AUGUST 10, 2020

STAY OF EXECUTION OF THE DECREE OF A COUR

CIVIL PROCEDURE II

KARIM MUSSA
K.G.M COMPANY LTD
MOROGORO
Today, in this we briefly scan the concept of, and the factors which the court will consider in
granting or refusing an application for, a stay of execution of the decree. Reference is made to
relevant judicial authorities in Tanzania, where need arises.

So, what is a stay of execution?

A stay of execution is a momentary suspension of a court order (encompassing rights declared in

favors of the judgment creditor/decree holder) from being carried out.

Order XXI Rules 24-27 and Order XXXIX Rule 5 are the provisions in the Tanzanian Civil
Procedure Code, Cap 33, which may be typically invoked by banking business customers who
become judgment debtors when seeking stay of execution.

A stay of execution has no air of finality about it. It only prevents a decree holder from taking
steps to enforce or execute a judgment and decree obtained in its favor.

Stays are useful where, for instance, the judgment debtor intends to or has taken further legal
action, such as an appeal to the higher court. But the appeal does not operate as a stay of
execution.

If no appeal is filed but there is the intention to do so, the intended application for stay of
execution should be made to the court that issued the decree. Once the appeal process has
commenced, the application for stay should be made to the appellant court which only can stay
execution.

When is an appeal deemed to have been commenced? With regards to a stay of execution, an
appeal is deemed to have been commenced in the Court of Appeal of Tanzania (“the CAT”)
when the notice of appeal is filed in the CAT (see, Aero Helicopter (T) Ltd v. F.N. Jansen.1

But here is a question to ponder: Where ‘leave to appeal’ is a prerequisite and it has not has
not been obtained, can stay of execution be granted?

1
[1990] TLR 142).
An application for stay of execution must conform to the format as by law prescribed and must
be made without unreasonable delay. What time may be considered as being reasonable will
depend on the circumstances of a given case.

In its ruling in the case of Loswaki Village Council and Another v. Shibesh Abebe2 the CAT
said that “in a very simple case, a period of one to two months would be reasonable”.

There are general rules or guiding principles which must be satisfied before the court can grant a
stay of execution. The principles, as espoused by the CAT in the case of Tanzania Electric
Supply Company (Tanesco) v. Independent Power Tanzania Ltd (IPTL) and Two Others.3
Are:

Whether the appeal has a prima facie likelihood of success; whether its refusal is likely to cause
substantial and irreparable injury to the applicant; and balance of convenience.

The grant or refusal of a stay is an exercise of the court’s discretion. In determining whether the
applicant has made a case meriting the exercise of the discretion in favour of granting the stay,
the court will examine the facts disclosed in the affidavit supporting the application.

Although the grant or refusal of a stay of execution is at the discretion of the court, the court
must consider the general rules or guiding principles highlighted above in arriving at a decision.

Ultimately, a clear understanding of the law and procedure applicable to the concept of stay of
execution is necessary, so as to convince the court to decide in a party’s favour. The exercise of
the court’s discretion notwithstanding, the duty of the court remains to do justice according to the
law.

2
[2000] TLR 204.
3
[2000] TLR 324.