CIVIL APPLICATION NO 306 16 OF 2024 HAMIMU KARASHANI VS MESHACK JACKSON KABOTE

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CIVIL APPLICATION NO. 306/16 OF 2024 HAMIMU KARASHANI................. ......... .................... .................. APPLICANT

VERSUS MESHACK JACKSON KABOTE........................................ ........... RESPONDENT (Application for stay of execution from the Judgment and Decree of the High Court of Tanzania (Commercial Division) at Dar es Salaam) (Mbaqwa, J.) dated the 5th day of May, 2023 in Commercial Case No. 147 of 2021

RULING 8th May, 2024 MWAMPASHI, J.A.: When the hearing of the application was called on before me for ex- parte hearing, the applicant who was present in person was represented by Mr. Ambrose Malamsha, learned advocate. At the outset, before the hearing could commence, I invited Mr. Malamsha to address me on whether the application was filed within the prescribed period of time. I particularly referred the learned advocate to rule 11 (4) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and also to paragraph 5 of the supporting affidavit where it is deponed that the applicant was served with the notice to show cause why the execution of the decree should not be carried out on 27/11/2023 while the instant application was lodged on 02/05/2024. Mr. Malamsha responded by arguing that the application is not time barred. He contended that, what was served on the applicant on 27/11/2023 was just the notice to show cause without more. It was further submitted by Mr. Malamsha that the actual date the applicant came to know that there was an attempt by the respondent to execute the decree was on 19/04/2024 when the application for execution of the decree was served on the applicant's advocate. To substantiate this, I was referred to annexure HK-3 to the supporting affidavit. It was thus, argued by Mr. Malamsha that, since the application for execution of the decree was served on

the applicant on 19/04/2024 and as the application was filed on 02/05/2024, then it was duly filed within 14 days, and it is not time barred. The simple issue for my determination is whether this application which was lodged on 22/05/2024 was so lodged within the prescribed period of time. Rule 11 (4) of the Rules provides thus:- "An application for stay o f execution shai! 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 2 o f the existence o f an application for execution" (Emphasis added) In paragraph 5 of the supporting affidavit affirmed by the applicant, it is deposed that:- "5. That sometimes on 27th November, 2023, the Judgment Debtor was served with only the notice to show cause as to why execution should not be carried out in Commercial Case No. 147 o f2021. The Judgment Debtor requested from the Decree Holder during the court session to be served with the application for the execution o f decree and the Decree Holder refused to avail him such copies." According to rule 11 (4) of the Rules, an application for stay of execution shall be made within 14 days, of service of the notice of execution on the applicant or from the date the applicant is otherwise made aware of the existence of an application for execution. In the instant application, the applicant clearly

states in paragraph 5 of the supporting affidavit that he was served with the notice to show cause as to why the execution of the decree in Commercial Case No. 147/2021 should not be carried out on 27/11/2023. It is thus, clear that the applicant was made aware of the existence of an application for execution on 27/11/2023. The fact that the application for execution of the decree was served on the applicant on 3 19/04/2024, does not in any way belittle the fact that the applicant was made aware of the existence of the application for execution on 27/11/2023 and therefore that he ought to have filed the instant application within 14 days from 27/11/2023. The instant application which was lodged on 02/05/2024 was thus, lodged not within the prescribed 14 days as required by rule 11 (4) of the Rules and it is outrightly out of time. For the above given reasons, I find that the application is time barred and it is thus, accordingly, hereby struck out. It is so ordered. DATED at DAR ES SALAAM this 8th day of May, 2024. A. M. MWAMPASHI

JUSTICE OF APPEAL The Ruling delivered on this 8th day of May, 2024 in the presence of Mr. Ambrose Malamsha, learned advocate for the applicant and applicant who is also present, is hereby certified as a true copy of the original. to * J. J. KAMALA

DEPUTY REGISTRAR

COURT OF APPEAL