Automated Summary
Key Facts
The applicant, Nacky Esther Nyange, sought a stay of execution for the High Court's decree ordering her to vacate a disputed house in Dar es Salaam. The decree was issued in Civil Case No. 155 of 2015, where the 1st respondent claimed ownership of the house. The applicant argued the house is her matrimonial home and that eviction would render her homeless. The Court of Appeal granted the stay pending resolution of the pending appeal (Civil Appeal No. 207 of 2019) on condition that the applicant executes a bond within 14 days to maintain the status quo. The ruling emphasized compliance with Rule 11(5)(a) and (b) of the Tanzania Court of Appeal Rules, requiring proof of potential substantial loss and security for the decree.
Issues
- The second issue was whether the applicant's verbal commitment to execute a bond within 14 days, as outlined in her affidavit, fulfilled the security requirement under Rule 11(5)(b) for staying the execution of the decree. The Court referenced prior rulings to determine that a firm undertaking can suffice in lieu of immediate bond submission.
- The Court addressed whether the applicant demonstrated substantial loss if evicted from the disputed house, which she claims is her matrimonial home, and whether she met the security requirements for staying the execution of the High Court's decree under Rule 11(5) of the Tanzania Court of Appeal Rules.
Holdings
- The Court determined that the applicant has met the first condition under Rule 11(5)(a) of the Tanzania Court of Appeal Rules, as eviction would cause her and her children to become homeless. The Court emphasized that the disputed house's legal status remains unresolved pending the appeal, and thus the applicant's continued occupation does not constitute a bar to the stay application.
- The Court ruled that the applicant's firm undertaking to provide a bond within 14 days satisfies the security requirement under Rule 11(5)(b). It clarified that the law does not require security to be provided before the stay order is granted, citing prior precedents where undertakings to execute bonds were deemed sufficient.
Remedies
- The Court ordered a stay of execution of the High Court's decree pending the hearing and determination of Civil Appeal No. 207 of 2019, on the condition that the applicant executes a bond within 14 days of the ruling's delivery.
- The Court ordered that the costs of the application shall abide the outcome of the intended appeal, meaning the costs will be determined after the appeal is resolved.
Legal Principles
The Court applied Rule 11 (5)(a) and (b) of the Tanzania Court of Appeal Rules, which require that an application for stay of execution must demonstrate substantial loss if the order is not made and that security is given for the due performance of the decree. The court emphasized that a firm undertaking to provide security may suffice, as established in prior rulings like Suleiman Yussuf Ali v. Sultanali Abdallah Gulamhussein (2018) and Mantrac Tanzania Limited v. Raymond Costa (2010).
Precedent Name
- MIC Tanzania Ltd vs. CXC Africa Ltd
- Melichiades John Mwenda v. Philemon Ndyana
- Mantrac Tanzania Limited v. Raymond Costa
- Cotton Marketing Board v. Cogecot Cotton Co. SA
- Suleiman Yussuf Ali v. Sultanali Abdallah Gulamhussein
Cited Statute
Tanzania Court of Appeal Rules, 2009 as amended
Judge Name
- A. M. MWAMPASHI
- A. G. MWARIJA
- M. C. LEVIRA
Passage Text
- The grounds advanced in the notice of motion are that, first, substantial loss may result to the applicant if execution is not stayed as it will deprive the applicant and her children their matrimonial home. Second, that the impugned judgment and decree is legally problematic and patently unjust. Third, that the application for stay of execution has been filed without delay since the summons for execution was served on the applicant on 26th September, 2019. Fourth, that execution will render the intended appeal nugatory and academic and fifth that the applicant is able, ready and willing to issue security for the performance of the decree.
- "...... the applicant for a stay order must give security for the due performance of the decree against him. To meet the condition, the law does not strictly demand that the said security must be given prior to the grant of stay order. To us, a firm undertaking by the applicant to provide security might prove sufficient to move the Court, all things being equal to grant a stay order, provided the Court sets a reasonable time limit within which the applicant should give the same." [Emphasis added]
- For the reasons stated above, we order stay of execution of the decree of the High Court of Tanzania in Civil Case No. 155 of 2015 pending hearing and determination of Civil Appeal No. 207 of 2019 on condition that the applicant executes a bond within 14 days of delivery of this ruling.