Serengeti Breweries Limited vs Joseph Maige Mashauri (Civil Application No. 271/05 of 2019) [2022] TZCA 3116 (23 September 2022)

SERENGETI BREWERIES LIMITED vs. JOSEPH MAIGE MASHAURI COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: 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 dated 15 th 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 was an application for stay of execution of the ruling and drawn order of the High Court of Tanzania, Labour Division at Moshi, which directed payment of a decretal sum. The applicant sought an order for stay of execution pending the hearing of the intended appeal. It was contended that if execution proceeded and the decretal sum was paid to the respondent, the respondent might lack the financial capacity to refund the money in the event that the applicant succeeded on appeal, thereby causing substantial loss to the applicant. The applicant relied on Rule 11(5) of the Court of Appeal Rules, submitting that two conditions had to be satisfied before a stay could be granted, which were that substantial loss might result to the applicant unless the order was made; and that security had been given for the due performance of the decree.

At the hearing, the respondent neither entered appearance nor filed an affidavit in reply. Consequently, the averments contained in the applicant’s supporting affidavit remained uncontested. The Court subsequently had to decide on w hether the applicant had satisfied the conditions for grant of stay of execution pending appeal. Held: (i) The Court held that once the deposited funds were released to the respondent, they might not be easily recoverable, particularly as the respondent was an individual with no known assets. In the event that the applicant succeeded in the intended appeal, this would likely result in substantial loss. The Court was therefore satisfied that the application had merit. The Court granted an order for stay of execution of the ruling and drawn order of the High Court of Tanzania, Labour Division at Moshi (Mipawa, J.) dated 15th July, 2016 in Revision No. 13 of 2015, pending the hearing and determination of the intended appeal. Statutory provisions referred to: (i) The Court of Appeal Rules, 2009 under rules 11 (5), 63(2). Mr. Ally Hamza, for the Applicant.