Gaspar Damas Mashingia vs Nile Basin Initiative/Nile Equatorial Lakes Subsidiary Action Programme/NELSAP CU & Rusumo Power Company Limited (Civil Appeal No. 228 of 2025) [2025] TZCA 1323 (9 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LEVIRA. J.A.. MGONYA, J.A, And MPEMU, J.A.) CIVIL APPEAL NO. 228 OF 2025 GASPAR PAMAS MASHINGIA.................................................APPELLANT VERSUS NILE BASIN INITIATIVE/NILE EQUATORIAL LAKES SUBSIOIARY ACTION PROG RAM ME/NELSAP CU....1S T RESPONOENT RUSUMO POWER COMPANY LIMITEP ............................. 2 nd RESPONPENT (Appeal from the decision of the High Court of Tanzania, at Bukoba) fNaiawana. J.l dated the 5th day of June, 2024 in Labour Revision No. 14 of 2023 JUDGMENT OF THE COURT 8th October & 9th December, 2025 MGONYA. J.A.: The appellant, Gaspar Damas Mashingia, was dissatisfied with the decision of the High Court of Tanzania at Bukoba in Labour Revision No. 14 of 2023. In that decision, the High Court Judge set aside some of the reliefs granted to the appellant by the Commission for Mediation and Arbitration at Bukoba (the CMA), on the ground that the appellant's contract of employment terminated automatically on 30th June, 2022. i The facts of this matter, albeit in brief, are as follows: The appellant was an employee of the respondents from 1s t July, 2021 to 13th July, 2022 when he was notified by a letter that his employment contract had ended on 30th June 2022. Following the said letter of termination, which the appellant believed was unfair, he instituted Labour Dispute No. CMA/KAG/BUK/42/2022 before the CMA. Having heard the dispute, the CMA pronounced an award in favour of the appellant. The said award was to the effect that, the appellant was entitled to a total sum of USD 364,023 equivalent to TZS 910,057,500.00 at the exchange rate of TZS 2,500.00 per 1 USD. That amount included USD 60,024 being 12 months' salary as compensation for unfair termination of contract, USD 36,400 being 26 months' unpaid part of salary, USD 4,460 being demobilization allowance, USD 5,017 being one month's salary in lieu of notice, USD 92,400 being unpaid social security benefits for 84 months, USD 35,119 being 7 years' unpaid leave, USD 20,000 being gratuity lump sum, USD 5,000 being daily subsistence allowance for work done, USD 2,230 being annual leave allowance, USD 9,455 being severance pay for 7 years of continuous service, USD 10,500 being repatriation from Rusumo-Ngara to Dar es Salaam, USD 10,500 being transportation of personal effects from Rusumo - Ngara to Dar es Salaam, USD 70,238 being daily subsistence expenses from the date of 2 termination to the date of repatriation, and USD 2,500 being outstanding allowance during training in the Netherlands and a clean certificate of service. Discontented with the CMA award, the respondents filed Revision No. 14 of 2023 in the High Court of Tanzania, Labour Division at Bukoba. From the parties' submissions before the court, the High Court Judge found that the contract between the 1s t respondent and the appellant had terminated automatically and there was no renewal. Meanwhile, having found that the appellant had not been repatriated to Dar es Salaam and there was no proof that he had already been paid gratuity or given transportation of personal effects, the High Court Judge ordered the respondents to issue the appellant a clean certificate of service, gratuity lump sum to the tune of USD 20,000, USD 10,500 being repatriation of the appellant and his family from Rusumo-Ngara to Dar es Salaam, and USD 10,500 being transportation of personal effects. Aggrieved, the appellant has appealed to this Court. The Memorandum of Appeal, which was filed on 7th February, 2025 contains four grounds of appeal which, for reasons that will become apparent soon, we will not labour to reproduce. 3 At the hearing of this appeal, Mr. Projestus P. Mulokozi, learned counsel, represented the appellant, whilst Mr. Sinare Zaharan, assisted by Ms. Norah Marah, both learned advocates, appeared for the respondents. When invited, Mr. Mulokozi prayed for and was granted leave to adopt the written submissions in support of the appeal. In his written submissions, the appellant argued the grounds of appeal in the form of issues, which were construed as follows: 1. Whether, in terms o f Rule 4(1), (3) and (4) o f the Employment and Labour Relations (Code o f Good Practice) Rules, GN. No. 42 o f2007 (the Code), it was proper for the High Court to hold that the contract was automatically terminated and that he had no permission to work after expiration o f the previous contract; 2. Whether, in terms o f section 14(2) o f the Employment and Labour Relations Act, Cap. 366 R.E. 2019 (the ELRA), it was