Naomi Gibson Kisyombe vs Angasilini Munuo & Another (Civil Application No. 202507300001451 of 2025) [2025] TZCA 1144 (17 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 202507300001451 OF 2025 NAOMI GIBSON KISYOMBE.................................................... APPLICANT VERSUS ANGASILINI MUNUO ...................................................... 1 st RESPONDENT BOSCO ELIA MWAMSUKU (As Administrator of the Estate of the Late USHINDI EUA MWAMSUKU ................ 2 nd RESPONDENT (Application from execution No. 21 of 2025 in the District Land Housing Tribunal of Mbalali at Rujewa) (Monaela, J.1 dated the 3rd day of November, 2022 in Land Appeal No. 29 of 2022 RULING 23rd September, & 17th October 2025 MGONYA, J.A.: The applicant, Naomi Gibson Kisyombe has brought this application to seek an order of the Court for stay execution of the decree dated 3rd November, 2022 in Land Appeal No.29 of 2022. The application is by way of notice of motion supported by the affidavit sworn by Ms. Pamela Kalala, the applicant's counsel. On the other hand, Mr. Angasilini Munuo, the 1s t respondent, objected the application vide the affidavit in reply which was filed on 14th August 2025. i Before we embark on the exercise of determining the application, I find it relevant to state briefly facts giving rise to the instant application. Before the District Land and Housing Tribunal for Mbalali at Rujewa, the applicant instituted a suit against the respondents. The dispute involved the Land located at Kapunga area, Itamboleo ward Mbarali district, Mbeya region (the suit land). The Tribunal ruled in her favor by declaring that, the land in dispute was matrimonial property. Consequently, the first respondent was ordered to vacate the suit land. Aggrieved, the 1st respondent filed an appeal at the High Court (District Registry of Mbeya) vide Land Appeal No. 29 of 2022. Having heard the parties, the High Court Judge ruled in favor of the 1st respondent. In his judgment the first appellate Judge agreed with the 1s t respondent argument that, there was no proof of the applicant's interest on the suit land through marriage or whatsoever. Consequently, the tribunal judgment and orders were quashed. In a bid to yield the fruit of the decree, the 1s t respondent instituted an application for execution. On the other hand, still believing that, she has an interest of over the suit land, the applicant intends to challenge the High Court decision by way of appeal. Hence, she filed an appeal along with the instant application to stay the intended execution. At the hearing of the application, Ms. Pamela Kalala, learned counsel appeared for the applicant whilst, Mr. Chapa Alfred, learned counsel represented the 1s t respondent and the 2n d respondent appeared in person, unrepresented. Submitting in support of the application, Ms. Kalala adopted the contents of the notice of motion and the affidavit and went further to submit that, the application is made pursuant to rule ll(3)(4)(5)(a)(b)(6) and 7 of the Tanzania Court of Appeal Rules, 2009 as amended (the Rules). She further submitted that the applicant complied with all the conditions set out by the Rules. Further that the application was filed within 14 days as required by the law. Further, by referring to paragraph 8 of the affidavit, she asserted that, if the application is rejected, the applicant will suffer irreparable loss. Ms. Kalala argued that, the suit land is used by the applicant for farming to sustain himself in food and for business. That the applicant is ready to furnish security according to Court's direction, if the appeal will not succeed. In regard to compliance of rule 11(7) (a-d) of the Rules, Ms. Kilala submitted that, all the required documents stipulated by the rule has been attached. She went further to submit that, before the Court there is already pending Civil Appeal No. 354/2024, hence if the application is denied, the same will be rendered nugatory. Premising on what she submitted and by referring to the case of EcoBank Tanzania Ltd v. Double A Company Limited and 3 Others (Civil Application No. 178 of 2021) TZCA 591 (29 September 2022), she implored me to grant the application. In reply, Mr. Chapa having adopted the affidavit in reply, he referred me to rule 11(3) of the Rules and contended that, an appeal is not hindrance of execution. He went on to argue that, the execution will be stayed if there are relevant and good cause brought by the applicant. By referring to paragraph 8 of the applicant's affidavit, he argued that, the reason stated that, the applicant is using the farm for his family's welfare, cannot be the cause of preventing execution to take place. Mr. Chapa contended further that, from the applicant's affidavit there is no any paragraph which suggest as to how the applicant will be affected if the application is denied. To support his stance, the learned counsel cited the case of The Registered Trustees of Kanisa la Upendo wa Kristo Masihi (KIUMA) v. The Registered Trustees of Kituo cha Elimu na Maendeleo (MATEMANGA) (Civil Application No. 1078 of 2024) [2025] TZCA 391 (7 May 2025). Adding further Mr. Chapa argued that, a mere saying that someone will get loss is not enough. In his view, rule 11(5) (a and b) of the Rules, requires the amount or extent of loss be demonstrated. To bolster his stance, the case of Elia Mwamafupa & 11 Others v. The Board of Trustees of Baptist Church of Tanzania (Civil Application No. 526 /06 of 2024) [2024] TZCA 844 (30 August 2024), was cited. It was the learned counsel's stance that, this application for stay of execution hinders the respondent to enjoy the fruit of decree. On the issue of security, Mr. Chapa argued that, as it is in paragraph 10 of the supporting affidavit, with reference to Ecobank Tanzania Ltd (supra), that case is distinguishable with the circumstances in the instant application. He contended that, unlike in this application, in Ecobank there was no any land issue. The learned counsel stressed that, the issue of bank guarantee cannot apply as the counsel did not introduce the land in detailed. Mr. Chapa ended up by arguing that, the existence of Appeal No. 324 of 2024, is not hindrance for the decree holder to execute his right. In the event he prayed the applicant's application be denied and the same be dismissed with costs. On his part, Mr. Mwamasiku supported the application and urged that, the execution be stopped pending hearing of the appeal. He further submitted that, his late brother sold the land without involving his wife. The act which