nam enterprises ltd 4 others vs first national bank t ltd another 2022 tzhccomd 347 6 october 2022

IN THE HIGH COURT OFTANZANIA (COMMERCIAL DIVISION) ATDAR ES SALAAM. MISC. COMMERCIAL APPLICATION NO. 89 OF 2022 (Arising from Commerciai Case No. 47 of2020 and Commerciai Review No. 6 of2022) NAM ENTERPRISES LIMITED.................................. 1ST APPLICANT STEPHEN KORDINI LUKUMAY................................ 2ND APPLICANT ALEX STEPHEN LUKUMAY................................................................ .3RDAPPLICAN ELIAS STEPHEN LUKUMAY................................................................4™APPLICAN NAMNYAKI STEPHEN LUKUMAY....................................................... 5™APPLICAN VERSUS FIRST NATIONAL BANKTANZANIA LIMITED........ 1ST RESPONDENT YONO AUCTION MART & COMPANY LIMITED......2nd RESPONDENT Date of last order: 31rt August, 2022 Date of Ruling: 6th October, 2022 RULING MKEHA, J The applicants are moving the court for an order of stay of execution pending hearing and determination of the Review application pending i before this court. Amongst other provisions, the appiication is made under Order XXI rules 24 (1) and (2) and 27 of the Civil Procedure Code. Before commencement of hearing of the application, Mr. Joseph Kipeche learned advocate for the first respondent raised a point of preliminary objection to the following effect: That, the application is incompetent as the cited enabling provisions do not confer jurisdiction to the court to grant the prayers sought in the chamber summons. The learned advocate argued by way of written submissions that Order XXI rule 24 (1) confers jurisdiction to a court to which a decree is sent for execution to stay execution for a reasonable time to enable the judgment debtor to apply to the court by which the decree was passed or any other court having appellate jurisdiction in respect of the decree for an order of stay of execution or for any other order relating to the decree. The learned advocate argued further that, rule 27 of Order XXI of the Civil Procedure Code confers to the court having jurisdiction to stay execution of the decree to do so where there is a pending suit in any court against the decree holder until the pending suit has been decided. In view of the learned advocate, this court is not the court to which the decree has been 2 sent for execution hence Order XXI cannot be cited to move the court. He added that, there is no pending suit against the decree holder in any court to warrant citation of Order XXI rule 27 as the enabling provision. Mr. Ramadhan Karume learned advocate for the applicants submitted in reply that proper enabling provisions had been cited. According to the learned advocate an application for review is a suit within the context of Order XXI rule TJ of the Civil Procedure Code. The only issue to be determined is whether the application is competent. It is not disputed that this court is not the transferee court of the decree sought to be executed. This is the court which passed the decree sought to be executed. Therefore, Order XXI rule 24 (1) and (2) was cited out of context. Again, an application for review is not expected to yield a decree capable of being adjusted with the decree sought to be executed. The application is therefore not a suit within the context of Order XXI rule 27 of the Civil Procedure Code. That said, I uphold the objection for being meritorious. Consequently, the application is struck out for reasons of incompetence. The applicants shall bear costs of the application. 3 I DATED at DAR ES SALAAM this 6th day of October, 2022. C.P. Mkeha Judge 6/10/2022 Court: Ruling is delivered in the presence of the parties' advocates. C.P. Mkeha Judge 6/10/2022 4