Sabena Technics Dar Es Salaam Ltd vs Alfred Kirschstein (Civil Appeal No. 197 of 2024) [2026] TZCA 466 (30 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL, 3.A.. KIHWELO. J.A. And AGATHO. J.A.^ CIVIL APPEAL NO. 197 OF 2024 SABENA TECHNICS DAR ES SALAAM LTD ..................................... APPELLANT VERSUS ALFRED KIRSCHSTEIN.............................................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division, at Dar es Salaam) (Msafiri, J .~ ) dated the 5th day of July, 2021 in Labour Revision No. 887 of 2019 JUDGMENT OF THE COURT 21st & 30th April, 2026 SEHEL. 3.A.: The central issue in this appeal is whether a mediator has the authority to arbitrate a labour dispute referred to the Commission for Mediation and Arbitration (CMA). The respondent, Alfred Kirschstein, was employed by the appellant, Sabena Technics Dar es Salaam Ltd., as a Field Operations Engineer on 1s t February, 2014. According to his testimony, on 14th January, 2019, he was served with a letter dated 11th January, 2019, notifying him of the appellant's contemplation of retrenchment due to operational requirements. The letter required him

to sign and return it to the appellant's headquarters in Brussels by close of business on 14th January, 2019. The respondent stated that he could not sign the letter immediately, as he wished to first consult with his immediate supervisor, who was outside the country at the time. On 6th March, 2019, the agreement was amended to address his concerns, with the condition that it would become invalid if not signed by 15th March, 2019. Subsequently, on 3r d April, 2019, the respondent filed a labour dispute before the CMA in Dar es Salaam, alleging that his termination was unlawful because the appellant had failed to comply with the terms and conditions of the retrenchment agreement. At the CMA, the appellant did not enter appearance. Consequently, the dispute proceeded ex parte, and on 19th July, 2019, an ex parte award was issued in favour of the respondent. According to the appellant's affidavit in support of its application to set aside the ex parte award, it was averred that the appellant became aware of the award on 12th August, 2019, after being informed by its independent auditors, PKF Advisory Limited. The application to set aside the ex parte award was vigorously contested by the respondent, and ultimately, dismissed by the CMA on the ground that the appellant was duly served with

summons but failed to enter appearance. Dissatisfied, the appellant unsuccessfully filed an application for revision before the Labour Court, hence the present appeal. In its memorandum of appeal, the appellant advanced three grounds which, for reasons to be shortly disclosed, we shall not reproduce. It is, however, noteworthy that, in its written submissions, the appellant sought and was granted leave to argue an additional ground of appeal pursuant to rule 103 (3) (b) (ii) of the Tanzania Court of Appeal Rules. The additional ground was to the effect that: "The High Court Judge erred in holding that the mediator correctly heard and determined the labour dispute in terms o f section 87 (3) (b) o f the Employment and Labour Relations Act (the ELRA) and rule 14 (2) (a) (ii) o f the Labour Institutions (Mediation and Arbitration Guidelines) Rules G.N. 67 o f2007 ." When the appeal was called on for hearing, Misses. Miriam Bachuba and Edna Mwankenja, learned advocates, appeared for the appellant, while, Mr. Luka Elingaya, learned advocate, appeared for the respondent. 3

Submitting in support of the appeal, Ms. Bachuba was succinct. She contended that the mediator who purported to arbitrate the matter and issued the ex parte award in favour of the respondent acted without jurisdiction. She pointed out that, in terms of rule 3 (1) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, G.N. No. 67 of 2007 (G.N. No. 67 of 2007), the role of a mediator is confined to assisting parties in reaching an amicable settlement. Relying on the authority in Barclays Bank (T) Limited v. Ayyam Matessa [2022] TZCA 189, she maintained that the powers of mediators under section 88 (3) (b) of the Employment and Labour Relations Act (the ELRA), read together with rule 14 (2) (a) (ii) of G.N. No. 67 of 2007, do not extend to arbitrating labour disputes or issuing awards. She further submitted that the learned High Court Judge erred in holding, at page 22 of the judgment, that the mediator had correctly heard and determined the labour dispute pursuant to section 88 (3) (b) of the ELRA read together with rule 14 (2) (a) (ii) of G.N. No. 67 of 2007. On that basis, Ms. Bachuba implored this Court to allow the appeal, quash the proceedings of both the CMA and the High Court, set aside the award and drawn order, and remit the labour dispute back to the CMA for determination in accordance with the law. 4

On his part, Mr. Elingaya conceded to the appeal. He acknowledged that section 88 (3) (b) of the ELRA and rule 14 (2) (a) (ii) of G.N. No. 67 of 2007 was considered by this Court in Barclays Bank (T) Limited v. Ayyam Matessa (supra), and held that a mediator lacks jurisdiction to arbitrate a labour dispute. He further referred us to page 25 of the record of appeal, where the mediator ordered for the respondent to proceed ex parte against the appellant and him to file an opening statement. It was therefore, the submission of Mr. Elingaya that the respondent was not issued with a mediation certificate in terms of rule 3 (5) of the G.N. No. 67 of 2007. In conclusion, Mr. Elingaya supported the prayer advanced by counsel for the appellant, urging that the dispute be remitted to the CMA with a direction that mediation be conducted in accordance with the law. Given the concession made by learned counsel for the respondent, Ms. Bachuba offered no rejoinder. On our part, we have duly considered the submissions of learned counsel. As earlier indicated, the sole issue for determination is whether a mediator possesses the powers to arbitrate a labour dispute to its finality and issue an award.

To properly appreciate the appellant's grievance, we find it necessary to reproduce an extract from the mediator's ex parte award appearing at page 171 of the record of appeal, which reads as follows: "Mgogoro huu ulisikilizwa upande mmoja kwa mujibu wa Kifungu cha 87 (3) (b) cha Employment and Labour Relations Act ikisomwa pamoja na Kanuni ya 14 (2) (a) (ii) ya G.N. No. 67/2007 kwa kuwa mlalamikiwa alishindwa kufika shaurini hata baada ya kupelekewa wito mara kadhaa Hi afike katika usu/uhishi ." The literal translation of the above is as hereunder: ''This dispute proceeded ex parte in terms o f section 87 (3) (b) (now section 88) o f the Employment and Labour Relations Act read together with rule 14 (2) (a) (ii) o f the G.N. No. 67 o f 2007 as the respondent failed to attend mediation despite being duly served with summons to appear, on several occasions ." Section 88 (3) of the ELRA, which the mediator relied upon, provides: (3) In respect o f complaint referred under this Act, the mediator may- (a) Not applicable. 6

(b) decide the complaint where the other party to the complaint fails to attend a mediation hearing. "[Emphasis added]. It is evident from the above extract that the mediator purported to "decide the complaint upon the appellant's failure to attend mediation. The critical question, however, is whether the statutory language empowers a mediator to determine a labour dispute to finality and issue an award, or whether the provision merely authorizes the mediator to conclude the mediation process and issue a certificate of non settlement. In the case of Barclays Bank (T) Lim ited v. Ayyam Matessa (supra), this Court lucidly considered the import of the words "decide the complaint" and made three important observations. First, save for instances of combined mediation and arbitration, arbitration is a distinct process which follows after a dispute has been specifically referred to mediation under section 88 (3) of the ELRA and a mediator has been duly appointed. Second, the role of the mediator is confined to assisting parties to reach an amicable settlement of the dispute. And third, pursuant to section 41 of the ELRA, jurisdiction to pronounce an award for unfair termination of employment is exclusively conferred upon the arbitrator and the Labour Court, but not upon the CMA as an institution nor upon a mediator acting as a quasi-judicial officer. 7

Following those observations, the Court concluded: "...since the phrase to decide used in the respective provision is broader enough to capture an order to proceed ex-parte which does not by itself amount to arbitration, we would construe the power under the respective provision as limited into making such an order and refer the complaint to arbitration under rule 22 (2) o f the G.N. No. 67 o f2007." In the present appeal, as rightly argued by both counsel, the mediator exceeded his jurisdiction by usurping the powers of an arbitrator, proceeding to arbitrate the labour dispute, and ultimately issuing an ex parte award. Such powers are exclusively vested in the arbitrator or the Labour Court. The mediator's lawful function is to facilitate resolution of the dispute, not to arbitrate it. For the foregoing reasons, we are satisfied that the mediator acted without jurisdiction in purporting to arbitrate the labour dispute and issuing an ex parte award. The mediator's lawful mandate is confined to facilitating amicable settlement, not to adjudicating the dispute to finality. Accordingly, the appeal is hereby allowed. The proceedings and decision of the CMA, together with the ruling of the High Court, are quashed. The ex parte award and drawn order are set aside. We remit

the dispute to the CMA with a direction that mediation be conducted in compliance with the ELRA and the G.N. No. 67 of 2007. DATED at DAR ES SALAAM this 29th day of April, 2026. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 30th day of April, 2026 in the presence of Mr. Kyariga N. Kyariga, learned counsel for the Appellant, Mr. Juvenalis Ngowi, learned counsel for the Respondent through virtual Court and Mr. Osca Msaki, Court Clerk; is hereby certified as a true copy of the 9