Miski Ramadhani Chaurembo vs Eqbal Ebrahim Halday (Civil Application No. 1696 of 2025) [2025] TZCA 1208 (25 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT.BQPQMA CIVIL APPLICATION NO. 1696 OF 2025 MISKI RAMADHANI CHAUREMBO............................................ APPLICANT VERSUS EQ8AL EBRAHIM HALDAY ................................................... RESPONDENT (Application for stay of execution of the Decree of the Resident Magistrate Court of Dar-es-Salaam, at Kinondoni (Ext. Jur.) (Lyamuya, PRM-Ext. Jur.) dated the 09th day of October, 2023 in Ext. Land Appeal No. 113 of 2023 mum 21st & 25th November, 302S NANfiliAtjIjAd This is an application for a stay of execution of the decree issued by the District Land and Housing Tribunal (DLHT) for Temeke as confirmed by the order of the Resident Magistrates' Court of Dar es Salaam at Kinondoni (Extended Jurisdiction), pending the determination of the applicant's intended appeal to this Court. The application is by way of a notice of motion which was preferred under Rules 11 (3), 11 (4), 11 (4) (A), 11 (5) (a), 11 (6), 11 (7) (a), (b), (c) and (d) as well as Rule 48 (1) of the Court of Appeal Rule, 2009 (The Rules). The notice of motion is supported by an affidavit sworn by the applicant. Although framed in sixteen grounds, the substance of the i

application may be paraphrased and distilled into five principal grounds, namely:

1. That the applicant, being aggrieved by the decision o f the Resident Magistrates' Court o f Oar es Salaam at Kinondoni (Extended Jurisdiction) in Extended Land Appeal No. 133 o f 2023, which affirmed the decision o f the District Land and Housing Tribunal for Temeke in Application No. 15 o f2020, lodged a notice o f appeal to the Court Appeal and applied, from the lower court, to be furnished with the record o f proceedings for the purpose o f preparing the appeal.

2. That, notwithstanding the subsistence o f the notice o f appeal and the applicant's continued inability to obtain the requested record o f proceedings, the respondent, on 19 August 2025, served the applicant with a summons in Execution Proceedings No. 104 o f 2025, seeking to enforce the decree by procuring the applicant's eviction from House No. TMK/TMO/SBS29/279A, situated in Temeke, Dar es Salaam, which property forms the subject matter o f the intended appeal.

3. That, if execution is allowed to proceed, the applicant and her family will suffer irreparable hardship, as they will be evicted from the premises where they currently reside and be rendered homeless.

4. That, if execution is not stayed, the intended appeal, which the applicant believes she has strong prospects o f success, will be rendered nugatory; and

5. That the applicant is ready and willing to comply with any order o f the Court regarding the provision o f security for the due performance o f the decree. Shortly before commencement of the hearing, the Court was served with a notice of preliminary objection. The respondent indicated that, at the outset of the hearing, learned counsel would move the Court to strike out the application with costs on the ground that it is untenable in law, having been accompanied by a fatally defective verification clause. At the hearing of this application, the applicant had the legal services of Mr. Gwakisa Kakusulo Sambo, learned counsel while Captain Ibrahim Mbiu Bendera, learned counsel, appeared for the respondent. The matter proceeded online, with counsel joining from Arusha and Dar es Salaam, respectively. By consent, and in view of the certificate of urgency under which the application was brought, the parties agreed that the substantive application be heard together with the respondent's preliminary objection. In support of the application, Mr. Sambo adopted his written submissions and list of authorities on record. He urged the Court to grant the relief sought, contending that the applicant had satisfied the requirements of Rule 11 of the Court of Appeal Rules. He submitted that the application was filed within the prescribed fourteen days and that the 3

notice of appeal had iong been lodged. He further argued that the applicant, through her affidavit and notice of motion, had demonstrated the irreparable loss she would suffer were the application refused and execution allowed to proceed. To buttress his submissions, counsel relied on Andrew Ndaalio v. David Gilead Tenga (Civil Application No. 1604 of 2024) [2025] TZCA 98 (21 February 2025, TanzLII). In addition, Mr. Sambo urged the Court to consider the facts set out in paragraphs 11, 19, 20, 21, 22, and 24 of the applicant's supporting affidavit, submitting that the applicant has unequivocally expressed her willingness to comply with any order of the Court requiring the provision of security. He invited the Court to be guided by its decision in Lesusu Lesilale Saiduraki v Melayeki Saiduraki Laizer (Civil Appeal No. 529 of 2021) [2024] TZCA 1283 (13 December 2024, TanzLII) and to allow the application. In response, Capt. Bendera was succinct. Having adopted the respondent's reply affidavit and written submissions, he contended that, under Rule 11(3) of the Rules, the mere lodgment of a notice of appeal does not, of itself, operate as a stay of execution. Rather, the applicant must demonstrate good cause. He argued that, although a notice of appeal was lodged, the applicant failed to comply with Rule 90(1) of the Rules, which requires institution of the appeal within sixty days. According

to him, while the initial letter requesting proceedings was filed contemporaneously with the notice of appeal, the reminder letter was not filed until 25 August 2025-approximately 660 days later. This, he submitted, shows that the applicant failed to take essential steps, has not sought an extension of time, and has offered no explanation for the inordinate delay. As to the applicant's contention that she stands to suffer irreparable harm, namely, homelessness, should the application be denied, Capt. Bendera submitted that no evidentiary basis has been provided. In particular, the applicant has not filed affidavits from the family members she claims would suffer psychological or emotional harm. He thus maintained that the application is devoid of merit and ought to be struck out. Addressing the preliminary objection, Capt. Bendera urged the Court to uphold it and, on that basis, strike out the notice of motion with costs. He submitted that the verification clause is fatally defective because the applicant purported to verify paragraphs that do not exist, thereby affirming incorrect facts. In support, he relied on Jacquiline Ntuyabaliwe Mengi & Others v. Abdiel Mengi & Others (Civil Application No. 332 of 2021) [2022] TZCA 748 (1 December 2022, TanzLII) and Cable Television Network (CTV) Ltd v. Potential

Protas Byarugaba (Civil Application No. 17/18 of 2024) [2024] TZCA 1124 (19 November 2024, TanzLII). He accordingly prayed that the objection be sustained and the application struck out with costs. In a brief rejoinder, Mr. Sambo submitted that the respondent's argument premised on Rule 90(1) of the Rules, particularly the contention that approximately 660 days have elapsed since the filing of the first letter requesting proceedings, is misconceived, as the applicant has not yet been supplied with the requested documents. He argued that such submissions might have been pertinent had the matter concerned striking out the notice of appeal for failure to take essential steps, but they are irrelevant in an application for stay of execution, which is governed by Rule 11. Responding specifically to the preliminary objection, Mr. Sambo further argued that the point of law raised is equally untenable. He contended that each matter must be determined on its own factual circumstances and that the affidavit does not omit any essential facts rendering it defective. The numbering anomaly, he explained, resulted from a keyboard error, and the paragraphs referenced in the verification clause but absent from the body of the affidavit contain no substantive averments. Invoking Rule 4 (1) and (2) of the Rules, he urged the Court 6

to regard the error as rectifiable under the overriding objective, stressing that no prejudice would be occasioned to the respondent. To fortify his submissions, he cited Jamal S. Nkumba & Another v. Attorney General (Civil Application No. 240 of 2019) [2021] TZCA 756 (15 December 2021, TanzLII); Ramadhani Mikidadi v. Tanga Cement Co. Ltd (Civil Application No. 275 of 2019) [2022] TZCA 578 (26 September 2022, TanzLII); and Sanyou Service Station Ltd v. BP Tanzania Ltd (now Puma Energy T. Ltd (Civil Application No. 185 of 2018) [2019] TZCA 144 (22 May 2019, TanzLII), submitting that an affidavit (its verification clause included), may be amended where justice so requires. Having reviewed the parties' competing submissions on both the application and the respondent's preliminary objection, I begin with the latter. The question is whether the objection has merit. In essence, the respondent's challenge is anchored in the assertion that the verification clause of the applicant's supporting affidavit is fatally defective. Mr. Bendera, the learned counsel for the respondent, argued that, although the verification clause purports to affirm 35 paragraphs, the fact is that paragraphs 5 to 18, do not exist in the body of the affidavit. Relying on Jaquiline Ntyabaliwe Mengi and Others v. Abdiel Mengi & Others (supra) and Cable Television Network (CTV) Limited v. Potential

