Evance Robert Maina vs Lina Elinami Maleko (Civil Application No. 614/02 of 2024) [2024] TZCA 865 (9 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 614 /02 OF 2024 EVANCE ROBERT MAIN A ....................... ..... ..... ..... ................... APPLICANT VERSUS LINA ELINAMI MALEKO .................... ....... ........................ RESPONDENT (Application for stay of execution of the High Court of Tanzania at Arusha) fKiwonde. J.> dated the 18th day of June, 2024 in Civil Appeal No. 5 of 2024 RULING 30th August & 09th September, 2024 MGONYA. J.A.: The applicant, Evance Robert Maina, on 2n d July, 2024 filed a notice of appeal seeking to challenge the decision of the High Court (Kiwonde, J.), in Civil Appeal No, 05 of 2024 dated 18th June, 2024. On the other hand, the respondent Una Elinami Maleko filed an Execution Application No. 17176 of 2024 intending to execute a decree which is subject to the intended appeal. As the intended appeal is still pending, the applicant has approached this Court by way of a notice of motion made under Rules 11 (3), (4), (5), (6), (7) (a), (b), (c), (d) and 48 (1) and (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) for stay of execution of the decree i

of the impugned judgment, pending the final determination of the appeal. The grounds indicated in the notice of motion are as follows:

1. That the applicant has lodged a notice o f appeal against the Judgm ent and decree o f the High Court o f Tanzania a t Arusha in C iv il Appeal No. 05 o f2024;
2. That there exists serious errors and ille g alitie s in the High Court Judgm ent and decree o f the High Court o f Tanzania a t Arusha in C ivil Appeal No. 05 o f2024 to be challenged and to be exam ined b y th is Honourable Court in the intended appeal;
3. That in the event execution o f the Judgm ent and decree is carried out the applicant stands to suffer undue hardship, substantial financial loss and render the intended appeal to Court nugatory and m ere academ ic exercise;
4. That in the event the execution is exercised and the appellant succeeds in the intended appeal, it w ill be im possible to recover the applicant's properties liste d in d ie application fo r execution, nothing can be reversed which can place the applicant in the original position it was before the eviction;
5. That the balance o f convenience, common sense and lo gic tilts in favor o f granting stay;
6. That the application has been made w ithout undue /inordinate delay; and
7. That the applicant is w illing and ready to deposit security fo r the due perform ance o f the decree as sh all be directed by the Court. 2

The notice of motion is supported by an affidavit duly sworn by Mr. Kapimpiti Mgalula the applicant's counsei duly appointed to prosecute this application. In the affidavit in reply, deponed by Mr. Mohamed Nuru Mhinda, the respondent's counsel who has taken note of what has deponed in the applicant's affidavit in support of the application save for the averment in paragraph 9 of the affidavit where, the respondent's counsel stated that; some of the properties mentioned are not on the same state when the High Court at Arusha delivered its Judgement, since the applicant without a lawful order already demolished and vandalized two matrimonial properties lowering its value and evict the respondent and her daughter from the house subject to execution. When the application was called on for hearing, the applicant and the respondent were represented by Mr. Kapimpiti Mgalula and Mohamed Mhinda, both learned counsel respectively who appeared through video conference while in Arusha. Submitting in support of the application, Mr. Mgalula adopted the contents of the notice of motion as well as its accompanying affidavit. He went on to submit that, the applicant has fulfilled the mandatory requirements as provided under rule 11(7) of the Rules. To clarify, he

argued that there is a notice of appeal already lodged by the applicant in this Court, Moreso, the Notice of the Execution has been attached as pleaded under paragraph 8 of the affidavit. Further, the counsel referred us to rule 11(4) of the Rules and argued that, the application was filed within 14 days as the applicant became aware of the execution on 12th August, 2024 and lodged this application on 16th August, 2024. He further submitted that, the applicant is willing to deposit the security for due performance of the decree by depositing Title Deeds equivalent to 50% shares of the matrimonial landed properties, subject to execution. Moreso, by referring to paragraph 13 of the affidavit, the counsel submitted that, if the application will not be granted, the applicant will suffer substantial loss which cannot be remedied. In response, Mr. Mhinda having adopted the contents of the affidavit in reply, he went on to submit that, they forceful oppose the application on the following reasons: One, the applicant did not furnish the security for the due performance of the decree because he did not provide the Title numbers of the properties to this application on the right of 50% shares. Two; in the affidavit, the applicant did not pledge commitment as to the safety of the properties. Three, that the applicant took justice on his hands by demolishing some of the properties including

a matrimonial house and staff house. The pictures of the destruction were attached and marked LN 1 collectively. That the matter was reported at the Police Station and is still under investigation. Mr. Mhinda went further to submit that; they pray the wisdom and assistance from the common law principle that, who comes to equity must come with clean hands. That the applicant is seeking the assistance for protection against the execution of the decree while he has stains hands with injustice for vandalizing the decreed properties. To bolster his submission, he referred to Article 13(1) of the Constitution of the United Republic of Tanzania (1977), stressing on equality before the law. Finally, it was Mr. Mhinda's prayers that, in case the applicant's prayer is granted, for mutual justice the applicant should have ordered to replace/reconstruct the demolished decreed properties which is Plot No. 106 under Certificate of Title No. 36630 located at Terati kwa Mromboo, together with reconstructing one matrimonial home at Plot No. 11 with Certificate of Title No. 4575 which has been also vandalized, so as to maintain the status quo for both parties. Further to that, he prayed that the applicant be ordered to provide a commitment bond committing him from disposing or destroying again the matrimonial properties. To fortify his prayer, a case Rose Benedict v. Janeth Evarist Njau & 3 Others,

