Akiba Commercial Bank Plc vs Mbisiye Hoza Kigaza (Civil Application No. 202509170001826 of 2025) [2025] TZCA 1267 (12 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 202509170001826 OF 2025 AKIBA COMMERCIAL BANK PLC.................................................. APPLICANT VERUS MBISIYE HOZA KIGAZA............................................................RESPONDENT (Application for Stay of Execution of the Judgment and Decree of the High Court of Tanzania, Labour Division, at Dar Es Salaam) (QBiyO/L) dated 13thday of February, 2025 in Labour Revision No. 20097 of 2024 RULING 20th Nov & 12th Dec, 2025. FIKIRINI. J.A.: Akiba Commercial Bank Pic, hereinafter referred to as the applicant, seeks a stay of execution of the decree in Labour Revision Application No. 20097 of 2024 pending hearing and determination of the intended appeal. The notice of motion moving this Court is preferred in terms of Rules 11(3), 11(4), 11(4A), 11(5) (a), (b), 11(6), 11(7) (a) - (d) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), and supported by an affidavit deponed by Rahma

Lussasi, the Head of Legal Department of the applicant. No affidavit in reply was filed contesting the application. However, after three adjournments, the application was heard inter parties on 20th November, 2025. Mr. Nsajigwa Bukuku, learned advocate, appeared for the applicant, whereas Mbisiye Hoza Kigaza, the respondent, appeared in person, fending for himself. The applicant employed the respondent on a permanent contract on 30th November, 2018. After serving for nearly five years as Branch Manager, the respondent was terminated for misconduct, specifically unsatisfactory work performance. Dissatisfied with the termination, the respondent complained to the Commission for Mediation and Arbitration (CMA) under Labour Dispute No. CMA/DSM/TMK/195/2023/84/2023, alleging unfair termination. The CMA dismissed the complaint. However, upon further proceedings before the Arbitrator, the decision was rendered in favour of the respondent, holding that the termination was both substantively and procedurally unfair.

The applicant, dissatisfied with the decision, lodged a notice of appeal challenging the impugned High Court ruling in Labour Revision No. 20097 of 2024, delivered on 13th February 2025. Meanwhile, the respondent filed Execution Application No. 21846 of 2025. The applicant was duly served on 4th September, 2025, requiring an appearance and to show cause on 17th September, 2025. At the hearing, Mr. Bukuku, on behalf of the applicant, prayed for the grant of the application, submitting that all legal requirements had been satisfied: starting with timeliness, the application was filed on 17th September, 2025, well within the prescribed fourteen (14) days. On the risk of substantial loss, the applicant contended that denial of the application would result in a loss of approximately TZS 36 million. He expressed concern that the respondent, being an individual without a permanent address known to the applicant, might relocate after receiving the funds, thereby frustrating recovery should the appeal succeed.

Another aspect covered is security for due performance. The applicant affirmed readiness to furnish security in the form of a bank guarantee to ensure compliance with the decree. He further argued that granting the application would not financially prejudice the respondent. Lastly, on the compliance with procedural Rules, the applicant stated to a full compliance with Rule ll(7)(a)-(d) of the Rules, having submitted the requisite documents, including a copies of the judgment and decree, notice of appeal, and notice of execution. On the strength of these submissions, the applicant earnestly prayed for the grant of the application. The respondent, who had been out of work for almost two years and half (2 V i) years, contested the grant of the application on the ground that the application was lodged out of time, since the notice of Execution was issued on 28th August, 2025 and not September as submitted. In addition, he claimed to have been hugely affected financially, so urged the Court to consider that.

In a brief rejoinder, the applicant's counsel maintained that the application was timely filed as the Execution notice was served to the applicant on 4th September, 2025 and not 28th August, 2025 as alleged. The present application followed on 17th September, 2025, which was timely. He signed off by reiterating his earlier prayer that the stay of execution prayed be granted. For the Court to grant an application for stay of execution, all the conditions stipulated under Rules 11(3), 11(4), 11(4A), ll(5)(a) & (b), and ll(7)(a)-(d) must be cumulatively satisfied. This principle was underscored in Gilbert Zebedayo Mrema v. Mohamed Issa Makongoro (Civil Application No. 369/17 of 2019) [2020] TZCA 48 (16 March 2020; TANZLII). The Court's examination begins with Rule 11(4), which requires that an application of this nature be filed within fourteen (14) days from the date of service of the notice of execution or summons to show cause. This requirement has been consistently emphasized in previous decisions, including Registered Trustees of Baraza Kuu 5

la Jumuiya ya Waislamu Tanzania v. Registered Trustees of the National Muslim Council of Tanzania (BAKWATA) (Civil Application No. 480/08 of 2024) [2024] TZCA 630 (24 July 2024; TANZLII), where the Court reiterated that applications for stay of execution must be lodged within fourteen (14) days of service. In the present case, the applicant was served with a summons to show cause on 4th September, 2025, as evidenced in paragraph 4 of the supporting affidavit and annexure A-3. He filed the application on 17th September, 2025, thereby satisfying the requirement under Rule 11(4). The next condition arises under Rule ll(5)(a) and (b), which requires demonstration of substantial and irreparable loss. Such losses are those that cannot be adequately compensated in monetary or physical terms. In Tanzania Ports Authority v. Pembe Flour Mills Ltd (Civil Application No. 78 of 2007) [2009] TZCA 284 (1 January 2009; TANZLII), the Court elaborated that: "Irreparable loss m ust imply, among other things, loss which is irrecoverable in any form

or manner, including damages or other m onetary recom pense." In this instance, the Court finds that the applicant has clearly demonstrated, as stated in paragraph 7 of the affidavit, that the sum of TZS 36 million is substantial. Given that the respondent has no fixed abode, the risk of relocation and difficulty in tracing him cannot be underestimated. Such circumstances would undoubtedly jeopardize the applicant's interests should the appeal ultimately succeed. The averments in the applicant's affidavit therefore establish that substantial and irreparable loss would be suffered if the application were not granted. In addition to addressing the likelihood of such loss, the applicant has shown readiness to provide security for the due performance of the decree, which may ultimately be binding upon him. In Mantrac Tanzania Ltd v. Raymond Costa (Civil Application No. 11 of 2010) [2011] TZCA 519 (10 October 2011; TANZLII), the Court emphasized:

"...the applicant fo r a stay order m ust give security fo r the due performance o f the decree against him. To m eet the condition ; the law does not demand that the said security m ust be given p rior to the grant o f stay order..." In paragraph 8 of the affidavit, the applicant expressly committed to furnishing such security. This willingness and commitment provide sufficient assurance that the respondent will enjoy the fruits of the decree should the appeal be unsuccessful. Accordingly, this condition is satisfied. The applicant has also complied with Rule ll(7)(a)-(d) of the Rules. A copy of the notice of appeal dated 6th March, 2025, was filed within days of the judgment. A copy of the impugned judgment and decree dated 13th February, 2025, was annexed to the supporting affidavit. Finally, a copy of the notice of the intended Execution Application No. 21846 of 2025, dated 29th August, 2025, was also provided. This condition is therefore met. In summary, the Court is satisfied that the applicant has cumulatively fulfilled the three conditions required. Consequently, the

application for stay of execution in Labour Revision No. 20097 of 2024 is hereby granted, pending the hearing and determination of the intended appeal. The applicant shall furnish security in the form of a bank guarantee of TZS 36,000,000.00 (Thirty-Six Million Tanzanian Shillings), to be deposited with the Court within sixty (60) days, without interest, from the date of delivery of this ruling. DATED at DAR ES SALAAM this 11th day of December, 2025. P. S. FIKIRINI JUSTICE OF APPEAL Ruling delivered this 12th day of December, 2025 in the presence of Mr. Jacktone Koyugi, learned counsel for the applicant, the respondent in person and Ms. Jenikisa Bukuku, Court Clerk via video link; is hereby certified as a true copy of the original.