Mint Master Security Tanzania Ltd versus Kunduchi Beach Hotel and Resort; Commercial Case No 79 of 2008: High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).
- Civil Procedure
- Execution – applying for execution while there is a notice of appeal- whether proper.
- Execution – Execution has two stages, the first stage will always be granted.
Held:-
(i) A party wishing to have a decree executed while there is notice of appeal or an appeal pending in the High Court must show sufficient cause as to why execution should be ordered to proceed notwithstanding the pendency of an appeal. Such cause may include inaction on the part of the would be appellant or applicant to have the appeal or an application processed, deliberate hiding or removing from the jurisdiction of the court the properties subject to attachment and sale in execution process e.t.c.
(ii) In determining such application court must act prudently in order to avoid treating a notice of appeal or an appeal as automatic stay.
(iii) Execution has two stages. The first stage is a purely judicial procedure where the decree holder would lodge an application for execution of his decree. The law applicable here is Order XXI Rule9 and 10 of the CPC (Cap 33 R.E. 2002). Under this procedure and unless there is an order for stay of execution the application for execution of a decree will normally be allowed as of right.
The second stage is an execution stage and this is subsequent to the issuance by the court an execution order. This stage is mainly administrative as it involves signing of the documents authorizing execution to be carried out. The officer involved is the Registrar (now the Deputy Registrar) and some officers in the registry. It is at this stage where the process of execution can be halted by the mere fact that there is a pending process in the Court of Appeal and there is no delay by the judgment debtors in pushing forwards the process.