africa.lawBeta
Ask AICasesLegislation
africa.law

Free access to African legal information. Legislation, case law, and regulatory documents from across the continent.

Resources

  • Legislation
  • Gazettes
  • Jurisdictions

Company

  • About
  • Contact
  • Terms of Use
  • Privacy Policy

Jurisdictions

  • All jurisdictions →

© 2026 africa.law by Bhala. Open legal information for Africa.

Aggregating legal information from official government publications and public legal databases across the continent.

Back to search
Case Law[2014] TZCA 2318Tanzania

Ahmed Maulana vs Fitina Iddi and 2 Others (Civil Application No. 12 of 2013) [2014] TZCA 2318 (19 June 2014)

Court of Appeal of Tanzania

Judgment

. "(~ IN THE COURT OF APPEAL OF TANZANIA ATARUSHA -·f (CORAM: KIMARO J.A., MANDIA, J.A., And JUMA, J.A.) CIVIL APPLICATION NO. 12 OF 2013 ' . ~ - -- - ~ - -- -~ A·H-ME-D-·MAULANA ...... -~ .... ::.::::::::::::· ... -.: .. ~ ........................... APPLl(:ANT VERSUS

  1. FITINA IDDI
  2. SUSAN STAN LEY KIVUYO
  3. JOSEPH LAIZER t/a EMANYATA COUR ..................... RESPONDENTS BROKERS AND AUCTIONEERS (Application from the Judgment and Decree of the High Court of Tanzania (Land Division) 1s th & 23 rd June, 2014 JUMA, J.A.: . at Arusha) (Ngwala, J.) Delivered on 27 th July, 2011 In Land Appeal No. 51 of 2007 RULING OF THE COURT In this application, Ahmed Maulana, the applicant, is seeking an order for staying execution of the .Decree of the High Court Land Division at Arusha (Ngwala, J.) in Land Appeal No. 51 of 2007 the judgment of which was delivered on 27/07/2011. This application was lodged by notice of motion under Rule 11 (2) (b), (c), (d), (e) and Rule 48 (1), (2), (4) of the Tanzania Court of Appeal Rules, 2009 (the ... ' Rules). The application is supported by an affidavit of the applicant. 1

A sale agreement of a premise situated at Sombetini Ward in Arusha Municipality is at the centre of the dispute~ It was the applicant herein who __ instituted ~ suit_ in_the DJstrict_Land__and-Housing--+r-ibuna!-(herei-na-f-ter--- referred to as DLHT) to seek for a nullification of the sale agreement between Fatina Idd (1 st respondent herein) and Susan Stanley Kivuyo (2 nd respondent herein). The DLHT dismissed that suit and ordered the ' applicant to either pay Susan Kivuyo a principal sum of Tshs. 28,600,000/= with interest, or to immediately vacate the suit premises. Aggrieved, the applicant lodged an appeal to the High Court at Dar es Salaam in Land 4". -

  • Case Appeal No. 51 of 2007. On 27/7/2011.the High Court (Ngwala, J.) dismissed that appeal after making a finding thc1t the DLHT was right to order the applicant to repay back Tshs. 28,600,000/=. On 19 th August, ' 2011, the aggrieved applicant filed both his notice of appeal to this Court, and an application in the High Court (Misc. Land Application No. 66 of 2011), for leave to appeal to this Court. ,. In so far as application seeking a stay of execution of the decision of the High Court (Land Case Appeal No. 51 of 2007) is concerned, the applicant at first filed Civil Application No. 8 of 2011. This application was struck out by this Court on 7/3/2013 because the application was not accompanied with a Decree sought to be stayed. Undeterred by the 2

i'> striking out of his application, on 22/4/2013 the ~pplicant filed the present application for stay of execution and made sure the Decree in Appeal is part of the record of this motion.

  • -· - - - ----· ~ ---- - --- - - -- -- - -- - - ------- The last time, on 7/3/2014, when this application was set down for hearing by the Court, only the applicant and Joseph Laizer t/a . Emanyata (3 rd respondent). were preserit. The Court ordered the applicant to effect a substituted servic on Fatina Idd and Susan Stanley Kivuyo (the 1 st and 2 nd respondents herein) by way of publication in the ' MWANANCHI newspaper. The order of substituted service was duly complied with when the notice of hearing of this application was published on 10/6/2014 and 11/6/2014 in that newspaper. Finally, when this application was called out for hearing· on 18 th June, 2014, only the applicant was present in person. Accordingly we allowed the applicant to proceed with the hearing of his application in the absence of the respondents who were duly served by substituted service. At the very outset, the Court wanted to know from the applicant whether his present application is within the prescribed period for applications for stay of execution. The Court noticed that the applicant 3

J. ). •.. ·~had duly filed his Notice of Appeal on 19 th August, 2011 to appeal against the Judgment and Decree subject of this motion. The Court . . further pointed out that from 19 th August, 2011 -bJL_he_fiJed-h1s

--- -notice-of-·appeal;if took the applicant more th'an twenty (20) months up to 22 nd April, 2013, when he filed this present application for an order of stay of execution. In his reply, the applicant magnanimously conceded that he was all along very much aware that he filed this present application well beyond the sixty days prescribed for applications for stay. He blames the delay on the fact that his first applicatio·n for stay was struck out by this same Court. Further, he intimated that he has pending application in the High Court to seek an extension of time. It is clear to us that the applicant does not dispute the fact that his application was filed outside the sixty days of filing of his Notice of Appeal. Although the period of sixty days within which to apply for an order of the Court to stay the execution of a Decree of the High Court is not set down by the Rules, but the Court through its decisions has prescribed the sixty days. For instance, in Awiniel Mtui and Three Others vs. 4

'Stanley Ephata Ki mambo (Attorney for Ephata Mathayo Ki mambo), ARUSHA CIVIL APPLICATON N0.70F 2013 (unreported), the Court_ restated the sixty-day limitation period as follows: ''In terms of Rule 11(2)(b), (c) and (d) of the rules, there is no time limit prescribed to institute an application for stay of execution, but it does not conversely mean that the . application for stay of execution may be lodged at any time as the applicant chooses. In the case of James Masanja Kasuka vs. George Humba, Civil Application No. 2 of 1997, (unreported), this Court stated as follows:- "We accordingly set the time limit of sixty days in civil applications as we have for criminal applications. "[Emphasis added]. In Irene William Mkenga vs. Costa Othiniel Ahia, MSH.CIVIL APPLICATION NO 4 OF 2011 (unreported) this Court dealt . with an application for stay of execution lodged under Rule 11 (2) (c) of the Rules which applicant therein had admitted that she filed her motion seventy days after a Notice of appeal had been filed and which was outside the sixty days. We insisted that an application under Rule 5

.. '11 (2) (c) must be filed within sixty days from the date of filing a . notice of appeal. Since the _si~ty_ga'ts within which- to appJy {or a stay of execution is reckoned from 19/08/2011 when the applicant filed his Notice of Appeal, this present application before us is clearly out of time because it took over 20 months until 22/04/2013 for the applicant to file this motion. This period of 20 months is evidently more than sixty days this Court has set down within which to apply for a stay of execution. In the light of the foregoing, this applicc1tion is not competently before the Court. It is accordingly struck out. No order is made on costs. ' DATED at ARUSHA this 19 th day of June, 2014. N.P. KIMARO JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL I.H. JUMA JUSTICE OF.APPEAL; 6

Discussion