Polikarpi Kristoni vs Halima Kisaka and 2 Others (Misc Civil Application No. 41 of 1990) [1990] TZHC 272 (18 December 1990)

IN TID]) HIGH COURT OP TJZ1D. j_ ;tr?± MIC CIVIL LPPLICTION NO. 41 OF 1990 POIitLJtPIICRISTONI VI1RSU$ HAMU ICI3J1CL & 2 0IL2S H U L I N 0. This is an application for stay of axocution in High Court (pa) Civil ppoal No. 68 of 1989 arising from Hai District Court CivilL.ppoal No. 18 of 1989 ori.nally Boman&ombo Primary Court Civil Cao No. 5 of 19390 In his affidavit in support of the application for stay s the applicant deponed that he is the appellant in the U a.Court (PC) civil Apea1 No. 63:of 1989 so he prays for ozecution ponedng the dotarmination of the appeal, The first rosponclont filed, a counter affidavit stating that the laM suit was finally heard and determined by the Hai District Land Tribunal in Uai District Land. Tribunal Land Case No. 10 of 1981. per the copy of jid.ment amioxod to the counter affidavit so the matter is yes jUdioat,.i bcforo the courts of la7. The issue is Whothor thoro is suffjàiont cause for ordorin stay O.L. execution. Order 39 Rule 5 (i) of the Civi:l Procoduro Codop 1966 lays down the conditions for stay of execution by stating: " 0. 39 Rule 5(1): Jn appeal shall not o.perate as a ctay of procoodins under a doorco or order appealed from except so far cs the Court nay ordor g nor shall execution of a decree be stayed by roáscn only of an .ppoal having boon preferred from the docreo3 but the Court may for sufficie nt cause order stay of ezocution of such decree." • ./2

11 2 it The present case is certainly ros jucLicata before the cou.t for the simple reason that the llai District Land Tribimal finally hoard and determined the land it in Lend Case No 10 of 1931 on the 3/3/37 per the data of the judcnt thereof. If the applicant wore dissatiaicd by the decision of i1ie Hai District Land. Trj1jtna1 in Land Case No. 10 of 19819 he vould have appealed to the Mixüster for Lands. In view of the aLove, there is not sufficient Cause for staying execution because the case is not properly before the Coit.in the first place, Accordingly the application is dismissed with costs. It is so Ordered. ]J.N. MV]1U0, JuD. 18/12/ 19900 * At Arusha this 18/12/19900 Ajplicant in person. Rospondentgin person. 11 4 ) f 1 ' ,MTUO 2 JUDaIJ,. 10/12/ 1990.