Rockson Komanga vs Mkombozi Commercial Bank (Civil Appeal No. 1506 of 2025) [2026] TZCA 581 (15 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA rm RAM : KEREFU. J.A.. MWAMPASHI, 3.A. And ISMAIL, 3.AJ CIVIL APPEAL NO. 1506 OF 2025 ROCKSON KOMANGA ............................................................APPELLANT VERSUS MKOMBOZI COMMERCIAL BANK.................... ..................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Labour Division at Dar es Salaam) fMwipppo, 3 ^ dated the 16th day of October, 2020 in Labour Revision No. 948 of 2018 JUDGMENT OF THE COURT 2 JdApril 3 15th May, 2026 ISMAIL. J.A.: Tlie appellant was an employee of the respondent until 20th May, 2017, when his services with the respondent were dispensed with, on disciplinary grounds. He preferred a complaint to the Commission for Mediation and Arbitration (the CMA) but he lost, as the CMA found that the termination was substantively and procedurally fair. His further challenge to the High Court, Labour Division, partly succeeded as the termination was adjudged substantively fair but procedurally unfair. The court awarded, as a consequence, six months' salaries as compensation for unfair termination, and another sum, equal to six months' salaries as subsistence 1 allowance for belated repatriation. It is this decision that has rattled the appellant, hence the instant appeal, Brief facts as gleaned from the record of appeal inform that, the appellant was employed by the respondent on permanent and pensionable terms, on 24th September, 2013. His initial position was that of a loan officer (microfinance) at St. Joseph Branch in Dar es Salaam. On 1s t June, 2015, he was transferred to Mwanza Branch where he continued serving on similar terms and conditions, until 10th June, 2016, when his efforts were rewarded through a promotion to the rank of a credit supervisor (corporate). Things turned awry and took an ugly turn on 23r d February, 2017, when a 30-day suspension was imposed on the appellant, to allow an investigation into allegations of contravening the respondent's Loan Policy by irregularly verifying disbursement of salaried loans to 57 purported employees of Sahara Group Company Limited. It was alleged that, the irregularity put the respondent at the risk of losing a humongous sum of TZS. 438,132,607.97. The suspension was lifted on 28th March, 2017, and the appellant resumed work on 29th March, 2017. The appellant's reprieve was short-lived as, on 30th March, 2017, he was served with a letter requiring him to respond to allegations of misconduct relating to violation of the Loan Policy. His response to the allegations failed the respondent's satisfactory test, and what followed thereafter was an invitation to attend a disciplinary hearing. This was done vide a letter served on the appellant on 15th April, 2017. The disciplinary meeting held on 19th April, 2017, found the appellant guilty of the charged violations. It, consequently, terminated the appellant's employment. His appeal to a higher authority within the respondent's disciplinary set up did not yield the results he desired. As a result, on 20th May, 2017, the appellant was served with a letter of termination, effectively severing his employment relationship with the respondent. His quest for justice took him to the CMA where his complaint hit a snag. It was dismissed for want of merit. The CMA took the view that, the termination was, in all respects, fair. Bemused by the decision, the appellant took his battle to the High Court, Labour Division, through revision proceedings which were instituted on 18th December, 2018. In a decision delivered on 16th October, 2020, the High Court partly varied the decision. Whilst it found that the termination was substantively fair, it took an exception to the procedure that was employed in handling the termination. In the end, it set aside the CMA award. As it did that, it awarded the appellant an aggregate sum of TZS. 35,583,250.00. This sum constituted six months' salaries/ being compensation for unfair termination, and six months' salaries to cover subsistence allowance for belated repatriation. The decision of the High Court did very little to placate the appellant who still considered that the sum awarded was paltry. He took a bold decision of taking a scale up to this Court. The memorandum of appeal on which the instant appeal is premised has two grounds of appeal. These grounds are coined as follows: 1. The learned Judge erred in law in holding that there was no justification for payment o f subsistence allowance from the date o f termination to the date o f payment o f repatriation costs. 2, The learned Judge erred in law for ordering payment o f the sum equal to six months' salaries as subsistence allowance instead o f the payments for the whole period that the appellant awaited payment o f the repatriation costs. Ahead of the hearing of the appeal before us and, pursuant to rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009, the parties filed their written submissions in support of or in opposition to the appeal. When the appeal came up for hearing, Mr. Haron Oyugi, learned counsel, featured for the appellant, whereas Messrs Makaki Masatu and Mlingi Mkucha, both learned counsel, represented the respondent. Mr. Oyugi, who pulled the trigger first, prayed to adopt the appellant's written submissions with a few highlights on important aspects of the appellants contention. Regarding ground one of the appeal the appellant's contention is that, an employer's duty to repatriate a terminated employee is cast upon him by section 44 (1) of the Employment and