aboya pastory henry administrator of estate of the late hadija kondo vs thercis alois sambua 2021 tzhclandd 647 12 october 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 734 OF 2020 KABOYA PASTORY HENRY (as Administrator of Estate of the Late HADDA KONDO) ............................. APPLICANT VERSUS THARCIS ALOIS SAMBUA ................................ RESPONDENT (Originated from the Decision in Land Application No. 139 of 2013 of the District Land and Housing Tribunal at Ilala.) RULING Date of Last Order: 20/09/2021 & Date of Ruling: 12/10/2021 A MSAFIRI, J: The Application is Drought under a certificate of urgency, chambers summons supported by the affidavit of the applicant in person. The applicant seeks under Section 51(1) of the Land Disputes Courts Acts Cap 216, Order XXXVII Rule (1) (a), (b), 2 (1), Order XXXIX Rule 5(1) and Section 58 (e) of the Civil Procedure Code Cap. 33 R.E 2019 for the ex- parte and inter-parte orders that; 1. That this Court be pleased to grant the applicant with an order of stay of execution of the judgment and decree of the Chairman of the District Land and Housing Tribunal for Ilala 1 | Page in Land application No. 139 of 2013 delivered on 2nd November, 2020 by Hon. Kirumbi Chairman pending the hearing and determination of the appeal pending before this Honourable Court. 2. The Court may be pleased to issue an exparte interim order for maintaining tne status quo restraining the Respondent from disposing, selling and transferring the suit property situated at Mchikichini Ward House No. 25/15 now is No. ILA/ICK/23/15 in Ilala District pending hearing and determination of the application inter-parties m Land Appeal No. 262 of2020. Facts giving rise tc this Application can be stated as follows; the applicant herein sued the respondent through Application No. 139 of 2013 before the District Land ano Housing Tribunal for Ilala for vacant possession. The suit was dismissed for want of merits. Being aggrieved by the said decision he filed two matters to this Court, one being Land Appeal No. 262 of 2020 for the purpose of challenging the trial Tribunal decision and the second is this Application which intend to stay the execution proceedings before tne District Tribunal. The hearing of this Application was scheduled to be by way of written submission. On the date of filing submission, the applicant represented himself while the respondent was represented by Sisty Massawe, advocate. According to the submission m support of this Application, the applicant argued that Order XXXIX Rule 5 (1) of Cap. 33 R.E 2019 empowers this Court to grant stay of execution while Section 63 (e) of the 2 | Page same act empowers the Court to make interim orders for maintaining status quo. The reason for this Application is that tne respondent has ignored the temporary injunction order dated 19th August 2016 by trial Tribunal and even after the decision, the respondent started taking steps to disposing and transferring the suit property as well as taking action to execute the decree by the District Land and Housing Tribunal which jeopardize the pending Appeal before this Court. In his opinion if the decree is executed the Appeal will be rendered nugatory and of no legal effects and further that the applicant will suffer irreparable loss that cannot be attorned by way of damages or monetary compensation. On reply the learned advocate for respondent Mr. Massawe conceded the Application and submitted that the prayer for stay of execution be granted without costs. Having read the submissions for both parties and the court records, I have noted that truly there is a pending appeaf before this Court which is already matured, the Land Appeal No. 262 of 2020 was ordered to be argued by written submjssion and the same has already been complied with. Tne appeal is coming for mention on 12/10/2021. The remaining duty for this Court is to pronounce the judgment as the hearing by way of written submission has been finalized. I understand that this Application was for restraining the respondent from disposing of the suit properties and on the other hand, is for maintenance of the status quo, meaning that it seeks to let matters stand as they now are, at whatever stage they might have reached as of now, pending determination of the Appeal. 3 11’ a g e Since the respondent through his advocate has conceded the Application and the prayer therein for temporary injunction and maintenance of status quo as requested by the applicant, this Application is granted as prayed for. The status quo be maintained pending determination of Land Appeal No. 262 of 2020. Each party to bear its own costs. It is so ordered. Dated at Dar es Saiaam this 12rh Day of October 2021. A. MSAFlRI JUDGE 4|Page