Serengeti Breweries Limited vs Bahati Balthazar Malisa (Civil Appeal No. 622 of 2024) [2026] TZCA 623 (3 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM : WAMBALI. J.A.. MAIGE, J.A. And MDEMU, 3. A.) CIVIL APPEAL NO. 622 OF 2024 SERENGETI BREWERIES LIMITED... ........................ .................... APPELLANT VERSUS BAHATI BALTHAZAR MALISA ......................... ........................... RESPONDENT (Appeal from the Ruling of the High Court of Tanzania at Moshi) (Monqella, J.) dated the 16th day of April, 2024 in Labour Application No. 18 of 2018 JUDGMENT OF THE COURT 30th April & 3rdJune, 2026 MDEMU. J.A.: The Commission for Mediation and Arbitration (the CMA) for Kilimanjaro held that, the respondent was unfairly terminated by the appellant in the post of Logistics and Warehouse Controller on 23r d August, 2013. It thus awarded him sixty (60) months' salary compensation, severance pay for four (4) years and a clean certificate of service. In a further legal action, the revision proceedings which was preferred by the appellant to the High Court of Tanzania, Labour Division, in order to challenge that award, was fruitless as it was struck out for being incompetent. The appellant then lodged the notice of appeal for appealing to the Court but it yielded zero results as it was dismissed through Civil Application No. 158/15 of 2017 for failure to serve the notice of appeal on the respondent within time. Following this judicial action, the appellant took a different course, this time, it moved the High Court to extend time for revision in Labour Application No. 18 of 2018. In those proceedings, Mkapa, J. dismissed the application for failure to establish good and sufficient cause. The appellant further appealed to the Court of Appeal and through Civil Appeal No. 356 of 2020, it was noted that, though illegality, as a ground for extension of time was pleaded, the High Court did not determine it. For the stated reason, the Court vacated the High Court decision and remitted the matter for it to determine the said illegality as a ground for extension of time, and thereafter, compose a fresh judgment. The High Court complied with that order and on 16th April, 2024, she dismissed the application on account that, the appellant had failed to demonstrate sufficient cause to persuade the court, in the exercise of its discretion, to extend time for revision. The appellant was again aggrieved; thus, it filed four grounds of appeal. However, at the hearing, the 1s t, 2n d and 3rd grounds of appeal were abandoned. The remaining ground reads as follows: 2 "The High Court Judge erred in law in not holding that the appellant adduced sufficient reasons for extension of time." On 30th April, 2026, Mr. Erick Denga, learned advocate for the appellant and the unrepresented respondent, appeared before us for hearing of the appeal. Both the learned counsel and the respondent stood by the contents of their written submissions they had filed in that behalf for and against the appeal and made few clarifications. Relying on the affidavits of Lucia Minde, Elizabeth John Mlemeta and George Stephen Njowoka, the learned counsel submitted that, the basis of the delay to file revision to the High Court is apportioned fourfold, that is, technical delay, diligence as opposed to negligence or laxity, illegality and accounting for days of the delay. Submitting on technical delay as a ground for extension of time, Mr. Denga made reference to Lyamuya Construction & Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania (Civil Application No. 2 of 2010) [2011] TZCA 4 and Bank M T. Ltd v. Enock Mwakyusa (Civil Application No. 520 of 2017) [2018] TZCA 291 (both from TANZLII) and argued that, since Labour Revision No. 13 of 2015 was filed within time, the period between the filing of the said application through when the notice of appeal was marked withdrawn, be termed as a technical delay. In his argument, it did not end 3 on the date the application for extension of time was lodged as meted out by the High Court. He further referred us to the case of YARA Tanzania Limited v. DB Shapriya & Company Limited (Civil Application No. 498/16 of 2016) [2017] TZCA 296 (TANZLII) cementing his argument. He also asked us to consider the principle stated in Tanzania Electricity Supply Company Limited v. Dowans Holdings SA (Costa Rica) & Another (Civil Application No. 142 of 2012) [2013] TZCA 437 (TANZLII) arguing that, the High Court wrongly dismissed the application because the appellant could not have initiated an application for extension of time in the pendency of the notice of appeal in the Court. Regarding accounting for days of the delay, the controversy of the parties lies on the period between 20thJuly, 2018 when Civil Application No. 158 of 2017 was dismissed to 16thAugust, 2018 when the notice to withdraw the notice of appeal was filed. Mr. Denga stated that, the period of almost 27 days was accounted for because the ruling was supplied to the appellant on 16th August, 2018 and the same day a notice to withdraw the notice of appeal was filed. As to the existence of illegality in the impugned decision, Mr. Denga argued that, it is only paragraph 4 (c) of the affidavit of Mr. George Stephen Njooka that constitute illegality in which, the learned High Court Judge is blamed for considering extraneous matters. He thus pegged the illegality on 4 that account and reminded us of the legal principle that, once illegality is pleaded, the duty of the court is to extend time so that the alleged error should be corrected. He mentioned the alleged illegality in his oral submission that, the record of appeal shows termination of employment on disciplinary matters while the respondent's criminal charges were pending in court. The unfairness of termination was based on this evidence. It is an error in the decision which need to be corrected on revision, if given extension of time. Having submitted as in the foregoing, it was Mr. Denga's argument that, as the appellant managed to establish sufficient cause, the High Court ought to have extended time for revision. In reply, as it was to Mr. Denga, the respondent also stood by the contents of his written submissions. In both oral and written submissions, the respondent's concern was on the appellant's failure to account for almost 75 days as per the findings of the Court in Civil Application No. 158/5 of 2017 as reflected in the record of appeal. He did not therefore attach such reasoning to constitute technical delay as a ground for extension of time but rather, as evidence for want of diligence on the appellant's side to account for each day of the delay. As to illegality, the respondent replied that, in the absence of the CMA record, no any illegality may be noted to surface apparently on the face of the record. The respondent added that, what the appellant contemplated as 5 illegality, in fact, it is not because, as well founded by the learned High Court Judge, requires long drawn arguments for the resolutions. He further argued that, even the concern of the appellant that the decision was based on extraneous matters, is an afterthought because it was raised in the written submissions. We have given due consideration of the parties' written and oral submissions, along with the ground of complaint raised by the appellant. The main thrust of the appeal for our consideration is whether the learned High Court Judge rightly found that the appellant had failed to establish sufficient cause warranting the exercise of the court's discretion to extend time for revision. It is trite law that, in an application for extension of time, courts have discretion power to extend time upon taking into account that, the applicant has demonstrated sufficient cause to allow the Court to exercise such discretion judiciously. For that matter, accounting for days of the delay, establishing the presence of illegality and indicating existence of technical delay, are matters usually judiciously considered in the exercise of the discretion to extend time. In the appeal before us, we need to consider whether the learned High Court Judge judiciously exercised her discretion in deciding that, the 6 appellant had failed to establish sufficient cause for extension of time. The learned High Court Judge made the following findings: "In the foregoing, it is dear that only the period from the date of Labour Revision No.13 of 2015 was filed to 15.07.2016 when it was struck out and up to 20.07.2018 when Civii Application No.158 of 2017 was dismissed, is covered under technical detay. The rest of the events are not covered as the applicant was not pursuing any matter in the Court ofAppeal or any other court. The filing of the notice for withdrawal of the notice of appeal and the events that followed thereafter, cannot be termed as prosecuting the matter before the court for them to be covered under technical delay.” We understand that, the appellant's concern on technical delay lies on inclusion of the period and events which followed after 20th July, 2018. However, we entirely agree with the findings of the learned High Court Judge that, an excusable technical delay does not cover events which followed after 20th July, 2018. We are saying so because, according to the ruling of the Court, the appellant's application to have time extended for it to serve the respondent the notice appeal was dismissed. From that date, there was no any meaningful business in court corridors by the appellant to challenge the decision that refused extension of time to serve the notice of appeal on the respondent which, in our view, would have constituted an 7 excusable technical delay as a ground for extension of time. In the circumstances, this leads us to consider whether the appellant accounted for days of delay on the days which followed 20th July, 2018 to 12th December, 2018 when the application for extension of time was lodged. In accounting for the days of the delay, as we alluded to above, the controversy for the parties lies on the period between 20th July, 2018 when Civil Application No. 158 of 2017 was dismissed to 16th August, 2018 when the notice to withdraw the notice of appeal was filed. According to the depositions in paragraphs 9,10,11 and 12 of the affidavit of George Stephen Njooka, the appellant's counsel had internal correspondences on the legal action to take, follow-ups of certified ruling and lodging of a notice to withdraw the notice of appeal. There are simitar depositions in accounting for the days of delay in paragraphs 8, 9 and 10 of the affidavit of Lucia Minde. The High Court considered that evidence and it held that: "In essence , the applicant has failed to account for each day of the delay. For example, the ruling in Civil Application No. 158 of 2017 was delivered on 20.07. 