Rosemary Mwakitwange vs Freedom House Tanzania Ltd (Civil Appeal No. 119 of 2023) [2026] TZCA 445 (28 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: KEREFU. J.A., MWAMPASHI. J.A. And ISMAIL. J.A .l CIVIL APPEAL NO. 119 OF 2023 ROSEMARY M W AKITW AN GE ......................... ................................ APPELLANT VERSUS FREEDOM HOUSE TANZANIA LTD ................... ...........................RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Labour Division at Dar es Salaam) fArufani. 3.^ dated the 26th day of January, 2022 in Labour Revision No. 182 of 2020 JUDGMENT OF THE COURT 13th & 28th April, 2026 KEREFU. J.A.: The appellant, Rosemary Mwakitwange, appeals against the decision of the High Court of Tanzania, Labour Division (Arufani, J.) dated 26th January, 2022 in Labour Revision No. 182 of 2020 in which the award issued by the Commission for Mediation and Arbitration at Dar es Salaam (the CMA) on 28th April, 2020 in her favour, in Labour Dispute No. CMA/DSM/KIN/485/19/387 (the labour dispute) was revised. In order to appreciate the context in which the said labour dispute arose and later this appeal, we find it apposite to briefly provide the

material facts of the matter as obtained from the record of appeal. That, on 11th September, 2017, the appellant was offered an employment (exhibit PI) by the Freedom House Inc, an organization established on 29th October, 1941 in the United States of America to advance justice, freedom and democracy globally. It is noteworthy that, the said offer was for the appellant to be employed in a position of Chief of Party in the respondent's office situated in Dar es Salaam. The said position was among the highest-ranking positions on the respondent's organization. It is noteworthy that, the respondent is a non-profit company limited by guarantee and incorporated in the United Republic of Tanzania on 18th September, 2017 to carry out a USAID Funded Project on Data-Driven Advocacy (the DDA Project) in Tanzania. Therefore, the said offer was contingent upon the USAID approval of the appellant's candidacy for the DDA Project. Upon the said USAID approval, the appellant was employed by the respondent at the salary of TZS 20,474,500.00 per month. The said salary was net of social security contributions (NSSF) and other monthly statutory deductions. Thus, the appellant resumed her employment with the respondent officially on 1st April, 2018, as a Chief of Party vide an employment contract (exhibit P3) executed by the appellant and one Jena! Cox, the then one of the

Directors for the respondent and Senior Program Manager for Africa based in Washington DC. Thus, the appellant was reporting directly to Freedom House at Washington DC where the Senior Program Manager for Africa was based. The said contract, among others, included a detailed job description which outlined the principal duties and responsibilities expected from the appellant. That, sometime in November, 2018, the respondent noted that the appellant was failing to meet her job descriptions and the employer's expectations. Subsequently, in its letter, dated 27th November, 2018, the respondent communicated to the appellant the employer's concerns regarding her poor work performance and requested for improvement. The said letter contained a detailed summary of five areas of employer's concerns together with concrete steps for improvement to assist the appellant to address them and improve her work performance to the required standard. Subsequently, on 5th December, 2018, the respondent arranged a follow-up phone call with the appellant, to discuss and clarify some of the issues indicated in the letter to facilitate mutual understanding of the said concerns and the necessary steps to be taken by the appellant for improvement. Thereafter, from 6th December, 2018 to 15th February,

2019, the respondent and the appellant engaged on frequent phone- calls and exchanged several correspondences (emails) to deliberate on the matter. In addition, the appellant was availed with an opportunity to complete two online training courses to address her work performance issues. It was the respondent claim that, by early March, 2019, it became clear to her that, despite all those initiatives, guidance, support and training courses provided, still the appellant failed to perform her duties and responsibility to the standard required of her position. By her letter dated 8th March, 2019, the respondent informed the appellant that she had failed to take necessary steps to improve her work performance and invited her to a skype meeting with the senior management officials which was conducted on 14th March, 2019. The minutes for the said meeting was admitted in evidence as exhibit D l. Subsequently, the appellant's employment contract was terminated on 23rd April, 2019 on the alleged ground of poor work performance. Aggrieved by the said termination and convinced that there were no valid reasons for her employer to terminate her employment contract, the appellant approached the CMA, claiming to have been unfairly terminated. The appellant's claims were challenged by the respondent who alleged that, prior to her termination, the appellant had

shown acts of poor performance and she was given time and support to improve, but she failed to meet the benchmarks set and or take necessary steps to improve her work performance to the standard required of her position. It was the assertion of the respondent that, all termination procedures were duly complied with and the appellant's employment contract was fairly terminated. As the process of mediation failed, the dispute was placed before the arbitrator who heard evidence from both parties and, in the end, found that the appellant was unfairly terminated from her employment both, in substance and procedure. Therefore, the CM A ordered the respondent to pay to the appellant a total amount of TZS 844,966,365.00 being 40 months' salaries as compensation for legitimate expectations of serving the respondent for the duration of the DDA Project for which she was recruited, one month salary in lieu of notice, severance pay and the certificate of good service. Unsatisfied, the respondent lodged a Labour Revision No. 182 of 2020 in the High Court challenging the CMA award. Having heard the parties, the learned Judge found that, the termination of the appellant's employment contract was both, substantively and procedurally fair. Thus, the learned Judge allowed the revision, quashed and set aside the

CMA award and ordered the respondent to pay to the appellant only her statutory right of one month salary in lieu of notice under section 44 (1) (c) of the ELRA, if she has not been paid and be issued with the certificate of service under section 44 (1) (c) and (2) of the same law. Undeterred, the appellant preferred the present appeal. In the memorandum of appeal, she raised four grounds of complaint which can be conveniently paraphrased as follows: (1) That, the learned Judge grossly erred in law by basing his decision on the skype documents which were not adm itted as exhibits at the CMA (2) That, the learned Judge erred in law by assigning location o f the respondent's management as the reason to validate the skype documents as the minutes o f the appellant's performance appraisal meeting; (3) That, the learned Judge erred in law by holding that the respondent had a fair and valid reason for terminating appellant's employment; and (4) That, the learned Judge grossly erred in law by failure to property evaluate the evidence on the balance o f probability. When the appeal was placed before us for hearing, the appellant was represented by Mr. Khalfan Hamisi Msumi, learned counsel who

entered appearance virtually through video conference linked to his office located in Dar es Salaam, Tanzania. On the other side, the respondent was represented by Ms. Blandina Harrieth Kihampa, learned counsel. It is noteworthy that, all parties had earlier on lodged their respective written submissions in support of and in opposition to the appeal. Upon taking the floor to expound on the grounds of appeal, Mr. Msumi prayed to abandon the first ground of appeal and intimated that he would only argue the remaining three grounds of appeal. Starting with the second ground, Mr. Msumi faulted the learned Judge for relying on the unsigned minutes of the skype meeting (exhibit D l), without considering the capacity of the personnel from Washington D.C. who conducted the said meeting and the fact that the respondent is a separate entity registered under the Tanzanian laws with her own administration different from the affiliate corporation, i.e the Freedom House Inc based in Washington D.C. Mr. Msumi also challenged the termination letter, dated 30th April, 2019 availed to the appellant (exhibit P5), that, it was issued by one Jon Temin, the Director for Africa programs, who did not form part of the respondent's senior leadership. To support his argument, Mr. Msumi referred us to exhibit D l and

testimonies of DW1 and DW2 who testified that the events leading to the termination of the appellant's employment contract were coordinated by personnel from the Freedom House Washington D.C. He contended that, since the said personnel did not form part of the senior management for the respondent's company, they were not entitled to convene and participate in the said meeting which considered the appellant's work performance appraisal. It was his argument that, before retying on exhibit D l, the learned Judge was required to warn himself on the danger of relying on that unsigned document. Mr. Msumi contended further that, since the said meeting was conducted by persons who were from outside the jurisdiction of this country contrary to the standards prescribed by the Tanzanian labour laws, it was erroneous for the learned Judge to conclude that there was a fair disciplinary hearing prior to the termination of the appellant's employment contract. He thus urged us to find that there was a fatal irregularity as the fair disciplinary hearing of the appellant's performance appraisal was required to be conducted under rule 18 (1) to (9) of the Employment and Labour Relations (Code of Good Practice) Rules GN. No. 42 of 2007 (the Code of Good Practice) and not otherwise. 8

On the third ground, Mr. Msumi faulted the learned Judge for finding that the respondent had a fair and valid reason for terminating the appellant's employment contract without considering that the respondent failed to discharge the onus to prove the allegations against the appellant in terms of sections 37 and 39 of the ELRA read together with rule 9 (1) of the Code of Good Practice. Mr. Msumi also faulted the learned Judge for failure to find that the appellant was not issued with a statutory one month notice contrary to section 41 of the ELRA and clause 1.10.1 of exhibit P3. It was his argument that due to those omissions, it was erroneous for the learned Judge to conclude that the termination of the appellant's employment was valid and for a fair reason. As for the fourth ground, Mr. Msumi faulted the learned Judge for failure to properly evaluate the evidence of PW1, DW1 and DW2 together with exhibit PI on record on the balance of probability. Based on his submission, Mr. Msumi urged us to allow the appeal, quash and set aside the decision of the High Court and uphold the CMA's decision. In her response, Ms. Kihampa strongly disputed the argument advance by Mr. Msumi in respect of the second ground of appeal and blamed him for raising new issues, at this level, which were not raised

by the appellant before the CMA and the High Court. To amplify on her argument, she referred us to the CMA's proceedings found at pages 193 to 204 and pages 339 to 360 of the record of appeal and argued that issues of legal capacity of the personnel from the Freedom House Inc based in Washington D.C. and administrative structures of the said two entities were neither raised nor determined by the CMA and the High Court. The learned counsel argued that, it is a settled position, that this Court will only consider and determine matters which were deliberated and determined by the CMA and the High Court. On that account, she implored us not to entertain the said issues, as they are new and raise matters of both facts and law contrary to the dictates ofsection 58 of the Labour Institution Act, Cap. 300 of the Revised Laws. In the alternative and upon further reflection, Ms. Kihampa argued that, if the Court will find it necessary to determine the said issues, will find that the appellant was hired by the respondent through an employment contract (exhibit P3) signed by Jenai Cox,the previous Director of the respondent and the Senior Program Manager for Africa. That, the personnel of Freedom House Inc. in Washington D.C. had management and supervisory powers on the respondent and its staff. She added further that, Jonathan Harold Termin alias Jon Temin, being 10

a director of the respondent and a direct supervisor of the appellant, by virtue of his position as the Africa Programmes Manager of Freedom House Inc. in Washington D.C. had the capacity and requisite legal mandate to conduct the said skype meeting for the appellant's performance appraisal. That, the said meeting was also attended by one Lisa Dickieson who was also a director of the respondent. Ms. Kihampa insisted that, the validation of exhibit D1 by the learned Judge was correctly done after having noted that the skype meeting was properly conducted in terms of rule 18 (1) to (9) of the Code of Good Practice and the said exhibit was admitted in evidence without any objection from the appellant. She thus urged us to find that the appellant's complaint under the second grounds is baseless. On the third ground, Ms. Kihampa contended that, the appellant was duly provided with one month's salary pay in lieu of notice, but refused to accept it despite the respondent's repeated willingness and readiness to do so. That, the appellant, being fully aware of this fact, never raised that claim before the CMA. To amplify further on that point, Ms. Kihampa referred us to the CMA Form No. 1 reflected at pages 8 to 13 of the record of appeal. She thus equally urged us to find the third ground of appeal meritless. i i

