Bertha Mjawa vs Happy Japhet Kwilabya (Civil Application No. 601/01 of 2023) [2024] TZCA 967 (4 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 601/01 OF 2023 BERTHA MJAWA ............................ ................................................... APPLICANT VERSUS HAPPYJAPHET K W ILABYA.......................................................... RESPONDENT (Application for stay of execution of the order of the High Court of Tanzania at Dar es Salaam) (Nkwabi, 3.) dated the 5th day of June, 2023 in Misc. Civil Application No. 317of 2022 RULING 10th September, & 4th October, 2024 MASHAKA, J.A.: The High Court of Tanzania, District Registry at Dar es Salaam in Misc. Civil Application No. 317 of 2020 dated 5th June, 2023 granted custody of a child Bertha Isdory Mjawa to Happy Japhet Kwilabya, the respondent. The applicant filed this application under rule 11 (3), 11 (4), 11 (5)(a), (b), 11 (6), 11 (7) (a), (b), (c) and (d) and rule 48(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), supported by affidavit sworn by the applicant. The applicant is seeking for an order to stay execution of the above order granting custody of the child to the respondent pending determination of an intended appeal on grounds that:

1. The applicant has lodged a notice o f appeal to the Court o f Appeal o f Tanzania.
2. That, should the appeal succeed, there is a p ossibility o f the applicant to suffer more loss than the respondent as by now the ch ild is in class 6 at St. Catherine Pre & Prim ary School in Lushoto and in the com ing year the child w ill be in class 7 eligible for N ational Standard 7 Exam inations and the change o f custody m ight affect her perform ance as the respondent is not residing in Lushoto this m ight lead to the child to change school.
3. The applicant's intended appeal w ill be rendered nugatory if no stay w ill be made.
4. The applicant is able to give security fo r due perform ance o f the order if the appeal fails. The respondent filed affidavit in reply contesting the application. Both parties filed written submissions. When the application was called on for hearing inter partes on 10th September, 2024, Mr. Othman Katuli, learned advocate appeared for the applicant, whereas Ms. Victoria Hiza assisted by Ms. Rehema Keraria, both learned advocates, represented the respondent. This is a unique application which, for ease of comprehension needs a short background leading to it. The applicant, a grandmother of the child Bertha Isdory Mjawa who is the subject of this application, is disputing the revocation of the custody and placing to the respondent, mother of the child due to change of circumstances. The applicant was

dissatisfied by the decision of the High Court hence, filed a notice of appeal on 28th June, 2023. She was served with a notice of execution of the order on 30th July, 2023. Following that notice, this application to stay execution was filed on 11th August, 2023. Mr. Katuli submitted that the applicant has fulfilled cumulatively the relevant conditions set under rule 11 of the Rules. At paragraph 4 of the supporting affidavit, it is shown that the applicant was served with the notice of execution as indicated earlier, and the instant application was filed well within the prescribed time in compliance to rule 11 (4) of the Rules, he argued. In compliance to rule 11 (7) of the Rules, he pointed out that the application is accompanied by copies of the ruling and the drawn order to be challenged, the notice of appeal and summons to show cause why execution should not proceed. In her affidavit in reply, the respondent did not dispute that she served the notice of execution to the applicant. Also, she did not contest that she was ultimately served a notice of appeal. However, Ms. Hiza argued that the applicant has failed to show how she will suffer substantial loss if the execution proceeds, contrary to rule 11 (5) (a) of the Rules. Further, she added that the child was expected to commence her Standard 7 National Examinations on 11th and 12th September, 2024 at the same School. She concluded that the application has been overtaken by events and implored me to dismiss it with costs. 3

Rejoining, Mr. Katuli reiterated that if execution is allowed to proceed, it will affect the welfare of the child who is in class 7 at St. Catherine Pre & Primary School in Lushoto and the change of custody might affect her performance, and that the applicant is not the custodian of the child. For determination before me is the issue whether the application is meritorious or not. It is trite law that, for the Court to grant the application for stay of execution, all the conditions under rules 11 (3), (4)/ (5) (a) & (b) and (7) (a), (b), (c) & (d) must be cumulatively satisfied. See: Joseph Soares @ Goha v. Hussein Omary, (Civil Application No. 12 of 2012) [2013] TZCA 328 (8 May, 2013, TANZLII), and Gilbert Zebedayo Mrema v. Mohamed Issa Makongoro, (Civil Application No. 369/17 of 2019) [2020] TZCA 48 (16 March, 2020, TANZLII). In this application, it is not disputed that the applicant complied with rule 11 (4) and (7) (a), (b), (c) and (d) of the Rules. The contentious issue is whether there is also compliance with rule 11 (5) (a) and (b) of the Rules. Rule 11 (5) (a) and (b) of the Rules stipulates: "(5) No order for stay o f execution sh all be made under this rule unless the Court is satisfied that-

(a) substantial loss may result to the party applying fo r stay o f execution unless the order is made; (b) security has been given by the applicant fo r the due perform ance o f such decree or order as may ultim ately be binding upon him ," On security for the due performance of the decree which is in line with rule 11 (5) (b) of the Rules, the applicant under paragraph 7 of the affidavit made a firm undertaking that she is ready to give security for the due performance as will be decided by the Court. Though the order for execution is not a monetary decree, the Court may require the applicant to furnish security in a form of commitment. In Asha Juma Mansoor & Others v. John Ashery Mbogoni (Civil Application No. 122 of 2020) [2021] TZCA 252 (11 June 2021, TANZLII) the Court held that, the applicants were required to furnish security in the form of commitment to maintain a status quo of the premises from which the respondent intended to evict them. Like the present application, the order is not monetary therefore the applicant may be ordered to furnish security in the form of a commitment to hand over the child to the respondent in case her appeal fails. However, I have keenly gone through the grounds advanced in the notice of motion and submissions by learned advocates. Mr. Katuli has 5

failed to satisfy me to grant the order for stay as he has not shown the substantial loss that the applicant would suffer in the event this application is not granted. In her submissions, Ms. Hiza urged me to consider that the child was to remain in the same School to complete her primary education and write her Standard 7 National Examinations which were held nationwide on 11th and 12th September, 2024. It was argued by both parties that it was paramount for the child to remain in the same school and to not be moved out of the school in order to enable her to complete her primary education without any disruptions which could affect her performance. Ms. Hiza urged me to dismiss the application for the reason that the child has already completed her Standard 7 National Examinations at St. Catherine Pre & Primary School in Lushoto. Having considered the notice of motion, the supporting affidavit, the affidavit in reply and submissions by the learned advocates, the main concern of the applicant was that the change of custody of the child who is a student at St. Catherine Pre & Primary School in Lushoto would affect her performance because the respondent is not residing in Lushoto and it might lead to the change of school. I find that the applicant has failed to impress me on the substantial loss she would suffer if the stay order is not granted taking into consideration that the child Bertha Isdory Mjawa has completed her Standard 7 National 6

Examinations as indicated in this application. The applicant has therefore not shown me any good cause to order stay of execution of the order. In fine, I find the application to be unmerited and I accordingly dismiss it. Costs shall be in the cause. It is so ordered. DATED at DAR ES SALAAM this 3rd day of October, 2024. L. L. MASHAKA JUSTICE OF APPEAL Ruling delivered this 3rd day of October, 2024 in the presence of Ms. Nancy Mosha holding brief for Mr. Othman Katuli, learned counsel for the Applicant, Ms. Nancy Mosha, Ms. Victoria Hizza and Rehema Kyariro, learned counsels for the Respondent, is hereby certified as a true copy of the original.