Yoktan Nyondwi vs Airswift Consulting Tanzania Limited & Another (Civil Appeal No. 101 of 2025) [2026] TZCA 513 (8 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: KEREFU. J.A.. MWAMPASHL, J.A And ISMAIL., 3-Ai) CIVIL APPEAL NO. 101 OF 2025 YOKTAN NYONDWI . ................... . .............................................. APPELLANT VERSUS AIRSWIFT CONSULTING TANZANIA LIMITED......................1 st RESPONDENT EAST AFRICAN CRUDE OIL PIPELINE (EACOP) L T D ..... 2 nd RESPONDENT [Appeal from the Ruling of the High Court of Tanzania (Labour Division) at Dar es Salaam] (Mganqa, J dated 15th day of November, 2024 in Miscellaneous Civil Application No. 25926 of 2024 JUDGMENT OF THE COURT 22n d April & 8th May, 2026 MWAMPASHL J.A.: Yoktan Nyondwi, the appellant herein, was on 13.03.2023, engaged by the respondents on a one-year fixed term contract as a Construction Management-EACOP Replacement Housing Officer. Among other things, it was agreed by the parties under Clause 24 of the contract of employment that, in case of any dispute or claim arising out of or relating to the Contract or a termination thereof, the parties shall submit the dispute or claim, as the case may be, to the Tanzania Institute of Arbitrators (the TlArb) before a single arbitrator appointed in terms of TlArb Rules. 1 On 22.08.2023, before the expiry of the Contract, the appellant was terminated from employment on a ground of poor performance. Aggrieved, he referred the dispute to the Commission for Mediation and Arbitration (the CMA) at Dar es Salaam through Labour Dispute No. CMA/DSM/KIN/508/2023/315/2023 which was however, greeted by a preliminary objection from the respondents that, the CMA lacked jurisdiction to entertain the matter. In sustaining the objection, the CMA held that, since the parties had agreed to submit their disputes to the TIArb, the CMA had no jurisdiction to entertain the matter. For that reason, the dispute was accordingly dismissed. The CMA, having declined to entertain the matter for lack of jurisdiction, the appellant referred it to the TTArb. After preliminaries conducted by the arbitrator appointed to arbitrate the parties, it was found and assented by the parties that, despite the dispute being a labour matter, it was arbitrable and the principles of arbitration regarding payment of arbitrator's fees and arbitration expenses were applicable. It was also common ground that, one of the principles of arbitration is for the parties to equally share the arbitrator's fees and arbitration expenses. To that effect, it was directed by the arbitrator that, TZS. 36,000,000.00 had to be deposited by the parties for that purpose. That amount, having been equally divided between the three parties, the appellant was thus, required to deposit TZS. 12,000,000,00 as his share of the charged fees and expenses. On account of allegedly being incapable of paying the charged amount, the appellant requested to be exempted from paying it. He contended that, being poor and unemployed, he could not raise the said amount. He also prayed for the arbitrator to direct that the whole amount charged as fees and expenses be paid by the respondents. The requests by the appellant were vigorously resisted by the respondents who insisted for the fees and expenses to be shared equally by the parties as per the requirement of the law. The arbitrator sided with the respondent and on 06.08.2024, he directed the appellant to deposit TZS. 12,000,000.00 as his share of the charged fees and expenses within 7 days. As by 07.10.2024, the appellant had not deposited the charged amount as directed, his matter was marked withdrawn with leave to refile it, should he manage to pay the charged amount. The withdrawal of the matter by the arbitrator prompted the appellant to file Miscellaneous Application No. 25926 of 2024 before the High Court (Labour Division). The application was made under rules 24 (1), (2), (3), (ll)(b) and (c), 55 (1) and (2) of the Labour Court Rules GN. No. 106 of 2007 as well as sections 93 (2)(b) and 94 (1), (3)(a)(i) and (b)(ii) of the Employment and Labour Relations Act [Cap 366 R.E. 2019] (the 3 ELRA). In essence, the appellant sought for two orders; One# that the High Court be pleased to order that the applicant be exempted from liability to pay the arbitrator's and arbitration expenses to the TIArb and two, that the court be pleased to order that the fees and expenses be paid by the respondents. As it was for his labour dispute before the CMA which was dismissed for lack of jurisdiction, the appellant's application before the High Court was also greeted by a preliminary objection from the respondents that, the High Court has no jurisdiction to entertain the application and the orders sought by the appellant were not grantable by the High Court. Having heard the parties' submissions for and against the preliminary objection, the High Court sustained the objection. It was concluded that, the High Court has no jurisdiction to exempt any party to the arbitration