Lilian Sifael vs COCACOLA Kwanza Ltd (Civil Appeal No. 301 of 2025) [2026] TZCA 621 (3 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MKUYE. J.A.. FELESHI. J.A. And NANGELA. J.A.l CIVIL APPEAL NO. 301 OF 2025 LILIAN SIFAEL..............................................................................APPELLANT VERSUS COCACOLA KWANZA L T D ....................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) fPomo, J.1 dated the 21st day of August, 2024 in Labour Revision No. 09 of 2023 JUDGMENT OF THE COURT 7th May & 3rd June, 2026 MKUYE. J.A.: The appellant, Lilian Sifael was an employee of the respondent, Cocacola Kwanza Limited. She was employed on 1/8/2011 in a position of stock and fixed asset accountant and was elevated to the position of Accountant Receivable Supervisor. On 14/8/2015, she was terminated from her employment following a disciplinary hearing held on 11/8/2015 in which she was found guilty of two out of four offences, namely, gross negligence for allegedly giving credit to customers contrary to the Employee Staff Handbook and the Employment and Labour Relation (Code of Good Practice) Rules; and non-compliance with the Company l rules, procedures and policies regarding honest business practices, specifically, by establishing a conflicting business entity, "BE and JOJO Co, Limited/' through family members while she was still a respondent's employee. Aggrieved with that decision, the appellant appealed to the management appellate level but her appeal was dismissed on 20/8/2015. Then, she referred the dispute to the Commissioner for Mediation and Arbitration (CMA) alleging that her termination was both substantively and procedurally unfair. Upon hearing both parties, the CMA ruled against the appellant holding that her termination was fair both substantially and procedurally. This outcome culminated into the lodging of Labour Revision No. 09 of 2023 at the High Court of Tanzania (Labour Division). However, during the revision proceedings, the respondent raised a jurisdictional issue which was the basis of the High Court's decision. In its decision, the High Court observed that, according to rule 10 (1) of the Labour Institutions (Mediation and Arbitration) Rules 2007 (G.N. No. 64 of 2007) (the Mediation and Arbitration) disputes regarding the fairness of a termination are to be referred to the CMA within thirty (30) days from the date of termination. Relying on the Court of Appeal decision in Barclays Bank (T) Ltd vs Jacob Muro, [2020] TZCA 1875, the High Court Judge held that, the date of termination indicated by the complainant in CMA Form No. 1 is the definitive date used to determine if a referral is within the prescribed period. That, the appellant had indicated in the referral Form that she was terminated on 14/8/2015. However, she did not refer the dispute to the CMA until on 28/9/2015, which was after a lapse of a total of 44 days. The High Court, therefore, found that the referral to CMA was 15 days out of time and no condonation was sought and granted. Consequently, the High Court nullified the CMA proceedings and the resultant award and further ordered that the labour dispute be struck out from the CMA record for lack of jurisdiction to entertain it. Aggrieved by that decision, the appellant has lodged the appeal to this Court on three grounds which can be extracted as follows:- One, the High Court misconstrued the provisions of rule 10 (1) of the Labour Institutions (Mediation and Arbitration) Rules, 2007 (GN No. 64 of 2007) (the Mediation and Arbitration Rules); two, the High Court erroneously entertained the issue of jurisdiction on account of the complaint being time barred without considering the time spent on appeal and the date of final determination by the employer on appeal; and three, the High Court failed to determine the issue of whether termination was both procedurally and substantively fair. When the appeal was called on for hearing, the appellant was represented by Mr. Isaya Zebedayo Mwanri, learned advocate whereas the respondent had the services of Mr. Kennedy Mgongolwa, also learned advocate. Both counsel adopted the written submissions filed earlier on in accordance with rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Arguing the appeal through the written submission, Mr. Mwanri, in the first place sought to drop the 3rd ground and argued grounds 1 and 2 co-jointly. It was argued that, the labour dispute based on unfairness of termination was referred by the appellant to the CMA on 28/9/2015. This was after the outcome of the internal appeal dated 20/8/2015 confirming her