Inseptor General Police & Another vs Skyes Travel Agents (Civil Application No. 1234 of 2025) [2025] TZCA 892 (12 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1234 OF 2025 INSPECTOR GENERAL OF POLICE ................... ............ ...... 1 st APPLICANT ATTORNEY GENERAL........................................... ............... 2 nd APPLICANT VERSUS SKYES TRAVEL AGENTS ............................. . ...........................RESPONDENT (Application for stay of execution of the Decree of the High Court of Tanzania at Dar es Salaam) (Maqhimbi, 3 ^ dated the 27th day of October 2023 in Civil Case No. 149 of 2020 RULING 11th & 12th August 2025 NANGELA. J.A.: The respondent herein filed a lawsuit (Civil Case No. 149 of 2020) against the applicants at the Tanzanian High Court Dar es Salaam sub* registry in the year 2020. Among other things, the suit sought an order for the payment of TZS 502,696,700/=, which were unpaid debts resulting from services provided to the first applicant. Following a hearing of the parties, on the 27th day of October, 2023, the High Court rendered a judgement and decree in favour of the respondent, requiring the applicants to pay TZS 299,772,160 and USD

1,834, which represents the entire amount of the debt that the respondent had proven to be owed. Aggrieved, the applicants lodged a notice of intention to appeal to this Court on the 02n d day of November, 2023. The said notice of appeal is still pending, in this Court. However, on the 18th day of June, 2025, the respondent served the applicants with a notice of execution, intending to execute the decree issued by the High Court in Civil Case No. 149 of 2020. Following the respondent's notice of execution, the applicants, filed this application seeking for an order of stay of execution of the decree issued by the High Court, until when the intended appeal is heard and determined by this Court. The applicants' notice of motion is supported by an affidavit of Ms. Byela Bashange and was made under Rules 4(2) (a), (b), (c), 11(4), 11(5) (a), (b), 11(6), 11(7) (a), (b), (c), & (d) and 48(1) of the Court of Appeal Rules, 2009 (the Rules). The notice of motion is predicated on the following grounds, that: (i) the Judgement and Decree o f the High Court is extremely problematic and tainted with serious illegalities and irregularities which prejudice the applicants; (ii) if execution o f the decree is not stayed as prayed in the notice o f motion, the applicants stand to suffer irreparable loss in that, the intended execution will adversely affect the government in the

execution o f its day-to-day activities since the respondent is praying for the certificate o fpayment be issued certifying an amount o f TZS 340,377 ' 487 in certification o f the issued decree; (iii) in the event the applicants'intended appeal fails, the applicants will be able to honour the decree without any difficulty; (iv) the balance o f convenience dictates that the execution be stayed; and (v) the applicant is ready and willing to provide security for the due performance o f the [decree]. When this application was called on for hearing, Mr. Edwin Webiro, a learned State Attorney, appeared representing the applicants. The respondent had the legal services of Mr. Francis Mgare, a learned counsel. The hearing of this application was conducted by way of video conference as both counsel were in Dar-es-Salaam. Submitting in support of the application, Mr. Webiro was assertive that the application should be granted because the applicants have satisfied all conditions required under Rule 11 of Rules. He argued that, if the orders sought are not granted and the decretal amount is paid, the applicants will suffer irreparably because the amount was not budgeted for. He relied on paragraph 9 of the supporting affidavit which, nevertheless, only shows that the first applicant is under the Ministry of

Home affairs and, that, her budget for the day-to-day operations comes from the allocated monies by the central Government, For his part, however, Mr. Mgare was averse with what Mr. Webiro submitted. His was assertive that the applicants had failed to meet the requirements outlined in Rule ll(5)(a) of the Rules. He argued that the applicants’ assertion that they stand to suffer irreparably if the application is granted should be rejected because, if one were to consider both parties through the lenses of balance of convenience, the scales of justice tilt in favour of the respondent who continues to suffer. Besides, it was Mr. Mgare's submission that, the applicants do not dispute that the respondent provided them with services —that was back in 2014/ 2015, and that, they have yet to pay for those services, even though the first applicant, being a government agency, must have budgeted for such expenses. Looking at the record of this application and considering the rival submissions from the learned counsel for the parties, the first point of departure between the two rival parties is whether the requirements of Rule 11(5) (a) of the Rules has been met. Before I address that point of departure, it is worth noting that the order of stay of execution sought by the applicants herein is not granted as an automatic right of an applicant. Instead, it is, first, a remedy granted

at the discretion of the court since, as a matter of principle, a decree holder is entitled to enjoy the fruits of the decree without unnecessary delay. See, for that matter, the case of Lantaedna Diyamet vs. Tumaini N. Mnondwa [2025] TZCA 164 (TanzLII). But second, if this Court is to exercise its discretion to grant such a remedy, the applicant must demonstrate, to the satisfaction of the Court, that all conditions provided for under Rule 11 of the Rules have been cumulatively met. See: Registered Trustees of Kanisa la Upendo wa Kristo Masihi (KIUMA) vs Registered Trustees of Kituo cha Elimu na Maendeleo Matemanga [2025] TZCA 391 (TanzLII). Essentially, Rule 11(5) (a) of the Rules requires an applicant to demonstrate to the satisfaction of the Court that substantial loss may result if the application for stay of execution is denied. See, for that matter, the case of Haruna Mpangaos and Others vs. Tanzania Portland Cement Co. Ltd [2007] TZCA 366 (TanzLII). In his submission, Mr. Webiro relied on paragraph 10 of the affidavit of Ms. Bashange to demonstrate that the rule has been satisfactorily complied with. However, what the said paragraph states is that, if the Court refuses to stay the execution of the decree, the applicants stand to suffer irreparable loss because a certificate of payment will be issued and,

