| dc.description | SERENGETI BREWERIES LIMITED vs. JOSEPH MAIGE MASHAURI
COURT OF APPEAL OF TANZANIA AT MOSHI (Juma, CJ, Kitusi and Makungu, JJ. A)
CIVIL APPLICATION NO. 271/05 OF 2019
(Application from the Ruling and drawn Order of the High Court of Tanzania, (Labour Division) at Moshi, Mipawa, J., dated 15th day of July, 2016 in Labour Revision No. 13 of 2015)
Court of Appeal Rules – Notice of motion – Application for Stay of Execution – Conditions – Whether the Rules specified the conditions for the Court to issue an order for stay of execution.
This is an application for Stay of Execution from the Ruling and drawn Order of the High Court of Tanzania, (Labour Division) at Moshi, for payment of decretal sum. The Applicant filed the application prayed the Court to issue a stay of execution pending hearing of appeal, and contended that if the intended execution proceeded and the respondent paid the decretal sum, he may not have the wherewithal to refund the money should the applicant win the appeal, thereby resulting in a substantial loss to the latter. The applicant submitted that rule 11(5) of the Rules specified two conditions for the Court to issue an order for stay of execution; one, that substantial loss may result to the party applying for stay of execution unless the order is made and two, security has been given by the applicant for the due performance of such decree. At the hearing of the application, the respondent did not enter appearance and did not file an affidavit in reply to contest the application. Hence the averments in the applicant’s affidavit supporting the notice of motion have gone uncontested. So, the issue for determination in Court was whether the application has merit.
Held: (i) Conceivably, once the deposited funds are released to the respondent, they may not be easily recoverable from the respondent who is an individual with no known assets in the event that the applicant succeeds in its intended appeal. Given these circumstances, the Court satisfied that the application has merit and granted it.
(ii) Court ordered the stay of the intended execution of the order of the High Court of Tanzania, Labour Division at Moshi (Mipawa, J.) dated 15th July, 2016 in Revision No.13 of 2015 pending hearing of the intended appeal.
Application allowed.
Statutory provisions referred to:
• The Court of Appeal Rules, 2009 under rules 11 (5), 63(2).
Mr. Ally Hamza, for the Applicant.
RULING OF THE COURT
22nd day of September, 2022.
At the hearing of this application for stay of execution, Mr Ally Hamza, learned advocate, represented the applicant whereas the respondent though duly served with the notice of hearing through TUICO Office on 9/9/2022, did not enter appearance thus, the hearing of the application proceeded in his absence under rule 63(2) of the Tanzania Court of Appeal Rules, 2009 as amended (the Rules).
Submitting in support of the application, Mr. Hamza commenced his submission by fully adopting the contents of the notice of motion, the two supporting affidavits one sworn by Mr. Nuhu Mkumbukwa, an advocate acting for the applicant and the other sworn by Mr. Gwandumi Mwangombe, the Legal Manager of the applicant and the applicant's written submission. He then briefly submitted that rule 11(5) of the Rules specified two conditions for the Court to issue an order for stay of execution; one, that substantial loss may result to the party applying for stay of execution unless the order is made and two, security has been given by the applicant for the due performance of such decree.
Mr. Hamza relying on the contents of the notice of motion and the accompanying affidavits, urged the Court to issue a stay of execution pending hearing of the appeal. He contended that if the intended execution proceeded and the respondent paid the decretal sum, he may not have the wherewithal to refund the money should the applicant win the appeal, thereby resulting in a substantial loss to the latter. He also contended that the applicant has already deposited the decretal sum in the High Court's bank account maintained by the Bank of Tanzania to cover for payment of the decretal sum in case the intended appeal fails. He prayed the application be granted.
On the other hand, the respondent did not file an affidavit in reply to contest the application. Hence the averments in the applicant's affidavits supporting the notice of motion have gone uncontested.
We have examined the notice of motion and taken account of the founding affidavits and all its annextures in the light of the submissions made by Mr. Hamza. It is noteworthy from attached copy of the summons in respect of the application for execution that the respondent moved the High Court, Labour Division at Moshi for the payment of the decretal sum. Conceivably, once the deposited funds are released to the respondent, they may not be easily recoverable from the respondent who is an individual with no known assets in the event that the applicant succeeds in its intended appeal. Given these circumstances, we are satisfied that the application has merit and we grant it.
Thus, we order stay of the intended execution of the order of the High Court of Tanzania, Labour Division at Moshi (Mipawa, J.) dated 15th July, 2016 in Revision No. 13 of 2015 pending hearing of the intended appeal. We make no order as to costs since this is a labour matter.
It is so ordered.
DATED at MOSHI this 22nd day of September, 2022.
H. JUMA
CHIEF JUSTICE
P. KITUSI
JUSTICE OF APPEAL
O. O. MAKUNGU
JUSTICE OF APPEAL | en_US |
