Meticulous General Insurance Company Limited vs Elisifa Richard Mbise & Others (Civil Application No. 1054 of 2025) [2025] TZCA 854 (12 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1054 OF 2025 METICULOUS GENERAL INSURANCE COMPANY LIMITED ........ APPLICANT VERSUS ELISIFA RICHARD MBISE (suing as the Administrator of the Estate of the Late Wilson Thadei N yak i) ................... 1st RESPONDENT PHILBERT JOHN T A R IM O ........ . ..... . ..................................... 2 nd RESPONDENT THOMAS RAPHAEL M O LLEL................................... . ...............3 rd RESPONDENT (Application for Stay of Execution of the Judgment and Decree of the District Court of Arusha at Arusha in Civil Case No. 54 of 2022 and the High Court of Tanzania at Arusha). (Masara, J^ dated the 26th day of July, 2024 in Civil Appeal No. 72 of 2023 RULING 6th & 11th August, 2025 NGWEMBE. J.A.: The Motion before me is an inter-parte application for stay of execution of the judgment and decree of the District Court of Arusha at Arusha in Civil Case No. 54 of 2022, which judgment was upheld by the High Court of Tanzania, in Civil Appeal No. 72 of 2023 (before Masara J). i

The notice of motion was brought under certificate of urgency by citing Rules 4 (2), (a) and (b), 11 (3) (4) (4A) (5) (6) and (7) and Rule 48 (1) of the Tanzania Court of Appeal Rules 2009 (the Rules). The genesis of the case giving raise to the decree subject to this application for stay of execution is as follows; the 1st respondent sued the applicant and the 2n d and 3rd respondents claiming for payment of specific damages to the tune of Tshs. 156,000,000/=; general damages; interest; and costs for the wrongful death of Wilson Thadei Nyaki which death occurred at a road accident caused by motor vehicle owned by the 3rd respondent but driven carelessly by the 2n d respondent. The said vehicle was insured by the applicant herein. Upon full trial, the court awarded the 1st respondent a total sum of Tshs. 150,000,000/= as general damages for loss of life and costs of the suit. Aggrieved with the trial court's decision, unsuccessfully the applicant appealed to the High Court which appeal was dismissed with costs, hence, the instant appeal to the Court. While the appeal is still pending in the Court, the 1st respondent filed an application for execution No. 11803 of 2025 before the trial court and the applicant was served with notice of hearing. Hence, the instant application for stay of execution. 2

The application is premised on the grounds displayed on the face of the notice of motion and amplified on the attached affidavit affirmed by Jamila Said, identified as a principal officer of the applicant dully responsible for the management of civil cases. Mainly, the applicant alleges to have taken all necessary steps and has lodged an appeal registered as Civil Appeal No. 984 of 2024. It is also alleged in the affidavit that the intended execution involves huge amount of money to the tune of Tshs. 150,000,000/= whose Garnishee Order Nisi has been issued against an operating account of the applicant, hence disrupting the applicant's business activities. Further, the applicant averred that it is ready to furnish security as may be ordered by the Court to ensure the due performance of the decree sought to be stayed. The application is, however, not substantially, resisted by the respondents as they did not file affidavits in reply. On the hearing date before me, the applicant was represented by Mr. Allen Nanyaro, learned advocate, while Mr. Moses Ebeneza and Mr. Lengai Loitha both learned advocates entered appearance for the 1st and 3rd respondents respectively. The 2n d respondent did not appear in Court and according to the record of this application, he never appeared even before the lower courts.

When Mr. Nanyaro was invited to amplify his grounds of application, he briefly argued that the applicant has complied with all legal requirements provided for under rule 11 of the Rules. Moreover, he submitted that the application was lodged within 14 days from the date of receipt of summons for an application for execution. Further, he argued that the appeal against the impugned judgment of the High Court is already lodged in the Court as Civil Appeal No. 984 of 2024. Mr. Nanyaro emphasized that, the applicant is ready to furnish security in accordance with the Court Order. On the contrary, Mr. Nanyaro argued that the applicant will suffer substantial loss of Tshs. 150,000,000/= and cause the pending appeal nugatory if the execution is not stayed. Thus, on the balance of convenience and the interest of justice, Mr. Nanyaro implored the Court to grant a stay of execution pending final disposal of the pending appeal before the Court. In reply, both defence counsels did not resist the application as it complied with rule 11 of the Rules, but both assigned their resistance on the substantial loss. Mr. Ebeneza, argued that the applicant has numerous operating accounts, which attachment of one account won't affect the daily operations of the applicant. He amplified that, failure of the applicant

to explain how it will be affected upon attachment of its account, the Court should resist to grant the application for stay of execution. In support to the submission of the 1st respondent, Mr. Loitha, cited the decision of the Court in Lomayan Rangaramu v. Christopher Pelo Civil Application No. 452/02/2018, where the Court discussed all relevant ingredients to grant stay of execution. Thus, he urged the Court to refuse the application because the applicant failed to elaborate the requisite on substantial loss. In rejoinder, Mr. Nanyaro reiterated his submission in chief and insisted that the applicant has complied with all legal requirements provided for under rule 11 of the Rules. In regard to the cited decision of the Court, Mr. Nanyaro, hurriedly responded that his learned friend has offended Rule 34 of the Rules for failure to file in Court a list of authorities to be relied upon and urged the Court to disregard it. I have consciously considered the material canvassed in respect of this application together with relatively concurrent submissions advanced by the learned advocates for the applicant and respondents, I am convinced that the applicant has substantially complied with the requirements of Rule 11 of the Rules. Since the legal requirements on applications of this nature is well documented in Rule 11 of the Rules, the

