CIVIL APPLICATION NO 951 OF 2024 CHARLES MOKIWA VS FR

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CIVIL APPLICATION NO. 951 OF 2024 CHARLES MOKIWA............................................................... APPLICANT

VERSUS FR. JAMES MWEYUNGE.................................... ......................RESPONDENT (Application for Stay of Execution of the Order of the High Court of Tanzania at Dar es Salaam,) (MbagwaJ) dated 27th day of September, 2024 in Misc. Civil Application No. 11764 of 2024

RULING 21st February & 14th March, 2025 MGEYEKWA. 3.A.: In this application, the applicant has by a notice of motion lodged on 9th October, 2024, moved the Court seeking an order for stay of execution of the High Court of Tanzania, Sub - Registry at Dar es Salaam in Misc. Civil Application No. 11764 of 2024 pending the determination of an intended appeal. The application was brought under rule 11 (3), (4), (5), (6), (7), 4 (1) (2) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) is supported by an affidavit sworn by Mr. Hardson B. Mchau, learned l advocate for the applicant, explaining the reasons why the application should be granted. The grounds upon which the application is based are as follows: (i) Substantial loss may result to the applicant If execution is not stayed' and the order will be executed as the applicant will be arrested and detained as civil prisoner. (ii) The application has been made without undue delay because the High Court delivered the order for the arrest and detention o f the applicant as civil prisoner on 27th September, 2024. (iii) The applicant is willing and ready to execute a bond as a security for the due performance o f the order o f the High Court whith ultimately be binding on the applicant. (iv) There is good cause to grant the order for stay. The application was resisted by the respondent who filed his affidavit in reply on

18th October, 2024. At the hearing of the application, the applicant was represented by Mr. Hardson B. Mchau, learned counsel while the respondent had the services of Ms. Jeddues Jasson, learned advocate. Submitting in support of the application Mr. Mchau adopted the notice of motion and the contents of the supporting affidavit, along with all the documents annexed thereto. He submitted that the applicant has fully complied with all the requisite conditions necessary for the granting of stay of execution pursuant to rule 11 of the Rules. He informed the Court that on 27th August, 2024, the High Court issued a decree whereas the High Court issued an order for arrest and detain the applicant. In that regard, Mr. Mchau argued that, in the event the execution proceeds, the applicant and his family will suffer hardship and substantial loss. To support his submission, he referred me to paragraph 8 of the applicant's affidavit. On the requirement of furnishing security for the due performance of the decree, a condition set out in rule 11 (5) (b) of the Rules, the learned counsel argued that, the applicant in paragraph 10 of the supporting affidavit, stated that he undertakes to provide security for the due performance of the decree as to be determined by the Court. To reinforce his proposition, he cited the case of Tulip Tanzania Limited v. Alab Contractors Company, Civil Application

No. 317/01 of 2022. On the strength of the above submission, Mr. Mchau prayed for the stay of execution to be issued as prayed in the notice of motion. The respondent's counsel strongly opposed the application, arguing that the applicant failed to comply with the requirements outlined in rule 11 of the Rules. Elaborating, she contended that the applicant's counsel did not state in his affidavit that the applicant will suffer loss, nor did he indicate readiness to provide security as stipulated in rule 11 (5) (a) and (b). Reliance was placed in the cases of Anthony Ngoo and Another v. Kitinda Kimaro, Civil Application No. 12 of 2012 and Alex Siriamara Machare & Others v. Bryson Nalogwa Kituly, Civil Application No. 3 of 2016, to support the proposition that, in the absence of the applicant demonstrating potential substantial loss and failing to provide security, the Court cannot grant the application. She stressed that the application before the Court is frivolous with the purpose of delaying the respondent from enjoying the fruits of the decree. In conclusion, Ms. Jason urged the Court to strike out the application with costs. Having considered the applicant's notice of motion, parties' affidavit, their respective submissions before the Court and the accompanying documents. A cursory glance of the application, it is evident that the applicant has filed the notice of motion

within the fourteen (14) days as provided for under rule 11 (4) of the Rules. In adherence of rule 11 (5) (a) of the Rules, on substantial loss to be suffered by the applicant if the High Court order is not stayed, the applicant deponed in paragraph 8 of the supporting affidavit that, he will loss his liberty after being arrested and detained as a civil prisoner. He also asserted that, he is the sole breadwinner of his family, whose family depend on him. Furthermore, in paragraph 10 of the affidavit, the applicant is ready and willing for the amount being held in the judiciary account to remain so held as security for the due performance of the decree. For the aforesaid reasons, the applicant has prima facie met the requirements under rule 11 (4), (5), and (7) of the Rules. Therefore, I disagree with Ms. Jason's assertion that the applicant has failed to meet the requirements for a stay of execution under Rule 11 (5) and (7) of the Rules. All factors considered and as I have alluded to above, I am satisfied that the applicant has met all the conditions for the grant of the stay of execution of the decree. The application is thus granted. Accordingly, I hereby stay the execution of the decree of the High Court of Tanzania, Dar es Salaam Sub - Registry dated 27th September, 2024 in Misc. Civil Application No. 11764 of 2024 subject to the applicant depositing in the Court a bank guarantee in the sum of TZS. 54,000,000.00 within thirty (30) days of the date hereof. Costs shall be in the cause. It is so ordered. DATED at DAR ES SALAAM this date 3rd day of March, 2025. A. Z. MGEYEKWA

JUSTICE OF APPEAL The Ruling delivered this 14th day of March, 2025 in the presence of Mr. Hardson B. Mchau, learned counsel for Applicant and Mr. Philemon Mutakyamirwa, learned counsel for the Respondent, is hereby certified as a true copy of the original. A. L. KALEGEYA

DEPUTY REGISTRAR

COURT OF APPEAL