Sunflag (T) Limited vs Lucy Kundankira Ndosy & Others (Civil Appeal No. 773 of 2025) [2026] TZCA 471 (4 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: FIKIRINI, J.A., RUMANYIKA, J.A., And ISSA. J.A/1 CIVIL APPEAL NO. 773 OF 2025 SUNFLAG (T) LIMITED ............................................. VERSUS

1. LUCY KUNDANKIRA NDOSY

2. NICAS BAZIL

3. WELU MKUMBO

4. CHACHA WILLIAM

5. NIENDIWE KAZOKA

6. JALIA OMARI

7. JULIANA NDOSI

8. LEAH ANDREA MHAGAMA (Administratix of the late ANDREW LUKUWI

9. LOBULU R. AKATIA

10. MARY MWENDI

11. MONICA MATHIAS

12. HILDA JOHN

13. ESTEROSE ELIAS

14. JACKLINE DENIS

15. NEEMA JAMES

16. AMBROSIA DIWANI

17. AGRIPINA MWINJO

18. SOPHIA SELEMANI

19. FLORA MUYA

20. ELIZABETH PETER

21. CHRISTOPHER BOBEWE

22. OLIVA JAMES

23. NATUJWA SAFIEL

24. MATILDA MKUMBI

25. HAPPY MHONE

26. ANDREA TINGATINGA

27. ANGELINA KITOJO

28. ROSE PIUS

29. MONICA SHAGALI

30. REHEMA ALLY

31. FATUMAIDDI

32. SELINA SAMWELI APPELANT RESPONDENTS l

61, 62, 63, 64, 65 66 67 68 69 70 71 72 73 ENERIETA SAMWE LI YOHANA TARIMO HALIMA KONDO VALENCE ANSELIMO PAULINA MOHAMEDI FELISTA SHAYO ANNA PETER LUCY KESSY DROSTA KAIRU FARIDA HAMISI 3ASTIN JONAS GUDILA SHIRIMA REBEKA ELIAKIMU THERESIA THOMAS VALERIAN SHAYO ANDREW KITUNDU GODFREY CHRISTOPHER JAFARI JUMANNE BENEDICT MKANDE RAMADHANI MSANGI ADAMU JUMA SENGASU MPOKERA RAJABU SKAZWE AGNESS SAMWELI CHRISTINA MICHAEL MARIAMU RAMADHANI JUMA ABDALLAH BENEDICT MARTIN JULIAS MAKAO MAGRETH MICHAEL SALIMU WILSONI HAMISI MOHAMEDI ANJELINA MICHAEL YUSUFU IDRISSA JUMA SEIF DAINES MWANGA GAUDENSI BAZILI ROBERT MWAIMU BENJAMIN BILIA ALLY HAMAD GODGREY SUMARY ABUU SENZOTA RESPONDENTS 2

