Marwa Chacha Kisyeri vs Mwanza Baptist Secondary School (Civil Application No. 353/08 of 2023) [2026] TZCA 520 (11 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A., MASOUP. J.A. And MLACHA. J.A.^ CIVIL APPLICATION NO. 353/08 OF 2023 MARWA CHACHA KISYERI ............................................................. APPLICANT VERSUS MWANZA BAPTIST SECONDARY SCHOOL..................................RESPONDENT (Application for review of the Judgment of the Court of Appeal of Tanzania, at Mwanza) (Ndika, Kitusi and Rumanvika. JJA.^ dated the 5th day of December, 2022 in Civil Appeal No. 366 of 2019 RULING OF THE COURT 7th & 11th May, 2026 MASOUP. J.A.: In this application, the applicant, Marwa Chacha Kisyeri, invited the Court to review its own decision in Civil Appeal No. 366 of 2019 (Ndika, Kitusi, and Rumanyika, JJA), dated 5th December 2022. In that decision, this Court found that, the applicant's appeal was devoid of merit and dismissed it. The appeal was against the High Court's decision in Labour Revision No. 88 of 2017 which had directed the applicant's contract of employment to be renewed to a limited duration of 2015 to 2017. Apart from dismissing the appeal, the Court found that the applicant was neither i

entitled to the order for renewal of his employment contract nor did he deserve any statutory compensation for unfair termination. As a result, it quashed the High Court's ruling and set aside the corresponding order for renewal of the contract from 2015 to 2017. The applicant preferred the application under section 4 (4) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) (now section 6 (4) of the AJA, Cap. 141 R.E 2023), and among others, rule 66 (1) (a) and (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules). His notice of motion, which was vehemently opposed by the respondent through her affidavit in reply, had a total of eight grounds, allegedly, relating to manifest error on the face of the record resulting in miscarriage of justice in terms of rule 66 (1) (a) of the Rules; and denial of right to be heard in terms of rule 66 (1) (b) of the Rules. To appreciate the form and substance of the alleged errors in those grounds and matters of their competence or otherwise as grounds for review, we find it prudent to reproduce them thus: "(1) A fter quashing the High Court Labour Division ruling and setting aside its order, it failed to consider, effectively deal with and determ ine on the fate o f the CMA proceedings, award and the two surrounding controversial issues between the parties about autom atic expiration and 2

term ination o f employment contract, due to end on 3/5/2015. (2) The court made m anifest error by om itting to grant the applicant with the right to be heard on the new issues the court raised suo motu and decided them without according the applicant with any opportunity to defend or argue about the same. Such new issues found in the judgm ent include that the p artie s'employment contract was once renewed in 2007 by the CMA m ediator's directive and that they were three other factors which m ilitated against any expectation o f the renew al o f the contract. (3) The court om itted to consider effectively deal with and decide on the applicant's written subm issions regarding to the stranger to the contract, the School Board, who brought the parties contract to the end by condemning the applicant unheard and refused him to renew his contract after J d May, 2015. (4) The court om itted to consider effectively deal with and determ ine on the issue regarding to term ination o f the applicant's employment from 1st January, 2005 to J d May, 2015, the length o f 10 years being in service. (5) The court om itted to consider, effectively deal with and determine on the applicant's written 3

subm issions regarding the issues which were le ft without being decided by the High Court the applicant com plained o f them in the C ivil Appeal No. 366 o f 2019. (6) The Court om itted to consider subm issions regarding grounds o f appeal Nos. 2 and 3 in the memorandum o f appeal which ought to be decided by the Court as the main issues o fgreater importance. (7) The Court om itted to consider, effectively deal with and determine the applicant's evidence on the record, grounds o f appeal and written subm issions in totality concerning legal claim s or statutory rights relating to the dispute over his term ination o f employment other than or as contrasted to statutory compensation for unfair term ination the Court held undeserved to the applicant. (8) The Court om itted or failed to notice, effectively deal with and decide that out o f the 3 previous renewals o f the contract in 2007-2009, 2011-2013 and 2013-2015, the applicant was im pressed on a ll such the 3 renewal phases to renew the latest existing contract after its expiration on J d May, 2015."