applicant must; first, lodge an application for stay of execution within 14 days from the date of being served with an application for execution or being aware on the existence of the application for execution (Rule 11 (4). Second, disclosure of substantial loss to the applicant in case the order for stay of execution is not granted; three, readiness to provide security for due performance of such decree as ultimately be binding upon the applicant (Rule 11 (5); four, attachment of copies of notice of appeal, copy of decree appealed from, judgment or ruling and notice of intended execution. Those preconditions have received emphasis in numerous decisions of the Court including the case of Lomayan Rangaramu (supra) where the Court emphasized on compliance of those preconditions cumulatively. In regard to this application, the learned advocates are at one on all other conditions save on substantial loss in case the stay of execution is not granted. Mr. Ebeneza tried to impress the Court that the applicant owns several accounts in different banks, thus the garnishee order nisi in one account cannot affect in any way the day-to-day operations of the applicant. However, he did not explain or justify the existence of those accounts of the applicant. I would therefore, agree with Mr. Nanyaro that

the assertion of existence of many accounts, remained as mere allegations from the bar. On substantial loss, Mr. Loitha submitted strongly that the applicant did not disclose how and which loss is possible to occur in case the application is not granted. He made reliance to the case of Lomayan Rangaramu (supra). Thus, he implored the Court to dismiss the application. In rejoinder, Mr. Nanyaro referred the Court to paragraph 7 (a) and (b) of the supporting affidavit, which for convenient purposes the paragraph is reproduced hereunder: Paragraph 7 "That, I verily factually aver and affirm that should the said execution proceed and be carried out pursuant to the Garnishee Order N isi, the applicant w ill be exposed to and is like ly to suffer irreparable loss and prejudice, including but not lim ited to the follow ing: (a) The applicant's bank accounts proposed for attachm ent are integral to the applicant's daily business operations and constitute essential tools fo r the effective functioning o f the applicant's enterprise. The attachm ent o f these accounts is like ly to cause significant disruption to the applicant's business activities. Moreover, the 1st respondent, being an individual, m ay become

d ifficu lt or im possible to locate should the decretal sum be paid p rio r to the determ ination o f the pending appeal, thereby frustrating the applicant's rig h t to effective redress." (b) "The present appeal before the Court o f Appeal w ill be rendered wholly nugatory and fu tile should the execution proceed p rio r to the fin a l determ ination o f the appeal, as the enforcem ent o f the decree would irreversibly satisfy the judgm ent in C ivil Case No. 54 o f2022 and thereby extinguish the practical effect o f the appeal process. This is particularly critica l given that the appeal raises substantial questions o f law which m ay m aterially affect the outcome o f the case in favour o f the appellant herein . " The above excerpt of the affidavit speak louder on the substantial loss in case the execution is left to proceed. The applicant has accounted two effects; first, loss of money without possibility of recovery, bearing in mind that the 1st respondent to be paid such money is an individual whose location is unknown; and second, the pending appeal before the Court may be nugatory and futile in case the appeal is successful, the Court Decree may not be executed. However, I am alive that to determine substantial loss depends on case to case and there is no hard and fast rule to be followed. See: Zanzibar University v. Abdi A. Mwendambo 8

& 2 others, Civil Application No. 92/15 of 2018.1 would therefore, agree with Mr. Nanyaro that the notice of motion with supporting affidavit have disclosed sufficient loss should the execution is left to proceed without an order for stay. In the circumstances of this application, the rest of the requirements provided for under rule 11 of the Rules were not contested by the respondents. Therefore, all facts considered, I find the applicant has cumulatively met with all conditions for the grant of stay of execution and the application is hereby granted as prayed. Accordingly, I stand guided by the observation of this Court in the case of Felix Emmanuel Mkongwa v. Andrew Kimwaga (Civil Application No. 249 of 2016) [2020] TZCA 333 (9 June 2020) to order that the execution of the decree of the District Court of Arusha at Arusha in Civil Case No. 54 of 2022 which decree, was upheld by the High Court in Civil Appeal No. 72 of 2023 be stayed pending hearing and final determination of the pending appeal before the Court. However, this order is conditional upon a deposit of a Bank Guarantee covering the entire amount of Tshs. 150,000,000/= as security for the due performance of the decree within a month's time to be

reckoned from the date of delivery of this ruling. Costs should abide the result of the pending appeal. It is so ordered. DATED at DODOMA this 11th day of August, 2025. The Ruling delivered this 12th day of August, 2025 in the presence of Mr. Allen Peter Nanyaro, learned counsel for the Applicant, Mr. Moses Ebenezer learned counsel for the 1st Respondent, Mr. Lengai Loitha, learned counsel for the 3rd Respondent and in the absence of the 2n d Respondent; is hereby certified as a true copy of the original. P. J. NGWEMBE JUSTICE OF APPEAL D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL 10