Grace Felix Temu vs Grace F. Mrosso (Civil Application No. 520 of 2025) [2025] TZCA 867 (21 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DOPOMA CIVIL APPLICATION NO. 520 OF 2025 GRACE FELIX TEMU (Administratrix of the Estate of the late Felix Jonathan Temu) .................................. ........ APPLICANT VERSUS GRACE F. MROSSO (Administratrix of the Estate of the late Felix Tesha/Fidelis Mrosso) ............................. RESPONDENT (Application for stay of Execution of the Judgment and Decree of the High Court of Tanzania, Dodoma Sub Registry at Dodoma) (Hassan, J.^ dated the 10th day of December, 2024 in Land Case No. 36 of 2022 RULING 14th & 21st August, 2025 MGONYA, 3.A.: This application emanated from Land Case No. 36 of 2022. In that suit, Grace F. Mrosso, the respondent, sued the applicant for a declaration that she is the lawful owner of Plot No. 54 Block 25 Majengo within Dodoma Municipality. Further, for the court's declaration that the applicant's occupation of the property is a continuing trespass; applicant be ordered to pay special damages of TZS, 2,700,000,000/=; general damages of TZS. 1,000,000,000/=; and applicant's vacant possession to the suit property.

The suit was heard and determined exparte against the applicant. On 10/12/2024 the High Court held in favor of the respondent. In that Judgment, the trial court declared the respondent a lawful owner of Plot No. 54, Block 25, Majengo within Dodoma Municipality, and the applicant was declared a trespasser; the applicant was also ordered to pay the respondent general damages at the tune of TZS 500,000,000/=; the respondent was granted a vacant possession of the disputed property where the applicant was ordered to vacate the suit property forthwith; and finally, costs of the suit was in favor of the respondent. Dissatisfied with the decision, the applicant intimated her intention to appeal to this Court, by filing a notice of appeal followed by an appeal which was registered as Civil Appeal No. 144 of 2023, of which is pending this Court. On the other side, in a bid to enjoy the fruit of the decree, the respondent filed an application for execution of the decree before Dodoma Sub Registry at Dodoma, registered as Execution Cause No. 4469 of 2025. It is the said application which triggered the instant application where the applicant seeks for an order of the Court to stay the said execution, pending hearing and determination of the appeal. The application has been preferred through a notice of motion supported by an affidavit deposed by Grace Felix Temu, the applicant herein.

At the hearing of the application, the applicant was represented by Mr. Fred Peter Kalonga, learned counsel while the respondent was represented by Mr. Ibrahim Elibariki Mcharo learned counsel. Submitting in support of the application, Mr. Kalonga apprised the Court that, the applicant filed this application under rule 11(3), (4), (5) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules), seeking for an order staying Execution of the Decree of the High Court in Execution Cause No. 4469 of 2025 before Dodoma Sub Registry at Dodoma, in respect of Land Case No. 36 of 2022. He went further to state that, the applicant has fulfilled all necessary conditions under rule 11 (3) - (7) of the Rules. That, in the supported affidavit, they have demonstrated that, there is an application for execution of a decree pending before High Court Dodoma Sub Registry at Dodoma, where the respondent sought to execute the decree of the High Court. Further, Mr. Kalonga demonstrated that, since there is an appeal before the Court, if the instant application is denied, the applicant will suffer irreparable loss and that the Civil Appeal No. 144/2025 pending in this Court will be rendered nugatory. Submitting further on the irreparable loss, it was the learned counsel's submission that, the suit property is the only source of the applicant who is a widow and that the other house of which has been targeted for execution, is the applicant's family dwelling house of which if executed, she will become homeless with all those who depend on her.

Mr. Kalonga submitted further that, the applicant had made a firm undertaking of the security for due performance of the decree. That, she is ready to sign Insurance Bond on the decretal sum or by any order by the Court as may be ultimately be binding upon the applicant as per rule 11 (5) (b) of the Rules. From the above, it was the learned counsel's submission that, the applicant has satisfied the conditions stated by the law for the Court to grant the application. He thus prayed the Court to consider and grant the applicants prayer. In reply, having adopted the affidavit in reply duly sworn by Grace F. Mrosso, the respondent herein, Mr. Mcharo admitted that indeed, before the High Court Sub Registry of Dodoma, there is in place Execution Cause No. 4469 pending determination. He further contended that, despite the fact that the applicant has already filed appeal before the Court, that is not an automatic grant of stay of execution of the High Court Decree. In support of his assertion, the learned counsel cited the case of SBC Tanzania Limited v. Abdallah Kondo Chuma (Civil Application No. 1572 of 2024) [2025] TZCA 17 (12 February 2025) TanzLII. On the substantial loss, it was Mr. Mcharo's assertion that, under Rule ll(5)(a) of the Rules, it is the position of the law that, the applicant has to show substantial loss if the application is not granted. The learned counsel

contended that, the applicant's affidavit is very general. The same did not state how and to what extent the applicant will suffer. To fortify his contention, he cited the case of Registered Trustees of Kanisa la Upendo wa Kristo Masihi (KIUMA) v. The Registered Trustees of Kituo cha Elimu na Maendeleo Matemanga (Matemanga Educational and Development Centre (KIUMA) Trust Fund, Civil Application No. 1078 of 2024. Adding further, by referring to paragraph 10 of the Affidavit in support of the application, the learned counsel was of the view that, the applicant has not demonstrated on what kind of security she is going to undertake for due performance of the decree. He faulted the submission by the applicants counsel that, the applicant is ready to furnish security for due performance by signing the bond as may be ordered by the Court. Mr. Mcharo contended that, those are submissions from the bar, as the same are not emanating from the affidavit, hence should be dismissed, taking into account that, the applicant has not given evidence of actual guarantee to show capability of paying the decretal sum. In the light of the above, the learned counsel implored me to reject the applicant's application. In his rejoinder, Mr. Kaionga insisted that, the applicant has demonstrated on how she will suffer in case the execution takes place by being homeless and also that she will be affected economically as she depends on the suit property.

In regard to the security, he stated that, the same is a prerogative of the Court. What form of security to be provided, is neither the choice of the applicant nor the respondent but of the Court. Finally, he reiterated his prayer that the Court be pleased to grant the application as prayed. 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 within statutory time. Equally, it is undoubted that, the applicant acted in accordance with rule 11(7) of the Rules, as she attached all the relevant documents. Therefore, the pertinent issue for determination therefore 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. Salum Nassor Mattar & Another (Civil Application No. 160/17 of 2017) [2018] TZCA 459 (6 June 2018), Mohamed Enterprises T. Ltd v. Mussa Shaban Chekechea (Civil Application 394 of 2019) [2019] TZCA 449 (24 October 2019) and Pristine Properties Limited & Others v. 6

ECO Bank Tanzania Limited (Civil Application 580 of 2021) [2023] TZCA 17267 (22 May 2023). In regard to the issue of substantial loss, the applicant has deponed under paragraph 5 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 affect the applicant's family welfare and suffer economically, and further rendering the intended appeal nugatory. Considering the applicant's assertions as paraphrased above, I am satisfied and I entertain no doubt that, in view of the nature of the mode of execution sought by the respondent, the applicant is likely to suffer substantial loss if an order for stay of execution is denied. 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 10 of the affidavit in support of the application that, the applicant is willing to provide sufficient security for the due performance of the decree. As the matter before the Court is about a landed property, I am guided with the decision of the Court in Lesusu Lesilale Saiduraki v. Sanai Lekimboyipoi (Civil Application No.85/02 of 2021) [2023] TZCA 17529 (23 August 2023) where it was stated that:

"We have considered the mode of execution sought by the respondent, namely; forceful eviction o f the applicant from the disputed land. That means, if an order for stay is not granted, and assuming that the applicant subsequently succeeds in the intended appeal, he and members o f his expansive extended family currently occupying the disputed /and, stand to suffer substantial loss which cannot be atoned by way o f damages." It is from the above excerpt, I find the applicant's willingness to furnish sufficient security by signing a bond, constitute compliance with the requirement of rule ll(5)(b) of the Rules. Being guided with the position in the above case, I have no hesitation to find that the explanations made by the applicant that if the execution will proceed, the applicant will suffer substantial loss which may not be atoned by damages convincing. Further, taking into account that the disputed property is a landed property and not pegged in monetary terms, I take the same property to be sufficient security under the circumstances. Therefore, as pointed above under para 10 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.

In the event and for 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 the Execution Cause No. 4469 of 2025 before Dodoma Sub Registry at Dodoma, in respect of Land Case No. 36 of 2022, 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 21s t day of August, 2025. L. E. MGONYA 1USTICE OF APPEAL Ruling delivered this 21s t day of August, 2025 in the presence of Ms. Maria Danifrey Mwaluko for Fred Peter Kalonga, learned counsel for the Applicant also holding brief for Ibrahim Elibariki Mcharo, learned counsel for the Respondent both through Virtual Court; is hereby certified as a true copy of the original.