termination and communicated it to her on 1/9/2015. The appellant contended that the CMA Form 1 indicates two dates of the cause of action or the termination date which is 14/8/2015 and 01/9/2015, being the date when the cause of action arose. The learned counsel explained the sequence of events over the matter whereby it was handled by three arbitrators at the CMA and three High Court Judges until it landed to Hon. Porno J. in which the respondent in reply to the submission by the appellant raised the issue of jurisdiction that the matter was lodged at the CMA out of time which 4 was the determinant issue in the application for revision and struck it out. Mr. Mwanri stressed that, the CMA had jurisdiction to try the matter as it was not time barred. It is his argument that, the High Court Judge misinterpreted the provisions of rule 10 (1) of the Mediation and Arbitration Rules. He elaborated that, rule 10 (1) of the Mediation and Arbitration Rules, gives three scenarios under which time limitation for lodging a % i labour dispute to the CMA can be reckoned. That is, the date of termination, the date the employer made a final decision to terminate the employee and the date when decision to terminate is upheld. According to Mr. Mwanri, this is interpreted by the use of the word "or" meaning the scenarios are to be construed disjunctively and not in similarity. Mr. Mwanri argued further that, in the CMA Form No. 1 filed on 28/9/2015, the appellant pleaded two different dates. At page 6 of the record of appeal, she indicated 14/8/2015 as the date of termination. Yet, at page 7 of the record, she showed that the dispute arose on 1/9/2015. That, the appellant was obliged to indicate the two dates in the CMA Form No. 1 because the date of her termination is different from the date her termination was upheld by her employer and communicated to her - that is, on 1/9/2015 which date was also pleaded as the date when the dispute arose. In his view, counting from 1/9/2015 to 28/9/2015 when the dispute was lodged, only 27 days had lapsed which was within 30 days from when termination was upheld by the employer and not 44 days as suggested by the respondent. He elaborated that, the appellant was terminated on 14/8/2015 (Exh. D 10) (page 579 of the record of appeal). The internal appeal was lodged on 18/8/2015 and determined on 20/8/2015. The outcome was communicated to her on 1/9/2015 (See: Exh D l l and D12 at pages 581 and 582 of the record of appeal). Mr. Mwanri, further, distinguished the case of Barclays Bank (T) Ltd (supra) as it has different scenarios. He, then, urged the Court to find merit in the appeal and allow it, quash the High Court decision and order that the revision be remitted to the High Court for determination. In reply, the respondent counsel through their written submission vigorously opposed the appeal. While conceding to the interpretation of rule 10 (1) of the Mediation and Arbitration Rules made by the counsel for the appellant, Mr. Mgongolwa adamantly submitted that the date to be reckoned is the date of termination indicated in the CMA Form No. 1 and not which upheld the termination. To fortify their argument, they e referred us to the case of Barclays Bank (T) Ltd (supra). He emphasized that, it is important to indicate the date accurately so as to determine if the referral was made within time to enable the court determine if it has the jurisdiction to deal with the dispute. Mr. Mgongolwa did not agree that the date when the dispute arose should be reckoned from the date when termination was confirmed for purpose of determining jurisdiction. It was further argued that, the date of termination indicated in the referral CMA Form No 1, which is 14/8/2015, was the correct date to be relied upon by the trial court (High Court) in accordance with the interpretation rule 10 (1) of the Mediation and Arbitration Rules. According to Mr. Mgongolwa, the date of 1/9/2015 cannot be used to reckon date because the reckoning date is 14/8/2015 as indicated in CMA F. No. 1. (termination date). He added that, assuming 1/9/2015 was the correct date, it was not pleaded in the record. Going by the settled principle of law that parties are bound by their pleadings, the issue of 1/9/2015 cannot arise but 14/8/2015 would stand. The counsel for the respondent concluded that, since the termination date indicated in the referral form at page 9 of record of appeal is 14/8/2015 and being guided by the case of Barclays Bank 7 (T) Ltd (supra), the reckoning date is the date of termination stated in the referral form in conformity with the interpretation by the High Court of the provisions of rule 10 (1) of the Mediation and Arbitration Rules. Thus, counting from 14/8/2015 to 28/9/2015 when the matter was filed at the CMA, it was 44 days which lapsed. Hence, on the basis of their submission, he beseeched the Court to dismiss the appeal for lack of merit. ■ Having examined the grounds of appeal, record of appeal and the respective written submissions together with the counsels' oral submissions, we find that the major issue for the determination is whether the High Court was justified to rule out that the dispute was lodged out of time in contravention of the provisions of rule 10 (1) of the Mediation and Arbitration Rules. While the appellant argued that, there was a misinterpretation of rue 10 (1) by the High Court Judge, the respondent maintained that the same was correctly interpreted. Rule 10 (1) of the Mediation and Arbitration Rules provides as follows:- "10 (1) Disputes about fairness of an employee's termination of employment must be referred to the Commission within thirty days from the date o f termination or 8 the date that the employer made a final decision to terminate or uphold the decision to terminate. "[Emphasis added] As was rightly argued by the appellant's counsel the use of the word "or" connotes "disjunctive" as opposed to "similarity" or "conjunctively" - See: National Microfinance Bank v. Leila Mringo and Others [2020] TZCA 240, where the Court interpreted the use of the term "or" when construing section 40 (1) (a) and (b) of the Employment and Labour Relations Act relating to the reliefs for unfair termination in that the three reliefs cannot be granted conjunctively but disjunctively. The Court stated as follows: "We are settled in our m ind that reinstatem ent or re-engagem ent or com pensation in subsection (i)(a), (b) and (c) o f section 40 o f the ELRA (respectively) m ust be read disjunctively. The word “o r" in the subsection is not conjunctive, it is disjunctive... We thus agree with Mr. Kamala that, by ordering reinstatem ent and com pensation o f twelve m onths' salaries conjunctively the High Court fe ll into an error. It should have ordered disjunctively as the CMA d id ”. 9 We do not have qualms with the interpretation of the said provision which is not opposed by the learned counsel for the respondent that the time limitation of 30 days for filing the dispute at CMA can be reckoned from any of the three alternative scenarios which are one, from the date of termination; two, from the date when the employer made a final decision to terminate; or three, from the date the decision to terminate was upheld. We also agree that the CMA Form No. 1 envisaged the situation by improvising the space to show the date when the dispute arose and the date of termination. These particulars need to be filed separately as shown at page 7 of the record of appeal at item 3 para 2 requiring the complainant to summarize the facts of the dispute sought to be referred in which it requires the complainant to fill the date when the dispute arose and place where it arose. In particular, it reads: "The dispute arose on ............. (Give date, day, month and year)" On that item the appellant pleaded that the dispute arose on 01/09/2015. Also, at page 9 of the record of appeal, Part B item 2 which deals with notice of termination in which the employee is required to give the date of termination. It is couched as hereunder: 10 "2 NOTICE OF TERMINATION Please give the date o f your term ination. In this case, as can be gleaned at page 4 of the record of appeal, the appellant was, through CMA Form No. 1 challenging the fairness of her termination. In item 3, Part A of the said Form (page 7) the appellant stated that the dispute arose on 01/09/2015. At page 8 of the record of appeal, the appellant indicated to have filed the dispute on 28/9/2015. Apart from that, according to item 2 of Part B of the same Form as shown at page 9 of the record of appeal, it indicates that she was terminated on 14/8/2015. We gather from the parties' submission that they are not at issue on the time limit of 30 days for lodging a complaint to the CMA. Also as alluded to earlier on, they converge on the interpretation of rule 10 (1) of the Mediation and Arbitration Rules on the three scenarios under which time for lodging a dispute to the CMA can be reckoned. The crux of the matter is on the date of cause of action in which the appellant asserts that it arose on 01/09/2015 while the respondent maintains that it was on 14/8/2015. The appellant argued that she was terminated on 14/08/2015. On 