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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA MISC. CIVIL APPLICATION NO 10300 OF 2024 (Originating from Application for execution in Land Case No. 5 of 2015 in the High Court of Tanzania at Mbeya and Execution No. 01 of 2020 in the High Court of Tanzania at Mbeya) LUWINZA DALUSHI……………………....………………..……1ST APPLICANT SANDU LUCHEGA……………………………………….…….…2ND APPLICANT MALALE SHIMBAL………………………………….…………....3RD APPLICANT NTOVE MTEMI……………………………………………..…….4TH APPLICANT MAKELEGE KENGELE……………………………………………5TH APPLICANT SUSA LUHENDE………………………………………………….6TH APPLICANT JILAO SAMIKE…………………………………………………...7TH APPLICANT NGWISA MTEMI………………………………………….…….8TH APPLICANT LAHA MANYENGE…………………………………………….…9TH APPLICANT MAKIJEGO MISAFU……………………………………………10TH APPLICANT MAWAZO MWAFU………………………………………………11TH APPLICANT ELIAS MWAFU………………………………………………….12TH APPLICANT TANGA LIFA……………………………………………………..13TH APPLICANT MAPAMBANO JINANG’A………………………………………14TH APPLICANT BUNDALA GAMBA……………………………………………..15TH APPLICANT FUBE LUGEDEJA……………………………………………….16TH APPLICANT LUSANGIJA GALUSHI……………………...…………………17TH APPLICANT SHINJE JELA……………………………………………………18TH APPLICANT 1 MASULUZU DALUSHI……………………………….………….19TH APPLICANT JILAO SAMIKE………………………………………………….20TH APPLICANT SANTU LUCHEGA……………………………………………….21ST APPLICANT

VERSUS O.C INDUSTRIAL HOLDINGS LTD......……..……………..1ST RESPONDENT FAGIO COURT BROKER & AUCTIONEERS CO. LTD…...2ND RESPONDENT

RULING Date: 1 July 2024 & 29 July 2024 SINDA, J.: This application is made under Order XXI Rule 24 (1) and Section 95 of the Civil Procedure Code, Cap 33, RE 2019 (the CPC). The applicants among other things are seeking order for stay of the Execution of the Decree in Land Case No. 05 of 2015 in the High Court of Tanzania at Mbeya on eviction order pending the final determination of Misc. Land Application No. 00001554 of 2024 for an application of extension of time within which to set aside an ex-parte judgement. The application is by way of chamber summons supported by the applicants’ affidavit sworn by Mr. Chapa Alfredy, counsel for the applicants. The 2 Respondents opposed the application through their joint counter affidavit sworn by Charles Zakayo Kaaya and Eugen T. Kisonga. Before the application was heard, the respondent raised a preliminary objection with only one ground as follows: 1. This Application is time barred for having been filed without court’s condonation, hence in contravention of Item 21 of Part III to the Schedule of the Law of Limitation Act, Cap. 89, R.E 2019. The hearing of the Preliminary Objection (the P.O) was by way of written submissions. The applicants were represented by Mr. Chapa Alfredy and the respondents were represented by Mr. Samson Suwi, both learned counsels. In his submission Mr. Suwi argued that the application for stay of execution is

required to be filed in court within 60 days from the date of an order or decree as provided under paragraph 21 of Part III to the Schedule of the Law of Limitation, Cap. 89 R.E 2019 (the LLA). He cited the cases of Suleiman Ally Nyamalegi & 2 Others vs. Mwanza Engineering Works Ltd, Mza Civil Application No. 9/2002 at Mwanza (Unreported) and Blue Star Service Station vs. Jackson Musseti t/a Musseti Enterprises [1999] T.L.R 80 to support his argument. 3 He relied in the case of Barreto Hauliers (T) Ltd vs. Josephine E. Mwanyika & Another, Misc. Civil Application No. 186/2018, High Court of Tanzania at Dar es Salaam (unreported) that of important to note is the date of the decree not that of eviction because what is to be stayed from being executed is the court’s decree and not an eviction order which is only a means through which a court decree is sought to be executed. He added that the decree sought to be stayed having being pronounced on 30 September 2019 and this application being brought on 06 May 2024 means the application has been filed after four (4) years and thus goes contrary to the requirements of the law where limitation period for such an application is 60 days. Accordingly, time had expired on 30 November 2019. The counsel summed up his submission, by praying for the application to be dismissed, where he cited the case of Blue Star Service Station vs. Jackson

Musseti t/s Musseti Enterprises (Supra) and also prayed for costs to follow event as provided under Section 30(1) and (2) of the CPC, and cited the case of Gapco Tanzania Ltd vs. Ramsan D. Walji Co. Ltd, Misc. Land Application No. 2/2019, High Court of Tanzania at Mbeya. In his reply, Mr. Chapa argued that the application for stay of execution was filed within time by the applicants after being served with an eviction order 4 on 02 May 2024 by the executing court and on 06 May 2024 the applicants filed their application before this court, as seen in paragraph 7 of the Applicant’s Affidavit. He further explained, that from the date when the applicants were served with an eviction order to the date when the application was filed it is only four (4) days. Hence the application is not beyond time, considering that the two conditions have been met before the application for stay of execution had been filed. That is first, the application was filed and second, the application has been served to the respondent or judgment debtor. The counsel added that the executing court issued an eviction order on 13 March 2024 and the same was served to the applicants on 02 May 2024. Mr. Chapa contended that even if this court would have accounted for days from when the order was issued, the applicants would still be in time to file an application for stay of execution on eviction order. He further

stated that the applicant’s counsel misdirected himself when he started to account the days of filling the application from when the court delivered the judgment. Mr. Chapa explained that was not the intention of the law under Order XXI Rule 24 (1) of the CPC. For emphasis, he cited the case of George Katabi 5 Mtasha and Another vs. Mashauri Wilson Ntizu, Civil Appeal No. 02 of 2022, High Court of Tanzania at Mbeya (Unreported). It was the counsel’s further submission that the time to file stay of execution should start to run after the application for execution has been served to the Judgment debtor. He continued, there is no dispute that the eviction order was served to the applicants on 02 May 2024 and the applicants filed the application for stay of an eviction order on 06 May 2024, being a lapse of only 4 days. In rejoinder, Mr. Suwi begged to differ with the contention by the applicants’ counsel that the time limit to file application for stay of execution should be counted after the Judgment debtor has been served with a summons notifying him of the execution process in the executing court, and claimed that the cited case of George Katabi Mtasha and Another vs. Mashauri Wilson Ntizu (Supra), was decided per incuriam, because the case laws of the Court of Appeal cited by the High Court in the mentioned case discuss stay of execution under the Court of Appeal Rules and not

under the CPC as the case herein, whose time limitation is governed by the LLA. 6 Mr. Suwi insisted that the law and principle set by the High Court in the case of Barreto Hauliers (T) Ltd vs. Josephine E. Mwanyika & Another (Supra) and the Court of Appeal case of Blue Star Service Station vs Jackson Musseti t/a Musseti Enterprise [1999] T.L.R (Supra) and Suleiman Ally Nyamalegi & 2 Others vs. Mwanza Engineering Works Ltd (Supra), is still the position of the law. Moreover, the counsel submitted, even if the court decides to go with the contention of the applicants’ counsel, the application shall still be time barred, because according to the said law by the applicants’ counsel, the time limit shall be reckoned from the date the applicants were served with the summons notifying them of the execution process in the court. He added that the applicants were served with summons to appear in Execution No. 1/2020 in this court on 20 February 2020 but they rejected it. Alternative means of service were used but to no avail, as a result Execution Application No. 1/2020 proceeded exparte. Mr. Suwi claimed that if the law in George Katabi Mtasha & Another vs. Mashauri Wilson Ntizu (Supra), is to be followed, the applicants were made aware of the presence of the Execution Application No. 1/2020 from 17 March 2020 through Mtanzania Newspaper, and 60 days limitation period 7 to bring the

application was to be counted from 18 March 2020 and expired on 18 May 2020. He continued that the applicants once filed an application for stay of execution which was struck out, and never turned back to court until in this application, after being served with eviction order which is not subject to the stay application. That what is to be stayed is an application for execution and not an eviction order which is said to have been served to the applicants on 02 May 2024, the counsel proceeded to pray the application be dismissed with costs under Section 3 of the LLA, for having been filed without prior applying for extension of time. Having gone through records and submissions by both parties. The pertinent issues to be determined are whether time to file this application should have been counted from when: 1. The judgment and decree were issued in Land Case No. 05 of 2015; 2. The application for execution was served to the Judgement debtors in Execution Application No. 1 of 2020; or 3. The applicants were given the eviction order to vacate the suit land. After careful consideration, I believe that time to file this application should start to count from when application for execution was served to the 8 applicants informing them of the existence of Execution Application No. 1 of 2020, and not otherwise. The Court of Appeal at Dar es Salaam when faced with a comparable situation

in the case of Jennifer Mkapesa Chuwa vs Farsy Adinani Msuya (As an Administrator of the Late Adinani Mangachi Msuya /Katera Mshanga Mangachi), Civil Application No. 688/01 of 2022, held that: “An application for stay of execution is governed by Rule 11 of the Rules. Sub-rule (4) of the said Rule requires the application of this nature to be filed within fourteen days of service of notice of execution on the applicant or from the date he became aware of the existence of the application for execution.” Likewise, I also do not see the logic behind Mr. Chapa’s contention that time should start to run after the judgment had been pronounced. Mainly because, after a case has been finalized and the judgment delivered, a variety of actions might follow or taken by either party. Not necessarily execution. And therefore for one to bring an action for or against execution, there has to be the existence of the said execution case or application. Likewise, calculating days from when the applicants were given the eviction order would be irrational, since the order is as a result of the application for execution which as I have discussed shortly, is the subject to be stayed. 9 At this juncture, the question is whether the applicants herein were aware of the said Execution Application 1 of 2020. After going through the records, I stumbled upon Mtanzania News Paper dated 17 March 2020. At page

20 of the said newspaper, the applicants were informed of the execution application and what would be the implication in case of non-attendance. That being the case, I believe initiatives were taken to inform the applicants on the application. Failure to see the summons on time, could not possibly be the fault of the respondents or held against them. The applicants, on their own or through their advocate should have made follow up on all matters surrounding their case. Consequently, the applicants being informed of the matter on 17 March 2020 and in return filing this application on 06 May 2024 makes it a lapse of four years. Thus, goes contrary to Item 21 of Part III to the Schedule of the LLA that requires applications of this nature to be filed within 60 days. I agree with Mr. Suwi that the applicant should have first applied for extension of time within which to apply for stay of execution out of the prescribed limitation period, so as to show cause for the delay. Unfortunately, that was not done. 10 I therefore find that the Preliminary Objection raised with merit. Consequently, as provided under Section 3(1) of the LLA, the application is hereby struck out. No order as to costs. The applicants are advised to file the application in accordance to the law. It is so ordered. Dated at Mbeya this 29 day of July 2024 A. A. SINDA

JUDGE 11