Labour Relations Act, Cap. 366 R.E. 2023 (the ELRA). It is the same provision that imposes the duty to pay subsistence allowance to cover the period between the time of termination of employment and the date of transporting the employee and his family to his place of recruitment. He referred us to the decision of the Court in Pangea Minerals Limited v. Gwandu Majali [2021] TZCA 414, in which the said requirement was underscored. The appellant's counsel argued that, it is clear that, the appellant's place of recruitment was Dar es Salaam, and that, his testimony during the proceedings in the CMA, showed that, he was not paid his repatriation costs after his termination. He quoted Simon Luoga, DW1, who admitted in his testimony that the appellant had not been paid his benefits, including repatriation costs. On the absence of evidence that the appellant was still in Mwanza subsequent to his termination, the appellant strenuously argued that, the fact that, he instituted his complaint in Dar es Salaam does not extinguish his right to repatriation as provided in section 44 (1) of the ELRA. He lashed out at the reasoning of the learned Judge of the High Court, arguing that such reasoning was not well grounded in law, On ground two of the appeal, the contention by the appellant's counsel was that, the learned Judge's holding was influenced by extraneous factors. He contended that, since no repatriation costs were paid, the appellant could not move his family from Mwanza to Dar es Salaam. The appellant urged us to be persuaded by the testimony of DW1 and hold that, he was entitled to be paid full subsistence allowance and not part payment as ordered by the High Court. The learned appellant's counsel was also of the contention that, while termination was effected, there is no evidence that subsequent thereto, other terminal benefits were paid to the appellant. He discounted the contention that the respondent was owed by the appellant and that such sums were netted-off from the terminal benefits. He argued that, if that was true, then evidence ought to have been adduced to prove the existence of the outstanding liability. In addition to the written submissions, Mr. Oyugi delved into the concept of mitigation of damages which was covered in the respondent's written submissions. On this, the learned counsel's argument is that, no evidence was adduced to the effect that the respondent paid repatriation costs to the appellant. He contended that, while the burden of proof lies on the respondent to prove that she repatriated the appellant, it is clear that no payment was made since 2017, when the employment was terminated. Mr. Oyugi argued further that, the principle of mitigation of costs would be rightly invoked if the respondent had made the payment of the repatriation costs or reached out to the appellant and agree on the matter. He valiantly contended that circumstances of this case did not call for the applicability of the said principle. On the cases cited by the respondent, Mr. Oyugi's argument is that, these are of no relevance as they depict an old position. The learned counsel argued that, the current legal regime dictates, in no uncertain terms that, an employer who fails to repatriate must pay subsistence allowance for the entirety of the period during which the payment of repatriation costs remained due. Mr. Oyugi urged us to allow the appeal and reverse the findings of the High Court on the aspect of payment of repatriation costs. In his reply written submissions which he adopted and elaborated on, Mr. Masatu began by leaping to the learned Judge's defence, arguing that his reasoning was fair and in line with both statutory and case law. He argued that, section 43 (1) (c), now section 44 (1) (c) of the ELRA was intended to cover terminated employees who were yet to be repatriated to their places of recruitment. He elaborated that, this beds well with the purpose of payment of subsistence allowance which is to sustain an employee prior to his being transported to his place of recruitment, He buttressed his argument by referring us to a trio of decisions of the Court in Paul Yustus Nchia v. National Executive Secretary CCM & Another, Civil Appeal No. 85 of 2005 (unreported); Elidhiana Fadhili v. The Executive Director Mbeya District Council [2014] TZCA 186; and Gasper Peter v. Mtwara Urban Water Supply Authority (MTUWASA) [2019] TZCA 28. Mr. Masatu was of the contention, as well, that there is evidence (referring us to page 137 of the record of appeal) to the effect that, the appellant informed the CMA, upon filing his complaint, that he had since shifted from Mwanza to Dar es Salaam, a place of his recruitment. He referred us to page 6 of the record of appeal at which Form No. CMA FI is found. He argued that the form stated that the appellant's address for s service was Kinondoni, Dar es Salaam. By the counsel's reckoning, the appellant remained in Mwanza for only two months and six days after the termination. He considered the six months' salary award by the High Court as excessive and undeserving. The respondent's counsel introduced the principle of mitigation of damages, and his assertion was that, the decision of the High Court which is under the cosh, embodied the principle of mitigation of damages when it took into account the uncontroverted evidence to the effect that the appellant had already moved to his place of recruitment. He argued that this principle requires that, a terminated employee must take action to reduce damages. He drew our attention to the decision of the defunct Court of Appeal for East Africa in Southern Highlands Tobacco Union Limited v. David Mcqueen [1960] 1 E.A. 490; and those of this Court in Paul Yustus Nchia (supra); and Kenya Kazi Security v. Kirobotoni & Others [2024] TZCA 821. Mr. Masatu contended that, what the appellant did is what is referred to as self-repatriation which is an allowable practice. He maintained that it is not fair to pay an ex-employee as if he is still at his work station, yet the High Court granted all of that. On the cases cited by his counterpart, the argument by Mr. Masatu is that, they are all distinguishable as none of that spoke about self-repatriation. He wound up by urging us to hold that, the decision of the High court was fair and that, the appeal should be dismissed. We have read the record of appeal, the parties' written submissions and heard the counsel's oral representations. One crucial fact that is undisputed is that, subsequent to termination of employment and until the institution of the complaint in the CMA, the appellant had not been paid repatriation costs to his place of recruitment. This is what has triggered the narrow issue that is before us now. This is whether the appellant deserves to be paid subsistence allowance and, if so, what is the quantum of such payment? It is common ground that, matters relating to payment of terminal benefits are governed by law and the relevant provision is section 44 (1) of the ELRA which stipulates as follows: "44,-(1) Where an employee's contract o f employment is terminated at a place other than where the employee was recruited, the employer shall either- (a) transport the employee and his personal effects to the place o f recruitment; (b) pay for the transportation o f the employee to the place o f recruitment; or (c) pay the employee an allowance for transportation to the place of recruitment in accordance with subsection (2) and daily subsistence expenses during the period, if any, between the date o f termination o f the contract and the date o f transporting the employee and his family to the place o f recruitment. (2) An allowance prescribed under subsection (1)(c) shall be equal to at least a bus fare to the bus station nearest to the place o f recruitment (3) For purposes o f this section, " recruit" means the solicitation o f any employee for employment by the employer or the employer's agent "[Emphasis added]. What we discern from this postulation is that, where the employer takes time in repatriating the terminated employee, such employer is under obligation to pay subsistence allowance to cover the period between the time of termination and that of repatriating the employee or paying the cost of repatriation. The parties are haggling over whether such payment should run from 20th May, 2017, to the date when the order for payment of repatriation costs was made. Mr. Masatu holds the view that, it should ii not, as the appellant self-repatriated himself barely two months later, meaning that damages were mitigated. Mr. Oyugi is not convinced that his counterpart's contention is well grounded. We shall begin with this aspect. At pages 137 - 138 of the record of appeal, the proceedings of the CMA conducted on 26th July, 2017, are recorded. They reveal that the appellant appeared through his advocate, a certain Mr. Patrick Daud, who prayed in Kiswahili, as follows: "Ninaomba shauri hiii HsikiHzwe CMA-Dare sa Salaam kwa sababu mfaiamikaji baada ya kuachishwa kazina mwajiri wake amehama makazi D'Sa/aam ambapo pia mwajiri wake Makao makuu yapo D'Saiaam.... ” In literal English translation, the appellant's counsel prayer was to the effect that, the appellant's complaint should be presided over by the CMA for Dar es Salaam because the appellant had since shifted his residence to Dar es Salaam, a place at which the respondent'shead office is also located. This tallies with information that the appellant filled in Form No. CMA FI. At page 6 of the record of appeal, the appellant identified himself as a resident of Kinondoni Dar es Salaam, with his Post Office Box number being 33861, Dar es Salaam. The clear impression is that, as early 12 as 20th June, 2017, the appellant had already set his residence in Dar es Salaam. This aspect was picked by the learned Judge of the High Court, at page 365 of the record of appeal, when he pronounced himself on the matter. He, as well, was convinced that no evidence existed to prove that the appellant was in Mwanza during the period in question. He took the view that, since the appellant notified the CMA of his relocation to Dar es Salaam, there was no justification to pay subsistence allowance from the date of termination to the date of payment of repatriation costs. We think the learned Judge was justified in his reasoning. Having relocated to the place of recruitment, the appellant was not entitled to any payment of subsistence allowance which is meant to take care of an ex-employee's prolonged stay at his last work station. As Mr. Masatu contended, rightly so in our considered view, this is considered to be self-repatriation or self- initiated return which occurs where, although the duty of arranging transport to place of recruitment is cast on the employer, an employee chooses to handle his own repatriation and be entitled to the cost of transport and reasonable subsistence. This is what the High Court ordered that it be paid, as deduced from page 364 of the record of appeal at which the said sum settled at TZS. 3,438,000.00. 