ABB Limited vs Stella Mandogo (Civil Appeal No. 718 of 2023) [2026] TZCA 478 (5 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA. J.A.. MURUKE. J.A. And MGEYEKWA. J.A.:^ CIVIL APPEAL NO. 718 OF 2023 ABB LIMITED........................................................................... APPELLANT VERSUS STELLA MANDOGO...............................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court, Labour Division at Dar es salaam) (Mqanqa, J.) dated the 27th day of September, 2023 in Misc. Application No. 249 of 2023 JUDGMENT OF THE COURT 21st April & 9h May, 2026 MURUKE JA.: The present appeal, originates from the decision of the High Court in Labour Misc. Application No. 249 of 2023, dated 27th September, 2023 in which the appellant's application for extension of time within which to lodge revision to challenge the ruling of the Commission for Mediation and Arbitration (CMA) that struck out the dispute for failure to serve the respondent with CMA form No 1 (the complaint form). A brief account of the dispute is that, in June, 2021, the applicant employed the respondent to serve as a Power System Market Development Manager at her Company. Based on the market standard, and upon serving the appellant for just a month, the respondent was sent to South Africa and China for a four month and two weeks training respectively, to further enhance her skills and ability to serve the company. The appellant bore all costs amounting to USD 34,000.00. The respondent did not refund the amount, as she intended a long time working relationship with the respondent. Upon finalizing her training, and returning back, the respondent in January, 2012, in breach of trust tendered a twenty four hours resignation letter, contrary to the terms of employment contract that required the three months' notice. The appellant lodged complaint at CMA claiming for three months salary in lieu of a Notice as well as USD 34,000.00 being compensation for expenses and costs incurred in training the respondent in South Africa and China. The same was decided ex parte in which the appellant was only granted the salary in lieu of a notice only. The respondent filed an application to set aside the exparte award and the same was granted. However, at the time of hearing inter partes, the appellant had already executed the decree on ex parte award. After several applications at CMA, the appellant's complaint was struck out for want of proper service of the referral form CMA FI on 31s t May, 2019. According to the affidavit in support of the application for extension of time, the appellant was unware until served with a notice to show cause on 11th August, 2023 in Misc. Application No. 127 of 2023. The appellant filed an application for extension of time to file revision at the High Court Labour Division on 1s t September, 2023, that ended up being dismissed on 27th September,2023. Hence, the present appeal. Before us the appellant has raised three grounds of appeal namely: 1. High Court Judge erred both in fact and iaw for failing to consider all grounds for extension o f time, including illegality, as raised in support o f the application the subject of this appeal. 2. High Court judge erred in fact and law by relying on non-existent and unproved presumptions in arriving at the decision subject of this appeal. 3. That the High Court Judge erred both in fact and law by failing to capture and record the entire submission orally submitted by the parties before the Court in the cause o f hearing. At the hearing of the appeal, Mr. Denice S. Tumaini and Mr. Evans R. Nzowa, both learned counsel, represented the appellant and the respondent respectively. It is worth noting that the appellant counsel filed written submission in terms of Rule 106 (1) of the Tanzania Court of Appeal Rules 2009, to support grounds of appeal. The respondent did not, thus submitted orally. The appellant's counsel at first adopted written submission filed earlier as his submission in chief and prayed for the appeal to be allowed, while reserving the right to make rejoinder submission if need arises. On his part the respondent's counsel at the onset complained that the appellant counsel has raised an issue of illegality not raised at the High Court, thus asked the Court to disregard the same as raised on ground one in the memorandum of appeal. On grounds two and three, the respondent's counsel submitted that both parties were heard and their submission duly considered, only that the appellant did not adduce sufficient cause to justify delay of almost 4 years. The law is settled that in an extension of time each day passed beyond prescribed time has to be accounted for. Not only that the appellant has failed to account for the days of the delay at the High Court but has demonstrated great negligence by not making follow up of their case. With the above brief submission Mr. Nzowa beseeched us to dismiss the appeal while asking the Court to be guided by the case of Bushiri Hassan vs Latifa Lukio Mashayo, Civil application No 3 of 2007, (unreported) where the Court insisted that; the delay o f even a single day, has to be accounted for otherwise would be no proof of having rules prescribing periods within which certain steps have to be taken" In rejoinder submission, Mr. Tumaini submitted on ground one that the issue of illegality is not a new issue at all. It was discussed at the High Court at length as seen at pages 6 - 12 of the record. Equally so, in the affidavit in support of the application for extension of time at the High Court at page 24 of the record paragraphs 20, 21,22 and 23 the issue of illegality is pleaded clearly. The respondent's counsel submission is devoid of merits on ground one, insisted the appellant counsel, who then prayed for the appeal to be allowed, to enable the appellant file intended revision at the High to prevent the respondent from benefiting from her own wrongs. Having heard both counsel submissions, gone through written submission and the record of appeal, issue for determination is only one, as to whether, the appellant adduced sufficient cause to justify the delay in an application for extension of time to file revision at the High Court. At the onset, we wish to state clearly that the issue of illegality is not new as claimed by Mr. Nzowa, counsel for the respondent. It was pleaded in the affidavit in support of the application for extension of time at the High Court at page 24 of the record of appeal, as correctly submitted by Mr. Tumaini for the applicant. Before we determine the issue, we wish to start with the principles upon which the Court can exercise its jurisdiction and grant the extension of time sought. Same were laid down in the celebrated case of Lyamuya Construction Company Limited vs Board of Registered Trustees of young Women Association, Civil Application No. 2 of 2010, [2011] TZCA 4 (unreported) where the Court observed that "As a matter of genera / principle, it is in the discreation o f the Court to grant o f time. But the discreation is judicial, and so it must exercised according to the rules o f reason and justice, and not according to private opinion or arbitrarily". On the above authority however, the following guidelines were formulated: One; the applicant must account for all the delay, two; the delay should not be inordinate, three; the applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take, four; if the Court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance, such as the illegality of the decision sought to be challenged. The appellant had completely failed to account for each day of the delay. The appellants labour dispute was struck out on 31s t May 2019. The appellant has not established where she was within four years from 6 31s t May, 2019 to 1s t September, 2023 when she filed application for extension of time, whose decision is subject of this appeal. In the decision of Lyamuya Construction Co. Limited (supra) this Court held that the applicant must account for all the period of the delay, delay should not be inordinate, the applicant must show diligence and should not be negligence in pursuing the matter. The affidavit in support of the application for extension of time is a sufficient proof that there were negligence on the part of the appellant as demonstrated below from paragraphs 17, 18 and 19 that read as follows. 17. That we lost communication with our lawyers since 2017, where were receiving no updates at all from them. After a long time o f follow up and changes o f human resources we lost track o f the complaint. 18. Had we been informed of the outcome o f the ruling delivered by CMA which struck out complaint we would immediately resort into taking necessary steps including seeking for revision on time. 19. Our delay in seeking remedy is not a result o f negligence or inaction on the part of our lawyers. We looked for them for a long time with no success at all. The above three paragraphs say it all. The applicant blame their unkwnown lawyer for negligence for not informing them the outcome of their case they filed against the respondent. The applicant claims of their advocate is their own carelessness. They ought to have made follow up of their own case, but not to shift blames to their advocates they choose to represent them. We are of the firm view that a part is bound by the omission of her/his advocate. If you choose an advocate, you choose his/her mistakes, or success, whatever the case. This Court cannot reward carelessness. In the case of Joseph F. Kayumbo vs Tanzania Breweries Ltd, [2013] TLR 99, the Court refused an extension of time where the delay was due to advocate's negligence We have noted that inordinate delay of this magnitude four years amounts to nothing other than proof that the applicant was not diligent in pursuing the matter and was negligent. In the case of Mariam Juma Mohamed vs Mariam Nasoro Kipinduka, Civil application No. 418/01 of 2021 [2024] TZCA 1103, this Court relied on the decision of Yusuph Same and Another vs Hadija Yusuph, Civil Application No. 1 of 2002 (unreported) which held that, all relevant factors must be taken into account deciding how to exercise the discretion to extend time. These facts include the length of the delay. The delay of four years on our part is too long. We do not see any justifiable reason for such inordinate delay. Another ground upon which the Court can exercise its discretion is illegality as claimed by the appellant. While illegality can be a ground for 8 extension of time, same must be apparent on the face of record and of sufficient importance to warrant the courts' attention. The principal was started in the case of Justace Tihairwa vs Chief Executive Officer, TTCL, Civil Application No. 131/01 of 2019 [2019] TZCA 335, where it was insisted that illegality must be demonstrated by an apparent error on the face of record. In the case at hand, there is no any apparent error demonstrated and proved by the applicant. There is nothing on the face of record to be considered as illegality for the Court to act on it and grant extension of time. The applicant has raised issue of illegality in the decision of the High Court as one of the ground to seek extension. With respect to the appellant's counsel, illegality must be on the face of the records, it is not an issue that needs log drawn arguments. It is not that need to be ascertained after long process of arguments. Complaint by the appellant, it is neither issue of jurisdiction nor issue of time limitation. In totality, the appellant has failed to prove that there were sufficient cause adduced at the High Court for the Judge to exercise discretion and grant essension sought. Equally so, there is no illegality apparent in the face of record for the Court to act on it and grant extension sought. In our considered view, we find and hold that this appeal is destitute of merits, it is therefore dismissed. The dispute having arisen from an employment action is not amenable to award of costs. DATED at DAR ES SALAAM this day 4th of May, 2026. G. A. M. NDIKA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 5th day of May, 2026 in the presence of Mr. Denice Tumaini, learned counsel for the Appellant also holding brief for Mr. Evance Nzowa, learned counsel for the Respondent and Mr. Ladislaus Msuba, Court Clerk; is hereby certified as a true copy of the original. 10