demisiano kachoma vs joseph karaka 2023 tzhc 22375 2 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF SUMBAWANGA

AT SUMBAWANGA LAND APPEAL NO. 21 OF 2023 (From the Decision of the District Land and Housing Tribunal in Miscellaneous Land Application No. 76 of2022, Original Land Application No. 4 of2021) DEMISIANO KACHOMA.... ............................... .............APPELLANT

VERSUS JOSEPH KARAKA ........................... RESPONDENT 26/10/2023, 2/11/2023

RULING MWENEMPAZI/J: The Respondent herein filed a Miscellaneous Application No. 76 of 2022 in DLHT for Rukwa at Sumbawanga seeking to execute an ex parte decree in Land Application No. 4 of 2021 decided in the same tribunal. The respondent submitted at the hearing of this appeal that he bought the dispute land from one JOHN MWANANDENJE but the appellant herein named has denied him access to the land. Page 1 of 4 In the record, in the trial tribunal, the appellant filed a document titled "Reply to the Application for execution" In it he averred that the respondent herein has never been a party to the Application NO. 13 of 2017 filed in Ntendo Ward Tribunal and even in Land Appeal No. 9 of 2017 in the District Land and Housing Tribunal for Rukwa at Sumbawanga. According to the record, it was observed by the District Land and Housing Tribunal that Land Application No. 4 of 2021 was heard ex parte in absence of the appellant. In this appeal, the appellant has knocked the doors of this court appealing against an order for execution issued by the District Land and Housing Tribunal. The decree was issued in the Land Application No. 4 of 2021 which I could not secure the record save for what I have read in the available Petition of Appeal and DLHT decision which is being sought to be challenged in this appeal. What is clear however, is that the impugned decision is an order

for execution of decree in Land Application No. 4 of 2021. I asked parties to address me on whether an order for execution is appealable. They had nothing substantive so far as legal knowledge is concerned as they are not Page 2 of 4 trained in legal in the field. I therefore took time to explain to them and their feedback to me showed they have understood. In my opinion, the issue raised can be addressed by taking recourse to section 74 and Order XL of the Civil Procedure Code, [ Cap. 33 R.E. 2019]. The cited provisions specify appealable orders. Execution orders are not among the listed appealable orders, A party aggrieved by an execution order can find redress by filing an application for revision of the execution proceedings, litigate the questions relating to execution under section 38 of the CPC or filing reference to this court under Order XLI Rule 1 of the CPC. See the case of Chacha Nyikongoro vs. Ndege Kiseke, Miscellaneous Land Appeal No. 145 of 2020, High Court of Tanzania at Musoma. Also, in the case of General Tire (IE. A) LTD vs Amenyisa Macha and Others, Civil Appeal No. 21 of 2003, (HC- Arusha) (Unreported) court held that: "No appeal lies from an execution order. Any person aggrieved by a decision on execution may challenge the same by way of a revision in the court higher in the Judicial Hierarchy." Page 3 of 4 For the reasons explained, this appeal is obviously incompetent before this court. The appeal therefore is struck out with no order as to costs. It is ordered accordingly. Dated and signed at Sumbawanga this 2nd day of November, 2023 T.M. MWENEMPAZI

JUDGE Court: Ruling delivered this 2nd day of November, 2023 in the presence Leonard Kachoma, Appellant's sibling who has reported that the appellant has been believ ed is on safari and also presence of respondent in person. Page 4 of 4