Farida mbarak & another v. Domina Kagaruki Civ no 79 of 2006

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 79 OF 2006

In the Matter of an intended Appeal

FARIDA MBARAK

FARID AHMED MBARAK………………………………..APPLICANT

AND

DOMINA KAGARUKI………………………………..…RESPONDENT

(Application for Stay of execution from the

Decision of the High Court of Tanzania at Dar es Salaam)

(Kileo, J.)

Dated the 21^st day of April, 2006

in

Land Case Civil Appeal No. 51 of 2004

-------------

RULING

8^th Sept. & 19^th Oct. 2006

MUNUO, J. A.:

The Co-applicants, Farida and Farid Mbarak, through the services of Mr. Silyster Shayo and Mr. Nyangarika, learned advocates, are seeking an order for stay of execution of the decision in Land Case No. 51 of 2004 in the Land Division of the High Court of Tanzania before Kileo, J., pending the determination of an intended appeal to this Court.  The respondent, Domina Kagaruki, was represented by Mr. Rwebangira, learned advocate.

Mr. Shayo adopted the affidavit’s of Mr. Farid Ahmed Mbarak, Mr. Kassim Nyangarika, and a supplementary affidavit in support of the application for stay of execution.

The 2^nd applicant, Farid Ahmed Mbarak, stated at paragraph 3 of this affidavit that he bought the suit property for Sh. 28 million from the Liquidator of AISCO and that the respondent possesses part of the land in question.  He deponed at para 4 of his affidavit that the decision of the High Court deprives him of the property he purchased without compensation which is against human and constitutional rights.  He stated at paragraph 5 of his affidavit in support of the application for stay of execution, that his intended appeal has good chances of success so the application for stay should be allowed.

Mr. Nyangarika attacked the decision of the High Court from which the applicants have lodged a notice of Appeal and also applied for leave to appeal to this Court.  He stated at paragraph 11 of his affidavit that the applicant will suffer irreparable loss if stay of execution is not granted for the results of the intended appeal will be nugatory if the said appeal succeeds.  In the supplementary affidavit in reply to the Counter-affidavit of the respondent, the 2^nd applicant denied alleged forgery and fraud in the sale transaction.  In short counsel for the applicants urged the Court to grant stay of execution because on the balance of convenience, the applicants stand to suffer irreparable loss and greater hardship than the respondent if stay of execution is withheld.

Mr. Rwebangira, learned advocate, opposed the application.  He contended that there is no ground for granting stay of execution because the applicants did not particularize the irreparable loss they would suffer if stay of execution is not granted.  He cited the cases of National Insurance Corporation and another versus MECCO UNISYS LTD., Civil Application No. 102 of 2004, Court of Appeal of Tanzania (unreported), and Murtaza Mohamed Raza Virani versus Mehboob Hassanali Versi, Civil Application No. 16 of 2005, Court of Appeal of Tanzania (unreported) wherein the Court listed the conditions for granting stay and stressed that irreparable loss should be substantiated and not merely alleged.

Counsel for the respondent opposed the idea of maintaining the status quo for the reason that the applicants demolished the respondent’s boundary wall so the latter is now rebuilding it in which case an order for maintaining the status quo would prevent the reconstruction of the border wall for security.

Furthermore counsel for the respondent contended that the intended appeal has no chance of succeeding at all so the application should be dismissed for want of merit.

The issue is whether there is ground for granting stay of execution.

The Court pronounced the conditions for granting stay of execution in the case of Tanzania Electric Supply Co. Ltd. And 2 others versus Independent Power Ltd., Consolidated Civil Applications Nos 19 and 27 of 1999, Court of Appeal of Tanzania (unreported).  The factors for granting stay of execution are three:

(a) “That the applicant would suffer  irreparable loss if stay of execution is withheld;

(b) that there is a serious triable issue in the intended appeal; and

(c) that on the balance of convenience, the applicant would suffer greater hardship than the respondent if stay of execution is not granted.”

These ingredients for granting stay of execution, in the opinion of counsel for the respondent, have not been established by the applicants so there is no ground for granting stay of execution.  In the case of Tanzania Sewing Machines Co. Ltd. versus CRDB (1996) and another Civil Application No. 9 of 1999, Court of Appeal of Tanzania (unreported), the Court observed that:

“The Court has on a number of occasions held the view that it is not sufficient to assert in general terms that the applicant will suffer irreparable loss, particulars have to be shown of the irreparable loss to be incurred.”

At paragraph 4 of his affidavit is support of the application, the second respondent stated that the decision of the High Court has deprived him of property he purchased without giving him compensation implying he will suffer loss if stay of execution is not granted.  If the problem is compensation, the same could be atoned by way of damages, if it were claimed or counter-claimed.  Be it as it may, the applicants did not specify the loss they would suffer if execution is not stayed.

Under the circumstances, there is no ground for exercising the Court’s discretion for staying execution in the present case.

In the light of the above, I dismiss the application with costs.

Dated at Dar es Salaam this 19^th day of October, 2006.

MUNUO J. A,

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

S. M. RUMANYIKA

DEPUTY REGISTRAR

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