proceedings before the TIArb from paying the arbitrator's charged fees and arbitration expenses. It was also held that, under section 32 (2) of the Arbitration Act, No. 2 of 2020 (the Arbitration Act), the jurisdiction of the High Court is limited only to consideration and adjustment of the charged fees and expenses where the same is challenged for being unreasonable. It was insisted that, there is no provision under the Arbitration Act vesting power in the High Court to grant the orders sought by the appellant. The application was thus, dismissed hence the instant appeal. In support of his appeal before us, the appellant has raised two grounds of complaints: 1. That, the (earned Judge erred in law and facts for the improper interpretation o fsection 94 (t) and (3)(a)(i) o f the Employment and Labour Relations Act, Cap. 366 R.E2019 read together with section 51 o f Lab ou r Institution Act, Cap. 300 R E 2019 for not considering that the applicant is unemployed and indigent person hence reaching at a wrong decision in favour o f the respondent 2. That, the learned Judge erred in law and fact in failing to consider that the employment case is the matter o flaw and not a commercial case. At the hearing of appeal, the appellant appeared in person unrepresented. On the other hand, Messrs. Zacharia Daudi and William Mang'ena, both learned advocates, represented the 1s t and 2n d respondents respectively. Earlier, ahead of the hearing and in terms of rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the appellant and counsel for the respondents had filed written submissions for and against the appeal. During the hearing, the parties adopted their respective submissions to form part of their oral submissions in support and against the appeal. Without more, having adopted his written submissions filed on 06.03. 2025 in support of the appeal, the appellant prayed for and was granted leave to produce and rely on the decision of the Industrial Court of Uganda in Apio Gloria v. General Manager, Ngetta Tropical Holdings Ltd, Labour Dispute Reference No. 12 of 2022. He prayed for the Court to consider his grounds of appeal and based on his written submissions and the cases cited, the appeal be allowed. In his written submissions, it was submitted on the 1s t ground of complaint that, based on the principle that, a person's right to seek legal remedies should not be impeded by the person's financial position, as restated by the Court in Edward Msago v. Dragon Security [2020] TZCA 1867, the High Court erred in holding that it had no jurisdiction to exempt a party to arbitration proceedings from paying arbitrator s fees and arbitration expenses. It was insisted that, in so holding, the High Court did not consider and take into account the fact that, the appellant is poor and unemployed with no income to enable him make such payments. Regarding the 2n d ground of appeal, the High Court was faulted by the appellant for not taking into account that, all employment matters are exempted from payment of requisite fees. Placing reliance on the decision of the Court in Joseph Khenani v. Nkasi District Council [2022] TZCA 82, the appellant contended that, a statute should not be interpreted in a way that deprives a person some accrued rights. He thus, prayed for the appeal to be allowed. On the opposition side, having adopted his written submissions earlier filed on 25.03.2025, Mr. Daud for the 1s t respondent submitted that, the Ugandan case cited by the appellant is irrelevant and distinguishable. It was further submitted that, the submissions made in support of the two grounds of appeal are misconceived. As regards the 1s t ground of appeal, it was argued that, the High Court rightly held that it lacked jurisdiction to exempt the appellant from paying the arbitrator's fees and arbitration expenses. It was further submitted that, the High Court properly interpreted section 94 (1), (3)(a)(i) of the ELRA as well as section 51 of the Labour Institution Act [Cap 300 R.E 2019] (the LIA), by holding that, the said provisions do not cloth it with jurisdiction to exempt the appellant from paying the arbitrator's fees and arbitration expenses. It was insisted that, the orders sought were not grantable under the provisions of the law, upon which the application was predicated. It was also submitted that, the issue of submitting the dispute to the TTArb and the requirement for the parties to pay the chargeable fees was consensual and binding on the parties. To concretise the point, we were referred to our earlier decisions in Joseph F. Mbwiliza v. Kobwa Mohamed Lyeseelo Msukuma & Others [2022] TZCA 699, Simon Kichefe Chacha v. Eveline M. Kilawe [2021] TZCA 3558 and Unveler Tanzania Ltd v. Benedict Mkasa t/a Bema Enterprises [2016] TZCA 24. The 2n d ground of appeal was resisted by the 1s t respondent for raising new issues not discussed by the High Court. That notwithstanding, it was submitted that, employment contracts are governed by the Law of Contract. It was contended that