Sera Joel Kabigi vs Andrew Francis Kambona and 4 Others (Civil Application No. 664/17 of 2023) [2024] TZCA 904 (19 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 664/17 OF 2023 SERA JOEL KABIGI ............... . ....................... . ............................... APPLICANT VERSUS ANDREW FRANCIS KAMBONA............................................,...1ST RESPONDENT AGNES KABIGI MKENDE.........................................................2 nd RESPONDENT DORICA KABIGI........................................................... . ........ 3 rd RESPONDENT JACOB KABIGI ........... . ............................................................ 4™ RESPONDENT ADILI AUCTION MART LIMITED............................................ 5™ RESPONDENT (Application for Stay of Execution of the decree of the District Land and Housing Tribunal of Kinondoni at Mwananyamala and the High Court of Tanzania (Land Division) at Dar es Salaam) f Msafiri, J.) dated 31st day of May, 2023 in Misc. Land Case No. 160 of 2023 RULING 12th & 19th September, 2024. NGWEMBE. 3.A.: Sera Joel Kabigi, is in this Court applying for stay of execution of the decree of the District Land and Housing Tribunal for Kinondoni at Mwananyamala in Land Dispute No. 398 of 2016. The decree of the tribunal was upheld by the High Court in Miscellaneous Land Revision No. 160 of 2023. The Court is moved under rules 11 (3) (4) (5) (6) and i

(7) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicant swore an affidavit to support the application which among others averred that she is one of the heirs of the late Joel P. Kabigi, together with the 2nd, 3rd and 4th respondents. That, she was never a party in the case whose execution is sought to be stayed. It is important to preface briefly the background of the dispute that the first respondent Andrew Francis Kambona, sued the 2n d 3rd and 4th respondents over ownership of plot of land located at Kagera Street, Ndugumbi Ward in Kinondoni District within Dar es Salaam Region constituting House No. SH/175-M1603. In his claim, he stated that the late Francis Kambona purchased the property in dispute from the late Joel P. Kabigi since 10th day of May, 1990. That being an administrator of the estate of his deceased father, he sought for a declaratory order of ownership of the disputed property in Land Application No. 135 of 2022 at Kinondoni District Land and Housing Tribunal (the tribunal). The dispute was eventually concluded by settlement between the parties on 15/11/2022. The decree emanating from such settlement was issued by the tribunal on 08/12/2022. Among the terms of settlement included the value of the suit house that it was estimated to be worth of TZS. 2

130,000,000.00 which would not be sold instead the first and second respondent would be offered TZS. 30,000,000.00 each and the house should remain in Kabigi's family. However, the first respondent was not paid his shares. Thus, he applied before the tribunal for execution of the consent decree. Immediate after institution of execution at the tribunal, emerged the applicant, a stranger to the original dispute who filed an application for extension of time to lodge an application for revision against the first four respondents. However, such application was dismissed by the High Court in the ruling delivered on 31st May, 2023. On the same date, the applicant lodged notice of appeal to the Court. Nonetheless, the 1st respondent proceeded with execution proceedings before the tribunal. On 4th September, 2023, the tribunal appointed the fifth respondent to execute the eviction order and sale of the suit house. Immediate thereafter, the court broker (5th respondent) issued a 14 days' notice to the 2n d 3rd and 4th respondents to vacate the suit house, hence the instant application for stay of execution. 3

At the hearing of this application, the applicant was represented by Goodtuck Peter Mchewere, learned advocate, Mr. John Mponela also learned advocate appeared for the 1st respondent, while the 2n d 3rd and 4th respondents entered appearance in persons unrepresented, the 5th respondent did not appear in Court. Mr. Mchewere prayed to proceed with hearing of the application irrespective of the absence of the 5th respondent whose interest depends on the other respondents. Equally, Mr. Mponela and other respondents urged the Court to proceed with hearing of the application because the 5th respondent has, throughout absconded to enter appearance in court. On my part I accede to the prayer to proceed with hearing irrespective of absence of the 5th respondent whose duty, as a court broker, is to execute the court decree not otherwise. Upon being invited to submit on the application for stay of execution, Mr. Mchewere, adopted the notice of motion and the supporting affidavit to form part of his submission. Further he argued that the applicant has complied with all prerequisites provided for in rule 11 (3) (4) (5) (6) and (7) of the Rules. He added that, the application was lodged in Court timely, it has been accompanied with all relevant

documents as provided for in rule 11 (7). He submitted that the applicant averred in paragraph 15 of the affidavit to comply with security as will be ordered by the Court. Lastly, he argued that the applicant stands to suffer hardship in case the application fails. Mr. Mponela replied by adopting the affidavit in reply to form part of his submission. He also insisted that the applicant has nothing to suffer in case the application is not granted because the applicant is one of the heirs of the suit house and the 4th respondent is the sole administrator. Therefore, as one of the heirs the applicant has nothing to suffer. In rejoinder, Mr. Mchewere reiterated his submission in chief and prayed the orders be grated. Having considered the contents of the notice of motion, affidavit, submissions of both parties and the applicable laws, I find a fundamental question to be determined by the Court is whether the application bears any merit. The law requires the applicant to meet the requisite conditions prescribed under rule 11 of the Rules. Accordingly, the applicant must comply with time limitation prescribed in rule 11 (4) that the application must be lodged in the Court within 14 days of the service 5

or from the date she became aware of the execution. Equally she must comply with requirements of rule 11 (5) as we decided in the case of Laurent Kavishe v. Enely Hezron (Civil Application No. 5 of 2012) [2013] TZCA 365 (3 May 2013). Above all, the application must accompany with notice of appeal, a decree or order appealed from; a judgment or ruling appealed from and a notice of the intended execution (rule 11 (7). Those are basic prerequisites which must cumulatively be complied with in applications of this nature. Perusing the grounds in the notice of motion and the contents of the affidavit, undoubtedly the applicant managed to file this application within time, the notice of appeal was properly and timely lodged in the Court and she has attached the decree and notice of execution sought to be stayed. In her affidavit, she has demonstrated the substantial loss she may suffer in case she is evicted from the suit house and the same is sold to a bonafide purchaser thus, diminish her equitable shares. The intended execution will also disturb her and the children who are schooling. It is in the affidavit that in case the revision sought is successful, such amount will not be easily retrievable from the 6

respondents and lastly the applicant has pleaded readiness to provide security as the Court may order. The first respondent filed his affidavit in reply through which he disputes the main facts of the applicant and avers that the applicant will not suffer any loss instead, the first respondent is the one who will suffer such substantial loss if the application is granted. The learned advocate for the 1st respondent insisted that both the applicant and respondents are relatives and heirs of the suit house and the 4th respondent as an administrator has been acting all along on behalf of all heirs. Therefore, the claim of loss or suffering envisaged to occur in case the stay is not granted is out of context. In this matter, it is undisputed that the applicant was never a party to the case which brought forth to the decree sought to be stayed. It is true also that she retains her right of revision as she is aggrieved as exhibited in the notice of motion and affidavit. Obviously, the nature of execution sought by the first respondent, if allowed to take effect, cannot spare the applicant's interest which she is in the undertaking to defend through appeal. I am thus not persuaded by Mr. Mponela's 7

submission that the applicant has nothing to suffer under the circumstance of this case. Even balance of convenience is against that proposition. It is known, I presume, the purpose of stay of execution is to preserve the subject matter in dispute so that the rights of the parties in appeal or revision are not rendered nugatory. This is not the first time, but we gave a detailed illustration on the main purpose of the applications for stay of execution in the case of Felix Emmanuel Mkongwa v. Andrew Kimwaga (Civil Application No. 249 of 2016) [2020] TZCA 333 (9 June 2020) among many other decisions. It is also the rule that where the applicant has complied with all the requisites of the law, this Court will make sure that such execution, whose nature is preemptive to an appeal or revision pending before the Court, is halted for a while. I therefore, have a firm position that such purpose deserves to be served in this application as the applicant has managed to demonstrate a good cause for stay of execution. The application is fit to be granted. 8

In terms of rule 11 (3) of the Rules, the intended execution of the decree in Land application No. 398 of 2016 from the District Land and Housing Tribunal for Kinondoni at Mwananyamala is stayed pending hearing and determination of the intended appeal. This order is conditional upon the applicant depositing a Bank's Guarantee covering the entire amount of money agreed as TZS. 130,000,000.00 as security for the due performance of the decree within a month's time to be reckoned from the date of delivery of this ruling. DATED at DAR ES SALAAM this 17th day of September, 2024. The Ruling delivered this 19th day of September, 2024 in the presence of Mr. Goodluck Peter learned counsel for the Applicant while the 1st respondent unrepresented present in person and in the absence of the 2n d 3rd 4th and 5th respondents is hereby certified as a true copy of P. J. NGWEMBE JUSTICE OF APPEAL 9