NAMPAK Tanzania Ltd vs Deonise Best Julius & Others (Civil Appeal No. 118 of 2023) [2026] TZCA 432 (22 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA. 3.A.. MURUKE. J.A.. And MGEYEKWA. J.A.^ CIVIL APPEAL NO. 118 OF 2023 NAMPAK TANZANIA LTD............................................................ APPELLANT VERSUS DEONISE BEST JULIUS ....................................................... 1 st RESPONDENT JULIUS MUSHUMBA........................................................... 2 nd RESPONDENT BAKARIIDD ING'E.............................................................3 rd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Maahimbi. J.~ ) dated the 23rd day of December 2022 in Miscellaneous Application No. 426 of 2022 JUDGMENT OF THE COURT 17th& 22n dApril2026 NDIKA. J.A.: Nampak Tanzania Limited, the appellant, challenges the decision of the High Court, Labour Division sitting at Dar es Salaam (Maghimbi, J.) dated 23r d December 2022, which granted the respondents, Deonise Best Julius, Julius Mushumba, and Bakari Idd Ing'e, an extension of time to file a labour complaint regarding the interpretation of a retrenchment agreement following the non-settlement of Labour Dispute No. CMA/DSM/TEM/510/19 in the Commission for Mediation and Arbitration at Temeke, Dar es Salaam ("the CMA"). i This appeal arises from the following context: the respondents were employed by the appellant on various dates and in distinct positions. On 30th September 2019, they were terminated from their employment due to fiscal constraints. The retrenchment was to be implemented in accordance with the stipulations outlined in a collective bargaining agreement. One of the stipulations was that the respondents will be repatriated to their areas of domicile, with repatriation charges set at TZS. 5,000.00 per kilometre. The appellant disbursed TZS. 15,000,000.00 to each respondent as repatriation costs, meeting its contractual commitment for a distance of 1,000 kilometres. The respondents asserted that their residences spanned beyond 1,000 kilometres, but the appellant maintained that the arrangement was adhered to as stipulated. The respondents successfully filed a labour complaint with the CMA, resulting in an arbitrator's order for the appellant to remit repatriation funds at the stipulated rate of TZS. 5,000.00 per kilometre. Upon revision lodged by the appellant, the High Court (Rwizile, J.) annulled the CMA's award, asserting that the dispute, pertaining to the application, interpretation, or execution of the collective agreement, should have been submitted to the High Court, Labour Division following unsuccessful mediation in accordance with section 75 (b) of the Employment and Labour Relations Act, Cap. 366 R.E. 2023. Consequently, referencing James Kapyata v. MCC Ltd [2020] TZHCLD 130, the High Court 2 determined that the CMA lacked jurisdiction to resolve the dispute. To ensure clarity, we extract the said provisions as follows: " 75 . Un/ess the parties to a collective agreement agree otherwise- (a) a dispute concerning the application , interpretation or implementation o f a collective agreement shall be referred to the Commission for mediation; and (b) where the mediation fails, any party may refer the dispute to the Labour Court fora decision". [Emphasis added] Indeed, while mediation before the CMA ended unsuccessfully on 10th December 2019, the High Court's decision nullifying the CMA's award was issued on 22n d February 2022. Following the High Court's decision, the respondents dawdled until 9th August 2022, when they filed Miscellaneous Application No. 304 of 2022, requesting an extension of time to seek a review of Rwizile, J.'s judgment. Sensing the obvious futility of the pursuit for review, they withdrew the matter on 7th September 2022 and subsequently lodged Miscellaneous Application No. 426 of 2022 on 28th October 2022 for an extension of time to escalate the disagreement to the High Court. As previously stated, Maghimbi, J. granted the requested extension, thereby prompting this appeal. 3 Mr. Shepo Magirari, learned counsel for the appellant, based the appeal on two grounds: first, that the High Court did not exercise its discretion judiciously by granting the requested extension of time without adequate justification. Secondly, that the High Court erred in law by granting the requested extension of time despite determining that the respondents provided no reason for the delay. Mr. Majura Magafu, learned counsel for the respondents, vigorously contested the appeal. At the forefront, both counsel acknowledged that whether to grant an extension of time is a discretionary matter for the court, to be exercised cautiously and flexibly while examining the pertinent facts of the case. The court typically considers various factors including the duration of the delay, the reasons for it, the potential prejudice to each party depending on how the court's discretion is exercised, the conduct of the parties, the necessity to balance the interests of a party with a favourable decision against the rights of a party with a constitutionally protected right of appeal, and the presence of a significant legal issue, such as the legality of the decision being contested: see, for instance, Dar es Salaam City Council v. Jayantilal P. Rajani [1988] TZCA 26; Eliya Anderson v. Republic [2013] TZCA 2382; Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R. 185; and Lyamuya Construction Co. Ltd v. Board of Registered of Young Women's Christian Association of Tanzania [2011] TZCA 4. 