C. F. Builders Limited vs Rex Investment Limited (Civil Application No. 10/01 of 2024) [2025] TZCA 920 (1 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 10/01 OF 2024 C. F. BUILDERS LIMITED....................................................APPLICANT VERSUS REX INVESTMENT LIMITED..............................................RESPONDENT (Application from the decision of the High Court of Tanzania, Dar es salaam District Registry, at Dar es Salaam) (KakfilakLJ.) dated the 8th day of July, 2022 in Land Case No. 19 of 2018 RULING 28thAugust & 1st September, 2025 MGONYA. 3.A.: This application emanated from the decision of the High Court of Tanzania at Dar es Salaam District Registry at Dar es Salaam, in Land Case No. 19 of 2018. In that suit, Rex Investment Limited, the respondent, sued the applicant, CF Builders, praying for several declaration orders, amongst them, that, she is the lawful owner of the suit land registered under Title No. 11032 on Plots 49 - 55 Block 79 Kisarawe Street, within the Dar es Salaam City (herein to be referred as the suit property); eviction of the applicant from the suit premises and an order

for permanent injunction restraining the applicant or her servants/ agents or otherwise from entering, using the suit land/building, or trespassing upon the suit premises. The respondent further prayed for USD 691,200 being mesne profits as pleaded, damages, costs and any relief as the court deems fit to grant. Having heard the parties' witnesses, the High Court held in favor of the respondent. In that Judgment, the respondent was declared the lawful owner of the suit property, and other relevant orders to that effect. Dissatisfied with the decision, the applicant intimated her intention to appeal to this Court, by filing a notice of appeal followed by a notice of a cross appeal by the respondent. On the other side, in a bid to enjoy the fruit of the decree, on 15th December 2023, the respondent appointed the Broker Fosters & Company Limited to evict the applicant from the premises within 14 days or otherwise the applicant will be forceful evicted. It is the said letter which triggered the instant application where the applicant seeks for an order of the Court to stay the execution, pending the hearing and determination of the appeal. 2

The application has been preferred through a notice of motion supported by an affidavit deposed by George Nyangusu, the applicant's Advocate. At the hearing of the application, of which was conducted via virtual court/video conference, the applicant was represented by Mr. George Nyangusu, learned counsel while the respondent was represented by Mr. Dr. Noel Nkombe, learned counsel. When accorded the floor, Mr. Nyangusu gave a brief history of the controversy between the parties and the proceedings at the trial court which declared the respondent the lawful owner of suit land. That in the cause of executing the decision of the trial court, the respondent without applying to the executing court, has unilaterally appointed the Broker and instructed to evict the applicant from the suit premises. He said, it is after the said instruction, the applicant decided to approach this Court for stay of the said execution intension in order to prevent the respondent to evict the applicant from the suit premises pending hearing and determination of their intended appeal before the Court. Submitting in support of the application, Mr. Nyangusu, submitted that, the application was filed well within time on 11/1/2024, that being within 14 days after they became aware of the said eviction on 3/1/2024.

Submitting further, it was the learned counsel's assertion that, as demonstrated in the applicant's affidavit in support of the notice of motion, that, in case an order for stay is not granted, the applicant's business stands to suffer irreparable loss. Mr. Nyangusu submitting further by referring to paragraph 9 of the applicant's affidavit, where the applicant made a firm undertaking of the security of the decree of the court upon disposal of the appeal. From the above, it was the learned counsel's submission that, the applicant has satisfied the conditions set by the law for the Court to grant the application. To fortify his prayer, the case of Mantrac Tanzania Limited v. Raymond Costa (Civil Application No. 11 of 2010) [2011] TZCA 519 (10 October, 2011), TanzLII was referred. Concluding his submission, it is the learned counsel's prayer that, regarding the condition of furnishing security of which is subject to Court's directives, the Court be guided by the decisions of this Court in Airtel Tanzania Ltd v. OSE Power Solutions (Civil Application No. 336 of 2017) [2017] TZCA 140 (20 October 2017) and Ongujo Wakibara Nyamarwa v. Beatrice Greyson Mm baga (Civil Application 200 of 2021) [2022] TZCA 732 (21 November, 2022) TanzLII. Finally, the

