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2024 TZCA 391 (30 May 2024)
2024 TZCA 391 (30 May 2024)
2024 TZCA 391 (30 May 2024)
AT MWANZA
(Application for stay of execution of the judgment and decree of the High
Court of Tanzania at Mwanza)
(Morris. J.^
RULING
Tanzania Court of Appeal Rules, 2009 (the Rules). The supporting affidavit
brothers appeared before the District Land and Housing Tribunal for Mwanza
The appeal to the High Court by the applicant herein was fruitless. He thus
thought the High Court slept into an error. A notice of appeal was therefore
lodged by the applicant on 11th October, 2023. On 2nd April, 2024 the
April, 2024 in an Application for Execution No. 406 of 2023. This move of
the respondent awaken the applicant to initiate the instant application for
applicant unpresented whereas the respondent, who was also present, had
regarding the propriety of the application if at all it had complied with rule
in which the applicant deposed to have been served with the notice of
execution on 2nd April, 2024 such that, in his argument, having this
application in place on 15th May, 2024, the application is well beyond the
fourteen (14) days prescribed under the cited rule. He thus urged me to
pendency of the application for execution which was due for hearing on 8th
April, 2024, reached him on 2nd April, 2024. That besides, his insistence was
that, the application was within time because the notice of execution was
fixed to his house door on 8th May, 2024. To him therefore, time to file
application for execution starts to run from date the alleged notice of
execution was fixed to his house door. This, in his argument, is what
prompted him to file an application for execution on 15th May, 2024 thus
meeting the threshold of fourteen (14) days prescribed under sub rule (4)
of rule 11 of the Rules. He could not therefore find any merit to the objection
application for stay of execution was lodged within time. In terms of rule
within fourteen (14) days following receipt of the notice of execution or from
the time when the applicant became aware of the existence of the intended
This being the legal position, as conceded by the applicant, the notice
informing the applicant that the application for execution was scheduled for
hearing on 8th April, 2024 reached him on 2nd April, 2024. This is to say,
from this latter date, the applicant became aware that the respondent herein
date, that is 8th April, 2024 he entered appearance before the District Land
and Housing Tribunal through which the application for execution was to be
execution notice on 8th May, 2024 is without substance. His affidavit is silent
regarding the fixed notice any way. What therefore has been attached in
to any paragraph in the said affidavit, do not have any bearing to the
application. As argued by the respondent's counsel, application for stay of
execution initiated on 15th May, 2024 from 2nd April 2024 when the applicant
was served with summons for hearing of an application for stay of execution
The two rivals being brothers, it is in the interest of justice not to prescribe
an order as to costs.
It is so ordered.
G. J. MDEMU
JUSTICE OF APPEAL
The Ruling delivered this 30th day of May, 2024 via video linked from
Court of Appeal Dar es Salaam to Mwanza in the presence of the applicant and
the original.