education books publisher ltd vs hasham kassam sons ltd 3 others 2023 tzhccomd 18 10 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC

OF TANZANIA (COMMERCIAL DIVISION1

AT DAR ES SALAAM (ARISING FROM EXECUTION PROCEEDINGS IN RESPECT OF COMMERCIAL CASE NO 5 OF 2011)

BETWEEN EDUCATION BOOK PUBLISHER LTD...................... DECREE HOLDER

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VERSUS HASHAM KASSAM &SONS LIMITED......... lst JUDGEMENT DEBTOR I ISA LIMITED..... ........................................ 2nd JUDGEMENT DEBTOR UNIONARE LIMITED................................. 3rd JUDGEMENT DEBTOR I BANK M (TANZANIA) LIMITED................. 4th JUDGEMENT DEBTOR Date of last order: 8th February 2023 Date of Ruling: 10th February 2023

RULING MKEHA, J When the judgement debtors were invited to show cause why execution orders should not be granted, the following rkasons were offered: Ms. Upendo Mmbaga learned advocate for the 4th juidgement debtor submitted i that, her client had appealed to the Court of Appeal of Tanzania and that/ there was a pending application for stay of exefcution before the Court of Appeal. On the other hand, Mr Shaban Atpdallah learned Advocate submitted on behalf of the l51 and 2nd judgemdnt debtors that his clients had an intention of filing an application for stgy of execution. The two advocates urged the court to halt execution prjoceedings which in effect would be similar to issuing an order of stay ofI execution in respect of a decree issued more than five years ago, by the trjial court. Mr. Ogunde learned advocate submitted in rejply that, the l51 and 2nd judgement debtors had no valid notice of appjeal hence they could not properly ask for an order of stay of execution.| As for the 4U' judgement debtor, the learned advocate submitted that, thefe was no order for stay of execution from the Court of Appeal. When Ms. Mmbaga learned advocate for the 4th |judgement debtor rose to rejoin, she told the court that the application for| stay of execution was yet to be admitted at the Court of Appeal. She never'theless asked this court to halt execution proceedings. 2 In terms of the

submissions by the learned counsei for the parties the lst and 2nd judgement debtors have no valid notice of appeal. The 4th judgement debtor has a valid notice of appealj though she has no actual pending application for stay of execution. The issue is whether the judgement debtors have succeeded showing cause for not issuing executior orders. It is not disputed that there is no order of stay of execution from the Court of Appeal. Halting execution proceedings as per submissioijis of Ms. Mmbaga learned advocate equals to staying execution. The positi’pn is well settled that once notice of appeal is filed in terms of the Rules the High Court ceases to have jurisdiction of granting an order having effect of staying execution. I therefore hold that the judgement debtors have not succeeded showing cause why execution orders should not be granted. It is so held. Dated at Dar es salaam this 10th day of February!

2023. C. P. MkEHA

JUDGE 10/02/2023 3 Court: Ruling is delivered in the presence of the oarties' advocates. C. P. MKEHA

JUDGE 10/02/2023 4