Hot Buns Ltd vs Deogratius Makene (Civil Application No. 587/18 of 2024) [2024] TZCA 1296 (13 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 587/18 OF 2024 HOT BUNS LTD ........................................ .............................. APPLICANT VERSUS DEOGRATIUS MAKENE ........................................................ RESPONDENT [Application for stay of execution of the decree of the High Court of Tanzania, Labour Division at Dar es Salaam] (Mlyambina. 3 ,^ dated the 22n d day of March, 2024 in Revision No. 27666 of 2023 RULING 9thAugust, & 13th December, 2024 MASHAKA, J.A.: Under a certificate of urgency, the applicant, HOT BUNS LTD applied by way of notice of motion made under rules 4 (2) (a) and (b), 11(3), (5) (a) and (b), (6) and (7) (a), (b), (c) and (d) of the Tanzania Court of Appeal Rules, 2009 (the Rules) for an exparte order to stay execution of the decree of the High Court of Tanzania, Labour Division at Dar es Salaam in Revision No. 27666 of 2023 dated 22n d March, 2024 pending hearing and determination of the application inter partes. The application is supported by an affidavit deposed by Mr. Hussein Iqbal Zavery, the Mananging Director of the applicant. The notice of motion is accompanied by a copy of the notice

of appeal, the impugned judgment and decree and the notice to show cause why execution should not proceed. Earlier on 15/08/2024, 1 granted an ex parte order pending hearing interpartes. On the other hand, in opposition of the application, the respondent filed an affidavit in reply contesting the grant of the application. When the application was called on for inter partes hearing, Messrs. Carlos James Cathbety and Felix Edward Makene, learned advocates appeared for the applicant and the respondent respectively. Mr. Cathbety wished to adopt the contents of the notice of motion and supporting affidavit to form part of his oral submissions. He submitted that the application has complied with the conditions set under rule 11 (7) (a), (b), (c) and (d) of the Rules and accompanied by among others, copies of the notice of appeal dated 09/04/2024, the judgment and decree dated 22/03/2024, and the Deputy Registrar's notice to show cause why execution should not proceed which was served to the applicant on 24/07/2024. He submitted that, on 22n d March, 2024 the High Court, Labour Division confirmed the decision of the CMA which awarded the respondent a sum of TZS. 15,600,000/=. A copy of the judgment and decree has been attached. In addition, Mr. Cathbety submitted that the applicant lodged a notice of appeal on 9th April, 2024, within time and the notice of appeal is attached. 2

The applicant averred at paragraph 10 that on 24th July, 2024 she was served with the notice to show cause why execution in Execution No. 17368 of 2024 should not be granted. However, Mr. Cathbety contended that a garnishee nisi was issued to the applicant's business account in her absence on 31st July, 2024. The said notice to show cause is attached in support of the application. Promptly, the applicant complied with rule 11 (4) of the Rules by filing the present application on 05th August, 2024, within the time prescribed by the law. He submitted that the applicant is ready and willing to furnish security as averred at paragraph 9 of supporting affidavit. The applicant has averred at paragraphs 7 and 8 of supporting affidavit that if execution of the decree proceeds and in the event the appeal succeeds, she will face difficulties to recover the money paid and suffer substantial loss because the respondent is unemployed. In reply, Mr. Makene wished to adopt contents of affidavit in reply and submitted that the application has been overtaken by events because the High Court Labour Division had issued a garnishee nisi on 21/07/2024, while this application was filed on 5th August, 2024 and the applicant has not attached the said order. He argued that the application was incompetent for failure to attach the said order. He explained that the notice to show cause accompanying the application was served to the applicant on 24/07/2024. 3

He urged me not to order stay of execution as it will affect the rights of the respondent who was terminated in 2019. He argued further that the applicant has failed to persuade the Court on the likely substantial loss to be suffered if the order sought is not granted. Contemplating the submissions by Mr. Cathbety and Mr. Makene, I am guided by the notice of motion made under rule 11 (3), (5) (a) and (b), (7) (a)/ (b), (c) and (d) of the Rules to stay execution of the arbitral award in CMA/DSM/KIN/459/19/224/2022 pending determination of the intended appeal between the parties. The applicant has cumulatively complied with the prerequisite conditions under rule 11 (4), (5) and (7) of the Rules. The application is accompanied by among others, a copy of the notice of appeal dated 09/04/2024; the judgment and decree dated 22/03/2024; and the Deputy Registrar's notice to show cause why execution should not proceed which was served to the applicant on 24/07/2024. The argument made by Mr. Makene that the applicant's failure to attach the garnishee order renders the application incompetent has no legal basis, taking into account the garnishee order nisi is not among the requisite document envisaged in rule 11 (7) of the Rules. In compliance with rule 11 (5) (a) and (b) of the Rules, the applicant averred in paragraphs 7 and 8 of supporting affidavit that she will suffer 4

substantial loss if order for stay is not issued because the respondent is unemployed and if the execution order is executed, she may suffer economic loss to recover the money if the appeal succeeds. She is ready to provide security for the due performance of the award, she averred in paragraph 9 of supporting affidavit. In the circumstances of this application, I am inclined to grant this application as I hereby do in terms of rule 11 (3) and (5) of the Rules, on condition that the applicant deposits a bank guarantee in favour of the respondent at the tune of TZS. 15,600,000.00 not later than 30 days from the date of this Order. DATED at DAR ES SALAAM this 12th day of December, 2024. L. L. MASHAKA JUSTICE OF APPEAL Ruling delivered this 13th day of December, 2024 in presence of Mr. Carlos James Cathbeth, learned Advocate for Applicant and Mr. Felix Edward Makene, learned Advocate for the Respondent via Video Conference Linked from Dar es Salaam to Arusha High Court is hereby certified as a true copy