Continental Service Limited vs China Railway Jiachang Engineering Company Limited (Civil Application No. 200/16 of 2023) [2024] TZCA 840 (30 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 200/16 OF 2023 CONTINENTAL SERVICE LIMITED ................................................. APPLICANT VERSUS CHINA RAILWAY JIACHANG ENGINEERING COMPANY LIMITED .................... ....... ..................................... RESPONDENT [Application for stay of Execution of the Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam] fSonaoro. J.) dated the 16th day of April, 2018 in Commercial Case No. 153 of 2013 RULING 23rd& 30th August, 2024 MASHAKA. J.A.: The respondent successfully sued the applicant, Continental Services Limited, for failure to honour the certificate of payment before the High Court (Commercial Division), in Commercial Case No. 153 of 2013 dated 16th April, 2018 at Dar es Salaam. The judgment and the decree was in favour of the respondent and the applicant was ordered to pay a sum of TZS. 324,189,305/= to the respondent, who has set in motion execution proceedings. i

Under a certificate of most extreme urgency, the applicant made this appiicaton by notice of motion under rules 11(3), (4), (5) (a) and (b), (6), (7) (a), (b), (c) and (d) and 48(1) and (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) seeking for an order to stay execution of the decree pending determination of Civil Appeal No. 557 of 2022. The notice of motion is supported by affidavit deponed by Paul Mremi Lyimo, the Managing Director of the applicant. On 30th March, 2023 the applicant was granted an ex parte order to stay execution of the decree of the High Court pending hearing inter partes of this application. The applicant has undertaken to furnish security by way of landed property or Bank Guarantee for the due performance of the decree. On the other hand, the respondent filed affidavit in reply not contesting the grant of the application. At the hearing of the application, Messrs. Gwakisa Kakusulo Sambo, and Rico Adolf Mzeru, learned advocates appeared to represent the applicant and the respondent respectively. The applicant has complied cumulatively with the conditions stipulated under rule 11 (4), (5) and (7) of the Rules. Having gone through the notice of motion, supporting and supplementary affidavits, the applicant is willing to offer security and Mr. Sambo urged me that since it

is the discretion of the Court, to be given ample time preferably 90 days to deposit a bank guarantee. Mr. Mzeru had no objection to the prayer and on security he urged that if I allow the pleaded property it be supported by a deed of surety from the deponent and owner of the property, otherwise the applicant to deposit a bank guarantee of the decretal sum. Rejoining, Mr. Sambo reiterated his submission. In the circumstances of this application, I am inclined to grant this uncontested application and order stay of execution of the decree in Commercial Case No. 153 of 2013, on condition that the applicant deposits a bank guarantee at the tune of TZS. 324,189,305/= not later than ninety (90) days from the date of this order. Costs shall abide the main cause. It is so ordered. DATED at DAR ES SALAAM this 28th day of August, 2024. L. L. MASHAKA JUSTICE OF APPEAL Ruling delivered this 30th day of August, 2024 in the presence of Mr. Rico Adolf Mzeru, learned counsel for the Respondent and holding brief for Mr. Gwakisa Sambo, learned counsel for the Applicant, is hereby certified as a true copy of the original.