Court name
High Court of Tanzania

Khadija Abdallah vs Ajesh Vaja & Others () [1994] TZHC 5 (25 March 1994);

Law report citations
1996 TLR 126 (TZHC)
Media neutral citation
[1994] TZHC 5
Coram
Mkude, J.

Mkude J: A
The Dar es Salaam Regional Housing Tribunal passed a decree on 19 October 1992 under which the respondents herein were to vacate certain premises. The respondents promptly lodged a notice of appeal against the decision in the Housing Appeals Tribunal B and on 27 October 1992 they filed an application for stay of execution in the court of the Resident Magistrate at Kisutu under Order 21 Rule 24 of the Civil Procedure Code. The application was heard on 16 November 1992 and in a ruling dated 19 November 1992 the respondents herein were granted stay of execution as prayed. This application C for revision under s 79(1) proviso to Rule 2 thereof is brought by the decree holder complaining that the court of the Resident Magistrate had acted without jurisdiction and/or with material irregularity when it granted the order to stay of execution. Mr Mwajasho, learned advocate, appeared for the applicant/decree holder while Mr D Magessa, learned advocate, appeared for the respondent/judgment debtor. Mr Mwajasho urged the court to revise the ruling of the Resident Magistrates' Court and order execution to proceed forthwith.
Mr Mwajasho put forward three grounds for seeking revision of the order for stay of E execution by the Resident magistrates' Court, viz:
   (i)   that no sufficient cause was shown by the respondent as to why up to 19 November 1992 they had failed to make an application for stay to either the F court which passed the decree (ie the Dar es Salaam Regional Housing Tribunal) or to the court having appellate jurisdiction in respect of the decree (ie the Housing Appeals Tribunal).
   (ii)   that by granting an order for stay of execution for an unspecified period and G exceeding thirty days from the date of the decree (ie 19 October 1992) the Resident Magistrate's Court exceeded its jurisdiction.
   (iii)   that by entertaining the application for stay of execution when there was no appeal preferred from the decree of 19 October 1992 the court exercised its H jurisdiction with material irregularity.
The three grounds relied on by Mr Mwajasho are in accordance with the provisions of s 79(1) of the Civil Procedure Code spelling out the situations in which this court can I exercise its revisional jurisdiction. I will therefore deal with each ground in turn.

It is common ground between the parties that the Resident Magistrate's Court at Kisutu A acted in the capacity of an executing court and the respondents had made their application for stay of execution under the provisions of Order 21 r 24(1) of the Civil Procedure Code, which provides as follows:
B    `24(1) The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment debtor to apply to the court by which the decree was passed or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution or for any other order C relating to the decree or execution which might have been made by such court of first instance or appellate court if execution had been issued thereby, or if application for execution had been made thereto.'
One thing that stands out clearly in this provision is that the power of the executing court D in ordering stay of execution is very much restricted. The real power for stay of execution is vested in the court that passed the decree and the court having appellate jurisdiction in the respect of the decree. The power enjoyed by the executing court has the following limitations, inter alia-- E
   (i)   sufficient cause must be shown by the applicant why the power should be exercised by the executing court.
   (ii)   the period of stay granted must be reasonable F
   (iii)   the stay is granted only in order to enable the applicant to apply to the court which passed the decree or the court having appellate jurisdiction in respect of the decree.
After going through the ruling of the Resident Magistrates' Court dated 19 November 1992 and hearing learned counsel's arguments I am satisfied that the court erred and G the order as made cannot be left to stand.
I gather from the ruling of the Resident Magistrates' Court that the only reason stay of execution was granted is that the applicant had already by that time filed a notice of appeal in the Housing Appeals Tribunal. With due respect the mere filing of a notice of H appeal cannot amount to sufficient cause for the stay of execution by the executing court. Since the power to order stay is primarily that of the court which passed the decree or the appellate court, a sufficient explanation must be given why the application for stay is sent to the executing court and not to one of the two courts, in this case the I Dar es Salaam Regional Housing Tribunal on the Housing

Appeals Tribunal. As no such explanation was given by the judgment debtors the A executing court ought to have declined to exercise that power. Let me hasten to add that what is involved here is not a question of ouster of jurisdiction of the Resident Magistrates' Court in rent matters. The point is that as long as the Resident Magistrates' B Court acts as the executing court its powers are limited by the statutory provisions of Order 21 Rule 2(1) of the Civil Procedure Code.
Grounds two and three go together. The requirement that the period of stay of execution granted must be reasonable is tied up with the need to enable the judgment debtor to C apply to the court by which the decree was passed or the court having appellate jurisdiction in respect of the decree. It must be emphasized here that the power given to the executing court under Order 21 Rule 24(1) is not a general power of stay. That power as stated above, is enjoyed only by the court which passed the decree or the D appellate court having jurisdiction in respect of the decree under true provisions of Order 39 Rule 5. Rule 5 of Order 39 provides as follows:
   `5(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from E except so far as the Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the court may for sufficient cause order stay of execution of such decree.
   (2) Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the court which passed the decree may on sufficient F cause shown order the execution to be stayed.
   (3) No order for stay of execution shall be made under subrule (1) or subrule (2) unless the High Court or the court making it is satisfied-
   (a)   that substantial loss may result to the party applying for stay of execution unless the order is G made;
   (b)   that the application has been made without unreasonable delay; and
   (c)   that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. H
   (4) Notwithstanding anything contained in subrule (3) the court may make an ex-parte order for stay of execution pending the hearing of the application.'
I note in the present case that the order granting stay of execution is not made in order to I enable the judgment debtor to apply to the Dar es Salaam Regional Housing Tribunal or the Housing Tribu-

nal. It is an order for stay of executing pending the determination of the appeal. This A order is clearly outside the scope of the order envisaged in Order 21 Rule 24 and it is therefore ultra vires.
For the above reasons I am satisfied that the Resident Magistrates' Court exceeded its jurisdiction when it made the order for stay of execution dated 19 November 1992. The B order is hereby quashed and the decree holder is at liberty to proceed with execution of the decree until such time that a lawful order for stay of execution is issued. The applicant/decree will have his costs for this application and in the court below. C

D