CIVIL APPLICATION NO 39 18 OF 2024 KIGEMU TOURS SAFARI GENERAL SERVICES LTD VS TISHI SELEMANI ULIZA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 39/18 OF 2024 KIGEMU TOURS SAFARI & GENERAL SERVICES LTD...................APPLICANT VERUS TISHI SELEMANI ULIZA....................................... ...... RESPONDENT (Application for Stay of Execution of the Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) f Mlvambina, J.) dated 6th day of December, 2023 in Labour Revision No. 268 of 2023 RULING 13th & 23rd September, 2024. FIKIRINI. J.A.: This application for stay of execution is preferred under rules 11(3), (4) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicant, Kigemu Tours Safari & General Services Ltd, in his affidavit in support of the application deponed by Msalaba Kaunda Bernard, intends to challenge the concurrent decisions of the Commission for Mediation and Arbitration (CMA) and the High Court, hence this application for stay of execution pending hearing and determination of the intended appeal. The respondent contested the application through an affidavit in reply, which, despite being filed in Court, was not served on the applicant. Ms. Nyasega apologized for the omission as an oversight. Mr. Oyugi, implored that the affidavit be disregarded. On the date and time slotted for the hearing of the application, Mr. Haron Oyugi, learned advocate, appeared on behalf of the applicant while Ms. Rose Charles Nyasega, likewise learned advocate, appeared fending for the respondent. Amplifying on the application, Mr. Oyugi prefaced it by adopting the notice of motion and affidavit in support. It was his submission that i the applicant has complied with all the requirements and, under paragraph 13, has indicated that substantial loss would be suffered if this application is not granted. The assigned reason for the averment was that the respondent might not be able to pay the amount already paid to him in the exercise of executing the decree in his favour. Also, he contended that if the appeal succeeds, it will be nugatory. On the above submission, Mr. Oyugi prayed for the application to be granted. Ms. Nyasega, in her submission, was forthright and informed the Court of her intention to adopt the respondent's affidavit in reply and that while she has no qualms with the compliance to rule 11 (5) (b) on security for the due performance she had concerns with compliance to rule 11 (5) (a) that it has not been fulfilled. Her concern came from the fact that the applicant is a business entity that is still doing business and making a profit. While the applicant's business is a going concern, the respondent's employment is on hold. Challenging the applicant's averment that it might fail to recover the amount paid if the appeal succeeds is not a substantial loss in the direct sense. Further in her submission, she argued that the costs already incurred, such as engaging an advocate and all the filings, must have been over and above TZS.2,500,000/= for which the stay of execution is sought. Essentially, there would be no substantial loss warranting the grant of the application. On that note, she prayed for the application to be dismissed. Mr. Oyugi, wrapping up, urged the Court to disregard the affidavit in reply. Responding to the submission by Ms. Nyasega, he reiterated his earlier submission that the applicant would suffer a substantial loss as it would not be able to recover the money paid. Intimating the amount to be substantial and dismissing Ms. Nyasega's submission that the applicant is a going concern company without knowing the company's business status, she is not the right person to state that, insisted Mr. Oyugi. It is well settled position that the decree holder as is the o respondent, should not be denied the right to enjoy the fruits of the decision in his favour, unless there are compelling reasons for doing so. See: Mrs. Wajibu Magungu & Others v. National Bank of Commerce, Civil Application No. 176 of 2003 and Abdul Hamid Mohamed Kassam & Ahdullatif I. Murudeker v. Aman Mohamed & 2 Others, Civil Application No. 176 of 2006 (both unreported). In determining the merits of the application of this nature, the law requires that all the requirements be satisfied cumulatively. Those are the requirements under rules 11 (3), (4), (5) (a) and (b) and (7) (a), (b), (c) and (d) of the Rules. This has been our stance in several of our previous decisions, such as Joseph Soares @ Goha v. Hussein Omary, (Civil Application No. 12 of 2012) [2013] TZCA 328 (8th May, 2013; TANZLII), Gilbert Zebedayo Mrerria v. Mohamed Issa Makongoro, (Civil Application No. 369/17 of 2019) [2020] TZCA 48 (16th March, 2020; TANZLII), Lawrence Kavishe v. Enely Hezron, Civil Application No. 5 of 2012 and Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010 (both unreported) to list a few. I am invited to determine if the applicant has fulfilled all the requirements and if the application is worthwhile to be granted. In the exercise I will be guided by the propounded principles enunciated in the above cited decision. What prompted the present application was the notice of execution vide Application for Execution No. 27792 of 2023 dated 6th December, 2024, which was served upon the respondent on 19th January, 2024. This application was lodged on 2nd February, 2024, which was within the requisite period prescribed by rule 11 (3) and (4) of the Rules. The application is accompanied with all the necessary documents which are requirements under rules 11 (7) (a), (b), (c) and (d) of the rules. A copy of the notice of appeal attached marked as A-3, copies of decree and impugned judgment marked A-2 and a copy of the execution notice marked A-4. This first condition has been met. The second condition is stipulated under rule 11 (5) (a) of the Rules, that the applicant demonstrate substantial loss to be suffered if the application is refused. The applicant's concerns and reasons are that it would suffer substantial loss and would not be able to recover the amount paid in the execution of the decree. Also argued was that the respondent would not be prejudiced if this application is granted. More so, the intended appeal has an overwhelming chance of success based on the grounds of appeal to be argued. The later part of chances of the appeal's success is not one of the issue under consideration and essentially not a requirement in granting or not granting the application. In the present application neither the applicant in his averment has specified and detailed the alleged substantial loss to be suffered nor the respondent on how he is going to refund the decretal sum paid if the appeal succeeds. For ease of reference paragraph 13 of the applicant's affidavit is reproduced below:- " That the applicant stand to suffer substantial loss if this application is not granted." Ms. Nyasega, in her submission contesting the application, contended that the applicant is a going concern; therefore, no loss would be suffered if the applicant's appeal succeeds. Her assertion is unsupported, and I do not think that mindset is correct. Because the applicant is a going concern, the business could not suffer a loss. What is paramount here is fair dealing, that courts should not be instruments of unjustified enrichment to some parties and impoverishment to others by engaging in unguided executions. See: The University of Dar es Salaam v. Richard Kajuna Muzo, Civil Application No. 117 of 2001. The courts had the duty to protect both the decree-holder and the judgment debtor so long there is a proper procedure to be followed. From the averments and submissions, I find myself leaning more towards granting the application even though the amount claimed is not probably substantial to the company but could be substantial to be refunded if the appeal succeeds and the respondent's address and in his affidavit he has not shown how he is going to repay the decreed amount if the appeal succeeds. I find this ground merited. The last ground is the requirement under rule 11 (5) (b) of the Rules, that the applicant furnishes security for the due performance. The applicant has indicated willingness to furnish security, which may ultimately be binding upon it under paragraph 16 of the affidavit in support of the application. I find the willingness and commitment to be sufficient assurance that the applicant is ready to see the respondent get to enjoy the fruits of the decision in his favour. This condition is satisfied. Finally, I order a stay of execution of the decree intended to be appealed against and direct the applicant to deposit cash TZS. 2,500,000/= with interest as security for the due performance of the decree and the same be deposited with the Court within seven (7) days from the date of delivering of this ruling. It is so ordered. DATED at DAR ES SALAAM this 20th day of September, 2024. P. S. FI KIRI NI JUSTICE OF APPEAL The Ruling delivered this 24th day of September, 2024 in the presence of Mr. Haron Oyugi, learned counsel for the applicant and respondent who appeared in person; is hereby certified as a true copy of the original. — // 1 R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL