Abdallah Khalid vs Mildred Benevet Lyimo and Another (Civil Application No. 2279 of 2025) [2026] TZCA 338 (19 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAM CIVIL APPLICATION NO. 2279 OF 2025 ABDALLAH KHALID ................. ....................... . ................................APPLICANT VERSUS MILDRED BENEVET LYIMO.................... ......... ................. .....1 st RESPONDENT PHARES LAMECK KINYAMA ........ ...... ................................... 2 nd RESPONDENT (Application for Stay of Execution of the decree of the High Court of Tanzania (Land Division) at Dar es salaam) fMweneaoha, 3.^ dated the 24th day of April, 2023 in Land Case No. 59 of 2022 RULING 2n d & 19th March, 2026 RUMANYIKA. J.A.: This application was preceded by an exparte order of stay dated 12/02/2026, pending hearing of the application interpartes, and, of course pending determination of the intended appeal. As such, the application seeks a stay of execution of decree of the High Court of Tanzania, Land Division at Dar es Salaam, that was handed down on 24th April 2023 in Land Case No. 59 of 2022, pending hearing and determination of an intended appeal. The application is brought under Rules 11(3), (4), (4a), (5), (6) and (7)(a)

• (d) and of the Tanzania Court of Appeal Rules, 2009, ("the Rules"). It is i

predicated on a Notice of Motion supported by an affidavit affirmed by the applicant, Abdallah Khalid, and opposed by an affidavit in reply, sworn by the 1st respondent, Mildred Benevet Lyimo. The 2n d respondent did not file any affidavit in reply to oppose the application. All began with the applicant who purchased a house on Plot No. 150, Ada Estate, Kinondoni District -Dar es Salaam, with Title Number 100265 (the suit premises) from the 2n d respondent. The respective sale agreement was executed by the parties on 25th November, 2011. However, the 1s t respondent, who is the 2n d respondent's wife, instituted Land Case No. 59 of 2022 before the High Court of Tanzania at Dar es Salaam (the trial court), seeking, inter alia, a declaration order that the sale agreement was null and void, for lack of spousal consent. In its judgment on 24th April 2023, the trial court annulled the sale agreement and ordered the applicant to vacate the suit premises. Dissatisfied with that decision, the applicant lodged Notice of Appeal (annexure- AK-3 to the supporting affidavit). Nonetheless, before the intended appeal could be determined, the 1s t respondent initiated the execution proceedings vide Execution No. 26780 of 2023, with a view to enforcing the impugned decree by eviction order. It is the impending execution of the decree that has necessitated the filing of the present application. As can be discerned from the Notice of Motion and the supporting affidavit, the grounds advanced in support of the application are four-fold:

first, that if eviction is carried out, the intended appeal will be rendered nugatory; second, that the intended appeal raises serious issues, with prima facie likelihood of success; third, that the applicant stands to suffer substantial loss and; fourth, that the applicant is willing and ready to furnish security for the due performance of the decree. On the scheduled hearing of the application, at Mbeya, the parties were virtually connected. The applicant and 1st respondent were represented by Messrs. Seni Malimi and Jamhuri Johnson, learned counsel, respectively. Ms. Stella Simkoko, learned counsel represented the 2n d respondent. At the very outset, Ms. Simkoko, supported the application outright. In addressing the Court on the merit of the application, Mr. Malimi adopted the Notice of Motion and the supporting affidavit. He also adopted the written submissions filed on 13th January 2026 as part of his oral submissions. He contended that should the application be refused, the applicant who currently resides on the suit premises would be rendered homeless, rendering the intended appeal nugatory. It was further contended that, a careful reading of the impugned judgment reveals some serious issues arising from the respondents' marital relationship, likely to cause irreparable loss on the applicant, should the execution proceed. Additionally, Mr. Malimi argued that the trial court lacked jurisdiction, rendering the decision fundamentally flawed. He further submitted that the applicant is willing to

furnish such security for the due performance of the decree as the Court may deem fit to order. In conclusion, Mr. Maiimi stressed that the applicant has fulfilled all the conditions requisite for the grant of a stay of execution. In buttressing his submissions, he placed reliance on our decision in North Mara Gold Mine Limited v. Modesta Mahando Matiko & Others (Civil Application No. 202512050002434 of 2025) [2026] TZCA 165. Having adopted the 1s t respondent's affidavit in reply, Mr. Johnson submitted that, pursuant to Rule 1l(5)(a) of the rules, the applicant bears the burden of demonstrating substantia! loss as a precondition for the grant of the relief sought He contended that the present applicant had not satisfied this condition. He urged me to dismiss the application for being unmerited. At this stage, it is apposite to reiterate our previous stance, on the conditions governing the grant of an order for stay of execution. Needless to say, an application of this nature seeks an extraordinary remedy. As such, it is granted where the applicant has demonstrated cumulative compliance with all the requirements under rule 11 of the Rules. Apparently, rule 11(4) of the Rules requires that the application be lodged within fourteen days from the date of service of the respective notice of the intended execution or from the date one becomes aware of it. Rule

ll(5)(a) of the Rules further requires the applicant to demonstrate that substantial loss may result unless the order for stay is granted. Rule ll(5)(b) obliges for the applicant's firm undertaking to furnish security for the due performance of the decree or order as may ultimately be binding upon him. Moreover, Rule ll(7)(a)- (d) of the Rules stipulates that the application must be accompanied by copies of notice of the intended appeal, the decree or order appealed from, the judgment or ruling appealed against, and the notice of intended execution. I have carefully examined the Notice of Motion, the supporting affidavit together with the annexures thereto and the applicant's written submissions. I have also considered oral submissions of the first respondent's learned counsel. In light of the settled legal principles governing applications of this nature, as hinted above, the central issue that arises for my determination is straight away. It is whether the applicant has cumulatively satisfied the conditions stipulated under Rule 11 of the Rules, so as to justify the exercise of this Court's discretion in his favor. For the purposes of timing, it is undisputed that, initially, the applicant was late in filing the application. However, paragraph 8 of the supporting affidavit indicates that this Court granted him an extension of time of thirty (30) days to file the application, pursuant to an order dated 15th October 2025

(Annexure AK5), which was complied fully. Also worth noting is that, copies of all the requisite documents were duly attached to the application (Annexures AK1 &2, AK3 and AK4), thus satisfying the requirement under Rule ll(7)(a), (b), (c) and (d) of the Rules. Further, pursuant to rule ll(5)(a) of the Rules, the applicant averred, under paragraph 10 of the supporting affidavit and as further elaborated in the written submissions, that he stands to suffer irreparable loss, should the impugned decree be executed now. The applicant, presently may have been residing in the suit premises since way back in the year 2011, as alleged.That, in those circumstances, execution would occasion his immediate displacement from the premises he has occupied for over a decade, undisturbed, but rendered homeless. Such disruption, in my considered view, constitutes substantial loss (within the context of rule ll(5)(a) of the Rules). As such, it is such a loss which cannot be compensated in monetary terms, in consonant with our pronouncement in Geriod Francis Tairo v. Jumanne S. Kitila & Another (Civil Application 254 of 2019) [2020] TZCA 1843. Applying the principle above to the present case, therefore, eviction of the applicant, at this stage would render the intended appeal nugatory, frustrate the exercise of appellate rights, and cause inconveniences and harm that cannot be adequately compensated. Therefore, the requirement of demonstrating substantial loss has been adequately met.

More significantly, it is the requirement of firm undertaking to furnish security, as required under Rule ll(5)(b) of the Rules. Too, this has been satisfied. For clarity, under paragraph 11 of the founding affidavit the applicant averred / "...I undertake to give security for the due performance o f the decree o f the trial court as may ultimately be binding on me". Notably, this requirement is of double impact; One, the Judgment debtor is guaranteed of the right to exhaust the appellate hierarchy and; two, the decree holder will comfortably wait to finally enjoy the fruit of his decree. In the upshot of it all, after considering all relevant factors, I am confident that the applicant has cumulatively met the requirements under Rule 11 of the Rules. Accordingly, the application is granted. For avoidance of doubt, therefore, execution of the decree of the High Court of Tanzania, Land Division at Dar es Salaam, in Land Case No. 59 of 2022 dated 24/04/2023 is hereby stayed pending the hearing and determination of the intended appeal. However, the stay is granted subject to the following conditions: (i) The applicant shall present in Court a Bank Guarantee by any reputable Commercial Bank in the sum of TZS. 350,000,000.00 within sixty (60) days from the date of this ruling;

(jj)The applicant shall, within fourteen (14) days from the date hereof, execute and file a written bond undertaking to maintain the status quo of the suit premises; (iii) In default of strict compliance with these conditions within the stipulated time, the order of stay shall automatically lapse, whereby the 1st respondent shall be at liberty to proceed with execution, without further notice. No order is made as to costs. DATED at DODOMA this 19th day of March, 2026. The Ruling delivered this 19th day of March, 2026 in the presence of Mr. Tarzan Mwaiteleke, learned counsel for the applicant, Ms. Fatuma Mlonja, holding brief for Mr. Jamhuri Johnson learned counsel for the 1s t respondent in the absence of the 2n d respondent, through Virtual Court and Mr. John Gervas, Court Clerk, is hereby certified as a true copy of the original. S. M. RUMANYIKA JUSTICE OF APPEAL