Frank Rashid vs SBC Tanzania Ltd (Civil Appeal No. 420 of 2026) [2026] TZCA 569 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: MWANPAMBO, J.A., KENTE, J.A, And MGONYA. J.A.) CIVIL APPEAL NO. 420 OF 2026 FRANK RASHID...................... ....................... ..................... APPELLANT VERSUS SBC TANZANIA LTD ...... .................. ................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Chuma, J.) dated the 2n d day of December, 2024 in Labour Revision No. 18487 of 2024 JUDGMENT OF THE COURT 5t h & i?t h May, 2026 MWANPAMSQ, ji.A.: The appellant was, until 19 August 2.023, an employee of the respondent in the Post of Quality Assurance Officer Mwanza Plant having worked for slightly six years. The respondent terminated the appellant allegedly for gross negligence. Dissatisfied, the appellant resented termination at the Commission for Mediation and Arbitration ("the CMA") for Mwanza vide Labour Dispute No. CMA/MZA/NYAM/197/2023 alleging that it was without a valid and fair reason let alone the appellant following

a fair procedure. After an unsuccessful mediation, the dispute proceeded with adjudication by arbitration in which, the respondent called three witnesses to prove that the termination was substantively and procedurally fair. At the end of the arbitration, the CMA found the respondent failed to discharge its burden cast upon it under section 39 of the Employment and Labour Relations Act ("the ELRA") before it was redesignated as section 40 vide Revised Edition of the Laws, 2023 proving that the termination was substantively and procedurally fair. The CMA thus awarded the appellant several reliefs including gross back pay comprising gross salary from the date of the impugned termination and compensation by payment of 12 months' basic salary. Both the appellant and respondent were aggrieved by the CMA award. Each filed an application for revisions before the High Court at Mwanza. The applicant challenged the award vide Labour Revision Nol. 20638 of 2024 while the respondent's application was registered as Labour Revision No. 18487 of 2024 from which this appeal has emanated. The respondent challenged the CMA award on two main grounds that is; lack of jurisdiction to entertain the dispute having been prematurely referred to it without the appellant exhausting internal disciplinary dispute resolution mechanism by way of an appeal and, the

arbitrator for granting reliefs conjunctively. In its ruling made on 2 December 2024, the High Court (Chuma, J.) sustained the application on both grounds and quashed the CMA proceedings and the resultant award for lack of jurisdiction. The appellant appealed against the impugned decision on five grounds but abandoned the 5ln ground in his written submissions lodged ahead of the hearing. By and large, the appeal centers on the 2n d and 3rd grounds in which the appellant faults the High Court for holding that the dispute was prematurely referred to the CMA due to failure to exhaust the internal appeal process rendering the CMA lack jurisdiction resulting in quashing its proceedings and the resultant award. The appellant who appeared in person, unrepresented at the hearing of the appeal, urged the Court to ailow the appeal on the basis of the written submission he had lodged earlier on without more. The appellant made fairly long submissions supported by a number of authorities including decided cases from this Court to reinforce his complaint. Out of the long discourse, we can glean two main arguments. The first is that, he was disabled from exhausting the internal appeal process by reason of the respondent's failure to avail him with the disciplinary form for the purpose of the appeal to a higher authority internally. On this, the appellant argued 3

that, despite the overwhelming evidence before the CMA in that regard and the submissions he made in the application for revision, the High Court disregarded them and proceeded to hold that the reference of the labour dispute to the CMA was premature and thus the CMA had no jurisdiction resulting in nullifying the proceedings and the award made in his favour. On the other hand, and, in the alternative, the appellant submitted that, contrary to the holding by the High Court, exhausting the interna! appeal process was not mandatory so as to render the reference of the labour dispute to the CMA premature and hence fatai. In this regard, the appellant criticized the High Court for sustaining the respondent's contention on CMA's jurisdiction relying on the Court's decision in Jerome Kessy v. Ardhi University [2023] TZCA 17771 which concerned with a public servant under section 32A of the Public Service Act. It was thus submitted that the decision was distinguishable to the facts in the instant appeal involving an employee in the private sector governed by the ELRA read together with the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007. Submitting further, the appellant drew our attention to the Court's decision in Ally Ahmed Mwerani v. National Microfinance Bank

(NMB PLC) [2025] TZCA 1241 to argue that, since the CMA is vested with jurisdiction as a first instance body and not an appellate organ from the internal dispute resolution mechanism regardless of what transpired at the disciplinary hearing at the employer. He also referred the Court to the decision of the High Court in Bayport Financial Services Ltd v. Cresence Mwandele, Labour Revision No. 33 of 2013 [201.5] TZHC 2910 interpreting rule 10(1) of the Labour Institutions (Mediation and Arbitration) Rules, G.N, No. 64 of 2.007 in which it was held that, it is not mandatory for an aggrieved employee from an unfair termination to exhaust internal appeal process procedures before.referring the dispute to the CMA. On appeal, the Court upheld that decision vide Civil Appeal No. 19 of 2017 [2020] TZCA 1876 holding that, the failure to appeal to a higher authority following a decision of the disciplinary authority after the outcome of the disciplinary hearing does not bar an aggrieved employee from referring a dispute to the CMA and the fairness of the termination in the absence of any law forbidding such a course of action. From the above, the appellant urged the Court to find merit in the second ground and allow it. In her repiy, Ms. Hidaya Haruna, learned advocate engaged to represent the respondent countered the appellant's submissions supporting

the holding of the High Court as correct in the light of the Staff Handbook Regulations requiring an aggrieved employee to exhaust the internal dispute resoiution mechanism by appealing to a higher authority, in this case, to the General Manager upon being notified of the outcome of the disciplinary hearing. Counsel argued further that, contrary to his submissions, the appellant did not require any hearing form to appeal as long as he was aware of that right. He concluded that the High Court rightly held that the CMA had no jurisdiction to entertain the labour dispute on account of failure to exhaust the internal dispute resolution mechanism in accordance with the Staff Handbook Regulations and urged the Court to dismiss this ground for lack of merit. In his short rejoinder, the appellant reiterated his written submissions and pointed out that clause 5()xv) of the Staff-' Handbook Regulations appearing at pages 30 through 41 inclusive of the record of appeal does not make it mandatory for an aggrieved employee to resort to internal appeal process and thus, the appellant was not bound to do so before referring the dispute to the CMA which had jurisdiction to entertain it. We have examined and considered the parties' written and oral submissions and the law on the issue. After such examination, the issue for our consideration and determination seems to revolve around a narrow

compass. It requires us to answer the question whether the existence of internal disciplinary dispute resolution mechanism in an organization by way of appeal to an appellate authority bars an employee from challenging the unfair termination to the CMA affecting its jurisdiction. The High Court sustained the respondent's contention relying on the Court's decision in Jerome Kessy v. Ardhi University in which the Court stated: "...the decision by the appellant to refer his complaint right away to CMA without exhausting the remedies available under the respondents' dispute resolution machinery was, for all purposes and intents, procedurally improper. For it is now the stance o f this Court and therefore the law that, whereas in the case now under review\ a given law provides for a specific forum to first deal with a given dispute, resort to such a forum is quite indispensable before one can have recourse to the judicial remedy " Relying on the above decision, the High Court stated: "From the above analysis,, it is evident that since the respondent failed to exhaust the internal dispute resolution mechanism the application before the CMA was prematurely preferred rendering the CMA incompetent to adjudicate for 1

want o f jurisdiction." [at page 549 o f the record o f appeal] It is pertinent that the Court's decision in Bayport's case was cited by the appellant's personal representative in his submissions and the learned Judge distinguished its application and relevance to the application before him and reasoned: " The cited case o f Bayport (supra) on exhausting the available remedies, is distinguishable here because in the cited case there were no policies or regulations, unlike this case where there is a dear procedure for the appeal process as hereinabove pointed." However, in doing so, the learned Judge appears to have employed the approach of pick and choose, for apart from the above reproduced except, the Court stated clearly that: " 'Further, there is no law which forbids a terminated employee to refer the dispute to the CMA simpiy because he/she has not exercised the right o f appeal within the employer's organization. In addition to the foregoing, the appellant failed to tell the Court to whom the respondent was supposed to appeal. Although the respondent acknowledged that he was aware o f the appeal process, there was no policy mechanism, or regulations in place on 8

how one could exercise such right../'[Atpage 10 & 11 ] It will thus be clear from the foiegoing that, o n e , , as argued by the appellant, it misapprehended the holding in Jerome Kessy which, as clearly shown at page nine thereof that the case involved a public servant who was bound by section 32A of the Act before its redesignation as section 37 vide Revised Edition of the Laws, 2023 which bars public servants from seeking remedies through the CMA without first exhausting the internal disciplinary appeal process mechanism set out under the Act. With tremendous respect, the appellant was not a public servant to which the said section applied and thus, the decision in Jerome Kessy was wholly inapplicable and irrelevant to the application which could have resulted in the conclusion that the CMA had no jurisdiction over the labour dispute the appellant had preferred thereby quashing the proceedings and the resultant award. Equally important, as seen above, the learned judge sought to distinguish Bayport solely on the non-existence of regulations in the appellant company governing internal appeal process by an aggrieved employee. Be it as it may, from our reading of that decision, that was simply a subsidiary reasoning. The main reasoning was that whether or not such regulations are existent, such regulations are not mandatory but

optional and if not resorted to, the CMA cannot be said to lack jurisdiction. We are firmly of the view that had the learned Judge appreciated the holding in Bayport and correctly directed his mind to the matter before him, he could have held that the CMA had requisite jurisdiction over the appellant's case referred to it under rule 10(1) of the Labour Institutions (Mediation and Arbitration) Rules, G.N. No.64 of 2.007. In any case, as rightly argued by the appellant the respondent's own Staff Handbook Regulations an employee has option to exhaust the internal appeal process or refer the dispute to the CMA. Clause 5(xv) of the said Regulations provides: "Every employee shall have the right to appeal against any disciplinary action resulting in a written or final warning or termination. The employee may appeal internally or to the CMA..." [At page 32 o f the record] Although the appellant's personal representative before the High Court referred to the above regulation in his submissions, it seems the learned judge's eyes were eluded from it. Otherwise, what emerges from the above is that the regulation merely guarantees a right of appeal to an aggrieved employee either to a higher authority or to the CMA. It does not require the aggrieved employee in the way section 37 of the Act does to

exhaust the internal appeal process before referring his dispute to the CMA. Therefore, Ms. Haruna supporting the learned judge's reasoning fails on the face of the respondent's own regulations. In the upshot, we find merit in the second ground. For avoidance of doubt, in view of the above discussion we need not belabour on the issue whether the appellant was disabled from appealing to the higher authority by reason of failure to avail him with the disciplinary hearing form. In our view, this is so for the reason that, whether or not he was availed with the said form, he was not bound to appeal to the higher authority as submitted by Ms. Hidaya. On the contrary, the aggrieved employee had a right to appeal internally or to refer the dispute to the CMA as he did. In the event, we allow the 2n d and 3rd grounds and hold that the CMA had jurisdiction to adjudicate the dispute as it did. That would have been sufficient to dispose of the appeal but we feel compelled to say something on the 4th ground. The appellant faults the High Court for not revising the CMA award and rectifying the anomaly in the reliefs awarded conjunctively. The gravamen of the appellant's submission in this ground is that, in view of the fact that, both parties had consented to the complaint on the award of reliefs conjunctively rather than disjunctively and the High Court agreed as li

such, it ought to have stepped into the shoes of the CMA and rectify the anomaly. The respondent's learned advocate argued, and rightly so in our view that having held that the CMA had no jurisdiction to arbitrate the dispute resulting into quashing the proceedings and the award, the High Court could not have proceeded to determine the complaint on the award which it had already nullified. We respectfully agree with the learned advocate that the complaint is baseless. After nullifying the award, it was not open for the High Court to determine the propriety of the reliefs awarded to the appellant on a nullity. We thus dismiss this ground. Having so held, we do not see any useful purpose belaboring on the 1s t ground mindful of the fact that the application on the basis of which the consent prayer for stay of the proceedings in Labour Revision No. 18487 of 2024 was dismissed by the High Court on 11 October 2024 as can be seen at page 521 through 531 inclusive of the record. It is pertinent that, the decision was challenged on appeal in Civil Appeal No. 851 of 2025 whose decision is yet to be delivered. That said, we allow the appeal to the extent indicated and remit the record to the High Court for determination of the second ground of 12

revision on the propriety of the reliefs awarded in accordance with the law by another judge. Each party shall bear his own costs. Order accordingly. DATED at MWANZA this 11th day of May, 2026. L J. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA J USTICE OF APPEAL ith Judgment delivered this 12th day of May, 2026 in the presence of the appellant in person, unrepresented, Ms. Hidaya Haruna, learned counsel for the respondent and Mr. John Banene, Court Clerk; is hereby certified as a true copy of the original. A. L. KALEGEYA EPUTY REGISTRAR OURT OF APPEAL 13