Tanzania Cigarette Company Limited vs Elizabeth Kipuyo (Civil Application No. 780/18 of 2023) [2024] TZCA 910 (19 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 780/18 OF 2023 TANZANIA CIGARETTE COMPANY LIMITED ...... ........................ APPLICANT VERSUS ELIZABETH KIPUYO..................................................................RESPONDENT (Application for stay of execution of the decree of the High Court of Tanzania (Labour Division) at Dar es Salaam) (Mipawa. J.^ dated the 28th day of October, 2016 in Labour Revision No. 326 of 2015 RULING 10th & 19th September, 2024 MLACHA. 3.A.: By a notice of motion made under rules 11(3), (4), 4A, 5(a) and (b), ll(7)(a), (b), (c) and (d) and 48(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant is seeking for an order of stay of execution of the decree of the High Court (Labour Division) made in Revision No. 326 of 2016 (original CMA/DSM/TEM/2013) pending hearing and determination of the appeal before the Court. To understand the matter properly, the background facts are stated briefly as follows; the respondent was employed by the applicant in January, 2017 in the position of supplies assistant. She was terminated on 30th April, i

2013 on allegations of gross misconduct. That, she was found in possession of 4 packets of cigarettes as she was exiting the gate after the day's work. She was sent to the disciplinary committee accused of theft and gross dishonest. Her defence that they were for personal use was dismissed by both the disciplinary committee and the management. Her employment was terminated on account of charges levelled against her. She lodged a case at the Commission for Mediation and Arbitration (the CMA) to contest her termination. The termination was declared unfair with the usual consequences. The applicant filed a revision at the High Court which upheld the decision of the CMA. It ordered restatement without loss of remuneration plus a compensation of twelve (12) months' salary. Aggrieved, the applicant has lodged an appeal which is pending before the Court. While the appeal is pending, the applicant was served with a notice of execution of the decree hence the application pending before me. The grounds upon which this application is based, as reflected in the notice of motion and paragraphs 15 and 16 of the supporting affidavit, can be put thus;

1. That, the respondent has filed execution proceedings at the High Court notice of which has been served to the applicant. 2

2. That, the amount involved, TZS. 487,943,379.48 is colossal which if collected can affect the operating o f the applicant.

3. That, the respondent will not be in a position to refund the money in case the appeal succeeds.

4. That, the respondent will suffer nothing if the appeal will not succeed because the applicant can pay him.

5. That, the appeal has overwhelming chances o f success.

6. That, the balance of convenience tilts towards the granting of the application. The applicant was represented by Mr. Pascal Kamara, learned advocate, whereas the respondent had the service of Messrs. Godfrey Silayo and Josia Samwel, also learned advocates. Upon taking the floor, Mr. Kamara adopted the contents of the notice of motion and the supporting affidavit as part of his oral submissions and urged me to grant the application. Amplifying, he contended that all the conditions for granting orders of stay of execution as provided under rule 11 of the Rules have been met. He contended that the application was lodged within 14 days, all the documents required to be attached have been attached, the applicant has demonstrated that they are likely to suffer irreparable loss if the orders will not be issued and that she is also ready and willing to furnish security for the due performance of the decree. He cited to me our decision in NBC vs. Saolgo Holdings Ltd and another, Civil Application No. 137 of 2016 where it was stated that once the conditions 3

have been complied with, the orders for stay of execution must be granted. He urged me to grant the application. In reply, Mr. Samwel intimated to me that, para 16 (a) (b) and (c) of the affidavit supporting the application must be expunged because it raises serious issues of the operations of the company for which the applicant's counsel could not have personal knowledge. He cited to me our decision in Tanzania Breweries Ltd vs. Herman Bildad Minja, Civil Application No. 11/18 of 2019. On the merits of the application, Mr. Samwel contended that the respondent has a right to execute the decree. He added that, much as the Court has discretion in making orders of stay of execution but there must be good cause which includes chances of substantial loss to the applicant. He contended that substantial loss was demonstrated in paragraph 16 but this is the offending paragraph which must be strike out on the grounds stated. Further, there is no indication that, the applicant company can be affected if the decree is executed. He cited to me our decision in Elia Mwamafupa & 11 others v. The Board of the Registered Trustees of the Baptist Church of Tanzania, Civil Application No. 526 of 2024 where failure to demonstrate substantial loss denied the applicant orders of stay of execution. He urged the Court to dismiss the application.

Mr. Silayo supported the submission of Mr. Samwel stressing that the applicant has failed to demonstate substantial loss. When Mr. Kamara was invited to comment on defects of the affidavit, he resisted strongly saying that if Mr. Samwel needed to challenge paragraph 16 of the affidavit, he was supposed to raise it as a point of preliminary objection in which case parties could get a chance to prepare themselves and address the Court. He urged me to disregard the point. He contended further that paragraph 16 demonstrated substantial loss and showed how the applicant's operations can be affected if execution is carried out. He added that all what has been submitted by Mr. Samwel are not in the affidavit in reply. He restated his earlier stance that the application has merits. I think I should start with the alleged offending paragraph of the affidavit. It was submitted by Mr. Samwel that all that is stated in paragraph 16 of the affidavit touch internal operations of the company which the counsel for the applicant cannot be said to have personal knowledge. Mr Samwel invited me to strike out the paragraph and proceed to find that facts stated in the remaining paragraphs cannot support the application which must be dismissed. Mr. Kamara contended that this being a point of law

ought to have been raised at an early stage. He invited me to disregard it. I agree with him. Much as points of law can be raised at any stage, but I think Mr. Kamara had a right to be notified in advance and prepare his defence. Failure to notify him at an early stage reduced the point to an afterthought and or an unnecessary ambush which is not in the interest of justice. I will reject it. That beside, I have tried to look at paragraph 16 (a) - (e) but I could see nothing which can be termed as internal operations of the company. Para 16 contains matters of genera! knowledge for which the counsel for the applicant must have been aware of through documents which came to him. It follows that the paragraph 16 not defect as alleged. Next is the merits of the application. My look of the record and submissions made before the me proves that the application is meritorious on the following grounds; One, the application was made within 14 days as required by rule 11(4) of the Rules because the notice of execution was served on 13/10/2023 and the application was filed on 18/10/2023; five (5) days later. Two, the notice of appeal, judgment, decree and notice of execution are attached in the affidavit as required by rule 11(7) of the Rules. Three, substantial loss and security for due performance of the decree have 6

been pleaded in paragraphs 15 and 16 of the affidavit and dully substantiated during submissions as intimated above. There is therefore compliance to rule 11 (5) (a) and (b) of the Rules. That said, in the exercise of the powers of the Court under rule 11(6) of the Rules, I stay the execution of the decree of the High Court made in Revision No. 326 of 2015 (original CMA/DSM/TEM/2013) pending hearing and final determination of the appeal. As a condition thereto, the applicant directed present a bank guarantee in the sum of TZS. 487,943,379.48 within 60 days from today. It is ordered so. DATED at DAR ES SALAAM this 19th day of September, 2024. The Ruling delivered this 19th day of September, 2024 in the presence of Mr. Eric Kanga, learned counsel holding brief for Mr. Pascal Kamara, learned counsel for the Applicant and Mr. Godfrey Martin Silayo, learned counself " ............... ' 'ue copy of the original. L. M. MLACHA JUSTICE OF APPEAL