CIVIL APPLICATION NO 65 08 OF 2023 DEOGRATIAS ANTHONY KAPHIPA ANOTHER VS ARDHI PLAN LIMITED ANOTHER

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CIVIL APPLICATION NO. 65/08 OF 2023 DEOGRATIAS ANTHONY KAPHIPA (As Personal Legal Representatives of Charles Ilago Kaphipa) .................... ................... ............. 1st APPLICANT MATILDA KITWANGA KAPHIPA (As Personal Legal Representatives of Charles Ilago Kaphipa) .......................................... ............ 2nd APPLICANT VERSUS ARDHI PLAN LIMITED.................... ............................ 1st RESPONDENT KASSANGA COURT BROKER............................. ......... - 2nd RESPONDENT (Application for stay of execution of the decision of the High Court of Tanzania at Mwanza) (SivanLJ.) dated the 27th March, 2020 in Land Case No. 24 of 2016 RULING 17th & 26th July, 2024 ISSA. J. A.: By way of notice of motion under rule 11(3), (4), (5)(a),(c), (6), (7)(b),(c),(d), 48(1), 49(1), 4(1), (2)(a), (b) and (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules) the applicant had sought to move this Court to order a stay of execution pending hearing and determination of an intended appeal. The application is supported by a joint affidavit sworn by Deogratias Anthony Kaphipa and Matilda Kitwanga Kaphipa, the legal representatives of the late Charles Ilago Kaphipa, who are the 1st and 2nd applicants respectively. In order to appreciate the essence of the present application, it is opportune to narrate a brief background fact on the dispute between the parties. The 1st respondent and late Charles Ilago Kaphipa (Charles) were parties to a land dispute at the High Court of Tanzania at Mwanza (the trial court) vide Civil Case No. 24 of 2016, Charles was the owner of pieces of land located at Kigongo Ferry (71.2. acres) and Usagara (88.1 and 33.1 acres) in Misungwi District in the Region of Mwanza. On 8th November, 2014 Charles entered into contract with the 1st respondent to develop the said pieces of land by preparing town plan drawings, surveying the plots and road grading at the 1st respondent's costs. The parties further agreed that, upon completion of the project the 1st respondent would be paid as a contractual consideration 33% of the total square meters of the plots developed. In pursuance of the agreement, the 1st respondent performed her part and completed the whole agreed work at Usagara area and town planning work was accomplished at Kigongo ferry area. Charles, on the other hand, had a change of heart. He stopped and evicted the 1st respondent from the sites on the ground that there was a need to enter into a new contract. The 1st respondent was not amused, she filed Civil Case No. 24 of 2016 at the trial court for breach of contract. The suit was determined in favour of the 1st respondent and the trial court ordered Charles to pay the 1st respondent 35% of the 100% of the developed plots at Isela and 35% of the 50% of the developed plots at Idetemya. Nothing was ordered for the plots at Kigongoferi. Charles was also ordered to pay the 1st respondent general damages of TZS. 50,000,000. The judgment was delivered on 27th March, 2020. Aggrieved with the decision, Charles lodged a notice of appeal to the Court on 20th April, 2020. Unfortunately, he did not live to see the outcome of the appeal, he passed away on 2nd July, 2021. On the other hand, the 1st respondent initiated execution proceedings vide Misc. Civil Application No. 18 of 2021. Deogratias Anthony Kaphipa (the 1st applicant) was served with a notice to show cause on 20th September, 2021. The application for execution was amended on 23rd September, 2021 and served on the 1st applicant on 2nd October, 2021. It seems the execution could not proceed as the judgement debtor (Charles) was no more and his son had no locus as he was yet to be appointed as the legal representative of the deceased. The 1st respondent initiated another execution proceeding vide Execution No. 28 of 2023 (Tengwa, DR) and the applicants were served with the notice of hearing on 14th August, 2023. The execution proceedings ended on 20th November, 2023 and the executing court gave the following orders: '7 grant the application by appointing Kassanga Court Broker to evict the judgment debtor on 35% out 50% o f the surveyed piots at Iseia and Idetemenya and 35% out o f 100% o f piots surveyed at Iseia Usagara Misungwi District and hand them to the decree holder. Equally; it further orders the court broker to attach and sell the remaining plots o f land with a view o f realizing a sum o f Tsh. 50,000,000." The applicants were not happy, they filed the instant application on 11th December, 2023 beseeching the Court to grant a stay of execution. The application was resisted by the 1st respondent who filed an affidavit in reply sworn by Mr. Edwin Aron, the learned advocate for the respondents. In his submission, Mr. Aron raised an objection that the application was time-barred. I am obliged to address this objection first. Mr. Aron submitted that the application for stay of execution was time-barred as rule 11(4) of the Rules requires application to be filed within 14 days. He added that, the notice of execution in the case at hand was served on the applicants on the 14th August, 2023 and the applicants did appear in court. Since they knew about the execution, he added, they were required to file an application for stay of execution by 28th August, 2023. Instead, they filed the application for stay of execution on 11th December, 2023 after four months. In response, Mr. Alex Balomi assisted by Mr. Erick Katemi, the learned advocates for the applicants were adamant that the applicants have complied with rule 11 of the Rules. He submitted that, the application was filed within 14 days after becoming aware of the threat posed when the order of the Deputy Registrar was delivered on 20th November, 2023. hence, the instant application was filed on 11th December, 2023, which is within time. Mr. Balomi insisted that there was no proof of service of the notice of execution to the duly appointed legal representative of the deceased. He concluded that, there was no notice of execution due to the failure of the executing officer to do what he was required by law. In the rejoinder, Mr. Aron submitted that even if what was argued by Mr. Balomi was true, still the application is time-barred. He explained that the applicants alleged that, they got the information on 20th November, 2023 when the Registrar of the High Court delivered the order in the execution proceedings, but the instant application was filed on 11th December, 2023 which is after 21 days. He prayed for the application to be struck out. The issue for determination at this juncture is whether the application for stay of execution was filed within time prescribed by the law. The governing provision on this issue is rule 11(4) of the Rules which states: "11. (4) An application for stay o f execution shall be made within fourteen days o f service o f the notice o f execution on the applicant by the executing officer or from the date he is otherwise made aware o f the existence o f an application for execution." (emphasis supplied) The provision is very clear that the application should be filed within 14 days of the service of the notice of execution on the applicant or when is otherwise made aware of the existence of the application for execution. In the instant application, the applicants were served with the notice of hearing of the Execution No. 28 of 2023 on 14th August, 2023 and they participated in the execution proceedings. Therefore, they were aware of the application for execution and the time started to run from the time they became aware of the application for execution. Consequently, if the applicants had the intention to stay the execution, they were required to comply with rule 11(4) of the Rules by filing the application for stay of execution within 14 days from the date they became aware of the intended execution. In that regard, they were required to file the application for stay of execution by 18th August, 2023. The instant application was filed on 11th December, 2023 which is out of time prescribed by rule 11(4) of the Rules. The argument advanced by Mr. Balomi that the applicants became aware when the orders were delivered by the Registrar on 20th November, 2023 is just an afterthought and it does not assist the applicants in any way. The reason is that, rule 14 of the Rules clearly stipulates that the application for stay of execution should be filed within 14 days and the counting starts from the time the applicant was served with notice of execution or becomes aware of the existence of the application for execution. Therefore, the Court is of the view that the application for stay of the execution was filed out of time prescribed by rule 11(4) of the Rules and this issue is sufficient to dispose the application. In the result, I strike out the application with costs. It is so ordered. DATED at DAR ES SALAAM this 25th day of July, 2024. A. A. ISSA JUSTICE OF APPEAL The ruling delivered this 26th day of July, 2024 in the presence of Mr. Alex Balomi, learned counsel for the applicants and Mr. Edwin Aron, learned counsel for the respondents, is hereby certified as a true copy of the original.