Elia Elinimo Mswia vs Nancy Elia Mswia (Civil Application No. 1944 of 2025) [2025] TZCA 1172 (28 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DOPOMA CIVIL APPLICATION NO. 1944 OF 2025 ELIA ELINIMO MSWIA .......................... ..........................APPLICANT VERSUS NANCY ELIA MSWIA ..... ...................... .... ......................... RESPONDENT (Application for stay of execution of the judgment and decree of the High Court of Tanzania atTemeke) (Barthv, 3.) dated the 25th day of July, 2025 in Civil Appeal No. 5446 of 2025 RULING 24th & 28th October, 2025 MANSOOR, J.A.: By way of a notice of motion, the applicant, Elia Elinimo Mswia, moved the Court to grant an order of stay of execution of the judgment and decree passed on 25th July 2025 by the High Court of Tanzania, Temeke Sub Registry, One Stop Judicial Centre, in Civil Appeal No. 5446 of 2025. The application was supported by the affidavit of the applicant, in which he stated that, him and the respondent were a married couple having celebrated a Christian marriage in 2006, and were blessed with i two issues. He also said, during the subsistence of the marriage, they acquired assets both moveable and immovable, the accurate descriptions of which are found at page 9 of the judgement of the High Court as well as the decree. That, the High Court has issued a decree for division of those assets, and now the respondent has applied for execution of the High Court decree in total disregard of the existence of the notice of appeal already served on her. As the applicant intends to appeal against the decision of the High Court, and had already filed a notice of intention to appeal, he is seeking to stay the execution of the decree so as to prevent either of the parties herein to sale or dispose of the assets until the appeal is finally and conclusively determined. The applicant also averred that, if the stay order shall not be issued, the execution will proceed, which will render the appeal nugatory and that, the applicant as well as the respondent shall suffer substantia! loss. The applicant has given an undertaking to provide security for the due performance of the decree, as may ultimately be binding upon him, the mode of which shall be determined by the Court. As stated hereinabove and as depicted from the judgement of the lower courts, the matrimonial cause was initiated by the respondent at the District Court of Temeke One Stop Judicial Centre, whereupon, she was discontented, and had preferred an appeal to the High Court at Temeke. She succeeded in the appeal, as the decree of the district court was slightly varied in terms of the percentage of shares to be distributed to each party. The applicant was not satisfied with the decision of the High Court, he filed a Notice of Appeal on 20th August, 2025, and requested for copies of proceedings intending to challenge the said decision. While in the process of instituting the appeal, on 15th September 2015, the applicant was served with the notice of execution, wherein the respondent applied before the executing court for attachment and sale of the properties subject of the appeal. Inordinately, under the certificate of urgency, the applicant timely applied for stay of execution as above stated. The hearing of the application was conducted virtually before the Court, whereas the applicant was represented by Mr. Joseph Kipeche, learned Advocate, while the respondent was represented by Mr. Ambroce Menance Nkwera, learned Advocate. Mr. Nkwera did not oppose the application, however he requested for an order to maintain of the status quo over all the assets. He also said that, the respondent as well shall furnish a commitment bond as an undertaking not to disturb the status of the property until the appeal is determined. Mr. Kipeche on his part agreed to furnish a commitment bond for maintaining the status quo over all the properties, and undertook to file it within one week from the date of this ruling. Clearly, this application is unopposed, as well as the applicant has met all the requirements of rule 11(4), (5) and (7) of the Court of Appeal Rules, 2009, (the Rules). The application was filed timely, soon after the applicant was served with the notice of execution. The applicant has also annexed the judgment and decree appealed from, the Notice of Appeal, and the notice of intended execution, in total compliance of rule 11(7) of the Rules. Again, at paragraph 7 of the affidavit, the applicant has shown and established that he will suffer substantial loss, if the properties, the subject of the appeal, will be disposed of, which would render the appeal nugatory. The respondent’s concession during the hearing reinforces that a stay order is appropriate to preserve the status quo. As for security, the applicant has undertaken in paragraph 8 of his affidavit to furnish security for the due performance of the decree should the appeal fail. At the hearing, Mr. Nkwera proposed a security in the form of a commitment bond to be filed by both parties, a proposition which was agreed by Mr. Kipeche. I also agree with the proposition made by the learned counsels that, since the subject matter of the appeal is protection of the matrimonial assets, the applicant must commit himself to provide a commitment bond committing himself never to deal in any manner with the properties mention in the High Court Decree until the appeal is finally determined. The rationale of furnishing security was observed in the case of Rose Benedict v. Janet Evarist Njau and Others, Misc. Civil Application No. 311/02 of 2024[2024] T7CA 508 (27 June, 2024; TANZLII) where we stated; "I have also taken into account the fact that in the event that the intended appeal fails, there is nothing which shall specifically be required to be performed by the applicant in as long as the status quo o f the suit properties shall remain as they were. The risk related to the status quo can; in my humble view, be sufficiently secured by an order requesting the applicant to submit a commitment bond to that effect. In Mohamed Masoud and 16 Others v. Tanzania Road Haulage (1980) Ltd (Civil Application No. 58/17 of 2019) [2019] TZCA 198 (17th June, 2019) where, as in the instant case, the subject o f the intended appeal was a landed property, it was held that the security requirement would be fulfilled by the applicant upon furnishing a commitment bond guaranteeing that the suit property would remain in the same condition as it was at the issuance of the decree ," Based on the above, I order that the execution of the decree passed in Civil Appeal No. 5446 of 2025 issued on 25th July, 2025 by the High Court of Tanzania at Temeke, be stayed pending the hearing and determination of the appeal. The applicant as well as the respondent are ordered to furnish commitment bonds for maintenance of status quo of all the properties/assets mentioned and described in the impugned judgement of the High Court. Since each party has been apportioned a share to the properties, it goes without saying that, each party has the duty to preserve the assets until the appeal is determined. Particularly, I order both parties herein to give an undertaking in the form of a commitment bond not to sell, alienate, dispose of, or deal in any way with the properties or assets subject of the decree until the appeal is determined. The commitment bonds shall be deposited in Court within fourteen (14) days from the date of this Ruling. Since the origin of the matter is a matrimonial cause, I order each party to bear his or her own costs. DATED at DODOMA this 28th day of October, 2025. L. A. MANSOOR JUSTICE OF APPEAL The Ruling delivered this 28th day of October, 2025 in the presence of Mr. Joseph Kipeche, learned counsel for the Applicant, Mr. Ambroce Menance Nkwera for the Respondent and Ms. Harida Hamisi, Court Clerk both via virtual Court is hereby certified as a true copy of the original. 7