SOS Children's Village Tanzania vs Neema Kessy Bahati (Civil Appeal No. 100 of 2024) [2026] TZCA 562 (13 May 2026)

IN THE COURT OF APPEAL OF TANZANIA & Lm m m (CORAM: FIKIRINL J.A. RUMANYIKA. J.A, And ISSA. J.A/1 CIVIL APPEAL NO. 100 OF 2024 SOS CHILDREN'S VILLAGE TANZANIA ....................................... APPELLANT VERSUS NEEMA KESSY BAHATI ...................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, (Labour Division) Arusha Registry) ( fim & J z ) dated the 27th day of February, 2023 in Labour Revision Application No. 37 of 2022 RULING OF THE COURT 12th & 13th May, 2026. FIKIRINL J.A.: The hearing of the present appeal could not proceed for the reason that shall be apparent shortly. Before the hearing of the appeal could commence, Mr. Stephen Mosha, learned advocate appearing for the appellant, as an officer of the Court found it prudent to raise an irregularity noted in the Commission for Mediation and Arbitration (the i

CMA) proceedings, which shortened the endeavor of the hearing of the present appeal. Before delving into determining the concern raised, it is useful to outline the background of the parties involved. The respondent, Neema Kessy Bahati, was employed by the appellant, SOS Children's Village Tanzania, as an Alternative Care Coordinator under a fixed-term contract spanning two years, from 15th November, 2020 to 14th November, 2022. During the course of this employment, the relationship between the parties deteriorated. The appellant alleged that the respondent engaged in grave acts of insubordination, constituting misconduct in direct violation of section 9.1 of the appellant's Terms and Conditions of Service (2014) and Regulation 12(3)(f) of the Employment and Labour Relations (Code of Good Practice) Rules, 2007. A thorough investigation and subsequent disciplinary hearing proceedings, concluded that the respondent was guilty and terminated from employment. Not amused, she lodged a complaint with the CMA vide Labour Dispute No. CMA/ARS/230/21/134/21. Her complaint was that she was unfairly terminated, and thus seeking reliefs of among others a compensation of 36 months salaries for unfair termination of her fixed term employment contract.

The CMA heard the parties on the issues framed namely: oner whether the dispute is proper before the Commission, two, whether there was a fair reason for termination, three, whether the termination was procedurally handled fairly and four, the relief which each party is entitled to. A total of three witnesses testified. Two witnesses testified for the appellant, namely Evelin Dilip as DW1 and Peterson Joseph as DW2 plus number of exhibits were received through them. For the respondent, she was the only witness and a couple of exhibits were tendered through her. The CMA deliberated on the matter and decided in favour of the appellant. This aggrieved the respondent who successfully challenged the CMA award before the High Court in Labour Revision Application No. 37 of 2022. Discontent the appellant preferred the present appeal, but as alluded to earlier on, the hearing could not proceed as scheduled, as Mr. Mosha informed the Court of the existing anomaly at page 96 of the record of appeal, regarding DW2's testimony which was not given under oath. The learned counsel found, the problem going to the root of the matter resulting in vitiating the CMA proceedings and those of the High Court, stemming from the blemished one. He thus, against that backdrop prayed for the proceedings, judgment and award of the CMA

and the High Court proceedings to be nullified, judgment quashed and the order set aside. Mr. John Solomon Massangwa, learned advocate representing the respondent, equally shared the concern that the CMA proceedings were vitiated as DW2 testified without being sworn, such that the only remedy was to nullify the proceedings. Having considered the concessionary submissions of counsel for both parties, the Court admits that witnesses appearing before arbitrators must give evidence under oath. This requirement derives from the powers conferred on arbitrators under Rule 19(2)(a) of Government Notice No. 67 of 2007, which provides: - "The powers o f the Arbitrator include to (a) administer an oath or accept an affirmation from any person called to give evidence . " In the present case, the Arbitrator failed to exercise this power and did not administer an oath to DW2, contrary to Rule 25(1) of GN No. 67 of 2007, which states: " The parties shall attempt to prove their respective cases through evidence and

witnesses shall testify under oath through the following process..." [Emphasis added] It is therefore evident that administering an oath before testimony is mandatory. Since no oath or affirmation was administered to DW2, the omission is fatal and vitiates the proceedings. This position is not novel; the Court has previously addressed similar circumstances in decisions such as Catholic University of Health and Allied Sciences (CUHAS) v. Epiphania Mkunde Athanase [2020] TZCA 1890 and The Copycat Tanzania Limited v. Mariam Chamba [2022] TZCA 107. In the CUHAS case (supra), the Court held: 'Where the law makes it mandatory for a person who is a competent witness to testify on oath, the omission to do so vitiates the proceedings because it prejudices the parties' case." It is thus without doubt that the omission to administer an oath to DW2 vitiated the proceedings before the CMA. We thus totally agree with the learned counsel for the parties on their observation. Accordingly, pursuant to section 6(2) of the Appellate Jurisdiction Act, Cap. 141 (Revised Laws), the Court quashes the proceedings of the CMA, sets aside the award, and nullifies the proceedings and judgment 5

Qf Ito High Eeurt For the sate of justice, the record be remitted to the High Cpyrt with the direction that the CMA hears the matter in accordance with the law, before another arbitrator. As the matter arises from a labour dispute, the Court makes no order as to costs. DATED at ARUSHA this 13thMay, 2026. P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL Ruling delivered this 13th day of May, 2026, via teleconferencing in the presence of Mr. John Massangwa, learned counsel for the respondent but in the absence of the appellant, and Mr. Nelson Novati, Court Clerk in person is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 6