Richard Julius Rukam Bura vs Tanzania Local Government Works Union (TALGWU) (Civil Appeal No. 781 of 2023) [2026] TZCA 452 (29 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MWANDAMBO. J.A.. KENTE. J.A. And MGONYA. J.A.^ CIVIL APPEAL NO. 781 OF 2023 RICHARD JULIUS RUKAM BURA ................................................... APPELLANT VERSUS TANZANIA LOCAL GOVERNMENT WORKS UNION (TALGWU)......................................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) fltemba. J.^ dated the 18th day of August, 2023 in Labour Revision No. 59 of 2022 JUDGMENT OF THE COURT 23rd & 29th April, 2026 MGONYA, J.A,: Richard Julius Rukambura, the appellant herein, is before the Court assailing the decision of the High Court (Labour Division) at Mwanza, which upheld the decision of the Commission for Mediation and Arbitration (the CMA). Briefly, the appellant was an employee of the respondent from 1996, where he was employed as its Regional Secretary. In April 2017, the respondent initiated disciplinary measures against the appellant on i

account of alleged misappropriation of the respondent's funds amounting to TZS. 1,400,000.00. On 6th April 2017, a suspension letter was issued to the appellant, paving the way for an investigation into the charge. Thereafter, on 10th November 2017, the appellant was informed by way of a letter dated 10th November 2017 that upon investigation, the Committee had decided to allow him to resume his work. Astonishingly, after four days from the date of that letter, on 14th November 2017, the appellant was issued a termination letter. Believing that he was unfairly terminated, the appellant referred the dispute to the CMA. Initially, the appellant's complaint was centered on term ination of em ploym ent, where he sought reinstatem ent or compensation. Upon hearing, the CMA found that he was unfairly terminated, hence, it ordered reinstatement. However, the respondent opted to pay com pensation rather than reinstate him. After being compensated for an unfair termination, the appellant once again approached the CMA and filed Labour Dispute No. CMA/MZ/NYAM/178/2022, founded on tort. He was demanding general damages amounting to TZS. 800,000,000.00 for malicious removal from employment. 2

However, the appellant's complaint was not determined to its finality since, during the mediation stage, the respondent raised points of preliminary objection to the effect that, the matter was res judicata, and that lodging the said dispute was an abuse of the Commission process. The mediator heard the parties and upheld the objections. Consequently, the dispute was dismissed. Aggrieved, the appellant unsuccessfully filed an application for revision at the High Court, hence, the instant appeal is predicated on two grounds. Essentially, on those grounds, the appellant faults the High Court Judge for holding that it was proper for the mediator to convert herself into an arbitrator and arbitrate a dispute contrary to the law, and that the High Court Judge failed to give a proper interpretation to the provisions of section 9 of the Civil Procedure Code, Cap. 33 (the CPC). During the hearing, the appellant appeared in person, unrepresented, whereas the respondent was represented by Mr. Odhiambo Kobas, learned advocate. When invited to address the Court on the ground of appeal, Mr. Odhiambo at the outset informed the Court that he was conceding to the first ground of appeal. He submitted that, in view of that concession, the first ground of appeal is sufficient to 3

dispose of the appeal; hence, the determination of the second ground will be superfluous. We have carefully considered the record and the applicable law. We agree with the respondent's counsel on his concession. Basically, the CMA is vested with jurisdiction to resolve disputes by way of mediation and arbitration through the mediators and arbitrators who are generally appointed by the CMA under section 19 of the Labour Institutions Act, Cap. 300 (the LIA). To deal with a dispute, respective officers must have been specifically appointed thereto in terms of section 86 (3) (a) of the Employment and Labour Relations Act, Cap. 366 (the ELRA), for a mediator and section 88 (2) for an arbitrator. The mediator's core function, as provided under section 14(1) of the Act, is to mediate any dispute referred to the Commission under any Labour law. The role of a mediator is limited to mediating the parties, save in a combined mediation and arbitration procedure where the parties have agreed. This position of the law has been underscored by the Court in Barclays Bank T. Limited v. Ayyam Matessa (Civil Appeal No. 481 of 2020) [2022] TZCA 189. 4

Mediation and arbitration are distinct processes, whereas mediation is a facilitative, non-adjudicatory process in which a mediator acts as a neutral third party who assists the disputants to reach a voluntary settlement. Section 86 of the ELRA and Rule 5 of the Labour Institutions (Mediation and Arbitration) Rules 2007 (GN. No. 67 of 2007), make it compulsory in Labour disputes referred to the CMA. Crucially, a mediator has no power to make a binding determination on the merits of the dispute or on preliminary objections that dispose of the claim. The mediator's role is to facilitate dialogue, propose settlement options, and, where no settlement is reached, the mediator issues a certificate of non-settlement so that the matter may proceed to arbitration before an arbitrator. This distinction is well-recognized and the Court has repeatedly held that a mediator cannot assume the role of an arbitrator or unilaterally determine substantive or dispositive issue without the matter being properly referred to arbitration unless it has been agreed by the parties. See for instance the case of Barclays Bank T. Limited v. Ayyam Matessa (supra), where the Court held that: 5

"Truly, under the ELRA the jurisdiction o f a m ediator as the title dictates, is to mediate, the process which does not include to dism iss and to decide a complaint . " In the premises, it is beyond peradventure that where a mediator descends into the arena and assumes the role of an arbitrator by purporting to determine the dispute, such conduct is wholly inconsistent with the nature and purpose of mediation. The inevitable consequence is that the entire process is vitiated and rendered a nullity. Therefore, the mediator's action of upholding a preliminary objection and dismissing the dispute outright amounted to an impermissible assumption of arbitral functions, which is contrary to the law. Thus, the High Court erred in upholding the CMA's decision. In the upshot, we find merit in the appeal on that ground. As rightly stated by Mr. Odhiambo that ground of complaint alone is sufficient to dispose of the appeal. For the foregoing reasons, the appeal is allowed. The decision of the High Court dismissing the revision application, as well as the mediator's ruling dismissing Labour Dispute No

CMA/MZ/NYAM/178/2022, are set aside. The matter is remitted to the CMA to be determined in accordance with the law. Each party shall bear its own costs. DATED at MWANZA this 29th day of April, 2026. L. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 29th day of April, 2026 in the presence of appellant in person unrepresented, Mr. Odhiambo Kobas, learned counsel for the respondent and Mr. John Banene, Court Clerk; is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL