IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 601 OF 2025 ALLIANCE INSURANCE CORPORATION LIMITED APPLICANT VERSUS OGAPE WILFRED KILEO (As Administrator of The late EMMANUEL WILFRED KILEO) ......... MSENGI S/O FREDRICK HAMIS . ................. FREDY RICHARD MAGABE ............. . ............ 1 st RESPONDENT 2 nd RESPONDENT ..3r d RESPONDENT (Application for stay of Execution of the Judgment and Decree of the High Court of Tanzania, at Dar es Salaam) (Mbaqwa, 3.~ ) dated the 18th day of December, 2024 in 15th & 25th August, 2025 MLACHA. J.A.: By way of notice of motion made under rule 4 (2) (a) (b), rule 11 (3), (4) (4A), 5 (a), (b) (c) and 11 (7) (a), (b), (c) (d) and rule 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant, Alliance Insurance Corporation Limited, is moving the Court to issue an order for stay of execution of the decree of the High Court of Tanzania at Dar es Salaam dated 18/12/2024 in Civil Case No. 76 of 2022. The notice of motion is supported by the affidavit of Janki Pundrik Sinha, a principal Civil Case No. 76 of 2022 RULING i

officer of the applicant and the affidavit of Thabitha Ishmael Maina, an advocate who handled certain matters in the case. The respondents, Ogape Wilfred Kileo (administrator of the estate of the late Emanuel Wilfred Kileo), Msengi Fredrick Hamisi and Fredy Richard Magabe (the 1s t, 2n d and 3r d respondents respectively) are resisting the application and have filed affidavits in reply. Briefly stated, the facts relevant to the application can be stated as follows: The 1s t respondent was the plaintiff in Civil Case No. 76 of 2022 before the High Court. The 2n d and 3r d respondents were the defendants. The applicant was impleaded at a later stage as a third party. It was a case for damages arising out of a motor vehicle accident against. The High Court (A. A. Mbangwa, J) passed a judgment against the applicant who was ordered to pay TZS. 100,000,000.00, interest and costs. The applicant was aggrieved and lodged a notice of appeal before the Court. Meanwhile, the 1s t respondent filed Execution No. 3139 of 2025 at the High Court seeking to execute the decree. In execution thereof, a Ganishee Order Nissi was issued against several accounts of the applicant held at the NMB Bank, Ghana Avenue, CRDB Bank PLC and Bank of India Headquarters to enforce the payment of the decretal sum. This is what prompted the applicant to file the application. 2

The applicant is seeking stay of execution of the Ganishee order Nisi pending appeal alleging errors and illegalities in the decision of the High Court on two grounds; one, that the trial judge did not consider all the exhibits and facts of the case in determining whether the motor vehicle involved in the accident, for which the driver was charged and pleaded guilty, was insured by the applicant herein and two; general damages awarded were excessively exorbitant. The respondents are resisting the application stating that there is no application to be stayed because execution of the decree was long completed following the issue of a Gunishee Order Absolute dated 6t hJune 2025 and the transfer TZS. 100,000,000,00 from the applicant's account at Exim Bank to the judiciary account. They also stated that the Gunishee order Nisi in respect of all the accounts was raised following the transfer. Relevant documents and the order of the Deputy Registrar dated 6th day of August, 2025 were attached. At the outset, the respondents moved me to consider preliminary points of objection, notice of which was lodged earlier on and served to the applicant. The points raised by the respondents can be paraphrased to read as follows: one; that, the applicant's application is incompetent for failure to comply with Rule 55(1) of the Rules; two, that, the 3

applicant's application has been overtaken by events in view of closure of execution and release of the accounts; three, that the applicant's affidavit is incurably defective for being sworn by a person who has no authority to swear the affidavit; four, that the applicant's affidavit contain hearsay; five, that the applicant's affidavit contain lies. The applicant was represented by Dr. Alexander Nguluma, learned advocate, the 1s t respondent was represented by Messrs. Boniphace Erasto Meli and John Chogolo, learned advocates whereas the 2n d and 3r d respondents were represented by Mr. Greyson Rweyemamu, also learned advocate. On a tripartite agreement between me and the parties, it was agreed that, the preliminary objection and the application be heard together on the understanding that if the preliminary objections will be sustained, the matter should end up there. If it will not succeed, then the determination of the application should follow. I will start with the first preliminary point of objection. The gist of the complaint here is that, the applicant did not serve the respondents within 14 days from the date of filling as required by rule 55(1) of the Rules which states; " The notice of motion, affidavit and ail supporting 4

