M.S Sahara Media Group Limited vs Joyce Cyril Mwacha (Civil Application No. 631/18 of 2023) [2024] TZCA 916 (20 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 631/18 OF 2023 M/S SAHARA MEDIA GROUP LIMITED ................................. ...... APPLICANT VERSUS JOYCE CYRIL MWACHA ...................................................... RESPONDENT (Application for stay of execution of the decree of the High Court of Tanzania (Labour Division) at Dar es Salaam) fWambura, 3 .^ dated the 7th day of August, 2020 in Revision Application No. 229 of 2019 RULING 17th & 20th September, 2024 ISSA, 3.A.: By a Notice of Motion filed under rule 11(3), 11(4), ll(5)(a),(c), 11(6), 11(7) (b),(c),(d) and 48(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) the applicant had sought to move this Court to order a stay of execution pending hearing and determination of the intended appeal. The application is supported by an affidavit sworn by Neriah Martin Mbillah, the assistant human resources and administration manager of the applicant company.

The application is resisted by the respondent not only by way of an affidavit in reply, but also by a notice of preliminary objection of which was filed under rule 107(1) and (3) of the Rules, and served on the applicant. So when the application came up for hearing, I had to start with the preliminary objection. Mr. Odhiambo Kobas, learned counsel who advocated for the respondent, had raised one point of objection which goes thus: "The Decree intended to be stayed is incapable o f being executed and therefore incapable o f being stayed . " In order to appreciate the essence of the present application, it is opportune to narrate a brief background facts on the dispute between the parties. The respondent was employed by the applicant company and her employment ended on 5th July, 2016 when she resigned. She contended that she was forced to resign, which amounted to constructive termination. Hence, she filed Labour Dispute No. CMA/DSM/KIN/R.661/16/612 at the Commission for Mediation and Arbitration (the CMA) which delivered the award on 13th February, 2017 in favour of the respondent. It ordered the applicant to pay the respondent TZS. 39,653,132.00 which is one month's salary in lieu of notice, one month's salary as annual leave, twelve month s

salary as compensation for unfair termination and severance allowances for five years. Aggrieved, the applicant lodged Revision No. 229 of 2019 at the High Court (Labour Division) (Revision No. 229) which was dismissed for want of merit on 7th August, 2020. Still aggrieved, the applicant lodged a notice of appeal to the Court on 14th August, 2020. On the other hand, the respondent filed Labour Execution No. 286 of 2023 to enforce the award of the CMA. She served the applicant with the application for execution on 17th August, 2023. In response, the applicant filed this application to stay the execution of the decree in Labour Revision No. 229. Returning to the preliminary objection raised, Mr. Kobas submitted that the decree which the applicant had sought to be stayed is incapable of being stayed. He pointed out that rule 11(3) of the Rules presupposes that the application for stay of execution is pegged on the decree appealed against, but in the instant application the decree appealed against is for Revision No. 229 which dismissed the application for revision. The decree did not confer any right to any party, hence, in capable of being executed. He added that, what the respondent is executing is the CMA award which is not subject of this application for stay of execution. He prayed for this

application to be dismissed as it is incapable of being stayed. To bolster his argument he cited the Court's decision in Keith Horan and 3 Others v. Zameer Sherali Rashid, Civil Application No. 230/15 of 2019 [2019] TZCA 438 (6 December 2019, TANZLII). In response, Mr. Khalfan Hamisi Msumi, learned advocate for applicant submitted that the Revision No. 229 is executable and capable of being stayed. If the decree is stayed the execution of the CMA award will be frozen. He added that, the case of Keith Horan (supra) is distinguishable as the decree in that case granted no executable right, while the decree in Revision No. 229 granted executable right which can be stayed. Unfortunately, he failed to substantiate what was the right which was granted. Further, he submitted that rule 11(7) of the Rules lists the documents to be attached with the application for execution. In the instant application all the requirements have been met. He prayed for the objection to be dismissed with costs. In a brief rejoinder, Mr. Kobas argued that the decree in Revision No. 229 clearly stipulated that, it dismissed the application for want of merit. This is not executable, he said, as it granted no right. He reiterated his prayer for the dismissal, but he did not press for costs as the application emanates from labour matter.

I shall now proceed to determine the preliminary objection whether the Court has jurisdiction to entertain the application for stay of execution when the decree sought to be stayed is non executable. In this application the applicant cited rule 11 of the Rules which is particularly dealing with stay of execution. Starting with rule 11(3) it provides: (2) In any civil proceedings, where a notice of appeal has been lodged in accordance with Rule 83, an appeal shall not operate as a stay o f execution o f the decree or order appealed from nor shall execution o f a decree be stayed by reason only of an appeal having been preferred from the decree or order; but the Single Justice may upon good cause shown, order stay execution o f such decree or order" This provision is very clear that the power of the Court under this rule is restricted to staying the execution of the decree or order appealed from. That is to say the said power can only be exercised to halt the execution of a decree or order made by the High Court which is the subject of the intended appeal to the Court pursuant to a notice of appeal already lodged (See - Keith Horan (supra)). In the instant application, the applicant seeks a stay order against the judgment of the High Court in Revision No. 229 which dismissed the

application for revision for want of merit. The judgment of the High Court and the decree, therefore, are non-executable as it gives no right to any of the parties capable of being executed. The position of the law was settled by a Single Justice in Athanas Albert and Four Others v. Tumaini University College, Iringa [2001] T.L.R. 63 where confronted with similar matter he held: "It seems to me that a stay o f execution can properly be asked for where there is a court order granting a right to the respondent or commanding or directing him to do something that affects the applicant In such a situation the applicant can meaningfully ask the court for a stay and to restrain the respondent from executing that order pending the results o f an intended appeal . " The above decision was followed by the Court in numerous decisions such as Hamisi Mohamed (as the administrator of the Estate of Risasi Ngawe, Deceased) v. Mtumwa Moshi (as Administrator of the Estate of Moshi Abdallah, Deceased), Civil Application No. 526/17/2016 [2019] TZCA 249 (21 August 2019, TANZLII) and Dimon Tanzania Limited v. The Commissioner General Tanzania Revenue Authority and 2 Others, Civil Application No. 89 of 2005 (unreported).

Reverting to the issue at hand, the decree of the High Court dismissing the applicant's application for revision granted no executable right. Hence, incapable of being stayed and that, this Court cannot stay the execution of CMA award as it is not the subject of the instant application or the intended appeal to the Court as evidenced by the notice of appeal lodged by the applicant. In the circumstances, I find the application misconceived and I strike it out. As this application emanates from the labour matter I make no order as to costs. DATED at DAR ES SALAAM this 20th day of September, 2024. The Ruling delivered this 20th day of September, 2024 in the presence of Mr. Khalfan Msumi, learned advocate for the Applicant and Mr. Michael Kabekenga, learned advocate for the Respondent, is hereby A. A. ISSA JUSTICE OF APPEAL certf W. A. HAMZA EPUTY REGISTRAR COURT OF APPEAL 7