CIVIL APPLICATION NO 369 16 OF 2024 GAIMO CONSTRUCTION COMPANY LIMITED VS MACLEO ELECTRICAL CONSTRACTORS LIMITED ANOTHER

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CIVIL APPLICATION NO. 369/16 OF 2024 GA1MO CONSTRUCTION COMPANY LIMITED............................. APPLICANT

VERSUS MACLEO ELECTRICAL CONSTRACTORS LIMITED................. 1st RESPONDENT MR. MANJALE FRED LUSENGA T/A SHASHI INVESTMENT LIMITED...... .............................2nd RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Arusha) (Maruma. J.^ dated the 28th day of October, 2022 in Commercial Case No. 2 of 2022

REASONS FOR THE RULING 6th & 11th June, 2024 MASOUD. J.A.: Having heard the parties on 6th June, 2024 in respect of an inter parte application by the applicant for stay of execution of the decree arising from the judgment of the High Court in Commercial Case No. 02 of 2022, I straight away struck out the application with costs and reserved the reasons for that decision which I am now set to give. The application was made under rule 11(3), (4), (5) (6) and (7) (a), (b), (c) and (d) and rule 48(1) and (2) of the Tanzania Court of Appeal Rules, 2009 as amended (the Rules). When the parties for the first time appeared before me on 4th June, 2024, they were all represented by learned advocates. Whereas the applicant was advocated by Mr. Kipimpiti Mgalula, the respondents were represented by Mr. Frank Wilbert Makishe. As both parties appeared before me, I granted leave to the respondents to file affidavit in reply as prayed by Mr. Makishe, which prayer was not objected to by Mr. Mgalula. The said affidavit in reply was eventually duly filed and served on the applicant. Subsequently, the learned advocates appeared before me on 6thJune, 2024 at 2:00 pm for inter parte hearing for stay of execution as afore said. I heard the rival arguments by both learned advocates. Having duly considered them, it was clear to me that the key issue for determination was whether the application was

competent, and more specifically, whether the application was filed within fourteen (14) days of service of the notice of execution on the applicant or from the date she was otherwise made aware of the existence of the application for execution in terms of rule 11(4) of the Rules. Whereas Mr. Mgalula's submission was to the effect that the application was competent as it had fully complied with the requirements of rule 11 of the Rules, the thrust of Mr. Makishe's submission was that the application was incompetent because it was made after the expiry of fourteen (14) days after the notice of execution was issued sometime in 2023. It was Mr. Makishe's further argument that the application did not disclose how the applicant would suffer substantial loss as the execution which was sought to be stayed was already in progress and her properties had already been attached. In support of the arguments, Mr. Makishe referred me to a copy of the ruling in Misc. Commercial Application No. 5796 of 2024 annexed to the applicant's affidavit in support, which ruling is sought to be challenged by the applicant by way of an appeal to the Court of Appeal and not the judgment whose decree is a subject of this application. The ruling referred to by the respondent's advocate was a result of objection proceedings in Misc. Commercial Application No. 5796 of 2024 that were unsuccessfully commenced by

the applicant against attachment of her properties in respect of the execution of the decree in Commercial Case No. 02 of 2022. In that decree, the applicant is a judgment debtor. Indeed, it is clear in such ruling that the execution of the decree had already commenced. It is also evident in that ruling that warrant of attachment and proclamation of sale were issued on 14th August, 2023 and 28th November, 2023 respectively. In addition, I was also referred to a copy of the application for execution of the above mentioned decree which was filed by the respondent 3 in the High Court on 29th May, 2023. The said copy was annexed to the applicant's affidavit in support of the notice of motion. This fact is also admitted by the applicant in her affidavit in support. The applicant did not however disclose in her affidavit in support, when he was exactly served with the notice of execution or when exactly he was made aware of the existence of that application for execution. It is only clear in her affidavit in support that she filed the objection proceedings undoubtedly after becoming aware of the execution. It is therefore not true that he was made aware of the existence of the execution on 28th May, 2024 as alleged in the said affidavit in support. I am, on my part, clear that the record brought to my attention in respect of the instant application supports the arguments by

the respondent's counsel. Since the applicant, who is a judgment debtor in the decree being executed, had filed objection proceedings in respect of the execution proceedings which she is now seeking the same to be stayed and the ruling in that respect was delivered on 3rd May, 2024; it is evident that she was made aware of the existence of the said execution before 28th May, 2024. Since such important fact was not disclosed in the affidavit in support for no apparent reason, I have no option but to agree with the learned counsel for the respondents that the instant application which was lodged on 29th May, 2024 was not filed within time in terms of rule 11(4) of the Rules. In view of the foregoing, I was satisfied that the instant application was filed in contravention of rule 11(4) of the Rules. It was for such reason that I found the application incompetent and I struck it out with costs. Order accordingly. DATED at DAR ES SALAAM this 10th day of June, 2024. B. S. MASOUD

JUSTICE OF APPEAL The Ruling delivered this 11th day of June, 2024 in the presence of Mr. Frank Wilbert Makishe, learned counsel for the Respondents via video facility, and also holding brief of Mr. Kapimpiti Mgalula, learned counsel for the applicant, is hereby certified as a true copy of the original. 5