20190527 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAB ES SALAAM CIVIL APPLICATION NO. 132/01/2019 STANBIC BANK TANZANIA LIMITED ............................................. APPLICANT VERSUS PAUL FRANCIS KILASARA ------------------------------------- RESPONDENT (Application for an order of stay of execution of the decree of the Resident Magistrates' Court of Dar es Salaam at Kisutu) (Mwijage PRM) dated the 26 th day of July, 2017 in Civil Case No. 72 of 2017 RULING 9 th & 30 th May 2019 MWANGESI, J.A.: This is an ex parte application which has been taken by Notice of Motion made under the provisions of Rule 11 (3), 11 (4), 11 (5) (a), (b) and (c), 11 (6), 11 (7) (a), (b), (c) and (d) and Rule 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), whereby, the applicant is praying for ex parte orders to stay execution of the decree of the Resident . Magistrates' Court of Dar es Salaam at Kisutu, pending hearing of the application for stay of execution inter parties. The application is supported . by sworn affidavit of one Eric Rwelamira, who is the Principal Legal Officer . of the applicant bank. ·1 At the hearing of the application before me, Mr. Taira Makarious, learned counsel, entered appearance for the applicant. There was no appearance for the respondent for the reason that, the application was prosecuted ex parte. In his argument to amplify the Notice of Motion Mr. Taira, asked for the leave of the Court to adopt the affidavit which was sworn by Eric Rwelamira, to form part and parcel of his oral submission. Briefly,. in highlighting the application the learned counsel, argued that the application by the applicant, is for an interim order to stay the execution of the decree in respect of Civil Case Number 72 of 2017, which was issued by the Resident Magistrates' court of Dar es Salaam at Kisutu on the 26 th day of July, 20.17 so as to await the outcome of the application for stay of execution inter parties, which is pending before the Court. Advancing the reason as to why interim order was being sought, _Mr. Taira, referred the Court to paragraph 5 of the affidavit in support of notice of motion, where it has been deponed that, deSp!te the fact that the respondent is fully aware of the appeal process, has served the applicant with a copy of application for execution No. 32 of 2019, indicating that, he is determined to proceed with the process of execution regardless of the appeal process in place. 2 • The fact that in paragraph three (3) of the Notice of Motion and paragraph ten (10) .of the affidavit of the affidavit of Eric Rwelamira, in support of the Notice of Motion, the applicant has committed itself that, it undertakes to furnish security for the due performance of the decree in question, it is my considered view that, there is no basis to deny the application by the applicant. I therefore, grant the sought interim order for stay of execution to await the hearing of the application for stay of execution inter parties. And since the application was prosecuted ex parte,,. I make no order as to costs. Order accordingly. DATED at DAR ES SALAAM this 27 th day of May, 2019. S.S. MWANGESI JUSTIE OF APPEAL I certify that this is a true copy of the original B.AL DEPUTY REGISTRAR COURT OF APPEAL 3