Aniceth Justin Matuja vs William Nicholaus Yango (Civil Application No. 1579 of 2025) [2025] TZCA 1089 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO 1579 OF 2025 ANICETH JUSTIN MATUJA .................................................... APPLICANT VERSUS WILLIAM NICHOLAUS YANGO (through Kherry Abeid Sakara holder of power of attorney) ........................ RESPONDENT (Application for Stay of Execution of the decree of the Kinondoni District Land and Housing Tribunal) in Land Application No. 531 of 2019 and the Decree of the High Court of Tanzania at Dar es Salaam (Land Division) (£wa&J) dated 15th April, 2024 in Land Appeal No. 420 of 2023 RULING 10th & 13th October, 2025 NGWEMBE, J.A.: The applicant sued the respondent before the District Land and Housing Tribunal for Kinondoni (Tribunal), claiming declaratory order of ownership, right of way (easement), injunction and damages over ownership of Plot No. 221 Block "D", Tegeta, Kinondoni Municipal, in Dar es Salaam Region. The applicant claimed that he entered into a USD 25,000.00 worth sale agreement with the respondent and agreed to sale part of l

his plot of land. That despite full performance on his side, the respondent declined to cooperate and partition the said plot of land. Instead, the respondent ended threatening to sale the plot to other people. The respondent admitted the fact that they entered into such agreement, but qualified his admission that the applicant paid only USD 10,000.00 out of USD 25,000.00 which amounted to breach of contract. The respondent raised a counter claim for declaratory order of ownership of the suit property, breach of contract and damages. The Tribunal declared that the applicant failed to perform full payment of the purchase price, and USD 15,000.00 was still outstanding. Proceeded to declare the respondent a lawful owner of the disputed property. Further, that the applicant's rights may be secured upon payment of the outstanding amount at the interest rate of 7% from the last date of payment according to the agreement. The applicant's first appeal to the High Court was unsuccessful. He remained aggrieved and has managed to file Civil Appeal No. 1381 of 2024 before the Court. While his appeal is still pending to the Court, on 13th August, 2025, the applicant was served with summons to show cause as to why 2

the application for execution should not be granted. The respondent applied for demolition of the applicant's house built on the plot and prayed for vacant possession. Thus, triggered the applicant to file the instant application, preferred under rule 11 (3) (4) (5) (6) and 11 (7) (b), (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules), supported by his own affidavit. The main grounds stated in the notice of motion are two; that the applicant has filed an appeal to the Court; and that the respondent has applied for execution of the impugned judgment and decree. As such, unless stay of execution is granted, the appeal will be rendered nugatory. In paragraph 9 of the affidavit, the applicant averred that the application for execution was scheduled for hearing on 13th August, 2025, he made commitment to provide security as reflected in paragraph 12 and he attached a copy of village resolution granting him 100 acres of land at Mazingara Village in Handeni District, Tanga Region. He demonstrated readiness to put that land as a security. The respondent filed an affidavit in reply which confirms the facts constituting the background alluded to above. However, he objected the application as was time barred and that the applicant was served with 3

summons for execution in Misc, Land Application No. 406 of 2024, which was later struck out (Paragraphs 3, 8, 9 and 11 of the affidavit). At the hearing of this application, Mr. Cleophas Mbishi Manyangu, learned advocate represented the applicant, while Mr. Yohana Julius Ayall, learned advocate appeared for the respondent. Mr. Manyangu amplified the application by submitting that the application was filed on 18th August, 2025, only five days from the date of service of the notice of execution that is on 13th August 2025. He pointed out that rule 11 (4) of the Rules was complied with and all relevant documents were attached to the application. On irreparable loss, the learned advocate argued that the applicant had built a house in the disputed land and is living in that house which the respondent seeks to demolish, while his appeal is still pending before the Court. He paid homage to our decision in the case of Dr. Joel Msuya v. Cammila Brian and Maxine Brian, Civil Application No. 135/02 of 2018 (unreported), and prayed that the application be granted. In reply Mr. Ayall, adopted the affidavit in reply and argued that the applicant has failed to meet the requirements of rule 11 (4) of the Rules. He referred to the previous application for execution served to 4

