SGA Security (T) Ltd vs Adam Peter Kitali (Civil Appeal No. 1026 of 2025) [2026] TZCA 545 (11 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA f CO RAM: MKUYE. 3.A.. FELESHI. 3.A. And NANGELA, J.A.) CIVIL APPEAL NO. 1026 OF 2025 SGA SECURITY (T) LTD ........................................................... APPELLANT VERSUS ADAM PETER KITALI......................................................... RESPONDENT (Appeal from the Decision and Order of the High Court of Tanzania at Mbeya) (Nongwa, J.) Dated the 27th day of March, 2025 in Labour Revision No. 11026 of 2024 JUDGMENT OF THE COURT 30th April & 11th May, 2026 NANGELA, J.A.: The appellant, SGA Security (T) Ltd, a company providing private security services, has preferred this appeal against the decision of the High Court of Tanzania, Mbeya Sub-Registry, in Labour Revision No. 1102.6 of 2024. In order to appreciate the context in which the labour revision was determined, it is necessary to set out the relevant facts. The respondent, ADAM PETER KITALI, was an employee of the appellant. He was initially employed as a radio controller, a position he held from 2014 until 2020, when he was promoted to the position of CIT Coordinator. In 2022, however, the appellant accused the respondent of gross misconduct and dishonesty, occasioning a loss of TZS 15,000,000.00. An investigation and a subsequent disciplinary hearing were conducted, following which the appellant terminated the respondent's employment. ‘ Dissatisfied with the termination, the respondent referred a complaint, being Labour Dispute No. CMA/MBY/86/2023/ARB.01, to the Commission for Mediation and Arbitration for Mbeya (the "CMA"). In his CMA Form No. 1, the respondent claimed payment of TZS 70,000,000.00; however, the claim was not accompanied by a breakdown of its constituent elements. At the hearing, the appellant called seven witnesses and tendered fourteen documents in support of the fairness of its decision to terminate the respondent. Upon hearing the parties, the CMA found that the appellant had valid reasons to terminate the respondent's employment and that the termination was both substantively and procedurally fair, and therefore justified. The respondent, being dissatisfied, filed an application for revision before the High Court challenging the CMA's award. In his application, he questioned the fairness of his termination and claimed the following reliefs: payment of TZS 370,000.00 in lieu of notice; severance pay for ten years in the sum of TZS 996,153.80; compensation equivalent to 24 months' salary for unfair termination in the sum of TZS 8,880,000.00; general damages in the sum of TZS 59,753,847.00; and a certificate of service. In determining the application, the High Court framed three issues for determination, namely: (a) whether the respondent (appellant herein) had valid reasons to terminate the applicant (respondent herein); (b) whether fair procedures were followed prior to terminating the applicants employment; and (c) whether the arbitrator was justified in relying on Exhibit DY3 in ruling against the applicant (respondent herein), when the same had not been read before the Commission for Mediation and Arbitration. Having considered the parties' submissions, the High Court determined the matter on the basis of the three issues identified above and found that the respondent's termination was both substantively and procedurally unfair. Noting that the respondent had been employed on a permanent basis and was unfairly terminated, the High Court granted the following reliefs: (a) payment of TZS 370,000.00 in lieu of notice; (b) severance pay for ten years in the sum of TZS 996,153.80; (c) compensation for 3 unfair termination equivalent to 24 months' salary, amounting to TZS 8,880,000.00; and (d) general damages in the sum of TZS 20,000,000.00. It further ordered that the sum of TZS 750,000.00, previously awarded by the CMA, remain undisturbed. In total, the amount payable to the respondent was TZS 31,004,153.80. Aggrieved by the decision of the High Court, the appellant preferred this appeal. In her memorandum of appeal filed on 29/05/2025, she raised eight grounds of appeal. However, at the hearing, learned counsel for the appellant abandoned grounds 2 and 3, leaving grounds 1, 4, 5, 6, 7 and 8 for determination. Counsel further consolidated grounds 1, 4, 7 and 8, which were argued conjointly as one, while grounds 5 and 6 were argued separately. In view of that consolidation, the appellant's grounds of appeal may be conveniently reformulated into three grievances, namely: 1. That the High Court (Labour Division) erred in law and fact in holding that the respondent was unfairly terminated by the appellant, in failing to consider that the appellant had complied with all procedural requirements prior to termination , in finding that the respondent was not afforded the right to examine witnesses during the disciplinary hearing, and in failing to find that the respondent did not prove his case on a balance of probabilities before the Commission for Mediation and Arbitration. 