75. SWALEHEISSA

76. RIDHIWANI RAMADHANI

77. GEORGE CHARLES

78. NELSON JOSEPH

79. DIDAS TESHA

80. RAJABU SAIDI

81. MIRAJI MBWANA

82. MUSA SAIDI

83. SALIMU MOHAMEDI

84. EMILIANA MBISE

85. MARTHA SUNGI

86. ANGES FERDINAND

87. ALLY RAMADHANI

88. MOHAMEDI BAKARI

89. MWANAIDI SWALEHE

90. CHARLES GIDION

91. HIRIMINA STANLEY

92. EMMY L. SABUNI

93. NAMSIFU AMANI

94. HAMISIABUU

95. ABUSHEHE MASUDI

96. EDINA MCHAINA

97. HANSYJOHN

98. HAPPY OLE

99. MWASHABANI HAMADI

100. MARY PALANGYO

101. VICK RITE

102. HADIJA MOHAMEDI

103. ASIA YUSUPH

104. FRANCIS EMANUEL

105. ABU MAUYA

106. MATHIAS WILLSON

107. RASHIDI HAMISI

108. JOACHIM STANSLAUS

109. SEBATO MTAKI

110. KELVIN LISTER

111. ATHUMANI SHABANI

112. SALVATORY AUGUSTINO SWAI

113. KAINGWA ISSA

114. FRANCIS SAMWEL

115. DOROTH MASAWE

116. MWANAHAMISI MSUMI RESPONDENTS 3

117. GAUDENS FUNGAMEZA

118. ELITONY METHEW

119. WILLIAM CLEMENS

120. FRANCIS MOLLEL

121. KASIMU KIBACHA

122. ISSA HAMADI

123. LANGAELI KAAYA

124. ALLY SALIMU

125. ISMAIL OMARY

126. LUCAS AMINIEL

127. ZABLON SAMWEL

128. THADEI EPIMACK

129. PENINA PAULO

130. SAIDI JUMANNE

131. KIDOSHO DAVID

132. ULIMBOKA MWAKASOLE

133. HAMZA SHABANI

134. GODFREY MKANGALA

135. AMBROSE MARTIN

136. HAMISI JUMA

137. BONIPHACE DOMINICK

138. RASHID RAMADHANI

139. AMANI KILANGO

140. JOSEPH NINGA

141. ABAS OMARY

142. SHARIFU RAJABU

143. RAJABU MOHAMEDI

144. TEDDY LUCAS

145. HAMISI YUSUPH

146. SOPHIA WILLIAM

147. MZAMILO MOHAMEDI

148. AMINA DAUDI

149. AGATHA FAUSTIN

150. NOELA HAMISI

151. AGUSTINO BONIFACE

152. FRANCIS MOKIWA

153. HALIMA MZIRAI

154. EVODIO FIRIMINI

155. UMMYJUMA

156. JOSEFINA LAURENT

157. AISHA RAJABU

158. ROSE MICHAEL RESPONDENTS 4

159. BERTHA DANIEL

160. CRISPO NDUMBALO

161. AGATHA VICENT

162. RAHELI MCHARO

163. SOPHIA NJAU

164. ROSE GOMBANIA

165. JOSELIN MOSHI

166. BEATRICE KITUNGA

167. RUTH MAFIE

168. ELINAJA EZEKIELI

169. NELSON STEPHEN

170. AGNES MUSHI

171. PAULINA PAULO

172. PENDO PROSPER

173. STELA CHAO

174. MOBBA MAYOMBO

175. EVARIST CONSTANTINE

176. JUMANNE ISSA

177. ANTHONY GADY

178. LENARDYJOHN

179. GRACE GREGORY

180. SIKUDHANI MAYANGE

181. KISAKENI MUSSA

182. LOTH KIWANDAI

183. SAPHINA MUSSA

184. HAWA RAMADHANI

185. FLORA ELINAMI

186. ODOSIA VALERIAN

187. JENIPHA DANIEL

188. HORTHENSIA STANLEY

189. OMARY SAIDI CHANDE

190. AGNES ABDALLAH

191. ELIA JOSEPH

192. LUCY EDWARD

193. SADIKI 3UMA

194. MARIA PASKALI CHURI

195. SANAI AMOSI

196. SAIDI MOHAMEDI

197. BONAVENTURA MATHEW

198. SAIMON HANSI

199. MARTHA ELIAS

200. MESHARCK KUVUYO RESPONDENTS 5

201. FARAJALA SALIMU

202. GODLISEN MUNUO

203. SARAHA EMANUEL

204. JAKOB MEENA

205. DATIFA MATUNDA

206. EMANUEL SAMWEL

207. SAMWELI MSUYA

208. DANIEL TANGO

209. EZEKIEL PAULO

210. GODBLES MARIKI

211. ISSA JUMA

212. MILENI MAKUNDI

213. PIUSI TAISI

214. SAMWEL MARGWE

215. JAMILA DILAL

216. SOPHIA SHABANI

217. JOHN SEBASTIAN

218. GEORGINA AUGUSTINO

219. MARY ALEX

220. UPENDO JACOB

221. MWAJUMA SHABANI

222. BERTHA KIJANGA

223. WAZIRI HEMEDI

224. NELSON JOSEPH

225. HAPPYNESS MBISE

226. NDEMI LYIMO

227. EVALINE VILGIO

228. PASCHAL JOHN

229. MARY MICHAEL

230. LUCAS PIUS

231. ELI PHAS MOLEL

232. JAMES SEPE

233. SHABDUL OMARY

234. STEPHANO ABISAI

235. HALIPHA HAPHANI

236. SHIDA SHABANI

237. RUTHI MATHAYO

238. JESSE KILUSU

239. ISIHAKA BOAZI HIZA

240. VICENT MLUNGWANA

241. STANLEY WILSON

242. EDWARD BOMBO RESPONDENTS 6

243. ATHONI TIOPHILI

244. FATUMA SELEMANI

245. BAHATI RAMADHANI

246. ADELA KIMARO RESPONDENTS (Appeal from the decision of the High Court of Tanzania Labour Division at Arusha) (Masara, J.^ dated the 17th day of May, 2024 in Misc. Labour Application No. 36 of 2023 JUDGMENT OF THE COURT 22n d April, & 4th May, 2026 ISSA, 3.A.: The dispute between the parties has had a chequered history. The parties have been tangled in a legal thicket for the past 18 years. The following brief background facts will serve the purpose of appreciating the essence of the present appeal. The 246 respondents were employed at the appellant's factory in different capacities. On 29th and 30th January, 2008 a dispute arose following a disagreement over the applicable minimum wage. The appellant was authorized by the Ministry responsible for labour matters vide a letter with Ref. No. CHA.33/508/01/11/32 dated 28th December, 2007 to pay a minimum wage of TZS. 80,000.00 per month, while the respondents maintained that they were entitled to TZS. 150,000.00 per month. The ensued events were characterized as unlawful

