Bugando Medical Centre vs Theresia Kibao Diku (Civil Appeal No. 270 of 2025) [2026] TZCA 610 (29 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MWANDAMBO. J.A., KENTE, J.A. And MGONYA. J.A.^ CIVIL APPEAL NO. 270 OF 2025 BUGANDO MEDICAL C EN TR E ....... ............................................... APPELLANT VERSUS THERESIA KIBAO DIKU ................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) fDvansobera, 3.1 dated the 12th day of September, 2022 in Labour Revision No. 11 of 2021 JUDGMENT OF THE COURT 20th A pril & 2 9 th May, 2026 MWANDAMBO, 3.A.: At stake in this appeal is a decision of the High Court (Labour Division) sitting at Mwanza, henceforth, the Labour Court in Labour Revision No. 11 of 2021. The Labour Court vacated the award made by the Commission for Mediation and Arbitration (the CMA) for Mwanza made in favour of the appellant in Dispute No. CMA/MZ/NYAM/339/2020 in which, the CMA had dismissed the respondent's labour dispute upon being satisfied that her termination was fair. The appellant resents the impugned decision on three grounds of complaint. The facts which triggered the complaint before the CMA begin with what transpired on 28 July 2020 at the appellant's work premises; Bugando Medical Centre. The respondent who was an employee of the appellant in the post of nursing officer was alleged to have engaged in an act of dishonest, and gross dishonest, against the appellant in collaboration with a non-employee person leading into theft of medicine from the hospital causing a loss of TZS 83,500.00 representing the actual price of the stolen medicine. Subsequently, the appellant preferred a disciplinary charge against the respondent and, afterwards a disciplinary hearing conducted in which the respondent was found guilty as charged a recommendation for termination from employment. The respondent's appeal to the appellate authority; the Director General was not successful. It was dismissed and the decision of the disciplinary committee confirmed. Besides, the appellant had criminal proceedings instituted against the respondent before the District Court of Nyamagana where she stood charged with the offence of stealing by servant. What transpired before the criminal court thereafter is not directly relevant except the act of setting the legal machinery in motion on a criminal charge while the appellant had commenced disciplinary charges against the respondent featured as an issue of contention before the CMA and the High Court. 2 Following the decision of the disciplinary appellate authority as mentioned above, the respondent preferred a labour dispute before the CMA which dismissed it having been satisfied that the appellant had sufficiently discharged its burden proving the fairness of the impugned termination. Upset by the CMA award, the respondent challenged it before the High Court by way of revision predicated upon, amongst other provisions, section 91 (2) (a) and (b) of the Employment and Labour Relations Act (the ELRA) and rule 28(l)(c), (d) and (e) of the Labour Court Rules, G.N. No. 106 of 2007. It is instructive that, section 91 (2) (a) and (b) (redesignated as s.92 (a) and (b) vide Revised Edition of the Laws, 2023) vests jurisdiction in the Labour Court to set aside an arbitration award made by the CMA on grounds that, there was misconduct on the part of the arbitrator and that the award was improperly procured. On the other hand, rule 28(1) of the Labour Court Rules vests power in the Labour Court to revise any decision of the responsible body the CMA included, on the ground that the arbitrator acted illegally or with material irregularity in the exercise of jurisdiction or, that there has been an error to the merits of the subject matter involving injustice. In the founding affidavit accompanying the chamber summons, the respondent pointed five errors allegedly committed by the arbitrator 3 resulting into the impugned award as can be seen in paragraphs 12, 13, 14, 16 and 17 thereof resulting into five legal issues for the court's determination, namely; (a) Whether it was proper for the arbitrator to rule that the termination o f the applicant was substantively fair while the burden o f proof was shifted to the applicant during the said disciplinary hearing and during the hearing before the CMA. (b) Whether it was proper for the arbitrator to draw the conclusion without analyzing the evidence adduced before her. (c) Whether it was proper for the arbitrator to rule that the termination was procedurally fair while it is on record that the applicant was terminated while a t the same time facing a crim inal case. (d) Whether it was proper for the Arbitrator to rule out that the termination was fair substantively while the party whose confessions were relied upon was never called as a witness. (e) Whether it was proper for the Arbitrator to rule out that the termination was fair procedurally while the applicant was never given an opportunity o f mitigation. 4 Before the commencement of the hearing, the respondent abandoned the complaint subject of the 5th issue. The determination of the application rested on the remaining four legal issues. The Labour Court determined the remaining 1st, 2n d and 4th issues conjointly and answered them affirmatively. It did so having been satisfied that the evidence which the appellant relied in finding the respondent guilty of misconduct resulting in her termination was insufficient to conclude that the appellant had a valid and fair reason for terminating her contrary to the CMA's finding. This it did upon evaluation of the evidence at the disciplinary hearing which it found to have been too wanting to sustain a finding of guilt on the charge laid against the respondent through three witnesses. According to the Labour Court, there was no evidence from the three witnesses linking the respondent with involvement in theft of the medicine found with Editha Mgaya who allegedly stated that she was given by the respondent. The learned judge discounted the evidence through video clips and stated: The said witness, however did before the Commission for Mediation and Arbitration\ adm it that one cannot zoom and identify the property. He further adm itted that at the ICU, there is no CCTV Camera and it is forbidden to install them there. This evidence contradicts the witness 11 version at 5 the Disciplinary Committee. Besides, the witness did not identify what the applicant gave to Bi. Editha Mgaya in that envelope [At pages 224 and 225 of the record of appeal]. Similarly, the learned Judge discounted the evidence based on the respondent's confession and stated that the alleged confession was, but an ambiguous one which could not have resulted in finding respondent guilty of the charge of misconduct; dishonesty and gross dishonesty to the employer causing loss/damage by involving herself and aiding to employer's property (medicine) in collaboration with the non-employee Editha Mgaya. Besides, the court was satisfied that the respondent's termination was without a fair procedure. It concluded thus that, the termination was unfair both substantively and procedurally and vacated the CMA's award resulting into the instant appeal. However, the Labour Court found no merit in the complaint subject of the 3rd issue negatively having been satisfied that the criminal charge against the respondent were instituted after the disciplinary proceedings had been concluded. In any event, it reasoned that they were not substantially the same and thus, section 37(5) of the ELRA had not been violated. 6 Initially, the appellant had advanced three grounds in the memorandum of appeal but, as mentioned earlier on, against the impugned decision through, its learned advocate abandoned the 3rd ground and addressed the Court on the remaining 1st and 2n d grounds faulting the High Court for (1) determining the issue on procedural impropriety by the disciplinary committee suo motu without hearing the parties and (2) vacating the CMA's award and holding that the respondent's termination was substantively and procedurally unfair. At the hearing of the appeal, the learned advocate stood by the written submissions without more. Essentially, Mr. Nasimire criticizes the High Court in the 1st ground for determining the application for revision beyond the parameters of the grounds complained of by the respondent against the CMA's award in relation to procedural aspects. Counsel argues that, whereas the respondent's complaint against the CMA's award on procedural aspects confined itself to taking disciplinary proceedings parallel with criminal charges contrary to section 37 (5) of the ELRA, the court went beyond that by indulging into what transpired at the disciplinary hearing on which the respondent had no issue. Counsel referred the Court's decisions in The Director of Public Prosecutions v. Jane Charles [2024] T7CA 407; Said Mohamed Said v. Muhsin Amiri & Another Said Mohamed Said vs Muhusin 7 Amir & Another [2022] TZCA 208 and The Director of Public Prosecutions v. Shitula William & Another [2024] TZCA 423 to argue that a decision on an issue raised by the court suo motu in the course of composing a judgment without affording parties a hearing renders it a nullity. He invited the Court to take a similar path in this appeal and vacate the decision for being a nullity to that extent. Mr. Innocent Michael, learned advocate who also stood by the written submissions in reply he had lodged earlier on, resisted this ground. However, counsel conceded in his oral address when responding to a question from the Court and was candid in his response that, the discussion and determination on procedural aspects on which there was no complaint by the respondent without inviting the parties was a fatal irregularity which rendered the decision in that regard a nullity. All the same, Mr. Michael was stout that, the termination was found to be substantively unfair by the High Court. In view of the concession by the learned advocate for the respondent, we need not belabor on the issue more than necessary. We need only stress the point that, since the respondent had no qualms about the procedure apart from the alleged parallel proceedings, to wit, disciplinary and criminal proceedings which the learned judge rejected as being baseless, it was, with respect wrong for him to have engaged himself as he did, dealing with the alleged procedural flaws. That route was irregular in two respects. One, there was no material upon which the Labour Court could have made a determination this way or the other through the chamber summons and the founding affidavit. Secondly, if the Labour Court found it necessary to address the alleged procedural irregularities, it was bound to summon the parties to address it on such irregularities. Doing the way, it did, the Labour Court breached the fundamental right to be heard which rendered its decision on that aspect a nullity in line with the Court's decisions cited to as by Mr. Nasimire and conceded by Mr. Michael. Without further ado, we find merit in the 1st ground and allow it with the net effect that the finding of the Labour Court on the alleged procedural infractions is hereby quashed. The 2n d ground relates to the finding by the Labour Court on the existence of valid reason for termination and with a fair procedure. However, in view of our determination of the 1st ground, a discussion on whether the respondent's termination was upon a fair procedure will be superfluous. Our discussion will therefore be confined to whether the High Court rightly held that the appellant failed to prove that the respondent was terminated upon a valid and fair reason. Mr. Nasimire faults the High Court in this ground contending that there was uncontested evidence of confession by the respondent during hearing at the CMA. He argues that, in the context of the charge against the respondent which resulted into her termination, the court strayed into error in holding that the appellant did not prove existence of a valid reason for termination. On the contrary, he submitted that the appellant's evidence at the CMA through its four witnesses sufficiently proved the charge implicating her and Editha Mgaya of the involvement in the theft of the medicine found with the said Editha Mgaya. Counsel argues that, the respondent's counsel did not