Sammy Mathale vs Lydia Festo Mwambashi (Civil Appeal No. 728/18 of 2024) [2024] TZCA 1310 (20 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 728/18 OF 2024 SAMMY MATHALE ........ ....................... ..... .....................APPLICANT VERSUS LYDIA FESTO MWAMBASHI ............. ........................ ........... RESPONDENT (In the matter of an Application for an order of stay of execution of the decree of the High Court of Tanzania, Labour Division at Dar es Salaam) fMoanqa. J.l dated the 12th day of August, 2024 in Revision Application No. 7462 of 2024 RULING OF THE COURT 20th November 2024 & 23rd January, 2025 MURUKE. J.A.: This is an application for stay of execution made under Rule 11(3), 4, 4A, 5a, and b, 6 and 7 of the Tanzania Court of Appeal Rules, 2009 (the Rules) in which the applicant seeks to have the judgement and decree of the High Court of Tanzania (Labour Division) at Dar es salaam in Revision application No. 7462 of 2024, Mganga J, stayed pending determination of the intended appeal. The application is supported by an affidavit deponed by Sammy Mathale, the applicant explaining the reasons why the application should be granted. The respondent Lydia Festo Mwambashi, filed replying affidavit to contest the application.

Initially, the applicant employed the respondent as domestic worker receiving salary of 500000 per month before her termination on 3 April 2023. Aggrieved the respondent filed labour complaint at CMA, claiming unfair termination on the basis of no justifiable reasons and procedural defects. On 29th February, 2024, CMA having heard evidence from both parties decided that, there was valid reason for termination. On procedural aspects it was ruled that, procedures provided under rule 13 of the Employment and Labour Relations (Code of Good Practice) GN 42 of 2007 cannot apply to the applicant who was employed as domestic worker without modifications. In short, the arbitrator found that termination was fair both substantively and pracedurally and dismissed the complaint Lydia Festo Mwambashi, the respondent was unhappy with the dismissal of her complaint, thus referred Revision at the High Court Labour Division. Upon both parties being heard on revision, High Court, revised and quashed CMA dismissal order and replaced with payment of 6,769,231= Tsh. as the respondent entitlement after being satisfied that, termination was unfair both substantive and procedural. The applicant was not satisfied with High Court Judgment on Revision, thus filed Notice of Appeal on 20/08/2024. On the same date, the respondent also filed Notice of execution and served the applicant on 29/08/2024, for hearing

on 30/08/2024. Upon being served with execution notice, the applicant filed present application for stay of execution of the decree sought to be executed. At the hearing of the application, before me, the applicant was represented by Ms. Inviolata Wangoma, learned counsel, whereas the respondent was represented by Mr. Hassan Salum Hassan also learned counsel. Upon the applicant being asked to take the floor and expound the application, Ms. Wangoma prayed to adopt the Notice of Motion, and the supporting affidavit sworn by the applicant. In her brief explanation the applicant's counsel submitted that, the applicant has complied with Rule 11(3) 4(a) (5) and (7) of Court of Appeal Rules as amended from time to time. Furthermore, the respondent has attached the applicant's company car with registration No. T.396 D.W. W Lexus which is a company car, referring annexure S-3 Certificate of car registration proving that the same is registered in the company name SPORT Bet. If execution will proceed then, the applicant will lose the job. Ms. Wangoma insisted that the applicant is ready to furnish security as may be ordered by the Court. On the other hand, the respondent's counsel resisted the application, on the following reasons:

One, there is no proof attached on the car sought to be attached that the said car belongs to the company M-BET. Two, the applicant has averred at paragraph 7 that, the Court of Appeal has allowed execution to proceed with fact is not true. The Court of Appeal has never been an executing Court, Three, there is no irreparable loss explained by the applicant because the car sought to be attached is not company car, as there is no proof of the ownership. In totality the applicant has not fulfilled the requirements for the Court to grant stay of execution insisted the respondent's counsel. In rejoinder, the applicant's counsel admitted that averment at paragraph 7 is a lie as this Court has not executed decree sought to be challenged, and more so, annexure S-3 is not car registration card, rather, is an execution form. Despite short falls Ms. Wangoma insisted that, the Court should grant the application and stay decree sought to be executed at the High Court (Labour Division). Having heard both counsels and gone through affidavit for and against the application, it is worth noting that, in an application for stay of execution is governed by Rule 11 of the Rules. Sub-rule (4) of the said Rules requires the application of this nature to be filed within 14 days of service of notice of execution on the applicant or from the date he/she

became aware of the existence of the application for execution. More so, Rule 11(5) of the Rules provides that: No order for stay of execution shall be made under this rule unless the Court is satisfied that:- (a) Substantial loss may result to the party applying for stay o f execution unless the order is made; (b) Security has been given by the applicantfor the due performance o f such decree. From the affidavit in support of the application it is clear that, present application was lodged on 11th September 2024, after the applicant served with notice of execution on 29th August 2024, thus the application was lodged after lapse of 11 days since served, indeed it was well within time. On the issue of security, the applicant at paragraph 9 of his affidavit has undertaken to furnish security as may be ordered by the Court. The above notwithstanding there is serious anomaly in the applicant's affidavit supporting Notice of Motion. One, it contains lies at paragraph 7 that read as follows: "That on scheduled 3Cfh August 2024 this honourable Court allowed the respondent to proceed with the Execution No.434 o f 2022 by providing proofthat the attachedproperty belongs

to the applicant since stay o f execution has not been lodged yet". The above averments is a lie as correctly submitted by the respondent's counsel, and admitted by the applicant's counsel, because this Court is not an executing Court. More so, did not hear the application for execution. It should be noted that, an affidavit being sworn evidence reduced in to writings is an important evidence to support the Notice of motion in the case at hand. As the affidavit sworn by the applicant contain lies, as correctly admitted by the applicant's counsel, contaminate the trust worth of the same. Two, allegations that, the attached car with registration No. T396 DWW Lexus belongs to the company not the property of the applicant, and once execution is carried out, the company activities will be made to stand still, is not backed up by any evidence. It is a mere statement without any proof. It was expected that the car registration card or information from Car Registration Authority be attached to prove the averment. There is none. How can the Court be moved to believe such an averment? Three, issue of substantial loss, is one of the requirements under Rule 11(5) (a) before order for stay of execution is issued by the Court. Such a requirement has not been complied with because the

alleged attached car ownership to the company not the applicant has not been proved. In the circumstances of the affidavit supporting the application containing lies, and failure by the applicant to attach Car Registration Card to prove ownership, present application cannot be granted. In totally application for stay of execution stand dismissed with no order as to costs as same originates from employment dispute. DATED at DAR ES SALAAM this 23rd day of January, 2025. Z. G. MURUKE JUSTICE OF APPEAL The ruling delivered this 23r d day of January, 2025 in the presence of Mr. Moses Mvungi holding brief for Ms. Annamary Ishengoma, learned counsel for the Applicant and Hassan Salum Hassan, learned counsel for the Respondent, is hereby certified as a true copy of the original.