At the hearing, the applicant appeared in person unrepresented. On the other hand, the respondent was represented by Mr. Steven Mhoja, learned advocate. When invited to argue the application and address the Court on whether the grounds are in conformity with the requirements of rule 66 (1), the applicant and the respondent's advocate adopted the notice of motion, supporting affidavit, affidavit in reply and rival written submissions for and against the application previously filed, as they expounded on their rival submissions respectively. The applicant, roundly but in so many words, said that the errors in those grounds are conspicuous on the face of the record and perfectly within the purview of rule 66 (1) of the Rules. He added that he is aware of the principles governing the Court's exercise of its discretion in review and he is pretty sure that the grounds do not, in any way, invite the Court to dwell on matters beyond the judgment as the only record to be looked at when the Court exercises its discretion in review jurisdiction. However, the more the applicant strived to make her points clear by expounding on the grounds for review, the more he referred us to, and dwelt on, the record of appeal in Civil Appeal No. 366 of 2019 on matters, such as the proceedings of the CMA in the relevant dispute, the evidence, and written submissions which are well beyond the impugned judgement. 5

Such endeavour was notwithstanding that; the latter is the only record to be looked at along with the grounds for review when the Court exercises its jurisdiction of reviewing its own decisions. We need not at this stage delve into the details of those grounds. The learned counsel for the respondent on his part was of the view that in spite of the appellant raising eight grounds of review to support his application, none of those grounds reveals errors which are apparent or patent on the face of the impugned judgment. It is in that respect that, all what the respondent's advocate kept on insisting as he expounded on the respondent's written submission in reply was that the applicant has miserably failed to show the Court that his grounds for review involve apparent errors on the face of the record. For such reasons, the learned advocate submitted, the application is incompetent in the eyes of the law and is liable to be struck out. It is not without relevance to say that unlike the counsel for the respondent, the applicant relied, in his forty-page written submissions, on a number of leading authorities on this Court's jurisdiction for review. They include Chandrakant Joshubhai Patel v. Republic [2004] TLR 218; and Elia Kasalile and Others v. Institute of Social Work [2019] TZCA 73. Although the respondent's advocate did not cite any authorities, his submissions before us was clearly reflective of the principles arising

from those authorities amongst many which guide the Court in exercising its review jurisdiction and what makes a competent application for review. The applicant only boasted of being aware of those principles, arguing that his application passes the tests established by those principles. One such principle is that, an error is apparent on the face of the record when it is obvious and self-evident and does not require an elaborate argument to be established. Thus, the term "m istake or error" on the face of the record, namely the impugned judgment, signifies an error which is evident perse from the judgment of the case and it does not require detailed examination, scrutiny and clarification either of the facts or the legal exposition. The other principle is that it will not be a sufficient ground for review that another judge could have taken a different view of the matter, nor can it be a ground for review that the Court proceeded on an incorrect exposition of law and reached an erroneous conclusion of law. There is yet another principle that, review is not an appeal in disguise and the Court cannot for that matter be invited to re-evaluate the evidence or substitute its own view of the facts merely because another view is plausibly possible. Consequently, a review may be granted only to correct an apparent error or omission, but not to rehear the case. We, on our part, associate ourselves with those principles as amongst 7

those that govern the exercise of the Court's jurisdiction for review. See also Elias @ Mwita v. Republic [2016] TZCA 4, in which we summarized leading principles governing exercise of review jurisdiction by the Court in the context of rule 66 (1) of the Rules. Having carefully considered the rival submissions in light of the affidavit supporting the application and in reply, we wondered as to whether the grounds raised by the applicant disclose errors which fall within the limited scope of review. In our consideration, we took into account the powers of this Court to review its own decisions which is provided for under section 4 (4) of the AJA and Rule 66 (1) of the Rules. Thus, rule 66 (1) provides that: "66 (1) The Court may review its judgm ent or order, but no application for review shall be entertained except on the follow ing grounds; (a) the decision was based on a m anifest error on the face o f the record resulting in the m iscarriage o fjustice; (b) a party was wrongly deprived o f an opportunity to be heard; (c)the Court's decision is a nullity; (d) the Court had no jurisdiction to entertain the case; (e) the judgm ent was procured illeg ally or by fraud or perjury." 8

