Kyerwa District Council & Another vs Grinda Builders Supplies Limited (Civil Application No. 2025090001764 of 2025) [2025] TZCA 1189 (14 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 2025090001764 OF 2025 KYERWA DISTRICT CO UN CIL....................................................... 1 st APPLICANT THE ATTORNEY G EN ER A L...............................................................2 nd APPLICANT VERSUS GRINDA BUILDERS SUPPLIES LIM ITED..................................... RESPONDENT (Application for stay of execution of the Decree of the High Court of Tanzania at Bukoba) ( Malata. J.) dated the 28th day of June, 2024 in Civil Case No. 10 of 2022 RULING lO0 1 & 14th November, 2025 ISSA, J.A.: The dispute between the parties arose out of a contract for construction of six residential houses at a contract sum of T7S. 240,359,100.00. The respondent was engaged by the 1st applicant to perform the work and she executed the work accordingly. In the course of executing the work oral instructions were conveyed to the respondent which had the effect o f adding the scope of work and costs. Upon completion of the additional work, the respondent claimed the payment which was at the IN THE COURT OF APPEAL OF TANZANIA ATARUSHA CIVIL APPLICATION NO. 2025090001764 OF 2025 KYERWA DISTRICT COUNCIL ................................................ 1 5 T APPLICANT THE ATTORNEY GENERAL ..................................................... 2ND APPLICANT VERSUS GRINDA BUILDERS SUPPLIES LIMITED ................................. RESPONDENT {Application for stay of execution of the Decree of the High Court of Tanzania at Bukoba) 1ott1 & 14t11 November, 2025 ISSA, J.A.: (Malata, J.) dated the 28 th day of June, 2024 in Civil Case No. 10 of 2022 RULING The dispute between the parties arose out of a contract for construction of six residential houses at a contract sum of TZS. 240,359,100.00. The respondent was engaged by the 1 st applicant to perform the work and she executed the work accordingly. In the course of executing the work oral instructions were conveyed to the respondent which had the effect of adding the scope of work and costs. Upon completion of the additional work, the respondent claimed the payment which was at the tune of TZS. 72,378240.00, but the 1st applicant refused to honour her part of the contract. In 2022 the applicant instituted at the High Court o f Tanzania at Bukoba (the trial court) Civil Case No. 10 of 2022 seeking among others, a declaration that the applicants were obliged to pay the respondent the sum of TZS. 72,378,240.00 being specific damages together with interest at the commercial rate of 21% from the date when the cause of action arose until judgment. The trial court delivered its judgment on 28th June, 2024 in favour of the respondent and the applicants were ordered to pay the respondent TZS. 72,378,240.00 as specific damages for additional works and TZS. 5,000,000.00 as general damages. Dissatisfied, the applicants lodged in Court a notice of appeal on 12th July, 2024 to challenge the decision of the trial court. On 25th August, 2025, the applicants were served with the application of the execution o f the decree, which reveals the respondent's intention to execute the decree of the trial co u rt Therefore, by a Notice of Motion filed under rule 11(3), 11(4), 11(4A), ll(5)(a),(b),(c), 11(6), 11(7) (a),(b),(c) and 60(2) (b) 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 Gerald Felix Njoka, Senior Counsel working in the Office tune of TZS. 72,378240.00, but the 1 st applicant refused to honour her part of the contract. In 2022 the applicant instituted at the High Court of Tanzania at Bukoba (the trial court) Civil Case No. 10 of 2022 seeking among others, a declaration that the applicants were obliged to pay the respondent the sum of TZS. 72,378,240.00 being specific damages together with interest at the commercial rate of 21 % from the date when the cause of action arose until judgment. The trial court delivered its judgment on 28 th June, 2024 in favour of the respondent and the applicants were ordered to pay the respondent TZS. 72,378,240.00 as specific damages for additional works and TZS. 5,000,000.00 as general damages. Dissatisfied, the applicants lodged in Court a notice of appeal on 12 th July, 2024 to challenge the decision of the trial court. On 25 th August, 2025, the applicants were served with the application of the execution of the decree, which reveals the respondent's intention to execute the decree of the trial court. Therefore, by a Notice of Motion filed under rule 11(3), 11(4), 11(4A), 11(5)(a),(b),(c), 11(6), 11(7) (a),(b),(c) and 60(2) (b) 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 Gerald Felix Njoka, Senior Counsel working in the Office of Solicitor General, Bukoba. The application was heard through video conferencing link where the applicants were represented by Mr. Nestory Joseph Lutambi, learned State Attorney while the respondent was in person unrepresented. Mr. Lutambi adopted the affidavit and submitted that the applicants have complied with rule 11 of the Rules. They are now waiting for the copy of the proceedings in order to prepare their appeal. On the issue of security for the performance of decree, the respondent on paragraph 8 of the affidavit undertook to provide a certificate issued by the Permanent Secretary of the Ministry of Finance. The respondent, on the other hand, filed an affidavit in reply on 10th November, 2025 objecting the grant of stay of execution contending that the applicants after writing a letter to the Registrar of High Court requesting for proceedings did not make a follow up of the proceedings. Further, he argued that it was his right to enjoy the fruits of the decree passed by the trial court. In the short rejoinder, Mr. Lutambi insisted that the applicants intend to appeal against the decision of the trial court, but they have not yet been served with the proceedings. of Solicitor General, Bukoba. The application was heard through video conferencing link where the applicants were represented by Mr. Nestory Joseph Lutambi, learned State Attorney while the respondent was in person unrepresented. Mr. Lutambi adopted the affidavit and submitted that the applicants have complied with rule 11 of the Rules. They are now waiting for the copy of the proceedings in order to prepare their appeal. On the issue of security for the performance of decree, the respondent on paragraph 8 of the affidavit undertook to provide a certificate issued by the Permanent Secretary of the Ministry of Finance. The respondent, on the other hand, filed an affidavit in reply on 10 th November, 2025 objecting the grant of stay of execution contending that the applicants after writing a letter to the Registrar of High Court requesting for proceedings did not make a follow up of the proceedings. Further, he argued that it was his right to enjoy the fruits of the decree passed by the trial court. In the short rejoinder, Mr. Lutambi insisted that the applicants intend to appeal against the decision of the trial court, but they have not yet been served with the proceedings. In the instant application, the Court has been called to determine the grant of stay of execution, but 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-rufe (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 o r order appealed from nor sh all execution o f a decree be stayed by reason only o f an appeal having been preferred from the decree o r order; b u t the Single Justice m ay upon good cause shown, order stay execution o f such decree o r order" The Court in numerous decisions, held that for it 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 - In the instant application, the Court has been called to determine the grant of stay of execution, but 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). Rufe 11(3) of the Rules provides: (3) In any civil proceeding~ where a notice of appeal has been lodged in accordance wtth Rule 8~ an appeal shall not operate as a stay of execution of the decree or order appealed from nor shall execution or a decree be stayed by reason only of an appeal having been preferred from the decree or orde~· but the Single Justice may upon good cause shown, order stay execution of such decree or order'' The Court in numerous decisions, held that for it 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 - A w in ia M u s h i v -rv«„: , ca P e sticid es Research Institu te , Civil Application No. 2 o f ?nnz ( nreported) and N atio n al Housing C o rp o ra tio n v. E ttie n e s H o te l , [2004] TZCA 186, TANZLII. In the present application, the applicant has complied with the above sub rules. The application was accompanied by a notice of appeal, a decree, a judgm ent appealed from and a notice of the intended execution. Further, the notice o f intended execution was served on the applicant on 25thAugust, 2025 and the instant application was filed on 6th September, 2025 within 14 days as required by rule 11(4) of the Rules. Lastly, the applicant was required to comply with rule 11(5) which provides: "No order fo r stay o f execution sh a ll be m ade under th is ru/e unless the Court is sa tisfie d th at (a) su b sta n tia l lo ss m ay re su lt to the p a rty applying fo r sta y o f execution unless the order is m ade; (b ) se cu rity h as been given b y the ap plican t fo r the due perform ance o f such decree o r order a s m ay u ltim a te ly be bindin g upon him . " The Court in Jo se ph A n to n y Soares @ Goha v. Hussein Omary [2013 ] TZCA 328 and Mantrac Tanzania Limited v. Raym ond Costa, [2011] TZCA 519, TANZLII has stressed that these conditions must be Awinia Mush; v. Tropical Pe t· .d . . s ,c, es Research Institute, Civil Appflcat,on No. 2 of 2 006 (unreported) and National Housing Corporation v ftt· . ienes Hotel, [2004] TZCA 186, TANZLII. In the present app/"c t· h 1 a ion, t e applicant has complied with the above sub-rules. The applicar . ion was accompanied by a notice of appeal, a decree, a judgment appealed from and a notice of the intended execution. Further, th e notice of intended execution was served on the applicant on 25 th August, 2025 and the instant application was filed on 6 th September, 2025 within 14 days as required by rule 11(4) of the Rules. Lastly, the applicant was required to comply with rule 11(5) which provides: 'Wo order /'or stay of' execution shall be made under this rule unless the Court ls satisfied that (a) substantial loss may result to the party applying /'or stay of' execution unless the order ls mad~· (b) security has been given by the applicant ror the due perf'ormance of' such decree or order as may ultimately be binding upon him. // The Court in Joseph Antony Soares @ Goha v. Hussein Omary [2013] 1ZCA 328 and Mantrac Tanzania Limited v. Raymond Costa, [2011] TZCA 519, TANZLII has stressed that these conditions must be 5 com plied with cumulatively. In ihe present application, the applicants haw not demonstrated how they stand to suffer substantial loss if the order for stay of execution will not be granted. Further, it is not clear ho-// the certificate from the Permanent Secretary, Ministry of Finance will serve as a security for the performance o f decree. The purpose of keeping security is to safe guard the rights of both the applicant and respondent Therefore, rule 1 1 (5) of the Rules have not been complied by the applicants. That, being the position of the law I decline to grant the order of stay of execution and this application is dismissed with costs. DATED at ARUSHA this 13th day of November, 2025. Ruling delivered this 14th day of November, 2025 in the presence of Mr. Nestory Joseph Lutambi, learned State Attorney for the applicants and Mr. Gridon Ndibalema, learned advocate for the respondent connected through teleconference and Mages a Fabiane, the Court Clerk, is hereby certified as a true copy of the original. A. A. ISSA IlfSTT CE OF APPEAL J. J, KAMAl A DEPUTY REGISTRAR COURT OF APPEAL complied with cumulatively. In the present app/icat' h . . ion, t e applicants haw> not demonstrated how they stand to suffer substantial loss ·, th 1 e order for stay of execution will not be granted. Further, it is not clear how the certificate from the Permanent Secretary, Ministry of Finance will serve as a security for the performance of decree. The purpose of keeping security is to safe guard the rights of both the applicant and respondent. Therefore, rule 11 (5) of the Rules have not been complied by the applicants. That, being the position of the law I decline to grant the order of stay of execution and this application is dismissed with costs. DATED at ARUSHA this 13 th day of November, 2025. A A ISSA JUSTICE OF APPEAL Ruling delivered this 14 th day of November, 2025 in the presence of Mr. Nestory Joseph Lutambi, learned State Attorney For the applicants and Mr. Gridon Ndibalema, learned advocate For the respondent connected through teleconference and Magesa Fabianc, the Court Cler/\, is hereby certified as a true copy of the original. J. J, K/\M/\1 /\ l!ffUT'LJlf 61.ST.RAR ,ouRT Of APPfAt 6