Kilemakyaro Mountain Lodge Limited & Another vs Barclays Tanzania Limited (Civil Application No. 1177 of 2024) [2025] TZCA 1165 (23 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 1177 OF 2024 KILEMAKYARO MOUNTAIN LODGE LIMITED ..... . ................. 1 st APPLICANT RAFIKI INVESTMENT LIMITED ..... . ...................................... 2 nd APPLICANT LAURA 30ACKIM MINDE and VALENTINE JOACKIM MINDE (As Administratrixes of the Estate of the late Joachim Victor Minde) ...... . .......................................... 3 rd APPLICANT VERSUS BARCLAYS TANZANIA LIMITED (Currently known as Absa Bank Tanzania Ltd) ........ ....................... .................... RESPONDENT (Application for Stay of Execution of the ruling of the Execution Officer of the High Court of Tanzania at Arusha) (Kamala. DR^ in Application No. 11 of 2023 RULING 9th & 23rd October, 2025 RUMANYIKA. J. A.: The applicants are seeking for an order of stay of execution of a decree of the High Court of Tanzania, at Arusha in Civil case No. 32 of 2016 culminating into Execution Application No. 11 of 2023 there. Therefore, the application has been brought pending determination of an appeal against the decision of the Executing Officer (Kamara, Deputy Registrar) dated 16th April, 2024 therein. Noteworthy, the aforenamed proceedings were resolved through a consent judgement between the parties. It appears, the applicants i (Judgment Debtors) did not adhere to the consensual terms. Consequently, the respondent was successful in the execution proceedings before the High Court. The Executing Officer, as noted above, ordered for renegotiation or the applicants pay the outstanding amount of money complying with the consent judgment within ninety days. It was ordered that should the applicants fail to pay, the 3r d applicant's landed property with Certificate of Title No. 27706, Land Office No. 256497, Farm No. 2531, Changarawe village, Karatu District, Arusha in the name of Joachim Victor Minde and Certificate of Title, No. 3071, Land Office No. 43800, Plots Nos. 1& 2, Block "C", Unga Limited Area, Arusha City in the name Rafiki Investment Limited, be attached and sold. Aggrieved with the ruling above, the applicants filed an appeal to this Court and now this application for stay of execution under Rules 11(3), 11(4), ll(4)(a), 11(5), (a) and (b), 11(6), ll(7)(a) - (d) and rule 48(1) of the Court of Appeal Rules, 2009 ("the Rules"). It is supported by an affidavit sworn by Gwakisa Kakusulo Sambo, the learned advocate for the applicants. Attached thereto are copies of the ruling of the Executing Officer, notice of appeal against the said Judgment and decree of the High Court in Civil Case No. 36 of 2016 and the respective notice of execution. 2 Messrs. Gwakisa Kakusulo Sambo and Innocent Mwanga, both learned counsel appeared for the applicants and the respondent, respectively when the application was called for hearing virtually by way of video conference on 9th October, 2025. Mr. Sambo prefixed his submission by informing the Court that Sarah Joachim Minde and Lucy Tracy Joachim who previously stood as pendente iite administratrixes of the estate of the late Joachim Victor Minde their letters were revoked and replaced by Laura Joachim Minde and Valentine Joachim Minde. Therefore, he successfully asked the Court's indulgence for the two to be joined in the proceedings in place of the said deceased in terms of rule 105(1) of the Rules, as Mr. Mwanga had no qualms. On the merits of the application, Mr. Sambo began by adopting the supporting affidavit as part of his oral submission. He contended that, the applicants have met the threshold for the grant of a stay order. Referring to paragraph 8 of the supporting affidavit he asserted that, on 21s t October, 2024, the applicants were served with notice of the intended execution and he filed this application on 4th November, 2024 which is well within a period of fourteen days prescribed under rule 11(4) of the Rules. Expounding on it, Mr. Sambo contended that, on 21s t October, 2024 the applicants were served with the notice of execution and they filed the 3 instant application 4th November, 2024. Another condition fulfilled, he added, is that the applicants stand to suffer irreparable loss should the application not be granted as averred in paragraphs 10 and 17 of the supporting affidavit. He also asserted that, the applicants have undertaken to furnish security for the due performance of the decree in terms of rule 11(5) (b) of the Rules, as averred under paragraphs 12 to 15 of the affidavit. Lastly, Mr. Sambo referred me to copy of the impugned ruling and notice of appeal (annexure K-2 collectively) in fulfilment of the condition under rule 11(7) of the Rules. He prayed for the grant of a stay order while not pressing for the costs. Replying, Mr. Mwanga commenced his submission by adopting the affidavit in reply filed on 22n d November, 2024. He contended that under paragraph 15 of the supporting affidavit the applicants express their profit and gains and not alleged likelihood of irreparable loss on their part. That if anything, the make profit and they has to satisfy the decree despite of the ninety days' extra grace period to pay. He added that, the applicants' firm undertaking to furnish security may have been demonstrated but it should go with irreparability of loss cumulatively. Alternatively, he added that the respondent would not mind should the applicants present bank guarantee equivalent to USD 883,320.00. 