT (Application for stay of execution of the Decree of the High Court of Tanzania at Moshi) (Simfukwe, J.) dated the 05th day of November, 2025 in Civil Appeal No. 8527 of 2025 RULING 23rd April & 5th May, 2026 ISSAr 3.A.: The applicants, June Allan Taylor and Catherine Selengia Kinabo were aggrieved by the decision of the District Land and Housing Tribunal for Moshi at Moshi (the DLHT) in Land Application No. 131 of 2020 which was delivered on 4th March, 2025. Hence, they appealed to the High Court of Tanzania at Moshi (the first appellate court) which delivered its decision on 5th November, 2025 in favour of the respondent. The 1s t appellate court sustained the decision of the DLHT which declared that, the house located

on Plot No. 29, Block E, Section III, L.O. 21115 at Selous Street within Moshi Municipality was part of the deceased estate in which the respondent herein was its administrator. Aggrieved with the said decision, on 15th December, 2025 the applicants lodged a notice of appeal. But the respondent, on the other hand, following the decision of the DLHT on 4th March, 2025 proceeded to execute the decree at the DLHT vide Execution Application No. 65 of 2025 which was filed on 22n d May, 2025. On 23rd May, 2025, the DLHT delivered the summons to the applicants through Mr. Edwin Jackson Tango, the learned advocate who represented the applicants. The hearing of the application was fixed on 3r d June, 2025. It seems the hearing did not proceed as fixed. The DLHT again summoned the applicants on 13th January, 2016through Mr. Benedict Pius, the current advocate of the applicants. The summons were received on 23r d January, 2026 whereas the hearing of the application for execution was fixed on 4th February, 2026. The applicants filed the instant application on 17th February, 2026 by way of Notice of Motion under rule 11 (4), 11 (5)(a),(b), (c) and (d) and rule 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules).

The application is supported by an affidavit sworn by Mr. Benedict Pius Chang'ambwe, learned advocate for the applicants. The application was heard via video conferencing link where the applicants were represented by Mr. Benedict Pius, learned advocate whereas the respondent had the services of Messrs. Richard Magaigwa and Joseph Peter, also learned advocates. Mr. Pius was the first to address the Court; he adopted the notice of motion and the affidavit supporting it. He submitted that the instant application is for stay of execution on the ground that the applicants are in danger of being evicted from the disputed house. He added that the applicants have already lodged their appeal to the Court and are ready to provide security for the due performance of the decree. The security they intended to furnish was the house in dispute which they committed themselves not to do anything on the said house until the appeal before the Court is determined. He fortified his argument by citing the Court's decision in Mohamed Masoud Abdalla and 16 Others v. Tanzania Road Haulage (1980) Ltd [2019] TZCA 198 where a bond to commit the status quo was allowed as security. He implored the Court that, since the matter involves relatives the Court should order the applicants' commitment. Further, Mr. Pius submitted that, they have complied with

rule 11 (4) of the Rules as they were served with the application for execution on 4th February, 2026 and they filed the instant application on 17th February, 2026. Mr. Magaigwa, on his part, also adopted the counter affidavit sworn by Mr. Joseph Peter, a co-counsel for the respondent. Mr. Magaigwa submitted that the respondent is opposing the application for two reasons. One, the application has contravened rule 11 (4) of the Rules. The execution proceedings were filed on 22n d May, 2025 and the applicants were summoned by the DLHT on the same day, but there was no application for stay which was filed. Again, on 23r d January, 2026, the applicants received another summons through Mr. Pius, the current advocate, but the application for stay of execution was filed on 17th February, 2025 which is out of 14 days allowed by rule 11 (4). Hence, the application is time barred and he prayed for the Court to dismiss it. He bolstered his argument by citing the Court's decision in Industrial Gases and Chemical Ltd and Others v. Azania Bank Ltd and Another [2024] TZCA 619. Two, Mr. Magaigwa submitted that the applicants did not undertake to provide security in the affidavit supporting the application. The question of security is seen on the notice of motion which is insufficient. He urged

