Laban Raphael Lupatu & Another vs Irene Simon Lupatu (Civil Application No. 202511070002227 of 2025) [2025] TZCA 1257 (11 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 202511070002227 OF 2025 LABAN RAPHAEL LUPATU ALLEN R. LUPATU ............ 1 st APPLICANT 2 nd APPLICANT VERUS IRENE SIMON LUPATU (Adm inistratrix o f the Estate o f the /ate SIMON ABISAY LUPATU) RESPONDENT (Application for Stay of Execution of the Judgment and Decree of the Kinondoni District Land and Housing Tribunal, at Mwananyamala) 24th Nov & 11th Dec, 2025. FIKIRINI. 3.A.: The applicants, Laban Raphael Lupatu and Allen R. Lupatu, had moved this Court by way of notice of motion in terms of Rule 11 (3), 11(4), 11(5) (a) and (b), 11(6), 11 (7) (a) (b) (c) (d) and Rule 51 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The gist of the application is seeking for stay of execution in Application for Execution No. 118 of 2025, originating from the judgment and decree of the (Mbilinvi. Chairperson1 ) dated 28thday of February, 2025 in Land Application No. 31 of 2022 RULING l Kinondoni District Land and Housing Tribunal in Land Application No. 31 of 2022. A joint affidavit of the applicants supports the application. In response, the respondent Irene Simon Lupatu (the Adm inistratrix o f the Estate o f the Late Simon Abisay Lupatu) filed an affidavit in reply contesting the application. Briefly, the background leading to the present application can be stated as follows: that the late Simon Abisay Lupatu sued the applicants (his siblings) for encroaching on his land measuring 45 meters by 25 meters, which is within his 3 acres land, which was given to him by the Tanzania Portland Cement Company Limited, in 1984. He cleared the land (suit land) and, in 2000, invited the applicants to assist him in supervising it. To his surprise, in 2021, the applicants claimed that the land was theirs on the pretext that the 1st applicant bought it from the 2n d applicant. The controversy led the late Simon Lupata file Land Application No. 31 of 2022, before the District Land and Housing Tribunal (DLHT). After hearing from the parties, their witnesses and exhibits, the DLHT decided in favour of the applicant. Discontented, the applicants unsuccessfully appealed to the High Court in Land Case No. 000007298 of 2025. Following the dismissal of the appeal on 11th June, 2025, Simon Lupatu filed Execution Application No. 118 of 2025. However, he passed away on 26th June, 2025. On 28th October, 2025, the Tribunal was formally notified of his demise. Subsequently, Probate and Administration Cause No. 22106 of 2025 was instituted, and on 6th October, 2025, Irene Simon Lupatu was appointed as Administratrix of the estate of the late Simon Abisay Lupatu. In light of these developments and the appointment of the Administratrix, the applicants sought and were granted leave of fourteen (14) days to comply with Regulation 23(3) of GN No. 174 of 2003. The matter was adjourned to 12th November, 2025. Subsequent to the above order, on 7th November, 2025, the applicants lodged the present application. At the hearing of the application, the applicants enjoyed the services of Mr. Shukran Mzikila, learned advocate whereas Mr. Mtumwa Kiondo, learned advocate as well, appeared for the respondent. Addressing the Court, Mr. Mzikila prefaced his submission by adopting the notice of motion and the joint affidavit deponed to form 3 part of his oral submission in support of the application. In addition, he invited the Court to grant the application since the applicants had satisfied all the requirements. Itemizing them, he started with Rule 11 (4) of the Rules, contending that the present application was brought within the fourteen (14) days prescribed by the law and averred in paragraph 9 of the affidavit in support. On the requirement under Rule 11 (5) (a) and (b), he argued that a substantial loss has been demonstrated in paragraph 12 of the affidavit. As for security for the due performance of the decree, the applicants were ready to furnish security in the form of the Residential Licence N. LM-250-Land No. 239/325/74 located at Wazo Ward, Mivumoni Street, and any other security which may be ordered by the Court need be furnished. Besides, the learned counsel contended that Rule 11 (7) (a) - (d) of the Rules has equally been satisfied. As indicated in paragraph 6, a copy of the notice of the appeal has been annexed,whereas in paragraph 5, a copy of judgment and decree thereofhave been annexed. Finally, a notice of the intended execution has also been availed as averred in paragraph 9. Winding up his submission, the learned counsel addressed the concern raised in paragraph 5(f) of the affidavit in reply, disputing the allegation that the applicants are abusing the judicial process. The learned counsel intimated that the applicants had timely lodged their application and dismissed the claim on the ground of abuse of the judicial process. In reply, Mr. Kiondo, besides adopting the affidavit in reply, vehemently contested the grant of the application. His reason was that the present application was lodged out of time. According to him the applicants were aware of the Execution proceedings before the DLHT since 22n d April, 2025, therefore, counting from that date the fourteen (14) days prescribed under Rule 11 (4) of the Rules, were long gone before 7th November, 2025 when the present application was filed, which filing was done without seeking or getting an extension of time. He further contended that the applicants had been extensively developing the land, though at their own peril, and insisted that the application be declined. Rejoining Mr. Mzikila reiterated his earlier submission and maintained that the present application was timely lodged. This is because, when the application for execution was lodged, the