CIV

IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA CIVIL APPLICATION NO. 1406 OF 2024 JONATHAN N K Y A ..................................................................... -.......APPLICANT

VERSUS

IBRAHIM WILLY MNZAVA (the administrator of the estate of the Late Willy Jonakijwa Mzavas)....................................... RESPONDENT (Application for stay of execution of the Judgement and Decree of the High Court of Tanzania, (Land Division) at Dar es Salaam) (Hon. Mteaa, PRM, Extended Jurisdiction) dated the 28th day of March 2024 in Extended Land Appeal No. 161 of 2023

RULING 26th February & 7th March, 2025 MANSOOR. J.A.: The applicant herein brought a Notice of Motion premised under Rule 11 (3), (4), (4A), (5) (a) and (b) and (7) of the Court of Appeal Rules, 2019, herein referred to as "Rules", seeking for stay of execution of a decree issued by Hon. J. H. Mtega - PRM (Ext. Jurisdiction) in Land Appeal No. 161 of 2023 pending an appeal to this Court. The grounds upon which the Notice of Motion is based can be summarized as follow: 1. That the intended appeal has serious legal issues for determination.

2. That if the said decree is executed, the applicant will suffer substantial irreparable loss and the said loss will not be atoned by damages.

3. That if the application not granted, the pending appeal with prospects of success will be rendered nugatory. The Notice of Motion is supported by an affidavit deposed by the applicant, Jonathan Nkya who also swore a supplementary affidavit which was lodged in this Court on 28th February, 2025. During the hearing of the application, the applicant was represented by Mr. Kung'e Nyamhanga Wabeya, the learned Advocate. On the other hand, the respondent was represented by Mr. Hassan Athuman Fatiu, the learned Advocate who also swore the affidavits in reply. As the facts in affidavits shows, the dispute revolves around a land in Tegeta, Kinondoni Municipality, Dar es Salaam, known as Plot no. 77 Block G, involving Willy J. Mnzava, now the deceased, and Jonathan Nkya, the applicant herein. Following the demised of Willy J Mzavas, Ibrahim Willy Mnzava was appointed the administrator of Willy J Mzava's estate. In 2019, the respondent herein who shall be referred to as "Mzava" instituted a case at the District Land and Housing Tribunal for Kinondoni, "the District Tribunal" against, Jonathan Nkya, the applicant herein. Mzava accused the applicant of trespassing on his land, leading to a legal battle that spanned for several years at different court levels. The dispute was initiated at the District Land & Housing Tribunal for Kinondoni at Mwananyamala, registered as Land Application No.

151 of 2019. In 2021, the District Land and Housing Tribunal ruled in favour of the applicant. Mzava was aggrieved, he appealed to the High Court of Tanzania, Land Division, and the appeal was registered as Land Appeal No.286 of 2021. The High Court, in 2022, remitted the case to the tribunal for reconsideration. In 2023, the District Tribunal, under a new chairman, again ruled for the applicant. Dissatisfied with the decision of the District Tribunal, Mzava appealed again to the High Court, and this second appeal was registered as Land Appeal No. 172 of 2023 and after it was assigned to the Magistrate with extended jurisdiction, it was registered as Extended Land Appeal No. 161 of 2023. The appeal was determined by the Resident Magistrate's Court with extended jurisdiction. On 28th March 2024, the RM's Court, exercising extended jurisdiction of the High Court allowed the appeal in favour of Mzava, thereby quashing and setting aside the judgement and decree issued by the District Tribunal, and declared Mnzava the lawful owner of the disputed land, he was also awarded costs of the appeal. Soon after the judgement was delivered, the applicant herein filed a notice of appeal, the notice was filed on 21st April 2024, and served to the respondent's counsel on 22 April 2024. In a bid to prevent the execution of the decree until the intended appeal is finalised, the applicant filed

the present application for stay of execution No. 1406 of 2024 on 6th December 2024. In arguing for the application, the applicant counsel submitted that the applicant successful met the two key conditions for stay of execution that is provided under rule 11 (5) of the Court of Appeal Rules. He stated that applicant has demonstrated that he will suffer substantial loss in paragraph 8(i) of the affidavit. The applicant also avers in paragraphs 3 and 5 of the supplementary affidavit that he is willing and ready to offer security for the due performance of the decree, in case the appeal will fail. The counsel for the applicant asserts that the application was filed within the prescribed 14 days from the service of the notice of execution, and so in compliance to rule 11 (4) of the Rules. The counsel elaborated that, the applicant received a notice of execution on November 27, 2024 and had filed the application for execution electronically on 3rd December 2024. That, he was provided with a control number on 5th December, 2024, and paid the filing fees on the same day. He supported his argument by making reference to rule 21(1) of the Judicature and Application of Laws (Electronic Filing) Rules, GN No. 148/2018, to validate the electronic filing. The respondent's counsel opposed the application and challenged the applicant's claim specifically on substantial loss. He stated that, it

is not true that the applicant has built permanent structures on the land, but has constructed only a dog's hut, as detailed in paragraphs 6 and 8 of the affidavit in reply filed on February 25, 2025, and paragraph 3 of the affidavit in reply to the supplementary affidavit. The counsel for the respondent argues further that the applicant has not furnished security for the due performance of the decree, as required under rule 11(5). He said, the security mentioned in the applicant's supplementary affidavit should be regarded as an afterthought as there are no specific details of security provided. The counsel does not dispute that the application was filed within the required time. However, he maintains that the applicant has not fulfilled the conditions set out under rule 11(4) and (5)(a) and (b) of the Rules. The applicant’s counsel's rejoinder submission is concise and focused, effectively countering the respondent's objection on security by affirming compliance with rule ll(5 )(b ) through the undertaking in paragraph 5 of the supplementary affidavit. I have considered the arguments fronted for and against the application, and the affidavits in support and opposing the application, and that the issue to decide is whether the applicant has met all the necessary conditions for the court to grant a stay of execution. An application for stay of execution is governed by Rule 11 of the Rules. Under Rule 11(4), such an application must be filed within 14 days upon the applicant receiving notice of execution or becoming aware of the execution proceedings. Additionally, Rule 11(5) sets out two conditions that must be met for a stay of execution to be granted: 1. The court must be satisfied that the applicant would suffer substantial loss if the stay is not granted.

2. The applicant must provide security to ensure the decree will be complied with. The applicant filed this application on December 6, 2024, after being served with the notice of execution on November 27, 2024. This means the application was filed within 9 days, well within the 14-days requirement. The respondent's counsel does not dispute this, therefore, it is vividly clear that this condition has been met. The applicant's counsel has stated that the applicant is willing to provide security for the due performance of the decree. The respondent's counsel, however, argues that the security mentioned in the applicant's affidavit is vague and insufficient. On the issue of security for the due performance of the decree, the Justices in the case of Mantrac Tanzania Limited vs Raymond Costa, Civil Application No. 11 of 2010 (unreported), clarified that the law does not require security to be provided before the stay is granted. Instead, a firm undertaking by the applicant to provide security is sufficient, as long as the court sets a reasonable time frame for the security to be furnished. Here, the applicant has clearly stated in his affidavit that he is willing and ready to provide security as the court may direct. Based on the above authority, I am satisfied that the applicant has sufficiently committed to provide the required security, hence in compliance to rule 11 (5) (b)

of the Rules. The issue of substantial loss is more contentious. The applicant's counsel argues that the applicant would suffer irreparable injury if the stay order is not granted, as there is a building on the disputed land and is about to be demolished by the decree holder. The respondent, however, claims that there is no permanent building on the land, only a dog's hut, and therefore no substantial loss would occur if the stay order will not be issued. In tackling this issue, I read paragraph 8 of the affidavit of the applicant where the applicant has given the particulars of loss that he will suffer if the stay order would be refused. That the decree holder, the respondent herein threatens to evict the applicant from the building situate in the disputed land, and he intends to demolish the buifdling erected therein. I also read the application for execution filed by the respondent's counsel at the District Land and Housing Tribunal for Kinondoni, Application No. 425 of 2024, attached to the affidavit of the applicant as an annexure, meaning that the applicant is in occupation of the disputed land and has developed it, and this is why the decree holder asks for the help of the court to appoint the court broker in order to forceful evict the applicant from the disputed land. Here, at this stage and on this scenario, the court is not concerned on what kind of structures have

been erected on the disputed land by the applicant, but the court needs to be satisfied that the applicant is in occupation of the land, and if he is evicted now while the appeal is going on in court, the subject of the appeal will be rendered a nugatory, and a stay order is necessary to prevent either the destruction or disposal of the subject matter of the appeal until the appeal is finalised. The mode of execution asked in the application is appointment of the court broker to evict the applicant herein from the disputed plot, thus, I agree with the applicant's counsel that there is a permanent building on the disputed premises, be it a house or .a hut, and that if the decree is executed, the applicant is likely to suffer undue hardship. In the case of Geriod Francis Tairo vs Jumanne S. Kitila, Civil Application No. 254 of 2019, the Court emphasized that interrupting the applicant's long-term possession of the land would only be justified if the case is ultimately decided in the respondent's favor. Similarly, in Dr. William Shija vs Fortunatus Masha, Civil Application No. 1 of 2002, the court held that the attachment or sale of immovable property, such as a building, would cause irreparable injury. Even if compensation is awarded later, it cannot fully replace the physical property. Based on these precedents, I find that the demolition of the building on the disputed land would likely cause irreparable injury to the applicant. Therefore, the condition of substantial loss has also been met. For a stay of execution to be granted, all three conditions under Rule 11(5) must cumulatively be fulfilled. In this case, I am satisfied that: 1. The application was filed within the required time.

2. The applicant has provided a firm undertaking to furnish security.

3. The applicant would suffer substantial loss if the stay is not granted. Accordingly, I grant the application for stay of execution. The .execution of the judgment and decree in Land Appeal No. 161 of 2023 issued by the Resident Magistrate's Court of Dar es Salaam, (Extended Jurisdiction) is hereby stayed pending the hearing and determination of the intended appeal to this Court. The applicant is ordered to commit himself not to do anything on the disputed land in the form of a Comimitmeint Bond to be furnished before the Court within 30 days from the date of this Ruling. It is so ordered. DATED at DAR ES SALAAM this 7th day of March, 2025. L. A. MANSOOR

JUSTICE OF APPEAL The Ruling delivered this 7th day of March, 2025 in the presence of Mr. Kung'e Nyamhanga Wabeya, learned counsel for Applicant and1Mr. Hassan Athuman Fatiu learned counsel for the Respondent, is hereby certified as a true copy of the original.