Prisca Hezron Makota vs Ngabani Patrick Mtenga and 2 Others (Civil Application No. 739/17 of 2024) [2024] TZCA 960 (30 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 739/17 OF 2024 PRISCA HEZRON MA KOTA APPLICANT VERUS NGABANI PATRICK MTENGA ..................... EFC TANZANIA MFC LTD ............... . ............ TANZANIA QUALITY AUCTION MART LTD ,1st RESPONDENT 2n d RESPONDENT ■3rd RESPONDENT (Application for Stay of Execution of the Judgment and Decree of the District Land and Housing Tribunal for Kinondoni at Mwananyamala) 26th & 30th September, 2024. FIKIRINI, J.A.: The applicant, Prisca Hezron Makota, challenged the auction sale of property located in Mabibo, Dar es Salaam Region, by suing the respondents, Ngabani Patrick Mtenga, EFC Tanzania MFC Ltd., and Tanzania Quality Auction Mart Ltd. (hereinafter referred to as the first, second, and third respondents), before the District Land and Housing Tribunal (DLHT), for Kinondoni at Mwananyamala, in Land Application No. 401 of 2017. Aggrieved by the decision dated 8th January, 2024, she (Mbilinvi. J.^ dated 8th day of January, 2024 in Land Application No. 401 of 2017 RULING

appealed to the High Court in Land Appeal No. 3024 of 2024, where she again lost, in the judgment delivered on 12th July, 2024. Consequently, she lodged a notice of appeal on 22n d July, 2024, which was served on the respondents through Mr. Stephen Mayombo, learned counsel, on 29th July, 2024. Meanwhile, the first respondent, a decree holder, filed an application for execution on 27th August, 2024, registered as Application for Execution No. 330 of 2024. The applicant, as the judgment debtor, was served on 5th September, 2024. The filing of the application for execution prompted the applicant to lodge an application for a stay of execution under Rules 11 (3), (4), (5) (a) and (b), (6), (7) (a), (b), (c), and (d), read together with Rule 48 (1) of the Tanzania Court of Appeai Rules, 2009, (the Rules), on 19th September, 2024. The applicant's affidavit supported this application. At the hearing, Mr. Mohamed Tibanyendera, learned counsel, represented the applicant, who was also present in Court. He prayed for the application to be granted, stating that the applicant was prepared to provide security for due performance.

For his part, Mr. Stephen Mayombo, also a learned counsel, appeared for all the respondents. He informed the Court that while the respondents did not file affidavits in reply, they essentially did not contest the application. However, they urged that the applicant should furnish security for due performance in case the intended appeal fails. The present application for a stay of execution is against the decree of the District Land and Housing Tribunal (DLHT) in Land Application No. 401 of 2017. It is well established principle that as long as there is a notice of appeal lodged with this Court challenging a decree related to a matter subject to the pending appeal, an application for a stay in that regard is properly before the Court. This principle was elaborated in the case of Salvatory Gibson v„ William Laurent Malya and Mariam I. Mbelwa (Civil Application No. 6 of 2017) [2019] TZCA 445 (12th December, 2019; TANZLii), which referenced Sudi Kipetio & 3 Others v. Bakari Ally Mwera, Civil Application No. 94 of 2004, (unreported). In the latter case, the Single Justice stated: "As long as there is a notice o f appeal before the Court and the order to be stayed, though issued by a subordinate court, pertains to a m atter subject to the

pending appeal, this Court has jurisdiction to entertain an application for a stay o f execution . " In the present application, it is evident that the applicant has complied, albeit partially, with the requirements under Rules 11 (3) and (4) of the Rules. Following the lodgment of the notice of appeal within the thirty days prescribed by law, and within fourteen days after being served with a notice of execution, the present application was filed. According to Rule 11 (7) (a) - (d), the application should be accompanied by a copy of the notice of appeal, the impugned judgment and decree, and a notice of execution. However, as stated in paragraphs 10, 11, and 12 of the supporting affidavit, the applicant has not received a copy of the impugned judgment and decree, precluding her from attaching them to her application. In addition to her averment that she was yet to be furnished with the necessary documents, attached a reminder letter dated 17th September, 2024, to the affidavit in support, showing that her efforts to procure the necessary documents had been so far been barren of fruits. Furthermore, the applicant has demonstrated that she would suffer substantial and irreparable loss, which cannot be compensated monetarily, if this application is not granted. Guided by our previous

decisions, which discourages declining stay of execution to an applicant who had been in occupation currently. One of those decision is the case of Sudi Seif Ngota (Adm inistrator o f the Estate o f S e lf Mohamed Ngota ) v. Aloyce John Kazimbaya (Civil Application No. 262/17 of 2019) [2021] TZCA 26 (18th February, 2021; TAINZLii). In the present case, as stated in paragraph 18 of the affidavit, the applicant has been in occupation for many years. Her eviction in itself would amount to substantial loss and therefore have a profound impact on her. I have therefore considered her current status as of the date of the decree a factor in granting the stay of execution. See: Mapius Otieno v. Machimu Mayara, (Civil Application No. 279/8 of 2024) [2024] TZCA 515 (2n d July, 2024; TANZLii). Given these circumstances, the balance of convenience and the principles of common sense and justice favor granting the application. I am satisfied that the requirement for the applicant to demonstrate substantial and irreparable loss has been met. Regarding the last requirement under Rule 11 (5) (b) of the Rules concerning security for due performance, the applicant has expressed her readiness in paragraph 16 of the affidavit and in Court to deposit

with the Court a copy of the Certificate of Title for the disputed property. This commitment is clear and unrefuted. In light of the above considerations, I find the application to be meritorious. Therefore, I order a stay of execution of the decree of the DLHT in Land Application No. 401 of 2017, with the condition that the • ' v p * • ' ■ ■ applicant shall not dispose of or alienate the disputed property in any manner and must deposit the Certificate of Title with the Court within thirty (30) days, pending the hearing and determination of the intended appeal. The costs of this application shall abide by the outcome of the appeal. It is so ordered. DATED at DAR ES SALAAM this 30th day of September, 2024. The Ruling delivered this 30th day of September, 2024 in the presence of Mr. Mohamed Tibanyendera, learned counsel for the applicant also holding brief for Mr. Stephen Mayombo, learned counsel P. S. FIKIRINI JUSTICE OF APPEAL for the respondents; is hereby cer a true copy of the original. pfPEAi W. A. HAMZA

DEPUTY REGISTRAR \zV COURT OF APPEAL