Rijk Zwaan Q-Sem Ltd vs Charles Idd Kengwa (Civil Application No. 1471 of 2025) [2025] TZCA 863 (12 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 1471 OF 2025 RIJK ZWAAN Q-SEM L T D ..... ............. .......... ........................APPLICANT VERSUS CHARLES IDD KENGWA.................................................... RESPONDENT (An Application for Stay of Execution of the Judgement and Decree of the High Court of Tanzania at Arusha) (Masara. J.^ dated 23rd Day of May, 2025 in Labour Revision No. 14158 of 2024 RULING 12th August, 2025 RUMANYIKA. J.A.: The applicant, Rijk Zwaan Q- Sem Ltd is before the Court by way of notice of motion dated 23/07/2025 under a certificate of extreme utmost urgency. She seeks to stay execution of the decree of the High Court of Tanzania at Arusha ("the High Court") dated on 23/05/2025 in Labour Revision No. 14158 of 2024 pending determination of the intended appeal. Noteworthy, in the aforenamed Labour matter, the High court overturned award of the Commission for Mediation and Arbitration for i

Arusha ("the CMA") in Labour Dispute No. CMA/ARS/ARS/114/22/16/23 in favour of the respondent. The applicant was ordered to pay the respondent 12 months' salary compensation and other benefits for unfair termination of the latter's employment. It is averred that, despite the applicant's notice of appeal filed on 09/06/2025, the respondent intends to attach the applicant's CRDB Bank Account No. 01J50034159600 executing the impugned decree. The applicant attempts to have that move halted. The application has been taken out in terms of Rule 11(3) (4) (5) (6) and (7)(a)- (d), and Rule 48(1) and (2) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). Mr. Daudi Joseph Awe, the Principal Officer of the applicant deponed the supporting affidavit. In that affidavit, mainly, irreparable substantial loss and the applicant's firm undertaking to furnish security for the due performance of the decree have been set out as grounds soliciting the grant of the application. The respondent did not file an affidavit in reply to contest the application. At the hearing of the application which was conducted by way of video conference, linked from the High court building in Arusha, Mr. Kapimpiti Mgalula, learned counsel appeared for the applicant. At the 2

very outset, he sought and obtained leave of the Court in terms of Rule 63(2) of the Rules to proceed in the absence of the respondent. It is worth noting that the respondent did not enter appearance although he was served with the application and notice of hearing. On the merit of the application, Mr. Mgalula commenced by adopting the contents of the founding affidavit. Briefly and focused, the learned counsel contended that, all the requirements for the grant of application have been met. Expounding on his point, Mr. Mgalula asserted that the applicant became aware of the intended execution on 15/07/2025 and filed the instant application on 23/07/2025. Therefore, it was argued that the applicant acted well within the fourteen days' limitation period set out under rule 11(4) of the Rules. He also contended that all the requisite documents envisaged under Rule 11(7) of the Rules were appended to the application. Further referring to the founding affidavit, he asserted that the applicant has demonstrated substantive loss she stands to suffer should the application not be granted. Mr. Mgalula also argued that the applicant has made a firm undertaking to furnish security for the due performance of the decree pending determination of the intended appeal as the Court may be pleased to order. 3

I have examined the notice of motion, the supporting affidavit and Mr. Mgalula's submissions in support of the application. It is not contested as hinted above. As such, the pertinent issue for determination is whether the application raises sufficient grounds for the grant of stay of execution of the impugned decree. Needless to state, in determining an application for stay of execution pending an appeal which is the case before me, the Court is guided by provisions of rule 11 (4) (5) (a)-(b) and (7) of the Rules. Those provisions have laid down at least four essential conditions that have to be cumulatively fulfilled upfront. They are; one, copies of the notice of appeal, the impugned decree, judgment and notice of execution have to accompany the application and two, the application has to be filed within fourteen days of the service of notice for execution of the decree on the applicant, or from the date he is made aware of the existence of an application for execution as the case may be. Three, the applicant must demonstrate the likelihood of him to suffer irreparable loss in case the application is refused and four, one must show firm undertaking to furnish security for the due performance of the decree if the intended appeal fails.

We have taken the stance above several times such as in Zanzibar University v. Abdi A. Mwendambo & Others (Civil Application No. 92 of 2018) [2018] TZCA 336 (14 December 2018: TanzLII) and in Aidan George Nyongo v. Magese Machenja & Others (Civil Application No. 237 of 2016) [2020] TZCA 1832 (30 October 2020: TanzLII). I have considered the instant application in the light of the conditions outlined above. It is undisputed that the application was lodged before this Court on the 23/07/2025, which was about eight days from 15/07/2025 when the applicant became aware of the respondent's efforts to execute the impugned decree. As such, it was within the prescribed fourteen days' limitation period, as averred under paragraph 6 of the founding affidavit. Also notably, copies of the notice of appeal, judgment and application for execution have been attached to the application as annexures- Rl, R2 and R3 respectively. As such, the requirements under sub rules (4) and (7) of Rule 11 of the Rules have been met. Next for consideration is whether the applicant will suffer substantial loss if the execution is not stayed. Under paragraphs 7 and 8 of the supporting affidavit, the applicant is worried about the 5

respondent's ability to refund the monies sought to be attached should the intended appeal succeed. Expounding on that point, Mr. Mgalula asserted, rightly so in my view, that the respondent has not filed an affidavit in reply to controvert the applicant's worries. I find this point to be valid and meritorious. It is consistent with our proposition in Mic Tanzania Ltd v. Cxc Africa Ltd (Civil Application No. 172 of 2019) 2019 TZCA 447 (15 October 2019: TanzLII). In that case, the Court, in a related scenario held that; "...in money decrees, parting with money without any assurance o f easy and quick recovery is sufficient detail o f the substantial loss to be suffered. This being a money decree, we think, no more detdifs dnd particulars [are] needed. AH the same, the fact that the applicant stands to suffer substantial loss has not been controverted by the respondent through a reply affidavit. ..it is accordingly deemed to have been conceded. " (Emphasis added) Gleaned from the excerpt above, I am satisfied that the applicant has fulfilled the said condition under Rule 11(5) (a) of the Rules. As regards the last condition to furnish security for due performance of the decree as required under Rule 11(5) (b) of the

Rules. I note that the applicant's averment under paragraph 10 of the supporting affidavit clearly constitutes a firm undertaking to furnish security. It is good enough in the circumstances of the case. It is so, since it has been the Court's stance that such express willingness and commitment of the applicant is sufficient, provided that the Court sets out a reasonable time within which, the said undertaking has to be realized. See- Mantrac Tanzania Limited v. Raymond Costa (Civil Application No. 11 of 2010) [2011] TZCA 519 (10 October 2011: TanzLII). Equally notworth is the beauty of the grant of an application of this nature. It has double impact as follows; one, the judgment debtor gets a room to exhaust the vertical hierarchy appealing and two, the decree holder waits comfortably while assured of not getting out with empty decree however long it may take him. In the upshot of it all, I am satisfied that the applicant has cumulatively fulfilled the conditions necessary for the grant of stay of execution of the decree. For avoidance of doubt therefore, the application is hereby granted. It is ordered thus; (i) the execution of the Decree of the High Court of Tanzania at Arusha arising from Labour Revision No. 14158 of 2024 is hereby stayed pending determination of 7

the intended appeal (ii) the applicant present to the Court a bank guarantee equivalent to the decretal sum of TZS. 24,334,877.00 as security for due performance of the decree in Labour Revision 14158 of 2024 within sixty days of this ruling without fail and (iii), costs of this application shall abide the outcome of the intended appeal. DATED at DODOMA this 12th day of August, 2025 Ruling delivered this 12th day of August, 2025 in the presence of Mr. Kapimpiti Mgalula, learned counsel for the applicant and Mr. Herode Bilyamtwe, Representative of the respondent; is hereby certified as a true copy of the original. S. M. RUMANYIKA JUSTICE OF APPEAL