4 Certainly, judicial discretion denotes the ability of judges to make decisions or choices informed by their judgment and experience within the legal framework, allowing them to interpret and apply the law to particular instances. Consequently, interference with exercise of judicial discretion is typically eschewed to preserve the independence of the presiding judge. In Mbogo and Another v. Shah [1968] EA 93, Sir Clement de Lestang VP of the former Court of Appeal for East Africa articulated concisely at page 94 that: 7 think it is weii settled that this court will not interfere with the exercise o f its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itselfor because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion". [Emphasis added] In the same case, Sir Charles Newbold P put it at page 96 thus: "... a Court o fAppealshould not interfere with the exercise o f the discretion o f a judge unless it is satisfied that thejudge in exercising his discretion has misdirected himselfin some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise o f his discretion and that as a result there has been misjustice" In support of both grounds of appeal, Mr. Magirari contended that the High Court could only grant the requested extension of time pursuant to rule 56 (1) of the Labour Court Rules, Government Notice No. 106 of 2007 ("the Labour Court Rules"), if the respondents had demonstrated good cause. He reproached the respondents for two issues: first, for their delay for more than six months following Rwizile, J/s annulment of the CMA's award on 22nd February 2022. Secondly, there was an additional delay of fifty days in filing Miscellaneous Application No. 426 of 2022 on 28th October 2022, after their withdrawal on 7th September 2022 of the quest for an extension of time to seek a review of Rwizile, J.'s decision. He asserted that the High Court recognised on page 288 of the record of appeal that one of the periods of delay was unaccounted for yet proceeded to grant the requested extension. The counsel referenced Lyamuya Construction Co. Ltd {supra) and Yazid Kassim Mbakileki v. CRDB 1996 Ltd Bukoba Branch & Another [2018] TZCA 359, urging us to allow the appeal. Conversely, Mr. Magafu argued that the High Court appropriately characterised the dispute as an employment issue and deemed the delay 6 as not excessive, which were significant factors favouring the respondents. He contended that, according to rules 3 (1), 55, and 56 of the Labour Court Rules, the High Court, Labour Division, is obligated to function not only as a court of equity but also to fulfil the demands of expediency, justice, and flexibility. He referred to ABSA Bank Tanzania Limited v. Tanzania Pharmaceutical Industries Ltd & Others [2025] TZCA 766, in which the Court granted an extension of time notwithstanding the absence of an explanation for a two-day delay, considering the circumstances of the case. Mr. Magirari correctly contended that the High Court, in adjudicating the matter, was cognisant that the duration of delay subsequent to the withdrawal of the application on 7th September 2022 remained unaccounted for. Nevertheless, it concluded that the "interests of justice" necessitated the granting of the matter. To ensure clarity, we take the pertinent excerpt from pages 288 and 289 of the appeal record: ' ! Although I have not seen anywhere that the applicants had adduced any reasons for the delay of one month, the question for determination of this application is if the period is inordinate to deny the applicants to be heard on their right The dispute at hand is halfway on the course after mediation having failed at the CMA. The question is if, in labour disputes where rights o f the employee are at 7 stake, it is proper to deny the applicants their rights to be heard on the interpretation o f the retrenchment agreement after attempting mediation. In the interests ofjustice and the fact that at aii times the parties and the CMA were treading on the wrong footing hoping to have the dispute resolved, time should be extended so that the dispute can be determined on merits". [Emphasis added] We respectfully believe that the High Court failed to adequately analyse the pertinent facts of the case. The case encompassed four intervals of delay, but the first three intervals went unnoticed by the learned judge of the High Court. The initial period commenced following the unsuccessful mediation on 10th December 2019, after which the respondents were obligated to escalate the dispute to the High Court for interpretation of the collective agreement pursuant to section 75(b) of the ELRA. The issue underwent arbitration before the CMA and subsequent review by the High Court, where Rwizile, J. invalidated the CMA's award on 22n d February 2022 and instructed the respondents to proceed in line with section 75 (b) of the ELRA. The interval from 10th December 2019 to 22n d February 2022 clearly represents a technical delay, as established in Fortunatus Masha v. William Shija and Another [1997] T.L.R. 154; Salvand K. A. Rwegasira v. China Henan International Group Co. Ltd [2006] TZCA 345; and Bharya Engineering & Contracting Co. Ltd v. Hamoud Ahmed Nassor [2018] TZCA 339. This delay is undoubtedly excusable in terms of section 21 of the Law of Limitation Act, Cap. 89 R.E. 2023, as the respondents were earnestly and in good faith seeking justice in a wrong forum. The second interval began on 22n d February 2022 when Rwizile, J. issued his judgment. The respondents procrastinated for about six months until 9th August 2022, when they submitted Miscellaneous Application No. 304 of 2022, seeking an extension of time to request a review of Rwizile, J/s decision. The six-month wait is, on any view of it, considerable and excessive. Furthermore, there is no elucidation for the delay. No evidence is included in the joint affidavit of the respondents as the cause for the delay to support their plea for an extension of time. The respondents subsequently chose an erroneous path by seeking an extension to file a review of Justice Rwizile's decision. This constituted the third interval of delay. But given that the pursuit of review was not questioned whether it was taken in bad faith or without diligence, we find the period from 9th August 2022 to 7th September 2022 an excusable technical delay on the same reasoning as the first period of delay. The final interval extended from 7th September 2022 to 28th October 2022. The learned judge mistakenly believed that it was a mere thirty-day 9 pause, while in fact it was a period of fifty-one days. Initially, we contend that perceiving such an extended time as not excessive is unequivocally erroneous. Moreover, the respondents made little effort to elucidate the reason for the delay. The assertion by the High Court that the matter being a labour dispute involving employee rights ought to be dealt with leniently is evidently a flawed consideration. Our jurisprudence is so firmly established that it does not diminish the need to justify delays in cases pertaining to labour matters. The law of limitation equilibrates the claimant's right to pursue justice with the opposing party's right to avoid indefinite litigation. It would be imprudent to interpret and apply the law in a manner that favours the employee under the guise of "interests of justice" without considering the rights and interests of the employer. Mr. Magafu relied on ABSA Bank Tanzania Limited {supra). With respect, its facts are incomparable to this case and, therefore, it does not advance the respondents' cause. The Court determined that the two unaccounted days within the five-day delay in submitting the new application were not excessive and did not demonstrate negligence. In the present instance, the second and fourth intervals of delay as explained previously spanned over six months and fifty-one days respectively. Each of these spans of delay is substantial and inordinate by any measure. 10 As explained above, the High Court said absolutely nothing regarding the second interval of delay or the lack of any justification for it. With respect, the Court did not at all seem to notice the said delay. Probably it had overlooked it. This interval is as indefensible as the fourth delay for which no justification was provided. We ultimately find merit in the appeal, which we hereby allow. Consequently, we vacate the High Court's order granting the respondents an extension of time and substitute it for an order dismissing the respondents' application for an extension of time. Each party shall bear its own costs. DATED at DAR ES SALAAM this 21s t day of April 2026. Judgment delivered this 22n d day of April, 2026 in the presence of Mr. Shepo Magirari, learned counsel for the appellant and Mr. Majura Magafu, learned counsel for the Respondent and Mr. Ladislaus Msuba, Court clerk is hereby certified as "" iriginal. G. A. M. NDIKA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL