North Mara Gold Mine Limited vs Modesta Mahando Matiko & Others (Civil Application No. 202512050002434 of 2025) [2026] TZCA 165 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 202512050002434 OF 2025 NORTH MARA GOLD MINE LIMITED... ..................................... APPLICANT VERSUS MODESTA MAHANDO MATIKO ........................................... 1 st RESPONDENT MBUSIRO ROSWE NYAMBACHA ........................................ 2 nd RESPONDENT KISIRI WAMBURA KISIRI..................................................3 rd RESPONDENT LAWE CHACHA MHABE .............................................. ....... 4™ RESPONDENT EMMANUEL WAMBURA CHACHA ..................... .................. 5™ RESPONDENT MUBUSI MARWA CHACHA ................ .............................6 th RESPONDENT SAMWEL MARWA KIBE................................ .......................7™ RESPONDENT MUGOSI SAGIRE KIMURU............................... ...................8™ RESPONDENT CHACHA MOHABE MWITA...................................................9™ RESPONDENT MAGRETH P. PIUS.................. . ..........................................10™ RESPONDENT RYOBA GICHONGE NYAMATENDE ............. ......................11™ RESPONDENT KEMERO MARWA MACHOLI ..................................... ...... 12™ RESPONDENT NCHAMA IROGA CHRISTOPHER ....................................... 13™ RESPONDENT LILIAN NYAMAINA............................................................14™ RESPONDENT STEVEN WAMBURA CHACHA.............................................15™ RESPONDENT WEMA RAZACK MANINGO ....................... .........................16™ RESPONDENT (Application for stay of execution of the judgment on admission and its decree of the High Court of Tanzania at Musoma) (Mahimbali. J.1 Dated the 24thday of April, 2023 in Land Case No. 04 of 2023 RULING 13th & 27th February, 2026 MURUKE. J.A.: The present application emanates from the judgment on admission and its decree of the High Court of Tanzania (Musoma Sub i Registry) at Musoma, in Land Case No. 04 of 2023, delivered on 24th April 2023 (Hon. F. H. Mahimbali, J.). In. the said judgment, the High Court entered judgment and awarded the respondents the sum of Tshs. 173,990,816/= for the reason that the applicant had admitted the same in its written statement of defense. The respondents later on filed Miscellaneous Land Application No. 000031110 of 2024, in the said Court seeking to rectify the title of the said decision, which initially read "ruling", to read "judgment on admission" and to obtain a decree thereof. The said application was granted and on 8th April, 2025, the High Court (Hon. Komba, J. successor Judge) extracted the decree for the said amount of Tshs. 173,990,816/= in favour of the respondents. The main suit was then heard on merits and on 28th August, 2024, the High Court (Hon. Komba, J. successor Judge) delivered its judgment and decree (the final judgment), partly in favor of the 25 Plaintiffs (including the 16 Respondents herein) out of the total 28 Plaintiffs. Following the delivery of the said judgment, the applicant filed its notice of appeal on 11th September, 2024 and served a copy of it to the Respondents' counsel on 17th September, 2024. Having been supplied with copies of the pleadings, exhibits, rulings, orders, proceedings, judgment and decree on 18th August, 2025, the applicant filed Civil Appeal No. 1734 of 2025, (Appeal Reference No. 202509020001734), pending before the Court. The applicant also filed its submissions in support of the appeal, which were served on the Respondents' counsel on 28th November, 2025. However on 24th November, 2025, the applicant received a copy of notice to show cause why execution should not proceed on the amount on judgement on admission, Land Execution No. 26994 of 2025, which same is pending, thus necessitated filing of the present application for stay of execution. Main ground is that there is pending appeal between the parties on crucial points of law on the irregularities and illegalities of the entire proceedings, judgments and decree of the. High Court of Tanzania (Musoma Sub Registry) at Musoma, iri Land Case No. 4 of 2023, that:- 1. The judgm ent on admission and its decree had awarded the respondent only Tshs. 173,990,816/= out o f Tshs. 9,786,000.000/= pleaded in the plaint. 2. The amount sought to be executed Tshs. 371,665,952.76, which is significantly inconsistent with what the judgm ent on admission and its decree. 3. The respondents claim that Tshs. 197,675,136.76 is allegedly costs subsequently incurred. 4. In terms o f the taxation ruling o f the High Court o f Tanzania (Musoma Sub Registry) a t Musoma, in Taxation Cause No. 000013968 o f 2025 delivered on 27th October 2025 (Hon. Mshasha, DR.) the amount o f costs so fa r awarded to the 3 respondents in connection with the m atter in only Tshs. 2,350,000/=. 5. The amount total amount in the application fo r execution and the execution itse lf are legally problem atic and patently unjust The respondents filed affidavit in reply to contest the application raising following issues: 1.1. That the application has been filed out o f time. 1.2. That the respondents are the one to suffer if stay order is granted as they have no place to live following acquisition and dem olition o f the houses and land in general. 1.3. That there is no undertaking by the applicant on the security to be deposited once stay order is granted. At the hearing of the application, Mr. Godwin Nyaisa learned counsel represented the applicant, whereas the respondent were represented by Mr. Juvenalis Motete also learned counsel. In brief, the applicant counsel claimed that, one, pending appeal between the parties herein involves crucial points of law on the irregularities and illegalities of the entire proceedings, judgments and decree of the High Court of Tanzania (Musoma Sub Registry) at Musoma, in Land Case No. 4 of 2023, the amount in the application for execution and the execution itself is legally problematic and patently unjust. Two; in the event this Court does not intervene by issuing the stay order, the respondents will execute the said judgment and decree, rendering appeal nugatory as the applicant has already filed its submissions in support of the appeal and served the same on the respondent's counsel. Further, the respondents will benefit from the additional amount of Tshs. 197,675,136.76 which was not awarded to them, amounting to unjust enrichment. Three; the applicant is an established mining company with its operations in Tarime, and it has both movable and immovable assets and has financial ability capable of satisfying the amount decreed in the judgment on admission in the event the intended appeal is determined in favour of the respondents. Four; the applicant is ready, able and willing to provide a bank guarantee being security for the performance of the decree as a condition for grant of stay. Five; the respondents' current source of income is unknown, therefore the respondents will not be able to recover the entire amount of Tshs. 371,665,952.76, let alone the decretal sum of Tshs. 173,990,816/=, in the event the pending appeal is determined in favor of the applicant herein. The respondent's counsel on his part submitted also briefly that one; the application was filed out of time as notice was served to the applicant on 24th November, 2025 while the application was filed on 10th December, 2025. Two; there is no firm undertaking by the applicant to deposit security as affidavit does not say so. Three; that applicant has not said the amount of security to be deposited in case stay order is granted. Four; on the balance of convenience it is the respondents who are likely to suffer more than the applicant following the homes being demolished by the applicants after acquisition for mining reasons. Having heard in brief both counsel's submission, examined the Notice of Motion, and affidavit for and against, the issue for determination is whether the applicant has satisfied the condition for granting order sought. First, the applicant filed Notice of appeal annexure A2 attached to the affidavit in support of the application and filed present application within 14 days in compliance with Rule 11 (4) of the Tanzania Court of Appeal Rules 2009 (the Rules) as notice of execution was served to the applicants on 24/11/2025 and pending application was filed 04/12/2025. Secondly, the applicant has averred at paragraph 10 that she will suffer substantial loss if execution will proceed. Third, at paragraph 11 of the affidavit in support of the application the applicant has undertaken to furnish security in compliance with Rule 11 (5) (b) of the Rules. Four; from the record, the amount sought to be executed, emanated from judgment in admission, is contested by the applicant as reflected in ground one of the memorandum of appeal annexure NM-5 that reads: " Court erred in law and in fact by entering judgm ent an admission for the sums o f 173,990,810 against the appellant, while the appellant's written statem ent o f defence did not ahead any such admission and in absence o f any such notice from the appellant!'. Indeed amount to be executed is subject of the appeal pending before the court. The above notwithstanding, I have seriously noted from the applicant counsel submission that the respondents are scattered, with unknown income and no fixed place of abode, thus it will be difficult for them to refund the amount if execution is allowed to proceed. With due respect to the applicant's counsel, according to the records, what made the respondents to be scattered with no fixed place of abode is the acquisition of their land by the applicant in which their livelihood was attached to it. They are now destitute with unknown income and no fixed place to live. This by itself should alert respondent's counsel to move the Registrar of the Court to cause list the appeal case in the nearest session for the interest of justice and to prevent further destitutions to the respondents on their own country as a result of their land being acquired for mining. The respondent counsel had argued that the applicant did not specifically promise to deposit the amount of money decreed as security. That is not right, a mere firm undertaking to furnish security suffices, as no particular form of security is required. It was held in the case of Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010 (unreported) where the Court discussed the mode of giving security and stated as follows: "To m eet this condition the law does not strictly demand that the said security m ust be given prior to the grant o f Stay order. To us, a firm undertaking by the applicant to provide security m ight prove sufficient to move the Court a thing being equal to grant the stay order provided the Court sets a reasonable time lim it within which the applicant should give the sam e" Taking all the circumstances of this application in to account and in order to prevent the appeal from being rendered nugatory, and on the balance of convenience, I find that applicant has complied with the requirement of rule 11 of the rules for granting stay order. Accordingly, Decree in Land Case No. 04/2023, delivered on 24th April, 2023 is hereby stayed pending hearing of the Civil Appeal No. 1734 of 2025 before the Court on the conditions that applicant deposit 8 bank guaranteed of Tshs. 371,665,952.76 within 30 days from the date of ruling and serve the respondent's counsel within seven days from the date of deposit, to ensure compliance. DATED at DAR ES SALAAM this 27th day of February, 2026. Ruling delivered this 27th day of February, 2026 in the presence of Mr. Robert Mosi, learned counsel for the applicant and Mr. Juvenalis Motete, learned counsel for the respondents and Ms. Tabitha Mwita, Court Clerk, linked via video conference, is hereby certified as a true / ' n r v i / /-\ f f h n Z. G. MURUKE JUSTICE OF APPEAL 9