13 It follows that, payment of subsistence allowance, whose manner of payment and computation is dictated upon by regulation 16 (1) of the Employment and Labour Relations (General) Regulations, GN. No. 47 of 2017 - which pegs it to daily basic wage payable to an employee - should not be open ended as to cover an employee who has since left for the place of recruitment. See also: Juma Akida Seuchago v. SBC (Tanzania) Limited, Civil Appeal No. 7 of 2019; and Attorney General v. Ahmend Yakuti & 2 Others, Civil Appeal No. 49 of 2004 (both unreported). It should not be lost on anybody, and the appellant in particular, that, payment of subsistence allowance cannot be open ended, and its grant has to have a bearing on many other considerations. They include, the consideration that the employee is not, subsequent to termination, tied to his work station for eternity. He must find ways to mitigate the costs, the same way the appellant did when he relocated to Dar es Salaam. We have accentuated this position in numerous decisions. Thus, in Mantra Tanzania Limited v. Joaquim P. Bonaventure [2024] T7CA 1153, we held as follows: "We are further mindful that the High Court has awarded subsistence allowance for the whole period from termination until when the respondent will be repatriated to which we do not subscribe to, for the 14 following reasons; first and foremost, we are mindful to the primary objectives o f the ELRA under section 3 (a), one being to promote economic development through economic efficiency, productivity and social justice. Second; section 43 (1) o f ELRA does not have condition o f tying an employee to the place o f his employment for the whole period until the date o f his repatriation and we hasten to add that, the employee is expected to mitigate his adversaries/foes while waiting to be repatriated. Third; the respondent was not working for the appellant for the whole period he was terminated, thus awarding him for the whole period is to make him reap what he did not sow, and fourth; which is pertinent to note, the Court in this case has made a finding that, the respondent's termination was both substantively and proceduraily fair. As such, the award o f subsistence allowance for the whole period since his termination in the year to the date when he will be repatriated in our view, will amount to allow him to benefit from his own wrongs, which we think is improper." Instructively, the reasoning in the foregoing excerpt is a leaf picked from the Court's finding in Kenya Kazi Security (supra) in which, though the wait for repatriation was quite lengthy, the Court upheld the payment of six months' salaries to take care of subsistence allowance on the ground 15 that the provision that caters for repatriation does not tie an employee to his last place of work as he awaits the repatriation. We take a conviction that, in the circumstances like what obtains in the instant matter, where it is undoubtedly clear that, the appellant switched his residence to Dar es Salaam a couple of months after he was terminated, entertaining the claim of subsistence allowance for a period longer than two months after the termination is, to say the least, a blatant act of defeating the objects of the ELRA, as enshrined in section 3 (a). We, therefore, find nothing but a vindication of what the learned Judge held and awarded. It is in conformity with what justice demands in the circumstances of this case, and an affirmation of the tenets of social justice that the law is so firm about. Mr. Oyugi has invited us to follow the footsteps we set in the case of Pangea Minerals Limited (supra), on the contention that it has some factual similarity to the appeal before us. We have scrupulously gone through the said decision. As Mr. Masatu argued, this case is distinguishable from the issue before us. In that case, the contention resided in the non-payment of repatriation costs for the dependants of the terminated employee. The issue, then, was whether, in such circumstances, repatriation would be said to have been effected and, 16 whether the need for paying subsistence allowance did not arise. With profound respect, we are constrained to give no consideration to that decision in determining the issue before us. As we lower the curtain in this matter, we feel obliged to drop a line or two on the appellant's prayer that featured at the tail end of his written submissions. This is with respect to the complaint that, though he was served with a letter of termination, exhibit MB7, there is no evidence that he was paid his terminal benefits. We do not intend to delve into this matter because issues revolving around payment of benefits, other than repatriation of costs and subsistence allowance, are not subject of this appeal. A cursory glance at the memorandum of appeal reveals that, none of the two grounds of appeal in this matter raised this as a complaint. We are emboldened by the fact that, being a court of final appellate jurisdiction, this Court only reviews decisions based on grounds presented in the memorandum of appeal that institutes the appeal. The only exception is, if the complaint is on a point of law. The complaint on non-payment of terminal benefits is undoubtedly a factual issue which does not fall in the exception. It does not, in view thereof, deserve to be considered in this appeal and we reject it out of hand. 17 In sum, we find the appeal is devoid of any merit and, consequently, we dismiss it in its entirety. We make no order as to costs. DATED at DODOMA this 15th day of May, 2026. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered virtually this 15th day of May, 2026 in the presence of Mr. Haron Oyugi, learned counsel for the appellant, Ms. Anna Timba, learned counsel for the respondent, and Mr. Shafii Kassim, Court Clerk, is hereby certified as a true copy of the original.