18/08/2015 she appealed against the decision of disciplinary committee whereupon on 20/08/2015, the respondent made her final decision which was communicated to her on 01/09/2015 (page 7 of the record of appeal) which is the correct date to be reckoned. On the other hand, the respondent contended that the correct date to be reckoned is the date of termination indicated in CMA Form No. 1 which is 14/8/2015. That the date of 01/09/2015 (when the cause of action arose) cannot be used to reckon the time as it was not indicated in the CMA Form No. 1. Going back to the uncontested interpretation of rule 10 (1) of the Mediation and Arbitration Rules, it means that termination can be reckoned from the date of termination, the date when the employer made her final decision to terminate meaning, through internal appealing level; or from the date the employer upheld the decision to terminate. According to what we have unveiled before, it is quite true that the appellant was on 14/8/2015 terminated from employment after the disciplinary hearing that was conducted. It is on record that the appellant appealed to managerial level and the final decision thereof was issued on 20/08/2015. But according to the record, the final outcome was not communicated to the appellant until on 01/09/2015, 12 the date that was indicated by appellant at page 7 of the record of appeal as the date when the course of action arose. Considering the sequence of events and the fact that the date of 01/09/2015 was mentioned in the CMA, we do not agree with the respondent's counsel's proposition that the date of 14/8/2015 should be the reckoning date. Even the date when the final outcome was made cahnot stand as we have not been able to see in the record of appeal that the same was made in the appellants' presence. What we have is the fact that she was availed with the final outcome on 1/9/2015 as clearly acknowledged by appellant at page 7 of the record of appeal. We are mindful of the principle enunciated in the case of Barclays Bank (T) Ltd (supra), that the party has to indicate the date accurately to enable the court determine if the referral was made within time or not for purpose of determining jurisdiction to deal with the matter. However, we find that the case is distinguishable to this case because in said case of Barclays Bank (T) Ltd (supra), only one date was mentioned unlike in this case where two dates were mentioned in response to the information that was required to be filled in the CMA Form No. 1, meaning that, both 14/8/2015 was indicated as the date of termination but also 01/09/2015 was indicated as the date when the cause of action arose. 13 In essence, according to the record of appeal, options nos. 2 and 3 could be applicable in this case. This is so because following the appeal against the disciplinary committee's decision, the appellant appealed to the respondent company which issued its final decision on 20/8/2015. The same was communicated to the appellant on 01/09/2015. It is obvious that the appellant could not take any action before being notified the outcome from the respondent. Thus, in this case we agree that the date of 01/09/2015 was the correct date for reckoning the time and not 14/8/2015 as per the proposition of the respondent because the appellant was still in the process of exhausting the internal appeal stage. Now counting the number of days from 01/09/2015 to 28/09/2015 when the dispute was lodged at the CMA, it was only on the 27th day which was within the period of 30 days required by law. We do not agree with the respondent's counsel that the dispute was lodged after 44 days had lapsed under the circumstances. In this regard, we are satisfied that, there was misinterpretation of rule 10 (1) of the Mediation and Arbitration Rules and we allow this ground. For the foregoing discussion, we allow the appeal, quash and set aside the impugned judgment and the decree thereof. We further order that the matter be remitted back to the High Court to be heard and determined on merit before a different Judge. 14 Since this appeal originates from a labour dispute, we make no order as to costs. It is so ordered. DATED at DODOMA this 1st day of June, 2026. R. K. MKUYE JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Judgment delivered Virtually this 3rd day of June, 2026 in the presence of Mr. Jasseda Erasto, learned Counsel holding brief for Mr. Isaya Zebedayo Mwanri, learned Counsel for the appellant, Mr. Kennedy Mgongolwa, learned Counsel for the Respondent and Mr. Elias Nkwabi, Court clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 15