Debora Christopher Mtamakaya vs Asha Mangapi (Civil Application No. 2312 of 2025) [2026] TZCA 190 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DAR-ES-SALAAM CIVIL APPLICATION NO. 2312 OF 2025 DEBORA CHRISTOPHER M TAM AKAYA..........................................APPLICANT VERSUS ASHA MANGAPI (Administratix of the Estate of the Late LEILLAH ILIY A S A ....................................... RESPONDENT (Application for stay of execution of the Decree of the High Court of Tanzania, Land Division at Dar es Salaam) (Luvanda, J.^ Dated the 15th day of August 2023 in Misc. Land Appeal No. 27 of 2023 RULING 26th February & 02nd March, 2026 NANGELA, JA.: By way of a Notice of Motion filed under rules 11 (3), 11 (4A), 11 (5) (a) &(b), 11 (6), 11 (7) (a), (b), (c), and (d) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant filed this application before this Court. The notice of motion is supported by an affidavit deponed by Ms. Debora Christopher Mtamakaya, the Applicant. The applicant is seeking for an order to stay execution of a decree deriving from the judgment of the High Court of Tanzania, Land Division, in Misc. Land Appeal No. 27 of 2023; the Order of the District Land and i

Housing Tribunal (DLHT) for Kinondoni, at Mwananyamala, in execution No. 293 of 2025, and the Order of the Ward Tribunal for Wazo, in Land Cause No. 63 of 2016. In his bid to justify the grant of the orders sought, the applicant has advanced several grounds in the Notice of Motion, which may be summarised as follows:

1. That, unless the order o f the Ward Tribunal at W azo-Tegeta, Kinondoni M unicipality, Dar es Salaam, in Land Cause No. 63 o f 2016, currently pending execution before the D istrict Land and Housing Tribunal fo r Kinondoni a t Mwananyamala in Execution Application No. 293 o f2025, is stayed pending the determ ination o f the intended appeal, the applicant's fence w all w ill be demolished. The applicant contends that the w all surrounds her residential house and that its dem olition would expose the house to insecurity and cause her substantial and irreparable loss.

2. That, the applicant is ready and w illing to furnish security fo r the due perform ance o f the decree by executing a written undertaking to dem olish the fence w all should the intended appeal ultim ately fail, o r as this Honourable Court m ay otherwise direct.

3. That, the applicant was served with the application fo r execution on 10/09/2025 and has therefore file d the present application without undue delay. 2

4. That ■ a Notice o f Appeal was lodged before this Honourable Court on 29/08/2025. Before I proceed any further, I find it apposite to state the facts giving rise to this application. The applicant and the respondent are neighbours. Sometime ago, the respondent instituted proceedings before the Ward Tribunal for Wazo. She alleged that, the applicant had encroached upon her land, by altering the boundary. The Tribunal found in favour of the respondent. Dissatisfied with that decision, the applicant appealed to the District Land and Housing Tribunal for Kinondoni at Mwananyamala. The appeal was dismissed. She, subsequently, filed Miscellaneous Land Appeal No. 27 of 2023, before the High Court, Land Division, which was likewise dismissed. Still dissatisfied, the applicant lodged a Notice of Appeal to the Court of Appeal. While the Notice of Appeal is still pending, the respondent filed Execution Application No. 293 of 2025 before the DLHT, seeking enforcement of the Ward Tribunal's decree. 3

It is in those circumstances that the applicant, has approached this Court, seeking an order for stay of execution of the High Court's decree and the attendant orders of the subordinate tribunals. At the hearing of the application, the applicant was represented by Mr. Emmanuel Kessy, learned Advocate, while Capt. Ibrahim Mbiu Bendera, learned Advocate, appeared for the respondent. The hearing was conducted online as both advocates are based in Dar-es-Salaam. In support of the application, Mr. Kessy adopted the Notice of Motion, the supporting affidavit, and the annexures thereto as forming part of his submissions. He urged the Court to grant the application on the ground that, the applicant, has satisfied all the requirements for the grant of a stay of execution. For his part, Capt. Bendera opposed the application and adopted the replying affidavit filed on 16th February, 2026, pursuant to the Court's order, dated 13th February, 2026. He submitted that, although, the applicant lodged a Notice of Appeal, no appeal has been filed to date and, that, a considerable period has elapsed (almost 844 days) since the filing of the Notice.

Referring to Rules 83 and 90 of the Rules, he contended that, the delay disentitles the applicant to the equitable relief sought. He further argued that, what is to be demolished is merely a fence wall and not the applicant's residential house and, that, any loss occasioned thereby can be adequately compensated by damages. In reply, Mr. Kessy maintained that, the filing of the substantive appeal is not a condition precedent to the grant of a stay under Rule 11 of the Rules. He submitted that, the applicant has demonstrated substantial loss and complied with all statutory requirements. He further argued that, the distinction between the fence wall and the house, is immaterial in assessing the likelihood of substantial loss. I have carefully considered the rival submissions, the Notice of Motion, the affidavits on record, and the applicable law. As Mr. Kessy correctly asserted, if the Court is to grant an application for stay of execution, there are a set of requirements that need to be fulfilled. That, there must be already filed in Court, an intended appeal to be filed, as argued by Capt. Bendera, is not one of such requirements. Instead, the applicant must cumulatively satisfy the requirement set out under Rule 11 of the Rules. That being the case, the central issue for determination is 5

whether the present application complies with the requirements of Rule 11 of the Rules. First, is the compliance requirement for the timelines for filing of the application. Under Rule 11 (4), an application for stay of execution must be filed within fourteen days from the date the applicant becomes aware of the notice of execution. The record shows that, the applicant was served with the notice of execution on 14th November, 2025, and filed this application on 25th November, 2025. The application was, therefore, filed within time and, complies with Rule 11 (4). Second, is fulfillment of Rule 11 (3) and 11 (5) (a. Under these provisions, there is a requirement that, the applicant has to demonstrate good cause, including the likelihood of suffering substantial loss, if the stay is not granted. In paragraph 8 of her supporting affidavit, the applicant deposes that, demolition of the fence wall would expose her residence to insecurity and render it unsafe. Given that the wall encloses her dwelling house, I am satisfied, therefore, that its demolition prior to the determination of the intended appeal may occasion substantial loss. The requirement of good cause has therefore been met. Third, Rule 11 (5) (b) requires an applicant to furnish security for the due performance of the decree in the event the appeal is unsuccessful. 6

In paragraph 10 of her affidavit, the applicant expresses her readiness to execute a written undertaking committing herself to demolish the fence wall should her intended appeal fail. The Court has previously held that, the nature of security to be furnished, depends on the circumstances of each case, as stated in Mohamed Masoud Abdallah & Others vs Tanzania Road Haulage (1980) Ltd [2019] TZCA 198 (24 June 2019: TANZLII). In the circumstances of this application, the proposed undertaking constitutes appropriate security. I am, therefore, satisfied that, the requirement under Rule 11 (5) (b) has also been fulfilled. Finally, I am satisfied that the remaining procedural requirements under Rule 11 (7) (a) to (d) have been complied with. In the result, having found that the applicant has complied with all the requirements under Rule 11 of the Rules, the application for stay of execution is hereby granted. It is ordered that, the applicant shall, within fourteen (14) days from the date of this ruling, execute a bond undertaking to maintain the status quo of the suit property and to demolish the fence wall should the

intended appeal, having been duly heard and determined, will be determined against her. In the circumstances of this case, there shall be no order as to costs. DATED at MBEYA this 2n d day of March, 2026. D. J. NANGELA JUSTICE OF APPEAL Ruling delivered this 2n d day of March, 2026 in the presence of Mr. Archard Masika, holding brief for Mr. Emmanuel Kessy learned counsel for the Applicant, Capt. Ibrahim Bendera, learned counsel for the Respondent, via virtual court and Ms. Christina Mwanandenje, Court Clerk; is hereby certified as true copy of the original. 8