object the admissibility of the confession (exhibit SU1) which constituted the appellant's evidence proving existence of a valid reason for the impugned termination. He also contended, that the respondent confessed before the CMA of the commission of the offence. On the overall, it was submitted that, the appellant proved the fairness of the termination on the balance of probability. By and large, the learned advocate for the respondent supports the Labour Court's decision because, according to him, the impugned scrutinised and analysed the evidence and came to the conclusion that appellant failed to discharge its evidentiary burden proving on balance of probability that the termination was fair. 10 Our starting point in the determination of this ground will be to revisit rule 12 (1) (a) of the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007 which stipulates: "Any employer, arbitrator or judge who is required to decide as to termination for misconduct in unfair shaii consider: (a) Whether or not the employee contravened a rule or standard regulating conduct relating to employment". The respondent was charged with and terminated on dishonesty and gross dishonesty contrary to Bugando Medical Centre Staff Service Regulations, 2010 as amended, read together with rule 12 (3) (a) of the Code of Good Practice Rules together with Guideline 9 (5) of the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and procedures. The CMA upheld the appellant's decision having been satisfied that the appellant discharged its burden proving fairness of the termination. It is pertinent that, in holding that the termination was not fair, the Labour Court dwelt on what transpired during the disciplinary having rather than the evidence appellant adduced before the CMA which it found sufficient to prove that the termination was substantively and procedural ly fair. l i As alluded to earlier on, the jurisdiction of the Labour Court to revise the awards made by the CMA is derived under section 92 (a) and (b) of the ELRA which stipulates: "92. - (1) A party to an arbitration award made under section 89(10) who alleges a defect in any arbitration proceedings under the auspices o f the Commission may apply to the Labour Court for a decision to set aside the arbitration award: (a) within six weeks o f the date that the award was served on the applicant unless the alleged defect involves improper procurement; and (b) if the alleged defect involves improper procurement) within six weeks o f the date that the applicant discovers that fact." On the other hand, rule 28 (1) of the Labour Court Rules provides: "The Court may, on its own motion or on application by any party or interested person, call for the record o f any proceedings which have been decided by any responsible person or body implementing the provisions o f the Acts and in which no appeal ties or has been taken thereto, and if such responsible person or body appears: (a) to have exercised jurisdiction not vested in it by law; or 12 (b) to have failed to exercise jurisdiction so vested; or (c) to have acted in the exercise o f its jurisdiction illegally or with m aterial irregularity; or (d) that there has been an error m aterial to the m erits o f the subject matter before such responsible person or body involving injustice,..." It follows, therefore, that in determining whether the award was sustainable or not, the Labour Court need only look at the evidence adduced before the CMA and not the evidence presented at the disciplinary hearing. It is glaring that the conduct of the hearing before the CMA is governed by the Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 of the 2007. That means, in exercising its power of revision, the Labour Court was bound to confine itself to the evidence adduced before the CMA and satisfy itself if there was any error on the merits of the resultant award involving injustice warranting an order revising. The above said, it is crystal clear from the award of the CMA at page 156 and 157 of the record of appeal that the Arbitrator made a finding that the appellant had a valid reason for terminating the respondent based on evidence indicating attempt to steal medicine from the ICU found with Editha Mgaya who mentioned the respondent as the 13 person who had given her. Besides, not only there was evidence through the respondent's confession (exhibit SU1) but also, the CCTV footage showing the respondent coming from the ICU with a bag which she gave to a hospital staff who ultimately handed it to Editha. Furthermore, the fact that the medicine found with Editha Mgaya was the property of the appellant was proved by Lufingo Kosam Mwaipopo at page 75 of the record of appeal showing that the batch number of the said medicine tallied with the medicine in the custodian of the respondent. That evidence was corroborated by John Pemba Makono Malonja (SU2) at page 76 of the record who stated the ceftriaxone injection had been received as an aid from an American organization called Amercare by the appellant which could not have been obtained from any pharmacy. Had the Labour Court directed its mind to the evidence adduced at the CMA, it could not have come the conclusion that the appellant failed to discharge its burden as required of it by section 40(1) of the ELRA. On the contrary, like the CMA, we are satisfied and respectfully agree with the learned advocate for the appellant that the appellant sufficiently proved existence of valid reason which led to the respondent's termination as rightly found by the CMA. In the upshot, we find merit in the 2n d ground. In the event, we find merit in the appeal and allow it. The decision of the Labour Court is set aside restoring the CMA's award dismissing the respondent' complaint. Each party shall bear own costs. DATED at DODOMA this 29th day of May, 2026. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL Judgment delivered virtually this 29th day of May, 2026 in the presence of Mr. Anthony Nasimire, learned counsel for the Appellant, Mr. Innocent Michael, learned counsel for the Respondent and Mr. John Banene, Court Clerk is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 15