Reginold George Malyi vs Jazira Athuman Nguluko (Civil Application No. 910 of 2025) [2025] TZCA 959 (11 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 910 OF 2025 REGINOLD GEORGE MALYI.......................................... .................. APPLICANT VERSUS JAZIRA ATHUMAN N G U LU KO .................... ............................. RESPONDENT (Application for Stay of Execution of the Decree of the Resident Magistrate's Court of Dar es Salaam at Kisutu and the High Court of Tanzania at Dar es Salaam) f Mutunai. J.) dated 14th November, 2019 in Civil Application No. 343 of 2019 RULING gth & September, 2025 NGWEMBE. J.A.: Reginold George Malyi, through the learned advocate BatHda Abdon Mally filed notice of motion for exparte and inter-parte stay of execution of the judgment and decree of the Resident Magistrate's Court of Dar es Salaam at Kisutu arising from Matrimonial Cause No. 32 of 2017 delivered on 2nd November, 2018. The appeal to the High Court of Tanzania, in Civil Appeal No. 35 of 2019, delivered on 14th November, 2019 (Mutungi, J) was unsuccessful. Being dissatisfied with the decision

of the High Court, the applicant has appealed to the Court in Civil Appeal No. 486 of 2024. It is on record that the respondent has lodged an application for execution No. 7191 of 2025 at the Resident Magistrate's Court of Dar es Salaam at Kisutu. Hence, on 19th May, 2025 the applicant lodged the instant application for stay of execution. The exparte stay order was granted by the Court on 28th August, 2025 pending inter-parte hearing. Now this is an inter parte hearing of the application for stay of execution. The application is premised on grounds displayed on the face of the notice of motion and amplified on the attached affidavit sworn by the applicant. Mainly, the applicant alleges that the decision of the High Court is already appealed against to the Court. Thus, the instant application, if not granted the applicant stands to suffer irreparable harm because the house in dispute is residential, occupied by himself and his family. The background of this application is briefly reconned from a matrimonial dispute whereby the parties being husband and wife, their marriage ended up into a divorce. The issue which holds them to date is division of a house located at Mbezi where each one has a different

position. The dismissal of the appeal before the High Court, triggered the applicant to appeal to the Court as referred above. While the appeal was still pending to the Court, the respondent lodged an application for execution No. 7191 of 2025 before the Resident Magistrate Court of Dar es Salaam at Kisutu, which triggered the instant application for stay of execution. The applicant has moved the Court under Rules 4 (1) (2), 11 (3) (4) (5) and (6) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The notice of motion is supported by the affidavit, whereby the applicant, commits himself in paragraph 14 to honour the decree in case the pending appeal is dismissed and that, he is ready to deposit security for the due performance of the decree or execute a bond committing to maintain the status quo of the premise pending final disposal of the pending appeal. On the hearing date of this application, the applicant was represented by Ms. Batilda Mally, learned advocate, while the respondent was represented by Mr. Stanslaus Ishengoma, learned advocate. When the Court invited the learned counsel for the applicant to elaborate the application, Ms. Mally commenced her submission by adopting the affidavit in support of the notice of motion. That, the

applicant has complied with all legal requirements provided for in rule 11 of the Rules. She insisted that the application was lodged in Court timeously thus complying with rule 11 (4) of the Rules and that paragraphs 12 to 14, the applicant has expressed the irreparable loss he will suffer in case the execution is left to proceed. Since the decree holder intends to sale the suit house, which house is a family house occupied by the applicant and his family, meant the sale of it will deprive them forever and cause the pending appeal nugatory. Thus, she urged that the applicant is readily committed to deposit security for due performance of the decree or execute a bond committing to maintain the status quo of the premises pending final determination of the pending appeal. She buttressed her argument with a case of Ongujo Wakibara Nyamarwa v. Beatrice Greyson Mmbaga (Civil Application No. 200 of 2021) [2022] TZCA 732 (21 November 2022) and Gilbert Zebedayo Mrema v. Mohamed Issa Makongoro (Civil Application No. 369 of 2019) [2020] TZCA 48 (16 March 2020). Finally, the learned counsel prayed the order for stay of execution be granted pending final determination of the pending appeal. In reply, Mr. Ishengoma did not resist the prayer for stay of execution as the applicant has complied with all legal requirements.

Further, he expressed that execution of a bond to maintain the status quo of the suit house will satisfy as security pending final disposal of the pending appeal. Due to the nature of the dispute, Mr. Ishengoma did not press for costs. I have dispassionately considered the material canvassed in respect of this application together with the contents of the supporting affidavit in line with the arguments advanced by the learned advocate for the applicant, I find the critical question for determination by the Court is whether the applicant has complied with the settled rules of the law. An application for stay of execution is governed by Rule 11 of the Rules, whereby subrule 4 of the said Rule requires the application of this nature to be lodged in Court within fourteen days of service of the notice of execution on the applicant or from the date he became aware of the existence of the application for execution. In regard to this application, the affidavit of the applicant in paragraph 11, indicates that on 7th May, 2025 he received a notice of execution from the respondent informing him on the existence of an application for execution No. 7191 of 2025, and on 19th May, 2025 the instant application was filed in Court. Mathematically, it may be calculated to have been filed within 12 days

from the date of his notification. Thus, the said subrule was complied with. The other, requirements for the stay of execution are provided for under Rule 11 (5) of the Rules that substantial loss may result to the applicant unless the order is made and commitment to provide security for due performance of such decree in case the appeal fails. Considering the compliance of these requirements, the instant application, the applicant has expressly stated in paragraph 12 of the affidavit that the intended execution by sale of the disputed house will cause irreparable harm to the applicant and his family as they will have no shelter. Moreover, the applicant's counsel argued that the applicant and his family are residing in the suit house. In case of sale prior to final disposal of the pending appeal, the applicant will suffer irreparable loss and render the appeal nugatory. This requirement is also settled in our laws through various decisions of the Court, including the case of Deusdedit Kisisiwe v. Protaz B. Bilauri (Civil Appeal No. 13 of 2001) [2003] TZCA 16 (24 February 2003), the Court observed that: "The attachment and sale o f immovable property will, invariably, cause irreparable injury.

Adm ittedly compensation could be ordered should the appeal succeed but money substitute is not the same as the physical house. That difference between the physical house and the money equivalent, in my opinionconstitutes the irreparable injury" The above excerpt remains the good position of law to date in regard to a sale of occupied house like in the instant application. Inevitably, the execution of the judgment and decree of the trial court will cause change of ownership of the suit house, thus cause irreparable sufferings to the current occupiers who are the applicant and his family. This may be the reason that triggered the respondent's counsel to grant concession to the application for stay of execution. In any event, the applicant has satisfactorily demonstrated irreparable loss in case the execution is not stayed pending final disposal of the pending appeal. Another critical requirement in the application of this nature is firm commitment to provide security in case the pending appeal fails. Rule 11 (5) (b) of the Rules was intended to protect the right of the decree holder in case the intended appeal is unsuccessful. The Court has, in its numerous decisions amplified that legal requirement in clear terms. See Mantrac Tanzania Limited v. Raymond Costa (Civil Application No.

11 of 2010) [2011] TZCA 519 (10 October 2011), where the Court discussed the mode of giving security and stated as follows: "To meet this condition, the law does not strictly demand that the said security must be given prior to the grant o f stay order. To us , a firm undertaking by the applicant to provide security m ight prove sufficient to move the Court, a ll things being equal, to grant stay order provided the Court sets a reasonable time lim it within which the applicant should give the same". From the except above, there is no particular security is required. In my view, a firm undertaking to furnish security as the Court may determine is sufficient because he is ready to comply with whatever the Court may direct. Therefore, in this application the applicant in paragraph 14 of the affidavit as amplified in the submission of the applicant's counsel, it is satisfying that the applicant is committed to execute a bond for maintenance of status quo of the said house pending final disposal of the pending appeal. Having considered wholistically, the circumstances and the nature of this application, together with the above reasons, I find no compelling reasons to refuse the prayer. Accordingly, I agree with the learned advocate for the respondent that the application may be granted. I

therefore, grant the application and order that the application for execution No. 7191 of 2025 be stayed pending the hearing and determination of the pending appeal to this Court. I further order that the applicant should execute a bond of maintenance of status quo of the suit house within thirty days from the date of the delivery of this Ruling. Each party to bear his or her own costs. It is so ordered. DATED at DODOMA this 10th day of September, 2025. P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 11th day of September, 2025 in the presence of Mr. Stanslaus Ishengoma, learned advocate for the respondent also hold brief for Ms. Batilda Mally, learned Advocate for the Applicant, via virtual Court and Emmanuel Saanane, Court Clerk; is hereby certified as a true copy of the original.