APPLICATION NO

APPLICATION NO

The applicant proved, on the balance of probabilities, that the suit property is matrimonial property occupied by her, her husband, and their children, and thus not liable to attachment under section 48(1)(e) of the Civil Procedure Code. Wrong citation of the provision was not fatal, and granting the application does not interfere with the Court of Appeal's decision as the execution order challenged is distinct from the appellate decision.

Citation
APPLICATION NO
Parties
Applicant: Nice William; 1st Respondent: Domina Kagaruki; 2nd Respondent: Farida F. Mbarak; 3rd Respondent: Farid Ahmed Mbaraka; 4th Respondent: Elius Mwakalinga; 5th Respondent: Foster Auctioneers Ltd and General Traders Ltd
Court
TANZLII
Jurisdiction
Tanzania
Judgment Date
1 January 2024
Procedural Posture
Miscellaneous Land Application (objection Proceedings) / Ruling on Objection to Attachment and Sale of Property in Execution
Outcome
Objection upheld; application granted.
Legal Topics
Attachment and Sale of Property, Matrimonial Property, Execution of Decrees, Burden of Proof, Jurisdiction, Citation of Legal Provisions
Source Language
English
Civil Procedure Land Law Family Law Attachment and Sale of Property Matrimonial Property Execution of Decrees Burden of Proof Jurisdiction +1 more

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Parties

Nice William

Applicant

Domina Kagaruki

1st Respondent

Farida F. Mbarak

2nd Respondent

Farid Ahmed Mbaraka

3rd Respondent

Elius Mwakalinga

4th Respondent

Foster Auctioneers Ltd and General Traders Ltd

5th Respondent

Procedural Posture

Miscellaneous Land Application (objection Proceedings) / Ruling on Objection to Attachment and Sale of Property in Execution

Legal Issues

  1. 1 Whether wrong or non-citation of the provision of the law renders the application fatally incompetent
  2. 2 Whether granting the application would interfere with the decision of the Court of Appeal
  3. 3 Whether the applicant has proved that the suit house is matrimonial property not liable to attachment

Ratio Decidendi

The applicant proved, on the balance of probabilities, that the suit property is matrimonial property occupied by her, her husband, and their children, and thus not liable to attachment under section 48(1)(e) of the Civil Procedure Code. Wrong citation of the provision was not fatal, and granting the application does not interfere with the Court of Appeal's decision as the execution order challenged is distinct from the appellate decision.

Court Disposition

Objection upheld; application granted.

Orders

  • Attachment order on Plot No. 37781 Burundi Kinondoni Municipality is set aside.
  • 1st respondent may attach other property of the 4th respondent or use any other mode of execution.