Hadija Abdallah Madebe vs Hussein Abeid Madebe & Another (Civil Application No. 80/170F 2020) [2025] TZCA 912 (27 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 80/170F 2020 HADIJA ABDALLAH MADEBE .................... VERSUS APPLICANT HUSSEIN ABEID MADEBE (As legal Representative of the estate of the late Abeid Mohamed) ...... ........ KASEMBE YAHAYA NDIRA...................................... 1 st RESPONDENT 2 nd RESPONDENT (Application for an order of stay of execution of the decree of the District Land and Housing Tribunal for Tanga upheld by the High of Tanzania at 27th August, 2025 MURUKE. J.A.: When the application was called on for hearing today, Mr. Roman Selasini Lamwai learned counsel appeared representing the applicant, whereas Mr. Kung'e Kisuse Wabeya, represented the first respondent, in the absence of the 2n d respondent who was dully served by the court process server Mr. Alfred Wayala. More so the 2n d respondent has been contacted through registered phone number 0654312182, Halotel on his name Kasembe Ndira by the court officer on the date of hearing of this application but avoided to receive the phone. Upon being satisfied that the Tanga) (M ru m a J .) dated the 29th day of January, 2020 in Land Case Appeal No. 3 of 2018 RULING I

2n d respondent exempted himself from the hearing of this application, I proceeded with the hearing of the application in his absence including dismissing his preliminary objection he filed way back on 3r d April 2020. At the onset, Mr. Wabeya informed the court that the first respondent passed away on 24th June 2018. Following the incident Mr. Husein Abeidi Madebe petitioned and was granted letters of the administration of the estate of the late Abeid Mohamed in Probate and Administration Cause No. 7 of 2024, by the Primary Court of Mwang'ombe at Tanga on 5th March, 2024. In the circumstances Mr. Wabeya prayed to implead the appointed administrator as personal legal representative of the 1s t respondent in the present application. Mr. Lamwai did not object. Consequently Mr. Hussein Abeid Madebe, was impleaded in this application as personal legal representative of the first respondent. On the merits of the main application for stay of execution of the decree of the High Court, same is supported by an affidavit of the applicant Hadija Abdallah Madebe, explaining the reason for the grant, which Mr. Lamwai adopted together with the Notice of motion to form part of his oral submission. In his oral account applicant counsel submitted that the applicant has complied with Rule 11 (4) of the Rules, by oner, filing Notice of appeal anexture A2; two, the applicant filed application for leave to appeal (by then it was the requirement) annexture A3. Three; the 2n d 2

respondent has commenced execution in terms of execution Notice anexture A4 attached to the affidavit in support of the application. Four; the applicant has undertaken to deposit security in terms of paragraph 11 of affidavit in support of the application. With that brief submission, the applicant counsel moved the court to stay execution complained of by the applicant. Mr. Wabeya for the first respondent, had no issue with stay order as rule 11(4) has been complied with, only insisted on necessity of depositing security in compliance with Court order. Having heard in brief both counsel's submission, examined the Notice of Motion, and affidavit for and against, the issue for determination is whether the applicant has satisfied the condition for granting the order sought. First, the applicant filed Notice of appeal anexture A2 attached to the affidavit in support of the application and filed present application within 14 days in compliance with Rule 11(4) of the Rules that provide for 14 days. Secondly, the applicant has averred at paragraph 10 that she will suffer substantial loss if execution will proceed. Looking at anexture A-4, Notice of Execution shows that execution of the decree is by handing over to the second respondent the landed property namely Plot 302 Block 'P' Mabawa Area Tanga City. ITie manner in which the execution was to be carried in terms of Execution Notice there is likely hood of applicant 3

suffering irreparable loss because according to execution order of the District Land and Housing Tribunal of Tanga the applicant was ordered to hand over the property on plot 302 Block "P" Mabawa Tanga to the 2n d respondent within 14 days. For clarity the said execution order read as follows: "Pursuant to the provisions o f Regulation 23 (3) o f the Land Dispute Courts (The District Land and Housing Tribunal) Regulations 2003, the judgment debtor one Hadija Abdaliah Madebe is ordered to comply with the decree o f this tribunal by vacating the suit house and or property in dispute together with her agents, workers, tenants or any one claiming title under her and hand over the same to the decree holder within the period o f 14 days from the date o f this order also the decree holder to proceed with issues o f transfer o f the suit property into his name. Failures to do so within the prescribed time, this Tribunal will be compelled to appoint a Court Broker who will forceful evict the judgment debtor and hand over the suit premises to the decree holder. The judgment debtor will further be condemned to pay costs o f the suit and court broker's fees". The above execution order by the District Land and Housing Tribunal for Tanga is a serious threat to the applicant to date as same has not been reversed by any Court. Thus, the issue of stay of execution is a matter of 4

necessity to the applicant, which according to the records it is a Matrimonial Property which herself and the 1s t respondent acquired only that the husband sold it without her consent. Thus, Execution No. 16 of 2018 emanated from the Land Application No. 1 of 2008 for the DLHT of Tanga and the High Court Tanga Registry Land appeal No. 3 of 2018, is hereby stayed pending determination of intended Civil appeal before the Court. Third, at paragraph 11 of the affidavit in support of the application the applicant has undertaken to furnish security in compliance with Rule ll(5)(b) of the Rules. A mere firm undertaking to furnish security suffices, as no particular form of security is required. It was held in the case of Mantrac Tanzania Limited v. Raymond Costa, Civil Application No 11 of 2010(unreported) 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 might prove sufficient to move the Court a thing being equal to grant the stay order provided the Court sets a reasonable time limit within which the applicant should give the same."

The principle of depositing security was also discussed in the case Simon Wolfgang Ndauka v. Idd Seif and 5 others (Civil Application No. 680/11 of 2024) [2024] TZCA 878 (12 September 2024) "One may wish to remember the Court's repeated stance, that, security needs not to be presented before the grant o f a stay order since, a mere firm undertaking to furnish it is enough. Moreover, in Tanzania Petroleum Development Corporation v. Mussa Yusuph Namwao & Three Others, Civii Application No. 602 o f 2007 (unreported) the Court defined the "term firm undertaking" for the grant o f a stay order. That, it is a promise or an unequivocal declaration or stipulation o f intention o f the Judgment Debtor guaranteeing the Decree Holder enjoyment o f a decree pending determination o f an appeal therefrom. What counts most is the adequacy o f the security to protect the Decree Holder's rights without necessarily stating the magnitude, form and type o f the security since, such specification is the domain o f the Court. See, for instance, our proposition in Africhick Hatchers Ltd v. CRDB Bank PLC (Civil Application No. 98 o f 2016) f20191 TZCA 148 (15 March 2019; TanzLII). I wish to stress that, the beauty o f furnishing security for the due performance o f a decree needs not to be over emphasized than is necessary. It has a double impact effect such that, the right o f the Judgment 6

Debtor to exhaust the appellate hierarchy is guaranteed whereas the Decree Holder gets comfort that he will end up with a fruitful decree, however long it may take him. It follows therefore, that, the applicant herein has fulfilled the condition too. It is for those two reasons that a stay order is made for the interests o fjustice." Similarly, in Mathew Upanga Mnkande vs Simeda Products & Trading Company Limited (Civil Application No. 360 /17 of 2021) [2024] TZCA 654 (30 July 2024) it was held that "It is trite law that, a firm undertaking by the applicant to furnish security for the due performance o f the decree is a sufficient proof to move the Court for stay o f execution. See for instance; Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 o f 2010 (unreported). The wording of paragraph 11 of applicant's affidavit suffices to be undertaking in the circumstances of this case after present applicant having complied with the requirements of rules 11 (3), (4) (5) and (7) of the rules, as correctly submitted by Mr. Lamwai. As said earlier, execution is by handing over of the applicant the house/ property located at Plot No. 302 Block "P" Mabawa area Tanga. The manner in which execution is going to be conducted, while there is pending appeal, there is a need to issue stay execution order. Thus, execution of 7

the decree in Misc. Application for Execution No. 16 of 2018, emanated from the Land Application No. 1 of 2008 of the District Land and Housing Tribunal for Tanga and High Court Tanga Registry, Land Appeal No. 3 of 2018, is here by stayed, pending determination of the intended civil appeal before the Court, between the parties herein on the condition that applicant who is currently living on the said premises should not alienate in what so ever manner the house on plot No. 302 Block "P" Mabawa area Tanga, until final determination of her intended appeal by the Court. It is so ordered. DATED at DODOMA this 27th day of August, 2025. Ruling delivered this 27th day of August, 2025 in the presence of Mr. Roman Selasini Lamwai, learned counsel for the applicant and Mr. Kung'e Kisuse Wabeya, learned counsel for the 1s t respondent through Virtual Court; is hereby certified as a true copy of the original. Z. G. MURUKE JUSTICE OF APPEAL 8