the applicant on 8th November, 2024. According to him, the 14 days period expired in year 2024, as the applicant was aware of the execution since then. Traversing the applicant's affidavit and submissions, Mr. Ayall submitted that the applicant did not state how he will suffer irreparable if the said house is demolished. Pointed further that the security was not sufficient. He buttressed his argument with a case of NCBA Bank Tanzania Ltd v. Salvatory Mwandu (Civil Application No. 45 of 2021) [2023] TZCA 74 (28 February 2023) (TANZLL). He rested with a prayer that the application be dismissed. When stood for rejoinder, Mr. Manyangu challenged the respondent's submission and affidavit that they have imported extraneous matters, irrelevant to the present application. Stressed that for the purpose of this application, the applicant was served with an application for execution on 13th August, 2025 and filed the instant application on 18th August, 2025. Regarding the value of the security, the learned counsel submitted that the 100 acres of land was only for commitment. Thus, the application be granted. Having scrutinized the reasons for the application, the record before me and submission of the learned counsel, the major issue for my determination is whether the applicant has complied with rule 11 of 5

the Rules. Before going into the merit of the application I find imperative to determine the point of time limitation raised and argued by the respondent. Undeniably, the respondent does not dispute that the applicant was served with the notice of execution on 13th August, 2025 and does not dispute that the application for execution which the applicant was served with was filed on 12th August, 2025 as the record reflects. Also, he did not deny that the applicant after being served, filed this application within 5 days. ITie basis of the argument brought forward by the respondent's counsel lies on some facts of the background as he has claimed in the affidavit and some documents annexed thereto. It appears, on 30th October, 2024 the respondent filed an application for execution in Misc. Land Application No. 406 of 2024 and served the same to the applicant on 8th November, 2024. But the respondent himself states in para 11 of the affidavit in reply that the said application was struck out. However, paragraph 10 of the affidavit in reply indicates that the first application was struck out but did not warrant the applicant to file a new application for stay of execution because the applicant was aware of the execution since 8th November, 2024, hence out of time. 6

Having considered all the facts constituting this application, I am of the earnest view that the respondent's objection is based on things of the past. I am at one with Mr. Manyangu, that submitting on the past which is inapplicable to the instant application is tantamount to extraneous matters irrelevant to the subject matter. Equally, I have failed to collect any sense in saying that the application is out of time. The applicant in this application is seeking to stay execution in Mi sc Land Application No. 281 of 2025 which is sought before the Tribunal. Obvious, execution in Misc. Land Application No. 406 of 2024 does not exist since it was struck out. No one can apply to stay a non-existing application. Once it is struck out, it ceases to exist. Rule 11 (2) (3) (4) of the Rules, is clear that a person may apply for stay of execution in an intended execution. Between the parties, the intended execution is Misc. Land Application No. 281 of 2025. The attempt of the respondent's advocate to enforce time limitation reckoning from the service of the previous application which was struck out is nothing but deliberate attempt to distract the applicant and the Court from a proper perception of the matter. M r. Ayall, sought reliance to the decision of NCBA Bank Tanzania Ltd v. Salvatory Mwandu (supra) which is different from 7

the instant application. In that case, the applicant had filed the application beyond 14 days, from the first service. But sought to rescue her application by moving the court to reckon from the day the amended application was filed. The Court maintained that amendment of the application did not affect the time when the respondent became aware of the execution. It is known, when an order for amendment is issued, it does not cease to exist, rather amends the existing application contrary to striking it out an application which ends its existence. I therefore, find that the instant application was filed within time. I would now consider as to whether the application bears merit and if it meets the statutory requirements as we decided in the case of Mwanza Regional Crimes Officer & Others v. Protas Kashumba (Civil Application No. 427 of 2018) [2019] TZCA 411 (6 November 2019) (TANZLL). I have already resolved that the application was filed timeously and according to the record, he has complied with rule 11 (7) (a), (b), (c) and (d) of the Rules, as the applicant annexed all the required documents which are judgment and decree sought to be executed, together with the judgment and decree of the High Court, he is 8

