Moivaro Investment vs Elisha James Mang'ombe and Another (Civil Application No. 1113 of 2024) [2024] TZCA 1125 (19 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA CIVIL APPLICATION NO. 1113 OF 2024 MOIVARO INVESTMENT............................................................... APPLICANT VERSUS ELISHA JAMES MANG'OMBE.................................................1 st RESPONDENT NYANGI MARERE GAUREGI............................................. ....2 nd RESPONDENT [Application for Stay of Execution of the Decree of the High Court of Tanzania at Dar es Salaam] fKafanabo J.) dated the 18th day of June, 2024 in Civil Application No. 1320 of 2024 RULING 14th & 19th November, 2024 GALEBA. 3.A.: This is an application for stay of execution of "the judgment" which was pronounced by the High Court of Tanzania, Musoma Sub Registry, at Musoma on 18th June, 2024. By that judgment, the first respondent was awarded TZS. 9,631,500.00 and the second was awarded TZS. 7,482,600.00. The applicant was aggrieved with the above judgment and lodged a notice of appeal. However, as the notice was pending, the respondents instituted Application No. 000019433 of 2024, seeking to enforce recovery of the above amounts from the applicant. As the application for execution was pending, the applicant filed this application moving the Court to stay the said proceedings. However,

together with an affidavit in reply, the respondents filed a notice of preliminary objection that; the application is time barred, and that the same is offensive of rule 11 (7) (b) of the Tanzania Court of Appeal Rules 2009 (the Rules), for it is not attached with a decree challenged. In arguing the first point, Mr. Ernest Edward Mhagama for the respondents, submitted that on 3rd and 10th October, 2024, the applicant appeared before the execution court by learned advocates, which means, the applicant had knowledge of the application before those dates. So, by filing this application on 30th October, 2024, the applicant missed out the fourteen days provided for in rule 11 (4) of the Rules. According to him, the application ought to be struck out. In reply, Mr. Richard Massawe, learned advocate for the applicant, admitted that counsel appeared in the execution court, but at that time she had not been served with any documents in respect of the application. According to him, the applicant was not legally aware of the execution proceedings until when he was served with the application sometime after 16th October, 2024. The issue in this first ground of objection, is whether the applicant having participated in the execution proceedings without service of the documents initiating the application, was aware of the proceedings, or he only

became aware of the application after service of the documents to her. I will start with rule 11 (4) of the Rules, which provides that: "An application for stay o f execution shall be made within fourteen days o f 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 o f an application for execution." [Emphasis added] According to the above provision of the law, there are two starting points from which the fourteen days are to be counted; one, is from when the applicant is served with a notice of execution, and; two, is when the applicant becomes aware that there is an existing application for execution of the decree he is challenging on appeal. To do justice to this matter, for a moment I will revisit the record of the application for execution because it was attached to the affidavit in reply of Mr. Mhagama. On 12th September, 2024, the application for execution was called in court before Hon. Ndyekobora DR, and the relevant record shows this: "Decree Holder represented by Mr. Ernest Mhagama learned counsel. Judgment debtor: Ms. Rolina Sambira, learned counsel holding brief of Mr. Edson Phiiipo learned counsel for the Judgment debtor....

Ms. Rolina Sambira;... Your honour the Judgment debtor's learned counsel has a matter before the Court of Appeal in Dar es Salaam, he prays to file affidavit to show cause as to why execution should not be carried out... Order: (i) For necessary orders to be [on] 03/10/2024 at 11:00 am. (ii) Affidavit to show cause as to why execution should not be carried out, [to] be filed before 03/10/2024. (iii) Parties to appear O. NDYEKOBORA, DR. 12/09/2024 ," [Emphasis added] The matter was called next on 3rd October, 2024 as agreed by both counsel. On that day at page 5 of the proceedings, the record shows that: " PROCEEDINGS Ms. Beatha George Tugwa holding brief o f Mr. Richard Massawe for thejudgment debtor: Your Honour• , we have filed the affidavit to show cause as to why execution should not be carried out, but I pray to be served with the application for execution...

Court: Since the judgment debtor has already filed an affidavit to shaw cause as to why execution should not be carried out, let parties appear for necessary orders on 16/10/2024." [Emphasis added] Admittedly, on 16th October, 2024, the execution court ordered the applicant to be served and permitted her to file another affidavit. But can we sincerely and firmly assert that the applicant was not aware of the execution proceedings while on 12th September, 2024 her counsel prayed to file an affidavit to show cause, and even filed one, as per the report of Ms. Tugwa learned advocate, on 3rd October, 2024? In my view, if the applicant did not have any knowledge of the existence of the application for execution, she would not have instructed an advocate to appear for her in court on 12th September, 2024. In fact, it would have been impossible for her, to have been able to file an affidavit before 3rd October, 2024. Briefly, as the applicant sent an advocate to court to resist an application on two occasions, and even filed an affidavit to show cause, it can only be illogical and very absurd to hold that the applicant was not aware of the application she was resisting since 12th September, 2024. In the circumstances, this application having been filed on 30th October, 2024, it was filed out of the fourteen days specified in rule 11 (4) of the Rule.

Accordingly, the same is hereby struck out, without having to discuss the second point of failure to attach the decree. I make no order as to costs. It is so ordered. DATED at DAR ES SALAAM, the 18th day of November, 2024 Z. N. GALEBA JUSTICE OF APPEAL Ruling delivered this 19th day of August, 2024 in the presence of Mr. Richard Massawe, learned counsel for the Applicant via video facilities from Arusha and in the presence of the 1s t Respondent in person, via video facilities from Musom is hereby certified as a true copy of the original. i R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL