Jacob Philip Ndaga vs Coca Cola Kwanza Ltd (Civil Appeal No. 381 of 2024) [2026] TZCA 539 (11 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE, J.A., FELESHI. J.A. And NANGELA, J.A.) CIVIL APPEAL NO. 381 OF 2024 JACOB PHILIP NDAGA ...... . ..................................................... APPELLANT VERSUS COCA COLA KWANZA LTD ....................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nongw a J L ) . dated the 12th day of December, 2023 in Labour Revision No. 01 of 2023 RULING OF THE COURT 06th & 11th May, 2026 NANGELA, J,A ,= This appeal arises from the decision of the High Court (Labour Division) in Labour Revision No. 01 of 2023. In that revision, the appellant, JACOB PHILIP NDAGA, sought revision of an award issued by the Commission for Mediation and Arbitration ("the Commission" or "the CMA") at Mbeya in CMA/MBY/Mby/109/2020/AR.40. By way of background, the appellant was employed by the respondent in 2016 and, over time, rose through the ranks to the position i of Regional Sales Manager. Subsequently, allegations were made that he had engaged in misconduct by sexually harassing his subordinates. Following those allegations, the respondent conducted an investigation, upon which an investigation report was prepared. Consequent thereto, disciplinary charges were framed and served upon the appellant, and a disciplinary hearing was convened. At the conclusion of the hearing, the charges were found proved and the appellant was found guilty of the alleged misconduct. He was thereafter terminated from employment. Aggrieved by that decision, the appellant referred a labour dispute to the CMA. The Commission heard the parties, received evidence from both sides, and ultimately rendered its award. In its findings, the CMA held that the allegations against the appellant had been established and that the requisite disciplinary procedures had been duly complied with. Having found that there existed valid reasons for termination and that the disciplinary process was procedurally fair, the CMA awarded the appellant salary for days worked prior to termination together with accrued annual leave, amounting in total to TZS 7,800,000.00. Still dissatisfied, the appellant filed Labour Revision No. 01 of 2023 before the High Court. In his supporting affidavit, he contended that the 2 award contained errors material to its merits, thereby occasioning injustice against him. He further asserted that the CMA had disregarded evidence demonstrating that his termination was unjustified. The appellant additionally contended that the respondent had failed to prove the allegations against him and that the award had been improperly procured, alleging bias on the part of the arbitrator. He therefore prayed for such further reliefs as the High Court deemed fit to grant. Upon hearing the application for revision, the High Court dismissed it for lack of merit. Still aggrieved, the appellant lodged the present appeal by filing a notice of appeal on 18th December, 2023. Thereafter, on 13th December, 2024, he filed a memorandum of appeal raising the following two grounds: 1. That, having found that the exhibits admitted before the CMA had not been read into the record after admission , the High Court erred in iaw and in fact by relying on those exhibits in re-evaluating the evidence, thereby arriving at an erroneous decision. 2. That the High Court erred in law and in fact in holding that the respondent had proved the case to the requisite standard. When the appeal was called for hearing, Mr. Philip Mwakilima, learned counsel, appeared for the appellant, while the respondent was represented by Mr. Kennedy Mgongolwa, also learned counsel. Upon being invited to address the Court, Mr. Mgongolwa intimated that, on 16th April, 2026, he had filed and served upon the appellant a notice of preliminary objection raising two points of law which may be conveniently rephrased to read as follows: 1. That the appeal is incompetent for failure to comply with rule 92 (1) o f the Tanzania Court o f Appeal Rules, 2009\ in that the record o f appeal does not contain a Certificate o f Delay to justify exemption from the requirement under rule 90 (1) o f the Rules that an appeal be instituted within sixty (60) days from the date o f lodging the Notice o f Appeal. 2. That the appeal is time-barred for having been instituted in contravention of rules 90 (1) and 90 (2) o f the Rules. Based on the foregoing grounds, Mr. Mgongolwa moved the Court to strike out the appeal. In support of that submission, he urged the Court to be guided by its previous decision in Elias Ramin Bachu v. Joseph Paul Zenda, [2016] TZCA 702. In response to the preliminary objections, although Mr. Mwakilima conceded that the Certificate of Delay had not been included in the record of appeal, he argued that the omission resulted from human error, as the certificate had in fact been issued by the Deputy Registrar. Referring to page 396 of the record of appeal, he contended that the appellant, through counsel, had submitted letters requesting certified copies of the requisite documents for purposes of lodging the appeal. Mr. Mwakilima further submitted that, although the Deputy Registrar's letter appearing at page 397 of the record of appeal informed him that the Certificate of Delay was "prepared and available for collection !’, the proceedings of the CMA had, to date, not been availed to him. Nevertheless, he maintained that the appeal had been filed within time, reckoning the period from 15th October, 2023 to 13th December 2023, being a total of 58 days. According to Mr. Mwakilima, since the only defect was the omission of the Certificate of Delay from the record of appeal, the Court could infer its existence from the Deputy Registrar's letter appearing at