2. That the High Court (Labour Division) erred in law and fact in miscalculating the total decretal amount and in awardingfor a second time, TZS 750,000.00 to the respondent as part of the decretal sum, whereas the same had already been paid pursuant to the award of the Commission for Mediation and Arbitration. 3. That the High Court (Labour Division) erred in law and fact in awarding general damages o f TZS 20,000,000.00 without providing reasons for such award. At the hearing of the appeal, the appellant had the legal services of Ms Janeth Katininda Eden, learned counsel, while Mr. Faraja G. Msuya, learned counsel appeared for the respondent. Submitting on ground one, Ms Eden contended that the respondent was lawfully terminated for proven and admitted misconduct. He was accorded procedural fairness, including 48-hour notice and the right to representation. Further, that, a disciplinary hearing was duly conducted and the charges were supported by testimonial and documentary evidence, notably the Police Force letter (appearing on page 252 of the record of appeal), confirmed that the impugned signatures did not belong to the alleged recipients. She contended further that, the respondent admitted in exhibit DY3, found on page 300 of the record of appeal, to have signed the payment forms and effecting fraudulent payments. She also contended that, the charges were clearly particularised in the summons served on the respondent (as may be found on page 256 of the record of appeal), and, that, the findings of the disciplinary committee were grounded on the evidence, the investigation report, and the respondent's own admission. She maintained, therefore, that, given the appellant's nature of security operations, and the fact that the respondent was not a novice to his job, and since there was a need to deter others, his termination was justified, consistent with the contract of employment and the respondent's duties. Accordingly, she urged the Court to find that his termination was both substantively justified and procedurally fair. Concerning ground number two, it was Ms Eden's submission that the compensation awarded was neither pleaded nor properly justified. The respondent, at page 540 of the record of appeal and in Form CMA FI (page 6 of the record of appeal), claimed a global sum of TZS 70,000,000 only. She argued that, the Commission, however, awarded compensation based on erroneous calculations and unpleaded heads of claim. For clarity she noted that, firstly, severance benefits were computed on the basis of 10 years' service, whereas (as may inferred on page 222 of the record) the respondent had worked for only 7 years under a contract running from 2015 to 2022. Secondly, the basic salary was wrongly 6 assessed at TZS 370,000 instead of the correct figure of TZS 250,000 as reflected in exhibit DY2. It is noteworthy that based on exhibit DY2 found on pages 218 and 317 of the record of appeal respectively, the figure addressed is TZS 350,000.00. Thirdly, the award of 24 months' compensation was made without reasons. In addition, annual leave payment of TZS 750,000 was awarded twice, despite evidence that it had already been paid, rendering the computation erroneous. On ground three, it was Ms. Eden's submission that general damages of TZS 20 million were awarded to the respondent without any basis in the pleadings or reasons. She argued that, the respondent did not specifically plead general damages in CMA FI beyond the omnibus claim of TZS 70,000,000. She maintained, therefore, that the award was made in violation of settled pleading principles, as affirmed in Vidoba Freight Co. Limited v. Emirates Shipping AgencesT. Ltd & Another, [2022] TZCA 740. In the premises, the appellant prays that the appeal be allowed and the decision of the High Court be quashed. For his part Mr. Msuya submitted that the respondent's termination from employment was unfair and disputed the appellant's position. He submitted that the Labour Court was correct in finding that no formal charge was issued, which denied the respondent a fair opportunity to respond, as reflected on pages 533 and 535-536 of the record of appeal. He further contended that the respondent was not afforded an opportunity to cross-examine witnesses. Concerning the letters relied upon by the appellant and which are reflected on page 252 of the record of appeal, Mr. Msuya submitted that those letters were issued on 24/09/2022 after the investigation had already been concluded, raising concerns about the timing and integrity of the allegations. He argued that, although such documents were admitted, the respondent was still denied the right to cross-examine the witnesses. He maintained that there was no properly issued formal charge and that the letter at page 252 of the record was not properly marked, concluding that the termination was unlawful. On CMA Form F.l, he submitted that although entitlements were not specified, the sum of TZS 70,000,000 had been adequately explained before the CMA. Regarding severance pay, he supported the Labour Court's award based on ten years of service but argued that no reasons were provided, suggesting instead that compensation should have been limited to seven years with justification. He conceded, however, that the calculation based on a salary of TZS 370,000.00 was erroneous. On general damages, he accepted that the award falls within the court's discretion but argued that the award of 24 months' compensation was made without reasons and was therefore improper. Finally, he contended that the issue of prior payment of TZS 750,000.00 was not raised before the Labour Court and should not be introduced at this stage. In a brief rejoinder, Ms. Eden rejoined that the issue of double payment of TZS 750,000.00 could not have been raised before the High Court because it was the High Court that awarded it while the respondent had already received such amount having been awarded to him by the CMA. Since it was re-awarded to him in the decision impugned it could not have been raised before the High Court because it was yet to be made part of its decision. We have dispassionately considered the rival submissions, the grounds of appeal and the entire record of appeal. The key issue for our determination is whether the High Court was right in its decision and findings. Starting with the above rephrased first ground of appeal, it questions the propriety of the High Court's finding that the respondent was unfairly terminated by the appellant. According to Ms. Eden, the appellant had complied with all procedural requirements during the disciplinary hearing and having found that the respondent had committed the infraction there were substantive reasons why he was terminated. However, Mr Msuya held a different view arguing that the respondent's termination was both substantively and procedurally unfair. It is trite law that in any proceedings concerning unfair termination of an employee, the duty is cast upon the employer to prove that his act of terminating the employee was fair. Section 40 of the Employment and Labour Relations Act, ("ELRA") [Cap. 366 R.E. 2023] is to that effect. Moreover, for termination to be considered fair, the employer must demonstrate that: (a) there were valid reasons for such termination; (b) such reasons related to the employee's conduct, capacity or compatibility or based on the operational requirements of the employer; and (c) the employment was terminated in accordance with a fair procedure - see: section 38 (2) (a), (b) and (c) of the ELRA. In Paschal Bandiho v. Arusha Urban Water Supply & Sewerage Authority (AUWSA) [2022] TZCA 42, the Court held that: "As to the standard of proof, rule 9 (3) and (5) o f the Code o f Good Practice requires an employer to prove, on balance o f probabilities, that the reason was not only fair but sufficiently serious tojustify termination." In the present appeal, it is common ground that the respondent was terminated from his employment on the grounds of gross misconduct and dishonest. Essentially, even if an infraction might have been committed, it is trite that, before an employee can properly be found guilty of gross misconduct and subjected to termination, the disciplinary committee must first be seized of valid and sufficiently particularized charges 10 communicated to the employee in accordance with the applicable disciplinary procedure. In the context of the present appeal, the pressing question is whether the respondent was availed with a clear notice of the allegations he was facing in a manner that would have entitled him to understand the case against him and prepare to defend it. In our view, as we look at the record of appeal, we are less convinced that such a procedural standard was met. We hold that view because, the entire record of appeal does not show that a formal notice of allegations was ever served on the respondent. In her submissions, however, Ms Eden contended that the respondent was faced with charges that were clearly particularised and served on him and, drawing our attention to exhibit DY5, a document found on page 256 of the record of appeal, she concluded that, the findings of the disciplinary committee which were grounded on it were sufficiently warranted the allegations having been proved. However, a look at exhibit DY5 does not indicate that what Ms Eden regarded as a notice constituting the charges was indeed so. Our reading of it, even by mere looking at its title, which is "WITO WA MASHAURI" (A SUMMONS TO APPEAR), shows that the document was a mere summons inviting the respondent to appear before the disciplinary committee to respondent to the charges levelled against him. 11 As a matter of law, a charge is not a summons to appear. It is rather, a document that sufficiently gives the suspect clear notice of the allegations, sufficient particulars of it to enable him to understand the case against him and, more importantly, affording him an opportunity to prepare and defend himself before a disciplinary body. See: rule 12(1) of the Employment and Labour Relations (Code of Good Practice) G.N. 42 of 2007; and Magreth Method Mapunda v. Natioal Museums of Tanzania [2022] TZCA 698. In Severo Mutegeki & Another v. Mamlaka Ya Maji Safi Na Usafi Wa Mazingira Mjini Dodoma ([2020] TZCA 310, the Court, citing with approval what was stated by the High Court in Simeon Manyaki v. The Institute of Finance Management [1984] T.L.R. 304, noted, inter alia, that: "the applicant whose rights and legitimate expectations stood to be so adversely affected by the inquiry had the right: (a) o f being sufficiently appraised o f the particulars of the prejudicial allegations that were to be made or had been made against him, so that he could effectively prepare his answer and collect evidence necessary to rebut the case against him..." We think the above excerpted portion of the decision of the Court equally apply to the current appeal. Since the record does not indicate anywhere that the respondent was served with a formal notice of the 12 allegations he was facing, even if such allegations might have been there, it could not be said he was procedurally treated with fairness. The above noted anomaly could have alone sufficed. But the record does also show that, the respondent was not afforded opportunity to cross-examine some of the witnesses. In Michael Mabula Nzengula & Another v. Kahama Town Council & Others, [2025] TZCA 357, the Court, relying on its previous decision in Arthur Mgongo v. KCB Bank Tanzania Limited [2024] TZCA 1205 held that: "the duty o f the employer set out under regulation 13(5) of the Employment and Labour Relations (Code \ o f Good Practice) Rules GN. No. 42 o f2007 to present evidence during disciplinary hearing and the accused employee to cross examine witnesses and to call witnesses in defence." In view of all that, we find that the High Court was justified in its findings that respondent's termination was procedurally unfair. Concerning whether the reasons of the respondent's termination were valid or not, Ms Eden strenuously argued that they were valid reasons. Her basis for that argument was the fact that the respondent made own admission based on exhibit DY3. But much as exhibit DY3 indicated that the respondent made admissions, since there was no formal notice of charge laid before his doorsteps, exhibit DY3 was not in proof of any valid allegation since none existed there being no valid charges laid before the 13 respondent. As such, there was no valid reasons for the termination and, thus, the High Court's findings cannot be faulted. Based in the foregoing considerations, the first ground of appeal lacks merit. We accordingly dismiss it. As regards the second ground of appeal, the same questions the way the High Court calculated the total decretal amount and the fact that the Court awarded the respondent T2S 750,000.00 as part of the decretal sum, whereas the same had already been paid pursuant to the award of the Commission for Mediation and Arbitration. In her submissions, Ms. Eden was quite eloquent that in principle the High Court awarded compensation on unpleaded heads of claims bearing in mind that in the CMA Form No.l, the respondent claimed a lumpsum of TZS 70,000,000.00. She also questioned the payment of severance pay based on a salary of TZS 370,000.00 instead of TZS 250,000.00 and, that it ought to have been for a period of seven not ten years. Mr. Msuya conceded to that fact but noted that adequate explanations regarding what constituted the amount were given at the CMA. He also conceded that there was no justification for the payment of severance allowances based on a salary of TZS 370,000.00. We have carefully considered the above rival contentions and concessions. In the first place, based on the record of appeal, it is clear that there are some computational errors that need to be addressed. 14 First, it is correct that the High Court ought not to have ordered the respondent to be paid TZS 750,000.00 which were paid as part of his unpaid annual leave, since that amount was immediately paid to the respondent after the CMA passed its award. For the High Court to order the same to be paid again, that constituted a double payment. Ms Eden demonstrated to the Court, based on the Appellant's bank statement, that the respondent received the said amount on 25th March, 2024. Second, since the High Court based its award of compensation on a scale of 24 months, there ought to have been given reasons in support thereof. Essentially, Mr. Msuya conceded that there were no reasons assigned to that and it was thus improper to decide without assigning the reasons for that decision. Third, as regards the payment of severance allowance. In Ms Eden's submission, she maintained that the computation made by the High Court was erroneous because its salary base ought to have been TZS 250,000.00 instead of TZS 370,000.00. Moreover, she argued that it ought to have been for seven and not ten years' period. With respect, although Mr. Msuya supported that submission, and while what Ms Eden asserted has some truths, looking at the record of appeal, we are of the view that this submission does not present the whole truths. We hold that view because, at the time of the respondent's termination, and as per his letter of appointment (exhibit DY2 found at 15 pages 218 and 317 of the record of appeal respectively, the respondent's basic salary stood at TZS 350,000.00. What the above fact means is that the computation made by the High Court ought not to have been based on the salary scale of TZS 370.000.00 (as it did) but also ought not be at a scale of TZS 250,000.00 as Ms Eden contended. The correct base should have been TZS 350.000.00 and the period of computation should have been seven and not ten years. We hold, therefore, that, the High Court erred when it based its calculations on a salary scale of TZS 370,000.00 which was in the excess of TZS 20,000.00. That needs to be rectified as we have done herein and the payment constituting notice of termination ought to be TZS 350.000.00 and not TZS 370,000.00 as indicate in the High Court's decision. Based on the above considerations, we find that the second ground of appeal has some merits and we hold it to the extend discussed hereabove. finally, is the third ground of appeal. The grievance in this ground is that the High Court erred in law when it awarded general damages of TZS 20,000,000.00 without providing reasons for such award. In our view, award of general damages is essentially at the discretion of the court but 16 as the Court stated in Vidoba Freight Co. Limited v. Emirates Shipping Agences T. Ltd & Another [2022] TZCA 740: "7£ is a trite law that when awarding general damages, the trial court must provide the reason to justify the award." In the instant appeal, the High Court award the respondent TZS 20.000.000.00.as general damages. Initially, the respondent had prayed to be awarded TZS 59,753,847.00 as general damages. Although Ms Eden contended that no reasons were assigned by the High Court, a submission which Mr. Msuya supported, we hold a different view. Looking at page 514 of the record of appeal, the High Court is on record to have stated as follows: "7 have considered circumstances o f the case; the applicant was employed on permanent employment but as I have demonstrated was terminated unfairly. I therefore grant the reliefs he claimed save for general damages which I reduce to TZS 20,000,000.00." In our view, the above excerpted portion of the High Court decision, reveals the reasons why the presiding High Court Judge awarded the TZS 20.000.000.00. Given the circumstances of the case considered as a whole, we are of the view, however, that, the award of TZS 20,000,000.00 was far on high ends. The award could not have exceeded TZS 12.000.000.00. We therefore reduce the amount to TZS 12,000,000.00. 17 The third ground of appeal is thus disposed of subject to the adjustment we have made herein. In the end, we find that the appeal is partly allowed to the extent so discussed herein. This being a labour dispute, each party is to bear its own 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 Judgment delivered Virtually this 11th day of May, 2026 in the presence of Ms. Janeth Katininda Eden, learned Counsel for the Appellant also holding brief for Mr. Faraja Msuya, 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 \ / 18