Board of Trustees of Teofilo Kisanji University (TEKU) & Another vs Hamis Bakari & Others (Civil Appeal No. 387 of 2021) [2026] TZCA 540 (11 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MKUYE. J.A.. FELESHI, 3.A. And NANGELA, J.A.^ CIVIL APPEAL NO. 387 OF 2021 BOARD OF TRUSTEES OF TEOFILO KISAN JI UNIVERSITY (TEKU) ................................................................ 1 st APPELLANT THE VICE CHANCELLOR (TEKU)...............................................2 nd APPELLANT VERSUS HAMIS BAKARI ................................. . .................................... 1 st RESPONDENT NYANJIGE MBEMBELA MAYALA ............................................ 2 nd RESPONDENT BOANY DAHAYE..................................................................... 3 rd RESPONDENT EDSON WIKEDZI................................... . ................................4™ RESPONDENT NDINHESYA ASUKENIE ......................................................... 5™ RESPONDENT MPONJOLI MWANDAMBOI....................................................6 th RESPONDENT ISHMAIL MWAMBAPA................................... . ....................... 7™ RESPONDENT AMANI SIMBEYE .................................................................... 8 th RESPONDENT (Appeal from the Decision and Order of the High Court of Tanzania at Mbeya) (MambLJJ Dated the 31stday of December, 2019 in Labour Revision No. 36 of 2018 RULING OF THE COURT 4h & 11th May, 2026 NANGELA, 3.A.: This appeal arises from the decision of the High Court (Labour Division) in Labour Revision No. 36 of 2018, which, in turn, emanated from the award of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/MBY/89/2013. To place the dispute in its proper context, a brief background is necessary. i

The respondents were employees of the first appellant, Teofilo Kisanji University (TEKU), engaged on various dates as tutors and lecturers under contracts of employment. In the course of their employment, a dispute arose which culminated in the termination of their services. The first allegation levelled against them was that they had jointly and severally established and operated an entity known as Grow Big Company, which engaged in activities giving rise to a conflict of interest with their employer. It was further alleged that the said entity operated using the registered address of the first appellant. Secondly, the 4th, 6th, and 8th respondents, together with other unnamed employees, were accused of unlawfully confining the Deputy Vice Chancellor (DVC-Finance), Mr. Mwaikenda, in his office for approximately four hours. Thirdly, the eighth respondent, Amani Simbeye, was accused of conducting an unauthorised press conference within the premises of the first appellant. On the basis of these allegations, a disciplinary hearing was conducted by the Disciplinary Hearing Committee on 29th and 30th August, 2013. The Committee found the respondents guilty and recommended their termination. Acting on that recommendation, the Council of the first appellant issued letters of termination dated 6th September, 2013,

informing the respondents of their right to appeal to the Staff Disciplinary V Appeals Committee within five days of receipt. The respondents did not pursue the internal appellate mechanism. Instead, they referred the dispute to the CMA, alleging unfair termination. At the CMA, two respondents testified in support of the claim, namely Bakari Hamisi (PW1) and Amani Simbeye (PW2). In essence, they challenged the composition of the Disciplinary Hearing Committee, contending that it was chaired by Mr. Mwaikenda, who was also the complainant. They further asserted that the Committee included an unqualified member who, under the applicable rules, ought to have been an advocate of at least five years' standing. Additionally, they contended that the reasons for their termination were invalid, that the rules allegedly breached did not exist, and that the sanctions imposed were discriminatory, as other employees accused of similar misconduct were not terminated. The appellants denied these claims. Through the testimony of Mr. Israel Samwel Mwaikenda (DW1) and Mr. Andalalisye Segeleti Mwaihabi (DW2), they maintained that all procedural requirements had been complied with. They further asserted that, save for the second allegation, the respondents were afforded an opportunity to respond to the charges,

and their explanations were found unsatisfactory, leading to their termination on 6th September 2013. Upon hearing the parties, the CMA arbitrator found in favour of the respondents, holding that the termination was both procedurally and substantively unfair. On procedural unfairness, the arbitrator faulted, first, the participation of Mr. Mwaikenda as Chairperson of the Disciplinary Committee while also being a complainant, contrary to rule 13 (4) of GN No. 42 of 2007; and second, the improper constitution of the Committee, contrary to rule 26 (2) of the TEKU Rules, 2009. On substantive unfairness, the arbitrator held that the appellants failed to adduce sufficient evidence before the Disciplinary Committee, contrary to rule 13 (5) of GN No. 42 of 2007; that there was discriminatory treatment in the imposition of sanctions, contrary to rule 12 (5) of GN No. 42 of 2007; and that the respondents were charged under non-existent rules—namely, the TEKU Staff Regulations, Rules and Conditions of Service, 2011—which were neither proved nor produced. Consequently, the CMA awarded the respondents compensation equivalent to 50 months' salary, general damages of TZS 60,000,000.00 to each respondent, as well as gratuity, severance pay, and subsistence allowance from the date of termination until repatriation.

Aggrieved by that decision, the appellants filed a labour revision in the High Court. Upon hearing the parties, the learned High Court partly upheld the CMA's findings that the termination was procedurally and substantively unfair. However, the High Court set aside the award of TZS 60,000,000.00 as general damages and reduced the compensation from 50 months' salary to 15 months' salary, except for the fifth respondent (Ndinhensya Asukanie) while upholding the remainder of the award. Still dissatisfied, the appellants lodged the present appeal. In their memorandum of appeal, they raised five grounds which, for reasons that will become apparent, we do not reproduce in this judgment. When the appeal came up for hearing, Mr. Kamru Habib Msonde and Ms. Martha Gwalema, learned counsel, appeared for the appellants, while Mr. Baraka H. Mbwilo, learned counsel, appeared for the respondents. When Mr. Mbwilo introduced himself, he also informed the Court that the first respondent had passed away on 18th December, 2015. He consequently applied for the substitution of the first appellant with one Mary Samson Kagino, who was said to be the legal representative of the deceased, Hamis Bakari, pursuant to rules 105 (1) and 92 (2) of the Tanzania Court of Appeal Rules, 2009.

Before counsel could address the grounds of appeal, and in light of the information regarding the death of the first respondent, as well as a preliminary concern arising from the record of appeal, the Court invited counsel to address it on two issues:

1. Given that the first appellant passed away in 2016, as evidenced by the m aterial subm itted by Mr. M bw ib, whether the filin g o f the Labour Revision subsequent to his death—wherein the deceased was nonetheless made a p a rty - affected the validity o f the proceedings, the judgm ent o f the High Court, and the present appeal.
2. Whether, p rio r to referring the dispute to the CMA, the respondents exhausted the internal dispute resolution m echanism s o f the first appellant; and, if not, what the legal effect o f such failure is, and what remedy, if any, is available. In response to the first issue, Mr. Msonde submitted that the first respondent, Hamis Bakari, passed away on 18th December, 2025, a few months after the CMA delivered its award on 10th April, 2015. Notwithstanding his death, he was subsequently named as a party in Labour Revision No. 36 of 2018, which, counsel argued, constituted a fundamental and fatal error.

He further contended that the failure to disclose this fact throughout the Labour Revision proceedings amounted to a misrepresentation of material facts, thereby affecting the integrity and outcome of those proceedings. As a consequence, the resultant decision in the preferred revision is a nullity, having been rendered in proceedings conducted against a deceased person. Counsel therefore argued that, since the proceedings in Labour Revision No. 36 of 2018 are a nullity, no competent appeal can arise therefrom. Accordingly, the present appeal is incompetent and ought to be struck out. With regard to the second issue raised by the Court, it was submitted by Mr. Msonde that the same carries fatal consequences for this appeal as well as for the proceedings before the lower court and the CMA. He argued, relying on the decision in Bayport Financial Services (T) Ltd v. Cresense Mwandele [2020] TZCA 1876, that failure to exhaust internal dispute resolution mechanisms renders any reference to the CMA premature. Counsel further submitted that, since there existed a procedure for appealing against the respondents' termination, they were under an obligation to pursue and exhaust all requisite internal appellate

mechanisms established by the first respondent before escalating their claims to the CMA. On the availability of such a mechanism, he referred the Court to page 337 of the record of appeal, which contains section 28 (1) of the TEKU Charter. That provision establishes a Staff Disciplinary Appeals Committee mandated to hear appeals arising from decisions of the Disciplinary Hearing Committee. He contended that this issue had in fact been raised before the CMA but was not addressed. On the basis of the foregoing, Mr. Msonde concluded that the entire proceedings before the CMA and the High Court are a nullity. He accordingly urged this Court to invoke its revisional powers under section 6 (2) of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2023], to nullify, quash, and set aside those proceedings together with all resultant decisions, orders, and decrees. For his part, Mr. Mbwilo conceded the first issue raised by the Court, acknowledging that it has implications for the proceedings before the High Court. He contended, however, that only the proceedings relating to the deceased would be affected, as the matter would abate in respect of that party alone. Regarding whether the respondents were required to exhaust the available internal appellate dispute resolution mechanism of the first 8

