CMS (Tanzania) Limited vs Matondo Sebastian Mange & Another (Civil Application No. 20250850001662 of 2025) [2025] TZCA 985 (22 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 20250850001662 OF 2025 CMS (TANZANIA) LIMITED.....................................................APPLICANT VERSUS MATONDO SEBASTIAN MANGE......................................1s t RESPONDENT DOTTO HASSAN ERAMBIKA ........................ .................2n d RESPONDENT (Application for Stay of Execution arising from the CMA's Award in Labour Dispute No. CMA/GTA/38/2024, at Geita) fSalehe. Arbitrator.^ dated 11th day of February, 2025 in Labour Execution No. 20133 of 2025 RULING 29th August & . 22n d September, 2025 FIKIRINI. J. A.: This is an application for stay of execution of an award by the Commission for Mediation and Arbitration (CMA) in Geita, made under Rule 4 (2) (a) and (b), 11 (3), (4), 4 (A), (5) (a) and (b), (6), (7) (a) - (d) and Rule 48 (1) of the Court of Appeal Rules, 2009, (the Rules). The application is supported by an affidavit sworn by Ally Saleh, the applicant's Principal Officer. The respondent did not file an affidavit in reply, but contested the application orally on a legal point. The underlying case originates from a labour dispute between two former employees, Matondo Sebastian Mange, hereinafter referred to as

the 1st respondent and Dotto Hassan Erambika, hereinafter referred to as the 2nd respondent and their employer, CMS (Tanzania) Limited, hereinafter referred to as the applicant. On 11th February, 2025, the Commission for Mediation and Arbitration (CMA) at Geita, presided over by Honourable Arbitrator Salehe B., issued an award in Labour Dispute No. CMA/GTA/38/2024 in favour of the respondents. The award granted each respondent compensation equivalent to 30 months' salary plus severance pay, amounting to TZS 135,418,000/=, as referenced in the affidavit. This stemmed from claims of unfair termination. The applicant, however, maintains that the termination was both substantively and procedurally fair and argues that the award was excessive and marred by material irregularities. Aggrieved by the CMA's decision, the applicant filed a notice of intention to seek revision on 24th February, 2025. As the filing was late, the applicant subsequently lodged Miscellaneous Labour Application No. 9004 of 2025 at the High Court of Tanzania (Geita Sub-Registry), seeking an extension of time to file the revision. This application was dismissed on 16th June, 2025.

Dissatisfied with the High Court's ruling, the applicant filed a notice of appeal on 30th June, 2025, challenging the entire decision and drawn order in Miscellaneous Labour Application No. 9004 of 2025. Shortly thereafter, on 19th August, 2025, the applicant became aware of Labour Execution No. 20133 of 2025, initiated by the respondents at the High Court (Geita), seeking enforcement of the CMA award through attachment of the applicant's vehicles. The attached vehicles include: Tata Bus (T 226 DMV), Toyota Fortuner (T 738 EDN), Benz (T 356 DWU), Toyota Land Cruiser (T 409 EAQ), Toyota Land Cruiser (T 473 EKF) and Toyota Hiace (T 442 DBS). The applicant contends that the total value of these vehicles exceeds the award amount, rendering the attachment disproportionate and unjustified. It further argues that such execution causes irreparable loss, especially given that the respondents are individuals with no known assets, income, or permanent residence, making recovery difficult should the appeal succeed. The applicant asserts its financial capacity to satisfy the decree if the appeal fails and expresses willingness to provide a bank guarantee as security. It maintains that the appeal has reasonable prospects of success, that the application for stay was filed promptly, and that 3

granting the stay would not prejudice the respondents, as the matter can be resolved on merit. Without a stay, the applicant argues, the execution would render the pending appeal nugatory. On 28th August, 2025, the application came up for hearing. Mr. Ally Hamza, learned advocate for the applicant, advanced submissions in support of the application, while Mr. Majogoro appeared for the respondents in opposition. Mr. Hamza adopted the notice of motion and affidavit as part of his submission. He prayed for the grant of the application, asserting that it satisfies all requirements under Rule 11(5) (a) and (b), and Rule 11(7) (a), (b), (c), and (d) of the Rules. He emphasized that the application was timely, noting that the notice to show cause was served on 19th August, 2025, and the application was filed on 25th August 2025, within the 14 days period prescribed under Rule 11(4), as stated in paragraph 7 of the affidavit. On the issue of substantial loss, Mr. Hamza referred to grounds 2 and 3 of the notice of motion and paragraphs 7 and 9 of the affidavit, highlighting that two vehicles, a Toyota Hiace and a Tata Bus, had already been attached and were in the custody of a Court broker. He argued that if all earmarked vehicles were sold, the proceeds would

exceed the decretal sum and simultaneously cripple the applicant's business operations. Regarding security for due performance, he cited paragraph 4 of the notice of motion and paragraph 10 of the affidavit, where the applicant undertakes to provide a bank guarantee. He stressed that all requirements must be cumulatively met for the Court to grant a stay of execution. To reinforce his argument, he cited Usangu Logistic Limited v. SAS Logistics Limited (Civil Application No. 1171 of 2025) [2025] TZCA 776 (28 July 2025), asserting that once all conditions are satisfied, the stay should be granted. In response, the learned advocate for the respondents challenged the application, arguing that the applicant failed to meet all cumulative requirements, particularly Rule ll(7)(a), which mandates that a valid notice of appeal should accompany the application. He pointed out that the annexed notice lacked a Court stamp, Registrar's signature, online reference number (if filed electronically), and proof of fee payment, rendering it invalid. He relied on precedents such as Israel Solomon Kivuyo v. Wayani Langoi & Another [1989] T.L.R 140 and Lalago Cotton Ginnery & Oil Mills Company Limited v Loans and Advances Realization Trust (LART)(Civil Appeal No. 51 of 2002)

[2004] TZCA 222 (20 January 2004), where improperly authenticated notices of appeal were rejected. He argued that without these validations, the Court cannot ascertain the notice's authenticity or timeliness, and therefore, the cumulative conditions for granting a stay are not met, warranting dismissal. In rebuttal, Mr. Hamza distinguished the cited cases, noting they predate the introduction of electronic filing. He argued that once a notice of appeal is filed electronically, it is deemed admitted. He urged the Court to verify the filing and reiterated that all procedural requirements had been fulfilled. I have carefully examined the annexed notice of appeal referenced in paragraph 5 of the applicant's affidavit. Admittedly, the document lacks physical endorsements such as a court stamp or the Registrar's signature. However, this must be considered within the framework of modern judicial procedures in filing. Under the Judicature and Application Laws (the Electronic Filing Rules) GN No. 148 of 2018 (the Electronic Filing Rules), the Judiciary of Tanzania has adopted an electronic filing system that permits online lodgement of documents, 6

thereby streamlining court processes and reducing dependence on physical submissions. In his rejoinder, learned counsel rightly underscored that under the prevailing system, an electronically filed document is deemed admitted upon submission. He further invited the Court to verify the filing status. In the interest of justice, I have reviewed the Judiciary's electronic records, which serve as the functional equivalent of physical verification, confirming the presence of the court stamp, the Registrar's signature, and the date of filing. Upon such verification, it is confirmed that a notice of appeal was electronically filed on 29th June, 2025, bearing the system-generated reference number 20250629002810. Although physical endorsement is pending, the electronic lodgement establishes prima facie validity and timeliness, particularly as the applicant was served on 19th August, 2025, well within the prescribed period. Additionally, this being a labour matter, there is no requirement for payment of fees. Therefore, once there is proof that the

electronically filed documents were admitted electronically through the judicial electronic system in terms of Rule 21 (1) of the Electronic Filing Rules, there is no further requirement to be fulfilled as far as the lodgement of the application is concerned. This position was noticeably explained in the case of Ernest Benard Mkolela & Another v. Tanzania Union of Industrial and Commercial Workers & Another, Civil Appeal No. 411 of 2022. The authorities cited by the respondent, Kivuyo (1989) and Lalago Cotton (2002) (supra) are distinguishable. Both precedents arose under a manual filing regime, where physical stamps and signatures were the sole means of authentication. In contrast, today's digitized system recognizes electronic records as reliable evidence. To insist on physical endorsements at this preliminary stage would undermine the efficiency and intent of the Judiciary's modernization efforts. Accordingly, I find the respondent's objection to be without merit. The notice of appeal in this application is valid, and the requirement under Rule 11(7) (a) is satisfied. Having disposed of the preliminary objection, I now turn to the merits of the application. The grant of a stay of execution hinges on the 8

cumulative satisfaction of three conditions, as stipulated under Rules 11(3), (4), (5)(a) & (b), and ll(7)(a)-(d) of the Rules. Upon review of the record, it is evident that the applicant filed the notice of motion on 25th August, 2025, following service of the notice to show cause on 19th August, 2025, a span of six (6) days. This falls within the fourteen-day window prescribed under Rule 11 (4), rendering the application timely and competent. This condition is therefore satisfied. The applicant has also demonstrated the likelihood of suffering substantial and irreparable loss should the stay not be granted. In paragraphs 7 and 9 of the affidavit, and grounds 2 and 3 of the notice of motion, the applicant depones that two vehicles, a Toyota Hiace and a Tata Bus, have already been attached and are in the custody of a Court broker. The potential sale of additional earmarked vehicles would not only yield proceeds exceeding the decretal amount, but it would also cripple the applicant's transport and logistics operations, resulting in business disruption, job losses, and operational shutdown. This argument is persuasive. The attachment and sale of core business assets which go beyond mere monetary recovery threaten the applicant's livelihood and continuity of operations. In Tanzania Ports 9

Authority v. Pembe Flour Mills Ltd (Civil Application No. 78 of 2007) [2009] TZCA 284 (1 January 2009), the Court observed: '! 'Irreparable loss must imply, among other things, loss which is irrecoverable in any form or manner, including damages or other monetary recompense." In the present application, the applicant has convincingly illustrated the risk of substantial and irreparable loss in the absence of the relief sought. I find this condition satisfied. Finally, the applicant has expressed readiness to provide security for the due performance of the decree, should the appeal fail. This is affirmed in paragraph 10 of the affidavit and paragraph 4 of the notice of motion. In Anord L. Matemba v. Tanzania Breweries Ltd (Civil Application No. 95 of 2012) [2016] TZCA 2274 (26 September 2016), the Court held: "Security, as one o f the conditions for the due performance o f the decree should an intended appeal fail, is meant to safeguard the interests o f the judgment creditor in the event the judgment or decree appealed against is affirmed by the appellate court. It facilitates a post-appeal execution process." 10

The applicant's undertaking to furnish a bank guarantee satisfies this final condition. Further support for the applicant's undertaking to provide security is found in the case of Mantrac Tanzania Ltd v. Raymond Costa, (Civil Application No. 11 of 2010) [2011] TZCA 519 (10 October 2011), where the Court held: "...the applicant for a stay order must give security for the due performance o f the decree against him. To meet the condition, the iaw does not strictiy demand that the said security must be given prior to the grant o f stay order. To us, a firm undertaking by the applicant to provide security might prove sufficient to move the Court, ail things being equal, to grant a stay order, provided the Court sets a reasonable time limit within which the applicant should give the same." [Emphasis supplied] In the present matter, the applicant has clearly expressed, in paragraph 10 of the affidavit and paragraph 4 of the notice of motion, a willingness and readiness to provide security for the due performance of the decree or order in question. This firm undertaking aligns with the principle laid down in Mantrac Tanzania Ltd (supra), and satisfies the third condition required for the grant of a stay. li

From the foregoing deliberations, it is my considered opinion that the applicant has demonstrated sufficient cause to merit the grant of the present application. I am also mindful of the procedural requirements under Rule 11(7) of the Rules, which stipulate that an application for stay of execution must be accompanied by: (a) a notice of appeal; (b) a decree or order appealed from; (c) a judgment or ruling appealed from; and (d) a notice of the intended execution. Upon review, the applicant has annexed all requisite documents, namely: a copy of the notice of appeal dated 17th June, 2025; a copy of the impugned judgment and drawn order in Miscellaneous Labour Application No. 9004 of 2025, both dated 16th June, 2025; and a notice of intended execution No. 2 of 2025, dated 18th August, 2025. The inclusion of these documents confirms compliance with Rule 11(7), (a), (b), (c ) and (d) of the Rules, thereby reinforcing the competence of the application. In conclusion, the applicant has cumulatively satisfied all the conditions necessary for the grant of a stay of execution, timeliness, demonstration of substantial loss, a firm undertaking to provide security, and full compliance with documentary requirements. 12

I find the application meritorious and hence grant it. The execution of the award is hereby stayed pending hearing and determination of the intended appeal, followed by an order that the applicant furnish a bank guarantee to the tune of TZS. 135,418,000/, with interest as security for the due performance of the decree and the same be deposited with the Court within sixty (60) days from the date of delivery of this ruling. Being a labour matter, I order no costs. It is so ordered. DATED at DODOMA on this 22n d day of September, 2025. P. S. FIKIRINI JUSTICE OF APPEAL Ruling delivered this 22n d day of September, 2025 in the presence of Mr. Ally Hamza, learned counsel for the Applicant, Mr. Masoud Shaibu Mwanaupanga holding brief for Mr. Alhaji Majogoro, learned counsel for the Respondents via virtual Court and Mariam Kivuma, Court Clerk; is hereby certified as a true copy of the original. REGISTRAR COURT OF APPEAL 13