Ahmed Mohamed Chwaya vs Sarah Lukindo Kimbembe (Civil Application No. 29592 of 2025) [2026] TZCA 273 (10 March 2026)
Judgment
IN THE COURT OF APPEAL OF TANZANIA ATARUSHA CIVIL APPLICATION NO. 29592 OF 2025 AHMED MOHAMED CHWAYA ...................................................................... APPUCANT VERSUS SARAH LUKINDO KIMBEMBE ................................................................. RESPONDENT (Application for stay of execution of the decree of the Resident Magistrate Court At Kisutu) (Moyo, SRM Ext Jur) Dated 28 th October, 2025 in Civil Appeal No, 23673 of 2024 RUUNG 2[Jh February & 1[Jh March/ 2026 NGWEMBE, J.: This application is for stay of execution of the decree of the Resident Magistrate's Court of Dar es Salaam at Kisutu in Small Claims No. 238 of 2023, dated 07 th August, 2024. The applicant moved the Court by way of a notice of motion under rule 11 (3), (4) (4A) (5) (6) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules), supported by an affidavit sworn by Mr. Michael Million Kariwa, learned advocate for the applicant. Briefly, the background of this matter as per the affidavit of the applicant shows that the dispute between the parties emanates from a sale of Plot No. 117 Block A allocated at Sinza Dar es Salaam. Thereafter a dispute arose and the respondent herein sued the applicant on small Claims Case No. 238 of 2023 in which she was decreed at TShs. 105,000,000/=. 1
The first appeal was unsuccessful and the respondent initiated the execution proceedings before the Resident Magistrate's Court which ended in her favour. On 11/12/2025 a warrant of attachment was issued by the trial court and a 14 days' notice to settle the decretal amount was issued. Consequently, the instant application for stay of execution which was lodged on 24th December, 2025. However, the application is encountered by a preliminary objection from the respondent on the following grounds:
- That the application is time barred as it contravenes Rule 11 (4) o f the Tanzania Court o fAppeal rules, 2019.
- The application for stay o f execution is incompetent for violating Rules 11 (7) o f the Tanzania Court o fAppeal Rules, 2019.
- The application has been overtaken by event in so far as execution has already been issued as it is now in implementation stage. On the hearing date, Mr. Frank Kilian, learned advocate entered appearance for the applicant, while Mr. Luciu Peter, learned advocate represented the respondent. At the onset, both counsel agreed that the Court should dispose of the preliminary grounds of objection for obvious reasons of saving time and resources as was decided in many cases including, Shahida Abdul Hassanali Kassam v. Mahedi Mohammed Gulamali Kanji (Civil Application No. 42 of 1999) [2000] TZCA 76 (5 July 2000); The Bank of Tanzania v. Devram P. Valambhia (Civil Application No. 15 of 2002) [2002] TZCA 67 (27 March 2002) and Thabit 2
Ramadhan Maziku & Another v. Amina Khamis Tyela & Another (Civil Appeal No. 98 of 2011) [2011] TZCA 223 (7 December 2011). Addressing on the preliminary objection, the learned advocate for the respondent submitted that the application for stay of execution is overtaken by events. He substantiated his point that the applicant brought this application when the warrant of attachment was already issued by the executing court of Resident Magistrate's Court for Dar es Salaam at Kisutu. That, the application for execution was determined and an execution order was issued, what remains is the implementation of the execution order. According to him, once the order for execution is issued, no stay of execution can be sought. Thus, he implored the Court to dismiss it with costs. Arguing on the time limitation, Mr. Peter submitted that, the notice of execution was duly served to the applicant on 21/10/2024 and he became aware of the application on the same date. Therefore, the application for stay of execution ought to be filed within 14 days from the date of service of notice of execution. Since the 14 days expired long time ago, the instant application is faced with time limitation. The time should be reckoned from 21/12/2024 when the appellant became aware of the decision he is appealing against. 3
In regard to the 2n d ground of objection, the learned counsel was brief, that rule 11 (7) of the Rules requires the applicant to attach notice of execution which is not the case in this application. In response therefrom, the learned counsel for the applicant resisted the objections. He did not dispute the fact that the application for execution was already determined by the executing court and a warrant of attachment is already issued to the applicant. However, his stance was that a warrant of attachment in itself does not make an execution complete. That, since the warrant of attachment is in the stage of implementation and proclamation of sale is yet to be issued, the execution can be stayed by this Court. Responding time limitation, Mr. Kilian argued firmly that the application was lodged in Court timeously. He submitted further that the applicant was served with warrant of attachment on 19/12/2025 and since this application was filed on 27/12/2025, it was within 14 days. The Court should count from 19/12/2025 when the warrant of attachment was issued and not when the application for execution was served on the applicant. On the second ground, the learned counsel for the applicant stated that by annexing the warrant of attachment, the applicant had complied with rule 11 (7) of the Rules. 4