4 Rejoining, Mr. Sambo reiterated his earlier submission. With regard to form of the security to be furnished by the applicants, he urged the Court to exercise its discretion. I have examined both the Notice of Motion and the founding affidavit critically. At least it is plain to me that the notice of appeal dated 15th May, 2024 which is appended to the application as annexure K-2challenges the ruling of the Deputy Registrar exercising powers under Order XLIII rule 1 of the Civil Procedure Code Cap. 33 ("the CPC") as Executing Officer. However, the factual background giving rise to this application would raise one central issue for determination, as to whether the applicants have met the threshold under rule 11(7) of the Rules. It reads as follows; 11(7)- "An application for stay o f execution shall be accompanied by copies o f the following - (a) a notice o f appeal; (b) a decree or order appealed from; (c) a judgment or ruling appealed from; and (d) a notice o f the intended execution ." It is worth noting, in the instant application that the notice of motion only seeks a stay order on a decree of the High Court, not the ruling of 5 the Executing Officer as Mr. Sambo would urge me to consider. For clarity and easy reference, its operative part reads thus; "This Court be pleased to stay the execution o f the Decree by the High Court... in Civil Case Number 32 o f 2016..." Nonetheless, copy of notice of appeal (annexure "K-2" to the instant application) vividly seeks to challenge the ruling of the Executing Officer. Its relevant part reads as follows; "Take notice that the applicants ...being dissatisfied with the whole proceedings, Ruling and Drawn Order o f the High Court....atArusha, by... KAMARA, DR issued on the l& h day o f April, 2024 in Execution Application No. 11 o f 2023 intends to appeal to the Court o f appeal ..." From the two excerpts above, therefore, I note that, copies of the notice of motion and notice of appeal attached to the application in terms of rule 11(7) of the Rules are at variance resulting to a serious defect of the application. I shall explain. As such, gathered from the notice of motion, the stay order being sought is predicated on the alleged aggrieving consent decree of the High Court. Needless to say, it was entered by execution of a Deed of Settlement. However, the supporting affidavit concerns the applicants' grievances on a ruling of the Executing Officer. Also note worth, copies of the two documents above only concern with ruling of the Execution Officer, as observed earlier on. Essentially, for any formal application as is the instant one, the function of the notice of motion cannot be emphasized than is necessary. It lays down a foundation upon which the application is built on. Therefore, it should not be at wall with the respective supporting affidavit and its annexures as is in this application, Therefore, the anomaly contravenes the mandatory requirement of rule 11(7) of the Rules rendering the application incompetent and untenable in the circumstances of the case. Of great interest, the notice of motion seeks to stay execution of uncontested decree of the High Court in Civil Case No. 32 of 2016. In fact under rule 11(7) of the Rules, an order to stay execution sought should have been in respect of the ruling of the Executing Officer which is not the case. It is instructive to recall, that a court decision which is not appealed from cannot be stayed, let alone seeking to stay it. Similarly, is the same case for an order which is incapable of being executed. See- Dimon Tanzania Ltd. V. The Commissioner General Tanzania Revenue Authority & Two Others, Civil Application No. 89 of 2005 which we followed in Keith Horan & Another v. Zameer Sherali Rashid & Another (Civil Application No. 230/15 of 2019) [2019] TZCA 438 (6 December 2019; TanzLII). My take of the executability and appealability of a decision meant in Dimon Tanzania Ltd. (supra) cannot be that of the Executing Officer but of the said consent decree in the present case. It is so because the Executing Officer's decision is not a modified consent decree or its substitute. Without preempting the intended appeal, therefore, it is the consent decree which would be stayed or executed, as the case may be under the circumstance. It cannot be circumvented by the alleged aggrieving Executing Officer's ruling. Mr. Sambo, with respect, may wish to remember that the means do no always justify the end. All the same, none of the copies of the said consent judgment or decree has been attached to the application. Also note worth, under rule 11 (7) of the Rules, copies of the other documents which needed to be attached to the application include but not limited to; copies of a notice of appeal, a decree or order, judgment or ruling sought to be appealed from, as the case may be and a notice of the intended execution. In this case, also, there should be copy of the drawn order issued by the Executing Officer, which was omitted. 8 Following from the stance above, therefore, I am settled in my mind that this application is not tenable for one main reason. Not only that it seeks to stay a consent decree as intimated in notice of motion but also, there is no notice filed corresponding to the notice of motion. I think this is by design and thus, for a purpose. As such, the applicants' move resembles an abuse of the court process likely resulting to endless litigation and defeat of the ends of justice. Therefore, the application is liable to be struck out with costs. The Court has so pronounced itself several times and repeatedly, such as in TULIP Tanzania Ltd. & Others v. EXIM Bank Tanzania Ltd. (Civil Application No 74316 of 2022) 2023 TZCA 17837 (16 November 2023; TanzLII). Therefore, in the present case the issue is not whether or not the ruling of the Executing Officer is appealable before the Court. Before penning off, I will increasingly hold that the rule of stay of execution is not such a broad-spectrum court relief to stay all courts' decrees unreservedly. It is selective enough depending on executability and appealability of the respective decision if it is preceded by filing of a proper notice of appeal, among the requisites. In the upshot, the application is respectfully misconceived, untenable and incompetent under the circumstances. Consequently, it is hereby struck out with costs. DATED at DODOMA this 23r d October, 2025. Ruling delivered this 23r d day of October, 2025 in the presence of Mr, Gwakisa Sambo, learned counsel for the applicants, Mr. Innocent Mwanga, learned counsel for the respondent and Ms. Jasmin Kazi, Court Clerk, connected through Teleconferencing, is hereby certified as a true copy of the original. S. M. RUMANYIKA JUSTICE OF APPEAL 10