Court throws out appeal in mining partnership case

THE Court of Appeal has refused to stay a High Court judgment for dissolution of partnership of a mining plot between two persons and payment of 400m/- special damages.

Justices Nathalia Kimaro, Salum Massati and Batuel Mmila ruled against one Antony Ngoo and Davis Antony Ngoo after dismissing with costs the application for stay of execution of the judgment issued by Judge Kakukulo Sambo at the High Court in Arusha on October 12, last year, in favour of Kitinda Kimaro.

“Since the applicants (Ngoo) have not shown that they will suffer substantial loss and have not furnished security, nor given guarantee of security, the application for stay of execution lacks merits and is dismissed with costs,” the justices ruled.

The Justices noted that nowhere in the grounds for filing the notice of motion nor in the affidavits supporting the application have the applicants averred that they would suffer loss, let alone substantial loss.

What the applicants averred, they noted, was that they would be more inconvenienced than the respondent (Kimaro) if the order for stay of execution is not granted.

But, the justices said under the Court of Appeal Rules, such assertion was no longer a requirement for granting stay of execution. “What the applicants were required to show was the loss they will suffer as compared to the loss that will be suffered by the respondent if the order for stay of execution is not granted. They resorted to the old position which no longer applies in granting an order for stay of execution,” they said.

According to the justices, the decree forming subject of the application was a money decree arising from a mining plot. The applicants, they said, had to show to the Court the kind of loss they would suffer if execution of the decree was carried out.

In his submission to support the application in question, advocate Akonaay Sikay Muhale O’hhay- Sang’ka, for the applicants, had told the Court that his clients sought for stay of execution of the decree because they have overwhelming chances of success. He submitted that losing the mining plot would occasion loss to both the applicant and the respondent if the order of dissolution of the partnership was executed.

Advocate Mpaya Kamara, for the respondent, countered that the order for dissolution of the partnership was well stated in the judgment of the High Court. According to him, the High Court took into account the worsening working relationship between the partners.

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