David Sekwao vs SportPesa Limited (Civil Appeal No. 371 of 2023) [2026] TZCA 416 (16 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: KEREFU. J.A. MWAMPASHI. J.A., And ISMAIL. J.A.^ CIVIL APPEAL NO. 371 OF 2023 DAVID SEKWAO.........................................................................APPELLANT VERSUS SPORTPESA LIMITED .............................................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division, at Dar es Salaam) (Maqhimbi, 3 .^ Dated the 3rd day of November, 2022 in Labour Revision No. 40 of 2022 RULING OF THE COURT 14th & 16th April, 2026 KEREFU, J.A.: The appellant, David Sekwao, appeals against the decision of the High Court of Tanzania, Labour Division (Maghimbi, 1) dated 3r d November, 2022 in Labour Revision No. 40 of 2022 challenging the award issued by the Commission for Mediation and Arbitration at Dar es Salaam (the CMA) on 31s t January, 2022 in favour of the respondent, in Labour Dispute No. CMA/DSM/KIN/275/2020/299 (the labour dispute). 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 the appellant was employed by the respondent on 1s t June 2018 as a Telecom Account Manager. He was placed under a probation for a period of six (6) months. Upon expiration of the said six (6) months' probation period, the respondent management was dissatisfied with the appellant's performance and decided to extend the probation period until 17th March, 2020, when they issued him with a letter of non confirmation of his employment. However, on his part, the appellant alleged that he was confirmed in his employment, the allegation which was disputed by the respondent. Therefore, dissatisfied with the letter of non-confirmation, the appellant, referred the matter to the CMA claiming for unfair termination. Having considered the evidence adduced by both parties, the CMA dismissed the appellant's application on the ground that he was a probationary employee thus, not entitled to remedies for unfair termination. Still dissatisfied, the appellant filed the application for revision before the High Court, which was dismissed on 3r d November, 2022 for lack of merit. Aggrieved, the appellant, on 8th November, 2022 lodged a notice of appeal and on 10th November, 2022, wrote a letter to the Registrar of the High Court requesting for certified copy of High Court's proceedings, judgment and decree in Labour Revision No. 40 of 2022 for appeal purposes. Subsequently, on 12th December, 2022, the Registrar of the High Court notified the appellant that the requested documents were ready for collection and were actually attached to the said letter for the appellant's necessary action. In addition, the Registrar issued the appellant with the certificate of delay excluding the period of delay from 10th November, 2022 to 5th June, 2023. Thereafter, on 30th June, 2023, the appellant lodged a memorandum of appeal which comprised of nine (9) grounds of complaint. However, for reasons which will be apparent shortly, we do not deem it appropriate, for the purpose of this ruling, to reproduce them herein. It is noteworthy that, the appellant's appeal was confronted with a notice of preliminary objection raised by the respondent on 15th August, 2023 to the effect that; (i) the appeal is time barred for contravening the requirement of rule 90 of the Tanzania Court of Appeal Rules, 2009 (the Rules), and (ii) the failure by the appellant to serve the respondent with the letter requesting to be supplied with the certified copy of the High Court's proceedings for appeal purpose as required by rule 90 (3) of the Rules. When the appeal was placed before us for hearing, the appellant had the legal services of Mr. Tumaini Sekwa Shija, learned counsel, whereas the respondent had legal services of Mr. Paschal Kamala, 3 learned counsel assisted by Mses. Eugenia Shayo and Martha Renju, both learned advocates. At the outset, and being guided by the established practice that, when a preliminary objection has been raised against an appeal or application, the same has to be determined first, we invited the learned counsel for the parties to address us on the preliminary objection raised by the respondent. Submitting in support of the two points of objection, Mr. Kamala argued that, the appellant had failed to serve the respondent with a copy of the letter that requested for certified copy of the High Court's proceedings as required by rule 90 (3) of the Rules. To amplify, Mr. Kamala referred us to page 135 of the record of appeal and contended that, although a copy of the said letter had been included in the record, the same was not served on the respondent. The learned counsel also, wondered that, despite the fact that by 12th December, 2022, the appellant had already received the said documents, surprisingly, on 16th January, 2023, he again wrote another letter reminding the Registrar to supply him with the said documents. In addition, Mr. Kamala challenged the validity of the certificate of delay as the Registrar referred to a tetter dated 5th June, 2023 which is non-existent. Relying on our previous decision in Continental