Michael Martin Kabengwe vs Farida Yusuf Omari & Another (Civil Application No. 1161 of 2024) [2024] TZCA 1141 (19 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1161 OF 2024 MICHAEL MARTIN KABENGWE ............................................... APPLICANT VERSUS FARIDA YUSUF OMARI....................................................1 st RESPONDENT DENNESTO COMPANY LIMITED......................................2 nd RESPONDENT (Application for stay of execution of the decree of the High Court of Tanzania, (Land Division) f Msafiri. JH dated 16thJuly, 2024) in In Land Appeal No. 3469 of 2024 RULING 14th & 19thNovember, 2024 NGWEMBE, J.A.: The first respondent sued the applicant before the Kinondoni District Land and Housing Tribunal at Mwananyamala (the tribunal) in Land Application No. 332 of 2017 alleging that the applicant had trespassed into her landed property on Plot No. 224 Block C, Ununio, Kinondoni in Dar es Salaam Region. She sought for declaratory order of rightful ownership and vacant possession. The applicant denied those claims. But on hearing, the tribunal found that the first respondent had managed to prove her case to the required standard, declared her the rightful owner and issued a permanent injunction to the applicant which judgment was delivered on 22/01/2024.

The applicant was dissatisfied with that decision thus, he registered Land Appeal No. 3469 of 2024 before the High Court of Tanzania (Land Division). However, the High Court judgment (Msafiri, J) delivered on 16/07/2024 dismissed the appeal with costs. Still being aggrieved with that decision, the applicant preferred an appeal to the Court by filing notice of appeal on 18/07/2024. While the notice of appeal is still pending before the Court, on 23/02/2024, the first respondent initiated an execution proceeding before the Land and Housing Tribunal in Misc. Application No. 82 of 2024. Summons and requisite documents were served to the applicant on 14/03/2024. The immediate response from the applicant was to lodge Misc. Land Application No. 117 of 2024 on 20/03/2024, seeking among others a stay of execution under section 38 (2) of Land Disputes Courts Act, Cap 216 RE 2019. Later on, the application was withdrawn. The application for execution proceeded with hearing, wherein the applicant appeared along with his learned counsel, eventually a ruling was delivered on 30/09/2024 and the second respondent was appointed to execute the tribunal's decree. It is in the discharge of functipn, the second respondent on 29/10/2024 served the applicant with a 14 days' notice to vacate the disputed property, that if he fails to vacate, he will be forcefully evicted.

The applicant after being served with notice for vacant possession from the 2n d respondent, rushed to the Court with this application for stay of execution, which was lodged on 05/11/2024. The applicant is seeking an order for stay of execution pending appeal to challenge the decision of the High Court. The applicant has moved the Court by notice of motion citing rule 11 (3)(4)(6) and (7) of the Tanzania Court of Appeal Rules, 2009 (herein the Rules) and was certified to be one of the utmost urgency. In response from the first respondent, apart from filing an affidavit in reply which contributed to the facts presented above, raised a preliminary objection on point of law that the application is bad in law for contravening rule 11 (4) of the Rules and thus time barred. When the application came for hearing, the applicant had the legal services of Francis Mwita, learned advocate, while the respondents were represented by Messrs. Dickson Ngowi and Alpha Mchaki, also learned advocates. We have an established custom that requires preliminary objections be determined first before venturing into the merit of the matter as per the cases of Shahida Abdul Hassanali v. Mahed Mohamed Gulamali Kanji, Civil Application No. 42 of 1999 (unreported); Deonisia Onesmo Muyoga & Others v. Emmanuel

Jumanne Luhahula (Civil Appeal No. 219 of 2020) [2023] TZCA 124 (20 March 2023) and Thabit Ramadhan Maziku & Another v. Amina Khamis Tyela & Another (Civil Appeal 98 of 2011) [2011] TZCA 223 (7 December 2011) among others. On that basis, the preliminary objection was necessary to be dealt with first. But also considering the nature of the application and that it was certified as one of extreme urgency as earlier alluded, it was resolved for the parties to submit on both, the preliminary objection and merit of the application. Submitting in support of the preliminary objection, Mr. Ngowi specified that this application was filed on 05/11/2023 contrary to rule 11 (4) of the Rules, which mandatorily requires application for stay be filed within 14 days from when the applicant was served with the application for execution or became aware of the execution proceeding. According to him, the applicant was served with the application for execution, Misc. Application No. 82 of 2024 on 23/02/2024, thus, became aware of the execution proceeding and that the applicant participated in the proceedings of that application for execution. Arguing in alternative, the learned counsel observed that even taking what the applicant stated in paragraph 15 of his affidavit, which suggests that he became aware of the execution on 30/09/2024 when

the ruling of the tribunal was delivered, yet the application would still be out of time because, counting from 30/9/2024 to the date he filed this application on 05/11/2024, is far more than a month contrary to rule 11 (4) of the Rules. He therefore, implored the Court to dismiss the application with costs. Replying to the above submission, Mr. Mwita strongly objected to the preliminary objection. He did not object the fact that the applicant was served with notice of application for execution and that they were present during the hearing of the application for execution before the tribunal, .but his argument was based on interpretation of rule 11 (4) of the Rules. Also, he did not dispute the obvious position of the law that a period of 14 days is prescribed for seeking stay of execution before this Court and that the said period is reckoned from the date of service of notice of execution or the date when the applicant became aware of the execution. He tried to distinguish the undisputed facts with the essence of notice of execution to the extent that on 14/03/2024 the applicant was service with an application for execution as opposed to the notice of execution intended by rule 11(4) and (7) of the Rules. To him, rule 11 (4) of the Rules provides the period of 14 days to run from the date the

applicant is served with notice of execution by the executing officer. According to his understanding, on which he stood firm, the executing officer is a court broker as defined at page vii of the Execution Guidelines of 10/09/2020. Therefore, he was never served with the notice of execution by executing officer except the second respondent which was on 29/10/2024. He emphatically justified his argument that this application having been filed on 05/11/2024, was within 14 days, hence no contravention of rule 11 (4) of the Rules. He went further to submit that, even rule 11 (7) of the Rules, requires the applicant to attach in his application, the notice of intention to execute the decree. He bolstered his argument by referring to the Court's decision in Mohamed Ally Rashid v. Mkejina Athuman Mabuku (Civil Application 41 of 2020) [2022] TZCA 543 (7 September 2022). Reiying on the above, he urged the Court to dismiss with costs the preliminary objection as unfounded and misconceived. On rejoinder, Mr. Ngowi challenged the interpretation of rule 11 (4) offered by Mr. Mwita judging it as a misconception. The service by a court broker was not the starting point intended for the purpose of 14 days prescribed under the rule. The reason is that a court broker comes at the end of the execution proceeding. That the law provides 14 days from the date the applicant is served or made aware, in the instant

application, the applicant was aware of the execution proceeding since when he was served with the application for execution before the tribunal. The applicant waited until when the court broker came into execution. It was Mr. Ngowi's argument also that the case of Mohamed Ally Rashid v. Mkejina Athuman Mabuku (supra) is distinguishable, reiterating his prayer that the application be dismissed with costs. The question for determination by the Court is whether the application is time barred. There is no dispute between parties that the application for execution was lodged on 23/02/2024 before the tribunal in Misc. Application No. 82 of 2024. Not in dispute also that summons and requisite documents were served to the applicant on 14/03/2024 as the record reflects, while the present application was filed on 05/11/2024. What the parties are seriously contesting is the reckoning point. Whereas the respondent's advocate asserts that under rule 11 (4) of the Rules, time would start to run from when the applicant was served with the summons and application for execution which in this case was on 14/03/2024, while the applicant's counsel argues that the time should run when the court broker who was appointed in that proceedings served the applicant with a notice to vacate, which is 30/09/2024 and

not 14/03/2024/ not even 30/09/2024 when the ruling and order in execution proceeding were issued. The reason advanced is that on those dates the court broker had not yet sen/ed the appellant with the notice to vacate the suit premises. This is how I understood the applicant's counsel. His other argument is that a service by the executing officer contemplated under rule 11 (4) is the service of notice by the court broker and none else. Both advocates were serious on their respective positions of interpreting the provisions of rule 11 (4) of the Rules. Now I am invited, among other matters, to resolve such a serious disagreement between them regarding this provision which otherwise is of common usage in applications of this nature. To start with, I will reproduce the provision which is subject of the contest between the learned counsels, rule 11 (4) provide that: "An application for stay o f execution shall be made within fourteen days of service o f the notice o f 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 . " The main spirit of the above provision is that an application for stay of execution should be made within 14 days from the service of notice of execution or from the date the applicant has been made aware of the

existence of an application for execution. I accept that the phrase "executing officer" under the Execution Guidelines, 2020 issued by the Judiciary is interpreted at page vii correctly the way the applicant's counsel cited, thus: "Executing officer means a court broker, a process server or any other person engaged by the Registrar or by the magistrate in-charge to execute a warrant o f attachment or court order for sate, or to serve or to effect a court process." This interpretation was retrieved from rule 2 of the Court Brokers and Process Servers (Appointment, Remuneration and Disciplinary) Rules, 2017 (GN 363 of 2017). However, such one is a narrow interpretation. In broad sense, Registrar of a court of law, Magistrate in charge and any officer in charge of the tribunal who presides over execution proceeding is an executing officer. See the case of Shirika La Usafiri Dar Es Salaam Limited v. Flamingo Auction Mart Co. Limited (Civil Application 555 of 2018) [2022] 77CA 308 (25 May 2022), where executing officer was interpreted to include a deputy registrar. In this case, I would point out, the interpretation of executing officer under rule 11 (4) of the Rules was never a serious business of the provision the way learned counsel for the applicant wanted it to look

like. The main points of the provision, is time limitation of filing an application. The law is strict, such application must be filed within 14 days when the applicant became aware of the execution application. The medium through which the applicant becomes aware can be through service of the relevant notice or by other means like an advertisement in the newspapers. The time starts to run when the applicant is made aware of the existence of an application for execution. There is no doubt in this matter, the applicant was made aware of the existence of an application for execution on 14/03/2024. Even if we would accept his devised interpretation, that time should run from the date the applicant is served by the court broker, his argument will still collapse. This is because, the 14/03/2024 notice was served to the applicant by a process server one Charles Kajala Sengo. Under the interpretation which the applicant sought refuge, a process server is also an executing officer. It is also on record that the applicant and his legal counsel participated in the trial of the application for execution before the tribunal. It therefore needs no more illustration to conclude that in this matter, time started to run on 14/03/2024. The applicant's application should

have been made on or before 28/03/2024. By filing this application on 05/11/2024, the applicant contravened rule 11 (4) of the Rules. An application which is filed out of time is therefore bad in law, correctly as submitted by Mr. Ngowi. I find merit in the preliminary objection and uphold it. There is also no dispute that a destiny of the matter filed out of time is dismissal. I will go no further but dismiss the application with costs. DATED at DAR ES SALAAM this 18th day of November, 2024. The Ruling delivered this 19t h day of November, 2024 in the presence of Mr. Dickson Ngowi, holding brief for Mr. Francis Mwita, learned counsel for the Applicant, and Mr. Dickson Ngowi, learned counsel for the respondents is hereby certified as a true copy of the original. P . J. NGWEMBE JUSTICE OF APPEAL W.HAMZA DEPUTY REGISTRAR COURT OF APPEAL