notice of appeal had not yet been received by the Court. The notice of appeal was lodged on 16th June, 2025 and served on the respondent on 27th June, 2025. As for the date in April, he argued that on 22n d April, 2025, the case was before the High Court on appeal and there was also an order for stay of execution as averred in paragraph 4 of the affidavit, the fact never challenged by the respondent, at most noted in the affidavit in reply. In addition, he contended that in between all these the respondent (the late Simon Lupatu) passed away, therefore, it was not possible to stay execution against a deceased person. Otherwise, the information on execution was received on 28th October, 2025, when the respondent's counsel informed the tribunal that the respondent was reviving his application for execution. The information was followed by the present application, which was within fourteen (14) days prescribed by the Rules. Responding to the substantial loss, the learned counsel opposed the submission resisting the grant of the stay of execution, arguing that the applicants will suffer substantial loss, if evicted from the landed 6 property. He dismissed the submission that there are ongoing developments, contending that could not be substantiated at this stage of the matter. He wound up by urging the Court to grant the stay of execution pending hearing and determination of the intended appeal. The issue for determination is whether the applicants have fulfilled the requirements guaranteeing the grant of the application for stay of execution. Pursuant to Rule 11(3), this Court has the power to order a stay of execution once the conditions prerequisite as stipulated in various provisions have been complied with cumulatively. Amongst the conditions to be complied with is the lodging of a notice of appeal showing the intention of challenging the impugned decision as per Rule 11 (3) of the Rules. Once the respondent has applied to execute the decree in his favour within fourteen (14) days from the date of notice to show cause or be aware, the applicants must apply for a stay of execution. Another requirement is that of annexing documents as illustrated under rule 11 (7) of the Rules, comprising the following: (i) a copy of a notice of appeal; (ii) a decree or order appealed from; (iii) a copy of the 7 judgment or ruling appealed from; and (iv) a notice of the intended execution. Besides the above, the applicants are required mandatorily in terms of rule 11 (5) (a) and (b) of the Rules to show that a substantial loss may result if the Court grants no order granting a stay of execution. This is to be accompanied by the requirement to provide security for the due performance of the decree, as might ultimately be binding upon the applicants. To test the satisfaction of the stated conditions against the application, I shall start with the first part of the conditions. These are those conditions found under Rules 11(3), 11 (4), 11 (7) (a)-(d) of the Rules. It is without a doubt that the applicants, after being aggrieved by the High Court decision delivered on 11th June, 2025, a notice of appeal was lodged on 16th June, 2025, in compliance with Rule 83 (1) and within thirty days (30) as prescribed under Rule 90 (1) of the Rules. There was a slight twist in the present application, that before the lapse of forty five (45) days, within which a losing party could appeal, to be precise on 4th April, 2025, the respondent applied for the execution of the decree in Execution Application No. 118 of 2025. The applied order was on 22n d April, 2025, stayed pending hearing and determination of the appeal before the High Court. The High Court judgment was delivered on 11th June, 2025, followed by a notice of appeal on 16th June, 2025. Unfortunately, the respondent passed away on 26th June, 2025. On the one hand, as rightly contended by Mr. Mzikila, no stay of execution application could have been preferred against the deceased person. On the other hand, the execution proceedings could not proceed without the appointment of an administrator or administratrix of the deceased estate. Essentially, the matter was stayed pending its revival at a later stage. The respondent's counsel has not challenged the assertion that there was a stay of execution pending hearing and determination on Land Appeal No. 202511070002227 of 2025 and that there was stalling of the process after the passing away of the respondent. The matter was revived on 28th October, 2025, and that is when the DLHT was informed of the respondent's passing on and appointment of Irene Simon Lupatu (as Administratrix of the Estate of the Late Simon Abisay Lupatu). On the same day, the applicants prayed for 14 days within which to lodge any objection to the application before the DLHT, the prayer, which was granted Within the fourteen days prescribed under rule 11(4) of the Rules, the present application was filed on 7th November, 2025. The application was accompanied by copies of all the listed documents to be annexed as illustrated under rule 11 (7) (a), (b), (c) and (d) of the Rules. The respondent's averment in paragraphs 5 (a) - (d) is not supported by the record. There is nowhere on the record showing that the applicants had failed to comply with the order dated 28th October, 2025, allowing the applicants to file an objection, if any, within fourteen (14) days. Indeed, the present application was filed on 7th November, 2025, which was before the next scheduled hearing date, which was fixed for 12th November, 2025. The present application was filed five (5) days before the lapse of fourteen (14) days given. I have also considered the respondent's claim in paragraph 7 of the affidavit that this application is an abuse of the judicial process. Although no further explanation was given, however, based on the history, that the Execution Application No. 118 of 2025, had already 10 been lodged since April, 2025, the respondent might be considering filing this application for a stay of execution as frivolous, vexatious, and an abuse of the court/judicial process. The assertion is incorrect in the absence of evidence in that regard. The rationale behind the conclusion is that when the appeal was before the High Court, there was an order for stay of execution. After the High Court judgment, the applicants were dissatisfied and preferred an appeal. A notice of appeal was filed on 16th June, 2025. As stated earlier in this ruling, the respondent's demise halted the proceedings, including the intended execution. It is after the appointment of the administratrix of the late Simon Lupatu's estate that the proceedings, including the execution, resumed on 28th October, 2025. The applicants prayed and were granted leave to file their objection within fourteen (14) days, which they did. However, instead of filing their objection before the DLHT, the law required them to do so before this Court, since their notice of appeal had already been lodged with the Court. Under the circumstances, it cannot be said that the present application is frivolous, vexatious or an abuse of the judicial process. li The conditions set in Rules 11 (3), 11 (4) and 11 (7) (a) - (d) of the Rules have been satisfactorily complied with. The only snag so far is compliance with rules 11 (5) (a) and (b) of the Rules, which require demonstration of substantial loss to be faced if no order for a stay of execution is granted. The applicants under paragraph 12 of the affidavit in support had portrayed substantial loss to be suffered. Under paragraph 12, this is what is stated:- "That the respondent intends to evict the 1st applicant from his landed property and there is reliable inform ation that she intends also to sale the disputed property to a third party owner o f a petrol station nearby who intends to demolish ten (10) frame shops owned and b u ilt by the 1st applicant which w ill result to substantial loss thereof More so, once the said property has been sold to a third party it w ill com plicate more the m atter between the parties therein." Although the applicants' affidavit does not provide sufficient evidence of substantial loss, and the respondent's affidavit in reply does not strongly challenge the alleged fact, one matter remains uncontested: the applicants are currently in occupation of the disputed property, 12 where ongoing development is taking place. This fact has not been disputed by the respondent. Guided by the principle in Sudi Seif Ngota (Administrator of the Estate of Seif Mohamed Ngota) v. Aloyce John Kazimbaya, (Civil Application No. 262/17 of 2019) [2021] TZCA 26 (18 February 2021; TANZLii), in which the Court discouraged declining a stay of execution where the applicant is in occupation of the disputed property, I am persuaded that the applicants merit the grant of a stay of execution pending determination of their intended appeal. Similarly, in Mapius Otieno v. Machimu Mayara, (Civil Application No. 279/8 of 2024) [2024] TZCA 515 (2 July 2024; TANZLii), the Court, while referring to Tanzania Motor Service Ltd v. Tantrack Agencies Ltd, (Civil Application No. 86 of 2004) [2005] TZCA 22 (12 May 2005; TANZLii), held that eviction of an applicant from the suit property amounts to substantial loss, particularly where the applicant was in occupation at the time of the decree. This factor must be carefully considered when determining whether to grant a stay of execution. 13 In the present matter, the applicants have undoubtedly remained in occupation and have lodged an intended appeal. Against this backdrop, it would be illogical to decline their application. Accordingly, I find that the applicants deserve a stay of execution pending the outcome of the appeal. What I have to grapple with now is the security for the due performance. Given that the respondent has twice previously secured decisions in her favour, consequently, the failure to gain vacant possession of the disputed property is likely to affect both her income and enjoyment of the decree adversely. Additionally, since the intended appeal could take several more months or even years to resolve, there is a risk that the respondent may end up with a judgment that is essentially unenforceable without proper security. The applicants have pledged their readiness to furnish security for the due performance, as averred in paragraph 14, though the respondent had, under paragraph 6, contested that demanding a strict proof. In the circumstances of this case, I am leaning more towards agreeing with the applicants, since there is tangible security pledged. Their pledge on the landed property known as Residential Licence No. 14 LM-250-Land No. 239/325/74 located at Wazo Ward, Mivumoni, is, in my view, sufficient to secure the respondent if the appeal is in her favour. I thus grant the prayer for stay of execution pending the hearing and determination of the intended appeal. Meanwhile, the applicants are ordered not to dispose of or alienate in any way the property registered under the Residential License No. LM-250-Land No. 239/325/74 located at Wazo Ward, Mivumoni Street. The said Residential License should be deposited with the Registrar of the Court of Appeal within thirty (30) days from the date of this Ruling. DATED at DAR ES SALAAM this 11th day of December, 2025. Ruling delivered this 11th day of December, 2025 in the presence of Mr. Shukran Mzikila, learned counsel for the applicants also holding brief for Mr. Mtumwa Kiondo and Ms. Jenikisa Bukuku, Court Clerk; is hereby certified as a true copy of the original. P. S. FIKIRINI JUSTICE OF APPEAL R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 15