Services Limited v. China Railway Jianchang Engineering Co. (T) Limited, Civil Appeal No. 184 of 2018 [2022] T2CA 3091, he argued that, the omissions had rendered the certificate of delay issued to the appellant invalid, thus having the effect of making the appeal time barred. Based on his submission, Mr. Kamala prayed that the appeal be struck out for being hopelessly time barred. In his response, although, Mr. Shija readily conceded that the appellant's letter found at page 135 of the record of appeal was not served on the respondent and the Registrar's letter dated 5th June, 2023 is non-existent, he argued that the said omission is not fatal and the respondent was not prejudiced as it was aware of the appellant's intention to appeal against the High Court's decision. He further argued that, since the appellant diligently pursued the appeal process, the Court should not be tied up by technicalities. He thus urged us to invoke the principle of overriding objective and find that the appeal was lodged within the time prescribed by the law. On that basis, Mr. Shija urged us to overrule the preliminary objection raised by the respondent and proceed to hear the appeal on merit. In his brief rejoinder, Mr. Kamala challenged the submission made by his learned friend by relying on the principle of overriding objective. He insisted that the said principle cannot be applied in the circumstances of this appeal. It was his strong argument that, since the appellant did not serve his letter requesting for the certified copy of the High Court's proceedings on the respondent as required by rule 90 (3) of the Rules, he is not entitled to benefit from the excluded days in the certificate of delay. He thus emphasized that the appeal is time barred and deserves to be struck out for being incompetent. On our part, having examined the record of appeal and the submissions advanced by the learned counsel for the parties for and against the preliminary objection, we find that, the main issue for our determination is whether the appeal is properly before the Court. We shall preface our discussion under rule 90 (1) and (3) of the Rules which regulates the timelines of instituting an appeal in this Court. It categorically states as follows: "90 (1) Subject to the provisions o f rule 128, an appeal shall be instituted by lodging in the appropriate registry within sixty days o f the date when the notice o f appeal was lodged with - (a) a memorandum o f appeal in quintupHcate; (b) the record o f appeal in quintupHcate; (c) security for the costs o f the appeal; save that where an application for a copy o f the proceedings in the High Court has been made within thirty days o f the date o f the decision against which it is desired to appeal\ there shall\ in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the Registrar o f the High Court as having been required for the preparation and delivery of that copy to the appellant. (3) An appellant shall not be entitled to rely on the exception to sub-rule (1) unless his application for the copy was in writing and a copy o f it served on the respondent" (Emphasis added). It is clear from the above cited provisions that, the appellant was required to lodge an appeal within sixty (60) days from the date of filing the notice of appeal. The only exception to this requirement is where an appellant has not obtained a certified copy of the High Court's proceedings and has applied for the same, in writing, within thirty (30) days of the impugned decision and served a copy thereof on the respondent. That, the Registrar may issue a certificate of delay excluding the period or number of days required or used to prepare and deliver the certified High Court proceedings to the appellant. In the instant appeal, it is on record that the decision sought to be challenged was handed down on 3r d November, 2022, the notice of appeal was lodged on 8th November, 2022 and the memorandum of appeal was lodged on 30th June, 2023 after lapse of almost seven (7) months. As correctly argued by Mr. Kamala, pursuant to rule 90 (1) of the Rules, the appeal ought to have been lodged within sixty (60) days of the filling of the notice of appeal. This is so, because, the appellant's letter requesting to be supplied with the certified copy of the High Court's documents for appeal purpose was not served on the respondent contrary to rule 90 (3) of the Rules cited above. As such, the appellant is not entitled to benefit from the exclusion of days envisaged under the proviso to rule 90 (1) of the Rules. In the case of Victoria Mbowe v. Christopher Shafurael Mbowe & Another, Civil Appeal No. 115 of 2012 [2016] TZCA 847, when this Court was confronted with an akin situation, it stated as follows: " . . . Rule 90 (2) [Now 90 (3)] lays it down that an appellant cannot rely on the exception clause in Rule 90 (1) unless his application for a copy is in writing and served on the respondent Again, there is nothing in the record upon which compliance with the provisions o f the said Rule 90 (2) o f the Rules could be ascertained." Again, in Njake Enterprises Limited