2018. It was until 16.08.2018, 27 days later, that the notice for withdrawal was filed in the relevant Court ofAppeal registry." On his part, Mr. Denga submitted that, the period of almost 27 days was accounted for because, the ruling was supplied to the appellant on 16th 8 August, 2018 and the same day, a notice to withdraw the notice of appeal was filed. If we understood well the learned counsel, the appellant was waiting to be supplied with certified ruling for him to proceed with the filing of the notice of withdrawal of the notice of appeal. By all standards, we are not persuaded by that line of argument. First, the three affidavits are silent if at all the appellant ever requested to be supplied with the certified ruling. Second, the learned counsel, George Stephen Njooka was present during the delivery of the said ruling as deposed in paragraph 10 of his affidavit. Therefore, he was aware of the dismissal of the application for extension of time to serve the respondent with the notice of appeal. Third, in our respective view, the preparation and filing of a notice of withdrawal of the notice of appeal does not require the presence of a ruling of the Court which denied extension of time to serve the notice of appeal. In the circumstances of this appeal, the appellant, having contemplated the need to withdraw the notice of appeal and knowledge that the Court had denied extending time to serve the respondent that notice, sufficed to move the Court to file the notice to withdraw that notice of appeal. Demands to wait and possess the ruling as complained by the appellant, were luxurious at that stage. We also note that, it took almost 20 days from 19th November, 2018 when the notice of appeal was withdrawn to 12th December, 2018 when the 9 application for extension of time for revision was filed. We note further that, under paragraph 5 of the affidavit of Elizabeth John Mlemeta, the appellant was waiting to be supplied with an order of withdrawal which he was served on 7th December, 2018, for him to lodge the application for extension of time. We again find no substance in this argument. First, that, there is no evidence regarding mechanisms deployed for the follow-ups and second, even if there was one, yet, in our view, its absence, in the circumstances of this appeal, would not have prevented the appellant to apply for extension of time. We find that the appellant was aware from 20th July, 2018 that its application to serve the notice of appeal out of time on the respondent was dismissed and thereafter contemplated to file an application for extension of time for revision. In the circumstances, to us, it is evident that the appellant was not diligent enough. As to illegality being a ground for extension of time, paragraph 4 (c) of the affidavit of Mr. George Stephen Njooka provides that: 4. The Commission for Mediation and Arbitration award is tainted with illegalities as follows: (c) The arbitrator erred in law and in fact for considering matters which were not part of the proceedings. In the foregoing deposed paragraph of the affidavit, the main complaint which, in the appellant's stance, constitutes illegality is the so- 10 called extraneous matters considered by the learned High Court Judge in her decision. However, the affidavit is silent on what are those matters which the learned Judge considered as extraneous and which also constitute apparent error on the face of the record. Mere averment in the affidavit that the decision took account of extraneous matters without pointing out which are those matters, and in what part of the decision are they found, in our view, is not evidence of presence of illegality in the impugned decision. It has been stated repeatedly that, for illegality to constitute a ground within which time may be extended, it must be apparent on the face of the record. See Charles Richard Kombe v. Kinondoni Municipal Council (Civil Reference No. 13 of 2019) [2023] TZCA 137 (TANZLII). We note further that, the learned counsel for the appellant mentioned the alleged illegality in his oral submission that, the appellant terminated the respondent's employment on disciplinary matters while criminal charges were pending in court, and the decision termed it to amount to unfair termination. However, the appellant did not plead specifically in the affidavit. It was submission of the learned counsel which emerged in the course of hearing of the appeal. In light of what we have demonstrated above, we are of the view that the appellant has failed to establish sufficient cause, be it in the form of accounting for the days of the delay, grounds of illegality and that of technical delay. In the circumstances, we find nothing material to fault the findings of the High Court Judge. Accordingly, the appeal is hereby dismissed with no order as to costs. DATED at DODOMA this 29th day of May, 2026. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered this 3rd day of June, 2026 via virtual Court, in the presence of Mr. Godfrey Daniel, learned counsel for the Appellant, the Respondent appeared in person and Ms. Hilda Mcharo, Court Clerk; is hereby certifie py of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 12