Mahiku Abdallah Maharagande vs Mtegame Abdallah Maharagande & Another (Civil Application No. 1026 of 2024) [2024] TZCA 1076 (8 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1026 OF 2024 MAHIKU ABDALLAH MAHARAGANDE (Administrator of the estate of the late ABDALLAH HAMIS MAHARAGANDE) ........ APPLICANT VERSUS MTEGAME ABDALLAH MAHARAGANDE ............................ 1 st RESPONDENT SEFU HASSAN SULE ................ ...................................... 2 nd RESPONDENT [Application for Stay of Execution of the Decree of the High Court of Tanzania (Morogoro Sub-Registry) at Morogoro] (Magoiga, J,) dated the 23rd day of August, 2024 in Land Appeal No. 8166 of 2024 RULING 1s t & 8th November, 2024 MAKUNGU. J.A.: The applicant is moving the Court by notice of motion for stay of execution of the decree of the High Court of Tanzania (Morogoro Sub- Registry) in Land Appeal No. 8166 of 2024 dated 23rd August, 2024 pending hearing and determination of an intended appeal. The application is brought under rule 11 (3), (4), (5), (a), (b), (6), (7), (a), (b), (c), (d), 48 (1) and 4 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The 2n d respondent intends to attach and sale of the applicant's matrimonial house (family house) located on Plot No. 6 Block 'A' Kihonda i

area within Morogoro Region the property which the applicant and his family depend on it for livelihood something which is likely to case irreparable loss and injuries to both the applicant and his family. The notice of motion is supported by an affidavit duly affirmed by the applicant. The respondents filed their affidavits in reply opposing the applicant's affidavit. When the application was called on for hearing before me, Mr. Richard Mathias Kinawari, learned advocate represented the applicant whereas the respondents were present in person, with no legal representation. At the outset, the 1s t respondent intimated that he raised a point of preliminar/ objection that the application is time barred, hence is incompetent before the Court. After a brief discussion with the Court, it transpired that the application was filed within time required by the law. He thus, prayed to withdraw his point of objection. The prayer was granted and I ordered the application to proceed with the hearing on merit. Submitting in support of the application, Mr. Kinawari first adopted the affidavit in support of the application and thereafter urged me to

grant the application on the ground that the application meets all requirements under rule 11 of the Rules to be granted. He contended that this application has been filed within 14 days from the date of receiving the application for execution. The notice of execution was received on 7th October, 2024 and the application was filed on 21s t October, 2024. He pointed out that thelast day of filing was on 20th October, 2024 but it was Sunday and thus was filed the next day which was Monday 21st October, 2024, but it was also filed electronically on 18th October, 2024, thus it was filed within 14 days required by the law. Mr. Kinawari also submitted that the applicant in his affidavit has made an undertaking to furnish security and is proposing to deposit the same property which is intended to be attached. But also, is ready to furnish additional security should a need arise or by any other mode as the Court shall direct. He concluded that, in the event the execution is carried out it will cause irreparable injuries to the applicant and his family. Basing on that account, he prayed that the application be granted as prayed for in the notice of motion. In reply to the submission of the applicant's advocate, the 1s t respondent opposed the application arguing that the house is possessed

by the applicant himself and not matrimonial property. He added that the applicant is not residing in the said house, thus if the execution to proceed, he will not be affected. He prayed the application to be dismissed with costs. On his part, the 2n d respondent opposed the application on the ground that the property in question is commercial one operating as a Guest House in the name of CALIFORNIA, thus the purported execution could proceed on the said Guest House without making any harassment or injury to the applicant's family. He prayed the application to be dismissed. In rejoinder, Mr. Kinawari replied that, in principle, the application is not contested by the respondents. He thus, reiterated his prayer for the application to be granted and that the Court should allow the property in question be deposited as security and not to be disposed of by any means until the intended appeal is heard and determined. This is what the parties submitted for and against the granting of the application for stay of execution. Having heard from the parties and duly considered their affidavits, one question to resolve is whether conditions stipulated under rule 11 of the Rules have been complied

with. This being an application for stay of execution, rule 11 (4), (5) and (7) of the Rules is clear that: n (4) 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 o f the existence o f an application for execution. (5) No order for stay o f execution shall be made under this rule unless the Court is satisfied that: (a) substantial loss may result to the party applying for stay o f execution unless the order is made; (b) security has been given by the applicant for the due performance o f such decree or order as may ultimately be binding upon him. (7) An application for stay o f execution shall be accompanied by copies of the foliowing- (a) a notice o f appeal; (b) a decree or order appealed from; (c) a judgment or ruling appealed from; (d) a notice o f the intended execution"

In the instant application, it is not disputed that the application was filed within 14 days, thus the condition stated in sub-rule (4) of rule 11 of the Rules has been complied with. Equally, the applicant's act to annex in the supporting affidavit, the notice of appeal, judgment, decree and the notice of execution is clear evidence of compliance of the condition stated in rule 11 (7) of the Rules. The only controversy between the parties, in my view, is in respect of the interpretation of rule 11 (5) (b) regarding furnishing security which the respondents opposed the property in question not to be allowed to be deposited as security. On this argument, the Court in Kibo Corridor Ltd. v. Ravji Investment Co. Ltd., Civil Application No. 473/05 of 2019 (unreported) stated that: "It is established law that, a firm undertaking by the applicant to provide security might be sufficient proof to move the Court to grant the order o f stay of execution. See for instance; Mantrac Tanzania Ltd. v. Raymond Costa, Civil Application No. 11 o f 2010 (unreported)." As it is, the applicant in this application, as deposed in paragraph 9 of the supporting affidavit, has made a firm undertaking to provide

security as may be directed. This, in my considered view, is in compliance with the requirement of rule 11 (5) (b) of the Rules as interpreted in Kibo Corridor Ltd. (supra). Moreover, the said rule does not specify the type or amount of security to be furnished. In that regard, the Court has discretion to determine the amount and nature of security to be provided mostly, as the circumstances of each particular case permits. See in B. R. Shindika t/a Stella Secondary School v. Kihonda Pista Makaroni Industries, Civil Application No. 26 of 2019 (unreported). In the light of the foregoing consideration, I find merit in the application which is accordingly granted. That said, execution of the judgment and decree of the High Court of Tanzania (Morogoro Sub- Registry) in Land Appeal No. 8166 of 2024 is thus stayed pending disposition of the applicant's intended appeal. In terms of rule 11 (5) (b) of the Rules I order as follows: one, that the applicant shall desist from disposing of or alienating in any manner whatsoever the property in question, namely Plot No. 6 Block 'A' situated at Kihonda area, within Morogoro Region. Two, that the applicant shall deposit with the Registrar of the Court within thirty (30)

days of the date hereof a certificate of Title of the property in question or if such certificate is not available shall deposit in a form of bank guarantee in the sum of 100,000,000/= as security. Costs shall be in the intended appeal. Each party shall bear its own costs. It is so ordered. DATED at DAR ES SALAAM this 7th day of November, 2024. O. O. MAKUNGU JUSTICE OF APPEAL The Ruling delivered this 8th day of November, 2024 in the presence of Mr. Richard Mathias Kinawari, learned counsel for the applicant and the 1s t and 2n d respondents who appeared in person; is hereby certified as a true copy of the original. ^ ffi/COURT OF APPEAL M R. W, CHAUNGU ilDEPUTY REGISTRAR ^ / / r m i D T nc a d d c a i