Rose Ongara and Others vs National Health Insurance Fund (Civil Appeal No. 562 of 2022) [2026] TZCA 598 (22 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LEVIRA J.A.. MASHAKA. 3.A. And NGWEMBE, J.A.) CIVIL APPEAL NO. 562 OF 2022 ROSE ONGARA................................................................................ jst APPELLANT JANE KIJAZI N CH IM BI................................................................. 2 nd APPELLANT GODFREY SEM W ENDA..................................................................3 rd APPELLANT VERSUS NATIONAL HEALTH INSURANCE FU N D ........................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mqanqa, 3.) dated the 31st day of March, 2022 in Revision Application No. 313 of 2020 RULING OF THE COURT 20th April, 2026 & 22nd May, 2026 MASHAKA. J.A.: Before the date of hearing of this appeal, pursuant to rule 107 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the National Health Insurance Fund (the NHIF), the respondent, filed a notice of preliminary objection on 15/4/2026 raising a point of objection that: "The appeal is untenable and bad in law for being preferred out o f the prescribed tim e o f the law i

contrary to rule 90 (1) and (3) o f the Tanzania Court o f Appeal Rules, 2009 as amended for being accom panied by an invalid certificate o f delay." At the hearing of the objection, the appellants had the services of Mr. Sabas Shayo, learned counsel whereas Ms. Grace Lupondo assisted by Mr. Matamus Fungo, both learned Senior State Attorneys and Mr. Erigh Rumisha, learned Sate Attorney, represented the respondent. Ms. Lupondo submitted that pursuant to rule 90 (1) of the Rules, which.is couched in mandatory terms, an appeal must be lodged within 60 days from the date the Notice of Appeal was lodged. The Notice of Appeal in this appeal, was lodged on 28/04/2022 seen at page 747 of the record of appeal. Subsequently, the 60-days period lapsed on 27/06/2022. However, the appeal was lodged on 5/12/2022, well beyond the prescribed time limit. Ms. Lupondo acknowledged that the proviso to rule 90 (1) of the Rules allows for the exclusion of days taken by the Registrar in preparing the requested certified copies of the proceedings, judgment, and decree. She explained that to benefit from this exclusion, the Registrar must issue a certificate of delay, which the appellants may rely on upon proof of two essential elements: first, that a letter requesting the certified copies was

served on the respondent within time; and second, that a letter from the Registrar notifying the appellant to collect the same was duly issued. She contended that the certificate of delay dated 6/10/2022 at page 754 of the record of appeal, is defective and invalid in law. Her argument rested on three issues. One, the certificate made reference to letters that are not found anywhere in the record of appeal, specifically the appellant's letter dated 20/04/2022 and the Registrar's letter dated 6/10/2022. Two, the alleged letter dated 20/04/2022 was never served upon the respondent, for proper reckoning of days for the appellant to benefit from the certificate of delay thereby contravening rule 90 (3) of the Rules, with the consequence that the appellants cannot benefit from the certificate of delay. Third, the Registrar's purported notification to the appellants on 6/10/2022 to collect the requested certified copies is missing from the record of appeal. She emphasized that the notification letter from the Registrar is crucial to enable the proper reckoning of any benefit from a certificate of delay. The learned Senior State Attorney, further observed that, correspondence at pages 752 to 753 of the record of appeal reveals a letter from the appellants to the Registrar of the Labour Court dated 12/07/2022, acknowledging receipt of certified copies. Significantly, the

last paragraph of that letter, at page 752, shows that the appellants acknowledged receiving certified copies of the CMA proceedings on 11/07/2022. She argued that since the appellants acknowledged receipt within the 60 days period, they were in fact within the prescribed time to file the appeal. In addition, the learned Senior State Attorney, argued that even if certain documents were still missing, rule 96 (7) of the Rules provides an appellant with the option to file documents informally or formally before the Court. She emphasized that the appellants were nonetheless required to observe the time limit for filing the appeal. She bolstered her arguments, by referring us to our decisions in District Executive Director Kilwa District Council v. Bogeta Engineering Limited, (Civil Appeal No. 37 of 2017) [2019] TZCA 24 [20 February 2019], Bobsaith Logistics Company Limited & Another v. DHL Tanzania Limited, (Civil Appeal No. 315 of 2022) [2025] TZCA 548 [3 June 2025] and Mwalimu Amina Hamisi v. National Examination Council of Tanzania & 4 Others, (Civil Application No. 20 of 2015 [2019] TZCA 248 [24 June 2019], and implored us to sustain the preliminary objection and strike out the appeal which is incompetent.

