Sandies Baobab Beach (Away Hotel Zanzibar) vs Emmanuel Stanslaus Manyama (Civil Application No. 24 of 2025) [2025] TZCA 1309 (23 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 24 OF 2025 SANDIES BAOBAB BEACH (AWAY HOTEL ZANZIBAR) ................ ..................................... APPLICANT VERSUS EMMANUEL STANSLAUS MANYAMA ................................ RESPONDENT (Application for stay of execution of the decision of the High Court of Zanzibar, Industrial Division at Tunguu) (Suwedi, J.) dated the 22th day of September, 2025 in Industrial Application No. 31 of 2023 RULING 11*81 23rd December, 2025 NGWEMBE. J.: This application for stay of execution is made under rule 11 (3), (4), (4A) and 48 of the Court of Appeal Rules, 2009 (The Rules), In the notice of motion, the appellant seeks to stay the execution decreed by the High Court of Zanzibar, Industrial Division in industrial application No. 31 of 2023 arising from Dispute No. DHU/KA/95/2022 and the pending application for execution No. 27 of 2025 in the High Court of Zanzibar, Industrial Division. l The notice of motion is supported by an affidavit affirmed by Ali Sal urn Khamis, identified as legal officer of the applicant. The main ground averred in the affidavit is the dissatisfaction of the applicant with the decision of the High Court of Zanzibar, thus on 26th September, 2025 successfully, lodged notice of appeal to the Court. Further averred in the affidavit that if the execution is left to continue will render the intended appeal nugatory and occasion substantial loss. On security, the applicant in paragraph 9 commit to undertake adequate and sufficient security for the due performance of the award in case the intended appeal is unsuccessful. According to the record, the award whose execution is sought to be stayed was delivered by the Labour Dispute before the Dispute Handling Unit (DHU) of Zanzibar which decision was upheld by the High Court of Zanzibar Industrial Division. It is on record that the respondent was employed by the appellant on 01/10/2021 as Sales Manager on contract basis ending on 31/9/2022. In the course of his duties, the respondent on 09/07/2022 received customers at the appellant's hotel in Zanzibar, who had arranged to stay at the hotel for seven (7) days up to 15/07/2022. However, it happened that the said guests changed their mind and decided to leave on 11/07/2022 before the period previously booked. The respondent being in charge, permitted them to leave 2 without requiring them to pay an extra amount which according to the applicant was due for a customer who cancels the orders. Some exchange of information between the respondent and the General Manager occurred but eventually, on 31/07/2022 the respondent's service was terminated. The dispute was reported to DHU and upon determination, the DHU found that the termination was unfair and awarded six months remuneration as compensation which amounted to 7ZS. 7,800,000.00. The applicant's application for review before the Industrial Division of the High Court of Zanzibar was dismissed on 22/09/2025. A notice of appeal to this Court was duly lodged on 26/09/2025. However, on 04/11/2025, the applicant's counsel was served with application for execution No. 27 of 2025 in which the respondent seeks for attachment and sale of the applicant's premises at Zanzibar namely Baobab Beach Hotel (Away Hotel Zanzibar) and Diamond Mapenzi Beach Hotel for the satisfaction of an award of TZS. 7,800,000.00, hence the instant application for stay of execution. On the hearing date of this application, on appearance, Mr. ALI SALUM KHAMIS represented the applicant and the respondent entered appearance in person unrepresented. When the applicant was invited to 3 elaborate on the application, Mr. Khamis was brief that the applicant has complied with all relevant requirements provided for under rule 11 of the Rules and the applicant is committed to provide security as per Court order. Thus, he prayed the orders sought in the notice of motion be granted. In response, the respondent objected the application based on time frame that it was lodged in Court out of time. He pointed out that the execution process is in motion and is scheduled for hearing on 16/12/2025, hence this application should be dismissed. The applicant's counsel on rejoinder, rightly reckoned from the date of service and replied that the application was filed within 10 days from the service of the application for execution. I have paid a considerable review of the grounds in the notice of motion, the contents of the affidavit in support to the application and the arguments of both parties. I find this application was lodged in Court timeously. I will give reasons by making reference to rule 11 of the Rules. It is settled in our jurisdiction that the application of this nature must comply with rule 11 of the Rules, including provision of good cause for stay of execution (rule 11 (3)); time frame of filing the application to the Court is within 14 days (rule 11 (4)), disclosure of substantial or irreparable loss in case the order for stay of execution is not granted together with firm commitment to provide security (rule 11 (5), and provision of requisite documents including notice of appeal, copy of the court decree or order appealed from, a judgment or ruling appealed from and a notice of the intended execution (rule 11 (7)). It is also settled law that those preconditions must cumulatively be complied with, otherwise the Court may not exercise its discretionary powers to grant stay of execution. See; DRTC Trading Company Ltd v. Malimi Lubatula Ng'holo & Another (Civil Application No. 89 of 2020) [2022] TZCA 352 (15 June 2022). In respect of this application, the record exhibits that the application for execution was served to the applicant on 04/11/2025 and the present application was lodged in Court on 14/11/2025, thus in compliance with rule 11 (4) of the Rules. In this point, the respondent misconceived to object the application based on time frame. Therefore, this objection is unmerited. The decisive issue in this application is whether the applicant has complied with all requirements provided for under rule 11 of the Rules. As alluded to above, rule 11(3) of the Rules demand the Court to grant an order for stay of execution upon shown good cause and in rule 11 (5) 5 the applicant is bound to satisfy the Court on expected sufferings or substantial loss which may not be recoverable by monetary compensation. It is common ground, although the powers of the Court to order stay of execution is discretionary, it is precluded from granting such orders where the applicant has failed to disclose substantial loss. Rule 11 (5) of the Rules is relevant in this application, I reproduce as follows: ” 11(5) No order for stay of execution shall be made under this rule unless the Court is satisfied that- (a) substantial loss may result to the party applying for stay of execution unless the order is made; (b) security has been given by the applicant for the due performance of such decree or order as may uitimateiy be binding upon him /' (emphasis added). In this application, the applicant in paragraphs 7 and 8 of the affidavit averred as follows: "7 . That the appiicant is intending to appeal against the Order of the High Court, any execution which may occur will render nugatory the intended appeal and will defeat the very 6 "Showing substantial ioss to be suffered is key element under Rule 11 of the Rules. Therefore, unless details and particulars of loss are specified, there is no basis upon which the Court could satisfy itself that loss would be incurred." In both cases above, the applications were dismissed for failure to exhibit substantial loss. Equally important is the decision of the Court in the case of Tanzania Ports Authority v. Pembe Flour Mills Ltd, (Civil Application No. 78 of 2007) [2009] TZCA 284 (1 January 2009), where the Court observed that: "Irreparable loss must Imply among other things, ioss which is irrecoverable in any form or manner, including damages or other monetary recompense." The above excerpt remains the good position of law to date in regard to irreparable loss. In the instant application, there is no explanation on how the applicant will suffer irreparable loss for payment of TZS. 7,800,000/= to the respondent. There is also no explanation if at all the respondent will not be available to attend the intended appeal and or fail to pay such amount of money in case the appeal is successful. In any event, the applicant has failed to demonstrate irreparable loss in case the execution is not stayed pending final disposal of the intended appeal. 8 I am of the strong view that although the applicant in this application has fulfilled other legal requirements like commitment to provide security, the law requires cumulative fulfilment of all requirements which the applicant has failed. In view of the foregoing reasons, I am of the considered view that this application is not merited and same is dismissed. Since this is a labour matter, each party to bear costs. DATED at DAR ES SALAAM this 23rd day of December, 2025. P . J. NGWEMBE JUSTICE OF APPEAL Ruling delivered virtually this 23rd day of December, 2025 in the presence of Mr. Ali AN Salum Khasim, learned counsel for the applicant, the respondent who appeared in person and Miss. Christina, Court Clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 9