CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA AT PODOMA CIVIL APPLICATION NO. 407 OF 2025 LANTAEDNA DIYAMET.................................................APPLICANT VERSUS TUMAINI N. MNONDWA............................................ RESPONDENT (Application for stay of execution of the Decree of District Court of Temeke (One Stop Judicial Centre) at Temeke, (Jacob, SRM), Matrimonial Cause No. 184 of 2022 dated 5th of January 2024 and Decree of the High Court of Tanzania (Temeke Sub-Registry) (One Stop Judicial Centre) at Temeke (Omari, J^ dated 4th of March 2024 in Civil Appeal No. 13 of 2023 RULING 3rd March, 2025 NANGELA, J.A.: Lantaedna Diyamet is a disgruntled mother of three. Her unhappiness arises from what I shall shortly narrate as the context under which the application is based. On the 7th of August, 2010, the applicant and the respondent contracted a Christian marriage. As they journeyed through marriage life, they were blessed with three children. Besides, they managed, out of their joint efforts, to acquire several properties, one being a matrimonial home located at Gosheni Street, Mbezi Louis, Ubungo Municipality, Dar-es-Salaam. Unfortunately, their marriage boat encountered the unforgiving whirly winds of this unstable world and, unable to steer its course securely amid the tumults, the couple lost their matrimonial grip. In the year 2022, thus, the respondent petitioned for divorce before the District Court of Temeke (One Stop Judicial Centre) at Temeke in Matrimonial Cause No. 184 of 2022. Noting that the marriage had irreparably broken down, the District Court granted the petition and issued a decree of divorce. Besides, the trial court granted the applicant custody of all three children and ordered that their joint matrimonial properties be divided accordingly. While dividing the properties, however, the respondent was awarded, among other properties, the matrimonial house. The applicant was not pleased by the way the matrimonial assets were divided, including the award of the matrimonial house to the respondent. Aggrieved, therefore, she appealed to the High Court of Tanzania (Temeke Sub-Registry) (One Stop Judicial Centre) at Temeke vide Civil Appeal No. 13 of 2023. However, upon hearing of the appeal, the High Court dismissed it for want of merits. Undeterred, she lodged a notice of appeal on the 27th of March, 2024, intending to challenge the decision of the High 2 Court. She also applied for other necessary documents to assist her in the process of appealing to this Court. However, while the appeal process was still rolling, her advocate informed her about a copy of an application for execution (Application No. 19804 of 2024) served upon the advocate on 14th of February 2025. Noting that the said application was in respect of the decree in the Matrimonial Cause No. 184 of 2022, the applicant decided to approach this Court with this application, seeking to stay the execution process pending hearing and determination of her pending appeal. When this application was called on for hearing today, Mr. Novatus Michael Muhangwa, a learned advocate, appeared for the applicant. However, the respondent was absent, although he was duly informed about the hearing by the applicant's advocate via mobile phone number 0743481034 and even by the clerk to this Court. In his submission, Mr. Novatus Muhangwa informed the Court that, although he attempted to share the application with the respondent and informed him about today's hearing on Friday, the 28th of February 2025 and instituted the respondent to file his affidavit in reply, the respondent did nothing and avoided service. He thus prayed that the Court should, by virtue of rule 63 (2) of the Rules, proceed in the absence of the respondent. Upon granting the prayer, the applicant's learned counsel adopted the notice of motion and its supporting affidavit as forming part of his submission. Submitting in support of the application, he informed the Court that the applicant has fully complied with the requirements of rule 11. He contended that, based on the grounds disclosed on notice of motion and the facts established in paragraphs 16 (1) to 16 (5) of the affidavit filed in support of the notice of motion, this Court should find it appropriate to grant this application. He submitted further that the applicant is ready to execute a commitment bond, which does suffice the requirement of the law. To support his submission, he relied on the case of Stephen Ndimangwa Mziray vs. Angelica Steven Chacha (Civil Application No. 309/01 of 2022) [2023] T7CA 17847 (17 November 2023). I have meticulously considered the submissions made by the learned counsel for the applicant and the respondent in the matter herein, the notice of motion and other pleadings forming the record of this application. The issue calling for determination is whether the applicant has sufficiently complied with the requirements of the law to warrant the granting of the order of stay, which is the gist of this application. Essentially, an order of stay of execution is not an automatic right of an applicant. The reasons for that are simple and clear. First, a stay of 4 execution of a decree is a discretionary remedy. As a matter of principle, a decree holder is entitled to enjoy the fruits of the decree without undue delay or disruption. Second, the law has made it clear, through rule 11 (3) of the Rules of this Court, that, a stay of execution is an exception rather than the rule. Under the provisions of rule 11 (3) of the Rules, even if a party might have filed a notice of appeal to this Court in accordance with rule 83, such a notice cannot, on its own, unless solid grounds are shown. Likewise, even where an appeal has been actually filed in Court, execution of the decree cannot be stayed merely because of the preferred appeal. For a stay of execution of a decree to happen, apart from the notice