learned counsel implored me to grant the application as the applicant has met all the legal conditions. In reply, having adopted the affidavit of Mr. John Maijo, the Technical Director of the respondent, Dr. Nkombe explicitly stated that the major issue before the Court is whether the applicant has met the legal conditions as stipulated in rule 11 of the Rules for them to be granted an order for stay of execution as prayed. His interest laid down under rule 11 (5) (b) of the Rules of which he stated to be the major pre-condition for the grant of an order to stay execution. Referring to paragraph 9 of the applicant's affidavit in respect of the condition of furnishing security for due performance, it was the learned counsel's view that the wording of the said paragraph does not in itself meet the requirement under rule 11 (5) (b) of the Rules. Submitting further, it was Dr. Nkombe's submission that, under the said rule, the law requires a security be given by the applicant as an undertaking to satisfy the decree of the court, upon the disposal of the appeal. Further, it was the learned counsel's assertion that the applicant's counsel has misconceived the proper interpretation of the undertaking to the security as there is no any decision of this Court which dictates that the mere undertaking is tantamount to furnish security in that respect. Referring to the case of Mantrac Tanzania Limited v. Raymond 5

Costa (supra), the learned counsel averred that the requirement to mention or rather specify the kind of security is a mandatory requirement of which has to be met before the prayer for stay of execution is granted. From the above submission, it was the learned counsel for the respondent that, the condition set under rule 11(5) (b) of the Rules has not been met. Since the conditions for the prayer to stay execution needs to be met cumulatively, the learned counsel prayed the Court to deny the application for failure to meet the conditions set by the law. In rejoinder, Mr. Nyangusu acknowledged the respondent's only challenge to the application to be on the issue of furnishing security, agreeing with the rest as stipulated under rule 11 (5) (a), 11 (5) (c) and 11 (7) which are very fundamental to the application like the one before the Court. Reiterating his submission on the issue of security for the performance of the decree, the learned counsel insisted that, it is upon the Court to determine the kind of security according to the nature of the decree needed to furnish security and not to the choice of the applicant. Further that, the kind of security is at the discretion of the Court, and that for the applicant, there is no need to specify the kind of security that he is going to undertake.

I have given due consideration to the arguments for and against the application. In determining this kind of application, I have to state it clear that, the mandate of the Court in granting the application to stay the execution of a decree is upon good cause be shown as articulated under rule 11 (3) of the Rules. Having carefully considered the arguments for and against the application, at the outset, I have no hesitation to point out that the applicant has complied with the provision of rule 11 (4) of the Rules. It is on record that, the application was filed well within 14 days on 11/1/2024, after the applicant's knowledge that there is an intended execution on 3/1/2024 through the letter by the broker to that effect. Equally, it is undoubted that, the applicant acted in accordance with rule 11(7) of the t Rules, as she attached all the relevant documents. Therefore, the pertinent issue for determination is whether the applicant have cumulatively complied with requirements stipulated under rule 11 (5) (a) and (b) of the Rules. In a number of its decision, the Court established that, in order for an application for stay of execution to succeed, all conditions stated under rule 11 (5) (a) and (b) of the Rules must be cumulatively fulfilled. See for instance- David Mahende v. Sal urn Nassor Mattar & Another (Civil

Application No. 160/17 of 2017) [2018] TZCA 459 (6 June, 2018) TanzLII, Mohamed Enterprises T. Ltd v. Mussa Shaban Chekechea (Civil Application 394 of 2019) [2019] TZCA 449 (24 October, 2019) TanzLII, and Pristine Properties Limited & Others v. ECO Bank Tanzania Limited (Civil Application 580 of 2021) [2023] TZCA 17267 (22 May, 2023) TanzLII. Regarding the condition on substantial toss, the applicant has deponed under paragraph 8 of the supporting affidavit that, substantial loss may result in the event the Court does not intervene by issuing an order of stay. That the execution will render the intended appeal nugatory. Considering the applicant's assertions as paraphrased above, I entertain no doubt that, in view of the nature of the mode of execution sought by the respondent that involves; evicting from the suit premises, the applicant is likely to suffer substantial loss if an order for stay of execution is not granted. Henceforth, I hold that the first condition for the grant of an order for stay of execution has been met by the applicant. In regard to security, it is the applicant's averment in paragraph 9 of the affidavit in support of the application that, the applicant is willing to provide sufficient security for the due performance of the decree. For ease of reference, I would like to quote the said paragraph as hereunder: 8

" That, as security for execution , the appiicant undertakes to perform and satisfy the Decree o f the court upon disposai o f the appeal." Referring to the parties' advocates submissions, this was the most contentious condition of which the respondent's counsel was of the view that the applicant did not adhere to the required law as he was to specify what kind of security he is about to undertake. On the other part, the applicant's counsel insisted that the mere undertaking to furnish security is enough under the circumstances as the same is the Court's prerogative. It is my firm view that, indeed the issue of kind of security to be offered by the applicant is a prerogative of the Court. I join hands with the applicant's counsel that, unfortunate this matter is misconceived. Which form of security to be provided, is neither the choice of the applicant nor of the respondent but of the Court. See Humphrey Soka v. Mohamed Muhidin (Civil Application No. 893/15 of 2023) [2024] TZCA 936 (25 September, 2024) TanzLII, where it was stated that; ".....It is worth noted that, as far as the Court is concerned, what counts most is that, where there is such undertaking, the rights o f the adverse party are guaranteed thus, adequately protected. Its form or type is the Court's prerogative. It does not matter whether it is by a bank's performance

guarantee or cash payment into the Court's bank account ..... " See also Kigemu Tours Safari & General Services Ltd v. Tishi Selemani Uliza (Civil Application No. 39/18 of 2024) [2024] TZCA 931 (23 September, 2024) TanzLII, where it was observed that: "The applicant has indicated willingness to furnish security, which may ultimately be binding upon it under paragraph 16 of the affidavit in support o f the application. I find the willingness and commitment to be sufficient assurance that the applicant is ready to see the respondent get to enjoy the fruits of the decision in his favour. This condition is satisfied." On this condition, I am further guided with the decision of the Court in Mantrac Tanzania Limited v. Raymond Costa (supra), the Court stated as follows regarding an undertaking to furnish security for due performance of a decree: "... To meet this condition , the law does not strictly demand that the said security must be given prior to the grant of the stay order. To us, a firm undertaking by the applicant to provide security might prove sufficient to move the Court, all things being equal, to grantstay orderprovided 10

the Court sets a reasonable time limit within which the applicant should give the same." In the tight of the decisions I have cited, it is clear that this Court has always protected the decision of the firm undertaking of the guarantee. It is from the above excerpt, I find the applicant's willingness to furnish sufficient security, constitute compliance with the requirement of rule 11(5) (b) of the Rules. In the event therefore, this condition has been met accordingly. Premising on the above findings, it is clear that the applicant has cumulatively fulfilled the conditions stipulated by the provisions of rule 11(5) (a) and (b) of the Rules, to deserve an order for stay of execution. The nagging question at this juncture is on the nature of the security to be furnished by the applicant in the circumstances of this case. Taking into account that the disputed property is a landed property and not pegged in monetary terms, I take the suit property to be sufficient security under the circumstances. Therefore, as pointed above under paragraph 9 of the supporting affidavit that the applicant is willing to furnish security as may be ordered by the Court, signing the bond in respect of the said land, serves the commitment. In the event therefore, I am satisfied that, the applicant has met all conditions precedent for the grant of an order for stay of execution. ii

From the foregoing reasons, I find the application meritorious and grant it. Consequently, I make an order to stay Execution of the decree of the High Court in respect of Land Case No. 19 of 2018, pending the hearing and determination of the intended appeal before this Court. Further, the applicant is ordered to execute within fourteen days from the date of delivery of this ruling, a written bond undertaking to vacate from the suit property as ordered by the High Court in case the appeal is not decided in her favour. I further order that costs shall abide the outcome of the intended appeal. DATED at DODOMA this 1s t day of September, 2025. L. E. MGONYA JUSTICE OF APPEAL Ruling delivered this 1s t day of September, 2025 in the presence of Mr. George Nyangusu, learned counsel for Applicant, Ms. Benadeta Shayo, learned counsel for the Respondent via virtual Court and Shaban Kanyai, Court Clerk; is hereby certified as a true copy of the original.