Asimwe Mukoyogo vs Alistair James Company Limited (Civil Appeal No. 359 of 2024) [2026] TZCA 521 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA. J.A.. MURUKE J.A. And MGEYEKWA, J.A. CIVIL APPEAL NO. 359 OF 2024 ASIMWE MUKOYOGO................................................................. APPELLANT VERSUS ALISTAIR JAMES COMPANY LIMITED ..................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mlvambina, J) dated the 30th day of June, 2023 in Revision No. 74 of 2023 JUDGMENT OF THE COURT 2CfhApril & 12t h May, 2026 MURUKE. J.A.: The present appeal, originates from the decision of the High Court in Labour Revision No. 74 of 2023, dated 30thJune, 2023, in which the respondent's application for revision was allowed, and the Commission for Mediation and Arbitration (CMA) award in favor of the appellant was subsequently quashed. Briefly, the appellant was employed by the respondent, for the first time on 11th August, 2016, in one-year contract basis, in the capacity of an accountant and later was promoted up to a Senior Finance Manager. The appellant worked with the respondent on such one-year fixed term contract basis, until 31s t December, 2020, when the respondent is said to have terminated the contract, while the appellant was on maternity leave. Not happy with the termination, as she was expecting renewal of the same, the appellant filed a complaint before CMA, claiming that she was unfairly terminated as well as discriminated by the respondent. According to referral Form (CMA FI), the appellant indicated that there was no valid reason and that the procedure for termination was not followed. She claimed 36 months' remuneration as compensation for unfair termination, notice pay, unpaid annual leave for 45.16 days, severance pay for 48 months of service and general damages to the tune of TZS 20,000,000, making a total to the tune of TZS 232,443,428. On her defense, the respondent claimed that the appellant was not terminated, rather the employment contract came to an end in terms of the contract agreed, as was not renewed, thus prayed for dismissal of the complaint. Upon hearing both parties, the Arbitrator on 21s t November, 2022 ruled that there was unfair termination, both substantively and procedurally. Thus, arbitrator ordered the respondent to pay the appellant compensation to the tune of TZS 87,257,854 and issue a Certificate of service. 2 The respondent was dissatisfied with the holding and the award of the CMA. Hence, she filed the application for revision at the High Court Labour Division, where the central issue for determination was whether a fixed term employee can claim for unfair termination, upon expiry of the term without renewal. The High Court allowed the revision on the reasons that contract automatically came to an end, therefore, there was no termination properly so called, thus quashed the CMA award. Aggrieved, the appellant filed present appeal raising six grounds of complaint. Before us, the appellant was represented by Mr. Mwang'enza Mapande, learned counsel, while Mr. Allen Abert Kaminda, also learned counsel, appeared representing the respondent. On a careful consideration of the grounds of appeal, same are based on two major complaints namely: one; that the appellant's contract was unfairly terminated, and two; that the appellant had reasonable expectations that her fixed term contract would be renewed. The appellant's counsel first adopted written submission filed earlier to be part of his oral submission and further submitted that, the appellant was terminated through email that was sent to her, while on maternity leave. There cannot be notice of termination without there being a contract subject of termination. Two, the respondent is not 3 disputing that there was contract of employment exhibit P6 in which the appellant had expectation of the renewal. Three; the respondent granted the appellant maternity leave which exceeded the expiry of the contract. Four; the letter written to Stambic Bank guaranteeing the appellant loan for the year 2021, ensured renewal of the contract of the appellants. Basing on the above arguments, the appellant's counsel cemented his views that there existed contractual employment relationship which the respondent terminated without following procedure. In the end, Mr. Mwang'enza prayed that High Court decision be set aside, and that the decision and the award of the CMA. The respondent's counsel submitted in rebuttal that, there was no evidence available on record to prove that the appellant was served with notice of termination of the contract. It was fixed term contract that came to an end on 31s t December, 2020. The terms of the contract were binding between the appellant and the respondent, expectation of renew does not arise. With that response, then, the respondent's counsel beseeched us to dismiss the appeal. Before resolving the two issues we have raised from the grounds of appeal, it is worth noting at the onset that, the appellant was employed under a fixed-term contract. At the relevant time, section 37(a) (iii) of the Employment and Labour Relations Act, Cap. 366 R. E. 4 2023 ("the ELRA") is relevant to this dispute. The above law define termination of employment as follows: " 37 . For purposes o f this Sub-Part- (a) "termination o f employment" inciudes- (i) [Not applicable] (ii) [Not applicable] (Hi) a failure to renew a fixed term contract on the same or similar terms if there was a reasonable expectation of renewal. (iv) [Not applicable] (v) [Not applicable]". [Emphasis added] Section 37(a) (Hi) o f the ELRA above must be read along with rules 3(l)(c) and 4 o f the Code o f Good Practice Rules, 2007. For clarity, we extract the said provisions thus: "3.-(l) For the purposes o f these Rules, the termination o f employment includes: (a) [Not applicable] (b) [Not applicable] (c) failure to renew a fixed term contract on the same or similar terms if there was a reasonable expectation of renewal of the contract. (d) [Not applicable] (e) [Not applicable] 4. -(1) [Not applicable] (2) Where a contract is a fixed term contract, the contract shall terminate automatically when the agreed period expires, unless the contract provided otherwise. (3) Subject to sub-rule (2), a fixed term contract may be renewed by default if an employee continues to work after the expiry o f the fixed term contract and circumstances warrant it (4) Subject to sub-rule (3), the failure to renew a fixed term contract in circumstances where the employee reasonably expects a renewal o f the contract may be considered to be unfair termination. (5) Where fixed term contract is not renewed and the employee claims a reasonable expectation o f renewal, the employee shall demonstrate that there is an objective basis for the expectation such as previous renewals, [and] employer's under takings to renew. (6) [Not applicable] 6 (7) [Not applicable]". [Emphasis added] The preceding portion of the text in rule 3(l)(c) and rule 4(4) has been intentionally bolded to emphasize their restatement of the essence of section 37 (a) (iii) of the ELRA, which states that employment may be terminated for failure to renew a fixed-term contract on the same or similar terms, when a reasonable expectation of renewal existed. It is worth insisting that, rule 4(2) and (5) clearly provides that, a fixed-term contract terminates automatically upon the expiration of the agreed period, unless the said contract provides otherwise. Except for situations in which a fixed-term contract is automatically renewed in terms of rule 4(3), an automatic contract renewal is not permissible. Equally so, rule 4(5) above places the burden of establishing the existence of a reasonable expectation of contract renewal on the employee, which must be demonstrated objectively namely: prior contract renewals and the employer's commitment or undertaking to renew. Having exposed the position of the law as above, the appellant's argument that she expected renewal, cannot hold water because: one; a fixed-term contract does not entail any anticipation of renewal, unless the employee provides evidence to support the existence of such an 7 expectation. Two; the appellant has relied on a letter written by the respondent to Stanbic Bank, indicating the respondent's readiness to guarantee the appellant's loan for the year 2021, as one of ground of expectations of the renew, that cannot be accepted; the existence of employment contract superseded the letter to the Stanbic Bank. More so, the employment contract was not linked to the staff loan arrangement. Therefore, the appellant cannot justify existence of contract on the basis of the letter. Three; the appellant has also relied on the maternity leave granted beyond the contract period. With respect, the maternity leave was not related to one-year contract term, it was a private matter that it exceeded the contract term. Four; the contract exhibit P6 had no renew clause. The existence of the previous contract did not serve as a foundation for the anticipation of renewal in the absence of the evidence from the employer. The Court in the case of Ibrahim s/o Mgunga and Three Others vs African Muslim Agency, Civil Appeal No. 476 of 2020 [2022] TZCA 345, held that; it was not reasonable to expect another renewal of an employment contract based on the evidence that it had been renewed once or twice. We thus, concur with the High Court's conclusion that the appellant has failed to adduce any evidence on expectation of the renewal of the contract. It follows that, if there was no renewal of the 8 contract, there was nothing to be breached by the respondent. In the case of A. Antoine vs Nyamohanga (Civil Appeal No. 45 of 2006) [2006] TZCA 45, it was emphasised that, " there can be no breach o f contract, where no contract was ever concluded. The plaintiffmust first prove existence o f a valid contract before alleging breach'. In totality, the appeal before us is unmerited, we dismiss it. This being an employment dispute, each party to bear own costs. DATED at DAR ES SALAAM this day 8th of May, 2026. G. A. M. NDIKA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 12th day of May, 2026 in the presence of Mr. Mwang'eza Mapembe, learned counsel for the appellant, also holding brief for Mr. Allen Kaminde, learned counsel for the respondent and Ms. Janekissa Bukuku, Court clerk; is hereby certified as a true copy of the original.