CIVIL APPLICATION NO 741 08 OF 2023 CORNELIS HENDRICK VAN VIANEN VS GERALD KAMUKALA AND 5 OTHERS

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA CIVIL APPLICATION No. 741/08 OF 2023 CORN ELIS HENDRICK VAN VIANEN........................................APPLICANT

VERSUS GERALD KAMUKALA ............................................ ........1st RESPONDENT GEORGE KAMUKALA ...................................................... 2nd RESPONDENT ESTER KAMUKALA..........................................................3RD RESPONDENT VICTORIA MUJUNI ..... .................................................. 4™ RESPONDENT ANTHONY SIMON........................................................... 5™ RESPONDENT JULIETH MARCUS .......................................................... 6™ RESPONDENT (Application for Stay of Execution from the decision of the High Court of Tanzania at Mwanza) (Morris. J.^ dated the 30th day of August, 2023 in Misc. Civii Application No. 99 of 2022

RULING OF THE COURT 12th & 19thJuly, 2024 MASOUD. J.A.: The applicant has moved the Court by way of notice of motion made under rule 11(3), (4), (4A), (5), (a) & (b) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules), to order stay of execution of the order of the High Court of Tanzania at Mwanza in Misc. Civil Application No. 99 of 2022 (Hon. Morris, J) dated 30th August, 2022. The notice of motion is supported by the applicant's affidavit filed on the 13th September, 2023, and supplementary affidavit filed on the 4th October,2023. The respondents opposed the application through affidavit in reply which they filed on the 9th October, 2023. When the application was called on for hearing, both parties were represented. Whereas Mr. Geofrey Kange, learned counsel, appeared for the applicant, Mr. Remigius Maindi, learned counsel appeared for the respondents. Arguing in support of the application after adopting the affidavits in support, Mr. Kange said that the applicant has managed to fulfil all requirements provided under rule 11 (4), (5) and (7) of the Rules. He outlined them as follows: that the application was lodged within time; all necessary copies accompanied the application, and that the applicant was ready to furnish any form of security as may be directed by the Court. In that respect, he urged me to grant the application as sought in the notice of

motion. Replying, Mr. Maindi briefly argued that the applicant's application is incompetent on the reason that he has failed to adhere to the requirement of rule 11 (5) (a) of the Rules. In his submission, the applicant did not explain and expound on how he would suffer substantial loss by the appointment of the 1st respondent as the administrator of the deceased's estate, considering the fact that he is not related in way to the deceased. When rejoining, Mr. Kange said that the High Court ruling in Probate Cause No.4 of 2013 (Annexure A) at page 13 was evident that the applicant cohabited with the deceased for 11 years and they were partners in business. That was to him a sufficient relationship contrary to what the counsel for the respondents was alleging. It is worthwhile to note from the record before me that this application traces its origin from 1998 when the applicant and one, Jane Kamkala (the deceased) started to cohabit. It was from 1999 that they started living together under one roof as spouses until 11/09/2010 when the said Jane Kamkala passed away. They were however not blessed with any issue, although they seem to have acquired some properties together and owned a business company known as Kamkala Sinnautic (T) Ltd in which the deceased owned 51% shares and the applicant owned 49% shares. Consequently, the applicant through Probate and Administration Cause No. 4

of 2013, was on 1st November, 2016 appointed by the High Court as an administrator of estate of the late Jane Gervas Kamkala. The respondent herein emerged two years after the applicant's appointment and unsuccessfully challenged such appointment through Misc. Civil Application No. 10 of 2018. The said respondent again unsuccessfully filed Misc. Civil Application No.49 of 2021 (Hon. Manyanda, J.) moving the court to revoke the letters of administration granted to the applicant herein. As he was dismissing the application Hon. Mnayanda, J. ordered the applicant herein (who was the respondent in the said application) to finalize the administration of the estate by filing inventory and accounts within six months from the date of the said ruling. Subsequently, the respondents successfully filed Misc. Civil Application No.99 of 2022 which revoked the letters of administration granted to the applicant and appointed the 1st respondent as such. With such appointment, the 1st respondent was ordered to file the inventory and accounts in three (3) and six (6) months respectively. Indeed, that is the very order that the applicant herein is seeking to stay. The issue is whether the applicant has met the requirements of the provisions of rule 11 (4), (5) (a) and (b) and 7 (a),(b) and ( c) of the Rules. While the applicant's application is hinged on the affidavit supporting the notice of

motion lodged on 13th September, 2023, it is also supported by the supplementary affidavit lodged on 4th October, 2023. The applicant's learned counsel adopted both affidavits as forming part of his submission. The supplementary affidavit contained copy of the order that appointed the first respondent as an administrator as afore said. The applicant has shown that the order sought to be stayed was given on 30/8/2023 and the instant application was lodged on 13th September, 2023. In that respect, it was argued without any objection that the application having also been accompanied by the order sought to be stayed was lodged within fourteen (14) days of the delivery of the same. On my part, I am also of that finding that it was indeed lodged within time pursuant to rule 11(4) of the Rules. I have already shown that the application is accompanied by the order sought to be stayed which is as required by rule 11(7) of the Rules. Pursuant to such requirements, it is also accompanied with other relevant documents. These are the copy of the notice of appeal, and the impugned ruling among others' Accordingly, on compliance with those requirements, I would find in favour of the applicant. The foregoing takes me to rule ll(5(a) and (b) of the Rules which relates to a showing of substantial loss likely to be suffered if stay is not granted and undertaking to furnish security for the due

performance of the order as may be ultimately binding upon the applicant. As is the position of the law, these two conditions must be cumulatively complied with. Going by the affidavit supporting the application, it is clear to me that the applicant has met the two conditions. The affidavit in support has demonstrated that the applicant is likely to suffer substantial loss if the sought order of stay is not granted. I am hereby referring to the contents of paragraph 9 of the affidavit in support. I think what has been stated therein is in the circumstances sufficient regard being had to the relevant provision of rule 11, (5) (a) of the Rules. As to the condition regarding security, the applicant is in paragraph 4 of the affidavit in support aloud and clear that he undertakes to comply with any form of security that may be directed by the Court.. As shown, the application has thus met the conditions. See, Pristine Properties Ltd and Others v. Eco bank Tanzania Ltd (Civil Application No. 580/16 of 2021) [2023] 7ZCA 17267 (22 May 2023). . As to what form of security be fits the circumstances of this case, I considered what the applicant has stated that "....he is ready to deposit any security as may be directed...” The averment has not been disputed by the respondents in a manner that could have assisted the Court in determining a form of security befitting the situation

pertaining to the circumstances of the instant application. Nonetheless, I am persuaded that the circumstances of the matter as they are on the record need to be considered. Given the circumstances of the instant application therefore, I am prepared to be guided, as I hereby do so, by the case of SuEeiman Yussuf All v. SultanaliAbdallah Gulamhussein (Civil Application No. 421 of 2018) [2019] TZCA 452 (17 October 2019) in which the application for stay of execution was granted upon the applicant therein executing a bond committing himself to ensuring that the property involved remained in the same condition as was at the time when the decree was passed until the hearing and determination of the intended appeal. On the application of the above principle see also, £fatha Ministry v. S. Khambaita Ltd (Civil Application No. 335/05 of 2022) [2023] TZCA 17618 (12 September 2023), Mohamed Masoud and 16 Others v. Tanzania Road Haulage (1980) Ltd (Civil Application No. 58 of 2019) [2019] TZCA 198 (24 June 2019), and Rose Benedict v. Janet Evarist ,‘■*1 * i ‘ . f * > Njau and Others (Civil Application No. 311/02 of 2024) [2024] TZCA 508 (27 June 2024)..., For the reasons stated above, I order stay of execution of the order of the High Court of Tanzania in Misc. Civil Application No. 99 of 2022 dated the 30th August, 2023 as per Morris J. pending hearing and determination of the intended

appeal on condition that the applicant executes a commitment bond within thirty (30) days of the delivery of this ruling to the effect that all properties falling within the estate of the deceased that are in his custody and/or possession shall remain in the same condition as they were on the date of issuance of this order until the intended appeal is heard and determined. I shall not in the circumstances make any order as to costs. DATED at MWANZA this 19th day of July, 2024. B. S. MASOUD

JUSTICE OF APPEAL The Ruling delivered this 19th day of July, 2024 in the presence of Mr. Linushi Munishi holding brief for Mr. Geofrey Kange, learned counsel the applicant and in the absence of both respondents, is hereby certified as a true copy of the original. D. R. LYIMO

DEPUTY REGISTRAR

COURT OF APPEAL 8