the Court to disregard it. Finally, he prayed to the Court to dismiss the application with costs. In the short rejoinder, Mr. Pius admitted that the affidavit did not say anything about security, but he insisted that the law does not state the modality of where the security should be stated. On the issue contravention of rule 11 (4) of the Rules, he submitted that awareness goes with proper services. The earlier services were sent to the applicants' former advocate. He became aware on 4th February, 2026 as seen in the summons which he attached with the application. Further, he insisted that the application was filed on time and prayed that it should be granted. In the instant application, the Court has been called to determine the grant of stay of execution in general and what is at stake is the issues of whether the application was filed on time and whether security for the due performance of the decree has been provided. Before embarking on that task, it is prudent to state the law with respect to the application for stay of execution. Rule 11 of the Rules deals specifically with the stay of execution and the applicant is required to comply with sub-rule (3), (4), (5) and (7). Rule 11(3) of the Rules provides: (3) In any civil proceedings, where a notice of appeai has been lodged in accordance with Rule 8 3 an appeal shall not operate as a stay of

execution of the decree or order appealed from nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree or order; but the Single Justice may upon good cause shown , order stay execution of such decree or order" In numerous decisions of the Court, it has been held that for the Court to exercise its powers under rule 11 (3) there must be a valid notice of appeal which clothes the Court with jurisdiction to entertain the application. Further, rule 11(7) also provides that in the application for stay the application must be accompanied by a notice of appeal, a decree or order appealed from, a judgment or ruling appealed from, and a notice of the intended execution. In the absence of a valid notice of appeal and the decree or order sought to be appealed against, the application becomes incompetent and liable to be struck out. (See - Awinia Mushi v. Tropical Pesticides Research Institute, Civil Application No. 2 of 2006 and National Housing Corporation v. Ettienes Hotel, Civil Application No. 175 of 2004 (both unreported). In the present application, the applicant has complied with some of the rules. The application was accompanied by a notice of appeal, a decree, a judgment appealed from and a notice of the intended execution. The controversy raised by the learned counsel was in regard to when the

applicants were made aware of the intended execution. Rule 11 (4) provides: "An application for stay of execution shall be made within fourteen days of service of the notice of execution on the applicant by the executing officer or from the date he is otherwise made aware of the existence of an application for execution." The provision has been couched on mandatory terms that, the application should be made within fourteen days of service of the notice of execution on the applicant by the executing officer or from the date the applicant was made aware of the existence of the application for execution. In the instant application, the application for execution was filed by the respondent on 22n d May, 2025, but it is not clear whether the applicants were served or not and if they were served when they were served. But the records are very clear that the applicants were summoned to appear before the DLHT on 3r d June, 2025 for the hearing of the application for execution. The two summons were served on Mr. Edwin Jackson Tango, the learned advocate who represented the appellants, on 23r d May, 2025. This is a date when the applicants were made aware of the existence of the application for execution. It seems the hearing did not proceed on that day, hence, the DLHT on 13thJanuary, 2026 issued another summons calling the appellants to

appear for hearing of the application for execution on 4th February, 2026. The two summons were received by Mr. Benedict Pius on 23rd January, 2026. Therefore, we have no doubt in our mind that the 23rd May, 2025, as alluded to before, is the day that the appellants were made aware of the existence of the application for execution. Advocate Edwin Jackson Tango did not swear an affidavit denying receiving the summons. Therefore, in light of the fact that this application was filed on 17th February, 2026 which is 270 days from the date the applicants were made aware of the application for execution, the instant application is time- barred and it is hereby struck out. As parties are relatives there is no order as to costs. DATED at ARUSHA this 5th day of May, 2026. Ruling delivered this 5th day of May, 2026 via teleconferencing in the presence of Mr. Benedict Pius, learned counsel for the applicants and Mr. Joseph Peter, learned counsel for the respondent while Mr. Nelson Novati, Court Clerk appeared in person is hereby certified as a true copy of the original. A. A. ISSA JUSTICE OF APPEAL J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL