Mashaka Harifa Kimolo & Another vs Narsis Fredrick Mrema (Civil Application No. 202503170000560 of 2025) [2026] TZCA 428 (22 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 202503170000560 OF 2025 MASHAKA HARIFA KIMOLO ................ ........................... 1 st APPLICANT DR. CONSTANTINE MTUTWA .......................................... 2 nd APPLICANT VERSUS NARSIS FREDRICK MREMA (Suing as Administrator of the Estate of the Late FREDRICK TENGA MREMA).............RESPONDENT (Application for stay of execution of the Judgment and decree of the Misc. Application No. 248/2023 of the District Land and Housing Tribunal for llala at Ardhi House- Kivukoni delivered by Honorable M. Mgulambwa, Chairperson on 27.2.2025 and arising from Judgment and Decree of the High Court of Tanzania (Land Division) at Dar es salaam) (MsafirL_J.) dated the 28th day of February, 2024 in Land Appeal No. 384 of 2023 RULING 2 Jd February, & 22ndApril, 2026 MGONYA. J.A.: This is an application for a stay of execution of the decree issued by the District Land and Housing Tribunal (DLHT) for llala at Ardhi House-Kivukoni delivered on 27th February 2025, as confirmed by the order of the High Court of Tanzania (Land Division) at Dar es Salaam, i

pending the determination of the applicant's intended appeal to this Court. The application is by way of a notice of motion which was preferred under rules 11 (3), 11 (4), 11 (4A), 11 (5) (a & b), 11 (6), 11 (7) (a), (b), (c) and (d) of the Tanzania Court of Appeal Rules, 2009 (The Rules). The notice of motion is supported by the joint affidavit sworn by the applicants. The substance of the application may be paraphrased into one ground that;

1. The applicants are likely to suffer substantial and irreparable loss if execution is not stayed, as the 2** applicant is living in the disputed premises with his family. On the other hand, the respondent vehemently objected to the application by filing an affidavit in reply, sworn by himself. Shortly before the commencement of the hearing, the Court was served with a notice of preliminary objection to the effect that the application is hopelessly time barred as per rule 11(4) of the Rules, and that the application has been overtaken by event. At the hearing of this application, the applicants had the legal services of Mr. Wilson Ogunde, learned counsel, while Ms. Catherine

Lyasenga, learned counsel, appeared for the respondent. As it has been the practice that once either party raised a preliminary objection, the same has to be determined first, the counsel for the parties were invited to argue on the respondent's preliminary objection. Addressing the preliminary objection Ms. Lyasenga prefaced his argument by referring us to rule 11(4) of the Rules, and she contended that the application was filed in contravention of that rule. She argued that, the application for execution was filed on 15th September, 2023, before the DLHT. The applicants were served with a notice for execution on the same date. That on 27th February 2025, the application for execution was granted in the presence of the 1s t applicant. Moreso, she contended that, on 4th April 2025, the court broker executed the decree and handed over the property to the respondent. Therefore, in her view, the application by the applicants, which was filed on 17th March 2025 and served on 8th April 2015, while the application for execution was filed on 15th September 2023, was made out of time contrary to rule 11(4) of the Rules, which provides for a 14-day time limit. Based on her submission, the learned counsel urged us to struck out the application.

In reply, Mr. Ogunde at the outset prayed the Court to overrule the preliminary objection. He argued that the assertion by the respondent's counsel that the applicants became aware of the execution on 15th September 2023 is not correct. The learned counsel submitted that on the alleged date, the parties were before the High Court for Land Appeal No. 384 of 2023, which was before Hon. Msafiri. The High Court decision was delivered on 28th February 2024. Further, Mr. Ogunde stated that, what prompted the instant application was the decision of the High Court in Land Appeal No. 384 of 2023 dated 28th February 2024, which was against the applicants. From that decision, the applicants lodged a notice of appeal, which was a precondition to fifing the application for stay of execution. By referring us to paragraph 9 of the joint affidavit of the applicants, Mr. Ogunde submitted that the Notice of Execution was served to the applicants on 11th March 2025, by a court broker. The electronic application was filed on 14th March, 2025, and the service was done on 17th March 2025. That counting from 11th March 2025, when the broker served the applicants with a notice of execution, the instant application to stay the execution was made within time pursuant to rule 11(4) of the Rules. 4

Mr. Ogunde implored us to disregard the respondent's counsel’s argument that the applicants were aware of the execution on 15th September,2023, because during that time the appeal was still pending before the High Court. Premising on his submission, he beseeched us to overrule the preliminary objection. In his rejoinder, Ms. Lyasenga insisted that the application was filed out of time. Having carefully examined the affidavits, the parties' rival arguments, and the record, the main issue for determination at this juncture is whether the preliminary objection has merit. It is a trite law that the application for stay of execution is competent when filed within the time prescribed by rule 11(4) of the Rules. That Rule provides verbatim: "An application for stay o f execution shall be made within fourteen days o f service o f the notice o f execution on the applicant by the executing officer or from the date he is otherwise made aware o f the existence o f an application for execution". This position has been consistently affirmed by this Court in several decisions, including Industrial Gases & Chemicals Ltd & 5

Others v. AZANIA Bank Limited & Another (Civil Application No. 886/08 of 2023) [2024] TZCA 619, Attorney General v.Electrics International Company Limited & Another (Civil Application No. 489/16 of 2022) [2023] TZCA 17758, and Michael Martin Kabengwe v. Farida Yusuf Omari & Another (Civil Application No. 1161 of 2024) [2024] TZCA 1141. In the latter case, it was held that: "The main spirit o f the above provision is that an appiication for stay o f execution shouid be made within 14 days from the service o f notice o f execution or from the date the appiicant has been made aware o f the existence o f an application for execution." In the instant application, having examined the record of this application, I have noted that the decree subject to the intended execution provides for one, the handing over of the suit property, two, the payment of TZS. 10,000,000/= by the applicants. As rightly argued by the respondent's counsel, the DLHT has already executed the handing over of the suit property vide a court broker, one Dennesto Company Limited, who reported to evict the applicants and handed the property to the respondent on 4th April, 2025. What was still pending was the payment of the decreed amount, which prompted the issuance

of a new execution notice dated 7th March 2025, where the applicants are required to pay TZS 11,000,000/= within 14 days. It is on record that the applicants received the notice on 11th March 2025, and thereafter, on 17th March 2025, they lodged an application for stay of the intended execution before the Court of Appeal. The nagging question at this juncture is which notice, between the one issued on 15th September 2023 and the one issued on 11th March 2025, is relevant to serve as a timeline in this application. It is on record that the decree subject to execution was delivered on 14th August, 2023, in favour of the respondent. Consequently, on 15th September 2023, the respondent lodged an application No. 248 of 2023 for execution of the decree, and on the same date issued a notice of execution to the applicants. However, the hearing of the application was stayed pending the determination of the appeal No. 384 of 2023, which was filed before the High Court by the applicants. Unfortunately, the High Court decision was not in their favour, hence the matter was returned to the DLHT, and the execution proceedings ensued. The application for execution was granted on 27th February, 2025, and the DLHT appointed the court broker. The execution process proceeded, whereby the court broker managed to evict the applicants from the suit 7

property, which was the first timb of the decree, but the payment of the decreed amount was yet. Hence, the new notice was served to the applicants on 11th March, 2025, requiring payment of TZS 11,000,000/= within 14 days. This is the notice that triggered the current execution drive for the monetary portion of the decree. Having those facts in my mind, I disagree with the respondent's counsel's averment that the original notice of execution, which was issued on 15th September 2023, is relevant. In my firm view, a notice of execution which was served to the applicants on 11th March 2025 is relevant to the current application, and the same may serve as a timeline in this application. The latter notice of execution actually threatens the applicants and triggered the filing of the instant application directed at preventing execution of the outstanding monetary decree pending determination of the intended appeal to this Court. Thus, counting from 11th March 2025 to 17th March 2025, it is only six days comfortably inside the 14-day window. Regarding the point that the application is overtaken by event, as alluded to above, the decree subject to this appeal has two limbs; the partial execution of the decree by handing over the suit land, in my view, does not render the stay application overtaken by events.

Likewise, the fact that one limb has already been carried out does not extinguish the Court's jurisdiction to determine the application on merit. In the result, the objection fails on both grounds and is hereby dismissed with costs. The application for stay of execution shall be heard on its merits on a date to be fixed by the Registrar. It is so ordered. DATED at DODOMA this 13th day of April, 2026. Ruling delivered virtually this 22n d day of April, 2026 in the presence of Mr. Wilson Ogunde, learned counsel for the Applicants, also holding brief of Ms. Catherine Asenga, learned counsel for the respondent and Mr. Shaban Kanyai, Court Clerk; is hereby certified as a true L. E. MGONYA JUSTICE OF APPEAL M W. A HAMZA W J DEPUTY REGISTRAR jr COURT OF APPEAL 9