Mbarala A. Maharagande and Others vs Mahiku A. Maharagande (Civil Application No. 496/01 of 2021) [2022] TZCA 3104 (14 September 2022)

MBARALA A. MAHARAGANDE & OTHERS VS. MAHIKU A. MAHARAGANDE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KOROSSO, KITUSI AND MASHAKA JJ.A) CIVIL APPLICATION NO. 4 96 /01 OF 2021 (Application for stay of execution of the Judgment and Decree of the High Court of Tanzania (Dar es Salaam District Registry) at Dar es Salaam in PC. Civil Appeal No. 7 of 2009) Civil Procedure and Procedure- Execution – Application for Stay of Execution- What is the time limit to file application for stay of execution? Civil Procedure and Procedure- Execution – Application for Stay of Execution- What should be contained in the application? Civil Procedure and Procedure- Execution – Application for Stay of Execution- Whether or not the applicant is required to prove all the conditions cumulatively? The applicants jointly moved the Court by notice of motion seeking a stay of execution of the decree of the High Court of Tanzania at Dar es Salaam in PC Civil Appeal No. 7 of 2009 dated 28th June, 2012, pending the hearing and determination of an intended appeal. They alleged that the respondent, as administrator of the estate, had failed to distribute the estate to the beneficiaries and to file the required inventory in court in accordance with the law. The dispute arose from claims that the respondent had not properly discharged his duties as administrator, resulting in mismanagement and displacement of the deceased’s properties, particularly a house situated at Plot No. 81/2N, Block “B”, Uhuru Street, near NMB Bank, Morogoro Municipality.

Held: (i) The Court reiterated that an applicant must lodge the application within fourteen days from the date that he was served with the notice of execution or from when he became aware of the execution proceedings in terms of rule 11 (4) of the Court of Appeal Rules, 2009. (ii) Further, the Court stated that an applicant must also attach to the application the notice of the intended execution and make a firm undertaking and confirm at the hearing that he shall furnish security for the due performance of the decree in terms of rule 11 (7) (d) and 11(5) (d) of the Rules. (iii) The Court reinforced its earlier position stated in the case of Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010 and Mohamed Masoud Abdallah and Sixteen Others v Tanzania Road Haulage (1980) Limited, Civil Application No. 58/17 of 2016 (both unreported) among others, where it was held that application such as this all condition necessary must be proved cumulatively otherwise the application will fail. Application was dismissed with no orders as to costs. Statutory provisions referred to: (i) Court of Appeal Rules, 2009, Rules 11(4), 11(5)(d), 11(7)(d). Case laws referred to: (i) Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010. (ii) Mohamed Masoud Abdallah and Sixteen Others v Tanzania Road Haulage (1980) Limited, Civil Application No. 58/17 of 2016 (both unreported).