Stay of execution in Tanzania (guide + sample application)

This post covers everything you need to know about Stay of execution in Tanzania

Here you will learn

• what is a stay of execution
• How to apply for a stay of execution
• grounds for stay of execution
• Sample application for stay of execution
• etc

Let gets started

What is a stay of execution

A stay of execution refers to an order by a court to temporarily suspend the execution of a judgment or other court order.

An aggrieved party in a civil lawsuit has the right to ask the court for an order preventing the decree-holder from carrying out any court-related order.

This is always done so that a party who has been wronged can file an appeal, review, or revision at the higher court without having the judgment’s execution have any consequences.

Stay of execution in Tanzania

In Tanzania powers of the court to stay the execution of decree are provided under Order XXI Rule 24.-(1)  of The Civil Procedure Code Cap 33 which provides as follows

court to which a decree has been sent for execution shall,  upon sufficient cause being shown,  stay the execution of a 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 relating to the decree or execution which might have been made by such court of the first instance or appellate court if execution had been issued thereby, or if an application for execution had been made thereto.

Order XXI Rule 24.-(1)

Where the property or person of the judgment debtor has been seized under an execution, the court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application. 

Order XXI Rule 24.-(2)

Before making an order to stay execution or for the restitution of property or the discharge of the judgment debtor,  the court may require such security from, or impose such conditions upon,  the judgment debtor as it thinks fit.

Order XXI Rule 24.-(3)

How to apply for a stay of execution

Stay of execution, as any other normal application is made through chamber summons supported by an affidavit to the court to which a decree has been sent for execution

An application for a stay of execution must follow the legal requirements for format and be submitted without undue delay.

The specifics of a case will determine the duration that may be deemed reasonable.

In its ruling in the case of Loswaki Village Council and Another v. Shibesh Abebe [2000] TLR 204, the CAT said that “in a very simple case, a period of one to two months would be reasonable”.

The important thing to consider during this application is enabling the provision of the law which will move the court to entertain your application.

A party cannot apply for a stay of execution of a decree which he is not intended to appeal against- see AWINIA MUSHIVs. TROPICAL PESTICIDES RESEARCH INSTITUTE CIVIL APPLICATION NO. 2 OF 2006- COURT OF APPEAL OF TANZANIA AT ARUSHA

Grounds for a stay of execution

Before the court can order a stay of execution, some guidelines or general standards must be met.

The grounds for a stay of execution in Tanzania, as espoused by the CAT in the case of Tanzania Electric Supply Company (Tanesco) v. Independent Power Tanzania Ltd (IPTL) and Two Others [2000] TLR 324, are:

• whether the appeal has a prima facie likelihood of success
• whether its refusal is likely to cause substantial and irreparable injury to the applicant
• balance of convenience.

The court’s discretion is used in deciding whether to grant or deny a stay.

The court will review the information provided in the affidavit supporting the application to determine if the applicant has presented a case justifying the exercise of discretion in favor of granting the stay.

Although the court has the power to grant or deny a stay of execution, the court must take the general guidelines or guiding principles mentioned above into account when making its decision.

Sample application for stay of execution

This is a sample application for the stay of execution in Tanzania.

This sample will enable you to see how an application of stay of execution is made.

IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

MISCELLANEOUS CIVIL APPLICATION NO…….. OF 20…

Between

……………………………………………………Applicant

And

………………………………………………………..Respondent

CHAMBER SUMMONS

(Under Order XXI Rule 27 and section 95 of the Civil Procedure Code 1966 and any other enabling provisions of the law)

LET ALL PARTIES CONCERNED, ATTEND before Honorable………………………sitting in Chambers on the ____ day of ________________ 2002 at 9:00 o’clock in the forenoon or soon thereafter as the court may direct, so that counsel for the Applicant may be heard on an application for the following orders:

That execution of the Order of the High Court of Tanzania in Civil Case No. ………….of………… dated ……………and delivered to the parties on ………………  be stayed pending determination of the application for Review

• costs of this application are in the course; and
• any other relief as the court may deem fit and just.

This Chamber Summons has been taken out at the instance of A & B, ADVOCATES, and is supported by the Affidavit of ……………………. annexed hereto, and by such other grounds as may, with the leave of the court, be adduced at the hearing of this application.

Given under my hand and seal of the court this ____ day of _______ ___

_____________

REGISTRAR

Presented for filing in Court this _____ day of _______ ___

 _____________________

REGISTRY OFFICER

TO BE SERVED UPON:

Respondent

DRAWN AND FILED BY:

A & B

Advocates

…………….

IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

MISCELLANEOUS CIVIL APPLICATION NO…….. OF 20…

Between

……………………………………………………Applicant

And

………………………………………………………..Respondent

AFFIDAVIT

I, ……………………, an adult Christian and resident of ……………….. DO HEREBY MAKE OATH and state as follows

1.That I am an advocate of the High Court of Tanzania and Courts subordinate thereto save for primary courts and I am charged with the conduct of this matter for and on behalf of the Applicant.

I make this affidavit in support of the application for, inter alia, an order to stay execution of the order of this Honourable Court in Civil Case No………..of………… contained in the Ruling dated …………………. which was delivered before the parties on ……………………., pending determination of the application for review.

2. That on ………………. this Honorable Court delivered before the parties a Ruling dated ……………….. awarding the Respondent a colossal sum of TShs. …………….. The Applicant was aggrieved by this decision and filed its application for reference on the ………………..

3. That on ………………. the Applicant’s application for reference was dismissed by the Honourable Court on the ground that it had been filed out of time. The applicant is aggrieved by the Honourable Court’s decision hence this application.

4. That the application for reference being made within time, the Applicant has filed an application for review of the dismissal order upon the following grounds:

(i) The honorable court erred in fact and in law in accepting the Respondent’s objection on limitation while in his counter-affidavit of (date) the Respondent failed to controvert the fact deponed in paragraph 4 of the Affidavit AAA made in support of the application for reference, that the ruling was delivered on …………… and

(ii)The Order dismissing the Applicant’s application for reference on the ground of limitation of time was entered into by the Honourable Court unaware of the fact that the ruling on the bill of costs, though prepared and signed by the Taxing Master on………………, was not read and delivered to the parties until …………………….

(iii)The Honourable Court made its decision in this matter without appraising itself of the court record in High Court Civil Case No. …………of …………. from where this matter had its origins.

5. In the premises, I state that this application for a stay of execution is genuine.

That save for what is stated in paragraph 2 which is based on information received from ……………………, what is stated in paragraphs 1, 3, 4 and 5 is true to my own knowledge.

Sworn at Dar es Salaam by the said ]

……………………….who is known ]

to me personally this _____ day of…….]         ______________________

Before me:

______________________________

COMMISSIONER FOR OATHS

Presented for filing in Court this ________ day of ­­­­­­_______

_____________

Registry officer

TO BE SERVED UPON:

Respondent

DRAWN AND FILED BY:

A & B

Advocates

…………….