Ian A. Moshi & Another vs Jehangir Aziz Abdulrasul & Others (Civil Application No. 2190 of 2025) [2025] TZCA 1265 (11 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 2190 OF 2025 IAN A. MOSHI...................................................................1ST APPLICANT ALEX S. MOSHI ................................................................ 2 nd APPLICANT APAISARIA SOFARI......................................................... 3 rd APPLICANT VERSUS JEHANGIR AZIZ ABDULRASUL.........................................1 st RESPONDENT MS BENANDYS LIMITED..................................................2 nd RESPONDENT JOSHUA E. MWAITUKA t/a RHINO AUCTION MART ......... 3 rd RESPONDENT MARIA A. MOSHI............................................................ 4™ RESPONDENT (Application for stay of execution of the Ruling and Drawn order of the High Court of Tanzania (Land Division) at Dar es Salaam) (Msafiri, J/) dated the 23r d day of April, 2024 in Miscellaneous Land Application No. 747 of 2023 RULING 28 November & 11th December, 2025 NGWEMBE. J.A.: This is an application for stay of execution preferred by the applicants under rule 4 (1) and (2)(a), (b) and (c); rule 11 (4A), (5)(a) and (b), (6), (7)(a), (b), (c) and (d) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicants are seeking to stay execution of a drawn order of the High Court pending determination of Revision in Civil Application No. 2062 of 2025 against the proceedings, ruling and l drawn order of the High Court in Misc. Land Application No. 747 of 2023. In that application, the 1s t respondent had applied before the High Court to issue an order for lifting the corporate veil so that the directors of the 2n d respondent, amongst whom are the applicants in this application, be held liable for satisfaction of the decree. The High Court granted the application and hence, the 1s t respondent applied for execution of the decree by way of arrest and detention of the applicants and the 3rd respondent as civil prisoners. It is against that application for execution that the applicants have preferred this application citing in the Notice of Motion and affidavit that such application for lifting corporate veil was determined in their absence and without them being heard, hence they have filed an application for revision before this Court. The 1s t respondent filed affidavit in reply stating that he has been a decree holder for about ten years without any successful satisfaction of that decree and the applicants being the directors of the 2n d respondent, have been frustrating the execution process. Security of the applicants is also challenged for subjecting a house without a recent valuation report from the Government valuer while the value of the decree being executed is 2 about 3.9 billion. Also, averred that the applicants have failed to meet conditions for stay of execution. Apart from that, the 1s t respondent raised a preliminary objection on the point that the application for stay of execution is incompetent because what the applicants seek to stay is different from what the 1s t respondent is executing before the High Court. When the application was called on for hearing, it was resolved that the parties should submit on both, the preliminary objection as well as the application. Mr. Novatus Michael Muhangwa and Mwang'enza Mapembe, learned advocates appeared for the applicants and 1s t respondent respectively. Hearing proceeded in absence of the 2n d , 3rd and 4th respondents who despite being properly serviced did not enter appearance. This was in accordance with rule 63 (2) of the Rules which provides that: "Where the applicant appears and the respondent fails to appear, the application shall proceed in the absence of the respondent, unless the Court sees fit to adjourn the hearing". 3 Mr. Muhangwa commenced by adopting the affidavit and proceeded to submit on the application stating that, it was filed within time and met all the requirements under rule 11 (4) (5) and (7) of the Rules. He buttressed his argument with the case of Mekefason Mandali & Others v. Registered Trustees of Archdiocese of Dar es Salaam (Civil Application No. 491 of 2019) [2021] TZCA 4 (5 February 2021) in which prerequisites for stay of execution pending revision were considered. Further that, the applicants are willing to deposit security for satisfaction of the decree. Addressing on the mode of execution sought by the 1s t respondent, the applicants' advocate submitted that the applicants will suffer irreparable loss if detained, including the 3r d applicant an old woman of 91 years. According to the applicants, that senior woman may suffer seriously if detained. Relied on the case of Aniceth Justin Matuja v. William Nicholaus Yango (Civil Application No. 1579 of 2025) [2025] TZCA 1089 (13 October 2025), he prayed the application be allowed. In turn Mr. Mapembe pointed out that the order to be stayed was delivered on 23/04/2024 and this application was lodged in Court on 24/10/2025, hence out of time. Also, the order sought to be stayed is 4 different from what is being executed by the 1s t respondent. It was the learned counsel's further observation that according to the applicants' affidavit, they became aware of the execution on 20/11/2024, but filed this application on 24/10/2025. That, unless they sought to stay execution which is pending before Hon. Mandia J, the application is out of time. Arguing further, the learned counsel reiterated what was stated in the affidavit in reply, that the security was not properly issued, as the value is lower than the value of the decree and there is no valuation report for the property. He supported his argument with Mountain Hill Nursery and Primary School Limited v. International Commercial Bank (Tanzania) Limited (Civil Application No. 810/16 of 2023) [2024] TZCA 915 (20 September 2024), where among others, the Court observed that a valuation report is required when the property is placed as security in application for stay of execution. Submitting on the preliminary objection, he argued that the order by Hon. Justice Msafiri is not capable of being executed, hence cannot be stayed. He prayed the application be dismissed with costs. Mr. Muhangwa replying on the preliminary objection, he submitted that the order for lifting corporate veil by Hon. Msafiri, J is what the 1s t 5 respondent is executing against the directors of the 2n d respondent, hence fit to be stayed. The cases of Matsushita Electric Co. (E.A) Ltd v. Charles George t/a C.G. Traders (Civil Application No. 71 of 2001) [2001] TZCA 64 (17 August 2001) and Athanas Albart and 4 others v. Iringa University College [2001] T.L.R 63, were referred to support his argument. In the circumstances of this application, where both the preliminary objection and main application is argued jointly, obvious the preliminary Objection must first be determined, since the question of competence of the application is paramount to be resolved before going into the merit of the matter. This has been the practice of the courts in Tanzania, and the rationale was stated by the Court in several decisions including, Salimin Ali Jaffar v. Fatma Tangawizi Ngura & Another (Civil Appeal 299 of 2019) [2021] TZCA 714 (2 December 2021) and Shahida Abdul Hassanali Kassam v. Mahedi Mohammed Gulamali Kanji (Civil Application No. 42 of 1999) [2000] TZCA 76 (5 July 2000). Therefore, the first issue is whether the application is competent before the Court. The applicant submits that it is competent while the 1s t respondent holds a contrary view that it is incompetent, but the point of departure and contest between them is clear that according to the notice of motion, affidavit and the submissions the applicants seek to stay execution of the ruling and drawn order made by Msafiri, J on 23/04/2024. Mr. Muhangwa maintains that it is such order which made the directors be responsible in execution, hence it is the one to be stayed. However, Mr. Mapembe insists that if what the applicants' wanted to stay should be the pending execution against Land Execution No. 2455 of 2025 and not Miscellaneous Application No. 747 of 2023 which does not grant any executable order. The learned advocate had an alternative argument that if the applicants really sought to stay the drawn order as they say, they would be out of time. As to what stay of execution entails, it seems parties are at one. The case of Athanas Albert (supra) cited by the applicant's advocate is comprehensive as the Court in an analogous situation observed that: "It seems to me that a stay of execution can properly be asked for where there is a court order granting a right to the respondent or commanding or directing him to do something that affects the applicant. In such a situation the applicant can meaningfully ask the court for a stay and to restrain the respondent from executing that order pending the results of an intended appeal. But in the present case after 7 the High Court had set aside the order of the District Court, there is no order of any court now granting any rights to the respondent or commanding or instructing the respondent to do anything affecting the applicants or, indeed, anyone". In this application, it is known that the ruling and drawn order by the High Court in Misc. Land Application No. 747 of 2023 was for the application of lifting corporate veil. The record shows that the application was granted and the corporate veil of the 2n d respondent was lifted since 23/04/2024. In this application, the applicants do not have anything to do with the pending execution in Land Execution No. 24255 of 2025. From their Notice of Motion, the applicants pray as follows; "An order staying the execution of the drawn order of the High Court of Tanzania (Land Division) at Dar es Salaam (Madam Judge A. Msafiri) dated 2 Jd April 2024 in Misc. Land Application no. 747 of 2023 pending final determination of Civil Application No. 2061 of 2025 being an Application for Revision of the Proceedings, Ruling and Drawn Order of the High Court of Tanzania (Land Division) at Dar es 8 Salaam (Madam Judge A. Msafiri) dated 2 JdApril 2024 in Misc. Land Application No. 747 o f2023". According to the notice of motion, and all the record lodged by the applicants, they are seeking to stay execution of a drawn order in Misc. Land Application No. 747 of 2023 delivered on 23rd April 2024. The nature of the order sought to be stayed by the applicants is presumably known to both parties. The 1s t respondent had prayed that the honourable court be pleased to lift the veil of incorporation for MS BANDYS LIMITED and hold liable the applicants, 4th respondents and others who were directors of the 2n d respondent, so that a decree against the 2n d respondent is executed against them. After hearing, the High Court ordered as follows: "THE COURT HEREBY ORDERS THAT: 1. The Application is granted with costs. 2. The veil of Incorporation for the 1st respondent MS BENANDY LIMITED is hereby lifted". From the above order, no further execution would be required for lifting a corporate veil. Also, it cannot be said that the pending execution is related to the order of lifting corporate veil. But it is true that, having lifted the corporate veil, the 1s t respondent proceeded with execution process. Again, the record is apparently clear, that the 1s t respondent 9 executes a decree in Land Case No. 04 of 2010. Land Execution No. 24255 of 2025 pending before Hon. Mandia, J, is the proceeding in which such execution is sought. It is unfortunate, that the parties are not having the same view on the above set of facts. It is a common ground that the application for stay of execution is brought pending revision. Likewise, it is known that the revision is against the order for lifting corporate veil which as earlier pointed out, was already granted. It is settled law that the Court lacks jurisdiction to stay a non executable order or grant stay of execution whose application is not before the Court. In the circumstances of this application, Mr. Mapembe is right on this aspect, that the order by Hon. Msafiri J, was not the one being executed and thus cannot be stayed. Even by assumption that it was the one being applied for execution, yet such order was not capable of being executed and obviously, not capable of being stayed. As earlier on pointed out, existence of an executable order capable of being stayed is a prerequisite for stay of execution. We have maintained this in many of our decisions, including the case of Patel Trading Co (1961) Limited and Another v. Bakari Omary Wema t/a Sisi kwa Sisi Panel Beating Enterprises Ltd (Civil Application 10 No. 19 of 2014) [2015] TZCA 880 (23 March 2015) where the Court decided that in the absence of a decree that is capable of being executed, the application for stay of execution becomes a misconception. It is on the basis of the above analysis that I find merit in the preliminary objection. That the application for stay of execution is misconceived. I thus sustain the preliminary objection and the application is dismissed with no order as to costs. DATED at DAR ES SALAAM this 11th day of December, 2025. P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 11th day of December, 2025 in the presence of Mr. Innocent Paulos Mwelelwa, learned counsel for the applicant, Mr. Elias Fredrick Jacob, learned counsel for the 1s t respondent, in the absence of the 2n d , 3rd and 4th respondents and Mrs. Janekisa Bukuku, Court Clerk, is hereby certified as a true copy of the 11