M & Five B. Hotel & Tours Ltd & Others vs Exim Bank Tanzania Ltd. (Civil Application No. 1054 of 2025) [2025] TZCA 931 (1 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1380 OF 2025 THE M & FIVE B . HOTEL & TOURS LIMITED.... . ............... 1s t APPLICANT BAKHITA MATHIAS MANGA (The Administratrix of The Estate of the Late MATHIAS MANGA) ...................... 2 n d APPLICANT BELINDA MATHIAS MANGA ................... . ................... . 3 r d APPLICANT VERSUS EXIM BANK TANZANIA LIMITED ............................ . ...... RESPONDENT (Application for Extension of time to allow the Applicant to seek for an Order staying Execution of the Drawn Order of the High Court (Commercial Division) at Dar es Salaam) (Gonzi, J .^ dated the 30t hday of May, 2025 in Execution No. 024064 of 2024 RULING 26th& 1s t September, 2025 MLACHA, J.A.: The applicants are moving the Court to grant orders for extension of time within which to file an application for stay of execution of an order of the High Court of Tanzania Commercial Division (the High Court) in Execution No. 24064 of 2024 arising from Commercial Case No. 109 of 2016. The application is made under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and supported by the affidavit of Sebastian i

Germanus, a Principal Officer of the 1s t applicant and affidavits of the 2n d and 3rd applicants. The respondent, Exim Bank Tanzania Limited, is resisting the application and has filed an affidavit in reply. Briefly stated, the facts of the case, relevant to this application, can be presented as follows: The respondent instituted a case against the applicants which was heard and dismissed by the High Court. The decision of the High Court was reversed by the Court in Civil Appeal No. 193 of 2023. Dissatisfied with the decision, the applicants filed Civil Application No. 690/01 of 2024 seeking to review the judgment of the Court. They also filed Civil Application No. 1151 of 2025 seeking to stay the execution pending hearing and determination of the application for review. The application for stay of execution was dismissed for want of jurisdiction. Meanwhile, the respondent filed execution proceedings at the High Court seeking to execute the judgment of the Court by attachment and sale of the 2n d and 3rd applicants' properties. The application was granted. A court broker was appointed to execute the order and has served the applicants with the 14 days' notice of execution. In reaction thereto, the applicants lodged a notice of appeal before the Court and are now seeking extension of time within which to file an application for stay of execution of the orders of the High Court. 2

The grounds upon which this application is based, as appearing in the notice of motion, can be paraphrased and reduced to three grounds as follows: one, that, there was a technical delay in filing the application; two, that, the delay was not inordinate; and three, that, there is an illegality of the orders of the High Court. The applicant was represented by Mr. Emmanuel Saghan, learned advocate, whereas the respondent was represented by Ms. Faiza Salah, also learned advocate. Hearing was done online through our virtual Court systems. When Mr. Saghan was invited to take the floor, he referred the Court to the principles laid down in Lyamuya Construction Company Ltd v. The Board of Registered Trustees of Young Woman Christian Association of Tanzania [2018] TLR 15 where it was stated thus: "As a matter o f general principle , it is in the discretion o f the Court to grant extension o f time. But that discretion is judicial, and so it must be exercised according to the rules o f reason and justice , and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated: (a) The applicant must account for all the period o f delay; (b) The delay should not be inordinate; (c) The applicant must show diligence, and not apathy, 3

negligence or sloppiness in the prosecution o f the action that he intends to take; (d) if the court feels that there are other sufficient reasons, such as the existence o f a point o f law o f sufficient importance; such as the illegality o f the decision sought to be challenged ." Amplifying, he contended that, an account for the delay was done in paragraph 12 - 14 of all the three affidavits where it was stated that, there was an earlier application for stay of execution which was struck out on 11/07/2025 hence technical delay. That the decision was made on Friday followed by a week end with two days which were not working days. He contended further that, the applicants used the 4 days, from Monday to Friday, to prepare and lodge the application which was filed on 17/07/2025. He contended that, the delay was not in ordinate because there was a period of only 4 days in between. He went on to submit that, the applicants were diligent in filing the application because they filed a notice of appeal and an application immediately after receiving the ruling and order of the High Court. He contended further that, the orders of the High Court have an illegality as reflected in paragraph 16 (2) of the affidavit of Bhakhita Manga because the attached house is residential and matrimonial. Further, no spousal content was given in the mortgage. When probed by

