Zahra Jama Abdlrahaman vs Abdulazizi Mohamed (Civil Application No. 0486 of 2026) [2026] TZCA 306 (12 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 0486 OF 2026 ZAHRA JAMA ABDLRAHAMAN ....... . ................................... —■ APPLICANT VERSUS ABDULAZIZI MOHAMED.....................................................RESPONDENT (Application for stay of execution of the Judgment and decree of the High Court of Tanzania at Arusha) TNdumbaro. J .~ ) dated 24th day of December, 2025 in PC Probate Appeal No. 19952 of 2025 RULING W h February & 12thMarch, 2026 ISMAIL, J.A.: The matter from which this application stemmed began as a petition for probate for administration of the estate of the late Zahra Warsame Noor (the deceased), who died testate on 4th September, 2016. It was commenced as Probate Cause No. 226 of 2016, instituted in the Primary Court of Arusha at Arusha Urban. The court placed the deceased's estate in the hands of Zainab Mohamed Adan, an executor of the will. An inventory of the estate was filed in 2017, but the contention by the respondent is that the executor died before she filed final accounts and distribution of the estate to beneficiaries.

In 2024, the respondent, who believed that the estate had not been fully administered, filed yet another petition (Probate Cause No. 166 of 2024). The petition was granted as the court was convinced that there was no evidence to show that, Zainab Mohamed Adan, who has since passed away, fully discharged her responsibilities. This decision was unsuccessfully challenged through an appeal to the District Court. Further appeal to the High Court fell through. The High Court was convinced that the filing of inventory and accounts of the estate did not mark the formal closure of duties of an administrator of the estate. It reasoned that the probate proceedings could still be re-opened as the trial court did through Probate Cause No. 166 of 2024. The applicant still feels that justice has not been dispensed. She has shown her intention to challenge the decision and a notice of appeal has been instituted. While awaiting determination of the impending appeal, the applicant has preferred the instant application, seeking to stay execution of the decision of the lower courts. In the affidavit in support of the application, the applicant has, besides averring that she has complied with the requirements set out under rule 11 of the Tanzania Court of Appeal Rules, 2009 (the Rules), stated that status quo will be altered if the respondent is left to interfere

with the management of the estate. Such interference, she asserts, will present difficulty or impossibility in restoring the estate to its previous position if the appeal succeeds. This is what she considers to be an irreparable loss which, if not forestalled, will render the intended appeal nugatory. She has expressed her readiness to furnish security for the due performance of the decree. The affidavit in reply, filed alongside the notice of preliminary objection, has refuted the averments raised by the applicant. The assertion by the respondent is that, in the absence of any intention to execute the decree, the instant application is a mere wasted effort that should fall through. On irreparable loss, the argument is that it is the respondent and beneficiaries who stand to suffer if rental proceeds fall in the hands of a stranger. At the hearing before me, the applicant was represented by M r. Ombeni Kimaro, learned counsel. Her adversary enjoyed the services of M r. Richard Massawe, learned advocate. Getting us under way was Mr. Massawe, whose three-ground- notice of preliminary objections challenged the competence of the application. He argued that the objections raise an important point of jurisdiction of this Court to entertain the application. He contended that

the decree, the execution of which is sought to be stayed, was essentially a dismissal of the appeal for want of merit. Mr. Massawe's take is that the decree was non-executable and, therefore, incapable of being stayed. He was of the contention that, in view thereof, the Court lacks powers to issue orders sought by the applicant. To buttress his contention, Mr. Massawe referred me to the decisions in Ian A. Moshi & 2 Others v. Jehangir Aziz Abdulrasul [2025] TZCA 1265 (pp. 7-8, 10-11); and Bashasha Merchandise Dealers Limited & Another v. Equity Bank Tanzania Limited & 2 Others The learned counsel submitted that the respondent has not filed any application for execution before any court, including the executing court, knowing that no court can stay a non-executable decree. He prayed that the application be dismissed. M r. Kimaro was not convinced. His contention was that the decree is executable as he believed that what the applicant is contesting in the impending appeal can still be carried out by the respondent. Drawing the instant application's distinction from the Ian A. Moshi case (supra), the learned counsel contended that, what was said to be incapable of being executed was the ruling in an application for lifting the veil of incorporation. He argued that, in the instant case, there are still further

orders such as filing of inventory and accounts which are pending. These, he said, are executable and may be stayed. Regarding the decision in Bashasha Merchandise Dealers Limited (supra), M r. Kimaro was also of the contention that, that too, was distinguishable as the Court went ahead and maintained the status quo despite holding that the order was not executable. He maintained that jurisdiction of the Court is catered for under rule 11 (7) of the Rules which requires that a notice of intended execution must also accompany the application. He argued that Annexure A3 is such notice and that the Court is properly seized with jurisdiction. In rejoinder, Mr. Massawe was insistent that the decision of the High Court did not change the nature of the appeal or turn the decision into an executable decree or order. He maintained that the application is incompetent. I will first deal with the question of competence or jurisdiction of the Court to grant a stay order. It is common knowledge, that the discretionary powers of the Court to entertain and determine applications for stay of execution are vested in it by rule 11 (3) of the Rules, read along with other sub-rules, including sub-rules (4), (5) and

(7). Sub-rule (7) provides a list of documents which must accompany an application for stay of execution. While sub-rule (7) contains a checklist that factors in a decree or order appealed from, the question that has drawn the counsel's divergent positions is whether the decree by the High Court is executable. This is significant owing to the fact that, the settled legal principle is that, the Court's discretion under sub-rule (3) is only exercisable where, besides all other factors, the decree ororder is capable of being executed. We have accentuated this postulation on numerous occasions - see, for instance: Patel Trading Co (1961) Limited and Another v. Bakari Omary Wema t/a Sisi kwa Sisi Panel Beating Enterprises Ltd [2015] TZCA 880; Athanas Albert & 4 Others v. Tumaini University College, Iringa [2001] T.L.R. 63; and Ian A. Moshi & 2 Others v. Jehangir Aziz Abdulrasul (supra). Crucially, in Chitegetse Monica Migembe v. Akiba Commercial Bank Pic [2024] TZCA 947, this Court posited as follows: "The cumulative effect of the foregoing is that, the Court has not been properly moved to exercise its discretion under rule 11 (3) o f the Rules because there is neither a decree capable o f being executed nor is there any notice of

execution or an intended one issued by the executing officer warranting the lodging of the application for stay of execution. Luckily, in Athanas Albert & 4 Others v. Tumaini University College, Iringa [2001] T.L.R. 63 the Court pronounced itself for the principle that an order for stay o f execution cannot be made in the absence of a court order commanding or directing the applicant to do something that affects him. Truly the auctioneer's notice to the applicant commands her to make good the default lest her property is sold. That notice may, on the face of it be prejudicial to the applicant But her remedy against it does not He in applying for stay o f execution because the notice is not a notice o f execution of decree appealed from to warrant exercise o f power under rule 11 (3) o f the Rules. The fact that the applicant appears to have met the conditions under rule 11 (5) o f the Rules does not automatically guarantee her with the order sought There must be an executable decree in the first place followed by a notice o f execution or knowledge o f its existence before an application can be made to the Coi/rfc,.. "[Emphasis added]

Glancing through the decree attached to the application, it is discernible that the same is an extract of the ruling of the High Court in which a trio of pronouncements was made. One, it overruled the preliminary objections which were raised by the respondent, questioning the competence of the appeal. Two, having considered the merits of the appeal, the court took the view that the same is barren of fruit and it dismissed it. Three, parties were ordered to bear their own costs. As Mr. Massawe contended, rightly so in my view, the decree would be said to be executable if it allowed the decree holder, in this case the respondent, to realize the fruits of the litigation, in the form of receiving money, property, or specific performance. Such decree would be said to be enforceable in the decree holder's favour. I am not convinced, one bit, by M r. Kimaro's contention that the decree in question, which is essentially a dismissal decree, is in the mould of decrees that can be stayed through the application before me. There is simply no order commanding or directing the applicant to do something that affects her. The clear import here is that, fulfilment of the conditions set out in rule 11 (5) and (7) of the Rules would be of no consequence. It would not confer any guarantee that a stay order would issue. Thus, in Patel Trading Co (1961) Limited (supra), a prayer for 8

stay of execution was declined for non-executability of the decision sought to be appealed from. The Court held as follows: "On our part, we agree with the learned counsel that the decision of the High court was not capable o f being executed because it was merely a dismissal. On the basis of the dismissal order of the High court, the parties' positions reverted to the same status quo as they were before the appeal." It is in view of the foregoing that I find the arguments by M r. Massawe resonating and sound. I, therefore, sustain the preliminary objection and hold that the application is incompetently before me. Accordingly, I strike it out. No order as to costs. It is so ordered. DATED at DODOMA this 12th day of March, 2026. M. K. ISMAIL JUSTICE OF APPEAL Ruling delivered this 12th day of March, 2026 in presence of Mr. Ombeni Kimaro, learned counsel for the Applicant, Mr. Richard Massawe, learned counsel for the Respondent via virtual court, and Mr. Shabani Kanyai, Court Clerk, is hereby certified as a true copy of the original.