brought a big problem as the farm is the only property left for her and the entire family to survive. In her rejoinder, Ms. Kalala admitted that, the appeal is not hindrance to execution. Nonetheless she argued that, the 1s t respondent did not show how he will be prejudiced if the application is granted. She further reiterated her earlier submission on the expected loss if the prayer will not be granted. On the issue of security for the due performance, she stated that the same is the discretion of the Court. The learned counsel prayed, the prayer be granted for preventing the appeal to be rendered nugatory. I have heard the submissions of the learned counsel and the 2n d respondent for and against the application. I have also considered the notice of motion and the affidavits filed to that effect. At this juncture, I find the main issue which I have to resolve is; whether the applicant has cumulatively fulfilled the conditions stipulated by the law for an order for stay of execution to be granted. To start with the compliance of rule 11(4) of the Rules, on the time limit, the applicant deponed under paragraph 4 of the affidavit that, she was served with an application for execution on 17th July, 2025. It is on record that, the instant application was filed on 22n d July, 2025. That being the facts, the instant application was filed after five days which is within fourteen days as per the dictates of rule 11(4) of the Rules. In regard to rule ll(5)(a) and (b) of the Rules, on the expected loss and security for the due performance of the decree, it has been deponed by the applicant under paragraph 8 of the affidavit that, if the execution will succeed, the applicant will be affected adversely. She deponed that the applicant's operation will be substantially jeopardized and paralyzed hence she will suffer irreparable loss. That, the applicant depends on a suit land for cultivation for food and it is a source of her economy. On the issue of security, she deponed under paragraph 10 of the affidavit that, she is ready and willing to undertake to furnish security in the form of insurance Bond and Bank Guarantee as the Court may order. In reply, the first respondent did not dispute on those facts rather he intimated under paragraph 5 of his affidavit in reply that, the applicant will not be affected with the outcome of the execution. According to Mr. Chapa the 1st respondent wants to enjoy the fruits of the judgment which was delivered in his favour. It is trite law that, the principle governing the application of this nature is the balance of convenience. That, neither party is put in jeopardy. Equally, it is the settled law that, the Court is enjoined to protect the rights or interest of the judgment debtor just as the rights or interest of the decree holder. See for instance- Kombo Khamis Hassan v. Paraskeyopolous Angelo (Znz Civil Application No.6 of 2006) [2006] TZCA 27(6 November 2006) and Ecobank Tanzania Limited (supra). As ailuded to above, parties in this application are in the battle over the ownership of land. The first appellate court declared the 1s t respondent the rightful owner, whilst the applicant believe that the High Court erred in that decision. As a result, she intends to appeal against the said decision to this Court. On the other hand, the 1st respondent filed an application No. 21 of 2025 seeking to execute the High Court decree. The mode of execution sought by the 1s t respondent is by involving a broker who will assist him to take possession over the suit land. On my part, having considered the nature of the parties' dispute and the highlighted difficulties as envisaged in the applicant's affidavit, I am persuaded to agree that, if the execution will proceed, the applicant will suffer irreparable loss as she highlighted. Likewise, the appeal which she had already filed will be rendered nugatory. On the issue of security for the due performance of the decree, the applicant intimated under para 10 of the affidavit that, she is willing and s undertakes to furnish security which the Court may order. The law under rule ll(5)(b) of the Rules is not specific on the type or amount of security to be furnished. Therefore, it is the Court which is left with discretion to determine security to be provided depending on the circumstance of each case. See for instance Mohamed Masoud Abdallah & Others v. Tanzania Road Haulage (1980) Ltd (Civil Application No. 58 of 2016) [2019] TZCA 198 (24 June 2019). Likewise, in the case of Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010, the Court established that, a firm undertaking to furnish security is sufficient. In the instant application, I equally find that by deponing that the applicant is ready to furnish security as intimated above, she has fulfilled the requirement of the law. Therefore, there is no qualms that the conditions required under rule 11 (5)(a) and (b) of the Rules, were met. With regard to compliance of rule 11(7) (a-d) of the Rules, this should not detain me much as it is clear from record that, all the documents listed under sub rule 7(a-d) of the Rules, which includes a judgment, a decree, a notice of appeal and a notice of the intended execution have been attached with the application. Premising on the findings above, it is my firm view that, the applicant has cumulatively satisfied the conditions for grant of the application for stay of execution. Consequently, prudence and common-sense demand that, it will be for the interest of justice to order stay of the execution No. 21 of 2025, pending hearing and determination of appeal No. 354 of 2024. Having considered the circumstances of this case where the impugned decree is not in monetary, in exercise of my discretion, I have found it appropriate that a written bond undertaking to maintain status quo of the suit land is suffice to save as a security for the due performance of the decree. In the event, the applicant has to furnish such security within fourteen days from the date of delivery of the ruling. Costs to follow in the cause. It is so ordered. DATED at DODOMA this 17th day of October, 2025 Ruling delivered this 17th day of October, 2025 in presence of Mr. Kones Ben holding brief of Ms. Pamela Kalala, learned counsel for the applicant and Mr. Chapa Alfred, learned counsel for the 1s t respondent via virtual court from Mbeya, in the absence of the 2n d respondent and Mr. Magesa Fabiane Mgeta, Court Clerk; is hereby certified as a true copy of the L. E. MGONYA JUSTICE OF APPEAL original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 10