page 397 of the same record. In the alternative, he urged the Court, should it deem fit, to invoke section 4 of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2023], which embodies the overriding objective principle, and permit the appellant to file a supplementary record of appeal under rule 96 (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules). In a brief rejoinder, Mr. Mgongolwa insisted, first, that under rule 90 (1) of the Rules, time begins to run from the date on which the Notice of appeal is filed. If that position is accepted, the appeal would be hopelessly out of time, since the Notice of appeal was filed on 18th December, 2023, whereas the Memorandum of appeal was filed on 13th December, 2024. Secondly, he argued that computation of time is ordinarily governed by a Certificate of Delay, which counsel for the appellant had conceded was absent from the record of appeal. Regarding the applicability of the overriding objective principle, Mr. Mgongolwa submitted in rejoinder that the principle could not apply where the issue concerns limitation of time. He further argued that rule 96 (7) of the Rules could not be invoked because a formal notice of preliminary objection had already been filed and could not be pre-empted by counsel's request for leave to file a supplementary record of appeal. He therefore prayed that the appeal be struck out, with no order as to costs. We have carefully considered the submissions of the learned counsel for the parties. In our view, Mr Mgongolwa's submissions are well 6 founded. First, as correctly argued by Mr Mgongolwa, the reckoning of time for purposes of limitation begins from the date on which the Notice of appealis lodged. See Mohamed Geregeza v. Hamad Juma [2006] TZCA 323; and Lupembe Farmers Cooperative Joint Enterprises Limited (Muvyulu) v. Dhow Mercantile (AE) Limited and 2 Others [2015] TZCA 557. Secondly, in the present appeal, the Notice of appeal appearing at page 394A of the record was filed on 18th December, 2023, whereas the Memorandum of appeal was filed on 13th December, 2024, more than one year later. Under rule 90 (1) of the Rules, a memorandum of appeal must be filed within sixty (60) days from the date on which the Notice of appeal is lodged. The only exception applies where an appellant has applied, within thirty (30) days from the date of the decision sought to be appealed against, for copies of the proceedings and other documents necessary for instituting the appeal, and where the Registrar of the High Court has issued a Certificate of Delay certifying the period required for the preparation and delivery of those documents. In such circumstances, the certified period is excluded from the computation of time. However, as correctly submitted by Mr. Mgongolwa, no Certificate of Delay is contained in the record of appeal before the Court. The consequence of that omission is that the appellant cannot benefit from the exclusion of time contemplated under the proviso to rule 90 (1) of the Rules. See Board of Trustees of Orthodox Church v. Rogers Mashanda & Another [2021] TZCA 402. Indeed, in Board of Trustees of Orthodox Church v. Rogers Mashanda & Another (supra), the Court squarely addressed a submission similar to that advanced by Mr. Mwakilima, namely, that the omission could be cured under rule 96 (7) of the Rules by permitting the filing of a supplementary record of appeal. In rejecting that proposition, the Court stated as follows regarding the omission to include a Certificate of Delay: " The above position is long settled as it has been the same even before the coming into force o f the current Rules, therefore, Mr. Josephat’ s suggested innovation of remedying the said omission of not accompanying this time barred appeal with a certificate ofdeiay under Rule 96 (7) of the Rules is, with respect, without any legal basis. The following cases demonstrate the position then, in the old Rules when the current Rule 90 was Rule 83." [Emphasis added]. 8 From the foregoing, it is clear that Mr. Mwakilima's invitation for the Court to invoke section 4 of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2023], and thereby apply the overriding objective principle to permit the appellant to file a supplementary record of appeal, is untenable. Essentially, the overriding objective principle cannot be invoked to cure a breach of a mandatory procedural rule. See Mondorosi Village Council & Others v. Tanzania Breweries Ltd & Others, [2018] TZCA 303. Moreover, in Board of Trustees of Orthodox Church (supra), the Court reaffirmed its position that rule 96 (7) of the Rules cannot be relied upon to remedy an appeal that is already time-barred, stating that: "70 do otherwise, is ... to condone non-compliance with the iaws which would plunge the administration o fjustice into chaos ... non-inclusion o f the certificate o f delay in the record o f appeal cannot be cured by the principle o f overriding objective as the same cannot be blindly applied on such an omission which goes to the root o f the appeal. We fully associate ourselves with the above excerpt from the Court's decision. Accordingly, it follows that the omission to include the Certificate of Delay in the record of appeal was fatal to the appeal. In the premises, we are satisfied that the appeal before us is incompetent for being time-barred. Consequently, we uphold the respondent's preliminary objections and, in terms of rule 90 (1) of the Rules, strike out the appeal. We make no order as to costs. DATED at MBEYA on this 11th 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 Mr. Philip Mwakilima, learned counsel for the Appellant, Mr. Kennedy Mgongolwa, learned counsel for the respondent and Ms. Anna Utou, Court clerk, is hereby certified as a true copy of the original.