Shelys Pharmaceuticals Limited vs Hosea Mpambije & Others (Civil Appeal No. 556 of 2024) [2026] TZCA 575 (13 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPEAL NO. 556 OF 2024 SHELYS PHARMACEUTICALS LIMITED.......................................APPELLANT VERSUS HOSEA MPAMBIJE.............................................................. 1 st RESPONDENT JOSEPH NGOCHO ...............................................................2 nd RESPONDENT BENJAMINI BENEDICTO.................................................... 3 rd RESPONDENT TUMSIFU KILONGO ......................... . ................................. 4™ RESPONDENT GODFREY CHANG'A............................................................5 th RESPONDENT SABAS NJAWALA................................................................6 th RESPONDENT JAMES M HONE................................................................... 7 th RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Maahimbi. J .~ ) dated the 21st day of February, 2022 in Labour Revision No. 536 of 2020 JUDGMENT OF THE COURT 29th April & 15th May, 2026 LEVIRA. J.A.: The appellant, Shelys Pharmaceutical Limited was aggrieved by the decision of the High Court of Tanzania, Labour Division (the Labour Court) in Labour Revision No. 536 of 2020 which set aside the decision of the Commission for Mediation and Arbitration (the CMA), awarding each respondent compensation of 6 months' salary, allowances, clean i

certificate of service, payments for the works days from 1s t September, 2.019 to 5th September, 2019 and one month salary in lieu of notice, for unfair termination from employment. Therefore, she preferred the present appeal. It is on record that, the respondents were employed by the appellant as marketing officers in 2019. Nonetheless, following allegations by the appellant of gross misconduct and embezzlement of company funds, they were terminated. Through Labour Dispute No. CMA/DSM/KIN/744/19/310, the respondents managed to challenge the termination of employment on ground that it was unfair. One of the reliefs sought before the CMA was reinstatement, which, however was not considered. Instead, the CMA ordered compensation as intimated above. The Labour Court found that the omission to determine the issue of reinstatement by the arbitrator vitiated the award. As a result, it nullified it and remitted back the matter to the CMA to consider it and render its decision. The appellant was not satisfied with the decision of the Labour Court, hence the instant appeal. The memorandum of appeal comprises four grounds. However, we opt not to reproduce them for obvious reasons to come into light shortly. At the hearing of the appeal, the appellant was represented by Dr. Onesmo Kyauke, learned advocate whereas the respondents had the 2

services of Mr. Dickson Sanga, also learned advocate. We invited counsel for the parties to address the Court on the competence of the appeal; particularly, in respect of the evidence of defence key witness one Jimmy Steven Temba (DW1) whose evidence was taken without oath or affirmation as it can be observed at page 558 of the record of appeal. Dr. Kyauke was quick to respond that, indeed, DW1 neither took oath nor affirmed before giving his evidence before the CMA. He went on to submit that, the law is settled, every witness must be sworn or affirmed before testifying and failure to do so vitiates the proceedings. In the circumstance, he implored us to exercise our revisional powers to nullify the proceedings of the Labour Court and the CMA, and remit the case file to the CMA, for a retrial before another arbitrator. In reply, Mr. Sanga concurred with the submission by Dr. Kyauke with no more. We have respectful considered the submission by the counsel for the parties and thoroughly gone through the record of appeal, the issue as far as the competence of the present appeal is concerned, is not contentious between the parties herein. Besides, the record of appeal speaks for itself regarding what transpired when the evidence of DW1 was being recorded. We shall reproduce the relevant part hereunder: "Respondent Evidence witness No. 1 (CDW1): Name : Jimmy Steven Temba

Residence : Mbezi kwa Msugu/i, PSM Job/Professional : Senior Executive HR Religion : Christian Examination in Chief by Advocate Nassoro u/oath:" It is worth noting from the above excerpt that, DW1 did not take oath. The arbitrator ended recording his religion to be a Christian. Immediately thereafter, a caption indicating the advocate leading the witness, shows the words "u/oath". Assuming that "^"stands for the word "under" still the words "under oath "suggest that it was the counsel who was under oath not the witness. Under normal circumstances, the arbitrator was expected to administer oath to DW1 not his advocate. This is due to the fact that, the one who was proving the case was DW1 and not the counsel. Rule 25 (1) of the Labour Institutions (Mediation and Arbitration) Guidelines, GN. 67 of 2007 provides that: "The parties shall attempt to prove their respective cases though evidence and witnesses shall testify under oath." Being guided by the cited provision and the settled position of the law, we cannot explain better than saying that, failure of the arbitrator to take the evidence of DW1 on oath, having been informed that he is a

Christian, was a fatal irregularity. Therefore, in our considered opinion, what took place after recording DWl's particulars becomes a nullity. As a result, the evidence of DW1 could not be relied upon by the CMA to ground the award which formed the basis of the revision before the Labour Court. In Catholic University of Health and Allied Sciences (CUHAS) v. Epiphania Mkunde Athanase, Civil Appeal No. 257 of 2020 [2020] TZCA 1890 (11 December 2020), while dealing with an akin situation, the Court cited rule 25 (1) of GN. 67 of 2007 and section 4 (a) and (b) of the Oaths and Declarations Act, Cap. 34, which make oath or affirmation a mandatory requirement and held that, the omission to take oath vitiates proceedings. The above finding leaves us with one option which is none other than invoking our revisional powers under section 6 (2) of the Appellate Jurisdiction Act Cap. 141, as we accordingly do, nullify the arbitration proceedings of the CMA from 10th August, 2020 when DW1 was called upon to testify to the end and the award thereof, all the proceedings of the Labour Court and its decision. We remit the case file to the CMA for retaking the evidence of DW1 as required by the law and re-composition of the award by the same arbitrator. Our decision to return the case file to the same arbitrator considered the fact that, it was only the evidence of DW1, a key witness, which was taken without oath. Therefore, the 5

arbitrator who initially handled the matter, in our view, stands a better position to deal with it than another arbitrator. Nonetheless, in case procuring him is impossible or may cause inordinate delay leading into injustice to the parties, another arbitrator may take up the matter. DATED at DAR ES SALAAM this 13th day of May, 2026. M. C. LEVIRA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 15th day of May, 2026 in the presence Mr. Dickson Sanga, learned counsel for the Appellant, also holding brief for Dr. Onesmo Kyauke, learned counsel for the Respondent and Ms. Janekissa Bukuku, Court clerk, is hereby certified as a true copy of the 6