Rashid Kitwanga (As administrator of the estate late Abdallah Msham Kitwanga) vs Jane David Mushi(As administrator of the estate late David Mushi) (Civil Application No. 407/17 of 2024) [2024] TZCA 903 (18 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 407/17 OF 2024 RASHIDI KITWANGA (As administrator of the estate lateABDALLAH MSHAM KITWANGA ..... ........................ APPLICANT VERSUS JANE DAVID MUSHI (As administrix of the estate late DAVID M USH I...................................................................... RESPONDENT (Application for stay of execution of the Decision of the High Court of Tanzania (Land Division) at Dar es Salaam (MsafirLL) dated the 18th day of April, 2024 in Misc. Land Application No. 26113 of 2023 RULING 24hJune & 18t h September, 2024 MAKUNGU. J.A.: The applicant has lodged this application seeking an order for stay of execution of the decision (Ruling and Drawn order) of the High Court of Tanzania (Land Division) at Dar es Salaam, in Misc. Land Application No. 26113 of 2023 (Msafiri, J.), dated 17th April, 2024 originating from Land Case No. 10 of 2010 and incidental orders for Execution No. 7762 of 2024. The application is brought by way of notice of motion lodged under rules 11 (3), (4), (5) (a) (b) and (c),(6), (7), (a), (b), (c) and (d), 48 (1)

and 4 (1), (2) (a), (b) and (c) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). The application is supported by an affidavit deponed by the applicant. On the other hand, the respondent did file her affidavit in reply to contest the application. By consent of the parties, the hearing of the application was by way of written submissions. The submissions in support of the application was drawn and filed by Mr. Alex Mashamba Balomi, learned advocate for the applicant whereas the submissions in opposition of the application was drawn and filed by Mr. Wilson Edward Ogunde, learned advocate for the respondent. Hie following brief background facts will serve the purpose of appreciating the essence of the present application. The applicant herein successfully sued the respondent in Land Case No. 316 of 2010. In that case the applicant claimed to be declared the lawful owner of the disputed land located at Madale Area Kinondoni District, Dar es salaam Region. He also claimed for vacant possession, damages and costs. After hearing the parties, the High Court Land Division (Wambura,J) declared the applicant as lawful owner of the disputed land. On the other

hand the respondent was ordered to vacate from the disputed land and further ordered to pay the applicant 5,000,000/= as general damages. The applicant also successfully applied for execution of that decree vide miscellaneous Land Application No. 20 of 2016 and the High Court (Mahimbali, DR) endorsed the application by ordering eviction of the respondent on 27th April, 2016. Consequently, the applicant was put in possession of the disputed land. Having realized that the applicant took possession of the land vide order of the High Court as stated above, the respondent applied to the same court to vacate its order dated 27th April, 2016 and on 17th May 2016, less than a month, the order was vacated and status quo ante ordered because the High Court realized that it endorsed execution without knowing the pending notice of appeal against decision of the High Court of 27th November, 2015. However, the respondent was not put back in possession. The respondent's Civil Appeal No. 286 of 2016 before this Court was successful. This Court ordered that all proceedings of the High Court beyond 8th May, 2015 to be quashed and set aside and the judgment and decree dated 27th November, 2015 were also quashed and set aside. 3

Consequently, the eviction order dated 27th April, 2016 which placed the applicant in possession of the disputed land was also quashed and set aside. It has to be noted that the applicant filed Civil Appeal No. 57 of 2023 against decree of the High Court dated 28th October, 2022 (Mgeyekwa,J as she then was) in Land Case No. 316 of 2010 but the said appeal was withdrawn on 24th April, 2024 hence there is no pending appeal against the decision of the High Court in Land Case No. 316 of 2010. It is on record that on 9th May, 2024 the applicant filed a notice of appeal before this Court against the Ruling and drawn order of the High Court (Land Division) dated 17th April, 2024 in Miscellaneous Land Application No. 113 of 2023. And on 27th May, 2024 the respondent filed Execution No. 7.762 of 2024 for execution. The applicant has accessed the Court, again seeking for stay of the intended execution. In support of the application, Mr. Balomi in his written submissions urged me to grant the application on the grounds that the application meets all conditions 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 31s t May, 2024 and the application was filed on 14thJune, 2024, thus it was filed within 14 days required by the law. Mr. Balomi also submitted that this application having been filed on 14th June, 2024 accompanied with essential documents as per rule 11 (7) of the Rules, the same is competent and ought to be granted. He added that the applicant in paragraphs 26 and 27 of his affidavit averred that he is willing and with firm undertakings and financially able to furnish a fairly and reasonable security for the due performance of such an order which may ultimately be binding upon him. He concluded that if the intended execution is allowed to proceed and the respondent takes over the disputed land, the applicant will face undue hardships as one of the properties on that land is his residential house where a number of members of his family will be rendered homeless and the applicant has no alternative accommodations. He prayed that, on order for staying the execution pending the outcome of the intended appeal be granted and the costs of this application be in due course. In reply to the submissions of the applicant's advocate, Mr. Ogunde opposed the application arguing that the applicant cannot be allowed to proceed with occupation of the disputed land while decree of the High Court which dismissed his case is not challenged. He submitted that the

applicant in his affidavit and written submissions proposed to provide bank guarantee as security torwards due performance of the decree, but that proposed bank guarantee will only secure a sum of 80,000,000/= which has been awarded as general damages and there is no security offered by the applicant to cover the order for eviction from being carried out. He thus claimed that the condition with regard to security under rule 11 of the Rules which requires the conditions to be cumulatively met has not fully complied with. He prayed the application to be dismissed with costs. With the above arguments in mind, I will start with the law applicable in terms of the requirements necessary for application like this one to be granted. I will address my mind on the law in the context of the requirements of rule 11 (4), (5) (a) and (b) and (7) (d) of the Rules. Legally, for the Court to grant the orders sought, as highlighted above, the applicant needs to satisfy the following legal requirements, among others; one, the applicant must lodge the application within fourteen (14) days from the date that he becomes aware of the execution proceedings. This is in terms of rule 11(4) of the Rules. Two, the applicant must also attach to the application copies of the documents in terms of rule 11(7) of the Rules. Three, the applicant will face substantial loss if the decision is executed and four, the applicant must make a firm

undertaking and confirm at the hearing that he shall furnish security of the due performance of the decree. The above four conditions and several others which are not relevant to this application, must be cumulatively met as per this Court's decisions in Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010 and Mohamed Masoud Abdaila and Sixteen Others v. Tanzania Road Haulage (1980) Limited, Civil Application No. 58/17 of 2016 (both unreported) among others. Where the conditions are not met cumulatively, the application is incompetent and liable to fail, see Mabrouk Mengele v. Vernon David Law and Another, Civil Application No. 87 of 2004 (unreported). Having examined the notice of motion, the supporting affidavit and all the annexed documents and considered the written submissions by the applicant, I am satisfied that the application meets the requirements of the law, particularly, rule 11(4), (5) and (7) of the Rules. In the premises, the application is hereby granted. I order that the execution of Execution No. 7762 of 2024 of the decision (Ruling and drawn order) of the High Court of Tanzania (Land Division) at Dar es Salaam, delivered by Msafiri, J dated 17th April, 2024, in Misc Land Case Application No. 26113 of 2023 originating from Land Case No. 10 of 2010,

be stayed pending the hearing and final determination of the applicant's intended appeal. I further order that, for the due performance of the decree, the applicant should deposit security in Court, in a form of bank guarantee in the sum of 100,000,000/= within sixty (60) days from the delivery of this Ruling. Costs in the cause. Order accordingly. DATED at DAR ES SALAAM this 13th day of September, 2024 O. O. MAKUNGU JUSTICE OF APPEAL The Ruling delivered this 18th day of September, 2024 in the presence of Mr. Silvester Korosso, learned counsel holding brief of Mr. Alex Balomi, learned counsel for the Applicant and Mr. Wilson Ogunde, learned counsel for the Respondent is hereby certified as a true copy of the original. 8