ahmad abdallah kinyokwe vs zulfa salumu makuka and 3 others 2021 tzhclandd 368 22 july 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 489 OF 2020 (Arising from Execution No. 46 of2020 and Land Case No. 349 of 2015) AHMAD ABDALLAH KINYOKWE................................. APPLICANT VERSUS ZULFA SALUMU MA KU KA (Administrix of the late 1st RESPONDENT SALUMA. MAKUKA)............ . ................................................... DAMIAN KAKURU...................................................................... 2ndRESPONDE MBARI MBUSIRO....................................................................... 3rdRESPONDEN MARY FABIAN MAKOTA...................................4th RESPONDENT RULING S. M. MAG HIM BI, J The applicant filed this application for stay of execution before this court under Order XXXIX Rule 5(1) of the Civil Procedure Code, [Cap 33 R.E. 2019] seeking for the following orders:- a) That this Honorable Court may be pleased to issue an order staying the execution of the decree. b) Costs of the application. c) Any Other reliefs) this Honorable Court deem just to grant. When the application came for hearing on the 20/04/2021, Mr. Rwiza, learned advocate from the Legal and Human Rights Centre represented i In his submissions to support the application, Mr. Rwiza submitted that the stay of execution prayed for is of a decree in Execution No. 46/2020 which emanates from a decree in Land Case No. 349/2015. The main reason for the stay of execution as submitted by Mr. Rwiza is that they have already lodged a notice of intention to appeal to the Court of Appeal. That in para 3 of their affidavit, they have averred the reason for the stay and why the appeal had not been lodged. He expounded that they had applied for copies of proceedings and judgment and attached the letter as annexure to the affidavit. That all documents have been supplied except the exhibit and certificate of delay and that on 14/08/2020, they wrote a letter to remind the court to supply them with the exhibits which are yet to be supplied . His prayer was that the application is granted pending the intended appeal. In reply, the second respondent submitted that they were not served with the application filed in August s submitted by Mr. Rwiza. That when they applied for execution was when the applicant informed them that they intend to appeal against the decision of this court. They therefore had to stop execution because of the lodged appeal and they have not been served with the documents of appeal, just the notice of appeal which was received on time. He submitted further that after they rreceived the notice, they waited for the time to appeal until it lapsed, that is when they lodged the application for execution which they then came and said they intend to appeal. He insisted that they were served with all those documents on time and that is how they were able to lodge an application for execution of the decree. His prayer was that the application is dismissed with costs because it has now been a year since the judgment was delivered. 2 In rejoinder, Mr. Rwiza submitted that just to put the records clear, they have letters which show that they applied for those documents on time and a reminder letter was also sent. That without these documents they would not have been able to go to the Court of Appeal, that is why they could not appeal on time because of the delay in being supplied with the documents. He submitted further so long as they have served the respondents with a notice of intention to appeal, they were not obliged to serve them with the records of appeal. He hence reiterated his prayer that they are granted stay of execution of the decree pending determination of the judgment of the Court of Appeal. I have gone through the submitted argument from both parties. I have also gone through the judgment of this court execution of which stay is thought for. The judgment of this court dismissed the applicant's case for want of merit because the plaintiff then (applicant herein) could not prove his case. This made me sit and wonder what is it that the applicant seeks stay of or what is that which the respondents seek to execute in their application for execution. Can there be an execution of the order dismissing the case? In the said suit, the applicant was praying for vacant possession of the suit property connoting that the defendants are in occupation of the suit premises. In that sense, I find that the applicant has nothing to seek stay of since he is not in occupation of the property that he claims ownership to. If the order sought in this application is granted, it may be misconstrued to mean that the respondents should vacate the suit premises. That being the case, since the suit was dismissed for want of merits, there is nothing that can be stayed in execution as the applicant had prayed for. 3 The above notwithstanding, the other issue to be determined at this point is whether the pendency of an appeal or notice for intention to appeal is automatic stay of execution order. The provisions of Order XXXIX Rule 5(3) of the Civil Procedure Code, [Cap 33 R.E. 2019]: "No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the High Court or the court making it is satisfied that- (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (4) Notwithstanding anything contained in sub-rule (3), the court may make an ex parte order for stay of execution pending the hearing of the application." In his submission, instead of establishing good reasons for the substantial loss that is likely to occur on his side if the order is not stayed; the applicant has well established reasons for delay to file his appeal, which is not at issue at this juncture. In the case Of Jawinga Co.Ltd Vs Alistepro Investment Co. Ltd, Commercial Case No. 103 of 2012 (unreported), it was held that the pendency of an Appeal or notice of intention to appeal does not automatically operate as stay of execution. The important issue that the applicant would have made clear is what loss is likely to occur against him if the execution is not stayed. And as I said earlier, the decree that the applicant is seeking stay of dismissed the suit, and the applicant is not in possession of the suit 4 property so there is nothing to stay execution of. Consequently, this application is hereby dismissed with costs. JUDGE 5