Mary Mapunda vs Yahaya Ramadhani Mzome (Civil Application No. 488/17 of 2023) [2024] TZCA 923 (9 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT DAR-ES-SALAAM CIVIL APPLICATION NO.488/17 OF 2023 MRS MARY MAPUNDA (Administratrix of the Late HILARY MAPUNDA ...................................... APPLICANT VERSUS YAHAYA RAMADHANI MZOME..,.,........................... . .............................RESPONDENT (An application for stay of execution of the judgment and decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Manao. 3.^ Dated the 30th day of December, 2021 in Land Case No. 455 of 2017 ORDER OF THE COURT MADE UNDER RULE 39 (1) OF THE TANZANIA COURT OF APPEAL RULES. MUGASHA, J.A.: In this motion, the applicant herein is seeking to stay execution of the decree of the High Court of Tanzania (Land Division) in Land Case No. 455 of 2017 handed down on 30/12/2021 pending the determination of the appeal. In the respective decree, the respondent was declared to be the lawful owner of suitland that is, plot No. 40 Block 'A' situated at Buguruni within Dar-es-saiaam whereas the applicant was ordered to immediately render vacant possession of the suit premises to the respondent. The motion is predicated under Rule 11 (3), (4), (4A), (5) (a), (b), (c) and (7) (a) f (b), (d ) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and it is accompanied by the affidavit deponed by Mary Mapunda, the i

applicant; notice of appeal dated 13/1/2022; decree dated 30/12/2021 and the application in respect of the intended execution dated 13/12/2022. The application is opposed by the respondent vide the affidavit in reply of the respondent. At the hearing the applicant was represented by Mr. Leocard Kipengele, learned counsel whereas the respondent had the services of Protace Kato Zake, learned counsel. It was Mr. Kipengele's submission that, what is sought to be stayed is the applicant rendering vacant possession of the suit premises which is the respondent's dwelling house or else she wiil rendered homeless and consequently suffer irreparable loss. On being probed by the Court, Mr. Kipengele admitted that the applicant has not furnished security for the due performance of the decree be it in the notice of motion or the supporting affidavit. However, he stated that the applicant owns 30 acres of land located at Mkuranga and she is willing to deposit in Court a customary title deed for the due performance of the decree. Besides, he was of the view that on the balance of probabilities, if the stay order is not granted, it is the applicant and not the respondent who stands to suffer most. With the said submission, Mr. Kipengele implored on the Court to grant the stay order pending the determination of the appeal. 2

Mr. Zake opposed the application and urged the Court to dismiss it on account of the applicant's failure to comply with the prescribed mandatory condition warranting the Court to grant stay order. He pointed out that, although the applicant has filed the application within the prescribed time together with the required documents such as, the notice of appeal and the decree, the applicant has not furnished security for the due performance of the decree be it in the decree or the notice of motion as per the dictates of Rule 11 (7) (a) of the Rules. In this regard, he invited the Court not to act on the statement from the bar made by the applicant's counsel that the applicant is willing to deposit in Court the customary title deed of land as security for the due performance of the decree. Furthermore, Mr. Zake stated that, it is the respondent who stands to suffer most as the grant of the stay order will prevent him from enjoying the fruits of the decree. Ultimately, as earlier stated Mr. Zake implored the Court to dismiss the application with costs. In this application it is not in dispute that, the applicant has not furnished security for the due performance of the decree as may ultimately be binding on her. Therefore, the applicant has not complied with the mandatory requirements of Rule 11 (7) (b) of the Rules which categorically stipulates that, no order for stay of execution shall be made unless the security has been given by the applicant for the due performance of the 3

decree as may ultimately be binding upon him. The respective security must be stated in the either the notice of motion or the accompanying affidavit in support of the motion. That apart, even a firm undertaking by the applicant to furnish security in the notice of motion or affidavit in question, is sufficient compliance with the requirement to furnish security. See: MANTRAC TANZANIA LTD VS RAYMOND COSTA, Civil Application No. 11 of 2010 and MBARALA A MAHARAGANDE AND 5 OTHERS VS MAHIKU A, MAHARAGANDE, Civil Application No. 496/01 o f 2021 (both unreported). Therefore, in the absence of the security to be furnished or an expression of willingness to furnish security which must be rooted in the notice of motion or supporting affidavit, I decline to act on the applicant's counsel's statement from the bar that the applicant will furnish the customary title deed of land situated at Mkuranga. I am fortified in that regard, because it is settled law that an undertaking to from a counsel's statement from the bar cannot be taken to amount to a firm undertaking on the applicant to furnish security for the due performance of the decree, See: ALEX SIRIAMARA AND TWO OTHERS VS BRYSON NALOGWA KITULY, Civil Application No. 3 of 2016 and FARM EQUIPMENT COMPANY LIMITED VS FESTO MKUTA MBUZU, Civil Application No. I l l of 2014 (both unreported).

In a nutshell, this application is not merited on account of the applicant's failure to furnish security for the due performance of the decree as may ultimately be binding on her as required under Rule 11 (7) (a) of the Rules, Thus, the application is hereby dismissed with costs. DATED at DAR-ES-SALAAM this 9th day of September, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I certify that this is a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 5