CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CIVIL APPLICATION NO. 1408 OF 2025 LIM HAN YUNG................................................................ 1st APPLICANT LIM TRADING COMPANY LIMITED................................... 2nd APPLICANT

VERSUS LUCY TRASEAS KRISTENSEN......................................... 1st RESPONDENT JOSHUA ELIA MWAITUKA t/a FOSTERS AUCTIONEERS & AND GENERALTRADERS ................ 2ndRESPONDENT (Application for stay of execution of the order of the High Court of Tanzania (Land Division) at Dar es Salaam) ( Lukindo, J.^ dated the 20th day of November, 2023 in Miscellaneous Execution No. 74 of 2023

RULING 17th & 21stFebruary, 2025. MANSOOR, J.A.: This is an application for stay of execution of the orders issued by the Deputy Registrar of the High Court, Land Division on 20th November 2023, in Execution No. 74 of 2023. The application was preferred by the applicants by way of a notice of motion made under Rule 11 (1), 4(2) (a) and (b), 11 (3), 11 (5) (a) and (b), 11(6) and Ruia 11 (7) (a), (b), (c) and (d) of the Court of Rules, 2009 (as amended), hereinafter shall be referred to as "the Rules". The facts deposed in the affidavit of the applicants in support of the motion are that on 10th July 2013, the parties herein entered into a sale agreement for the purchase of the property situate at Plot No. 2001, Kawe Beach, Dar es Salaam, comprised in the Certificate of Title No. 119505, herein shall be referred to as "the suit premises". Prior to the purchase agreement, the applicants were residing in the suit premises as tenants. During the tenancy period and particularly after signing the sale agreement, the applicants state that they developed the suit property, they built offices and storage facilities for processing lobster for exportation abroad, the business which still subsists. The applicants state that when they started the process of transferring the title of the property to the applicants' names, the 1st respondent refused to cooperate, and this prompted the

applicants to institute an action before the High Court, Land Division, thus, they filed Land Case No. 17 of 2015. This case was dismissed as it was held to be res judicata to Land Case No. 45 of 2015. Aggrieved by the dismissal of the suit, the applicants filed Civil Appeal No. 328 of 2022, which is still pending the hearing and determination by this Court. The applicants state that while Land Case No. 17 of 2015 was pending before the High Court, the 1st respondent herein instituted another fresh suit in the same High Court, Land Division; it was Land Case No. 45 of 2015. This subsequent Land Case No. 45 of 2015 was determined exparte against the applicants. The appellants filed Misc. Land Application No. 762 of 2017 applying to set aside the exparte judgement and decree of Land Case No. 45 of 2015 which was determined exparte, and this application was dismissed by the High Court on 06th July 2018 for it was found to be unmeritorious. Aggrieved, the applicants filed Civil Appeal No. 219 of 2019 before the Court of Appeal challenging the refusal order of setting aside the exparte judgement, this appeal was dismissed by the Court of Appeal on 24th June 2022 for it was found to be unmeritorious. Still aggrieved, the applicants filed an application for Review, that is, Civil Application No. 500/01 of 2022; again the application for review was unsuccessful and it was dismissed by

the Court of Appeal on 23rd May 2024. On 14th August 2023, after the Civil Appeal No. 219 of 2019 was dismissed by the Court of Appeal, the 1st respondent filed an application for execution No. 74 of 2023 at the High Court Dar es Salaam, Land Division. The applicants were summoned to shbw cause why they should not be evicted from the suit premises. In response to the summons to show cause, the applicants filed an affidavit to show cause, they then appeared before the executing court, and the execution was stayed pending the determination of the applications in the Appellate Court; this postponement order was issued by Honorable A. S. Chugulu, the D/Registrar of the High Court, Land Division on 07/11/2023. Hon D/Registrar Chugulu postponed the Execution No. 74 of 2023 until the determination of the applications pending before the Court of Appeal, to wit, Application No. 728 of 2023 which was an application for stay of execution, also Application for Review No.500/01 of 2022. The application for Review No 500/01 of 2022 was dismissed by the Court of Appeal on 23rd May 2024, and on 31st October 2024, the Deputy Registrar of the High Court, Land Division, Hon M.F Lukindo, revived the application for execution No. 74 of 2023 for hearing. Soon after the applicants received the summons for hearing of the application for execution, they applied for stay of execution under Order XXI

Rule 2/ of the Civil Procedure Code, Cap 33 R: E 2019. On 20th November 2024, the Deputy Registrar dismissed the application for stay of execution as he held that there was nothing to stay as there is nothing pending before the High Court and proceeded to appoint the 2nd respondent herein to execute the decree. On 29th November, 2024, the applicants were served with the notice of eviction by the Court broker who is the 2nd respondent herein, and soon thereafter i.e. on 6th December 2024, the applicants filed this present application for stay of execution of the Orders of the High Court issued by the Deputy Registrar on 20th November 2024 in Execution No. 74 of 2023. The applicants also lodged the Notice of Appeal against the ruling and orders issued by the Deputy Registrar of the High Court on 20th November 2024 In Execution No. 74 of 2023. This Notice of Appeal was lodged at the High Court, Land Division on 26th November 2024. The appeal is pending before the Court of Appeal. This instant application for stay of execution was resisted by the 1st respondent who filed the affidavit in reply sworn by Mr. Robert R. Rutaihwa, the advocate for both the 1st and 2nd respondents in the application. During the hearing of this application, the applicants were represented by Counsel Jamhuri Johnson while the respondents enjoyed the services of Counsel Robert R. Rutaihwa. The counsels

presented their oral arguments in support and in opposing the notice of motion. Counsel Jamhuri Johnson for the applicants adopted the affidavit in support of the notice of motion. He argues that the application was in compliance to the preconditions set in Rule ' l l of the Court of Appeal Rules. That the applicants filed the Notice of Appeal against the decision of the Deputy Registrar issued on 26th November 2024 within the time prescribed by the law, and the copy of the Notice of Appeal was served to the 1st respondent accordingly. That the applicants received the eviction order on 28th November 2024 issued by the Deputy Registrar of the High Court, Land Division, and promptly on 6th December 2024, the applicants filed the present application for stay of execution within the time prescribed under Rule 11 sub-rule 4 of the Court of Appeal Rules. The counsel submits further that, if the stay order shall not be granted the applicants shall suffer an irreparable loss as they have invested substantial amount of money in the suit premises. That the applicants have constructed offices and storage facilities for storing lobster in the suit premises, and that the business of exportation of lobster would be highly affected. The Counsel submits that, the applicants have undertaken to furnish security in the form of a commitment bond for the due performance of the decree, in the case

that the pending appeal shall not be successful. In support of this contention, the counsel refers to the Case of Suleiman Yusuf Ali vs Sultan Ali Gulamhussein, Civil Application no. 421/15 of 2018 [2019] TZCA 452 (17 October 2019) reported on Tanzlii. The Counsel submits further that the applicants have complied with the provisions of Rule 11 sub rule 7, a b, c and d, in that the application at hand is accompanied with a copy of the Ruling and Drawn Order appealed from, the notice of appeal as well as the notice of the intended execution. The applicants' counsel submits that it is true that Land Case No. 45 of 2015 was determined exparte before Land Case No. 17 of 2015 was concluded, and that the applicants had preferred an appeal against the decision in Land Case No. 45 of 2015, and the appeal was dismissed. He submits that Land Case No. 17 of 2015 was also dismissed as it was held to be res judicata, and the appeal against the decision issued in Land Case No. 17 of 2015 is still pending before the Court of Appeal for determination. He also agrees that while the subject matter in Land Case No. 17 of 2015 was the contract of sale, the subject matter in Land Case No. 45 of 2015, in which the 1st respondent herein was the plaintiff, the subject matter was the tenancy agreement. He submits that, in both cases, the property involved is the same property which is Plot No.

2001, Kawe Beach, Dar es Salaam and since there is the pending appeals affecting the subject matter, it would be justifiable to preserve the subject matter of the appeal for purposes of fair determination of the pending appeals. Counsel Robert Rutaihwa made a brief reply submissions arguing that the respondents herein are executing the decree of the court issued in Land Case No. 45 of 2015, which is a final decree as there is nothing pending before the court of appeal in respect of the decree. That the appeal and review in respect of Land Case No 45 of 2015 was finalized by the court of appeal and what remains is the execution of the decree. The counsel for the respondents challenges the notice of execution dated 20th November 2024 saying that this is the Order of the High Court and cannot amount to Notice of Execution. The Counsel argues that the notice to show cause why the applicants should not be evicted from the suit premises was served to the applicants since September 2023, and this is when the applicants became aware of the execution. He argues that the application filed by the applicants for stay of execution on 6th December 2024 is way out of time as it was filed almost after one year from the date of the notice to show cause. The learned counsel also attacked the applicant's counsel submissions on an issue of an irreparable loss saying that neither the affidavit of

the applicants in support of the notice of motion nor the submissions made by the counsel for the applicant sufficiently demonstrates the loss or injuries that might be suffered by the applicants if the stay order would be refused. That the investments alleged to have been made by the applicants worthy billions of money have not been substantiated in the affidavit of the applicant and that remains the mere words from the bar. Counsel for the respondents continues to argue that since the decree subject to execution is not challenged in any appeal, there is nothing to stay, and thus there is no need for the applicant to issue any commitment bond as there is no appeal pending before the Court of Appeal in respect the decree in Land Case No 45 of 2015. The Counsel also submits that the parties to Land Case No 17 of 2015 are different from the parties in the present application. While parties in Land Case No. 17 of 2015 also Civil Appeal No. 328 of 2022 are the applicants and the 1st respondent herein, the present application for stay of execution, the 2nd respondent is not a party in Land Case No. 17 of 2015, and the applicants cannot be granted stay of execution on a matter pending before the Court of appeal, if they did not apply for it. The Applicant's counsel was given a chance to make a rejoinder submission, and he reiterated his submissions in chief that the subject matter in

appeal No. 328 of 2022 pending before the Court of Appeal, and the subject matter of the decree in Land Case No. 45 of 2015 and its subsequent rulings and orders in execution proceedings is the same, which is a landed property known as Plot no. 2001, Kawe Beach, Dar es Salaam, and that it needs to be protected by a stay order until the appeals pending in the court of appeal are determined. He also submits that the time for filing the application for stay of execution is reckoned from the date the applicants becomes aware of the execution, and in the present matter the time starts to accrue from the date the eviction order was issued which is on 29th November, 2024, and the application which was filed on 6th December 2024, was well within the time prescribed in Rule 11 sub rule 4 of the Rules. The counsel argues further that it is true that the 2nd respondent in this application is not a party in the notice of appeal but it was necessary to join him in this application as the necessary party since he issued the notice of eviction, and he is about to execute the decree of the court. In the end, while the counsel for the applicants prayed that the stay order be issued in favor of the applicants, the counsel for the respondents prayed for the dismissal of the application with costs. I have heard the counsels' submissions, and also have read and understood the background of this

matter which started way back in 2013. The application before me is with regards to Land Case No 45 of 2015, whose decree is the subject of execution. This Land Case No. 45 of 2015 ended in favor of the 1st respondent herein who was the plaintiff in that case. There was an appeal preferred by the applicants in the Court of Appeal, that is, Civil Appeal No. 219 of 2019, which was dismissed, and again there was a Review No. 500/01 of 2022, which also, was dismissed. Page 10 of 18 Thus, the decree issued in Land Case 45 of 2015 remains intact and unchallenged and it needs to be carried into effect. In order to execute the decree in Land Case No 45 of 2015, the 1st respondent applied for execution, execution No. 74 of 2023, which is the subject of this application. The applicants herein objected and filed an application under Order XXI Rule 27 of the Civil Procedure Code, for stay of execution of the decree on the reasons that there is a pending Appeal No. 328 of 2022. The Deputy Registrar of the High Court, Land Division refused to stay the execution stating that the Civil Appeal No. 328 of 2022 is a different cause to Land Case No. 45 of 2015, and the parties in the two actions are different. Aggrieved by the decision of the Deputy Registrar, the applicants filed a Notice of Appeal intending to appeal against the decision of the Deputy Registrar to the Court of Appeal, and in

order to preserve the subject matter of the appeal, which is the house located in Plot No. 2001, Kawe Beach, Dar es Salaam until the determination of the intended appeal, the applicants brought this application for stay of execution pending the determination of the intended appeal. I shall have to deal with the present application for stay of execution and see whether the threshold for granting the stay order have been met. I shall not address the issue on whether the decision by the Deputy Registrar refusing to stay the execution of the decree is appealable to the Court of Appeal as the issue is not before me and if I dwell to determine that issue I will be determining the matter which is still pending at the Court of Appeal. I shall therefore restrict myself to determine whether the applicants have satisfied all the conditions for a grant of stay order as enumerated in Rule 11 of the Rules. Stay of execution is provided for under Rule 11(3) of the Tanzania Court of Appeal Rules, 2019 as amended, which provides: Rule 11 (3) In any civil proceedings, where a notice of appeal has been lodged in accordance with rule 83, an appeal, shall not operate as astay of execution of the decree or order appealed from nor shall execution of the decree be stayed by reason only of an appeal having been preferred from the decree or order; but a single justice, may upon good cause shown, order

stay of execution of such decree or order. As I said in the case of SECL Limited and 2 Others vs Mohamed Enterprises Tanzania Limited and Another , Civil Application No. 1625 of 2024, "in granting or refusing to grant the order of stay of execution thecourt is required to consider the purpose of a stay of execution order pending appeal, and the purpose should be to preserve Page 12 of 18 the subject matter in dispute so that the rights of the appellant who is exercising the right of appeal are safeguarded and the appeal if successful, is not rendered nugatory." The subject matter in this appeal as correctly submitted by Counsel Jamhuri Johnson is the landed property situate at Plot No. 2001 Kawe Beach, Dar es Salaam, which needs to be preserved pending the determination of the rights of the parties on appeal. In the instant application, contrary to what was submitted by Counsel Robert Rutaihwa, the Counsel for the respondents, the notice of intended appeal is not the notice to show cause why the applicants should not be evicted from the suit premises, the notice which was issued to the applicants on 13th September 2023. The proceedings concerning the notice to show cause were determined to its finality by Hon. Chugulu D/Registrar. She heard the cause and made a Ruling regarding the Notice since 7th November, 2023, and the execution processes were postponed. In the present

matter, the applicants became aware of the revival of the proceedings for execution when they received a summons from the Deputy Registrar Hon. M.F. Lukindo to appear for hearing on 31st October 2024. The applicants appeared for hearing and on 20th November 2024, is when the D/Registrar gave out a ruling and ordered the execution to proceed. Thus, the applicants have been made aware of execution after their application to stay the proceedings was rejected and when the D/Registrar ordered the execution to proceed. Thus, an application filed on 6th December 2024, counting from the date the ruling of the Registrar was issued is well within the time prescribed under Rule 11 (4) of the Court of Appeal Rules, 2019 as amended by GN No. 188 of 2024, which provides as follows: "Rule 11 (4) "An application for stay of execution shall be made within fourteen days of service of the notice of execution on the applicant by the executing officer or from the date he is otherwise made aware of the existence of an application for execution. The other issue disputed by the counsel for the respondents is an issue of irreparable loss which needed to be addressed by the applicants as required under Rule 11 (5) of the Rules; I read paragraph 14 of the affidavit of LIM HAN Yung, accompanying the Notice of Motion. The applicant has stated that he has invested billions of shillings in the disputed

premises and if the order of execution shall not be granted, the applicants stand to suffer an irreparable loss. I also read paragraph 13 of the affidavit in reply sworn by the respondents' counsel, in which he said the alleged loss is not stated and how the loss would be irreparable as no particulars of investments were given. On this issue, I also read Page 14 of 18 paragraph 3 and 4 of the affidavit in support of motion which gives particulars of the investments made by the applicants in the suit premises. The applicant's states in paragraph 3 that during the tenancy period the applicants developed the property where they established the offices and had built storage facilities for processing lobsters which are exported abroad. Paragraph 4 states that development and investments carried on the disputed premises were established when the parties herein have executed the Sale Agreement on 10th day of July 2013. I also read the counter arguments by the respondents in paragraph 4 and 5 of the affidavit in reply, where these facts were simply noted but not countered. I therefore take it that the particulars of investments were clearly and satisfactorily given in the affidavit of the applicant in support of the application, and the applicant demonstrated that he will suffer substantial loss unless the order of stay is issued, thus, the condition given on Rule II (5) (a) of the

Rules was met. As to the issues of joining the Court Broker in this application while he is not shown as a party in the Notice of Appeal, I agree with the arguments of the counsel for the applicant that the Court Broker is a necessary party in the application for stay as he is the one who has issued a notice of eviction, and that he is about to effect the intended execution. Necessary parties are those who must be included in an action unless there is a valid excuse for their non-joinder. The Court Broker is not a party to the intended appeal as the Ruling of the Registrar of refusal to stay the execution of the decree does not require him to be joined as a party. As to whether the application has met the threshold of the requirements of Rule 11 of the Rules, as explained herein above, the applicants have met all the conditions set in Rule 11 for granting of the stay of execution order. The application was filed within the time prescribed in sub rule 4 of Rule 11. The applicants have sufficiently demonstrated that they will suffer an irreparable or a substantial loss if the order of stay will not be issued. That it is in the greater interest of justice to preserve the subject matter of the appeal, which is the property situate at Plot No. 2001, Kawe Beach, Dar es Salaam until the appeal pending before the Court of Appeal are concluded. The applicants have also complied with the

provisions of sub rule 7 of Rule 11 in that the application is accompanied with a Notice of Appeal, the Ruling and Drawn Order appealed from as well as the Notice of the intended execution. As for the issue of security for the due performance of the decree, I shall take the stand given by the Court of Appeal in the case of Bank of Africa Tanzania Limited and Another vs Adam Mohamed Said and another, Civil Application No. 485/15 of 2024, in which the Justices of Appeal, stated: from the nature of the decree and the mode the respondents intend the decree to be executed, that is, by eviction of the 2nd applicant from the house, the need for the applicants to present their current financial audit report to prove their respective liquidity does not arise..... with regards to the nature of the security to be given, it goes without saying that\ based on the fact that the decree sought to be executed is not monetary and as the intended mode of the execution is b eviction, then, as rightly argued by Mr. Nyaisa, security should be in the form o f commitment by the applicants to maintain the status quo of the house from which the respondents intended to evict the 2nd applicant." Consequently, from the above, I find the application to be meritorious and it is in the greater interest of justice and for the reasons stated herein above the prayers sought in the Notice of Motion are

hereby granted. I order that execution order issued by the Deputy Registrar of the High Court of Tanzania, Land Division on 20th November 2024 in Execution No. 74 of 2023, be stayed pending the hearing and determination of the intended appeal, on the condition that the applicants shall jointly and severally execute a commitment bond committing Page 17 of 18 themselves to maintain the status quo of the disputed premises described as Plot No. 2001, Kawe Beach Dar es Salaam, comprised in the Certificate of Tile No. 119505. The commitment bond shall be deposited in Court within Thirty (30) days from the date of this Ruling. Each party shall bear its own costs of the application. It is so ordered. DATED at DODOMA this 21st day of February, 2025. L. A. MANSOOR

JUSTICE OF APPEAL The Ruling delivered this 21st day of February, 2025 in the presence of Ms. Jackline Rweyongeza, learned counsel for the applicants also holding brief for the 1st and 2nd respondents via video facility from Dar es Salaam, is hereby certified as a true copy of the original.