In response, Mr. Shayo first addressed the discrepancy regarding the date of a letter from the Registrar of the Labour Court. He argued that while the record of appeal at page 754 referred to a letter dated 28/08/2022, the Registrar had mistakenly referred to the same letter as dated 20/08/2022. He conceded that this typographic error appeared in the certificate of delay, which referred to an incorrect date not reflected in the letter at page 724 of the record of appeal. He referred the case of Juma Sitta Bundara & Others v. Kideemining T. Limited (Civil Appeal No.239 of 2019) [2022] TZCA 47 (22 February 2022), where the Court overruled a similar preliminary objection and granted leave to file a supplementary record of appeal under rule 96 (7) of the Rules to cure such minor defects. He further submitted that the error was committed by the Registrar, and citing Tanzania Revenue Authority v. Tango Transport Company Ltd (Civil Application No. 5 of 2006) [2008] TZCA 211 (25 April 2008), that the appellants should not be penalized for errors made by court officials. Mr. Shayo addressed on the certificate of delay, which stated that a letter dated 6/10/2022 was sent by the Registrar to the appellants informing them to collect requested certified documents. Although he

conceded that this letter was not included in the record of appeal, he argued that this omission was not fatal. He submitted that the Court should allow the appellants to file the missing document by lodging a supplementary record of appeal under rule 96 (7) of the Rules, referring the case of Bansons Enterprises Ltd v. Mire Artan (Civil Appeal 26 of 2020) [2022] TZCA 111 (1 December 2022), that an appellant may be granted leave to take such action. Since the omission did not render the appeal time-barred, he implored the Court to grant leave accordingly. The attack on the certificate of delay by the learned Senior State Attorney that the appeal ought to have been lodged within 60 days from the date the notice of appeal was lodged, it was his submission that in view of the certificate of delay, the argument lacks foundation. He contended that the learned Senior State Attorney attacked the certificate of delay basing on the letter at pages 752 to 753 of the record of appeal, that the appellants had acknowledged receipt of the CMA proceedings on 11/7/2022. Mr. Shayo contended that the said letter contained peculiar circumstances in which the Labour Court had relied and determined the application for Revision based on untyped CMA proceedings. He further added that the supply of the Labour Court proceedings and decisions was

not enough for the appellants because the Labour Court was bound to supply all the certified copies. He urged the Court not to consider the letter dated 12/7/2022 at page 753 of the record the appeal, as that is not a correct date the appellants were informed to collect the remaining copies. He referred us to the date mentioned in certificate of delay to be the exact date when the appellants were notified to collect the CMA proceedings, and not otherwise. The date is 6/10/2022 and there is no such letter from the Registrar of the Labour Court notifying the appellants to collect the said copies. Therefore, he concluded that the cases referred by the learned advocate for the respondent are distinguishable from the present appeal and the defect is not fatal. He humbly submitted that the preliminary objection should be overruled and prayed for leave of the Court to file a supplementary record of appeal, which cures the omission. Mr. Shayo qualified that the letter at page 752 of the record of appeal, which shows the date 11/7/2022 as to when the CMA proceedings were availed to them is part of the record of appeal. Ms. Lupondo in her rejoinder, sought for the Court's consideration, that the certificate of delay made under rule 90 (2) of the Rules, is required to be substantially as Form L specified in the First Schedule to the Rules.

The form refers the date the appellants requested the Registrar of the Labour Court to be supplied with copies of certified documents for appeal purposes and the date when the Registrar notified the appellants to collect the certified copies of documents. It was her submission that rule 96 (5) of the Rules imposes an obligation on the advocate for the appellants to certify on the correctness of the record, thus, the learned counsel has to be stopped from blaming the Registrar of the Labour Court. She distinguished the case of Tanzania Revenue Authority v. Tango Transport Company Ltd (supra) from the present appeal, in the former there was a typographical error on the date shown in the copies of documents to the respondent which the Registrar was a source, while that is not the issue in this appeal. The certificate of delay cannot salvage the appeal as per the letter at pages 752 to 753 of the record of appeal where the appellants had already collected the remaining copies. After all, she emphatically argued that the learned counsel had collected CMA proceedings since 11/7/2022, whether formally or informally and lodged the appeal on 5/12/2022. She implored the Court to disregard the argument by the appellants as they both had an obligation and duty under rule 90 (5) of the Rules. She firmly maintained that there is no letter 8

dated 6/10/2022 from the Registrar, while the appellants had collected the certified copies since 11/7/2022 from the CMA. She reiterated their prayer. Having heard the submissions for and against the preliminary objection and examined the record of appeal, the issue for our determination centers on the competence of the appeal, specifically whether the appeal is time barred. The submissions of both parties' hinge on rule 90 (1) and (3) of the Rules, which govern the time within which an appeal must be lodged. As rightly argued by Ms. Lupondo, rule 90 (1) of the Rules is couched in mandatory terms that an appeal shall be lodged within sixty days from the date of filing a Notice of Appeal. However, the proviso to rule 90 (1) excludes from the computation of this period any days used by the Registrar in preparing and furnishing certified copies of the proceedings, judgment, and decree, provided that the appellant had duly requested such copies (see, Bobsaith Logistics Company Limited & Another v. DHL Tanzania Limited (Civil Appeal No. 315 of 2022) [2025] TZCA 548 (3 June 2025) Rule 90 (3) of the Rules further requires that a copy of the letter requesting certified copies be served upon the respondent. To benefit from

the exclusion, the Registrar must issue a certificate of delay under rule 90 (2) of the Rules, which the appellant may rely upon as proof of the period required for preparation of the record. It is settled law that failure to write a letter requesting a copy of the proceedings, or even failure to copy and serve that letter upon the respondent, disentitles the appellant from relying upon the exemption under rule 90 (1) of the Rules. In such circumstances, any certificate of delay purportedly issued to grant an exemption would be invalid. (See, Bulyanhulu Gold Mine Limited & Others v. Petrolube T. Limited & Another (Civil Appeal No. 527 of 2020) [2021] TZCA 640 (2 November 2021). In the instant appeal, it is undisputed that the Notice of Appeal was lodged on 28/04/2022. Therefore, the sixty days period prescribed under rule 90 (1) of the Rules expired on 27/06/2022. The appeal itself was lodged on 5/12/2022, a delay of over five months. The appellants seek to rely on a certificate of delay dated 6/10/2022 gleaned at page 754 of the record of appeal to exclude the period from the alleged request to the alleged notification for collection of certified copies.

We find the certificate of delay dated 6/10/2022 to be incurably defective and invalid for three interrelated reasons, each of which is fatal and could not salvage this appeal. First, the certificate of delay references a letter from the appellants to the Registrar Labour Court requesting for certified copies dated 20/04/2022 and a letter from the Registrar to the appellants dated 6/10/2022 notifying the appellants on the collection of the requested documents. As argued by the learned Senior State Attorney, neither of these letters appears in the record of appeal. She correctly observed that the Registrar's notification letter of 6/10/2022, the very document that marks the end of the excusable period is entirely missing. Without that letter, the Court cannot determine the number of days to be excluded. The Court in Olepasu Tanzania Limited t/a Maxam East Africa v. Heineken Brouwerijen B.V & Another (Civil Appeal 321 of 2019) [2022] TZCA 568 (23 September 2022), when faced with a similar situation in which the notification letter from the Registrar on the availability of the requested documents was missing in the record, it held: - "We thus wish to emphasize that the presence o f the letter o f notification is im portant for ascertaining the period between the date o f request li

to the date o f notification. The said letter is intended to facilitate the issuance o f a certificate o f delay that reflects a verifiable and definite latest cut-off date from which the sixty days within which to lodge an appeal under Rule 90 (1) o f the Rules , , starts to run. Therefore, in the instant appeal, since the dates indicated in the certificate o f delay is not borne out o f the record, we agree with Mr. Ndazi that the said certificate cannot be relied upon for containing unverifiabie inform ation" Second, the certificate of delay fails to comply with rule 90 (3) because there is no evidence that the alleged request letter of 20/04/2022 was ever served upon the respondent. Service of the request letter on the respondent is not an optional courtesy; it is a mandatory condition precedent to benefiting from the proviso to rule 90 (1). In Samwel Mwera Seyange v. District Executive Director, Tarime District Council & Others (Civil Appeal No. 133 of 2020) [2023] TZCA 17793 (6 November 2023), the Court underscored: - "The purpose o f serving a copy o f the letter to the respondent is only to enable him to prepare him self for the case. It is also relevant in com putation o f the period o f lim itation for fillin g an appeal." 12