documents shall, within fourteen (14) days from the date of filing, be served upon the party or parties affected." When Mr. Meli was invited to address the Court on this point, he submitted that, the applicant filed the application on 24/3/2025 but served the 1s t respondent on 11/8/202 5 which was 141 days later. He contended that, this is contrary to rule 55 (1) of the Rules which required service to be affected within 14 days from the date of filing. He cited the case of Ephraimu Christopher Manase Mrema v, Homange Kastory Kanzugala and Another [2025] TZCA 644 and Asma Shaha Salehe v. Kombo Shaha Salehe [2025] TZCA 155 where it was held that failure to comply with the requirements of rule 55 (1) of the Rules rendered the entire application incompetent. He urged the me to strike out the application. Mr. Rweyemamu subscribed to what was said by Mr. Meli. He stressed that, rule 55 (1) is coached in mandatory terms, meaning that, service must be done within 14 days failure of which the application is rendered incompetent and must be struck out. In response, Dr. Nguluma contended that, the objection does not amount to a preliminary objection because it is based on facts which are to be ascertained; that is whether service was affected or not. He cited the Case of Mukisa Biscuits Manufacturing Company Ltd V. West

End Distributors Company Ltd (1969) EA 696 to support the contention that a preliminary objection must be on a pure point of law. On the reasons for the delay to affect the service, he contended that, they are not the advocates who filed the application. They are successor advocates who took over from Mr. Alen Nanyaro, the former advocate. They were not sure if service had been affected or not, so they decided to pass the documents to the respondents so that in case they were not served, they could get them. He contended further that, in whatever situation, whether service was done or not is a question of fact which cannot be the subject of a preliminary objection. In rejoinder, Mr. Meli contended that, the submission that the objection does not amount to a preliminary objection is misleading because everything is clear and there is no fact to be ascertained. He contended further that, the submission that the counsel for the applicant affected the service because he was not sure if the service was affected by earlier advocates or not is an admission that service was done out of time. I had time to examine the record and consider the submission of the learned counsels carefully. The objection has two limbs; One, that, 6

the objection does not amount to a preliminary objection and two, that, the current advocates took the case at a later stage. I will start with the first limb. The issue is whether an objection based on rule 55 (1) of the Rules qualify to be a preliminary objection. There is a plethora of authorities, including the case of Mukisa Biscuits Manufacturing Co. Ltd (supra), Gasper Peter vs Mtwara Urban Water Supply Authority (MTUWASA) [2019] TZCA 28 and Jackline Hamson Ghikas v. Mllatie Richie Assey, Civil Application No. 656/01 of 2021 on what amounts to a preliminary objection. The contention of Dr. Nguluma is that evidence is needed to establish that service was affected to the respondents; so the objection does amount to a preliminary objection. Mr. Meli and Rweyemamu do not support his contention. I have given due consideration to the matter. In Jackline Hamson Ghikas (supra) it was stated thus: 'We have in mind for instance what we held in Tanzania Telecommunications Company Limited v. Vedasto Ngashwa & 4 Others, Civil Application No. 67 of 2009 (unreported). Reaffirming with greater emphasis the position taken by the Court o f Appeal for East Africa in Mukisa Biscuits (supra), we categorically said

that, a preliminary objection must satisfy three conditions viz; one, the point o f law raised must either be pleaded or must arise as a dear implication from the proceedings; two, that it must be a pure point o f law which does not require dose examination or scrutiny o f the affidavit and counter affidavits and three, the determination of such a point o f iaw in issue must not depend on the court’ s discretion". The preliminary objection in this case arises from facts pleaded and not facts to be ascertained by evidence. It is a point of law based on rule 55 (1) of the rules. It does not require evidence to be established other than facts pleaded in the case. There is an allegation of none compliance to rule 55 (1) of the rules. The respondents are saying that they were not served with the notice of motion, affidavit and the supporting documents in time as provided under the law. It is thus a point of law which arises from the clear implications of the pleadings and qualify to be a preliminary objection. On the second point, like the counsel for the respondents, I have the view that the submission that the counsel for the applicant is not sure whether service was done by the former advocate or not amounts to an admission that service was not affected within 14 days as required by the law. I also share the view that, the service which was done by the current

advocates, to fill in the gap, did not bridge the gap. The objection is thus sound and sustained. It follows that, there is a none compliance with rule 55 (1) of the Rules making the application incompetent This makes a deliberation on other points and determination of the application of no useful purpose. The application is struck out with costs. DATED at DODOMA this 25t h day of August, 2025. The Ruling delivered this 28th day of August, 2025 in the presence of D r. Alexander Nguluma, learned Counsel for the Applicant, Messrs. Boniphace Erasto Meli assisted by Mr. John Chogolo, both learned Counsel for the 1s t Respondent and M r. Grayson Rweyemamu, learned Counsel for the 2n d and 3r d Respondent through Virtual Court is hereby certified as a true copy of the original. L. M. MLACHA JUSTICE OF APPEAL || R. W . CHAUNGU W /DEPUTY REGISTRAR

COURT OF APPEAL

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