Protas Byrugaba (supra), he submitted that a defective verification clause renders the entire application incompetent. Mr. Sambo, for the applicant, took a different view. He contended that the discrepancy, though apparent, is no more than a clerical or keyboard error-one that neither undermines the substance of the affidavit nor precludes its amendment in keeping with the overriding objective principle. He therefore urged the Court to overrule the preliminary objection. Having carefully examined the affidavit, I am not persuaded that the objection warrants extended consideration. It is true that the verification clause refers to thirty-five paragraphs, whereas paragraphs 5 to 18 are missing. However, the internal coherence and substantive continuity of the affidavit are untouched. The narrative flows without interruption, lending credence to applicant counsel's explanation that the omission is merely a typographical misstep. Such an error does not, in my view, rise to a defect that strikes at the root of the affidavit or impairs the facts deponed therein. The kind of defects which could be declared as being fatal to an affidavit were pointed out in Uganda v. Commissioner for Prisons Exparte Matovu [1966] E. A 514, where it was held, at page 520 that: " [As] a genera / rule o f practice, an affidavit for use in court, being a substitute for ora! evidence, 8

shouid only contain statements o f facts and circumstances to which the witness depones either o f his own personal knowledge or from information which he believes to be true. Such affidavit should not contain extraneous matters by way o f objection ; prayer, legal argument or conclusion". Upon examining the affidavit filed in support of the instant application, I find that, aside from the numbering anomaly previously noted, there is nothing to suggest any infringement of the rule articulated in Uganda v. Commissioner of Prisons, Ex parte Matovu (supra). Had such a defect been present (i.e., one requiring the expunging of materially defective paragraphs), and if the remaining averments proved insufficient to sustain the notice of motion, then the affidavit would indeed have been fatally flawed. That, however, is not the case. Moreover, it cannot be said, as Capt. Bendera appears to argue, that by verifying paragraphs not appearing in the affidavit the applicant deliberately intended to misled the Court or that the affidavit was tainted with fatal lies. The record does not support such an inference. Instead, as persuasively submitted by Mr. Sambo, the authorities in Jamal S. Nkumba & Another v. Attorney General (supra); Ramadhani Mikidadi v. Tanga Cement Company Ltd (supra); and Sanyou Service Station Ltd v. BP Tanzania Ltd (now Puma Energy

Tanzania Ltd) (supra) demonstrate that even where the erroneously referenced paragraphs were to be expunged from the verification clause, the affidavit would remain substantively intact. The misnumbering is, consequently, no more than a clerical error. Accordingly, applying the overriding objective principle, the Court treats the error in the numbering of the affidavit and its verification clause as rectified. It follows, therefore, that the preliminary objection is without merit and is hereby overruled with costs. Having overruled the preliminary objection, let me now turn to the merit of the application, and the main issue to respond to is whether the application for stay of execution ought to be granted. It is worth noting, in the first place, that, the power to grant such relief is discretionary, and the Court will exercise that discretion only upon a showing of good cause. In his submission, Capt. Bendera correctly submitted that the mere filing of a notice of appeal does not, of itself, entitle an applicant to a stay of execution, as is plainly provided under Rule 11(3) of the Rules of the Court. However, in his submissions, he further invoked Rule 90(1) of the Rules, contending that the application should be rejected because some 660 days elapsed between the applicant's initial request for proceedings and the subsequent reminder of 25 August 2025. In his view, this delay 10

is unexplained, and there is no evidence that the applicant sought an extension of time. For that matter, he contended that the application should be denied as such laxity cannot amount to sufficient cause. However, it is difficulty to sail through with Capt. Bendera's line of argument The difficulty with his argument and invocation of Rule 90(1) of the Rules rests in its applicability. As rightly pointed out by Mr. Sambo, Rule 90(1) of the Rules bears no relevance to applications of this nature. In essence, a request for stay of execution is governed exclusively by Rule 11, which sets forth the cumulative conditions that must be satisfied before a stay order is may be granted. Respectfully, therefore, Capt. Bendera's reliance on Rule 90(1) of the Rules is misplaced, and the issue regarding computation of days is immaterial since no question of extension of time arises in this application. Having held so, the only remaining issue to resolve is whether the applicant has satisfied the requirements of Rule 11. In my view, and having examined the notice of motion, the supporting affidavit, and applicant counsel's submissions, I am satisfied that the application was filed within the fourteen days prescribed under Rule 11(4). It is also clear to me, as the record of this application demonstrates, that the applicant was served with a summons to appear in pending execution proceedings li

before the District Land and Housing Tribunal for Temeke, where the respondent seeks to evict her from the disputed premises. This circumstance, in my view, constitutes sufficient cause within the meaning of Rule 11(3) to justify consideration of the stay sought. Further, the application complies with Rule 11(4)(A) of the Rules, and the applicant has demonstrated that she will suffer irreparable loss should execution proceed, as it would result in her eviction from the home in which she resides with her family. This accords with the requirement under Rule ll(5)(a), which obliges an applicant to show that refusal of a stay would occasion substantial and irreparable harm. In addition, Rule ll(5)(b) requires a clear commitment by the judgment debtor (the applicant) to secure the due performance of the decree. Where an applicant satisfies these conditions—among others prescribed under Rule 11-the Court is empowered to grant a stay of execution. In the present application, the applicant has, through paragraphs 25, 28, 29, and 30 of her affidavit, undertaken to furnish security by executing a bond of commitment or any other form of security the Court may direct. As stated in Andrew Ndaalio v. David Gilead Tenga (supra), drawing on Mantrac Tanzania Limited v. Raymond Costa (supra) and Ongujo Wakibara Nyamarwa v. Beatrice Greyson Mmbaga (supra), this Court held that the law does not impose rigid or 12

onerous requirements regarding the nature of security for due performance. Instead, the form of such security to be furnished by an applicant for a stay order, depends on the circumstances of each case and, as earlier stated, remains within the discretion of the Court. As far as the present application is concerned, it is my considered view that the applicant's undertaking as expressed in paragraphs 25, 28, 29 and 30 of her affidavit is sufficient given that there is no immutable standard governing the type of security to be furnished, provided the commitment is genuine and directed toward safeguarding the decree. Consequently, having cumulatively met all the requirements of Rule 11, the applicant has established a proper basis for the relief sought. Accordingly, the application is hereby granted. The Execution in Proceedings No. 104 of 2025, arising from the decision of the District Land and Housing Tribunal for Temeke in Land Application No. 15 of 2020, as affirmed by the Resident Magistrates' Court in Extended Land Appeal No. 133 of 2023, is hereby stayed pending the hearing and determination of the intended appeal. It is further ordered that, within thirty (30) days of this ruling, the applicant shall execute and file in Court a bond committing herself to maintain the status quo of the property described as house No.

TMK/TMO/SBS29/279A, situated in Temeke, Dar es Salaam, which is the subject of both the decree and the intended appeal. Finally, in the circumstances of the application, an order as to costs is only made in respect of the preliminary objection which was raised by the respondent and decided in favour of the applicant. It is so ordered. DATED at DODOMA this 25th day of November, 2025. D. j. NANGELA JUSTICE OF APPEAL The Ruling delivered this 25th day of November, 2025 in the presence of Mr. Gwakisa Kakusulo Sambo, learned counsel for the Applicant, Captain Ibrahim Mbiu Bendera, learned counsel for the Respondent and Shafii Kassim, Court Clerk via virtual Court; is hereby certified as true copy of the original. 14