UNLOCKING JUSTICE: A COMPARATIVE ANALYSIS OF MANDATORY SECURITY FOR STAY OF EXECUTIONIN THE APEX COURTS OF TANZANIA AND KENYA

Abstract

This article assesses the mandatory furnishing of security for the due performance of the decree in the appellate
courts of Tanzania and Kenya, focusing on its legal implications for access to justice and procedural fairness.
Strict application of this rule often poses challenges and at times, acts as a stumbling block to access justice for those who cannot afford to furnish such security. This article invokes doctrinal and comparative methodologies to examine the statutory framework, judicial precedent, and practical implications of the rule in accessing justice in both countries. While Tanzania’s approach rests on strict compliance with the requirement, Kenya’s jurisprudence demonstrates a more flexible interpretation, allowing courts to exercise discretion based on the judgment debtor’s financial capacity, depending on the situation of individual cases. The conclusion calls for legal reforms to harmonise procedural laws with the overarching objective of improving access to justice in both jurisdictions.