appealing against, his notice of appeal and notice of intended execution. The learned advocate for applicant argued on irreparable loss that the applicant and his son may become homeless if the order for stay of execution is not granted. Undeniably, the execution sought by the respondent is demolition of the applicant's house and vacant possession on the disputed land. Demolition in itself, is a significant irreparable loss, because the demolished house cannot be restored in case the appellant's appeal is successful. This Court has ranked demolition of houses as among the irreparable harm in decisions without number including the case of Haruna Mpangaos and Others v. Tanzania Portland Cement Co. Ltd (Civil Reference No. 3 of 2007) [2007] TZCA 366 (7 December 2007) (TANZLL). The Court observed as follows: "The learned single judge recapitulated these principles when making a summary of the rival contentions of the learned advocates. She opined that any damages suffered by the applicants could be compensated adequately by an award of damages which the respondent would be able to pay. That may well be so, but in case the applicants should emerge winners in 9

their appeal by then their cherished houses wouid probably have been razed to the ground. This is not the kind o f damage which can be expressed in purely financial terms however substantial the compensation might turn out to be. The physical loss of their houses; the emotional sentiments attached to them; the agony o f their families being rendered homeless and all that, is an unquantifiable factor which cannot be compensated by an award of damages." (emphasis added) In this case, the applicant averred in his affidavit that the said house is a residential and he lives therein with his son. No facts were deponed by the respondent to dispute it. Therefore, the said house is a residential where the applicant resides. In case of its demolition, he will become homeless. In regard to security, the law is settled that firm undertaking is sufficient. Decisions of the Court are many on this point, including Tanzania Petroleum Development v. Mussa Yusuph Namwao & Others (Civil Application No .603/07 of 2018) [2019] TZCA 682 (4 November 2019) (TANZLL). The applicant's counsel was right that giving 100 acres of land was a firm commitment and undertaking. I 10

understand that the Court will be at liberty to prescribe conditions depending on the circumstance of each case as it was held in B.R. Shindika t/a Stella Secondary School v. Kihonda Pitsa Makaroni Industries Ltd [2021] TZCA 258 (16 June 2021) (TANZLL). Therefore, rule 11 (5) of the Rules leaves it open to the Court to exercise its discretion in determining reasonable security to be deposited. Adequacy of the value of the applicant's 100 acres of land would be immaterial, what matters is his firm undertaking to give security. In this application the applicant is committed to give as security 100 acres of land which in the circumstances of this matter is satisfactory. In this application, the applicant has cumulatively satisfied the conditions under rule 11 of the Rules, which implies that the applicant will suffer irreparable loss if the order for stay of execution is not issued, at the same time, the pursuit of his appeal pending before the Court will be rendered nugatory. In the circumstances, there is no ground which may prevent this Court to exercise its discretionary powers in favour of the applicant. Therefore, the application is granted and I order that the execution of the decree of the Tribunal in Land Application No. 531 of 2019 (Misc. Land Application No. 281 of 2025) 11

be stayed pending determination of the Civil Appeal No. 1381 of 2024 by the Court. The order for stay of execution is subject to the conditions that the 100 acres of land shall remain undisturbed until the final decision of the pending appeal. I order each party to bear his own costs. It is so ordered. DATED at DODOMA this 13th day of October, 2025. P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 13th day of October, 2025 in the presence of Mr. Cleophas Mbichi Manyangu, learned Advocate for the Applicant, Mr. Vohana Julius Ayall, learned Advocate for the Respondent, via virtual Court and Ms. Christina, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 12