MISC LAND APP 16386 2024

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 16386 OF 2024 Z (Arising from Land Case No. 13 of 2016, Land Division) ALLY HASSAN NAMANGANYA................................................................ APPLICANT VERSUS TUTINDAGA JOHN MWAMBENJA (Administratrix of the Estate of the Late Sabetha MJ. Mwambenja).............................................. RESPONDENT RULING 2nd to 20th September, 2024 E.B. LUVAN DA, J This application is made under the enabling provision of Order XXXIX rule 5(1), (3), (4) along sections 68(e) and 95 of the Civil Procedure Code, Cap 33 R.E. 2019, seeking this Court to issue an order of stay of execution of a decree in Land Case No. 13 of 2016 being executed vide Execution No. 191 of 2024, pending an application for extension of time registered as Misc. Land Application No. 16386. In the affidavit in support, the Applicant pleaded illegalities at paragraph twelve: One, the administrator of the estate of the late Setebe was not joined when composing a judgment; the counter claim was vague; the decision was not clear, for the explanation that the Applicant pleaded 127 acres while the court in its judgment based on 200 and 300 acres, arguing making the judgment i . ambiguous; assessors were not involved; the Applicant was not involved in the process of correcting judgment and decree; the Court ruled in favour of the Respondent while her witnesses were contradictory; the judgment was pronounced by Honorable S.M. Rumanyika, J but was corrected before Hon. S.M. Maghimbi successor judge arguing is repugnant and hence there is great chances of being overturned in appeal. The Applicant also pleaded that his intended appeal subject for extension in Misc. Land Application No. 16386 of 2024 has overwhelming chances of success. He stated that if the stay is refused he stand to suffer due to the reasons that: being a family man and bread winner, his family would be adversely affected both financially and psychologically if his salary is attached; there are exhausted improvements, including five acres maize farm in the suit land which his family depend for economical purpose. In the counter affidavit, the Respondent stated that the judgment was delivered in the presence of the Applicant and his advocate and the right of appeal was duly explained. That the court had never made an undertaking to dispatch the copy of judgment and decree to the Applicant, arguing the Applicant had a duty to make follow up. That the Applicant has never taken any action to obtain copies of judgment and decree to date. That the corrected judgment are court records which did not prevent the Applicant from lodging his appeal in time to the Court of Appeal. That it is the Respondent who is suffering from the 2 . Applicant's deeds while has no plan to appeal save for wasting time. That this application has been preferred with ill motive of the Applicant to deprive the Respondent of her entitlements and rights accruing from the decree of this Court in land Case No. 13 of 2016 which was fraudulently preferred by the Applicant without any justifiable cause. In reply to the counter affidavit, the Applicant stated that the illegalities are evident upon examination on that, neither the Applicant or his attorney were involved in the process of procuring corrected judgment and decree and were not aware, thereby infringed his rights and obstructed the appeal process due to the unavailability of crucial documentations including corrected decree and judgment. Mr. Faraja Mangula and Mr. Mussa S. Muhoja learned Counsel for the Applicant submitted that it is well established that a stay of execution will only be granted upon satisfaction of certain legal precedents enumerated under the enabling provision to this application, being: the application has to be made without undue delay arguing that chronological of events outlined in paragraph four of affidavit demonstrate that this application has been timely filled; Two, the application must be necessary to prevent substantial loss on the part of the Applicant, arguing that the potential for substantial and irreparable loss is evident in this case, citing paragraph seventeen of the affidavit; Three, the 3 Applicant must furnish security in due performance of such decree, arguing he is committed to furnish security as may be determined by this Court: Four, the intended appeal has prima facie likelihood of success, citing the illegalities depicted above. He therefore prayed for the stay of Execution No. 191 of 2024 to be granted pending the determination of Misc. Land Application No. 16386 of 2024 currently before this Court. In reply, Mr. Mohamed Tibanyendera learned Counsel for Respondent submitted that this application stands on the basis of Misc. Land Application No. 16386 of 2024 for extension of time to lodge a notice of appeal which were not granted on a ruling delivered on 24/08/2024. He submitted that the determination of an application for extension of time concludes the gist of this application which is overtaken by events. He submitted that it is worthless now to waste time to determine the application which has no leg to stand upon. He opined that this application deserve to be dismissed. On my part, I go along the argument of the Senior Counsel for Respondent that this application is overtaken by events, regard being it was predicated on Misc. Land Application No. 16386 of 2024, where the Applicant was seeking extension of time to lodge a notice of appeal out of time. The ruling for Misc. Land Application No. 16386 of 2024 was delivered on 24/08/2024, where it was dismissed with costs for want of sufficient cause. 4 , A conditional precedent for grant of stay, is that there must proceedings pending determination by the court. Herein there is none. Meaning that the Court cannot order stay of execution for nothing. The application is dismissed with costs. Ruling delivered in the presence/of Ms. Jersey Martin Kasambala Advocate holding brief for Mr. Faraja Mangula learned Counsel for the Applicant, also holding brief for Mr. Mohamed Mbanyendera learned Counsel for Respondent. 5