CRDB Bank P L C & Another vs Ibrahimu Bakaki Nyakubiha (Civil Application No. 2344 of 2025) [2025] TZCA 1301 (17 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 2344 OF 2025 CRDB BANK P L C ..................................................................... 1 st APPLICANT M/S CITYLAND COMPANY LIMITED .......................... ........... 2 nd APPLICANT VERSUS IBRAHIMU BAKAKI NYAKUBIHA..............................................RESPONDENT (Application for stay of execution of the Decree of the High Court of Tanzania at Dodoma) (Kakolaki. J.l dated the 19th day of July, 2024 in Civil Case No. 31 of 2022 RULING 12th & 17th December, 2025 ISSA, J.A.: The 1s t applicant and the respondent enjoyed a banker-custonier relationship for quite some time. In 2015 the 1s t applicant extended to the respondent a loan facility of TZS. 100,000,000.00 payable in 36 months. The loan was secured by two landed properties of the respondent which were located at Plots No. 86 and 87, Block B, Nkuhungu south area within the city of Dodoma. The respondent failed to honour the terms of the loan facility, as he failed to pay the loan which expired on March, 2018. Upon the default to pay the loan facility, the 1st applicant initiated a sale of the mortgaged properties. In response, the respondent instituted Land Case No. 17 of 2016 challenging the intended sale of the properties kept as securities. Fortunately, the suit did not go to the full trial as the parties entered into compromise agreement that culminated into compromise decree dated 3rd August, 2021. In that decree, it was ordered that the 1st applicant and the respondent would look for suitable buyer of the suit properties for realization of the outstanding loan which stood at TZS. 154,999,361.50 and conclude the transaction within three months. Further, the respondent was ordered to pay the whole outstanding loan by 30th December, 2018, failure of which the 1s t applicant would be entitled to revert to disposition of the mortgaged properties without any further notice or recourse to the court of law. The respondent did breach the terms of the decree and in turn, the 1st applicant instructed the 2n d applicant to sale the mortgaged properties. Consequently, the mortgaged properties were sold by public auction. Aggrieved, the respondent instituted Civil Case No. 31 of 2022 at the High Court of Tanzania at Dodoma (the trial court) faulting the said sale of the mortgaged properties contending that it was marred by procedural irregularities. The trial court delivered its decision on 19th July, 2024 in favour of the respondent. The purported sale of the mortgaged properties was nullified and the applicants were ordered to pay general damages to the respondent at the tune of TZS. 5,000,000.00. The applicants were not amused, on 16th August, 2024 they filed in the Court a notice of intention to appeal to challenge the decision of the trial court. On the other hand, the respondent was not passive; he initiated execution proceedings to realise the general damages awarded by the trial court. He filed Execution Cause No. 27671 of 2025 which was served on the applicants on 7th November, 2025. Without much ado the applicants filed the instant application for stay of execution on 18th November, 2025 by a Notice of Motion filed under rule 11(3), 11(4), 11(4A), ll(5)(a) and (b), 11(6), 11(7) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicant had sought to move this Court to order a stay of execution pending hearing and determination of the intended appeal. The application is supported by an affidavit sworn by Gilbert Malebo, the principal officer of the 1st applicant. In the instant application, the applicant was represented by Mr. Alex Msalenge, learned advocate. The application was resisted by the respondent who filed an affidavit in reply affirmed by the respondent who had the services of Mr. Emmanuel Bwile, also learned advocate. The hearing of the application was through video teleconferencing link. Mr. Msalenge adopted the affidavit in support of the application and submitted that the applicant has complied with rule 11 of the Rules. He elaborated that, there are three conditions to be satisfied in rule 11 of the Rules: One, application has to be filed within 14 days of service of the notice of execution on the applicant or from the date he was made aware of the existence of an application (rule 11(4) of the Rules). He submitted that, this rule was complied with as the applicant was served with a notice of execution on 7th November, 2025 and the application was filed on 18th November, 2025 within 14 days. Two, the applicant must establish substantial loss (rule ll(5)(a)). He submitted that the 1s t applicant is the financial institution which keeps other people's money. If they pay the decretal amount they will suffer substantial loss and if they succeed on their appeal, it will be difficult to recover the money from the respondent. On the other hand, they had undertaken to keep security for realization of the decree, hence, it will be easy for the respondent to get the decretal amount. Three, the applicant should furnish security for the due performance of the decree (rule ll(5)(b)). He submitted that the applicants have provided an undertaking to provide security as will be ordered by the Court. Further, Mr. Msalenge submitted that the applicants have also complied with rule 11(7) of the Rules as the application was accompanied with the notice of appeal, the decree and judgment of the trial court and the notice of the intended execution. To support his arguments for the grant of the application, he cited the Court's decision in Ogunjo Wakibara Nyamarwa v, Beatrice Gryson Mmbaga [2024] TZCA 74 and Gapco Tanzania Limited v. Muslim Yusufali Bharwani T/A Nyerere Road Services Station [2025] TZCA 152 (Both reported in TANZLII). He prayed for the application for stay to be granted, Mr. Bwile opposed the application; he adopted the affidavit in reply filed earlier on and submitted that the trial court awarded the respondent damages and the applicants have to pay them. In addition, their point of contention is that the applicants failed to establish substantial loss. He submitted that the 1st applicant is the financial institution with a lot of money and will not suffer substantial loss by paying the general damages. In the rejoinder, Mr. Msalenge admitted that it is true what was awarded by the trial court has to be paid, but insisted that there is a right of appeal and the applicants are in that process. He reiterated that they will suffer loss if they pay the respondent now, as it will be difficult to recover the money if their appeal is successful. In the instant application, the Court has been called to determine the grant of stay of execution in general and there is one issue to be determined which is whether the applicant has established substantial loss. Before embarking on that task, it is prudent to state the law with respect to the application for stay of execution. Rule 11 of the Rules deals specifically with the stay of execution and the applicant is required to comply with sub-rule (3), (4), (5) and (7). Rule 11(3) of the Rules provides: (3) In any civil proceedings, where a notice o f appeal has been lodged in accordance with Rule 83, an appeal shall not operate as a stay o f execution o f the decree or order appealed from nor shall execution o f a decree be stayed by reason only o f an appeal having been preferred from the decree or order; but the Single Justice may upon good cause shown, order stay execution o f such decree or order" In numerous decisions of the Court, it has been held that for the Court to exercise its powers under rule 11 (3) there must be a valid notice of appeal which clothes the Court with jurisdiction to entertain the application. Further, rule 11(7) also provides that in the application for stay the application must be accompanied by a notice of appeal, a decree or order appealed from, a judgment or ruling appealed from, and a notice of the intended execution. In the absence of a valid notice of appeal and the decree or order sought to be appealed against, the application becomes incompetent and liable to be struck out. (See - Awinia Mushi v. Tropical Pesticides Research Institute, Civil Application No. 2 of 2006 and National Housing Corporation v. Ettienes Hotel, Civil Application No. 175 of 2004 (both unreported). In the present application, the applicant has complied with the above sub-rules. The application was accompanied by a notice of appeal, a decree, and a judgment appealed from. Further, the instant application was filed on 18th November, 2025 within 14 days as required by rule 11(4) of the Rules. Hence, rules 11 (3), (4) and (7) of the Rules were complied. Lastly, the applicant was required to comply with rule 11(5) which provides: "No order for stay o f execution shall be made under this rule unless the Courtis satisfied that (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," The Court in Joseph Antony Soares @ Goha v. Hussein Omary [2013] TZCA 328, TANZLII) and Mantrac Tanzania Limited v. Raymond Costa [2011] TZCA 519, TANZLII has stressed that these conditions must be complied with cumulatively. In the present application, the applicant has demonstrated that she stands to suffer substantial loss if the order for stay of execution will not be granted because the amount demanded by the respondent is the people's money which was kept in the bank in trust that she will pay on demand. If they pay the respondent and at the end failed to recover it, it will be a loss on their part. This is understandable taking into consideration that the respondent has already defaulted to pay the loan which was advanced to him. Hence, substantial loss was established. The last issue concerns the security for performance of the decree. The applicants undertook to provide security as ordered by the Court and the respondent's counsel had no objection to that. All said and done, I order that the stay of execution is granted on the condition that the applicants should provide a bank guarantee from another bank constituting the decretal sum which is TZS. 5,000,000.00 and that, the same be furnished to the Court within 60 days from the date hereof. Costs to abide the outcome of the intended appeal. DATED at DAR ES SALAAM this 17th day of July, 2025. Ruling delivered this 17th day of December, 2025 in the presence of Ms. Tekla Kimathi, learned counsel for the applicants, Mr. Emmanuel Bwile, learned counsel for the respondent via virtual Court and Ms. Hilda Mcharo Court Clerk; is hereby certified as a true copy of the original. A. A. ISSA JUSTICE OF APPEAL DEPUTY REGISTRAR COURT OF APPEAL