jennifer mkapesa chuwa vs farsy adinani msuya 2023 tzca 17863 16 november 2023

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: NDIKA. J.A.. KAIRO. J.A.. And MURUKE. J.A.> CIVIL APPLICATION NO 688/01 OF 2022 JENNIFER MKAPESA CHUW A...... .................................. APPLICANT VERSUS FARSY ADINANI MSUYA (As an administrator of the late ADINANI MANGACHI MSUYA /KATERA MSHANGA MANGACHI)................................... ..................................... RESPONDENT (Application for Stay of Execution of the Judgment and Decree of the High Court of Tanzania, Dar es Salaam District Registry, at Dar es Salaam) (Kakolaki. J.) dated the 26th day of August, 2022 in Land Case No. 11 of 2020 RULING OF THE COURT 08th & 16th November, 2023 MURUKE. 3. A: This is an application for stay of execution made under Rule 11 (3), (4), (4A), (5) (a) and (b), (6) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules) in which the applicant seeks to have the judgment and decree of the High Court (Land Division) in Land Case No. 11 of 2020 (Kakolaki, J.) stayed pending the determination of an intended appeal. The application is supported by an affidavit deponed by Jennifer Mkapesa Chuwa, the applicant, explaining the reasons why the application should be granted. The respondent did not file any i replying affidavit; however, he lodged a reply to the applicant's submission. The brief background leading to this application is as follows; the respondent herein vide Probate Cause No 320 of 2016, was on 26/09/2019 appointed by the Primary Court of Temeke as the administrator of the estate of his deceased father who died intestate on 10th August, 2013. It transpired that, in the course of discharging his legal duties of administering the estate he discovered that, the applicant had wrongly and without any justification trespassed into the suit land on which the applicant had erected a two-storey building and leased it to one Timo Gawroski. The respondent having equipped himself with all necessary documents proving ownership of the suit land, served both the applicant and the tenant with notices to vacate the suit land but the same was refused. Following the refusal by the applicant, the respondent as the administrator of the estate of his late father Adinani Mangachi Msuya sued the applicant herein for encroachment of the suit land in Plot No. 149 situated at Mbezi Beach, Palm Street, Kinondoni Municipality, Dar es Salaam praying for one; a declaration that the suit land in Plot No. 149, Mbezi Beach, Palm Street forms part of the estate of the late Katera Mshanga Mangachi; two; an order of eviction of the applicant from the suit land; three; payment of the specific damages to the tune of 121,500,000/- as mesne profits; and four; general damages and costs of this suit. The trial Court entered the Judgment in favour of the Respondent by declaring him the lawful owner of the disputed land, and according him costs of the suit. At the hearing of the application, Mr. Cleophas Manyangu learned counsel, entered appearance to represent the applicant, whereas the respondent was in person. When invited to amplify the grounds for the application, Mr. Manyangu in the first place sought to adopt the written submission to form part of his submission. Essentially, in the notice of motion, affidavit as well as the written submissions, the applicant has explained the grounds for this application being one, that the respondent has already filed an application for execution vide Execution No. 67 of 2022 in respect of the High Court (Land Division) Land Case No. 11 of 2020 and that this application was lodged on 27 October, 2022 after having been served with the notice of application for execution on 21 October 2022. Two, that unless the order for stay of execution is made, the applicant is likely to suffer undue hardship and substantial loss as the applicant resides in the disputed property and her family. Since the subject of execution involves a residential house, the Court should grant an order for stay of execution to avoid hardship to the applicant and her family. Three, that the applicant is willing to furnish such security as may be ordered by the Court for the due performance of the decree. On the part of the respondent, he argued that the applicant has not shown how she will suffer substantial loss. He contended that, the applicant is not residing in the suit premises, but she has rented the property and is receiving rent, while the respondent and other children of the deceased are suffering as they cannot enjoy the fruits of the decree of the trial court for long time. He was of the view that, since the condition of an irreparable loss was required to be fulfilled and the applicant has failed to satisfy it, this application should not be granted, instead be dismissed with costs. In rejoinder, Mr. Manyangu insisted that all the three conditions were satisfied. He stressed that, although the respondent claims that the applicant is not residing in the suit land, the applicant has averred in paragraph 11 of the affidavit that she resides there with her family. He added that, since the suit property is an immovable property the same is sufficient to show that the applicant will suffer loss. In the end, he reiterated his prayer that the Court should find that all conditions were met and grant the application as prayed. We have examined and considered the rival submissions and, we think, the issue for our determination is whether the applicant has satisfied all the conditions for the grant of the application. An application for stay of execution is governed by Rule 11 of the Rules. Sub-rule (4) of the said Rule requires the application of this nature to be filed within fourteen days of service of notice of execution on the applicant or from the date he became aware of the existence of the application for execution. The other conditions for the stay of execution are provided for under Rule 11 (5) of the Rules as follows: "No order for stay of execution shall be made under this rule unless the Court is satisfied that: (a) Substantia/ loss may result to the party applying for stay o f execution unless the order is made; (b) Security has been given by the applicant for the due performance o f such decree". Regarding the first condition, we wish to state at the outset that it is not disputed that this application was lodged on 27th October 2022 after the applicant was served with the notice of application for execution on 21st October 2022. By simple calculation, the application was lodged after the lapse of 7 days since the applicant was served, indeed, was well within time. On the condition relating to security, the applicant has shown her willingness to furnish security for the due performance of the decree as deposed in terms at paragraph 12 of her affidavit in support of the application. In the case of Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010 (unreported), the Court discussed the mode of giving security and stated as follows: "To meet this condition the law does that strictly demand that the said security must be given prior to the grant of stay order. To us, a firm undertaking by the applicant to provide security might prove sufficient to move the Court, a thing being equal to grant the stay order provided the Court sets a reasonable time limit within which the applicant should give the same". According to the above cited authority, a mere firm undertaking to furnish the security suffices. No particular form of the security is required. In our view, the applicant has given a firm undertaking to furnish it in the manner and to the extent as the Court may determine. Therefore, on the basis of the above authority, we are satisfied that the applicant has sufficiently undertaken to furnish the security. Regarding the issue of substantial loss, the applicant asserted that he will suffer undue hardship and irreparable injury because he is residing in the suit premises. It is notable that in item (a) of the notice of motion the applicant has stated that undue hardship and substantial financial and emotional loss are likely to result to her unless the order for stay of execution is made. This is reiterated at paragraph 11 of the affidavit in support of the application with an addition that the decree is against the landed property which she is using with her family for accommodation. This is amplified by Mr. Manyangu in both written and oral submissions in which the learned counsel while relying on the decision of this Court in the case of Dr. Joel Msuya v. Cammila Brian and Maxine Porian suing through their next friend Brudence Brian, Civil Application No. 135/02/2018 (unreported) which stressed that, since the subject of the execution involves a residential house, the Court should be relatively relaxed to grant an order for stay of execution. On the other hand, the respondent refuted that the applicant is not residing in the premises; and that he has not shown how the loss would be occasioned. He was of the view that, no substantial loss would be occasioned to the applicant in the circumstances the decree is executed. To the contrary it is him and other beneficiaries of the estate of their late father who are suffering by not enjoying fruits of the Decree. On the issue whether or not the applicant resides in the dispute premises, we agree with Mr. Manyangu's line of argument that the applicant is residing in the dispute premises as averred at paragraph 11 and 12 of an affidavit in support of application. Therefore, anything leading to the execution of the decree may result into undue hardship. In the case of Geriod Francis Tairo (As Administrator of the Estate of the Late Francis Kamwesa Tairo) v. Jumanne S. Kitila (As Administrator of the Estate the Late Fatuma Puza @ Fatuma Pyuza) Civil Application No. 254 of 2019 [2020] TZCA 1843 (11 November/2020-TANZLII) the Court when faced with almost a similar scenario, cited with approval the case of Clara Kimoka v. Surumbu Axweso [2002] TLR 255 at 257 observed as follows where the Court was granting stay of execution. "The applicant is in possession o f the suit land now and has all along been in possession o f it The interruption o f her long occupation o f the suit land would in my view, be justified only after the case is finally determined in the respondent's favour. Butin the event the appeal is allowed, it would not make much sense to temporarily interrupt the applicants long possession now only to restore it to her after the success of her appeal". Thus, on the basis of the above cited authorities we are prepared to hold that the subject matter, being a residential house used by the applicant and her family, and that being an immovable property, should it be sold, is likely to cause irreparable injury. Having satisfied that the mandatory requirements of rules 11 (3), (4),(5) and (7) of the Rules, have been met, we grant the application as prayed in the notice of motion. Accordingly, we stay the execution of the decree of the High Court of Tanzania Land Division at Dar es Salaam, in Land Case no 11 of 2020 dated 16th August 2022 pending hearing and determination of the intended appeal. In terms of rule 11(5) (b) of the Rules we further order as follows: One, that the applicant shall desist from disposing of or alienating in any manner whatsoever the property in dispute, namely, Plot No. 149, Palm Street, Mbezi Beach, Kinondoni, Dar es Salaam with Certificate of Title No 25212. Two, that the applicant shall deposit with the Registrar of the Court within sixty days of the date hereof, Certificate of Title in respect of the plot No. 134 Block "E" Mbezi Beach, Kinondoni, Dar es Salaam offered as security. Costs shall be in the intended appeal. Each party shall bear its own cost. It is so ordered. DATED at DAR ES SALAAM th is .......... day of November, 2023. G. A. M. NDIKA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 16th day of November, 2023 in the presence of Mr. Cleophas Manyangu, learned counsel for the Applicant and in the presence of the respondent in person, is hereby certified as a true copy of the original.