John Johnson Shinji & Others vs Bolt (T) Limited (Civil Appeal No. 590 of 2024) [2026] TZCA 455 (29 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL. 3.A.. KIHWELO, 3.A. And AGATHO, 3.A.) CIVIL APPEAL NO. 590 OF 2024 JOHN JOHNSON SHINJI ....................................................... 1 st APPELLANT NWAKA ROY MOSHI..............................................................2 nd APPELLANT IDDY JUMANNE MKUMBA ..................................................... 3 rd APPELLANT VERSUS BOLT (T) LIMITED................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division at Dar es Salaam) fMlvambina. J.^ dated the 9th day of April, 2024 in Revision Application No. 1532 of 2024 JUDGMENT OF THE COURT 22nd & 29th April, 2026 KIHWELO, 3.A.: The appellants above, represented by Ms. Tawajud Lwenduru and Mr. Nicodemus Nangale, both learned advocates, are before this Court seeking to overturn the decision of the High Court of Tanzania, Labour Division in Revision Application No. 1532 of 2024 (Mlyambina, J) which quashed and set aside the decision from the Commission for Mediation and Arbitration (CMA) in CMA/DSM/ILA/277/20/2022 decided in favour of the appellants. The High Court allowed the application for the reasons i that, the dispute was filed at the CMA out of time and without condonation. In order to put matters into their right perspective, and before we dwell further into the nitty-gritty of the appeal, it is imperative that we provide the sequence of events leading to the instant appeal as obtained in the record of appeal. The appellants were employed by the respondent in various capacities in 2018 and 2019 and their employment came to an end on 29th February 2020 through a Mutual Separation Agreement owing to the respondent's financial difficulties. It, however, occurred that, the appellants were not pleased by the respondent's decision and therefore, they successfully referred the matter to the (CMA). We should interpose here and observe that, previously the appellants had earlier on lodged a dispute at the CMA in CMA/ DSM/ KIN/308/ 2020/153 which was later dismissed. As the appellants were unhappy they went to the High Court in Labour Revision No. 55 of 2021 which is not the subject of our interest. In that case, the High Court observed anomalies in the proceedings and therefore, it nullified the proceedings and judgment of the CMA and ordered a retrial and the rest is history. It suffices, to observe at this juncture that, the appellants then lodged CMA/DSM/ILA/277/20/2022 whose decision ignited this appeal as we shall endeavor to demonstrate in the preceding part of this judgment In that decision, the CMA came to the conclusions that, the appellants were unfairly terminated and therefore, it ordered the respondent to pay them compensation of not less that twelve month's remuneration in terms of section 40 (1) (c) of the Employment and Labour Relations Act, Cap. 366 R.E 2019 and other reliefs. Dissatisfied with the decision of the CMA the respondent lodged Revision Application No. 1532 of 2024 before the High Court whose decision is the subject of the present appeal. At the High Court, the sticking point was whether the dispute was referred to the CMA within time prescribed by law. The counsel for the respondent contended that, the appellants referred the dispute to the CMA on 21s t April, 2020 which was well beyond thirty days from the date of termination, that is to say, from 28th February, 2020. On his part, the counsel for the appellants, stoutly submitted that, the dispute was referred to the CMA within time prescribed by law as the respondents were terminated from employment on 28th March, 2020. Both parties were not at issue regarding the requirement of the provisions of rule 10 of the Labour Institutions (Mediation and Arbitration) Rules, 2007 GN. No. 64 of 2007 ("the Rules"), in relation to the time limit to refer the matter to the CMA which is thirty days. Upon considering parties rival submissions, the High Court found that the revision application before it had merit and therefore, it went ahead to quash the rather incompetent proceedings and judgment as well as set side orders made thereunder. In the result, disgruntled the appellants filed this appeal which was grounded upon two (2) points of grievance. When the matter was called on for hearing Mr. Nangale prayed and was granted leave, in terms of rule 111 of the Tanzania Court of Appeal Rules, to amend the memorandum of appeal so as to read; One, the High Court Judge erred in law to interpret rule 10 of the Labour Institutions (Mediation and Arbitration) Rules, 2007, GN. No. 64 of 2007 by deciding that the termination date was 29th February, 2020 instead of 28th March 2020; and two, the High Court Judge erred in law in deciding that the matter was filed out of time. Before us, the appellants were under the services of Ms. Lwenduru and Mr. Nangale as alluded to above. On the adversary side, Mr. Shehzada Walli appeared for the respondents. Both learned counsel highlighted the respective written submissions which were earlier on lodged in Court, in support or opposition to the appeal. Arguing in support of the appeal, Mr. Nangale took the floor first. His contention was that, by erroneously interpreting the provisions of the Rules, the error has led into two problems. The first problem is that, the High Court decided that the termination date was 29th February, 2020 instead of 28th March 2020. The second problem is that, the matter has been found to be time barred. In his view, it was improper for the High Court Judge to consider that the matter was time barred because what was served upon the appellants on 29th February, 2020 was mere notices of termination but the final decision to terminate was made on 28th March, 2020, citing the provision of rule 10 of the Rules, for the proposition that, the use of the term "or" in that rule shall be construed disjunctively, in terms of section 13 of the Interpretation of Laws Act, Cap. 1 R.E. 2023. Mr. Nangale stressed that, the use of the word "or" permits the use of other factors which are excluded and in the matter under our consideration he thought that the High Court Judge did not accord proper determination of the disjunctive nature of that provision by ignoring to consider the other factors while interpreting rule 10 of the Rules. Particularly, the learned counsel referred to the discussions which were held between the appellants and the respondent regarding the Mutual Separation 5 Agreement which went on even after the termination notices of 29th February, 2020. Reliance was paid to the case of National Microfinance Bank v. Leila Mringo and Others [2021] TZCA 233 TANZLII. Mr. Nangale further contended that, a statute must be read as a whole in its context in order to give effect to the intention of the legislature and cited to us the case of Tang Gas Distributors Limited v. Mohamed Salim Said and Others [2011] TZCA 563 TANZLII, to demonstrate his proposition that, the purpose of rule 10 of the Rules was to establish a clear and workable framework while at the same time acknowledging that termination of employment is often a process rather than a single definitive event. The learned counsel also referred to the CMA Form No. 1 which indicated that the dispute arose on 28th March, 2020 and cited the case of Barclays Bank (T) Ltd v. Jacob Muro [2020] TZCA 1875 TANZLII, for the proposition that in determining whether a referral to CMA was made within time or not the date of termination indicated in the form would be the date of reckoning time. We wish to interpose here and observe that, the circumstances obtaining in the case of Barclays Bank (T) Ltd v. Jacob Muro (supra), are quite distinct from the ones before us. In that case, the termination resulted from a disciplinary hearing 6 whose genesis is alleged violation of the Code of Conduct committed during the probation period, while in the appeal before us the termination was a result of Mutual Separation Agreement which clearly specified the termination date. For that matter, the case of Barclays Bank (T) Ltd v. Jacob Muro (supra) is totally distinguishable. While taking turns in submitting, Ms. Lwenduru argued that, the provision of rule 10 subject of this matter provides for three distinct factors. First, the date of termination, second, the date when the employer made a final decision to terminate and third, when the employer upholds the decision to terminate. In her view, the evidence on record indicates that the termination was done on the date when the appellants were served with the termination letters on 28th March, 2020 referring to page 257 of the record of appeal. Illustrating, she pointed out that, after the termination notices of 29th February, 2020 the appellants were invited for Mutual Separation Agreement meaning that, their employment was not terminated until on 28th March, 2020 when they were served with the termination letters. She took the view that, if the decision by the High Court Judge is upheld the appellants will be denied their right for the matter to be heard on merit and the respondent will unjustly win on mere technicalities. In all, she implored on us to allow the appeal. 7 In response, Mr. Walli was fairly brief and to the point. He contended that, the appellants were very much aware of the termination date of 29th February, 2020, since on 18th February, 2020 when they were informed about the intended retrenchment through exhibit D5 collectively. They later signed the Mutual Separation Agreement dated 28th February, 2020, exhibit D8 collectively. Even the termination letters of 28th March, 2020 exhibit D ll indicated the termination date to be 29th February, 2020, he further argued. Like the appellants' counsel, Mr. Walli submitted that the retrenchment process of the appellants was not a one-night event but rather, it involved a series of events between the parties. He went on to submit that, all in all, the appellants signed the Mutual Separation Agreement that their termination will be on 29th February 2020, and even the certificate of service issued to the appellants indicated the termination date to be 29th February, 2020. He held the view, and we think rightly so, in our mind that, the decision by the High Court Judge was very categorical on the date of termination referring us to page 5 of the impugned Judgment. For in his view, the argument by the counsel for the appellants that the termination was on 28th March 2020 is a misconception. 8 For him, the letters dated 28th March 2020 were inadvertently dated instead of 28th February 2020. He argued that, unfortunately, the appellants' counsel they are taking this to mean 28th March, 2020. On our prompting, the learned counsel submitted that, it would not make any difference if the letters were not mistakenly written 28th March 2020, since those letters still refers to 29th February, 2020 as the effective date of the appellants termination. Mr. Walli prayed that the appeal be dismissed. The issue before us is a narrow one and involves little controversy. Parties have locked horns on whether or not the dispute was referred to the CMA within the prescribed time of thirty days in terms of rule 10 of the Rules. For the better understanding of the provision of rule 10 of the Rules, we think it is desirable to reproduce that provision which reads: "10. -(1) Disputes about the fairness o f an employees'termination o f employment must be referred to the Commission within thirty days from the date o f termination or the date that the employer made final decision to terminate or uphold the decision to terminate." On a careful reading of the provision above, we think that the same is very categorical and clear that, in any dispute relating to fairness or 9 otherwise of employment the complainant must refer it to the CMA within thirty days from the date when the employment came to an end. Now coming to the appeal before us parties are not at issue as regards the requirement for referring the dispute within thirty days. However, they parted ways on when exactly and in particular, in the circumstances of this case to reckon the thirty days. While the appellants' counsel argues that the termination took effect on 28th March, 2020, the respondent's counsel contended that the termination took effect on 29th February, 2020. The appellants' counsel has sought to convince us that what was issued to the appellants on 29th February, 2020 was mere notices of the intended retrenchment, but the final decision to terminate was made on 28th March, 2020 relying on his own interpretation of rule 10 of the Rules. Trying as hard as we can to follow the appellants'counsel reasoning, we are unable to see, how could parties agree on the termination date in the Mutual Separation Agreement and have a different date all together in the implementation and without express indication elsewhere. We are saying so considering the fact that, apart from the Mutual Separation Agreement, the notification letters, the termination letters and even the certificates of service all refers to 29th February, 2020 as the date of 10 termination. It is, therefore, inconceivable to say that parties intended 28th March 2020 to be the date of termination while even those letters of 28th March, 2020 refers to 29th February, 2020 as the date of termination. It therefore, defies logic and common sense to argue that the date of termination was 28th March, 2020. Upon a thorough scrutiny of the record of appeal, and considering the rival submissions of the parties both oral and written, also having carefully read the provision of rule 10 of the Rules, we are satisfied, as the learned High Court Judge did, that the dispute was referred to the CMA beyond the prescribed time of thirty days, reckoning from 29th February, 2020. For clarity, and precision of the impugned judgment, we will let the record of appeal appearing at pages 605 to 607 which is the most decisive part of that judgment paint a picture. The learned High Court Judge is recorded stating as follows: 7 have critically examined the records which speaks loudly. The respondents were terminated from employment on the ground o f retrenchment With a letter dated 18/02/2020 (exhibit D5 collectively), the respondents were informed o f the intended retrenchment process. The meeting li was also conducted on the same date o f the notice as evidences by the minutes (exhibit Dl). For the reasons and discussions which is not relevant at this juncture, the parties concluded a mutual separation agreement on 28/02/2020 (exhibit 8 collectively)." The High Court Judge went on to say that: - "The employee's employment with the Company will terminate by mutual consensus with effect from 29 February 2020. Again, the termination letters served to the respondents on 28/03/2020 (exhibit D ll collectively) clearly indicated that the respondents were terminated from employment with effect from 29/02/2020. Therefore, the record shows that the date o f termination was 29/02/2020 and the respondents were aware o f such date from the time when the separation agreement was concluded. On the alleged 28/03/2020, it was only the date the applicants (sic) were served with the termination letters which also referred to the agreed date o f termination o f employment. Furthermore, even the certificates o f service (exhibit D9 collectively) were dated 28/02/2020. Thus, gathering from the records, the respondents 12 were terminated from employment since February, 2020. It is undisputed that the matter was Hied at the CMA on 21/04/2020. Counting from 29/02/2020 when the respondents were terminated from employment to 21/04/2020, it is crystal dear that the dispute was filed after the lapse o f 30 days as per Rule (10) (1) supra. On the basis o f the above analysis, it is my view that the matter as was filed out o f time as rightly raised by the applicant therefore, the CMA wrongly proceeded to determine the same since the dispute was not accompanied with an application for condonation." To cull from the excerpt above, the appellants were terminated on 29th February, 2020 and not 28th March, 2020 as argued by the appellant's counsel. This is clearly indicated in the Mutual Separation Agreement, specifically clause 3.1. Similarly, this is clearly reflected in the first paragraph of the termination letters by operational requirement dated 28th March, 2020 which the appellants' counsel heavily sought to rely upon. Apart from that, the certificates of service which the appellants were served also indicated the termination date to be 29th February, 2020. 13 Thus, the High Court Judge rightly found the dispute at the CMA was referred out of time and therefore, the appeal before him was merited. In view of the aforesaid, we find no merit in the appeal. Consequently, we dismiss it in its entirety. 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 29th day of April, 2026 in the presence of Ms. Winfrida Kiginga, learned counsel for the appellants also holding brief for Mr. Shehzada Walli, learned counsel for the respondent and M r. Oscar Msaki, Court Clerk; is hereby certified as a true copy of the original. 3 J£ - D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 14