| dc.contributor.author | KEREFU, J.A | |
| dc.date.accessioned | 2023-05-04T09:40:41Z | |
| dc.date.available | 2023-05-04T09:40:41Z | |
| dc.date.issued | 2021-10-12 | |
| dc.identifier.uri | http://localhost/handle/123456789/1207 | |
| dc.description | MBARALA A. MAHARAGANDE & OTHERS VS. MAHIKU A. MAHARAGANDE
COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (Korosso, Kitusi and Mashaka JJ.A) CIVIL APPLICATION NO. 489/01 OF 2021
(Application for stay of execution of the Judgment and Decree of the High Court of Tanzania (Dar es Salaam District Registry) at Dar es Salaam by Wambura J in PC. Civil Appeal No. 7 of 2009
Civil Procedure and Practice- Execution – Application for Stay of Execution- What is the time limit to file application for stay of execution?
Civil Procedure and Practice- Execution – Application for Stay of Execution- What should be contained in the application?
Civil Procedure and Practice- Execution – Application for Stay of Execution- Whether or not the applicant is required to prove all the conditions cumulatively?
Facts;
The applicants are jointly moving the Court by notice of motion for stay of execution of a decree of the High Court of Tanzania at Dar es Salaam in PC Civil Appeal No. 7 of 2009 dated 28th June 2012, pending hearing and determination of an intended appeal. They allege that the respondent failed to effect distribution of the said estate to the beneficiaries and file the necessary inventory to the court according to law. The dispute is based on allegations that as an administrator of the said estate, the respondent has failed to perform his duties properly resulting in displacement of the deceased's properties, particularly a house located on Plot No. 81/2N Block 'B' Uhuru Street near NMB Bank Morogoro Municipality
Held;
1. The applicant must lodge the application within fourteen days from the date that he was served with the notice of execution or from when he became aware of the execution proceedings in terms of rule 11 (4) of the Court of Appeal Rules, 2009.
2. The applicant must also attach to the application the notice of the intended execution and make a firm undertaking and confirm at the hearing that he shall furnish security for the due performance of the decree in terms of rule 11 (7) (d) and 11(5) (d) of the Rules.
3. The Court reinforced its earlier position stated in the case of Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010 and Mohamed Masoud Abdallah and Sixteen Others v Tanzania Road Haulage (1980) Limited, Civil Application No. 58/17 of 2016 (both unreported) among others, where it was held that application such as this all condition necessary must be proved cumulatively otherwise the application will fail.
Application dismissed with no orders as to costs
Statutory provisions referred to;
1. Court of Appeal Rules, 2009, Rules 11(4), 11(5)(d), 11(7)(d)
Case laws referred to;
1. Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010 and
2. Mohamed Masoud Abdallah and Sixteen Others v Tanzania Road Haulage (1980) Limited, Civil Application No. 58/17 of 2016 (both unreported) | en_US |
| dc.description.abstract | 1. The applicant must lodge the application within fourteen days from the date that he was served with the notice of execution or from when he became aware of the execution proceedings in terms of rule 11 (4) of the Court of Appeal Rules, 2009.
2. The applicant must also attach to the application the notice of the intended execution and make a firm undertaking and confirm at the hearing that he shall furnish security for the due performance of the decree in terms of rule 11 (7) (d) and 11(5) (d) of the Rules.
3. The Court reinforced its earlier position stated in the case of Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010 and Mohamed Masoud Abdallah and Sixteen Others v Tanzania Road Haulage (1980) Limited, Civil Application No. 58/17 of 2016 (both unreported) among others, where it was held that application such as this all condition necessary must be proved cumulatively otherwise the application will fail. | en_US |
| dc.language.iso | en | en_US |
| dc.publisher | THE COURT OF APPEAL OF TANZANIA, DAR ES SALAAM. | en_US |
| dc.subject | DAR ES SALAAM. | en_US |
| dc.title | M BARA LA A. MAHARAGANDE AND 4 OTHERS VS. MAHIKU A. MAHARAGANDE CIVIL APPLICATION NO. 469/01 OF 2021 | en_US |
| dc.title.alternative | CIVIL APPLICATION NO. 469/01 OF 2021. | en_US |