strike by the appellant while the respondents termed it a lawful assembly in protest of a coerced wage reduction. The appellant, on 31s t January, 2008 dismissed a large number of employees. The respondents registered a dispute before the Commission for Mediation and Arbitration at Arusha (the CMA) as Complaint No. CMA/ARS/MED/38/2008. The CMA delivered the award on 21s t October, 2008 and made a finding that, the employees had participated in an unlawful strike and that the termination was lawful, yet it went ahead and order the payment of the following benefits: a) Salaries to the last date of employment, that is 31s t January, 2008, b) Salaries in lieu of leave if any; c) Twenty-eight days salaries in lieu of termination notice; d) Severance allowance; and e) Transportation costs for employees who were recruited outside Arusha. Both parties were aggrieved and they filed applications for revision at the High Court of Tanzania at Arusha (the court) to challenge the award. The respondents filed Labour Revision No. 51 of 2009 (Revision No. 51) on 6th January, 2009 whereas the appellant filed Labour Revision 8

No. 7 of 2009 (Revision No. 7). The matters were called on 30thNovember, 2009 before the late Rweyemamu, J. who without affording parties an opportunity to address the court struck out Revision No. 7, because it was filed subsequent to Revision No. 51. Further, the court directed the appellant to lodge their grievances through a counter affidavit and notice of opposition in Revision No. 51, which ultimately was withdrawn with the leave to refile after being found with several defects. What followed was an exceptionally prolonged series of applications. The respondents made at least eight separate applications for extension of time to file revision against the CMA award, all of which were struck out for incompetence or dismissed for failure to account for the delay. The last of those applications was dismissed on 10th August, 2022 by Mwaseba, J. in Misc. Labour Application No. 25 of 2021. Unable to maneuver out of the legal thicket, the respondents changed course and pursued the little they got in the award delivered in 2008. They successfully filed Misc. Labour Application No. 14 of 2023 for leave to execute the CMA award. The appellant woke up from the slumber and filed at the court Misc. Labour Application No. 36 of 2023, in which she sought extension of time within which to file a review of the order of 30th November, 2009 that struck out Revision No. 7. The court delivered its decision on 17th May, 2024 in which it dismissed the application.

Aggrieved, the appellant has knocked our door armed with six grounds of appeal challenging the dismissal of the application for extension of time. But the main issue flowing from the grounds of appeal, which we find unnecessary to reproduce, is that the High Court erred in law in refusing to grant extension of time on the presence of fundamental error in which, the appellant was denied the right to be heard before Revision No. 7 was struck out. At the hearing of the appeal, the appellant was represented by Mr. Elvaison Maro, learned advocate whereas the respondent had the services of Mr. Harun Iddi Msangi, also learned advocate. Taking the floor, Mr. Maro adopted his written submission filed earlier on and in amplifying the grounds of appeal, he took us to page 57 of the record of appeal where the late Rweyemamu, J. called Revision No. 7 and Revision No. 51 and without hearing the parties she dismissed Revision No. 7 as is evident on page 62 of the record. He also took us to page 374 of the record where the learned judge who heard the application for extension of time gave his verdict of the matter by stating that the order of the late Rweyemamu, J. was appealable and not amenable for review. Hence, he dismissed the application for extension of time. 10

Mr. Maro added that the order of the late Rweyemamu, J. was subject to review because it was interlocutory as the parties were not heard and it was not determined on merit. He bolstered his argument by citing the Court's decision in Truck Freight (T) Ltd v. CRDB Bank Ltd [2008] TZCA 88. Further, he submitted that Regulation 50 of the Labour Court Rules prohibit appeal on interlocutory order. On the effect of not affording the parties a right to be heard, Mr. Maro submitted that, it makes the resultant decision null and void. To fortify his argument, he cited the case of Kumbwandumi Ndemfoo Ndossi v. Mtei Bus Service Ltd [2021] TZCA 23. On the issue of delay in filing the instant application, Mr. Maro admitted that the delay was inordinately long. The order was delivered in 2009, but the application for extension of time was lodged in 2023 after 14 years. He argued that at all that time they were in court trying to revise the award and the order of the late Rweyemamu, J. was not set aside. To support his prayer for extension of time after a long delay, he cited the case of Attorney General Zanzibar v. Laemthong Rice Company Limited and Another [2024] TZCA 306 where the extension of time was granted after expiry of 24 years. He prayed for the appeal to be allowed. ii

Mr. Msangi, on his part, was very brief. He submitted that the appellants were not denied a right to be heard before the late Rweyemamu, J. They were allowed to file a counter affidavit and notice of opposition in which their grievances could have been heard. He prayed for the appeal to be dismissed. When the Court probed him on whether it was proper for Revision No. 7 to be struck out without hearing the parties, Mr. Msangi admitted that the learned Judge should have heard the parties first and then consolidate the revisions. Before we embark on determining the merit of the instant appeal, we feel we should first clarify one matter. The ruling which is subject of appeal is one delivered by Masara, J. on 17th May, 2024 and it is not the order of the late Rweyemamu, J., but for better understanding of what transpired, we encapsulate the order of the late Rweyemamu, J. appearing on page 61 and 62 of the record of appeal, which goes thus: "Court: Parties addressed as follows:- On checking the records, I have noted that this Revision matter was filed on 6/1/2009. It was against the CMA award dated 21/10/2008\ but it remained pending; was not given a registration number; instead, the Respondents filed a fresh application for Revision against the same CMA award which was registered as No. 7/2009 which Revision is scheduled for hearing today. 12

Ordinarily, the Application for Revision which was filed first should have proceeded, by the Respondent filing a counter affidavit and notice o f opposition as per Rule 24 o f the Labour Court Rules, GN106/2007. In view o f the above, I make the following order: ORDER Revision No. 7/2009 is hereby struck off the Register; the case between the parties will proceed in Revision No. 51/2009 as follows:- • Respondent to file counter affidavit by 4/12/2009 • Applicant's Reply and counter affidavit by 11/12/2009 • Rejoinder by Respondent if any 18/12/2009 • Hearing on a date to be fixed by the Registered. Sgd 30/11/2009 There is no flicker of doubt that, the parties to Revision No. 7 were not availed with the right to be heard before the application was struck out. The order violated the audi alteram partem rule, and the position of law is very clear. In Abbas Sherally and Another v. Abdul S. H. Fazalboy [2005] TZCA 105, the Court stressed that the right to be heard is so fundamental that its violation renders the decision a nullity. Reverting to Misc. Labour Application No. 36 of 2023 which is the subject of the instant appeal, the appellants lodged an application for 13

extension of time to set aside the order in Revision No. 7 through Review. The application was brought under rule 56 (1) of the Labour Court Rules, GN. No. 106 of 2007 and was supported by three affidavits deponed by Emmanuel G. Mgoma, officer of the appellant, Elvaison Maro and Boniface Joseph, learned advocates for the appellant. In the affidavits, the appellant advances three main grounds for extension of time: denial of the right to be heard, technical delay and the illegality of the decision issued by the CMA. Discussing the right to be heard, which is the main issue, the learned Judge wrote the following on page 374 of the record of appeal: "Starting with the claim that the Applicant was denied the right to be heard before the court decided to strike out Revision No. 7 o f 2009\ I have failed to fathom how that can be a reason for extension of time and file a review against this court's decision. Where a court makes a decision without affording parties the right to be heard\ that can be a ground to set aside the said decision on appeal. The court cannot invoke that as a ground to review its own decision. I thus do not agree with the Applicant that this is sufficient ground to justify delay. Furthermore, the Respondent stated and the 14

records corroborate, that the Applicant was given room to file a notice of objection and counter affidavit where its case could be considered. This window was not explored and no justification has been presented before this court.... In this court's view, there is nothing thatprevented the Applicant from appealing the decision to strike out the Application as that is an appealable order under our laws." Now, the issue for determination is whether the learned judge correctly exercised his discretion to refuse the application for extension of time on the ground of illegality which includes the denial of the right to be heard. The law is settled that illegality of the decision sought to be challenged is one of the accepted grounds for extension of time. See - Kalunga and Company Advocates v. NBC [2006] T.L.R. 235, The Principal Secretary, Ministry of Defence and National Service v. Devram P. Valambhia [1992] T.L.R. 387 and Lyamuya Construction Co. Ltd v. Board of Registered Trustees of Young Women's Christians Association of Tanzania [2011] TZCA 4. Our next enquiry is what the term "illegality" entails. In Charles Richard Kombe v. Kinondoni Municipal Council [2023] TZCA 137, and Kabula Azaria Ng'ondi and 2 Others v. Maria Francis Zumba 15

and Another, [2023] TZCA162 the Court dealt with the issue of illegality. In Charles Richard Kombe it cited an Indian case of Keshardeo Chamria v. Radha Kissen Chamria and Others, AIR 1953 SC 23, 1953 SCR 136 where the Supreme Court of India wrote: "... the words 'illegally' and "material irregularity' do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not errors o f either law or fact after the formalities which the law prescribes have been complied with." Further, on page 8 the Court concluded thus: "...for a decision to be attacked on ground o f illegality, one has to successfully argue that the court acted illegally for want o fjurisdiction, or for denial o f right to be heard or that the matter was time barred." It is also the law that for an application to succeed on the ground of illegality, such ground must be apparent on the face of the impugned decision. The Court in various cases including Chandrakant Joshubai Patel v. The Republic [2003] TZCA 37, Edger Kahwili v. Amer Mbarak and Another, [2020] TZCA 20, Interbest Investment Company Limited v. Standard Chartered Bank T. Limited [2022] 16

TZCA 550 and Grand Alliance Limited v. Wilfred Lucas Tarimo and 4 Others [2022] TZCA 541 addressed the issue of apparent error on the face of record. In Chandrakant (supra), the Court quoted from a book by Mulla on the Code of Civil Procedure (14thedition) pages 2335 - 2336 where the learned authors wrote: "An error apparent on the face o f the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions... It can be said o f an error that is apparent on the face o f record when it is obvious and self-evident and does not require an elaborate argument to be established." (Emphasis supplied) Leaping to the issue raised, we are of the settled view that one of the grounds advanced for seeking extension of time was that of illegality of the decision of the late Rweyemamu, J. who deprived the parties the right to be heard. The illegality was also apparent on the face of the record as we have seen earlier. 17

Therefore, we agree with the learned counsel for the appellant that the conditions for granting extension of time were met. The learned judge respectfully strayed into an error when he evaluated the merits of the intended review prematurely and considered other extraneous matters, which have no place in the dispensation of justice, before refusing the extension of time. This is evident on page 377 of the record of appeal where he wrote: "The dispute that the Application aims at resurrecting, as deponed in the affidavit o f Emmanuei Mgoma, on behalf of the applicant commenced about 16 years ago. This is quite a long time for a proper dispensation o f justice. I f this Application is to be allowed and the Applicant successfully challenges the Court's order striking out Revision No. 7 of 2009 and probably successfully challenging the CMA award, the CMA processes would commence afresh before a different Arbitrator. God knows when would the fate o f the parties be decided. Against the above considerations, the court will be failing in its noble duty to dispense timelyjustice if it was to extend time to the inordinate delay by the Applicant o f more than 14 years. It is about time that this dispute comes to an end for the interests o f justice." 18

From the above backdrop, we allow the appeal and grant the application for extension of time. The appellant should file the necessary application before the High Court within 30 days. There will be no order as to costs as this is a labour matter. DATED at ARUSHA this 30th day of April, 2026. P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL Judgment delivered this 4th day of May, 2026 in the presence of Mr. Elvaison Maro, learned counsel for the appellant via teleconference, Ms. Fatuma Amiri holding brief for Mr. Haruni Msangi, learned counsel for the respondent and Mr. Nelson Novati, Court Clerk who appeared in person is hereby certified as a true copy of the original. 19