v. Blue Rock Limited & Another, Civil Appeal No. 69 of 2017 [2018] TZCA 304, the Court stated that: 8 "Having found that there was no valid certificate o f delay, the appellant cannot benefit from the exclusion o f time in which it was supposed to file its appeal. Since this appeal was filed on 5/12/2016, a period o f 596 days after the notice o f appeal was filed, this is beyond the prescribed period o f sixty (60) days, the same is time barred." Similarly, in this appeal, since the appellant has failed to comply with the requirement of rule 90 (3) of the Rules cited above, he is not entitled to benefit from the exclusion of days envisaged under the proviso to rule 90 (1) of the Rules. We must emphasize that, the purpose of serving a copy of the letter on the respondent is not only to make him or her aware of the appeal process, but it is also relevant in the computation of the period of limitation for filing an appeal. In addition, and as eloquently argued by Mr. Kamala, the certificate of delay is faced with another ailment as it referred to the Registrar's non-existent letter. In the case of Eveline 3. Ndyetabula v. Star General Insurance (T) Limited, Civil Appeal No. 189 of 2019 [2022] TZCA 538, this Court while addressing the rationale and the importance of Registrar's notification letter and its consequences when it is not included in the record of appeal, stated that: nIn the instant appeal, it is not in dispute that the letter o f the Registrar of the High Court which informed the appellant that the documents were 9 ready for collection was not in the record of appeal. In the absence o f that letter\ the respondent argued that the certificate o f delay is defective since it mentioned 4* June, 2019 the date the appellant was supplied with the copy o f proceedings but not borne out o f the record. This is because the date upon which the Registrar informed the appellant that the documents were ready for collection is the one upon which the time limit to lodge the appeal ought to start counting." [Emphasis added]. Consequently, the Court struck out the appeal for being time barred on the account of non-inclusion of the Registrar's letter in the record of appeal. Furthermore, in Hamisi Mdida & Said Mbogo v. The Registered Trustees of Islamic Foundation, Civil Appeal No. 59 of 2020 [2020] TZCA 1918, the Court described the role of the Registrar of the High Court in preparing the certificate of delay that: "He must state in very dear terms that the days to be excluded in computing the period o f limitation are those from the time when the appellant requested for copies o f proceedings to the date when he notified him that the documents are ready for collection". [Emphasis added]. See also our decision in Continental Services Limited (supra) cited to us by Mr. Kamala and LRM Investment Company Ltd and 5 Others v. Diamond Trust Bank Tanzania Limited, Civil Appeal No. 10 I l l of 2019 [2022] TZCA 315 together with Eveline J. Ndyetabula (supra). In all these cases, the Court, among other things, struck out the appeal for being time barred as they were supported by an invalid certificate of delay on the account of non-inclusion of the Registrar's letter in the record of appeal. We are mindful of the fact that, in his submission, Mr. Shija urged us to invoke the principle of overriding objective and overrule the preliminary objection raised by the respondent. With due respect, we are unable to agree with him on this aspect and we find his argument to be misconceived. The omission indicated above, cannot be cured by the principle of overriding objective, as the issue of time limitation goes to the root of the matter. This Court on several occasions had categorically stated that the overriding objective principle cannot be applied blindly against the mandatory provisions of the procedural law which goes to the very foundation of the case. See for instance our previous decisions in Njake Enterprises Limited (supra) and Mondorosi Village Council and 2 Others v. Tanzania Breweries Limited & 4 Others, Civil Appeal No. 66 of 2017 [2018] TZCA 303. It is therefore our settled view that, in the instant appeal, we cannot overlook the fact that the appellant's appeal was lodged beyond sixty (60) days prescribed by the law, hence hopelessly time barred and l i thus, the same cannot be resurrected by the principle of overriding objective as the Court cannot have jurisdiction to entertain an appeal which is time barred. In the event, we sustain the preliminary objection raised by the respondents. Consequently, we strike out the incompetent appeal for being hopelessly time barred. Since this is a labour related matter, we make no order as to costs. DATED at DODOMA this 15th day of April, 2026. Ruling delivered virtually this 16th day of April, 2026 in the presence of Mr. Tumaini Shija, learned advocate for the Appellant, Ms. Eugenia Shayo, learned advocate for the Respondent and Mr. Shafii R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Kassim is hereby certified as a true copy of the original. ' A. S. CHUGULU DEPUTY REGISTRAR COURT OF APPEAL 12