In light of the above excerpt, the appellants cannot rely on the certificate of delay so long they had failed to serve the respondent with the request letter. Third, the appellants' letter to the Registrar of the Labour Court at pages 752 to 753 of the record of appeal, dated 12/07/2022, acknowledges receipt of certified copes of the CMA proceedings on 11/07/2022. That acknowledgment is binding on the appellants. It demonstrates that the appellants had obtained the essential certified copies well within the sixty days period. The appellants cannot now claim that the Registrar's purported notification of 6/10/2022 is the operative date for reckoning the exclusion period. Mr. Shayo sought to salvage the appeal by making two arguments. First, he pointed to a typographical error in the certificate of delay, which referenced 20/08/2022 instead of 28/08/2022. Second, he argued that the missing notification letter from the Registrar could be supplied through a supplementary record under rule 96 (7) of the Rules. In support of the submission, he relied the case of Juma Sitta Bundara & Others v. Kideemining T. Limited (Civil Appeal No. 239 of 2019) [2022] TZCA 47 (22 February 2022).

With due respect to the learned counsel, this case is distinguishable from the present appeal. In Juma Sitta Bundara (supra), the Registrar had issued two certificates of delay; the first on 9/03/2015 and the second on 9/03/2018. The Court considered the discrepancy to be a typographical error, and a valid certificate of delay had simply been omitted from the record of appeal. That is not the situation here. In the present appeal, the certificate of delay refers to a letter that was never served upon the respondent, and the Registrar never issued the purported notification letter to the appellants. These are not minor typographical errors; they are fundamental defects that go to the validity of the certificate of delay. The entire foundation for excluding time in the certificate of delay is invalid because the Registrar's notification letter is missing, service on the respondent is unproven, and the appellant's own simultaneous correspondence contradicts the certificate of delay. Rule 96 (7) of the Rules allows for the filing of a supplementary record of appeal if the missing document has been issued as the Court clarified in Bansons Enterprises Ltd (supra); leave to file a supplementary record presupposes that the appeal was lodged within time. That is not the case here as there is nothing can be supplemented as the said letter was never issued by the Registrar. 14

In addition, the argument of Mr. Shayo that the appellants should not be penalized for the mistake of the court officials and his reliance on the case of Tanzania Revenue Authority (supra) is misplaced. The error in that case was a typographical mistake by the Registrar. Here, the error is not attributable to the Registrar; it is the appellants' failure to serve the request letter on the respondent, the appellants' acknowledgment of receipt of certified copies on 11/7/2022, the principle from Tanzania Revenue Authority v. Tango Transport (supra), cannot be stretched to cover appellants' own neglect. Further, the argument of the learned counsel that letter of 12/07/2022 should not be considered because the Labour Court was duly bound to supply all certified copies, and the CMA proceedings were insufficient. We are not persuaded with his argument. The appellants, through that said letter, acknowledged receipt of the CMA proceedings. If other documents were still missing, Ms. Lupondo correctly pointed out that the appellants had an option to file an appeal even when some documents are missing. The appellants could have lodged the appeal within time and later supplemented the record. In the circumstances, we are satisfied that the appellants cannot benefit from the excluded period indicated in the invalid certificate of delay. 15

The appeal was lodged on 5/12/2022 after lapse of more than seven months from the date of lodging the notice of appeal on 28/4/2022; beyond the prescribed time limit of sixty days. Thus, the appeal is time barred. For the foregoing reasons, the preliminary objection is sustained. The incompetent appeal is hereby struck out. We make no order as to costs as this is a labour matter. DATED at DAR ES SALAAM this 20th day of May, 2026. M. C. LEVIRA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Ruling delivered this 22n d day of May, 2026 in the presence of Mr. Sabas Shayo, learned counsel for the Appellant and Mr. Tumainiel Paul, learned State Attorney for the Respondent and Ms. Janekissa Bukuku, Court clerk, is hereby certified as a true copy of the original.