Civil Application No. 311/02 of 2024 [2024] TZCA 508 (27 June 2024), was referred to. In his rejoinder, Mr. Mgalula reiterated that, the applicant is ready to furnish security for the due performance of the decree as he may be directed by the Court. He further submitted that; the applicant is ready to submit his shares equivalent to all seven properties as they appear in the application for execution. In regard to the alleged destruction, he argued that, since the respondent's counsel submitted that, they reported the matter at the Police Station and the same is under investigation, it was his submission that this matter cannot be entertained in this application. Having examined the Notice of Motion, the supporting affidavit, affidavit in reply and the authority referred to, in the light of the oral arguments advanced by the learned counsel for the parties, the main issue for determination is; whether the applicant has cumulatively complied with the conditions stipulated under rule 11 of the Rules. To start with the compliance of rule 11(4) of the Rules, it is evident from the record of the application that, the applicant lodged this application on 16tf1 August, 2024 well within the prescribed period of fourteen (14) days in terms of sub-rule (4) of rule 11 of the Rules. As it has been deponed under paragraph 8 of the supporting affidavit that, the

applicant became aware of the execution on 12th August, 2024 and it is on record that this application was filed on 16th August, 2024 which is three days after being aware of the execution. In regard to sub-rule (7) of rule 11, having examined the record, I am satisfied that the same was complied with as the application is accompanied by mandatory copies which includes; a High Court's Judgment delivered on 18th June, 2024 and its Decree (annexture El), the Notice of Appeal as well as the Notice of Execution. It is also evident that, to meet the requirement of sub-rule (5) (a) of rule 11, the applicant indicated in paragraphs 10 and 11 of the affidavit that, in the event the intended execution succeeds, it will be impossible to recover the said properties as nothing can be reversed which can place the applicant in the original position and that, he stands a chance to suffer by missing everything in the event this application is not granted. As for the requirement to furnish security in terms of sub-rule (5) (b) of rule 11, the applicant deponed under paragraph 13 of the affidavit, that he is ready, willing and undertakes to furnish security for the due performance of the decree as shall be directed by the Court. Elaborating on this requirement, the applicant's counsel submitted that, the applicant is willing to deposit the security for due performance by depositing Title

Deeds equivalent to 50% of shares distribution on the properties mentioned in the execution. As illustrated above, the respondent's counsel conversely contends, the pledged security is not sufficient since some of the properties have been vandalized and the applicant is not certain on the Title numbers of the properties on the right of 50% shares, he intends to deposit as security. It is settled that, a firm undertaking by the applicant to provide security, might prove sufficient to move the Court, all things being equal to grant a stay order. See; Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010 and Africhick Hatchers Limited V. CRDB Bank PLC, Civil Application No. 11 of 2010 (both unreported). It should also be observed that, the discretion to determine the kind of security to be furnished lies with the Court, the focus being, to balance the interests of the applicant who is seeking the order for stay and those of the respondent who is required to enjoy the fruits of the decree in the event the appeal fails. In the instant application, it is undisputed that the dispute involves matrimonial properties whereby, it is reflected in the Notice of Execution (annexture E 4) that; the respondent seeks to execute the decree which involves seven landed properties which were ordered to equal division

between parties after valuation. As a security for the due performance, the applicant prayed that, he is willing to deposit Title Deeds of 50% shares of the above properties for the due performance of the decree. In my view, regarding the nature of the controversy and the properties subject to execution as demonstrated above and seeking solace in the previous decision of this Court in Efatha Ministry v. Khambaita Limited, Civil Application No. 335/05 of 2022, I am satisfied that, the undertaking by the applicant to deposit Title Deeds equivalent to 50% of shares over the landed properties subject to execution, suffice to serve as security in due performance of the decree. Further for the interest of both parties, the applicant is ordered to sign the commitment bond to ensure that, the properties remain in the condition they were when the decree was passed, pending hearing and determination of the intended appeal. I have taken note of the respondent's concern on the alleged destruction and vandalization of some of the properties by the applicant. However, as rightly argued by the applicant, the said allegations cannot be considered and resolved in this application. In the final analysis, I am satisfied that the applicant has cumulatively complied with all the statutory conditions warranting the grant of the stay of the execution order. Accordingly, I grant the

application and proceed to order stay the execution of the Decree of the High Court of Tanzania, at Arusha in Civil Appeal No. 5 of 2024 dated 18th June, 2024 on conditions stated above, within the period of 30 days from the date of this ruling. Having regard to the circumstances of this application, I make no order as to costs. It is so ordered. ‘ DATED at DAR ES SALAAM this 09th day of September, 2024. The Ruling delivered this 09th day of September, 2024 via video link in the presence of Ms. Judith Reuben holding brief for Mr. Kapimpiti Mgalula, learned counsel for the Applicant and Mr. Mohamed Mhinda, learned counsel for the Respondent, is hereby certified as a true copy of the original. L. E. MGONYA JUSTICE OF APPEAL 10