In view of the above provisions and as we indicated above, the applicant relied on eight grounds which in his view disclose errors that befit the parameters of rule 66 (1) (a) and (b) of the Rules. He is thus inviting the Court to review its own decision in Civil Appeal No.366 of 2019 based on, firstly, manifest error on the face of the record which has resulted in the miscarriage of justice, and secondly, that the applicant was denied an opportunity to be heard which must also be evident on the record, that is the very judgment sought to be reviewed. Informed by the principles we summarized herein above; we must emphasize that in exercising its review jurisdiction the Court cannot look for or justify an error beyond the judgment sought to be reviewed. In other words, reference to an apparent error " on the face o f record' means an error on the judgment sought to be reviewed and not beyond it. Therefore, the Court need not be bothered by the record of appeal in respect of which the judgment sought to be reviewed was made even if the application before it was accompanied by that record. It would in the same vein follow that, a ground alleging an error which on the face of it invites the Court to look for or justify the alleged error beyond the judgment sought to be reviewed would under no circumstances qualify as a competent ground for review under section 4 (4) of the AJA and Rule 9

66 (1) of the Rules. Thus, a competent ground for review need not invite the Court to dwell on anything from the record of appeal but the judgment sought to be reviewed. We have examined each and every ground for review which we reproduced herein above in full. They all follow the same pattern and style. They are argumentative, wordy and a bit of a mouthful. Their form and substance are hinged on the record of appeal for Civil Appeal No. 366 of 2019 which also unnecessarily accompanied the application. They bring our attention particularly to matters of the record of appeal in Civil Appeal No. 366 of 2019, namely, the proceedings and award of the CMA relating to Civil Appeal No. 366 of 2019; the evidence relating to the dispute, culminating to the said appeal, particularly, the employment contract between the applicant and the respondent; the applicant's written submissions in Civil Appeal No. 366 of 2019; and the memorandum of appeal in Civil Appeal No. 366 of 2019. They pinpoint the alleged errors around the above aspects and matters relating to the record of appeal, arguing that they were not considered and determined. In so doing however, they make no clear reference to the judgment sought to be reviewed, not surprising because the application was unnecessarily accompanied by the record of appeal in Civil Appeal No. 366 of 2019. In view of the form and substance of those 10

grounds and the alleged errors arising from those grounds, it is not surprising that the applicant lodged in this Court the forty-page written submissions. At this juncture, we find ourselves in agreement with the respondent that none of the alleged errors satisfy the threshold of an error for purposes of review jurisdiction of this Court. They are, essentially, grievances over the Court's appreciation of evidence, grounds of appeal, written submissions and legal conclusions, which are matters squarely falling within the appellate jurisdiction, not review. Seeking re-appraisal of the entire evidence on the record of appeal for purposes of finding the error raised is tantamount to the exercise of the appellate jurisdiction which is not permissible. See, Maulid Juma Bakari @ Dam Mbaya v. Republic [2021] TZCA 334. In that case, we stated by way of emphasis, which we subscribe to in relation to the matter before us, that: "Issues regarding the evidence o f witnesses cannot be raised as grounds for review as they w iii require going back to the record to re-evaluate what they said, a process which does not fa ll under the confines o f Rule 66 (1) o f the Rules." With the above exposition of the form and substance of the grounds for review purportedly supporting the application before us, we find that the grounds, by their very nature, invite this Court to dwell on matters li

beyond the impugned judgment sought to be reviewed. As they are all miserably incompetent, none of them can competently support the application under rule 66 (1) (a) and (b) of the Rules. For the reasons stated, the application fails. Consequently, we dismiss it. Since the application emanates from a labour dispute, we make no order as to costs. DATED at TABORA this 11th day of May, 2026. The Ruling delivered this 11th day of May, 2026 in the presence of the Applicant who appeared in person unrepresented, Mr. Steven Mhoja, learned counsel for the Respondent by virtual Court, and Mr. Magesa Fabiane Mgeta, Court Clerk; is hereby certified as a true copy of the S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL original. 12