Omary Aboud vs Justine Massawe (Civil Application No. 202503140000553 of 2025) [2025] TZCA 1177 (10 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 202503140000553 OF 2025 OMARY ABOUD........................................................................... APPLICANT VERSUS JUSTINE MASSAWE .............................................................. RESPONDENT (Application for Stay of Execution of the Judgment and Decree of the High Court o f Tanzania at Dar es Salaam, District Registry) (Nqunvale, :n dated 10th day of December, 2024 in Civil Case No. 143 of 2019 RULING 10th November, 2025 M6EYEKWA. 3.A.: This is an application for stay of execution made under rules 11 (3), (4), (5), (6), (7), 48 (1) and 60 (1) & (2) of the Tanzania Court of Appeal Rules, 2009 (hereinafter "the Rules"). The applicant seeks an order for stay of execution of the judgment and decree of the High Court of Tanzania at Dar es Salaam in Civil Case No. 143 of 2019, pending the determination of an intended appeal. The application is supported by an affidavit sworn by Mr. Ashiru Hussein Lugwisa, learned counsel for the applicant, setting out the reasons why the order sought should be granted. When the appeal was called on for hearing, the applicant had the legal service of Mr. Ashiru Hussein Lugwisa, learned counsel while the respondent appeared through Mr. Heriel Obedi Munisi, also learned counsel. The respondent did not file an affidavit in reply. After a brief dialogue with the Court, Mr. Munisi informed the Court that although he had not filed an affidavit in reply, he was opposing the application on a point of law namely, that the applicant had not demonstrated in his supporting affidavit that he would suffer loss if execution were not stayed. In response, Mr. Lugwisa submitted that paragraphs 9 and 10 of the supporting affidavit clearly state that if the intended execution is not stayed, the applicant will suffer substantial loss. He pointed out that the sum involved, TZS. 107,980,580.00, is substantial and, if execution were to proceed, it would materially and adversely affect the applicant's operations. Counsel further contended that the applicant, being a family man and the sole breadwinner, would suffer both financial and psychological hardship. I have carefully considered the notice of motion, the affidavit in support of the application, and the oral submissions of learned counsel for both parties. The main issue for determination is whether the applicant has satisfied the condition under rule 11 (5) (a) of the Rules namely, that he will suffer substantial loss if the decree is executed before the intended appeal is determined. It is not in dispute that the application was filed within time in compliance with rule 11 (4) of the Rules. On the issue of substantial loss, I am satisfied that in paragraph 9 (a) of the supporting affidavit, the applicant has stated clearly that the amount involved is colossal and that execution would materially affect his business operations. I therefore agree with Mr. Lugwisa that the requirement under rule 11 (5) (a) of the Rules has been duly met. Consequently, the objection by Mr. Munisi is without merit. For the foregoing reasons, the application is hereby granted. Pursuant to rule 11 (3) of the Rules, execution of the decree of the High Court of Tanzania at Dar es Salaam dated 10th December, 2024 in Civil Case No. 143 of 2019 is stayed pending the hearing and determination of the intended appeal. Furthermore, in accordance with rule 11 (5) (b) of the Rules, the applicant is ordered to deposit with the Registrar of the Court an irrevocable bank guarantee in the sum of TZS. 107,980,580.00 within sixty (60) days from the date of this ruling. The said guarantee shall be renewable to cover the entire period until the intended appeal is finally determined. Since the application is unopposed, I make no order as to costs. DATED at ARUSHA this date 10th November, 2025. A. Z. MGEYEKWA JUSTICE OF APPEAL Ruling delivered this 10th day of November, 2025 via vitual Court in the presence of Mr. Ashiru Hussein Lugwisa, learned counsel for the Applicant, Mr. Heriel Obedi Munisi, learned Counsel for the Respondent and Janekisa Bukuku, Court Clerk is hereby certified as a true copy of the original. 4