proper for the High Court to treat exhibits C2 and C3 as an extension o f a three-months contract declined by the appellant; 3. Whether, in terms o fsection 43(1) o f the ELRA, it was proper for the High Court to set aside reliefs for subsistence allowance from the date o f termination up to the date o f repatriation; and 4. Whether, in terms o f section 44(l)(a), (b), (c), (d), (e) and (f) o f the ELRA, it was proper for the High Court to set aside ail 4 remunerations accrued to the appellant up to the date o f termination. Amplifying on the first issue, the appellant's counsel referred us to exhibit C2 as it appears at page 264 of the record of appeal and argued that, the appellant was notified vide a letter dated 13th July, 2022 that his contract of employment had ended on 30th June, 2022. In that letter, the appellant was addressed in his capacity as the Social Development and Resettlement Officer at NALSAP-Regional. According to Mr. Mulokozi, the letter signifies the existence of an employer-employee relationship up to 19th July, 2022 when the appellant had officially hand over the office. In his view, the employment contract had already been renewed by default in terms of Rule 4 (3) of the Code. Elaborating further on what he had submitted in his written submissions, the learned counsel stated that exhibit C3, as it appears at page 263 of the record of this appeal, is a warning letter. He disputed the assertion that the contract was extended but declined by the appellant. He stressed that no contract was offered to the appellant and refused. Mr. Mulokozi further argued that the appellant's work did not require day- to-day assignments; hence, he continued to work from 30th June, 2022 to 13th July, 2022. He stated that, although the letter dated 13th July, 2022 5 was titled "end of employment" still no contract had been signed in that respect. Submitting on the second issue, on whether, in terms of section 14(2) of the ELRA, it was proper for the court to treat exhibits C2 and C3 as an extension of a three-months contract declined by the appellant, the learned counsel faulted the High Court's findings that exhibit C2 reveals that, prior to the expiry of the contract, the 1s t respondent offered a three- months extension but the appellant declined. According to Mr. Mulokozi, exhibit C2 is not the contract of employment but a mere letter directed to the appellant. Stressing what he had submitted, Mr. Mulokozi stated that it is a mandatory legal requirement that a contract with an employee must be in writing. According to him, the appellant was not in a position to decline a contract that was not presented to him. Contesting the contents of exhibit C3, the learned counsel argued that the same is a warning letter that notified the extension of the appellant's contract for three months up to 30th September, 2022 upon the appellant's display of positive change in behavior. According to Mr. Mulokozi, that cannot be considered as an extension of contract, as the same was served to the appellant even before the expiration of his previous contract. He contended that there is no evidence on record to the effect that the appellant was issued with a three-months contract of 6 employment and he declined it. It was his stance that, at the time of termination, there was no three-months contract of employment in favour of the appellant. According to Mr. Mulokozi there was misapprehension of evidence and law for the High Court to hold that there was extension of contract while exhibits C2 and C3 are not contracts in terms of section 14 (2) of the ELRA. To bolster his stance, he cited the case of Mohamed Omary Magavu v. Nadir Kawogo & Another (Civil Appeal No. 477 of 2021) [2024] TZCA 1041. In regard to the 3rd issue, on whether in terms of section 43(1 )(c) and (2) of the ELRA, it was proper for the High Court to set aside reliefs for subsistence allowance from the date of termination up to the date of repatriation; by referring us to the wording of section 43(1 )(c) and (2) of the ELRA, the learned counsel submitted that the CMA award granted among other reliefs, USD 70,238 being daily subsistence expenses from the date of termination until the date of repatriation. However, the High Court in its judgment set aside reliefs of the CMA. It was his stance on this issue that, since the High Court acknowledged that the appellant had never been repatriated to Dar es Salaam or given transport allowance in that respect, it was improper to set aside reliefs for subsistence allowance from the date of termination up to the date of repatriation. To support his submission, he cited the cases of Mantra Tanzania Limited v. Joaquim P. Bonaventure (Civil Appeal No. 96 of 2023) [2024] TZCA 1153, Kenya Kazi Security v. Kirobotoni & 71 Others (Civil Appeal No. 234 of 2021) [2024] TZCA 821 and Felician Rutwaza v. World Vision Tanzania (Civil Appeal No. 213 of 2019) [2021] TZCA 2. The learned counsel argued that, the High Court decided against the spirit of section 43(l)(c) of the ELRA, as no reasons were assigned and also it did not consider that the said relief was not disputed by the respondents in the trial proceedings. On the 4th issue, as to whether in terms of section 44(1 )(a), (b), (c), (d), (e) and (f) of the ELRA, it was proper for the High Court to set aside all remunerations accrued to the appellant up to the date of termination, arguing on this issue, Mr. Mulokozi submitted that the above section provides for the reliefs which, upon termination of employment, an employer shall pay an employee. He argued that it was improper for the High Court to set aside those statutory reliefs that were granted by the CMA in disregard of the law and without assigning any reason for doing so. Premising on what he submitted in support of this issue, the learned counsel urged the Court to allow the appellant's appeal. In reply, Mr. Zaharan commenced by adopting the written submissions to oppose the appeal. He went on to submit that it is undisputed that the contract found at page 220 of the record of appeal specifically stated the date of expiry. By referring us to exhibit C3 as it appears at page 265, he contended that the same was informing the appellant that there was an offer for an extension for three months, from 30th June, 2022 to 30th September, 2022. That the appellant never accepted the offer. In his view, the High Court correctly interpreted and applied Rule 4(1), (2), (3) and (4) of the Code. By referring us to exhibit C3, Mr. Zaharan argued that the 1s t respondent formally reminded the appellant that his fixed-term employment contract was due to expire on 30th June, 2022. The respondent simultaneously extended an offer to renew the contract for a further period of three months upon the appellant demonstrating a positive change in his conduct. The learned counsel contended that, in a letter dated 29th June, 2022 the appellant expressed his dissatisfaction with the terms of the proposed extension and unequivocally rejected the offer. That consequently, by the letter dated 13th July, 2022, the 1s t respondent confirmed that the appellant was no longer her employee and directed him to hand over to his supervisor by 19th July, 2022. The learned counsel further argued that the High Court was judicially sound and rightly set aside the CMA's award. In his view, the CMA award erroneously held that the appellant's contract was not 9 automatically terminated but was extended and terminated on 13th July 2022. According to Mr. Zaharan, the clause referred to by the appellant, which provides for renewal, was subject to satisfactory performance and availability of funds. However, as the appellant did not dispute his record of unsatisfactory performance, including repeated misconduct, in his view, the 1s t respondent was not under a legal obligation to renew the contract, which had expired on 30th June, 2022. Arguing further, Mr. Zaharan submitted that it is a legal principle that who alleges must prove; hence, in this matter, it was the appellant's duty to prove that a relationship continued beyond the expiry of the fixed- term contract. To bolster his stance, the case of James Gaty Magabe v. GUD Holdings (Pty) Limited, Civil Appeal No. 350 of 2021 was cited. He also referred us to a persuasive decision in Sebastian Jeremiah v. Kusekwa Memorial Secondary School, Labour Revision No. 13 of 2023, where the issue of renewal by default under Rule 4(3) of the Code was addressed. The learned counsel cited also our previous decision in Asanterabi Mkonyi v. TANESCO (Civil Appeal No. 53 of 2019) [2022] TZCA 96 to support his submission. Therefore, it was the learned counsel's stance that the High Court correctly found that the appellant's fixed-term contract expired on 30th June 2022 and there was no legal or factual basis to infer renewal by 10 default. That the appellant's own rejection of the proposed extension renders any claim of automatic renewal untenable in law. Premising on what he submitted, he urged us to reject this issue for being unmerited. Responding to the second issue, Mr. Zaharan argued that, the issue is fundamentally misconceived and ought to be disregarded by the Court. He submitted that the case of Mohamed Omary Magavu v. Nadir (supra) cited by the appellant is distinguishable. That, in that case, the Court outlined general principles governing valid contract formation while in the present matter, the 1s t respondent was under no obligation to prepare a fresh formal contract once the appellant had already rejected the offer. That, as evidenced in exhibit C2, the offer to extend the fixed- term contract was made via a letter, and the appellant's written reply expressing dissatisfaction and rejecting the terms constituted a clear refusal. According to Mr. Zaharan, once the offer was declined, there was no legal or practical basis for preparing a new contract. The learned counsel went on to argue that there is no evidence by the appellant that he continued working for the respondent. In his view, the Judge was right to rule out that the contract between the parties ended on 30th June, 2022, hence the appellant cannot sue for unfair termination. The learned counsel went further to state that, according to sections 2(e) and 7 of the Law of Contract Act, Cap. 345, an offer becomes binding li only when it is accepted absolutely. That an acceptance must be expressed in a usual and reasonable manner unless a particular method is prescribed. He contested that, in the matter at hand, there was no acceptance expressed or implied but rather a refusal which conclusively terminated the offer. To buttress his argument, the cases of Mohamed Omary Magavu (supra), Dotto Mwakalinga v. CRDB Bank PLC, Civil Appeal No. 214 of 2019 and Suleiman Rashid v. Salma Said Mbarouk, Civil Appeal No. 3 of 2014, were cited. Basing on what he had submitted, he implored us to dismiss the second issue for being devoid of merit. Responding to the 3r d issue, on whether, in terms of section 43(1 )(c) of Cap. 366, it was proper for the High Court to set aside reliefs of subsistence allowance, Mr. Zaharan submitted that the appellant's claim for subsistence allowance is without merit. That section 43(l)(c) of the ELRA is applicable only in circumstances where the employer terminates the employee's contract and thereafter fails to facilitate or promptly undertake the employee's repatriation to the place of recruitment, which is not the case in this matter. The learned counsel emphasized that there was no termination by the employer but rather a natural expiry of a fixed- term contract. Hence, the legal obligation to provide subsistence allowance under section 43(l)(c) of the ELRA was never triggered. To 12 support his submission, he cited the case of Gasper Peter v. Mtwara Urban Water Supply Authority (MTUWASA) (Civil Appeal No. 35 of 2017) [2019] TZCA 28. Submitting further, Mr. Zaharan stated that, in this matter, the contract expired by effluxion of time on 30th June, 2022. That there was no unilateral act of termination by the employer. Adding further, he argued that the appellant was formally instructed to hand over to his immediate supervisor the company's properties, but he refused to do so. He further contended that, the appellant failed to produce any evidence before the CMA or the High Court demonstrating that he remained at the place of work or was confined by the employer after the expiry of the contract. According to the learned counsel, the cases cited by the appellant are distinguishable. Responding to the 4th issue, Mr. Zaharan argued that, a plain reading of section 44(1) of the ELRA reveals that the terminal benefits outlined therein are payable only upon termination of employment by the employer. That in the present case, there was no such termination but rather the expiry of the appellant's contract. In his view, the appellant is not entitled to any of the terminal benefits provided under section 44(1) (a-f) of the ELRA. According to him, the High Court was correct in setting aside the monetary awards erroneously granted by the CMA due to the 13 fact that the employment relationship had lawfully ceased through expiry of the one-year contract. Mr. Zaharan stressed that no legal entitlement to the claimed benefits arose beyond the expiry date. Adding further, the learned counsel submitted that it is a well-settled principle under Tanzania Labour Jurisprudence that, in the context of a fixed-term contract, where unfair termination is established, the remedy is limited to payment of salary equivalent to the unexpired portion of the contract. To bolster his argument, he cited the cases of Peter Ng'homango v. Messa Secondary School, Civil Appeal No. 325 of 2021 [2024] T7CA 753 and Mbeya Urban Water and Sewerage Authority v. Faima Siraji (Civil Appeal No. 304 of 2022) [2025] TZCA 113. The learned counsel went further to submit that, in the present matter, the appellant's contract was neither terminated prematurely nor unlawfully but it expired naturally. He contended that, even assuming that the appellant had a valid claim, which was denied, there exists no remaining contractual period for which compensation could be claimed. He further argued that the appellant's claim for various monetary reliefs is wholly unfounded and lacks legal basis. According to Mr. Zaharan, those claims are frivolous and legally untenable. Based on what he submitted, the learned counsel urged us to find the appeal devoid of merit, and if the 14 Court finds anything to the contrary, he prayed that the Court's discretionary powers provided under section 6(2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) be invoked to revise the CMA's award. We have carefully examined the record of appeal and the memorandum of appeal and taken into account the contending written and oral submissions advanced by the learned counsel for the parties. The issue for determination at this juncture is whether the appeal has merit. In resolving this appeal, we shall dispose of the 1s t and 2n d issues conjointly, while the remaining issues will be disposed of separately. Essentially, in the 1s t and 2n d issues, the appellant faults the High Court's findings that the contract between the parties terminated automatically and that exhibits C2 and C3 were extension letters declined by the appellant. Admittedly, it is on record of this appeal that the contract of employment entered into by the parties was for a fixed term of 12 months. The contract commenced on 1s t July, 2021 and the date of its expiry was 30th June, 2022. On how a fixed-term contract can be terminated, the law under Rule 4(2) of the Code provides: "(2) Where the contract is a fixed term contract, the contract shall terminate automatically when 15 the agreed period expires, unless the contract provides otherwise." Nonetheless, sub-rule (3) of the Code provides for renewal of a fixed-term contract. The same provides: "Subject to sub-ruie (2), a fixed term contract may be renewed by default if an employee continues to work after the expiry o fthe fixed term contract and circumstances warrant it." The above position of the law has been highlighted by the Court in Peter Ng'homango v. Messa Secondary School (supra) and Asanterabi Mkonyi v. TANESCO (supra). It was Mr. Mulokozi's argument that, after the expiry of the employment contract on 30th June, 2022 the respondents retained the appellant until 13th July, 2022. That the reasons for retaining him were not explained. Under the circumstances, in his view, the contract was renewed by default. Responding to that assertion, Mr. Zaharan referred us to exhibit C3 and argued that, vide a letter dated 10th June, 2022, the 1s t respondent formally reminded the appellant that his fixed-term employment contract was due to expire on 30th June, 2022. That the respondent extended an offer to renew the contract for a further period of three months but the appellant unequivocally rejected the offer. 16 Consequently, the letter dated 13th July, 2022 was issued to confirm that the appellant's employment contract had ended on 30th June, 2022. Upon consideration of the parties' conduct in this appeal, both prior to and following the contract's expiration, we firmly conclude as follows: First, the respondents notified the appellant of the contract's termination on June 30, 2022, which serves as evidence that the fixed-term agreement remained unaltered, with no modifications to its originally agreed-upon terms and conditions. Second, any extension of the contract would only occur after a three-month probationary period from 1s t July, 2022, to 30th September, 2022, contingent upon the appellant exhibiting improved conduct. This is substantiated by Exhibit C3, a correspondence entitled "Warning for Acceptable Staff Behavior." For clarity, we wish to reproduce a part of that letter as hereunder: "This letter therefore serves as a written warning (disciplinary action) to you for your unacceptable behavior which caused offence to another employee. Considering that your attitude o f treating fellow colleagues without civility and courtesy has been registered on repetitive occasions, after expiry o fyour current Employment 17 Contract on 30 June, 2022, your contract will be extended for only three (3) months from 1st Juiy 2022 up to 3&h September 2022. Thereafter, your contract may further be renewed only upon display o f positive change in your behavior and also depending on the other provisions o f NELSAP staff contract extension ." Reading from the above excerpt, it is clear that the 1s t respondent, apart from warning the appellant, also disclosed to him the intention to keep the appellant in case he had shown a positive change of behavior. Therefore, we hold that the respondents' conduct reveals undertakings to further renewing the contract thereafter upon the appellant's positive change in his behavior. In light of the preceding analysis, we affirmatively resolve the first and second issues, finding that the High Court correctly determined that the appellant's contract ended automatically. Nevertheless, we conclude that the three-months extension provision does not amount to a proper extension of the contract. This position is grounded in the following: First, a valid contract extension would necessitate a distinct, formal written instrument that delineates explicit terms and conditions, which extends 18 beyond the purview of exhibit C3 (the warning letter) and requires execution by the parties. Second, in an effort to establish that the contract was renewed by default, the appellant cited the precedent in Asanterabi Mkonyi v. TANESCO (supra). However, our assessment reveals that this authority indicating renewal by default is inapplicable in situations where the employee rejected the preferred extension, as occurred here. To substantiate the appellant's refusal of the offer, we reference the appellant’s own testimony before the CMA at page 202 of the record of appeal, where he stated in his own words: "I was not happy with the offer o f three months because it uniiateraiiy changed the contract term from one year to three months." Further, to substitute his stand, we also note the appellant's counsel submission in this issue that he never agreed on the extension. Thirdly, the appellant contends that he held a legitimate expectation of contract renewal, predicated on having rendered services to the respondents for 13 days beyond the contractual term. This claim, however, is unsupported by any concrete evidence, such as remuneration for those extraneous days, as it was in Mbeya Urban Water and Sewerage Authority v. Faima Siraji (supra) and Peter Ng'homamgo v. Messa Secondary School (supra), wherein the 19 expectation of renewal was substantiated by demonstrating receipt of salaries for the work performed outside the contract. Unfortunately, the cited authorities are distinguishable from the instant case. Accordingly, we hold that the first and second issues are without merit. In regard to the third issue, on whether the High Court Judge was right to set aside reliefs for subsistence allowance, it was the appellant's argument that, since the High Court acknowledged that the appellant had never been repatriated to Dar es Salaam or given transport allowance, it was not proper to set aside reliefs for subsistence allowance. In reply, the respondents' counsel contended that, since there was no termination by the employer but the contract expired automatically, the respondents had no legal obligation to provide subsistence allowance under section 43(l)(c) of the ELRA. Admittedly, it is on record of this appeal at page 387 that, in its judgment, the High Court Judge acknowledged that the appellant was not repatriated to Dar es Salaam or given any means of transport of his personal effects. However, the High Court Judge set aside the relief on the subsistence expenses, which was USD 70,238, and its accruals depending on further delays. Based on our discussions and the facts of this case, we firmly believe that the appellant's employment was not terminated but rather concluded due to the expiration of his fixed-term employment contract. Given that the appellant's contract spanned from 1s t July, 2021 to 30th June, 2022, upon which it was set to expire, the provisions of Rule 4(2) of the Code apply. This rule stipulates that a fixed-term contract automatically terminates upon the expiry of the agreed period, unless the contract specifies otherwise. Likewise, the 3r d issue is answered in the affirmative. The fourth issue concerns whether the High Court Judge was justified, under section 44(l)(a)-(f) of the ELRA, in nullifying all remunerations accrued to the appellant up to the date of termination. Given that the preceding issues have been resolved in the affirmative, and considering that section 44(1) of the ELRA governs remuneration upon termination of employment, this issue requires little deliberation. We concur with the High Court Judge's finding that no termination occurred to warrant the reliefs granted by the CMA. Accordingly, we affirm the fourth issue, holding that the High Court Judge was correct in setting aside all remunerations claimed by the appellant under section 44(1) of the ELRA. In the end result, we find this appeal lacks merit and is hereby dismissed. DATED at DODOMA this 18th December, 2025. M. C. LEVIRA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered this 09th day of January, 2026 in the presence of Mr. Projestus Prosper Mulokozi, learned counsel for the appellant, Ms. Norah Marah, learned counsel for the respondents via teleconference and Mr. Magesa Fabiane Mgeta Court Clerk; is hereby certified as a true copy of the original. 22