the issuance of such a certificate, will "paralyse the first applicant's operation s" since the decretal amount will be deducted from her budget which is allocated by the Government. However, in his submission, Mr. Webiro fell short of explaining how the operations of the first applicant will be " paralysed ' and whether the decretal amount was not within the first applicant's expenditure budget having there been a decree of the court since the year 2023. It is trite taw that, for the discretion of the Court to be properly exercised, there must be availed to the Court all necessary information or materials for it to make an informed and just decision. See, for that matter, the case of Erenest Magana vs. Mugeta Mangili [2001] TZCA 74 (TanzLII). Consequently, since the applicant is required under Rule 11 (5)(a) of the Rule to satisfy this Court that she stands in danger of suffering an irreparable loss, she had a duty to make available to the Court sufficient information to enable it to make an informed opinion when exercising its discretion. That duty, in my view, has not been sufficiently discharged in this application and, in the circumstances, unless the magnitude and particulars of loss are specified, it cannot be said that an applicant has satisfied the requirements of Rule ll(5)(a) of the Rules. 6

But there is yet another observation that is worth noting. In the case of Registered Trustees of Kanisa la Upendo wa Kristo Masihi (KIUMA (supra), this Court, noted that: "In the case o f Tanzania Ports Authority v. Pembe Flour Mills Ltd Civil Application No. 78 o f 2007 (unreported), we illustrated how substantial and irreparable loss could be gauged, observing that irreparable loss must imply among other things, the loss which is irrecoverable in any form or manner including damages or other monetary compensation". In his submission, Mr. Webiro could not convincingly demonstrate to this Court whether the alleged substantial loss was the kind of loss which could not be atoned by way of damages. A mere generalization that the applicants will suffer irreparable loss is not sufficient to warrant the granting of a stay order. See, for that matter, the case of Tanzania Cotton Marketing Board v. Cogecot Cotton Co. SA [1997] T.L.R 63. It is my considered view, therefore, that, the requirement of Rule ll(5)(a) of the Rules has not been satisfied. The second point of departure between Mr. Webiro and Mr. Mgare was on whether the applicants has met the condition set out by Rule 11 (5)(b) of the Rules. Essentially, that provision places a duty on the 7

applicants to furnish security for the due performance of the decree. In his submission, Mr. Webiro, relying on one of the grounds in the notice of motion, argued that, although the applicants' supporting affidavit does not assert a commitment to that effect, the notice of motion does; and, therefore, that being the case, both the notice of motion and its supporting affidavit, complement each other. To bolster his submissions, he relied on the decisions of this Court in the cases of Lyamuya Construction Co. Ltd vs. Board of Registered of Young Women's Christian Association of Tanzania [2011] TZCA 4 (TanzLII) and Blastus Alois Mgegera vs. Board of Trustees of Tanzania National Parks [2024] TZCA 217 (TanzLII). As for his part, Mr. Mgare held a view that the applicants have not met the condition set out in Rule ll(5)(b) of the Rules. According to him, the requirement under Rule ll(5)(b) of the Rules can only be said to have been met if the applicant makes a firm commitment in the affidavit filed in support of the notice of motion that he will furnish security for the due performance of the decree. He contended that an affidavit, being evidence before the court, cannot be replaced by the notice of motion. Consequently, it was his submission that the cases relied on by Mr. Webiro 8

were distinguishable both in fact and in the context under which they were decided. In my view, while it is, indeed, a correct position to state that an affidavit constitute evidence, I am unable to go along with the rest of Mr. Mgare's submission. Since the applicants did state in their notice of motion that they are ready to furnish security for the due performance of the decree, the failure to assert so in the supporting affidavit can be cured by what was stated in the notice of motion because, as rightly argued by Mr. Webiro, the two complement each other. It follows, therefore, that, the cases of Lyamuya Construction Co. Ltd (supra) and Blastus Alois Mgegera (supra), which Mr. Webiro relied on in support of his submission are relevant and applicable. However, even if the applicants pledge to provide security for the due performance of the decree as required by Rule ll(5)(b) of the Rules, it is clear, as previously stated, the application cannot be granted because the requirement outlined in Rule ll(5)(a) of the Rules has not been met. As alluded to earlier, hereabove, the law is now settled that all conditions set out by Rule 11 of the Rules must be cumulatively fulfilled, failure of which no stay order will be granted.

It follows, therefore, that, since the applicants have failed to meet the threshold required to establish substantial loss in terms of Rule ll(5)(a) of the Rules, this application is ripe for an outright rejection. In the event, therefore, I hereby proceed to dismiss it forthwith. Considering all the circumstances attendant to I make no orders as to costs. It is so ordered. The Ruling is delivered this 12th Day of August, 2025 in the presence of the Mr. Francis Wisdom, learned State Attorney for the applicants and Mr. Abrahim Sykes, Principal Officer of the respondent both through virtual Court from Dar es Salaam, is certified as the true copy of the original. DATED at DODOMA this 12th day of August, 2025. D. J. NANGELA JUSTICE OF APPEAL 10