The Court granted stay under Rule 9 (2) (b) on condition that the applicant deposited
the decretal amount in court. The applicantsf counsel asserted that the applicants would suffer irreparable loss if execution
proceeds because in the event of the appeal succeeding, the respondent would not be able to refund the money. Mr. Chidowu further
cited the case of Tanzania Railways Corporation versus Mrs. Augusta Upendo Rweyemamu, Civil Application No. 106 of 2004, Court of Appeal of Tanzania (unreported) in which the Court granted stay of execution for the
reason that there was a serious triable issue in the intended appeal. Similarly, there is a serious triable issue in the pending
appeal, that is, the issue of awarding compensation in a prerogative cause which is unlawful so the Court should grant stay of execution pending the determination of the appeal, Mr. Chidowu asserted. The Court, the learned State Attorney
pointed out, had taken the same approach in the case of The General Manager Steel Structures and System Ltd. versus Jamila Mtunzi and Others Civil Application No. 12 of 2004 Court of Appeal of Tanzania (unreported) in which the Court stayed execution pending appeal and
observed:
gThe amount involved is quite substantial. It would be dangerous to allow such a substantial amount to be paid to such people of unknown
means of living with dubious residential contact. In the event the applicant succeeds in his appeal he can hardly recover his money
whereas if the applicantfs appeal fails, there is nothing indicating that he will not be able to pay the respondents.h
It is the prayer of the learned State Attorney that execution be stayed pending appeal
against the decision of the High Court because in the event of the appeal succeeding, the applicants will pay the decretal amount.
Ms. Rwechungura, learned advocate for the respondent, opposed the application on the ground that the two grounds of appeal in the
Memorandum of Appeal are silent on the decretal sum of US Dollars 21,293. which means that aspect of the decision is not contested
so execution should proceed in respect of the payment of the said sum which has been outstanding since 1989. She contended, furthermore,
that only interest on the decretal amount is challenged in ground two of the appeal so the application for stay of execution is not
sustainable in law.
With regard to irreparable loss and the balance of convenience, counsel for the respondent
urged that the respondent is pecunious in that he has property in a prime area of the City as evidenced by his certificate of occupancy
annexed to the supplementary counter-affidavit so he would be able to refund the decretal amount if the appeal succeeds. On the balance
of convenience, counsel for the respondent argued, stay of execution ought to be withheld to enable the respondent to enjoy the fruits of his decree.
The issue is whether there is ground for staying execution pending the determination of Civil Appeal No. 79 of 2005.
The two grounds of appeal reflect the applicantsf dissatisfaction with the
award of monetary damages and interest thereon in a prerogative action. The Notice of Appeal, however, shows that the applicants
are challenging the whole decision in Miscellaneous Civil Application No. 103 of 2000 which means the applicants are challenging
the award of Shs. 30 million as well as US Dollars 21,293. to the respondent.
The learned State Attorney submitted that the applicants will suffer irreparable
loss if execution is not stayed pending the determination of appeal in that the respondent would not be able to refund the decretal
amount if he loses the appeal. Counsel for the respondent, however, maintains that the respondent has a sound
financial footing and property under the certificate of occupancy annexed to the respondentfs supplementary affidavit so he
will be able to refund the decretal amount if the appeal is determined against him. She maintained that the respondent should, therefore,
not be deprived of the fruits of his decree considering that the restoration order of the US $ 21,293. was upheld in Criminal Appeal
No. 17 of 1990 after it was issued on the 8th November, 1989 by the District Court.
As rightly observed by the learned State Attorney, the said certificate of occupancy
bears no valuation certificate to show that the property thereon, i.e. Plot No. 33/1 Block AA Mchikichini, Ilala, Dar-es-Salaam can
stand as security for the decretal amount of over Shs. 50 million shillings. On the contrary, if stay of execution is granted, the
applicants would have no difficulty discharging the decretal amount plus interest thereon if the appeal fails. On the balance of
convenience, therefore, stay of execution is granted as prayed.
Costs to abide the result of the appeal.
DATED at DAR ES SALAAM this 27th day of September, 2005.
.RTF of original document