of appeal or the appeal itself, the applicant exhibits good cause. Ordinarily, apart from other procedural requirements that need to be fulfilled under rule 11 of the Rules, two factors judged as exhibiting good cause are enshrined under rule 11 (5) (a) and (b) of the Rules. First, it must be demonstrated that, if the execution is permitted, the applicant will probably incur a significant loss on the balance of convenience. Secondly, that the applicant is ready and willing to furnish security for the due performance of the decree should the intended appeal fails. In the case of Ms. Farhia Abdullah Nur vs. Advatech Office Suppliers Limited & Another (Civil Application 182 of 2021) [2022] TZCA 5 533 (31 August 2022), this Court, commenting on the latter requirement regarding security for the due performance, noted that, such is meant to protect the decree holder from facing difficulties or the impossibility of realizing the decree in case the intended appeal fails. Put differently, security furnished for the due performance of a decree is a guarantee that assures the decree holder that he/she can still access the benefits he/she is entitled to under the decree even if there will be a delay. It is worth noting, however, that, although furnishing such a security for the due performance of the decree is a mandatory requirement, the form of security to be furnished by an applicant for a stay order depends on the circumstances of each case. In the case of Africhick Hatchers Ltd vs CRDB Babk Pic (Civil Application No. 98 of 2016) [2019] TZCA 148 (15 March 2019), is apt on that. In that case, this Court held a view that: "To meet this condition, the law does not strictly demand that the said security must be given prior to the grant o f the stay order. To us, a firm undertaking by the applicant to provide security might prove sufficient to move the Court, provided the Court sets reasonable time limit within which the Applicant should give security. " There might also be other considerations, like the fact that there is a significant legal issue that needs to be decided at the appeal hearing or that, should the stay be denied, the appeal will be deemed nugatory if it is successful. But merely stating that the applicant has an arguable case and the appeal filed has some prospect of success is not sufficient. In the instant application, the applicant's counsel has contended, among other things, that the application meets all requirements of the law, which include a demonstration that the applicant stands to suffer substantial loss if the stay order is not granted and, further that, she has exhibited her commitment to furnish security in the form of a commitment to bond to the effect that she will maintain the status quo of the property in dispute. As I alluded to hereabove, I have taken time to examine the applicant's affidavit. As a matter of principle, an applicant must make full and honest disclosures or statements regarding the irreversible harm she/he is likely to suffer if no stay is granted. The rationale for such disclosure is to avoid vexatious and frivolous allegations meant to delay the decree holder from enjoying the fruits of his/her lawful decree. In this application, however, I am satisfied as I examine the grounds in the notice of motion and the averments in the applicant's affidavit that, since the applicant (and the children whom the Court placed under her custody) live(s) in the disputed matrimonial house, if evicted prior to the hearing and determination of the intended appeal, she stands to suffer more than the respondent. It is my considered view, therefore, that inconvenience and the hardship she will face together with the children if eviction is to 7 happen constitute substantial loss and. if I may add, cannot in any way possible be in the interest of the children who are under her custody. In addition to the points, I made above, I have also observed from the applicant's affidavit that the applicant has complied with the additional requirement that the applicant for a stay provide security for the proper execution of the decree. In paragraph 16.4 of her affidavit, she has pledged to execute a commitment bond to maintain the status quo of the property in dispute. Essentially, even if the form of security relates to the disputed property, depending on the circumstances of the case, a commitment bond to maintain the status quo of the property in dispute is considered sufficient security since it aims at preserving the status and integrity of the property while an appeal is pending. This Court has, in several decisions, such as the case of Rose Benedict v. Janet Evarist Njau and Others (Misc. Civil Application No. 311/02 of 2024) [2024] T7CA 508 (27 June, 2024; TANZLII) and Dr. Luis B. Shija vs. Kellu Kamo Lucas (Civil Application No. 209/14 of 2024) [2024] TZCA 675 (1 August, 2024). All said and done, I find this application to be laden with merit and I accordingly grant it. The court's decree in Matrimonial Cause No. 184 of 2022 is hereby stayed until the applicant's appeal against the High Court's ruling in Civil Appeal No. 13 of 2023 is heard and determined by this Court. The stay order, however, is granted on condition that the applicant executes, within 30 days from the date hereof, a commitment bond to the effect that she will maintain the status quo of the disputed matrimonial property in the same condition as it were at the date of issuance of the decree by the Court. In the circumstances of this application, I make no orders as to costs. It is so ordered. ED at DODOMA this 3rd day of March, 2025. D. J. NANGELA JUSTICE OF APPEAL Ruling delivered this 3rd day of February, 2025, in the presence of Mr. Novatus Michael Muhangwa, learned counsel for the Applicant and in absence, via Video Conference from Dar es salaam, is hereby certified as a true copy of the original. C. ___ DEPUTY REGISTRAR COURT OF APPEAL