On the fourth ground, Ms. Kihampa reiterated what she submitted under the second ground and insisted that the learned Judge properly analyzed the evidence on the record together with the parties' written submissions and arrived at a correct decision. She however, urged us to find that the fourth ground also raised issues of facts contrary to section 58 of the LIA. In conclusion and based on her submission, Ms. Kihampa prayed for the entire appeal to be dismissed for lack of merits. In a brief rejoinder, Mr. Msumi referred us to page 358 of the record of appeal and argued that, issues of capacity and administrative structure of the two entities were discussed by the learned High Court Judge. He then reiterated what he submitted earlier and prayed for the appeal to be allowed. Having carefully examined the record of appeal, the memorandum of appeal and considered the contending oral arguments of the learned counsel for the parties, we have noted that, while arguing against the second and fourth grounds, Ms. Kihampa raised two issues. One, that, matters which ought to be brought to this Court are only on points of law and not facts; and two, that, the appellant had raised new issues which were not considered and determined by the CMA and the High Court. 12

As our starting point, we think, Ms. Kihampa is correct in submitting that appeals on labour matters to this Court are only on matters of law and not facts. This is in terms of section 58 of the LIA which provides that: "Any party to the proceedings in the Labour Court may appeal against the decision o f that Court to the Court o f Appeal o f Tanzania on a p o in t o f la w only. "[Em phasis added]. Therefore, in terms of the above provision, an appeal against a decision of the High Court (Labour Division) automatically lies on points of law only. Therefore, this Court has no jurisdiction to determine factual matters in the appeal of this nature. This stance was emphasized in several cases. See for instance the cases of Remigious Muganga v. Barrick Bulyanhulu Gold Mine, Civil Appeal No. 47, 2017 [2018] TZCA 219, Ladislaus S. Ngomela v. The Treasury Registrar & Another, Civil Appeal No. 66 of 2022 [2022] TZCA 265 and Jongo Mwikola v. Geita Gold Mining Limited, Civil Appeal No. 344 of 2020 [2024] TZCA 125. It follows, therefore, that where the appeal to this Court from the High Court is brought on matters of fact the Court would not have a mandate to entertain them. 13

In the instant appeal, the appellant's complaint in respect of the fourth ground of appeal relates to the ' failure by the learned Judge to properly evaluate the evidence on the balance o f probability.' There is no doubt that the said ground invites the Court to re-evaluate the entire evidence adduced by the parties before the CMA and measure as to whether the learned Judge properly evaluated the same and whether the respondent had proved her case on the balance of probability. On that account, we agree with the submission by Ms. Kihampa that, the appellant's complaint in the fourth ground raises purely factual matters which cannot be entertained by this Court at this stage in terms of section 58 of LI A. Therefore, on the basis of our discussion above, we refrain from entertaining the fourth ground of appeal. Nevertheless, when determining the remaining ground of appeal, we shall demonstrate as to whether the High Court judiciously exercised the revisional powers. The other limb is on the new issues raised by the appellant in the second ground of appeal. It was the contention of Ms. Kihamba that issues on the capacity and or the administrative structure of the two entities, i.e the respondent and Freedom House Inc. based in Washington D.C., were not dealt with at either the CMA or the High

Court. The law relating to new issues or new grounds is very clear that this Court has no jurisdiction to entertain them. See for instance the cases of Enock M.H. Chacha v. Manager, NBC - Tarime, Civil Appeal No. 20 of 1995 [1995] TZCA 52; Hassan Bundala @ Swaga v. Republic, Criminal Appeal No 386 of 2015 [2015] TZCA 261 and Jongo Mwikola (supra). Specifically, in Hassan Bundala @ Swaga (supra), when the Court was faced with similar situation, it stated that: "It is now settled that as a m atter o f genera! principle this Court w ill only look in m atters which came up in the lower courts and were decided; not on matters which were not raised and decided by neither the trial court nor the High Court on appeal." In the instant appeal, having thoroughly scanned the record of appeal, we agree with Ms. Kihampa that, at page 195 of the said record, the framed issues which were agreed upon by the parties for determination of their dispute before the CMA were on:

1. Whether the respondent breached the employment contract;

2. Whether the respondent harassed the appellant;

3. Whether the respondent committed tort;

4. Whether the appellant is entitled to damages; and 15

5. Any other reliefs parties are entitled. From the above extracted framed issues, it is clear to us that, the dispute between the parties centered on the above matters and not on the legal capacity and or the administrative structure of the two entities, i.e the respondent and Freedom House Inc. based in Washington D.C. We are mindful that, in his submission, Mr. Msumi referred us to page 358 of the record of appeal and argued that, the said issues were considered by the High Court. With due respect, we are unable to agree with Mr. Msumi on this matter. It is clear to us that, at that particular page, the learned Judge mainly considered the validity of the unsigned minutes (exhibit D l) of the meeting held on 14th March, 2019 and concluded that the same were valid as the meeting was conducted through skype, due to the fact that the appellant was reporting directly to Freedom House Inc. in Washington D.C where the Senior Program Manager for Africa was based and the contents of exhibit D l was not disputed by the appellant. In his own words, the learned Judge at page 358 of the record of appeal stated that: "After the court going through the said documents, it has found that the same was valid minutes o f the meeting on the reason that , under the 16

adm inistrative system o f the applicant, the management is in Washinton D.C. that is why the meeting was conducted through skype. This court would have ignored the same if the respondent would have disputed the contents o f the said meeting. However, that was not the position." In the circumstances, we are satisfied that the conclusion by the learned Judge is correct and cannot be faulted. It is apparent, at pages 200 to 201 of the record of appeal that, at the trial before the CMA, when DW1 tendered the said minutes for admission, the appellant did not object to its admissibility in evidence and/or raise an issue that the same were invalid and or conducted by a person with no legal capacity from a different organization. It is also on record that, during the trial the appellant herself, among others, tendered exhibits PI, P2 and P3 which clearly indicated that, her candidacy for the DDA Project was approved by the USAID and her employment contract (exhibit P3) was executed by her and one Jenal Cox, the then director of the respondent and Senior Program Manager for Africa Programmes based in Washington DC. Thus, the appellant was reporting directly to Freedom House at Washington DC where the Senior Program Manager for Africa was based. We, therefore, find that, the move taken by Mr. Msumi of 17

introducing new issues which were never considered and or determined by the CMA and the High Court, is nothing less than introducing a fresh litigation between the parties which cannot be permitted at this stage. We find solace in our previous decision in Blueline Enterprises Limited v. East African Development Bank, Civil Application No. 21 of 2012 [2013] TZCA 2138, where we quoted with approval an old decision in Haystead v. Commissioner of Taxation [1920] A.C 155 at page 166 whereby Lord Shaw obsen/ed that: - "Parties are not perm itted to begin fresh litigation because o f new views they may entertain o f the iaw o f the case or new version which they present so as to what should be a proper apprehension ; by the Court o f the legal result... I f th is w ere p e r m itte d litig a tio n w ou ld h ave no e n d e x ce p t w hen le g a l in g e n u ity is e x h a u ste d ." [Em phasis added]. Being guided by the above authorities, we hereby disregard the two new issues raised by the appellant. We equally find the second ground of appeal devoid of merit. Moving to the third ground on the appellant's complaint that the learned Judge failed to find that the termination of her employment 18