the appellant entered into the contract while mindful of the fact that, the TIArb is an entity separate from the judicial system with its own funding system dependent on fees paid by the parties. In the written submissions for the 2n d respondent, which were adopted by Mr. Mang'ena, it was argued that, the 1s t ground of appeal is baseless because it is not shown how section 94 (1) and (3)(a)(i) of the ELRA and section 51 of the LIA were improperly interpretated by the High Court. It was submitted that, though the jurisdiction of the High Court in dealing with labour matters is given by the above provisions, exempting a party to arbitration proceedings from paying the chargeable fees is not among the powers given to the High Court by the said provisions. The case of Edward Msago (supra) was distinguished because in that case, the Court had jurisdiction to waive security and fees for filing appeals unlike in the instant case where the High Court had no such jurisdiction. 8 On the 2n d ground of appeal, it was submitted for the 2n d respondent that, even though, generally, employment matters are exempted from payment of fees, in the instant matter, the law under section 93 (1) and (2) of the ELRA allows employment matters to be referred to the TIArb if the parties had an agreement to that effect and that before the TIArb payment of fees is allowable by the law. Based on the afore-given submissions, counsel for the respondents prayed for the appeal to be dismissed for want of merit. In his brief rejoinder, the appellant reiterated his written submissions. He argued that, the Ugandan case is relevant to the 2n d ground of appeal and, he thus, prayed for the appeal to be allowed. We have dispassionately considered the submissions made for and against the appeal. We have also examined the nature of the orders which were sought before the High Court, the law upon which the application for such orders was predicated and the decision made by the High Court. Having done so, we think, the two grounds of appeal raised by the appellant revolve around a single issue, that is, whether or not the High Court had jurisdiction to exempt the appellant from the liability to pay the arbitrator's fees and arbitration expenses. It is our considered view that, this is the only issue calling for our determination. As our starting point, we should firstly make it clear that, as we have alluded to earlier, the orders sought by the appellant were for the High Court to exempt the appellant from the liability to pay the arbitrator's fees and arbitration expenses and also for ordering that, the charged fees and expenses be paid by the respondents. It was from the nature of the orders sought that, an objection was raised on whether the High Court had jurisdiction to issue such orders, the objection which was sustained. The High Court held that, it has no such jurisdiction hence the instant appeal. It is thus, crystal clear that, the issue before the High Court was not on the applicability, enforceability, reasonability or otherwise of the arbitration clause in the employment contract entered by the parties. In his submissions, the appellant's impetus, though obliquely, was on faulting the High Court for not considering the enforceability and reasonability of the arbitration clause in the employment contract. This, in our view, is outrightly wrong. Since such issues were not placed before the High Court, no fault can be assigned to the High Court for not considering and determining the same. In the same vein, we find the Ugandan case of Apio Gloria (supra) cited by the appellant, irrelevant and distinguishable. Uni ike in the instant matter, in the said case, the issue for determination was the enforceability of an arbitration clause in an employment contract before the Industrial Court. 10 It should also be emphasised that, since, as we have alluded to above, the High Court impugned decision was made solely on the point of jurisdiction and not on the enforceability or reasonability of the arbitration clause, our mandate in the determination of this appeal is limited to what was decided by the High Court. The arguments by the appellant on labour disputes resolution being free of fees payment or labour matters not being of commercial nature or him being an indigent person and unemployed made before us are nothing else but a non-starter. Reverting to the pivotal issue in as far as the disposal of the appeal at hand is concerned on whether the High Court had jurisdiction to make the orders sought by the appellant, at our guidance is section 94 (1), (3)(a)(i) and (b)(ii) of the ELRA, on which the application was predicated and of which the High Court is being accused of failing to properly interpretate. It is stated under that provision that: "94.-(1) Subject to the Constitution o f the United Republic o f Tanzania , 1977, the Labour Court shaii have exclusive jurisdiction over the application, interpretation and implementation o f the provisions o f this Act and over any employment or labour matter falling under common law, tortuous liability, vicarious liability or breach o f contract and decide- (a) to (f) ( 2 )... ii (3) Where a party refers a dispute to the Labour Court, the Court may; (a) if it is a dispute that requires to be referred to the Labour Court in terms o f this Act (i) decide the dispute or (ii) refer the dispute to the Commission to be decided by arbitration. (b) if it is a complaint that is required to be referred to Arbitration - (i) refer the complaint to the Commission for it to be dealt with under section 88; (ii) decide the complaintprovided that it may make an appropriate order as to costs. Our interpretation of the above reproduced provision takes us to the same position of the High Court that, the provision does not confer jurisdiction on the High Court to exempt a party to arbitration proceedings under the Arbitration Act from the liability to pay the arbitrator's fees or arbitration expenses. Further, the provision does not give powers to the High Coort to order one of the parties to bear the whole arbitration costs. Section 94 of the ELRA has nothing to do with issues arising from the proceedings conducted under the Arbitration Act. The arbitration or an arbitrator referred to under the relevant provision is not the same arbitrator referred to under section 3 of the Arbitration Act, but the one defined under section 4 of the ELRA. Further, according to section 4 of the ELRA, the 12 dispute referred to under section 94 (3) of the ELRA is that which concerns a labour matter between an employer or registered employer's association on the one hand and an employee or registered trade union on the other hand. In the instant case the issue of payment of the arbitrator's fees and arbitration expenses was not between the appellant (employee) and the respondents (employers) but between the appellant and the TIArb. TTiat being the case, the orders sought by the appellant could not be accommodated under section 94 of the ELRA. In this appeal, the High Court is also being faulted for allegedly improperly interpretating section 51 of the LIA under which it is provided that: '! Subject to the Constitution and the labour laws and o ver employment matter falling under common law, tortious liability, vicarious liability or breach o f contract within the pecuniary jurisdiction o f the High Court, the Labour Court has exclusive jurisdiction over any matter reserved for its decision by the labour laws". [Emphasis added] As rightly argued by counsel for the respondents, the above reproduced provisions do not vest jurisdiction on the High Court to make the orders sought by the appellant. Exempting a party to pay arbitrator's fees and arbitration expenses are not matters reserved by labour laws for the High Court to decide. 13 We also agree with counsel for the respondents and the High Court that, as the law stands, the jurisdiction of the High Court on issues regarding arbitrator's fees and arbitration expenses is limited to consideration of the reasonability and adjustment of the charged fees and expenses. It is stated under section 32 (2) of the Arbitration Act that: "32. -(2) A party who is not satisfied with the reasonability o f the fees and expenses to be paid to the arbitrator may, upon notice to the otherparty and arbitrators, apply to the court for consideration and adjustment o f such fees and expenses if - (a) the fees and expenses charges exceed the amount agreed upon by the parties; (b) the fees and expenses contain items which were not agreed upon by the parties; or (c) there is significant change o f circumstances that lead the change o f the agreed fees and expenses". [Emphasis added] In the instant appeal, the appellant did not approach the High Court for consideration and adjustment of charged fees and expenses which is within the jurisdiction of the High Court. Instead, he approached the High Court seeking a full exemption from the liability to pay the charged fees and expenses which is not within the jurisdiction of the High Court. The 14 worst part of it, is the fact that, in the application before the High Court, neither the arbitrator nor the TIArb was involved. If the orders sought would have been granted, the arbitrator and the TIArb would have been prejudiced for being condemned unheard. In the event, for the above given reasons, we find the appeal devoid of merit. The High Court did not err in holding that it had no jurisdiction to entertain the application and grant the orders sought therein. The appeal is thus, dismissed in its entirety. Given the nature of the matter, we make no orders as to costs. DATED at DODOMA this 8th day of May, 2026. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered Virtually this 8thday of May, 2026 in the presence of appellant in person, Mr. Zacharia Daudi, learned counsel for the 1s t respondent and Mr. William Mang'ena, learned counsel for the 2n d respondent, Mr. Shafii Kassim, Court Clerk; Court is hereby certified as a true copy of the original.