SMH Rail SDN BHD vs Kain Patrick (Civil Appeal No. 1018 of 2024) [2026] TZCA 496 (7 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CO RAM : SEHEL. 3.A.. KIHWELO. 3.A. And AGATHO. 3 .A . ) CIVIL APPEAL NO. 1018 OF 2024 SMH RAIL SDN BHD........................................................................ APPELLANT BETWEEN KAIN P A T R IC K .............................................................................RESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania, Labour Division, at Dar es Salaam) (Opiyo, 3.) dated the 10th day of September, 2024 in Miscellaneous Labour Application No. 13478 of 2024 JUDGMENT OF THE COURT 20thApril, & 7th May, 2026 SEHEL. 3.A.: This is an appeal arising from the decision of the High Court of Tanzania, Labour Division (the Labour Court), in Miscellaneous Labour Application No. 13478 of 2024. In that ruling, the Labour Court granted the respondent, Kain Patrick, an extension of time to file an application for revision out of time against the award of the Commission for Mediation and Arbitration (the CMA) in Labour Dispute No. CMA/DSM/ILA/72/2023/46/2023. The appellant, SMH Rail SDN BHD, being aggrieved by such decision, has preferred this appeal. i

The facts leading to the appeal are largely undisputed. The respondent was employed by the appellant but upon termination of his employment, he lodged a complaint before the CMA, which was dismissed for lack of merit on 31s t October, 2023. Dissatisfied, he preferred a revision of the CMA's dismissal order before the Labour Court, Labour Revision No. 25525 of 2023. The application was filed well within the prescribed time of forty-two (42) days, but struck out on 18th March 2024, upon his concession to the preliminary objections raised by the appellant. Thereafter, the respondent made successive attempts to regularise his position. He filed Miscellaneous Labour Application No. 6965 of 2024 on 1s t April, 2024, which he withdrew on 15th April, 2024 upon noticing defects. Again, the Miscellaneous Labour Application No. 8522 of 2024 which was filed on 19th April, 2024 was withdrawn on 4th June, 2024 due to a technical error in the case management system as the application registered as civil case instead of labour matter. Nonetheless, the respondent was granted five days leave to file afresh whereby he complied with the order and, on 7th June, 2024, he filed Miscellaneous Labour Application No. 13478 of 2024. This last application was ultimately heard. Having heard both parties' submissions, the Labour Court found that the respondent had 2

satisfactorily accounted for the entire period of delay, amounting to 178 days. The learned Judge held that the time expended in prosecuting the earlier applications constituted a technical delay, which amounted to good cause for extension of time. She further overruled the appellant's objection on the competence of the notice of application and distinguished the authorities relied upon by the appellant. Consequently, the application was granted, and the respondent was ordered to file the intended revision within fourteen days. Aggrieved by that decision, the appellant has lodged the present appeal advancing the following three grounds of appeal: (1) That, the Learned High Court Judge erred in iaw in holding that the respondent demonstrated good cause to be granted extension o f time. (2) In the alternative to ground number 1, having found that the respondent's notice o f application did not cite proper provision o f the law to move the court in exercising its discretion to grant the prayer sought ■ the High Court Judge erred in law to hold that the said point o f law by the appellant was raised in an unordinary fashion denying the court a fair procedure o f dealing with cases. 3

(3) That ■ having regard to the evidence on record that the applicant was misted by several advocates and filed incompetent applications which the court struck out/withdrawn, the Learned judge erred in law to ignore this Court decisions in FUson Mushi vs Jitegemee Saccos Ltd, Civil Application No. 313/05 o f 2021, Ester Baruti vs Seith Senyael Ayo & Another, Civil Application No. 514/17 o f 2022 as well as Dominic Ishengoma vs Geita Gold Mining Ltd, Civil Application No. 146/8 o f 2020, and wrongly arrived to erroneous decision that time spent in pursuing the matter constituted technical delay. At the hearing of the appeal, Mr. Elisaria Mosha, learned advocate, appeared for the appellant, while Mr. Gerald Noah, learned advocate, appeared for the respondent. Both counsel filed the written submissions in compliance with rule 106 (1) and (7) of the Tanzania Court of Appeal Rules. They adopted those submissions and briefly highlighted them orally. When given a chance to argue the appeal, Mr. Mosha, informed the Court that he would argue the first and third grounds of appeal only as the second ground, which concerns the citation of the enabling provision of law, was abandoned.