respondent, Mr. Mbwilo invoked the proviso to section 28 of TEKU's Charter, arguing that the employer had not laid down any operating procedures, thereby affecting the validity of the CMA proceedings. In the alternative, he submitted that, should the Court hold otherwise, section 6 (2) of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2023], be invoked in the manner urged by Mr. Msonde. We have carefully considered the submissions of learned counsel for the parties. We propose to first address the second issue raised suom otu, namely, whether the respondents exhausted the internal appellate machinery of the first respondent prior to referring their dispute to the CMA. In Bayport Financial Services (T) Ltd v. Cresense Mwandele [2020] TZCA 1876, although the appellant contended that employees are required to exhaust internal remedies before approaching the CMA, the Court held that the respondent in that case was not precluded from doing so, as there was no law expressly barring him. However, a careful reading of that decision reveals that the internal dispute resolution mechanisms of the appellant were not sufficiently clear or well-defined, a factor which distinguished that case from Rev. Jonathan M. Mwamboza v. Bishop Dr. Stephen Minga & Another, Labour Dispute No. 1 of 2011 (unreported).

With respect to Rev. Jonathan M. Mwamboza (supra), the Court in Bayport Financial Services (supra) stated as follow: "The court in that case stated that the respondent d id not e rr to have referred the dispute the CMA. The instant case is thus distinguishable from the cited persuasive decision o f Rev. Jonathan M. Mwamboza (supra). This is because in that case the appeal m achinery was vividly explained in the Diocese Constitution. It was provided that the decision to disrobe the com plainant was made by the Pastoral Council and the appeal la y to the Executive Council and then to the Synod. Unlike in that case no one explained the appeal process w ithin the appellant's institution." What may be deduced from the excerpted portion of the Court's decision is that where a clear appellate procedure is provided in an institution's constitutive documents, it must be exhausted before recourse is made to external fora, unless it is demonstrably impracticable to do so. Only in such exceptional circumstances may an employee escalate his or her claims to the CMA. In our view, the exhaustion of internal appellate or grievance mechanisms in an employment setting is not a mere formality. There are compelling legal and practical reasons for this requirement. First, as a matter of logic, where an employer has established a structured dispute- 10

resolution mechanism, an aggrieved employee is expected to utilise it in the first instance. Second, this process may in fact benefit the employee, as any record generated through the employer's internal appellate machinery can serve as valuable evidence should the dispute subsequently proceed to the CMA or another competent tribunal — particularly where the employer has mishandled the appeal. Third, it demonstrates the employee's good faith, affords the employer an opportunity to rectify procedural errors without escalation, and facilitates the expeditious resolution of disputes, thereby promoting harmony in the employment relationship. Finally, such internal mechanisms are designed to safeguard procedural fairness, including the right to be heard and the right of appeal. Adherence to these processes reinforces procedural integrity prior to invoking external adjudication. Conversely, bypassing them may weaken a party's case, both procedurally and substantively. In Isaya Joseph Chawinga v. Commissioner General of Immigration Services & Another [2025] TZCA 490, where the appellant failed to exhaust the available internal remedies following his termination, the Court affirmed the principle that a party must exhaust all available administrative or internal remedies before seeking judicial

intervention. Failure to do so deprives the court of jurisdiction, rendering any proceedings conducted in such circumstances null and void. In the present appeal, it is evident that the respondents did not pursue the appellate procedure prescribed under section 28 (1) of the Charter of TEKU, which establishes a Staff Disciplinary Appeals Committee and provides a comprehensive framework for its constitution and operation. As the record of appeal indicates at page 155, the respondents were aware of this mechanism but elected not to utilise it. In our view, this omission was fatal and vitiated the proceedings before the CMA, which were prematurely instituted. Given that the CMA proceedings were a nullity, there is no basis upon which to consider the first ground of appeal. The nullity extends to Labour Revision No. 36 of 2013, which emanated from those proceedings, and consequently to the present appeal. In light of the foregoing, we invoke the Court's powers under section 6 (2) of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2023] to nullify the proceedings before the CMA, together with the proceedings and judgment of the High Court arising from Labour Revision No. 36 of 2018. Consequently, the resultant award, order, and/or decree are hereby set aside. 12

Subject to the applicable law, the respondents may, if they still wish, pursue their labour claims before a court or tribunal of competent jurisdiction. As this is a labour-related matter, we make no order as to costs. DATED at MBEYA on this 9th day of May, 2026. R. K. MKUYE JUSTICE OF APPEAL E. M. FELESHI, JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Ruling delivered Virtually this 11th day of May, 2026 in the presence of Ms. Martha Gwalema, learned Counsel for the Appellant also holding brief for Mr. Baraka Mbwilo, learned Counsel for the Respondent and Mr. Elias Nkwabi, Court clerk, is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL