African Banking Corporation (T) Limited vs Jovin Mgoo (Civil Application No. 980 of 2024) [2025] TZCA 935 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 980 OF 2024 AFRICAN BANKING CORPORATION (T) LIMITED ......................... APPLICANT VERSUS JOVIN MGOO..............................................................................RESPONDENT (Application for Stay of Execution of the Decree of the High Court of Tanzania (Labour Division) at Dar es Salaam) fArufani, J.1 ) dated the l l T h day of February, 2022 in Revision No. 231 of 2020 RULING 25th & 29th August, 2025 FELESHI. J.A.: This is an application for stay of execution made under rules 11(3), (4), (5) (a) and (b), (6), (7) (a), (b), (c) and (d), and 48 (1) (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules) in which the applicant seeks to have the order of the High Court (Labour Division) in Labour Execution No. 25933 of 2023 (arising from Labour Revision No. 231 of 2020) stayed, pending the determination of an intended appeal.

The application is supported by the affidavit deponed by Nyanjala Mtebe, applicant's Principal Officer, explaining the reasons why the application should be granted. The respondent resisted the application by the affidavit in reply deponed by himself. The background giving rise to this application as gleaned from the court application documents relied by the parties is that, following the respondent's termination from employment by the applicant on 19.10.2016 on ground of misconduct, he successfully sued the applicant before the Commission for Mediation and Arbitration (the CMA) for Dar es Salaam Region at Ilala in CMA/DSM/IUVR/1041/16/920. He was awarded amongst other rewards, 24 months' salaries compensation. However, upon revision, on 11.2.2022 the High Court reduced the compensation to 12 months' salaries. Aggrieved by the High Court decision, the applicant issued a notice of appeal to this Court. Consequent to the CMA's award and High Court revisional judgment above, on 19.12.2023 and 4.1.2024 the Deputy Registrar (Kassian-DR), as an executing officer in the aforesaid execution application, issued garnishee order n isi and garnishee absolute order respectively, in respect of TZS. 337,738,461.54 held in the applicant's Bank Account at CRDB Bank PLC AZIKIWE BRANCH which was paid to

the Registrar Labour Court Bank Account. Nevertheless, on 28.5.2024 the said executing officer issued an interim stay of execution and ordered the decretal sum to be kept in the Judiciary account pending the final determination of the applicant's appeal. Aggrieved by that order, the respondent filed Labour Review No. 14379 of 2024 in the High Court of Tanzania, Labour Division which was determined in his favour on 15.8.2024. The High Court (Mlyambina, J.) reviewed and quashed the order made by the executing officer on 28.5.2024 and ordered the execution to proceed unless otherwise stayed by the Court of Appeal. Both parties participated in the aforesaid proceedings. When the parties appeared for execution hearing before Mrio, Deputy Registrar on 30.9.2024, apart from admitting that no application for stay of execution was made to the Court of Appeal, the applicant resisted the respondent's prayer to have the decretal sum transferred to his bank account from the Judiciary account. It was contended that the applicant had filed two notices of appeal against the High Court decision dated 11.2.2022 (by Arufani, J.) and 15.8.2024 (by Mlyambina, J.) respectively. Also, the case by its nature was unique. On 2.10.2024 the executing officer (Mrio-DR), having found that there was no stay order from the Court of Appeal, ordered the decretal 3

sum to be transferred from the Judiciary's account to the respondent's account. Aggrieved by that order, on 8.10.2024 the applicant issued a notice of appeal to the Court of Appeal. It also filed the instant application on 16.10.2024 as alluded to above. Paragraphs 8 and 9 of the founding affidavit specifically assert that the applicant became aware of the execution on 2.10.2024 (from Mrio's order) and that they could not pursue and obtain order for stay of execution from the Court of Appeal before that date because there was stay of execution order issued by the executing officer (Kassian-DR). Upon being served with the application, the respondent raised a preliminary objection on two points of law, to wit: i) That the application for stay o f execution o f the Order o f the High Court Labour D ivision a t Dar es Salaam in Labour Execution No. 25933 o f 2023 is tim e barred contrary to rule 11(4) o f the Court o f Appeal Rules, 2009; and ii) That the application is incom petent and im properly before the Court fo r offending rule 11(7) (d) o f the Court o f Appeal Rules, 2009. At the hearing of the application, the applicant was represented by Mr. Peter Kibatala, learned advocate, whereas, Mr. Dismas Raphael, also learned advocate, represented the respondent. As per the established rule of practice, the parties were invited to first address the respondent's

preliminary objection. During the hearing, the respondent withdrew the second point of objection. Submitting in support of the first ground of objection Mr. Raphael argued that the application is time barred because the applicant was fully aware of the execution proceedings which began in 2023 and it participaed through its advocates. To that effect, Mr. Raphael gave an account of what transpired in the execution proceedings in the attendance of both parties namely, issuance of garnishee order n isi and absolute on 19.12.2023 and 4.01.2024 respectively; issuance of stay of execution order by the executing officer on 28.5.2024; review proceedings by the High Court which quashed the executing officer's stay of execution order on 15.8.2024; and, the resumed execution proceedings from 13.09.2024. Mr. Raphael was emphatic that rule 11(4) of the Rules required filing of the instant application within 14 days of becoming aware of the execution application. That, the applicant's awareness dated back to 2023 or, at latest, after the quashing of the executing officer's stay of execution order on 15.8.2024 or when execution hearing proceedings were resumed on 13.09.2024. He thus stressed that the filing of the application on 16.10.2024 was well beyond the limit and the applicant

had hijacked the process with delaying tactics. Finally, he implored the Court to sustain the respondent's preliminary point of objection and strike out the application with costs. In response, Mr. Kibatala contended that the application was filed within time. He argued that the rule's focus is on awareness of the execution, which requires this Court to construe it broadly. He recounted the procedural history, including a prior notice of appeal which was struck out on 6.11.2023, extension of time granted, and filing of a fresh notice of appeal on 24.05.2024 without which no application for stay of execution could be instituted in the Court of Appeal. Besides, Mr. Kibatala contended that the impugned execution is unique and by its nature made them unable to prefer an application for stay of execution in the Court of Appeal, This is due to striking out of the applicant's first notice of appeal by the Court on 6.11.2023 which made the stay of execution it had obtained before inconsequential. He added that before 2.10.2024 the execution proceedings were interrupted by the interim stay of execution order issued by the executing officer which was subsequently quashed by the learned High Court Judge on 15.8.2024 who was a reviewing officer and not an executing officer. It was for that understanding, Mr. Kibatala vehemently contended that the

applicant was made aware of the execution by the executing officer's order made on 2.10.2024 which ordered transfer of the decretal sum from the Judiciary's account to the respondent's account. He was thus emphatic that in terms of rule 11 (4) of the Rules, the instant application filed on 16.10.2024 is well within 14 days. Finally, Mr. Kibatala urged the Court to overrule the preliminary objection to allow determination of the application on merit. In rejoinder, Mr. Raphael reiterated his submission and prayers. Having heard and considered the counsel's rival submissions and the affidavits in support and against the application, I find the issue for determination is whether the preliminary objection is meritorious. As demonstrated above, the respondent's preliminary point of objection is rooted on the time limitation governing application for stay of the execution by the Court of Appeal as provided under rule 11(4) of the Rules which provides in extenso that: "(4) An application fo r stay o f execution sh all be made fourteen days o f service o f the notice o f execution on the applicant by the executing officer or from the date he is otherw ise made aware o f the existence o f an application for execution.” 7

On this, Mr. Raphael submitted that the application is time barred on the ground that the applicant was aware and participated in the execution proceedings since 2023 to 13.9.2024. In reply, the applicant's counsel resisted this, maintaining awareness only arose with the order of 2.10.2024 which ordered the transfer of the decretal sum from the Judiciary's account to the respondent's account. TTierefore, the contention between the counsels is on when the applicant became aware of the existence of the application for execution as dictated by rule 11(4) of the Rules. Mr. Kibatala urged this Court to adopt a broad construction of that sub-rule. This is permissible under the law but also guided by the law. I entirely agree with Mr. Kibatala that during the execution hearing from 13.12.2023 to 15.8,2024 when the High Court (Mlyambina, J.) ordered for the resumption of the execution hearing, there were several judicial processes and orders, as recapped above, which were issued in relation to Execution No. 25933 of 2023. In my unfeigned view, if any of those processes or orders interrupted the execution proceedings then this Court must establish if such interruption or order prevented the applicant to be aware of the pending execution proceedings and made it unable to apply for stay of execution to the Court of Appeal. 8

Having paid due regard to the application court record and submissions by both learned counsel, it is clear to me, and I hasten to point out that, the only period the applicant could not have filed an application for stay of execution in the Court of Appeal was from 6.11.2023 to 23.5.2024 when its first notice of appeal was struck out and had not yet filed its fresh notice of appeal on 24.5.2024. I need also to add that, in the instant application there is no dispute that when the High Court quashed the stay of execution order issued by theexecuting officer on 15.08.2024 it explicitly ordered for the resumption of the execution proceedings. And that, save to the quashed order, the High Court did not nullify the previous execution proceedings. It is important to note that when the parties appeared for execution hearing on 30.9.2024 Mr. Omary Msemo, learned advocate who represented the applicant, resisted the respondent's prayer to have the decretal sum transferred to his bank account from the Judiciary account. For the sake of clarity, I deem it appropriate to let part of that ruling speak for itself as detailed below: " Mr. Omary Msemo, learned advocate fo r the Decree Debtor on the other hand told the court that they have lodged two N otices o f Appeal to the Court o f Appeal against the decisions o f

made by Mlyambina 3. and Arufani, J, H e to ld th e co u rt th a t th e y do n o t have s ta y o rd e r fro m th e C o u rt o f A p p e a l due to the uniqueness and nature o f the case. H e a rg u e d th a t fo r a p a rty to m anage to se cu re s ta y o rd e r a cco rd in g to th e C o u rt o f A p p e a l ru le s he m u st file th e sam e w ith in 1 4 d ays a fte r he h a s been aw are o f th e e xe cu tio n . I t w as n o t e a sy fo r them to a cce ss the C o u rt o f A p p e a l a s th e y la c k th o se p aram eters. "[Emphasis added.] The extracted excerpt above vividly shows that the applicant attended the execution hearing proceedings on 30.9.2024 whilst fully aware of the existence of the execution application. Despite of Mr. Msemo's misconceived submission above, he also knew of what prayer was before the executing court which was none other than determining the transfer of the decretal sum from the Judiciary's account to the respondent's account. The applicant had since 24.1.2024 known through the garnishee order absolute and then through the executing officer's order dated 28.5.2024 that the decretal sum was no longer in its accounts as alluded earlier. It is trite law that, according to rule 11(4) of the Rules, the application for stay of execution should be filed within fourteen days 10

from the date the applicant became aware of the existence of the application for execution. The Court of Appeal has held that time is reckoned from awareness of the execution application's presence against the applicant. For better appreciation of the Court's stand, see- Cocodacor General Co. Ltd v. Unyiha Associate Co. Ltd & 2 Others, Civil Application No. 343/17 of 2022,[2024] TZCA 215 and Stanbic Bank Tanzania Ltd v. Solomoni Sioi, Civil Application No. 521/18 of 2017, [2018] TZCA 903. In my view, rule 11 (4) of the Rules is a good and unambiguous law and needs no aid in construing its words as suggested by Mr. Kibatala. In the circumstances, from the foregoing discussion, I am of the considered view that, since the applicant filed this application on 16.10.2024 after actively participating in execution proceedings before and after 15.8.2024, I find its unawareness claim before 2.10.2024 is untenable. This is because the rule pertains to awareness of the execution application's existence and not on subsequent substantive judicial processes or orders in the ongoing execution process. In view of the above, I find the preliminary objection has merit. Since the issue of time limitation touches on the jurisdiction of the Court as held in the case of Muse Zongori Kisere v. Richard Kisika li

Mugendi & Others, Civil Application No. 244/01 of 2019 [2022] TZCA 640, it is thus clear that this Court has no jurisdiction to determine the instant application which was filed out of time. Consequently, having sustained the preliminary objection, the applicant's application is hereby struck out with costs. DATED at DODOMA this 29th day of August, 2025. The Ruling delivered this 29th day of August, 2025 in the presence of Mr. Peter Kibatala Advocate for the Applicant and Mr. Dismas Raphael Advocate for the Respondent, both through virtual court, is hereby certified as a true copy of the original. E. M. FELESHI JUSTICE OF APPEAL 12