Automated Summary
Key Facts
This case involves a land ownership dispute between Mohamed Ally Rashid (applicant) and Mkejina Athuman Mabuku (first respondent) over a surveyed plot in Mwananyamala, Kinondoni District. Both parties claimed allocation of the same plot by Kinondoni Municipal Council (second respondent). The High Court (Land Division) ruled in favor of Mabuku, leading to a revocation of Rashid's title. Rashid appealed and sought a stay of execution, arguing he would suffer substantial loss if forced to vacate the premises (claimed as a matrimonial home). The Court of Appeal granted the stay pending appeal, conditional on a Tshs.40,000,000 bank guarantee within 30 days.
Issues
- The court assessed the adequacy of the applicant's undertaking to provide a bank guarantee of Tshs.40,000,000/= as security, noting that a firm commitment without immediate payment could suffice for granting the stay.
- The court considered whether the applicant's claim of substantial loss due to potential eviction from the disputed plot (argued to be a matrimonial home) met the threshold for a stay of execution, despite respondents' contention that the premise is commercial.
Holdings
The Court of Appeal granted the application to stay the execution of the High Court decree pending the hearing and final determination of the intended appeal. The court found that the applicant satisfied all cumulative conditions under Rule 11 of the Tanzania Court of Appeal Rules, including timely application, potential substantial loss from being rendered homeless, and willingness to furnish security (a Tshs.40,000,000 bank guarantee within 30 days). The ruling also noted the disputed premise's use as a matrimonial home despite respondents' claims of commercial use.
Remedies
- The Court granted a stay of execution pending the hearing and final determination of the intended appeal, subject to the applicant depositing a bank guarantee of Tshs. 40,000,000/= within 30 days from the date of delivery of this Ruling.
- The Court ordered that each party shall bear their own costs associated with the application.
Legal Principles
The Court of Appeal applied Rule 11(3), (4), (5)(a)(b), and (7)(a)-(d) of the Tanzania Court of Appeal Rules 2009 to assess the application for a stay of execution. It emphasized that applicants must cumulatively demonstrate: (1) timely application within 14 days of execution notice; (2) imminent substantial loss (here, potential homelessness); and (3) willingness to furnish security for the decree's performance. The court cited precedents like Nicholas Lekule v. Independent Power Ltd [1997] TLR 58 and Gilbert Zebedayo Mrema v. Mohamed Issa Makongoro (unreported) to affirm that irreparable harm must be shown, and security undertakings need not be immediate but must be firm. These principles were used to grant the stay on condition of a Tshs.40,000,000 bank guarantee.
Precedent Name
- Joseph Anthony Socres @ Goha v. Hussein Omary
- Mohamed Masoud Abdallah and 16 Others v. Tanzania Road Haulage
- Hydrox Industrial Services Ltd and Another v. CRDB (1996) Ltd and 2 others
- Mantrac Tanzania Ltd v. Raymond Costa
- Prime Catch Exports Limited and 2 Others v. Ongujo Wakiara Nyamarwa
- Nicholas Lekule v. Independent Power Ltd and Another
- Mohamed Rajuu Hassan v. Almahri Mohsen Ghaled and 2 Others
Cited Statute
Tanzania Court of Appeal Rules, 2009
Judge Name
- I. J. MAIGE
- W. B. KOROSSO
- R. K. MKUYE
Passage Text
- We are satisfied that the applicant has sufficiently shown that should the application not be granted, he will suffer substantial loss in that he will have to vacate the premises and be rendered homeless.
- In relation to the first requirement of time limitation, Rule 11(4) provides that: 'An application for stay of execution shall be made within fourteen days of service of the notice of execution on the applicant by the executing officer or from the date he is otherwise made aware of the existence of an application for execution'.
- Each party should bear his/her own costs.