Meneja Mkuu, Zanziresort Ltd vs Ali Said Paramana (Civil Application No 462, 15 of 2016) [2017] TZCA 342 (6 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR (CORAM: JUMA, C.J, MBAROUK. 3.A And MZIRAY, J.A.l CIVIL APPLICATION NO. 462/15 of 2016 MENEJA MKUU, ZANZIRESORT LIMITED .................................................... APPLICANT VERSUS ALI SAID PARAMANA..................................................... RESPONDENT (An Application for stay of execution of a decree of the of the High Court of Zanzibar at Vuga) (Sepetu, dated 3rd day of December, 2015 in Civil Case No. 13 of 2013 RULING OF THE COURT 29th Nov& 6th Dec, 2017 MBAROUK, J.A:. In terms of Rule 11 (2) (b) and (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant, MENEJA MKUU, ZANZIRESORT LIMITED has filed this application seeking for an order that the judgment and order of the High Court issued on 3r d December, 2015 in Civil Case No. 13 of 2013 be stayed. i

When the application was called on for hearing, the Court wanted to satisfy itself as to whether the application was lodged within time or not. In this application, the decision sought to be stayed was delivered on 3r d December, 2015, the notice of appeal was filed on 18th December, 2015, whereas the notice of motion was filed on 24th October, 2016. In terms of Rule 11 (2) (c) of the Rules, it is a requirement of the law that an application for stay of execution ought to be filed before the expiration of the time allowed for appealing therefrom. To appreciate what have been stated therein, Rule 11 (2) (c) of the Rules reads as follows: "where an application is made for stay of execution o f an appealable decree or order before the expiration o f the time allowed for appealing therefrom ; the Court, may upon good cause shownf order the execution to be stayed." (Emphasis added). 2

Both, Mr. Suleiman Salum Abdulla, learned advocate for the applicant and the respondent, who appeared in person unrepresented, conceded to the defect raised by the Court suo motu. On his part, the learned advocate for the applicant readily conceded and further added that ten months has passed instead of sixty days to file the application for stay of execution. He said as the application has contravened the requirement to file it within sixty days, that renders it to be incompetent hence deserves to be struck out. On the part of the respondent, he had nothing to submit, knowingly he is a lay person not knowledgeable on the legal technicalities. In the instant application, time allowed for lodging stay of execution lapsed and no extension of time was granted. As pointed out herein above, ten months instead of sixty days have passed before the appellant lodged the notice of appeal. This

Court in one of its decisions in the case of Irene William Mkenga v. Costa Othiniel Ahia, Civil Application No. 4 of 2011 (unreported), came to a conclusion to strike out applications of this nature for being filed out of time. We are increasingly of the view that, since the application was filed out of time, the same is incompetent. For being incompetent, we hereby strike it out. DATED at ZANZIBAR this 4th day of December, 2017. I. H. JUMA CHIEF JUSTICE M. S. MBAROUK JUSTICE OF APPEAL R. E. S. MZIRAY JUSTICE OF APPEAL