In brief rejoinder, Mr. Peter maintained that the notice of execution is not attached and the proper interpretation is that the notice of intended execution must be attached and not any other document in lieu therefrom. Since the warrant of attachment shows to be Execution No. 22539 of 2024, therefore, it is clear that the execution was initiated in 2024. Lastly, he insisted that after an execution order is issued by the executing court, the aggrieved party cannot apply for stay of execution. He thus implored the Court to dismiss the application with costs. A consideration is given to the respective submission and arguments of learned counsel. However, the issue for determination is whether the preliminary objection has any merit. It is common ground that the preliminary objection centres squarely on the application of rule 11 of the Rules, whose relevant parts are reproduced hereunder: '11.- (4) "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. (4A) N.A (5) No order for stay o f execution shall be made under this rule unless the Court is satisfied that- 5
(a) substantial loss may result to the party applying for stay o f execution unless the order is made; (b) security has been given by the applicant for the due performance o f such decree or order as may ultimately be binding upon him. (6) N.A (7) An application for stay o f execution shall be accompanied by copies o f the fo/iowing- (a) a notice o f appeal; (b) a decree or order appealed from; (c) a judgment or ruling appealed from; and (d) a notice o f the intended execution". (emphasis added) The law as states above, is settled that an application for stay of execution must be made within 14 days from the date of service of the notice of execution or the date the applicant becomes aware of the existence of an application for execution. But there must be an application for execution or an ongoing execution capable of being stayed. In this application, it is undisputed facts that the applicant was served with the application for execution filed in executing court on 21/10/2024. It is also, undisputed fact that the applicant was duly served on the very day when the application for execution was filed in court. Since 6
then to the date of lodgment of the instant application on 24/12/2025 was equal to one year and two months. Moreover, in this application, the applicant did not attach any such notice as required by rule 11 (7) (d) of the Rules. Instead, the applicant's application is attached with warrant of attachment. It is also, undisputed that parties were heard in the application for execution before the executing court, thus, a warrant of attachment was issued. Therefore, from the record, there is no pending application for execution before the executing court. Further, it is evident that the court broker was appointed to implement the execution order in the warrant of attachment. Now considering the parties' points of departure in all the three grounds of objections, I think the first question should be: whether a party may apply for stay of execution after an execution order is already issued and the warrant of attachment is already issued and the applicant was aware of and participated in the execution proceedings? The general applicable principle of law is that, no stay of execution can be made after conclusion of the execution proceedings by the executing court, because it will serve no purpose. See; Project Manager of Noremco v. Joseph Urio and Another (Civil Application No. 72 of 1999) [1999] TZCA 81 (12 November 1999). The Court held: 7
"On the basis o f these facts, there is no gainsaying that execution up to the stage o f seizing the motor vehicle Reg. No. TZL 24115 had been effected. A ll this was done following the judgement o f the High Court at Moshi o f30.11.1998 and the subsequent orders o f execution o f 2.7.1999, and warrant o f attachment in execution o f a decree dated 11.8.1999. That the process o f execution was completed, is born out from the Nakara Auction Mart, the Court Broker's letter o f 17.08.1999. In the light o f those undisputed facts, it is settled that what was sought to be attained in this application, namely stay o f execution o f the decision o f the High Court at Moshi in Civil Case No. 31 o f 1995 dated 30.10.1998 has been overtaken by the events. As execution has already taken place, there is nothing that can be stayed by this Court at this stage. The matter has been carried beyond the stage at which an application for stay o f execution can be issued which indeed would serve no usefulpurpose". The excerpt above is the legal stance of the Court which I find no reason to distinguish it with this application. However, in exceptional circumstances, it is possible for a person to apply for stay of execution even if the warrant of attachment is already issued, only if the applicant was not served with the application for execution and was not aware of the execution proceedings. It is the position of the law that in the application of 8
this nature, time starts to run when the applicant was served or became aware of the execution. See; CRDB Bank Tanzania Limited v. Tunu Ahmed Lushiku (Civil Application No. 315/12 of 2022) [2023] TZCA 17879 (23 November 2023). Another qualification is that, such execution should be at the stage which is capable of being halted. See; Tanzania Motor Services Ltd v. Tantrack Agencies Ltd (Civil Application No. 86 of 2004) [2005] TZCA 22 (12 May 2005). The rationale for stay of execution is to maintain the subject matter of the dispute pending final determination of the dispute by the superior court. However, it is not intended to reverse anything already done. See; Felix Emmanuel Mkongwa v. Andrew Kimwaga (Civil Application No. 249 of 2016) [2020] TZCA 333 (9 June 2020). In the case of Oryx Energies Tanzania Limited v. Oilcom Tanzania Limited (Civil Application No. 910 of 2024) [2024] TZCA 1208 (6 December 2024), an execution order (garnishee order) was issued when the applicant sought for stay of execution. It was held by the Court that the application was both, time barred and overtaken by events. This was also the position held in the case of Lake Oil Limited v. Kherdin Mohamed Shafiq (Civil Application No. 641/8 of 2024) [2024] TZCA 893 (13 September 2024). 9
In the instant application, the applicant has not disclosed what transpired before the executing court and how he failed to challenge that execution which brought about, the warrant of attachment. I trust that the order for stay of execution would serve the same purpose before the said executing court. Up until the notice of appeal was filed before the Court, such lower court had powers to deal with the applicant's prayers for stay of execution. See; CRDB Bank Tanzania Limited v. Tunu Ahmed Lashiku (supra) the Court delt with an exceptional circumstance that the applicant applied for lifting warrant of attachment. In that case the applicant was not aware of the whole process until when the warrant of attachment was issued. The Court found logic to the applicant to lift the warrant of attachment before the same executing court. Upon the decision of that application, the applicant lodged notice of appeal and applied for stay of execution. The effect of the application to lift up the warrant of attachment was to reactivate the execution process and time started to run from the decision of the executing court on the application to lift up the attachment. In the instant application, I have deeply considered the arguments of Mr. Kirian that the applicant could not file an application for stay of execution when he was served with the notice of execution because there was no notice of appeal before the Court. Drawing from his landing, it seems he believed that the order for stay of execution is exclusively issued by the Court, the reasoning which is difficulty to subscribe. The applicant 10
had a chance of presenting his application before the executing court which was not done. Although issuance of warrant of attachment in itself is not a bar to a party from applying for stay of execution, still time of 14 days may bar the applicant because time runs from the date the applicant was served with the notice of execution or from the time, he became aware of the existing notice of execution which was on 21/10/2024. I find no gainsaying that the applicant is caught by time limitation because he participated in the whole process prior to issuance of warrant of attachment. The second ground would not be necessary, but since it was not brought in alternative, I will address it briefly. In exceptional cases, absence of the notice of intended execution has been condoned, and a warrant of attachment like in this case or notice of sale has been treated to serve the purpose. Some of those exceptions are like when the applicant was not aware of any execution proceeding, that the warrant of attachment or notice of sale or a garnishee order is the first document to be aware of. That, he never knew the previous process of execution. In such exceptional circumstances, the Court may entertain the application for stay of execution. In the instant application those exceptional circumstances do not exist. The applicant was served with the notice of execution, he was required to annex it. However, the learned counsel for the applicant 11
forcefully dismissed the execution proceedings before the executing court wanting them to be treated as things of the past, instead, he implored the Court to pay attention on the warrant of attachment. That was an erroneous perception of the law. Attachment of the notice of execution serves the purpose of reckoning time and when the applicant became aware of. Rule 11 (7) (d) was made to serve the intended legal purpose. Therefore, failure to comply with it is fatal. In final analysis, the preliminary objections are tenable in terms of time limitation and failure to comply with rule 11 (7) (d) of the Rules. Consequently, this application is incompetent and is dismissed with costs. It is so ordered. DATED at DAR ES SALAAM this 9th day March, 2026. Ruling delivered this 10th day of March, 2025 in the presence of Mr. Frank Kilian, learned counsel for the Applicant, Mr. Lusiu Peter, learned counsel for the Respondent and Ms. Jenikisa Bukuku, Court Clerk, is hereby certified as a true copy of the original. P . J. NGWEMBE JUSTICE OF APPEAL