the Court on whether these issues were raised in the High Court and in the appeal before the Court, he agreed that they were not raised but hastened to submit that, they were raised during the execution proceedings. He urged me to grant the application. In reply, Ms. Salah, while adopting the contents of affidavits in reply, she contended that, the application before the Court is an attempt to get what was rejected by the Court in the application which was dismissed through the back door. Amplifying, she submitted that, the applicants filed an application for stay of execution pending review of the judgment of the Court. The application was dismissed on 19/11/2024 for want of jurisdiction. Following the dismissal, the respondent filed an application for execution at the High Court which was heard and decided on 30/05/2025. An order for attachment and sale of properties of the and 2n d and 3rd applicants was issued and execution is at an advanced stage. She contended that, the applicants have filed this application to delay the process. Ms. Salah agreed that there was a technical delay in respect of the earlier period where the applicants were pursuing the application for stay of execution, but contended that the applicants have not accounted for the period of 6 days from 11/07/2025 when the application for execution was dismissed to 17/07/2025 when this application was filed. On the

allegation of illegality of the decision of the High Court, she contended that there is no illegality apparent on the face of the orders of the High Court. Amplifying, she contended that, there is no indication that the attached houses are matrimonial houses mortgaged without spousal consent. If anything, it calls for evidence and argumentation to establish the point. She urged me to dismiss the application. In rejoinder, Mr. Saghan reiterated his earlier stance. I have examined the record and considered the submission of the parties. I will start with illegality of the orders of the High Court. The applicants are contending that the orders of the High Court have an illegality because the attached properties are matrimonial houses and no spouse consent was given in the mortgage. The respondent is contending that the illegality is not apparent on the face of the orders; it calls for arguments to be established thus cannot be used as a base for extending the time. After a look of the orders of the High Court, I agree with Ms. salah that, the illegality of the orders of the High Court, if any, cannot be seen without a drawn argument or a call for evidence. Illegality cannot, therefore, be used as a base for extending time in this case. I dismiss the ground.

Next, is on account for each day of delay and whether the delay was inordinate. On the requirement of accounting for each day of delay, the controversy is on the period from 11/07/2025, when the application for stay of execution was dismissed, to 17/07/2025, when this application was filed. The applicants start counting from 14/07/2025 to 17/07/2025 leaving behind the two days which he says were week end; not working days. This has taken them to 4 days. The respondent counts from 11/07/2025 to 17/07/2025 which has 6 days. I have the view that, be it 4 or 6 days, the delay cannot be said to be excessive if the time was used for engaging a lawyer, preparation and filing the application. The period appears to be reasonable and excusable. I also agree that the delay was not inordinate. But, with respect to Mr. Saghan, I have the view that in deciding whether to exercise the discretion of the Court in favour of the applicants or not, the matter has to be examined in a broader context. The background of the matter has to be explored fully. That done, I have found the following: one, there is a judgment of the Court giving rights to the respondent; two, the judgment is currently being executed by the High Court; three, , the execution of the judgment of the Court is at an advanced stage. A court broker has already been appointed and attached properties; four, there is an application for review of the judgment which

is pending before the Court; and five, there was an application for stay of execution of the judgment of the Court pending review which was dismissed for want of jurisdiction. Given the background, despite the fact that, the applicants have managed to account for the delay which was also found to be filed in time, it will not be in the interest of justice to exercise the discretion of the Court in favour of the applicants and extend the time for filing an application for stay of execution because that will be expediting a processes which has already been rejected by the Court. The application is thus found to be devoid of merit and dismissed with costs. DATED at DODOMA this 1st day of September, 2025. L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 1s t day of September, 2025 in the presence of Mr. Emmanuel Saghan, learned Counsel for the Applicants, Ms. Faiza Salah, learned Counsel for the Respondent via virtual Court and Christina Mwanandenje, Court Clerk; is hereby certified as a true copy of the oriainal.