CIVIL APPLICATION NO 79 08 OF 2024 AMANI GIRLS HOME VS ISACK CHARLES KANELA 1

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CIVIL APPLICATION NO. 79/08 OF 2024 AMANI GIRLS HOME.......................... ............. .... APPLICANT VERSUS ISACK CHARLES KANELA..... ............................ .......... RESPONDENT (Application for an order of stay of execution of the judgement and decree of the High Court of Tanzania at Mwanza) (Wambura, 3.) Dated the 26th day of February, 2014 in Labour Revision No. 24 of 2012 RULING 25th & 27th February, 2025 ■ WAMBALI. J.A.: This is an application for stay of execution of the judgement and decree of the High Court of Tanzania at Mwanza in Labour Revision No. 24 of 2012. It is noted that the applicant lost in an application for revision after the High Court revised the award issued by the Commission for Mediation and Arbitration (CMA) in favour of the respondent. It is not in dispute that the parties herein had an employer and employee relationship which went sour. As a result, the respondent filed labour complaint before the CMA claiming payment of terminal benefits and unpaid salaries. The decision of the CMA was in favour of the applicant herein. i Aggrieved by the decision of the High Court, the applicant lodged the notice of appeal in the Court on 1st November, 2023. Nonetheless, before the appeal was lodged, the respondent filed Labour Application No. 28 of 2023 for execution of the decree of the High Court in Labour Revision No. 24 of 2012. The application for execution was dully served upon the applicant. The respondent intends to execute the decreed amount of TZS 16,946,667.00 being the principal sum and statutory interest at 7% per annum. Following the intention of the respondent to execute the decree, the applicant has approached the Court through this application, seeking an order for stay of execution pending the hearing of the intended appeal. The application is premised on the following grounds: "(i) There is an application for execution in Labour Execution No. 28 o f2023 where the respondent seeks to attach and sell the applicant's organization motor vehicle. (ii) Unless the order for stay is granted, there is apparent danger that all motor vehicles to be disposed by way o f sale. (iii) That the applicant undertakes to furnish reasonable security as the Court may order, taking into account that motor vehicle subject to be attached and sold are used to facilitate daily operations o f the applicant. 2 (iv) That, the applicant's stand to suffer substantial and irreparable loss because they will be condemned on matters which the High Court erred in law and facts." The application is supported by the affidavit of Agripina John, the Principal Officer of the applicant. Though the respondent was dully served with the application, which he readily admitted during the hearing, he has not lodged an affidavit in reply. It is noteworthy that, at the hearing of the application, the applicant was represented by Mr. Innocent Michael, learned advocate while the respondent appeared in person, unrepresented. Mr. Michael adopted the affidavit in support of the application and urged the Court to grant the application on the contention that, he has complied cumulatively with the conditions stated in rule 11 (5) (a) and (b) and 11 (7), as the relevant documents has been attached to the application. He added that the applicant has also complied with rule 11 (4) as she filled the application within the prescribed time after she was served with an application seeking execution of the decree of the High Court. He stated further that, the applicant has demonstrated the substantial loss that she will suffer if an order for stay is not issued as reflected in paragraph 18 of the affidavit in support of the application which state as follows: "18. That, the applicant is a Non-Governmental Organization which is taking care of vulnerable young children and adults from social economically disadvantaged households, the motor-vehicies that are listed in Execution No. 28 o f 2023 are used to support day to day activities of the Organization, if at all these motor vehicles will be sold the organization and its dwellers will suffer irreparable loss." Mr. Michael added that, the applicant has also declared her readiness to furnish security preferably in a form of a bank guarantee as the Court may order as expounded in paragraph 15 of the affidavit. The only addition was that, if the Court finds in favour of the applicant, it should consider granting her a reasonable period within which to deposit in the Court a bank guarantee for due performance of the decree sought to be stayed. In support to the application, Mr. Michael has made reference to the decisions of the Court in EcoBank Tanzania Limited v. Double A Co. Ltd & Others (Civil Application 178 of 2021) [2022] TZCA 591 (29 September 2022, TANZLII), Stanbic Bank (T) Ltd v. Sophia Majamba (Civil Application 81 of 2020) [2022] TZCA 401 (28 June 2022, TANZLII) and Luis B. Shija v. Kellu Kamo Lucas (Civil Application No. 209/14 of 2024) [2024] TZCA 675 (1 August 2024, TANZLII) emphasizing on the mandatory requirement to comply with the cumulative conditions stipulated under the provisions of rule 11 (5) (a) and (b) of the Rules. On the other hand, the respondent submitted that he had no intention to contest the application provided that the applicant fulfills the condition to furnish security for the due performance of the decree. He therefore prayed that the application be granted subject to satisfaction of the Court order. For my part, gauging from the averments contained in the notice of motion, affidavit in support of the application and annexed documents, I am satisfied that the applicant has cumulatively fulfilled the conditions stipulated under rule 11 (5) (a) and (b) of the Rules. The application was also timely filed and relevant documents has been attached consistent with the requirement under rule 11 (4) and (7) respectively. It is not doubted that through the contents of the affidavit, the applicant has clearly demonstrated how she will suffer substantial loss if the intended execution is not stayed and has also shown his willingness and undertaken to give security for due performance of the decree as may be ordered by the Court. In Jonas Ernest Mrema v. Janeth Elly Temu (Civil Application No. 5/01 of 2019) [2019] TZCA 553 (19 July 2019, TANZLII), the Court emphasized that, the conditions set in rule 11 (4) (5) and (7) of the Rules must be cumulatively satisfied. 5 In this regard, as the respondent has not contested the application provided the applicant meets the conditions set by the law, I grant the application. Consequently, I make an order for stay of execution of the decree of the High Court in Labour Revision No. 24 of 2012 pending the hearing and final determination of the intended appeal. The order is on condition that the applicant should deposit in the Court a bank guarantee of TZS 16,946,667.00 within forty five (45) days from the date of the ruling as security for due performance of the decree which may ultimately be binding upon him. In the end, considering the circumstances of the application, I make no order as to costs. DATED at MWANZA this 27th day of February, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL The Ruling delivered this 27th day of February, 2025 in the presence of the respondent in person and absence of the applicant, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 6