On the first ground of appeal, Mr. Mosha submitted that the respondent failed to account for each day of the delay and did not demonstrate diligence, but rather apathy and negligence. He emphasized the settled principle that an applicant for extension of time must account for every day of the delay. In the present case, he contended that the respondent left unexplained a period of nearly eight days between 19th March, 2024 and 1s t April, 2024, and that a bare statement deposed in the affidavit in support of the application of "looking for a lawyer” was insufficient to discharge the duty to account. Mr. Mosha further argued that the respondent's conduct throughout was negligent. On this, he traced the history of the matter, noting that the initial revision was struck out due to defects, including a wrongly attested jurat by advocate Willington Rwabinyasi. Despite this, the respondent re-engaged the same advocate to file Miscellaneous Labour Application No. 6965 of 2024, which was later withdrawn after the advocate failed to attend court. The respondent again engaged the same advocate to file Miscellaneous Labour Application No. 8522 of 2024, which was registered erroneously as a civil matter. He submitted that these repeated mistakes by qualified advocates demonstrated high degree of negligence and lack of diligence. He relied on the decisions of this Court in the cases of Esther Baruti v. Seith Senyael Ayo &

Another [2023] TZCA 17824 and Omari R. Ibrahim v. Ndege Commercial Service Ltd [2021] TZCA 64, where it was held that advocate's inaction or negligence does not constitute good cause for extension of time. On the third ground of appeal, Mr. Mosha faulted the Labour Court for failing to apply binding precedents, including the cases of Filson Mushi v. Jitegemee SACCOS Ltd [2024] TZCA 403, Esther Baruti v. Seith Senyael Ayo & Another (supra) and Dominic Ishengoma v. Geita Gold Mining Ltd [2022] TZCA 803. He submitted that the doctrine of precedent requires subordinate courts to follow decisions of superior courts. A general reading of those cases, he argued, establishes the principle that inaction, recklessness, negligence, or ignorance of the law cannot amount to good cause, and that the rule of technical delay is not intended to shield applicants who invoke it unreasonably. He asserted that, by disregarding these authorities, the Labour Court erroneously concluded that the time spent pursuing earlier applications constituted technical delay, whereas in truth the delay was attributable to lack of diligence. He maintained that the respondent had come to court with unclean hands, having filed multiple incompetent applications, and that the cumulative effect of such conduct demonstrated inaction 6

and negligence, as held in the case of Esther Baruti v. Seith Senyael Ayo & Another (supra). Ultimately, Mr. Mosha urged this Court to allow the appeal and set aside the ruling of the Labour Court. Replying to the first ground of appeal, Mr. Noah prefaced his submissions by emphasizing that the power of the Court to extend time is a discretionary one, exercisable judiciously upon sufficient cause being shown. He relied on the decision of this Court in the case of Mohamed Suleiman Ghona v. Mahmoud Mwemus Chotikungu [2021] TZCA 109 which sets out the factors to be considered in application for extension of time, including the cause of delay, the length of delay, the conduct of the parties, and the prejudice to the other party. It was his submission that the respondent had adequately accounted for each of the 178 days of delay. Referring to the respondent's affidavit, he explained that the initial revision application was filed within time but struck out on 18th March, 2024, accounting for 96 days. Thereafter, the respondent spent seven days searching for a new advocate after terminating his contract with his former counsel, and the new advocate then spent seven days preparing and filing Miscellaneous Labour Application No. 6965 of 2024. The remainder of the time was consumed in court proceedings, including the withdrawal

and refiling process necessitated by the e-system failure. He asserted that the deposition of the respondent clearly accounted for each day of delay and fell squarely within the definition of technical delay as laid down in the case of Elly Peter Sanya v. Ester Nelson [2020] TZCA 157, where it was held that delay caused by time spent prosecuting a matter in court constitutes a good cause. Mr. Noah further argued that the respondent had been diligent throughout. The initial revision was filed well within time. Its striking out was occasioned by technicalities, including a defective jurat of attestation, which was a matter entirely within the professional domain of the advocate and beyond the respondent's control. He submitted that, the respondent was entitled to rely on the competence of qualified advocates, and that matters such as citation of provisions or attestation of documents were within the advocates' professional mandate. When the respondent noticed the defects in Miscellaneous Labour Application No. 6965 of 2024, he personally moved the Court to withdraw it. When the e-system misclassified Miscellaneous Labour Application No. 8522 of 2024, he promptly refiled. It was the assertion of Mr. Noah that these were not the actions of a negligent litigant, but rather demonstrated promptness, dedication, and diligence in pursuing his rights. To punish 8

