Aira Ondoro & Others vs The Registered Trustees of the Seventh Adventist Association of Tanzania (Civil Application No. 1263 of 2024) [2025] TZCA 936 (3 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DOPOMA CIVIL APPLLICATION NO. 1263 OF 2024 AIRA ONDORO ................... . ............................................1 st APPLLICANT GEORGE LUCAS................................................................... 2 nd APPLICANT KENEDY BUSARO............................................................ ....3 rd APPLICANT ELIA NYANGURU................................................................. 4™ APPLICANT VERSUS THE REGISTERED TRUSTEES OF THE SEVENTH ADVENTIST ASSOCIATION OF TANZANIA .............. . ...... . ....... RESPONDENT (Application for Stay of Execution of the decree of the High Court of Tanzania at Mwanza) (Tiaanaa. 3.1 dated the 15th day of March, 2021 in Land Case No. 10 of 2014 RULING 27th August & 3rd September 2025 GALEBA. J.A.: This is an application for stay of execution of the decree of the High Court of Tanzania at Mwanza in Land Case No. 10 of 2014. In this application, the sole question calling for my determination is whether an application for stay of execution which is not accompanied with a notice of appeal is competent or not. i

The basis of the application is that the applicants are part of 67 defendants, who were declared by the High Court in the above land case to be trespassers on Plot No. 152 Block "W" Capripoint area in Mwanza. The applicants along with 96 others, filed Civil Appeal No. 743 of 2024, which is pending before this Court. In the meantime, and as the appeal was pending, on 15th April, 2024, the respondent filed an application for execution in the High Court, moving it to issue eviction orders against the trespassers, including the above applicants. This application is seeking to hold in abeyance the execution process, pending hearing and determination of Civil Appeal No. 743 of 2024. As intimated above, the application is not accompanied by copies of the notice of appeal as required by rule 11 (7) (a) of the Tanzania Court of Appeal Rules 2009, (the Rules). At the hearing on 27th August, 2025,1 inquired from Mr. Mathias Mashauri learned advocate who was representing the applicants, as to what was his take on the omission. His response was that the omission was a minor lapse because the notice of appeal missing in the application, was filed and was properly served on the other party. To him, the application was competent before the Court because, all other requirements were met, except attaching the application with the notice of appeal. He implored the Court to gloss over

the omission, treat it as unintentional minor human error, and proceed to entertain the application on merit. On his part, Mr. John James, learned advocate for the respondent, strongly resisted Mr. Mashauri's line of argument. His contention was that the application was incompetent because, rule 11 (7) of the Rules, employs the term "shall", which means that compliance to the requirements of the sub rule, was not optional but mandatory. He prayed that the application be struck out with costs. As stated at the very start of this ruling, the issue for determination is whether an application for stay of execution filed to the Court without accompanying it with a notice of appeal is competent or not. Fortunately, it is not the first time, that this Court is encountering the scenario. In the case of Usangu Logistics Tanzania Limited v. SAS Logistics Tanzania Limited, Civil Application No. 749/16 of 2023 (unreported), the applicant had filed an application for stay of execution, but omitted to attach a notice of appeal with that application, and this is what the Court stated: "The provision (rule 11 (7)) mandatoriiy requires an application for stay o f execution to be accompanied by copies o f a notice o f appeal, a judgment, a decree, and a notice o f the intended execution. ... The Court 3

has severally held that to grant an order for stay of execution, It is mandatory for the applicant to comply cumulatively with rule 11 (4), (5) (a)f (b) and (7) (a), (b), (c), (d) o f the Rules. For an application o f this nature to be competent before the Court, it must be accompanied by copies o f the listed documents under rule 11 (7) o f the Rules. . . . There is no notice o f appeal accompanying the application. Where the conditions are not met cumulatively, the application is incompetent and liable to fail, see Mabruck Mengelev. Vernon David Law and Another, Civil Application No. 87 o f 2004 (unreported). Since, the applicant has failed to comply with rule 11 (7) (a) of the Rules, the application is incompetent." The principle is that the requirements listed at rule 11 (7) of the Rules must cumulatively be observed and complied with. Failure to accompany the application for stay of execution with one of the documents listed at that subrule, is a grave error with devastating consequences to the application in question. It is not a minor lapse or a human error, which may be glossed over or ignored by the Court, as Mr. Mashauri submitted. Any such noncompliance, renders the application incompetent, and liable for being struck out, as was contended by Mr. James.

In the circumstances, this application not being accompanied by copies of the notice of appeal, the same is offensive of rule 11 (7) (a) of the Rules and, it is therefore incompetent under the law. In law and practice before this Court, the appropriate order to make, in respect of an incompetent proceeding, is to strike it out. Thus, this matter is hereby struck out with no order as to costs, because the point lending to this eventuality was not raised by the respondent. DATED at DODOMA, this 3r d day of September 2025 The Ruling delivered this 3r d day of September, 2025 in the presence of Mr. John James, learned counsel for the respondent and in the absence of applicants via vitual Court and Issa Issa, Court Clerk; is hereby certified as a true copy of the original. Z. N. GALEBA JUSTICE OF APPEAL 5