Mwita Mwikwabe Waitara vs Eliakimu Chacha Maswi (Civil Application No. 1429 of 2025) [2025] TZCA 879 (26 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PODOMA CIVIL APPLICATION NO. 1429 OF 2025 MWITA MWIKWABE W AITARA ........................ ............................... APPLICANT VERSUS ELIAKIMU CHACHA MASWI ......................................................... RESPONDENT (Application for Stay of Execution of the Decree of the High Court of Tanzania at Musoma,) fKomba, J/ i dated 16th day of June, 2025 in Civil Case No. 23 of 2023 RULING 15th & 26th August, 2025 MGEYEKWA. JA: This is an application for stay of execution made under rule 11 (3), (4), (5) (a) and (b), (6), (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicant seeks an order staying the execution of the decree of the High Court of Tanzania, at Musoma, dated 16th June, 2025, pending the determination of an intended appeal to this Court. The application is supported by an affidavit sworn by Mr. Mwita Mwikwabe Waitara, the applicant, which sets forth the grounds upon which

the application is premised. In opposition, the respondent filed an affidavit in reply sworn by Mr. Kassimu Gilla, learned counsel for the respondent, in which he resists the application. At the hearing, the applicant was represented by Mr. Hekima Mwasipu, learned advocate, whereas the respondent enjoyed the services of Mr. Kassimu Gilla, also learned counsel. At the outset, Mr. Mwasipu adopted the notice of motion together with the supporting affidavit and the annexures thereto. He submitted that the applicant has satisfied the conditions stipulated under Rule 11 of the Rules for the grant of a stay of execution. He further contended that the application was filed within the time prescribed and is accompanied by all requisite documents as required under Rule 11(7) of the Rules. Mr. Mwasipu argued that if the execution proceeds, the intended appeal will be rendered nugatory and the applicant will suffer substantial loss, as the subject matter of execution is his family residence. He referred the Court to paragraphs 8 and 9 of the supporting affidavit, wherein the applicant avers that the property in question is the house in which he resides with his family. In further support, he cited paragraph 13 of the affidavit, wherein the applicant

undertakes to furnish security for the due performance of any judgment or decree that may ultimately be binding upon him. To buttress his submissions, learned counsel relied on the decision of this Court in Efatha Ministry v. J.S. Khambaita Limited, Civil Application No. 335/05 of 2022 [2023] TZCA 17618. On the strength of the foregoing, the learned counsel for the applicant prayed for the application to be granted as prayed in the notice of motion without costs and urged the Court to grant the applicant 90 days within which to furnish security. In reply, Mr. Gilla opposed the application, contending that the applicant has failed to satisfy the threshold under Rule 11 (5) (a) and (b) of the Rules. He argued that the applicant claims residence in Musoma, but the intended attached property is located in Dodoma, and the affidavit is silent as to whether the said property is matrimonial in nature. According to him, the applicant's assertion that he would suffer substantial loss lacks evidential backing. Mr. Gilla further contended that while the applicant's counsel orally submitted that the applicant was willing to furnish security within 90 days, this undertaking is not expressly stated in the affidavit. He also raised an 3

issue with the duration proposed for furnishing security, submitting that the period of 90 days is excessive, as courts ordinarily grant 14 or 30 days. In view of the foregoing, he urged the Court to find the application devoid of merit and to dismiss it with each party bearing their own costs. In rejoinder, Mr. Mwasipu reiterated that paragraph 9 of the applicant's affidavit discloses that the subject property is the residential house in which the applicant and his family reside, thereby implying its status as matrimonial property. He urged the Court to consider the amount involved TZS 3,000,000,000.00, and allow the applicant 90 days to furnish security, in the interests of justice. I have dispassionately considered the Notice of Motion, the affidavit in support of the application and the oral submissions made by the counsel for the parties. The main issue for our determination is whether the applicant has cumulatively satisfied the conditions for the grant of an order for stay of execution. Rules 11 (3) (4), (6) and (7) (a), (b), (c) and (d) of the Rules provide that: "11 (3) In any civil proceedings, where a notice of appeal has been lodged in accordance with rule 83, an appeal, shall not operate as a stay of execution of

the decree or order appealed from nor shall execution of a decree be stayed by reason only o f an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay of execution of such decree or order; (4) An application for stay of execution shall be made within fourteen days of service of the notice of execution on the applicant by the executing officer or from the date he is otherwise made aware of the existence of an application for execution; (5) No order for stay of execution shall be made under this rule unless the Court is satisfied that: (а) substantial loss may result to the party applying for stay of execution unless the order is made; (b) the application has been made without unreasonable delay; and (c) security has bekn given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (б) Notwithstanding anything contained under sub-rule (5) and rule 60 (2) (b), this rule, a single judge o f the Court, may make an exparte order for stay o f execution pending hearing of the appeal or application. 5

(7) An application for stay execution shall be accompanied by: (a) a copy of a notice of appeal; (b) a decree or order appealed from; (c) a judgment; and (d) a copy of a notice of the intended execution." The position of the law indicated above has been applied in a number of decisions of this Court. Some of these include, Mohamed Masoud Abdallah and 16 Others v. Tanzania Road Haulage (1980) LTD, Civil Application No. 58/17 of 2016; Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010; and Mohamed Rajuu Hassan v. Almahri Mohsen Ghaled & 2 Others, Civil Application No. 570/17 of 2017 (all unreported). In all these cases, the Court emphasized that, for an application for stay of execution of a decree to succeed, the applicant must comply with conditions stipulated under the law, cumulatively. In the present application, it is not in contention that the applicant has complied with the requirement under Rule 11(4) of the Rules, the application having been filed within the prescribed time. The sole point of contestation 6

lies in whether the applicant has satisfied the conditions set out under Rule ll(5)(a) and (ab) of the Rules. The applicant avers at paragraphs 8 and 9 of the supporting affidavit that the property sought to be attached is his family residence. While he does not expressly refer to it as matrimonial property, his statement that he resides there with his family is, in my view, sufficient to establish its character as a family home. I am satisfied that this is a proper basis to infer that substantial loss would occur were execution to proceed. In addition, at paragraph 13 of the affidavit, the applicant indicates his willingness to provide a bank guarantee as security. Although counsel for the respondent raised concerns regarding the proposed 90-day timeframe, I note that the amount involved to be substantial. In the circumstances, and in the interests of justice, the applicant ought to be granted adequate time within which to comply. For the aforesaid reasons, I grant the application and, in terms of paragraph rule 11 (3) of the Rules, I order that the execution of the decree of the High Court of Tanzania at Musoma dated 16th June, 2025 in Civil Case 7

No. 23 of 2023 shall be stayed pending the hearing and determination of the intended appeal. Furthermore, in terms of order 11 (5), (b) of the Rules, I order the applicant to deposit with the Registrar of the Court an irrevocable bank guarantee in the sum of T7S 3,000,000,000.00. The said bank guarantee should be deposited within 60 days from the date of delivery of this Ruling. In the circumstances of this application, I make no order as to costs. It is so ordered. DATED at DODOMA this 25th day of August, 2025. The Ruling delivered this 26th day of August, 2025 in the presence of Mr. Hekima Mwasipu, learned counsel for the Applicant and Mr. Kassimu Gilla, learned counsel for the Respondent via video link from Mwanza and Dar es Salaam, is hereby certified as a true copy of the original. A. Z. MGEYEKWA JUSTICE OF APPEAL D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL