Kessy Mkambara & Others vs Hassan Mkamila & Others (Civil Application No. 61/01 of 2022) [2023] TZCA 17912 (7 December 2023)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWARIJA. J.A.. KENTE. 3.A. And MURUKE. J.A.^ CIVIL APPLICATION NO. 61/01 OF 2022 KESSY M KAM BARA ....................... . .................................................. 1 st APPLICANT RASHID M ATELEKA............................................... . ..................... ..2 nd APPLICANT SELEMANI KATAM BALA ................................................................. 3 rd APPLICANT SALEHE KATAMBALA.......................................................................4™ APPLICANT MOHAMED M H O LELA ................................. . .................................. 5™ APPLICANT NASSORO M AU M BA .............. . ......................................................... 6™ APPLICANT NUNGAMOHASSANI ............. . .................................. . ..................... 7™ APPLICANT VERSUS HASSAN MKAMILA .......... . ................ . ...................... . .................. 1 st RESPONDENT TASIANA K IT E A .......................................................................... 2 nd RESPONDENT HALIMA HASSAN ........................ . ..............................................3 rd RESPONDENT YUSUFU NYOKA .......................................................................... 4 th RESPONDENT MOHAMED SALUM MKENANGE .............................. . ................. 5 th RESPONDENT SALUM MOHAMED MWEGIO @ M AN GORO..............................6™ RESPONDENT RAMADHANI MTENDA . ................................................................ 7 th RESPONDENT HASHIM NGOTW IKE ......... . ......................................................... 8™ RESPONDENT STANSLAUS M ASIOY................................................ . ................. 9™ RESPONDENT GODRID LUBUM BI ...................... . ............................................. 10 th RESPONDENT MRS. MICHAEL MWAKIMATA ................................................. 11 th RESPONDENT MALIKI MUSA LIGEMA ...... . ............................................. . ..... 12™ RESPONDENT RAMADHANI MUSA MAHUI .....................................................13™ RESPONDENT HAMISI MUSA L IG E M A ........................................ . ................ 14™ RESPONDENT SAIDI HAMISI M CHANJO ........................................ . ................ 15™ RESPONDENT MWAMVITA ALLY M KAM ILA ...................... . ............. . ............... 16™ RESPONDENT RAMADHANI MANDUTE . ............................................ . .............17™ RESPONDENT SOFIA N G E JA .................................. . ........... . .............. . ............. 18™ RESPONDENT ABDALLAH NASSORO MPANGA ................................................ 19™ RESPONDENT KASSIM MOHAMED MONALICHE.............................................20™ RESPONDENT ISSA M KAM ILA.......................................................................... 21S T RESPONDENT MUSSA HASSAN LIJEM A ...........................................................22 nd RESPONDENT ABADALLAH MANGAM E............................................. . ............ .23R D RESPONDENT SALUM M K U Y A ....... . ............. . .......... . ........................................ 24™ RESPONDENT l

RUKIA M K U Y A ............................................................. . ...........25™ RESPONDENT RASHIDI MKAMILA ............................. . .................................... 26™ RESPONDENT SAID GEBU .................................... . ........................................... 27™ RESPONDENT YASINI M W EG IO ....................................................................... 28™ RESPONDENT RASHIDI KIBUKI . ...................................................................... 29™ RESPONDENT ROGERS T E M U ............................................................................30™ RESPONDENT KIDOGOBASI VILLAGE COUNCIL............................................. 31 st RESPONDENT KILOSA DISTRICT C O UNCIL........................................ . ......... 32 nd RESPONDENT (Application for stay of execution pending appeal from the Judgment and Decree of the High court of Tanzania, Dar es Salaam District Registry at Dar es Salaam) (M ia ch a j.) dated the 31st day of August, 2021 in Land Case No. 24 of 2017 RULING OF THE COURT 29th August & 7th December, 2023 MURUKE. J. A: The applicants, Kessy Mkambara, Rashid Mateleka, Selemani Katambala, Salehe Katambala, Mohamed Mholea, Nassoro Maumba and Nungamo Hassani brought this application seeking an order staying execution of the decree of the High Court of Tanzania, Dar es Salaam District Registry, (Mlacha, J as he then was) in Land Case No. 24 of 2017. At the High court, the 1st to the 30th respondents instituted the above named case, against the applicants and the 31st and 32n d respondents claiming ownership of farms located at Kidogobasi village in Kilosa District, alleging that the 2

applicants had forcefully taken their farms and destroyed their sugarcanes. The applicants denied the claims. Upon hearing the parties, the trial court gave judgment in favour of the 1st to 30th respondents against the applicants for vacant possession, and payment of 90,000,000/= as general damages. The applicants were aggrieved, by the trial court's decision and they filed a notice of appeal and subsequent Civil Appeal No. 471 of 2021. On the other hand, the 1st to the 30th respondents instituted execution proceedings praying for attachment and saie of 2n d and 5th applicant's farms, arrest and detention of the 3rd, 4th, 6th and 7th applicants as civil prisoners and eviction of the applicants from the disputed land. Upon being served with the notice of execution, the applicants filed the application for stay of execution under Rule 11 (3) 11(4) 11 (5) (a) - (c) 11 (6) and 11 (7) (b) (c) and (d) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is supported by the affidavits of Rashid Mateleka, Selemani Katambala and Thomas Eustace Rwebangira. According to the notice of Motion, the application is based on the following grounds. (a) Undue hardship and substantial social and econom ic ioss sh all be caused to the applicants unless an order fo r stay o f execution is issued as the execution is fo r eviction , attachm ent and sale o f 3

the 1st and 4 h applicants' personal sugar cane, rice and m aize farm s located a t Kidogobasi Village in KHosa D istrict and to com m it the 2n d , J d , 5th and &h applicants as c iv il prisoners. (b) That the applicants w ill suffer undue hardship as their livelihoods depend on agricultural farm ing o f sugarcanes, m aize and rice in th eir respective farms, subject to attachm ent which were not p art o f the disputed land. That the said farm s are not attachable in execution o f the decree as the produces are wholly for subsistence to support the applicant's fife and that o f their fam ilies. (c) That there are serious errors and illeg alities in the proceedings, judgm ent and decree o f the High Court o f Tanzania sought to be challenged as the applicants were ordered to vacate from the farm o f 80 acres which was not in their possession and its location is not known. (d) That there is a pending C ivilAppeal No. 471 o f2021 in this Court to challenge the decision now sought to be executed. (e) The applicants are ready and w illing to furnish such security as m ay be ordered by the Court fo r the due perform ance o f the decree sought to be stayed. (f) That the application has been file d w ithout undue delay. On the other hand, the 1st to the 30th respondents filed affidavits in reply disputing the contents of affidavits in support of the application for

execution, while the 31st and 32n d respondent did not file any affidavit in reply. At the hearing of the application, the applicants were represented by Mr. Thomas Eustace Rwebangira, learned advocate while the 1st to the 30th respondents were represented by Professor Cyriacus Binamungu, learned advocate and the 31st and the 32n d respondents were represented by Mr. Francis Rogers and Ms. Magdalena Mwakabungu, Principal and Senior State Attorneys respectively. Given that the respondents have conceded to the application, and on being satisfied that the mandatory requirements of rule 11 (3) (4) (5) and (7) of the Rules, have been met, we grant the application for stay of execution. Accordingly, we stay the execution of the decree of the High Court of Tanzania, Dar es Salaam District Registry dated 31st day of August, 2021, in Land Case No. 24/2017, pending the hearing and determination of Civil Appeal No. 471/2021. We now proceed with the issue of security. As for the security for the due performance of the decree, the learned State Attorney for the 31st and the 32n d respondents, informed the Court that, they did not file an affidavit in reply thus leaving the matter in the discretion of the Court.

On his part, Professor Binamungu contended that the applicant be ordered to deposit cash security of TZS 90 million which is equal to the decretal sum or a bank guarantee of the same amount because the applicants are cultivating sugarcane thus making money. Besides, they should be responsible. Mr. Rwebangira on the other hand, urged the Court to consider the affidavit of Mr. Rashid Mateleka in support of the application and paragraph two of the Notice of Motion in which the applicants have requested to execute bond of a lessor amount. For clarity paragraphs 12 and 13 of Rashid Mateleka's affidavit read as follows: 12. That, I am ready and w illing to furnish such security and I make a firm undertaking, to furnish security in the m anner and to the extent as w ill be ordered by the Court as w ill deem fit, for the due perform ance o f a decree. 13. That, I sh a ll suffer financial loss as the am ount o f Tshs. 90,000,000/- awarded is a colossalsum o f m oney and execution is against six judgm ent debtors the other are not subject to execution. Before resolving the issue of security to be deposited, it is worth reminding parties to this application that, security for due performance is intended to protect the judgment creditor in the event that the appeal is 6

unsuccessful. Security for due performance operates as an insurance cover that is meant to indemnify the judgment debtor in the event the appeal fails without vigorous processes of recovering the subject matter of the decree. The payment of security for the due performance of the decree is intended to operate as a shield against the filing of frivolous and vexations appeals which may never succeed yet have an effect in escalating trial costs. The amount of security thus should not be lessor than the decretal amount. The applicant's counsel invited the Court to consider Rashid Mateleka's affidavit and order furnishing of security for a lessor amount. Literally, paragraph 13 of Rashid Mateleka's affidavit relied on by applicant's counsel is not satisfactory to move the Court to order a lessor amount than the decretal sum. There is no further and better particulars to convince the Court to order a lessor amount. In short, there are no special circumstances to that effect. We have considered the history of this case, and the judgment of the High Court and orders made therein. Thus, in terms of Rule 11 (5) (b) of the Rules, we order the applicant to deposit with Registrar for the Court within sixty days of the date of delivery of this ruling, an irrevocable bank guarantee in the sum of TZS. 90,000,000/= pending hearing and 7

determination of Civil Appeal No. 471 of 2021. Costs shall abide the outcome of the appeal. DATED at DAR ES SALAAM this 29th day of November, 2023. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 7th day of December, 2023 in the presence of absence of the Applicant and the Respondents who were dully notified, is hereby certified as a true copy of the original. 8