adam maila mtaki vs obeid muyabi soti 2022 tzhclandd 12733 14 december 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM APPLICATION FOR EXECUTION NO. 129 OF 2022 (Arising from Bill of Costs No. 173 of 2021) ADAM MAILA MTAKI....................................................... DECREE HOLDER

VERSUS OBEID MUYABI SOTI...................................................JUDGMENT DEBTOR

RULING Date of last Order: 14.12.2022 Date of Ruling: 14.12.2022 A.Z.MGEYEKWA, J This is an Application for Execution brought under Order XXI of the Civil Procedure Code Cap. 33 [R.E 2019], Adam Maila Mtaki, the Decree Holder applies for execution of the award against Obeid Muyabi Soti, the Judgment Debtor. The applicant prays for this court to order the Judgment Debtor to pay the Decree Holder a sum of Tshs. 7,740.000/= costs of execution and in i case of default thereof, the Judgment Debtors be detained as a Civil Prisoner. Suo motu I prompted the counsel for the Decree Holder at the very outset to address the Court whether they have exhausted other modes of execution before choosing to arrest and detain the Judgment Debtors. The applicant’s counsel submitted that they want this Court to call the Judgment Debtor to show cause and be ordered to pay Tshs. 7,740,000/= and in default thereof, this Court to arrest and detain the Judgment Debtor as a civil prisoner. I have heard the counsel’s submission, and from the outset, I hold that the counsel for the Decree Holder has opted to combine two prayers without exhausting the first mode of execution. It is my view that the Decree Holder was required to enforce the award vide other modes of execution, instead of assuming that other modes of execution cannot bear fruits. It is worth noting that resorting to the arrest and detention

mode is not the party's choice but a matter of legal practice. Before invoking that mode, there must be clear attempts done by the Decree Holder in enforcing the said award by other means legally provided but in vain. The modes of execution are clearly stated under section 42 (a) and (b) of the Civil Procedure Code Cap.33 [R.E 2019] provides that:- 2 "42. Subject to such conditions and limitations as may be prescribed, the court may, on the application of the Decree Holder, order the execution of the decree- fa) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property. ” Guided by the above provision of law, it is clear that the application is lodged prematurely before this Court. Having observed as hereinabove, I proceed to strike out the application for being prematurely filed before me. No order as to the costs. Order accordingly. Dated at Dar es Salaam this date 14th November, 2022. Ruling delivered on 1 we®timber, 2022 via audio teleconferencing whereas Mr. Ferdinand Makore, counsel for the Decree Holder was remotely present. 3 4