contract was unfair, as the respondent failed to issue a statutory one month notice contrary to section 41 of the ELRA and clause 1.10.1 of exhibit P3. We wish to note that, there is no dispute that, the appellant's employment contract was terminated on the ground of poor work performance which is governed by rules 17 (1) and 18 (1) to (9) of the Code of Good Practice that are quite distinct from the procedures applicable in cases involving termination on misconduct. The latter must be preceded by a disciplinary hearing. Rule 17(1) of the Code of Good Practice lists factors to be taken into account by an Arbitrator or a Judge in determining the substantive fairness of the termination, that is to say; (i) whether the employee failed to meet a performance standard; (ii) whether the employee was aware of the standard or could reasonably be expected to have been aware of the required performance standard; (iii) whether the performance standards are reasonable; (iv) the reason behind the employee's failure to meet the standard; and (v) whether the employee was afforded a fair opportunity to meet the performance standard. Therefore, when the employer considers to terminate an employee on the alleged poor work performance, he must observe the steps enumerated under the said rules. Apparently, these are the same tests 19

an arbitrator or a Judge must consider in determining whether or not the termination on poor work performance was fair. The steps must be followed by a procedure prescribed under rule 18 (1) to (9) of the same law, which entails, amongst others, investigation behind unsatisfactory performance to ascertain the extent to which it is caused by the employer. Having carefully perused the record of appeal, it is clear to us that, in holding that the termination of the appellant's employment contract on poor work performance was fair, the learned Judge, from pages 349 to 358 of the record of appeal, took into account the conditions stipulated in the above cited rules and revisited the evidence adduced by PW1, DW1 and DW2 together with exhibits P3 that included a detailed job description which outlined the principal duties and responsibilities expected from the appellant and the respondent's letter dated 27th November, 2018 addressed to the appellant which was part of exhibit D l. For ease of reference, we shall have the learned Judge speak for himself, as reflected at pages 357 to 358 of the record of appeal, that: "...the court has found that the respondent has com plied with the procedure for termination o f employment o f the appellant on poor work

performance prescribed hereinabove...The court finds that, through those reports the respondent was able to identify the areas which the appellant was underperforming as reflected on the letter dated 27th November, 2018. The a p p e lla n t w as a ffo rd e d a chance to im pro ve h e r p e rfo rm a n ce a n d th e re sp o n d e n t w as even re a d y to sp o n so r h e r in to th e recom m ended co u rse s to be taken fo r the p erfo rm an ce im p ro ve m e n t b u t s t ill th e a p p e lla n t w as u n d e r p erfo rm in g . "[Em phasis added]. In this appeal, there is no dispute whatsoever that, the respondent had raised concerns against the appellant's poor work performance in November, 2018. Subsequently, in its letter, dated 27th November, 2018, the respondent officially communicated to the appellant the employer's concerns regarding her poor work performance and requested for improvement. The respondent's letter contained a detailed summary of areas of employer's concerns together with concrete steps for improvement to assist the appellant to take necessary actions to improve her work performance to the required standard. In addition, from 6th December, 2018 to 15th February, 2019, the parties engaged on frequent phone-calls and exchanged several

correspondences (emails) to deliberate on the matter. In the process, the appellant was availed with an opportunity to complete two online training courses to address her work performance issues. However, despite all those initiatives, guidance, support and training courses, still the appellant failed to perform her duties and responsibility to the standard required of her position. Thus, finally, a meeting with the senior management officials was conducted on 14th March, 2019 (exhibit D l) and subsequently, the appellant's employment contract was terminated on 23rd April, 2019 on the alleged ground of poor work performance. Having perused the contents of the impugned decision, we are satisfied that the learned Judge correctly directed his mind to the evidence adduced by the parties and rightly found that the termination of the appellant's employment contract was upon a fair reason of poor work performance weighed in the light of the provisions of rules 17 and 18 of the Code of Good Practice. That said, we also find the third ground of appeal devoid of merit. In the circumstances, we do not find cogent reasons to vary the decision of the High Court. Consequently, we hereby dismiss the appeal 22

in its entirety for lack of merit. Considering the circumstances of this appeal, we make no order as to costs. DATED at DODOMA this 27th day of April, 2026. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered virtually this 28th day of April, 2026 in the presence of Mr. Khalfan Msumi, learned advocate for the Appellant, Ms. Blandina Kihampa, learned advocate for the Respondent and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original.