the respondent for the lapses of his advocates, he contended, would defeat the ends of justice. Addressing further on the issue of negligence, Mr. Noah acknowledged that inaction or negligence by an advocate does not ordinarily constitute sufficient cause for extension of time, as held in the case of Esther Baruti v. Seith Senyael Ayo & Another (supra). However, he submitted that this is not an inflexible rule. He relied on the case of Abdalah Juma Kambale v. Noradi Tiliko Mongelwa [2023] TZCA 17730, where it was held that extension of time may be granted even where there are elements of negligence by the applicant's advocates, provided the applicant himself was diligent. He further submitted that each case must be judged according to its own circumstances, and that the respondent's consistent efforts to pursue his rights placed him within that principle. Responding to the third ground of appeal, Mr. Noah, began by addressing the principles governing the application of precedent. He submitted that the doctrine of precedent, as stated in the case of Jumuiya Ya Wafanyakazi Tanzania (JUWATA) v. Kiwanda cha Uchapishaji Taifa (KIUTA) [1988] T.L.R. 146, requires all subordinate courts to be bound by decisions of superior courts. However, he argued that the doctrine is not to be applied blindly; the rules of distinction and 9

similarity guide its application. With that foundation, Mr. Noah proceeded to distinguish each of the authorities cited by the appellant. He distinguished the case of Dominic Ishengoma v. Geita Gold Mining Ltd (supra) on the ground that, in that appeal, the applicant sought to revise a matter that was pending for sixteen years, whereas the present delay was only 178 days, all of which were spent prosecuting successive applications in court. He asserted that it would be unfair to equate the circumstances of a sixteen-year delay with the 178-day delay. He further distinguished the case of Filson Mushi v. Jitegemee SACCOS Ltd (supra) that the negligence in that appeal was caused by reliance on unqualified personnel, whereas in the present appeal the respondent engaged qualified advocates. He added that the non-appearance of those advocates in court was a matter of contractual engagement and could not be used to defeat the respondent's rights. He distinguished the case of Esther Baruti v. Seith Senyael Ayo & Another (supra) on the ground that the delay in that appeal, the applicant exceeded twenty-seven months, and when the dismissal order was given by the High Court, the applicant changed advocates and filed another application for extension of time instead of appealing against the dismissal. In contrast, the present delay was only 178 days, all of 10

which was accounted for, and the respondent consistently took prompt corrective steps. He also distinguished the case of Omari R. Ibrahim v. Ndege Commercial Service Ltd (supra), on the ground that, in that appeal, the applicant failed to account for ten months of delay and disregarded the directives of the Court, whereas in the present case the respondent accounted for the entire period of delay and complied fully with the Labour Court's orders. Mr. Noah concluded his submission by citing the case of Tanzania Breweries Ltd. v. Antony Nyingi [2015] TZCA 580 for the proposition that failure of a court to accept or to give reasons upon rejection of an argument does not in itself vitiate the decision. He submitted that, the Labour Court had properly considered the authorities cited and distinguished them, and that there was no disregard of precedent. He prayed that the appeal be dismissed for being unmeritorious. In rejoinder, Mr. Mosha, reiterated that the period spanning from 13th November, 2023 to 16th July, 2024 was not accounted for by the respondent as his explanation was inadequate. He stressed that, even a single day of delay must be accounted for, whether the delay is one day or several years, in order for the Court to act judiciously. He maintained that the respondent's narrative failed to meet the strict requirement of i i

accounting for each day of delay, and that the Labour Court erred in exercising its discretion to extend time. From the submissions made by both sides, one common issue arose from the two grounds of appeal which is whether, in exercise of its discretion, the Labour Court was consistent with the doctrine of precedent and the principles governing extension of time in granting the respondent an extension of time. At the outset, we wish first to put it clear that, the Court rarely interferes with the lower court's discretionary power unless satisfied that the decision was wrongly arrived due to the lower court's misdirection or it acted on extraneous matters or omitted to act on some matters which it ought to be acted upon. The erstwhile Court of Appeal for East Africa in the case of Mbogo & Another v. Shah (1968) E.A. 93 at page 94 put it clear that: "I think it is well settled that this Court will not interfere with the exercise o f its discretion by an inferior court unless it is satisfied that the decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have 12

