NA TZCA Dar es Salaam Stecy4

IN THE 'JOURT OF A:?F~AL or T:\.NZANIA AT MWANZA BK CIVIL APPLIC~TION N0o5 OF 2001 i M.'lTHIAS RWEYEMAMU O O O O O ~ 0 0 0 o O ~ ? 0 0 0 0 0 0 0 1PPLICANT GENSRAL MANAGER KCU (1990) LIMITED QOOO RESPOND~T (Appeal from the judgment and decree of the High Court of Tanzania At Bukoba) . (Mtotela? PRM Extended Jurisdiction) dated the 24th day of October,2001 in Civil Appeal Noo4 of 2001 RULING This is an application for stay of execution in Civil Appeal Noa4 of 2001 .in the Court of Resident Magistrate at Bukoba in which Mtotela~ Principal Resident Maf.istrate, Extended Jurisdic._tion, nullified the Proceedings, Decree and Orders of Bulrnba District Court in 0ivil Application No~S of 2000 on the ground that the trial magistrate did not comply with the provisions of Order VIII Rule 14 (2) -vb) of the 1966 Procedure Code., The ap-pellate Principal Resident Magistrate ordered that the suit be heard afresh by another magistrate of competent jurisdiction., The applicant intends to appeal to this Court agAinst the 2 i I Order·of the learned appe~late magistrateo Meanwhile h~- brought the present app lication to preN'ent the 1 I respondent 1 his ex-employer from recovering the employment benefits,.paid to the applicant in satisfaction of the Decree of the trial courto:· In his affidavit in support of the· application, the applicant stated that he h$.s already lodged ·a Notice of Appeal to the Court of AppJalo He further aeponed to the affidavit that he has also lfitea an application for leave to appeal t6 the Court of Appeal I of 'I•anzania., He stated furthermore~ that if execution is not stayed and the 1 respondent decides to recla _irri, before the intended appeal, the employm~nt benefits pa.id, to him on the 12th October.,2000, I . he will suff!er irreparable loss., greater har.dship and I inconvenience than the resp9.ndento The applicant complained that the respondent has bee~ harassing him by uaing the police in an attempt to recover the money paid to the I appell3.nt in s9.tisfaction of the Decree of the District J Court., Hence the application for stay of execution pending the determination of the intended appeal to this court" ·' Mro Mpoki, learned advpcate, represented the2 respondent" He denied that the respondent has been m3.king attempts to re~over the money paid to the applicmto It is the contention .l of the counsel for the respondent that the appellate magistrate 1 s I Decree conferred no executabl~ rights on the respondent so ; I the lat;ter cannot claim a r~fund of th2 money paid to the ' I applicant to satisfy tbe Decree of the District Court .. I - ;3 I I I Counsel for the respondent prayed that the application be dismissed with costs because it is frivolous and devoid of merito There are thr0e conditions for staying execution namely that- i (a) the applicant has, prima facie, a I likelihood of succeeding in the I intended appeal; I (b) withholding stay of execution is likely l to cause subdtantial and irreparable I injury to the applicant; and (c) on the balance of convenience, the I applicant will suffer gre~ter hardship i than the respondent., I I The above ingredients for an application for stay of execution were elucidated in the case of 8tanbic Bank I I Tanzania Ltdo Versus Woods 18.nzania Ltdo Civil Application J Noo146 of 2001, Court of Appeal of TanzJ:J.I1ia (unreported)o I I The said case is, however, qistinguishable from the present 1 case in that in the Stanbic I case, the decree had not yet I been executed in favour of the respondento The present case is different in the.t execution has been conducted but the applicant brought the 9-pplication to pre-empt the respondent from r2claiming employment benefit money paid to him in terms of the Decree of the District Courto l 3 Counsel for the respondent prayed th~t the application be dismissed with costs because it is frivolous and devoid of merit., There are three conditions for staying execution namely that- (a) the applicant has, prirna facie, a likelihood of succeeding in the intended appeal; . ) (b) withholding stay of execution is likely to cause substantial and irreparable injury to the applicant; and ( c) on the balance of convenience, the applicant will suffer greater hardship than the respondent., The above ingredients for an application for stay of execution were elucidated in the case of 3tanbic Bank Tanzania Ltdo Versus Woods TRnzania Ltdo Civil Application No.,146 of 2001 7 Court of Appeal of TanzBnia (unreported)o The said case is, however, distinguishable from the present case in that in the 8tanbic case, the decree had not yet been executed in favour of tbe responcento The present case is different in that execution has been con~ucted but the applicant brought the application to pre-empt the respondent from reclaiming employment benefit money paid to him in terms of the Decr2e of the District Courto /o o04