CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 395/02 OF 2024 LORIKU LENDOYA (Suing as Legal Representative of Lendoya Letayato).................................. . APPLICANT VERSUS GODSON MBAAYO .......... ................................................. 1st RESPONDENT JAMHURI MBAAYO .......... .......... ........................ . 2nd RESPONDENT MBATITI MBAAYO........ ...................... ..................... 3rd RESPONDENT GABRIEL MBAAYO ............ ................. ...................... . 4th RESPONDENT LONING'O MBAAYO..... ............. ......... .................. . 5™ RESPONDENT JOSEPH LIKINJIE (Suing as Legal Representative of Lendoya Letayato)....... ................. ......... 6™ RESPONDENT (Application for Stay of Execution from the Judgment and Decree of the High Court of Tanzania at Arusha) fMwaseba. J.l dated the 31st day of October, 2022 in Land Case No. 36 of 2019 RULING 24th September, 2024 & 26th March, 2025 MASHAKA. J.A.: By notice of motion filed under rules 4 (1) (2) (a), (b) and (c) and 11 (3)-(7) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant moves the Court for an order of temporary injunction restraining the respondents, their agents/servants/workmen or any other person from selling, cutting the trees, destroying fauna and flora or doing any constructions of any building or structure on the disputed farm land measuring 390 paces length and 52 paces width bordering with Saloni Leatayo on the North, road on the South, Korongo la Mto Ngarenaro on the East and another road on the West. It is located at Kiranyi Ward, Siwandeti Village, Division of Enaboishu in the District of Arusha within Arusha Region. The notice of motion is supported by the affidavit duly sworn by the applicant. When the application was called on for hearing, Ms. Lilian Apolinary, learned advocate representing the respondents, who did not resist the application and Mr, Gwakisa Sambo who represented the applicant implored me to grant the application since the respondents did not resist. In amplifying the application, Mr. Sambo adopted the contents of the affidavit to be part of his submission and argued that rule 4 (2) (a) (b) and (c) of the Rules confers jurisdiction for the Court to grant temporary injunction restraining the respondents from doing anything in the disputed land pending hearing and determination of Civil Appeal No. 266 of 2023. He bolstered his stand with the case of Maryam Nassor v. ABLA Estate Developers & Agency Limited & Others (Civii Application No. 153/17 of 2022) [2024] TZCA 168 (7 March 2024) which had similar circumstances and prayed for temporary injunction which was the appropriate remedy and not stay of execution. Having heard the parties, the issue for determination is whether this application is tenable, Mr. Sambo moves me under rule 4 (2) (a) (b) and (c) of the Rules to grant an order for temporary injunction as the Rules does not provide specific provision. The rule was put in place by the drafters to cover those situations where the rules are silent or where in the interest of justice a need arose where the Court has to depart from the Rules to address the matter before it. (See for instance, Attorney General v. The Board of Trustees of the Cashewnut Industry Development Trust Fund and Another, Civil Application No. 72 of 2015 [2015] TZCA 581; (13 May 2015) and UAP Insurance (T) Limited v. Yuda Thomas Shayo & Others (Civil Application No. 611/18 of 2022) [2024] TZCA 239; (25 March 2024). However, such inherent power under rule 4 (2) (a) (b) and (c) of the Rules has to be invoked where there are extraordinary circumstances which dictates the Court to grant injunctive reliefs. See, Hyasinta Elias Malisa v. The Ministry of Land, Housing & Human Settlements Development & Others (Civii Application No. 614/17 of 2021) [2023] TZCA 17752; (11 October 2023). Notwithstanding, in Gazelle Tracker Limited v. Tanzania Petroleum Development Corporation, Civil Application No. 15 of 2006 (unreported), the Court held: - "It is common knowledge that the Civil Procedure Code, 1966 does not apply in this Court. In view o f the fact that no provision is made in the Court Rules, 1979 for injunctive reliefs, I am persuaded by Mr. Kiiindu's submission that applications for injunctive reliefs such as this, are more appropriately suited for the Court exercising original jurisdiction and not the Court o fAppeal. The logic is not far to seek. As provided for under Rule 1 Order 37 o f the Civil Procedure Code, 1966, temporary injunction may be granted where in any suit, the property in dispute in a suit is in danger o f being wasted, damaged or alienated by any party to the suit It is therefore clear that injunctive reliefs are, according to the law as set out above, generally invoked at the stage where the trial o f a suit is in progress or pending." Guided by the above principles, the position is settled that even though the Court has inherent power under rule 4 (2) (a) (b) and (c) of the Rules to grant the reliefs not specifically provided by the Rules but such inherent power has its limitations. The injunctive reliefs sought by the applicant is not in any manner based on any extraordinary compelling circumstances for me to intervene and restrain the respondents from enjoying the fruits of their judgment. Mr. Sambo referred to the case of Maryam Nassor v. Abla Estate Developers & Agency Limited and 3 Others (supra) and urged me to hold that it was based on similar circumstance as the present application. With due respect, this case is distinguishable, unlike the present application, in Maryam Nassor (supra) the application was seeking an order of stay of execution where the decree was nonexecutable while in the present application despite that the decree being nonexecutable, the application is not for stay order rather temporary injunction. In those circumstances, this application is untenable and it is hereby struck out. No order as to costs. DATED at DAR ES SALAAM this 25th day of March, 2025. L. L. MASHAKA JUSTICE OF APPEAL Ruling delivered this 26th day of March, 2025 in presence by Video Conference of Mr. Gwakisa Kakusuro Sambo, learned advocate for the appellant holding brief of Mr. Jackson Beda Ndaweka, learned advocate for the Respondents in is hereby certified as a true copy of the original.