taken into consideration and in doing so arrived at a wrong decision." [Emphasis added] Applying the above principle to the present appeal, we find that the Labour Court properly exercised its discretion in granting the respondent an extension of time. We say so because we observed from the respondent's conduct that he was diligent. The respondent first filed on time the initial application for revision but it was struck due to technicalities; he then filed an application for extension of time promptly but withdrawn at the instance of the respondent. He refiled another application for extension of time but due to e-system error it was withdrawn with leave to refile it. The respondent refiled it in time. We find that all these acts demonstrated diligence on the part of the respondent. These same acts were well appreciated by the Labour Court, as gathered from page 158 of the record of appeal that: "...as most o f time stand justified to have been spent in pursuing different matters in court, from which the applicant promptly peaked up subsequent action in rescue, the applicant managed to account for each day o f delay." [Emphasis added] While we agree with Mr. Mosha that every day of delay must be accounted for, with due respect we are not persuaded with his submission that the respondent failed to account for each day of delay. 13

Having gone through the respondent's affidavit found at pages 100-104 of the record of appeal, which was filed in support of the application for extension of time in Miscellaneous Labour Application No. 13478 of 2024 and the reply affidavit appearing at pages 123-126 of the record of appeal, we find that the respondent provided narrative account sufficient to justify the entire period of delay from 13th November, 2023 to 16th July, 2024, that is 178 days. With such evidence on record, we are satisfied that the Labour Court rightly held that the respondent was diligent enough in pursuing his application for extension of time. Accordingly, we are satisfied that the first ground of appeal lacks merit and proceed to dismiss it. Turning to the third ground of appeal where the appellant complained that the Labour Court acted inconsistent with the principles laid down in the cases Dominic Ishengoma v. Geita Gold Mining Ltd (supra), Esther Baruti v. Seith Senyael Ayo & Another (supra) and Filson Mushi v. Jitegemee SACCOS Ltd (supra), we find that this complaint is lacking any support from the record of appeal. We gathered from the Labour Court's ruling that it appreciated the principle governing technical delay with no more. For ease of reference, we find it apt to reproduce the extract of its ruling that: 14

"Based on the case o f Elly Peter Sanga (supra) cited by [the respondent], the delay resulting from time spent in prosecuting matter in court also constitutes technical delay which is a good cause for extension o f time. The [appellant] is not in dispute with this principle..." Deducing from the above extract of the ruling, it is clear that the Labour Court did not use the principle in determining the respondent's application. Rather, it appreciated the settled principle which it was also acknowledged by the appellant. Besides, the facts in the cases cited by Mr. Mosha, as submitted by Mr. Noah, materially differ with the appeal before us. Both the cases of Dominic Ishengoma v. Geita Gold Mining Ltd (supra) and Esther Baruti v. Seith Senyael Ayo & Another (supra) involved prolonged delays of many years or months, coupled with inaction on the part of the applicant. Further, in the case of Filson Mushi v. Jitegemee SACCOS Ltd (supra), the Court was dealing with the applicant's reliance on unqualified persons. In contrast, the present appeal involved a delay of 178 days, all of which the appellant accounted for each day of delay as rightly held by the Labour Court. Accordingly, we find no basis to interfere with its exercise of discretion. The third ground of appeal is also dismissed for want of merit. 15

For the above given reasons, we are not persuaded that the Labour Court misdirected itself or exercised its discretion injudiciously. The grant of extension of time was justified and consistent with the doctrine of precedent and the principles governing extension of time. In that respect, we find that the Labour Court exercised its discretionary power in accordance with the well laid down principles of law. Consequently, this appeal fails and is, hereby dismissed with no order as to costs since the matter arose from a labour dispute. DATED at DAR ES SALAAM this 5th day of May, 2026. Judgment delivered this 7th day of May, 2026 in the presence of Mr. Deus Tarimo holding brief for Mr. Elisaria Mosha, learned counsel for the Appellant, in the absence of the Respondent and Mr. Osca Msaki, Court Clerk; is hereby certified as a true copy of the original. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL