CIIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 331 OF 2025 JUMA RAJ ABU HASSAN (Administrator of the estate of the late HASSAN RAJAB HASSAN...............................................APPLICANT VERSUS ABDALLAH SAIDI HASSAN (Administrator of the estate of the late SHAMBUO RAJAB HASSAN....................................... RESPONDENT (Application for stay of execution of the Decree of the Resident Magistrate Court of Dar-es-Salaam at Kinondoni) (Lvamuva, PRM, Ext. Jur.^ date 19th of March 2024 in Ext. Land Appeal No. 186 of 2022 RULING 25th & 27th February 2025 NANGELA. 3.A.: Juma Rajabu Hassan, the applicant, filed this application by way of a notice of motion under rules 4 (2), 11 (3), 11 (4A), 11 (5) (a) and (b), 11 (6) and 11 (7) (a), (b), (c) and (d) of the Tanzania Court of Appeal Rules, 2009 (the Rules). He is moving this Court to stay execution of the decree of Kisutu Magistrates Court in Ext. Land Appeal No. 186 of 2022, pending determination of the applicant's intended appeal to this Court. His notice of motion is supported by his affidavit. The main grounds for the stay order, as indicated in the notice of motion, are essentially two and may be paraphrased as follows: 1. The applicant has already lodged a notice of appeal intending to appeal and challenge, before this Court, the decision of the Kisutu Magistrates Court in Ext Land Appeal No. 186 o f2022. 2. The respondent has preferred an application (Misc. Land Application No. 166 o f 2024) before the District Land and Housing Tribunal for Temeke, seeking to execute the decree. Briefly stated, the facts giving rise to this application are as follows: in the year 2020, the respondent filed, against the applicant, Land Application No. 187 of 2020 before the District Land and Housing Tribunal (DLHT) for Temeke. After hearing the parties, the Tribunal dismissed the application. Unsatisfied, he appealed to the High Court and his appeal, registered as Extended Land Appeal No. 186 of 2022, was allowed. Subsequently, the applicant filed a notice of intention to appeal to the Court of Appeal of Tanzania. While his appeal remains pending, the respondent filed Misc. Land Application No. 166 of 2024 seeking to execute the decree in respect of the Ext. Land Appeal No. 186 of 2022; hence, this application for stay orders. At the hearing of this application on the 25th of February, 2025, Mr. Cleophas James, a learned counsel, appeared for the applicant, while Mr. Said Ali Said, also a learned counsel, appeared for the respondent. Submitting in support of the application, Mr. Cleophas adopted the notice of motion and its supporting affidavit. He urged this Court to grant the application because the applicant has complied with all legal requirements for the grant of a stay order. Relying on the affidavit of the applicant, he contended that the applicant stands to suffer substantial loss if no stay order is issued. Besides, he submitted that, if the application is granted, the applicant is committed, as stated in paragraph 12 of the applicant's affidavit, to furnish security for the due performance of the decree. For his part, however, Mr. Said opposed the application. He contended that the applicant has not been able to demonstrate the kind of loss he stands to suffer if this application is denied. He also contended that the applicant has not complied with rule 11 (4) of Rules and, lastly, that it is the respondent who stands to suffer most if this application is granted. In a brief rejoinder, Mr. Cleophas rejoined that the applicant knew of the pending execution on the 12th of February, 2025 and filed his application on the 14th of February, 2025; hence, there is compliance with the rules. As regards the loss which the applicant stands to suffer, it was Mr. Cleophas's submission that the applicant is residing in the house and if evicted he will suffer most. I have reviewed the application's record and considered the arguments put forth by the learned counsel for the parties. The question for determination by this Court is whether the application is in full compliance with the provisions of rule 11 of the Rules. Although Mr. Cleophas has contended that it does, Mr. Said held an opposite view, arguing that rule 11 (4), and, by implication, rule 11 (5) (a) of the Rules have not been complied with. However, looking at the record of the application, it is indeed shown that it was filed on the 14th of February, 2025 and the applicant has stated in his affidavit that he became aware of the execution proceedings on the 12th of February, 2025. Although Mr. Said contended otherwise, he furnished nothing to prove that the applicant was aware of the execution proceedings since August 2024. It is my considered view and finding, therefore, that the application was filed in compliance with rule 11 (4) of the Rules, which requires that applications of this nature be filed within 14 days. Concerning compliance with rule 11 (5) (a) of the Rules, which requires an applicant to satisfy the Court that substantial loss will result unless a stay order is granted, I am convinced, having examined the affidavit of the applicant and considered the submissions made by the counsel for the applicant, that, if the applicant is to be evicted from the disputed property while he is currently residing therein with his family, that will constitute substantial loss. Rule 11 (5) (b) of the Rules does also require the applicant to satisfy the Court that there is security for the due performance of the decree. In his affidavit the applicant has shown a commitment and willingness to furnish security for the due performance of the decree. For that reason, it is also my finding that rule 11 (5) (b) of the Rules has been complied with. All said and done, I find this application to have complied with the requirements for the grant of a stay order. Consequently, I hereby grant it and order that, the execution of the decree in respect of the Ext. Land Appeal No. 186 of 2022, be stayed pending hearing and determination of the applicant's intended appeal. Further, the applicant is hereby directed to file, within 14 days of the delivery of this ruling, a commitment bond to the effect that the status quo of the properties in dispute shall be maintained until the intended appeal is finally heard and determined by this Court. In the circumstances of this application, I make no orders as to costs. It is so ordered. DATED at DODOMA this 25th day of February, 2025. D. J. NANGELA JUSTICE OF APPEAL The Ruling delivered this 27th day of February, 2025, in the presence of the parties in person, linked via Video Conference from Dar es Salaa, is hereby certified as a true copy of the original.