In Misc. Civil Cause No. 124 of 2004, the father of the infant was not a party, but
the applicant herein was the objector in those proceedings. The applicant, having lost in the High Court, has now come before this
Court by way of revision resisting the order of the High Court giving custody of the infant to the biological father. Pending hearing
of the application for revision, the applicant filed this application for a stay order. It is supported by an affidavit affirmed
by the applicant which reads in part as under ?
g1. That I was the objector in Adoption Proceedings filed in the High Court of Tanzania as Misc. Civil Cause No. 124 of 2004.
4.
That although the petition was dismissed as per my objection, the court went further and ordered me to give the infant to Jayprakash
Indirarai Jani.
5.
That I have stayed with the infant since his birth when his mother passed away.
6.
That there has never been application by Jayprakash Indirarai Jani to have the custody of the infant.
7.
That I have never been called upon to say why I should continue caring for the infant.
9.
That pending the determination of the application, it is convenient to the infant that he stays where he is to avoid frequent change
of custody in the event the application succeeds.h
The main complaint by Mr. Mkoba, learned advocate for the applicant, is to the effect that the respondent in this application was
not a party in the proceedings before the High Court, and therefore the status quo should be maintained pending the final determination
of the revision proceedings. The learned advocate added that the infant is hardly two years old and has been in the custody of the
applicant up to now.
The respondent, Jayprakash Indrarai Jani, in his affidavit in reply, stated, inter alia ?
g1. That I am the respondent and biological father of an infant, one Abhishek Jayprakash who is the subject of this application and
therefore c0nversant with the facts I am about to depose.
4. That I take note of the contents of paragraph 4 of the applicantfs affidavit and further state that the court by its inherent
powers rightly placed the infant son to my custody.
5. That I admit the contents of paragraph 5 of the applicantfs affidavit, though I do not admit that I consented to that kind
of affair as the applicant disposed me my infant son at the time of bereavement.
6. That I further state that the infant was retained by the applicant forcefully to the extent that I and the applicant became foes.h
In his submissions, Mr. Lloyd, learned advocate for the respondent, submitted that
the applicant had not established any compelling reasons to warrant the Court to grant a stay order as prayed. He added that the
respondent was not a party to the adoption proceedings in the High Court and therefore the proper parties in this application should
have been those who appeared before the High Court.
At the centre of the dispute in this application is what I may call the interim custody
of an infant, reportedly two years old. The respondent herein was not a party in the adoption proceedings in the High Court. This
has not been controverted by the applicant. In fact she has raised it as an issue. With respect, I decline to resolve it in this
application. It should be argued in the substantive application for revision. My immediate concern now is who should have the custody
of the infant pending the hearing and determination of the application for revision. I am aware that an applicant for stay should
demonstrate exceptional reasons to warrant the Court to exercise its judicial discretion. There are myriad circumstances that could
constitute grounds for stay, each case depending on its own facts. In the instant application common sense dictates that the applicant
for the time being, should continue to have the custody of the infant. It is not in the interest of the infant to be moving around.
I therefore grant the application. Costs to be in the cause.
DATED at DAR ES SALAAM this 3rd day of May, 2006.
.RTF of original document