CIVIL APPLICATIONN NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CIVIL APPLICATION NO. 338/08 OF 2024 ADAM JOSEPH KAZUNGU................................................. . APPLICANT VERSUS VENANCE JOSEPH KAZUNGU....................................... ...... RESPONDENT (Application for stay of execution of the judgment and decree of the High Court of Tanzania at Mwanza) (Morris. J.^ dated the 6th day of October, 2023 in Land Appeal No. 55 of 2023 RULING 23rd & 30tf1 May, 2024 MDEMll. 3.A.: This application is for stay of execution. It is under certificate of urgency and by way of notice of motion in terms of rule 11 and 48 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The supporting affidavit deposed by the applicant, accompanied the notice of motion to that effect. Briefly, as per the depositions in the supporting affidavit, the two brothers appeared before the District Land and Housing Tribunal for Mwanza over ownership of a house situated in Plot No.4 Block'AA' Mabatini Mwanza. The Tribunal entered judgement and decree in favour of the respondent. The appeal to the High Court by the applicant herein was fruitless. He thus thought the High Court slept into an error. A notice of appeal was therefore lodged by the applicant on 11th October, 2023. On 2nd April, 2024 the respondent served the applicant with notice of execution and summons to appear for determination of an application for execution set to be on 8th April, 2024 in an Application for Execution No. 406 of 2023. This move of the respondent awaken the applicant to initiate the instant application for stay of execution. It was filed on 15th May, 2024. Before me on 23rd May, 2024 through virtual court, appeared the applicant unpresented whereas the respondent, who was also present, had the services of Mr. Mussa Nyamwelo, learned advocate. Before hearing of the application could commence, the learned counsel raised a concern regarding the propriety of the application if at all it had complied with rule 11 (4) of the Rules. He referred me to paragraph 4 of the applicant's affidavit in which the applicant deposed to have been served with the notice of execution on 2nd April, 2024 such that, in his argument, having this application in place on 15th May, 2024, the application is well beyond the fourteen (14) days prescribed under the cited rule. He thus urged me to struck out this application for being instituted out of time. The applicant conceded that the summons informing him of the pendency of the application for execution which was due for hearing on 8th April, 2024, reached him on 2nd April, 2024. That besides, his insistence was that, the application was within time because the notice of execution was fixed to his house door on 8th May, 2024. To him therefore, time to file application for execution starts to run from date the alleged notice of execution was fixed to his house door. This, in his argument, is what prompted him to file an application for execution on 15th May, 2024 thus meeting the threshold of fourteen (14) days prescribed under sub rule (4) of rule 11 of the Rules. He could not therefore find any merit to the objection raised thus urged me to overrule rule. The question open before me for determination is whether the application for stay of execution was lodged within time. In terms of rule 11 (4) of the Rules, application for stay of execution has to be instituted within fourteen (14) days following receipt of the notice of execution or from the time when the applicant became aware of the existence of the intended execution. It is stated in the said sub rule this way: '"'An application for stay o f execution shai! be made within fourteen days o f service o f the notice o f execution on the applicant by the executing officer or from the date he is otherwise made aware o f the existence o f an application for execution." This being the legal position, as conceded by the applicant, the notice informing the applicant that the application for execution was scheduled for hearing on 8th April, 2024 reached him on 2nd April, 2024. This is to say, from this latter date, the applicant became aware that the respondent herein had commenced execution processes. Let paragraph 4 of the supporting affidavit, in this regard, speak of itself as hereunder: " That I swear and state that on 2ndday o f April, 2024 the applicant was served with summons o f the date o f hearing o f execution on &h day o f April, 2024. A copy o f summons is attached as an Annexture "C" respectively to be read and referred as part o f this application” Given the above deposition of the applicant own self, knowledge or otherwise information regarding initiation of execution processes by the respondent was made aware to the applicant on the date he received summons. In fact, he obeyed to the said summons and on the appointed date, that is 8th April, 2024 he entered appearance before the District Land and Housing Tribunal through which the application for execution was to be determined. In this regard, argument of the applicant that existence of the execution processes came to his knowledge following fixation of the execution notice on 8th May, 2024 is without substance. His affidavit is silent regarding the fixed notice any way. What therefore has been attached in the affidavit purporting to be notice of execution without having correlation to any paragraph in the said affidavit, do not have any bearing to the application. As argued by the respondent's counsel, application for stay of execution initiated on 15th May, 2024 from 2nd April 2024 when the applicant was served with summons for hearing of an application for stay of execution is out of time. Such an application, as observed by my brother Mwampashi, JA. in Hamimu Karashani v. Meshack Jackson Kabote, Civil Application No. 306/16 of 2024 (unreported) is liable to be struck out, as I hereby do. The two rivals being brothers, it is in the interest of justice not to prescribe an order as to costs. It is so ordered. DATED at DAR ES SALAAM this 30th day of May, 2024. G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 30th day of May, 2024 via video linked from Court of Appeal Dar es Salaam to Mwanza in the presence of the applicant and the respondent both appeared in person, is hereby certified as a true copy of the original. 5