China Henan International Cooperation Group Co. Ltd vs Athumani Ausiy Kirama & Others (Civil Application No. 1868 of 2025) [2025] TZCA 1140 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA CIVIL APPLICATION NO. 1868 OF 2025 CHINA HENAN INTERNATIONAL COOPERATION GROUP CO. LTD (CHICO) ................................ APPLICANT VERSUS ATHUMANI AUSIY KIRAMA ................................................ 1ST RESPONDENT TANZANIA NATIONAL ROADS AGENCY ........................... 2 nd RESPONDENT ATTORNEY GENERAL.........................................................3 rd RESPONDENT (Application for an order of Stay of Execution of the Decree of the High Court of Tanzania (Tanga Sub-Registry) at Tanga) (Mteule^J.) dated the 13th December, 2024 in Land Case No. 11 of 2022 RULING 13th & 15th October 2025 MGEYEKWA, J. A.: China Henan International Cooperation Group Co. Ltd ("the applicant") seeks an order of this Court staying execution of the order of the High Court of Tanzania (Land Division) at Tanga ("the High Court") dated 13th November, 2020 in Land Case No. 11 of 2022. The applicant was sued by the respondents, alleging that they had trespassed onto his farm, causing destruction and damage to the land and crops. The respondents sought, among other reliefs, an order compelling the i applicant to pay compensation. Alternatively, they prayed for an order requiring the applicant to pay TZS 4,733,424,000.00, being the actual cost of building materials, and further, a distinct amount of TZS 600,000,000.00, exclusive of the actual material costs. They also prayed for an award of general damages and costs of the suit. On its part, he disputed the respondent's claims for compensation. Having heard the evidence tendered by both parties, the learned trial Judge (Mteule, J.) found that the respondents established their case and were entitled for compensation and general damages. The trial court ordered further that the applicant to pay the respondents damages of TZS. 620,340,300.00 and the costs of the suit. The applicant was dissatisfied with the decision of the High Court. They thus lodged a notice of appeal, which is still pending before the Court. Meanwhile, on 18th August, 2025, the respondents instituted in the High Court an application for execution of the decree arising from the impugned decision. It is that move which triggered the institution by the applicants of this application for a stay of execution. The application which was taken under inter alia, Rule 11 (3),(4),(4A),(5),(6) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules), is supported by an affidavit sworn by Yu Wei Wu, the applicant. The grounds on which the application has been based are stated in the notice of motion as follows: (a) An exparte order for stay of execution of the decree of the High Court of Tanzania, Tanga Sub-Registry in Land Case No. 11 of 2022 pending hearing and determination of the application inter parties. (b) An order staying the execution of the decree of the High Court of Tanzania at Tanga in Land Case No. 11 of 2022, pending final determination of the intended appeal on the grounds that: i. A notice of intention to appeal has been preferred against the whole decision of the High Court of Tanzania, (Tanga District Registry) Land Case No. 11 of 2022, and the intended Appeal has a high chance of success. ii. Execution of the decree which is being appealed against will render the Applicant's Appeal nugatory. H i. The Respondent intends to attach a bank account at CRDB Bank that is account No. 0150552376200 in the name of the Applicant to pay money which are to be used for building the Tanga - Pangani Road Project under the supervision of TANROADS and the Government of Tanzania which act will paralyse the execution of that Road project from being carried out. iv. The Applicant stands to suffer substantial loss if the decree is executed. v . The Applicant is ready to deposit any security for stay of execution as will be ordered by the Court. At the hearing of the application, the applicant was represented by Mr. Erasmus Buberwa, learned counsel. The first respondent had the legal service of Mr. Stephen Sangawe, learned counsel, while the second and third respondents were represented by Mr. Rashid Mohamed Said, learned Senior State Attorney. At the outset, Mr. Sangawe, learned counsel for the respondents, informed the Court that an affidavit in reply had been duly filed on 10th October, 2025. In their submission, Mr. Sangwe and Mr. Said indicated that they were not opposing the application. However, they made their position clear that their non-opposition was conditional upon the applicant furnishing adequate security for the due performance of the decree that may ultimately be binding upon him. They further proposed that such security should not be less than the decretal sum, which presently stands at TZS 645,670,862. In response, Mr. Buberwa, learned counsel for the applicant, readily embraced the concession made by the learned counsel for the respondents. On the requirement of furnishing security for the due performance of the decree, a condition set out in rule 11 (5) (b) of the Rules. To that end, he referred the Court to paragraph 10 of the supporting affidavit, wherein the applicant expresses willingness to provide such security. 4 However, Mr. Buberwa took issue with the quantum proposed by the respondents. While conceding that TZS 620,340,300.00 is the decretal amount, he argued that it was on the higher side for purposes of security at this stage. He implored the Court to exercise its discretion judiciously, and cited the case of Mekefason Mandali & 9 Others v. Registered Trustees of the Archdiocese of Dar es Salaam, Civil Application No. 491 of 17 of 2019 [2021] TZCA 4 (5 February 2021 TanzLII), as guiding precedent. He argued that, in that case, though the decretal sum was TZS 60.000.000.00, the Court ordered a significantly lower amount TZS 20.000.000.00 to be deposited as security. He submitted that this approach underscores the discretionary nature of the Court’s power, which must balance the interests of the decree holder with those of the judgment debtor. I have carefully considered the submissions of the parties and the authority cited. It is not disputed that the application satisfies the requirements under Rule 11 (5) of the Rules, particularly sub-rule (b), which mandates the applicant to furnish security for the due performance of the decree. The principle underlying this requirement is to ensure that the decree holder is not prejudiced should the appeal fail, while at the 5 same time avoiding undue hardship to the applicant through imposition of an excessive burden. I agree with the learned counsel for the applicant that the amount to be deposited as security is not automatically equivalent to the decretal amount. The decision in Mefasoni Mandali (supra) is instructive. In that case, the Court was emphatic that the quantum of security lies within the discretion of the Court, and that such discretion must be exercised judicially, taking into account the particular circumstances of the case. In the present matter, while the decretal amount is not in dispute, the applicant has demonstrated willingness to provide security and has not shown any intention to frustrate the execution of the decree should the appeal be unsuccessful. On the other hand, I consider it imperative to safeguard the interests of the respondents, who have the benefit of a decree in their favour. Therefore, I am satisfied that the justice of the matter would be met by requiring the applicant to furnish a bank guarantee in the sum of TZS 50,000,000.00 as security for the due performance of the decree. I am of the considered view that this amount strikes a fair balance between the competing interests of the parties. In the result, the application is hereby granted. Accordingly, I hereby stay the execution of the decree of the High Court dated 13th 6 December, 2024 in Land Case No. 11 of 2022, subject to the applicant depositing in the Court a bank guarantee in the sum of TZS. 50,000,000.00 within thirty (30) days of the date hereof. Costs shall be in the cause. Failure to comply with the condition above shall render this order for stay of execution automatically vacated. It is so ordered DATED at TABORA this date 15th October, 2025. A. Z. MGEYEKWA JUSTICE OF APPEAL The Ruling delivered, virtualy, this 15th day of October, 2025 in the presence of Mr. Erasmus Buberwa, learned Counsel for the Applicant, Mr. Stephen L. Sangawe, learned Counsel for the 1st Respondent, Mr. Rashid Mohamed Said, learned Senior State Attorney for the 2n d & 3r d Respondents and Oscar Msaki, Court Clerk; is hereby certified as a true 7