SOS Children's Village Tanzania vs Given Kessy (Civil Appeal No. 72 of 2023) [2025] TZCA 1128 (16 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: SEHEL, J.A., MAKUNGU, J.A. And FELESHI. J.A.^ CIVIL APPEAL NO. 72 OF 2023 SOS CHILDREN'S VILLAGE TANZANIA ...................................... APPELLANT VERSUS GIVEN KESSY....................................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha) (Gwae^J.) dated the 11th day of October, 2021 in Labour Revision No. 62 of 2020 JUDGMENT OF THE COURT 7 th & 16th October, 2025 FELESHI. J.A.: This appeal assails the judgment and decree of the High Court of Tanzania at Arusha in Labour Revision No. 62 of 2020 which revised the award of the Commission for Mediation and Arbitration for Arusha Zone (the CMA) in Labour Dispute No. CMA/ARS/19/147/19 which found the respondent's termination was substantively and procedurally fair. The brief facts giving rise to this appeal are that, on 1.6.2010 Given Kessy (the respondent) was employed by the appellant, SOS Children's Village Tanzania, an organization providing child welfare i

services, as a Social Worker under a renewable one-year contract. He was later promoted to Programme Officer and served until 11.4.2019 when his employment was terminated. The termination was grounded on alleged misconduct namely, gross negligence leading to the theft of the appellant's motorcycle with Reg. No. MC 670 ANC from his residence, unauthorized use of the same, and breach of organizational rules. The respondent denied the accusations, maintaining that he had been parking the motorcycle at home with the appellant's knowledge since 2014. Following a disciplinary hearing, he was found guilty and terminated. Dissatisfied, he referred the dispute to the CMA, claiming his termination was both substantively and procedurally unfair. The CMA dismissed his complaint on 23.07.2020, holding that he was fairly terminated. On revision, as aforesaid, the High Court overturned the CMA's decision. It set aside the award and granted the respondent remedies including salary for the unexpired contract period, repatriation costs, and subsistence allowance equivalent to one month's salary. Aggrieved, the appellant lodged this appeal raising five grounds reproduced below:

1. That, the High Court Judge erred in law and fact for proceeding to revise and set aside the CMA's Award on merit, without taking accord that the CMA's proceedings were tainted with stringent illegalities that vitiated them entirely.
2. That, the High Court Judge erred in law and fact for failing to meticulously assess and examine the propriety o f the proceedings o f the CMA regard being to the fact that the testimonies o f all witnesses viz. (DI/VI, DW2, PW1) were received without taking oath or affirmation.
3. That, the High Court Judge erred in law and fact for failing to diligently scrutinize the propriety o f the proceedings o f the CMA, considering that the Learned Arbitrator erred in law by omitting/or failing to affix a signature at the end o f the testimony o f each witness and for not holding that it was a fatal irregularity that nullifies the entire proceeding o f the CMA.
4. That, the High Court Judge erred in law and fact for revising and setting aside the CMA's Award by relying on the evidence and testimonies o f the Respondent (PW1); taking note that his testimonies were received without taking an oath.
5. That, the High Court Judge erred in law and fact in holding that the Respondent's plea o fguilty was equivocal, thus the Appellant ought to have conducted the prerequisite investigation on the alleged disciplinary offences.

At the hearing of the appeal, the appellant was advocated for by M r. Stephen Mosha, learned advocate, whereas the respondent appeared in person, unrepresented. Both parties had filed their written submissions. Before the hearing of the appeal could commence in earnest, for convenience purposes we invited the parties to first address the Court on 1s t, 2n d and 4th procedurally based grounds of appeal above. M r. Mosha briefly expounded the 1s t, 2n d and 4th grounds jointly as they revolved around the legality of the CMA proceedings for recording witnesses' evidence without administering oath or affirmation. He contended that the CMA proceedings were a nullity because the evidence of DW1, DW2 and PW1 was received without administering oath or affirmation, contrary to rules 25 (1) and 19 (2) (a) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, G.N. No. 67 of 2007 (the G.N. No. 67 of 2007); and, section 4 (a) of the Oaths and Statutory Declarations Act, Chapter 34 (the Oaths and Statutory Declaration Act). He argued that the omission to administer oath vitiated the entire proceedings. To reinforce his argument, he cited the case of Iringa International School v. Elizabeth Post, (Civil Appeal 155 of 2019)

[2021] TZCA 496; Tanzania Portland Cement Co. Ltd v. Ekwabi Majigo, (Civil Appeal 173 of 2019) [2021] TZCA 443, Catholic University of Health & Allied Science (CUHAS) v. Epiphania Mkunde Athanase (Civil Appeal 257 of 2020) [2020] TZCA 1890, Otter Mining United v. Majengo Athuman Mohamed (Civil Appeal No. 493 of 2022) [2025] TZCA 695 and Richard Nyarugenda & Others v. Airtel (T) PLC (Civil Appeal No. 428 of 2022) [2025] TZCA 831. In the end, M r. Mosha urged the Court to quash both the CMA and High Court proceedings and remit the matter to the CMA for a trial de novo. Replying to the arguments raised by M r. Mosha in respect of the 1s t, 2n d and 4th grounds of appeal and based on his written submissions, the respondent denied the witnesses having testified without oath. He contended that each witness was first asked of his or her personal particulars before giving evidence the step which preceded the administration of his/her oath. He argued that failure to record the word "oath" in the typed proceedings was a clerical error. Relying on the case of Tanzania Distillers Ltd v. Bennetson Mishosho, (Civil Appeal 382 of 2019) [2022] TZCA 838, the respondent

submitted that any omission to record the oath was a mere irregularity curable by the overriding objective, as it did not prejudice the appellant. He thus prayed for the dismissal of the appeal. We have carefully examined the record of appeal, the written submissions by the parties and the authorities they cited. The determination of this appeal turns on whether the omission to administer oath or affirmation to Peterson Joseph (DW1), Victor Wilson Nyahoga (DW2), and Given Kessy (PW1) rendered the proceedings of the CMA a nullity. It is not disputed that the CMA record appearing from pages 221 to 261 of the record of appeal does not indicate that the said witnesses were sworn or affirmed before testifying. Specifically, DW1 on page 221; DW2 on page 241; and PW1 on page 261 show that their particulars, including their respective religions (Christian) were recorded but without any indication of giving oaths or affirmation. Therefore, DW1, DW2 and PW1, who were only witnesses for the appellant and respondent, respectively, gave their testimonies without oath. The respondent's assertion that they were sworn in, but what goes missing on record is a mere clerical omission, is not supported by any material on record. This Court observed in Copycat Tanzania Limited v. Mariam Chamba 6

(Civil Appeal No 404 of 2020) 2022 TZCA 107 that, when the law expressly requires witnesses to testify under oath, failure to administer it deprives their evidence of evidentiary value. Failure to administer an oath contravenes rule 19 (2) (a) of the G.N. No. 67 of 2007 which confers power upon the arbitrator "to administer an oath or accept an affirmation from any person called to give evidence." It provides that: "(2) The powers o f the Arbitrator include to- (a) administer an oath or accept an affirmation from any person called to give evidence" Similarly, rule 25 (1) of the same G.N. provides in mandatory terms that: "The parties shall attempt to prove their respective cases through evidence and witnesses shall testify under oath..." [Emphasis added] The import of the above provisions is that evidence taken without administering an oath or affirmation is legally incompetent. The Court underscored in several of its decisions, including Copycat Tanzania Limited v. Mariam Chamba (supra), Iringa International School v. Elizabeth Post (supra); Tanzania Portland Cement Co. Ltd v. 7

Ekwabi Majigo (supra); Catholic University of Health & Allied Science (CUHAS) v. Epiphania Mkunde Athanase (supra), that such omission renderes the entire proceedings a nullity because it offends a mandatory legal requirement grounded not only in the labour procedural guidelines but also in sections 2 and 4 of the Oaths and Statutory Declarations Act. We are alive to the respondent's reliance on Tanzania Distillers Ltd v. Bennetson Mishosho (supra) where the Court held that in exceptional circumstances, unsworn evidence may be treated as a curable irregularity. However, that case is clearly distinguishable. The omission in that case concerned only one witness (PW1), and the Court was guided by the unique circumstances prevailing at that pertinent matter, including the need to preserve substantial justice following the fact that the witness whose evidence was subject of that omission had not prejudiced the parties' rights. In the present case, all witnesses who testified before the CMA, namely DW1, DW2 and PW1, were not sworn or affirmed. The omission was therefore not an isolated lapse but rather a systemic failure that went to the root of the arbitration proceedings and its resultant award. We hold that such a fundamental breach cannot be salvaged by invoking

the overriding objective or the principle against technicalities as suggested by the respondent. The provisions of rule 25 (1) of the G.N. No. 67 of 2007 and section 4 of the Oaths and Statutory Declarations Act are mandatory and not merely procedural niceties that can be waived. We are of the considered view that adherence to the oath requirement in labour proceedings is indispensable to ensure the veracity and credibility of evidence, safeguarding the sanctity of judicial proceedings, and upholding public confidence in the administration of justice. To hold otherwise, in our view, would open the floodgates to unverified testimonies and undermine the statutory design that guarantees fairness and integrity in our adjudicatory processes. For that reason, we find merit in the 1s t, 2n d , and 4th grounds of appeal. Consequently, the unsworn testimonies of DW1, DW2 and PW1 vitiated the proceedings and award of the CMA and render it a nullity. Consequently, we invoke the provisions of section 4 (2) of the Appellate Jurisdiction Act, Chapter 141 to revise and nullify the proceedings of the CMA and quash its resultant award as well as the proceedings and judgement of the High Court of Tanzania in Labour Revision No. 62 of 2020, and we set aside its resultant decree. We 9

further order the record be remitted to the CMA for Arusha Zone for the dispute to be heard afresh before another arbitrator, in strict compliance with the law. Being a labour dispute, we make no order as to costs. DATED at ARUSHA this 16th day of October, 2025. B. M. A. SEHEL JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 16th day of October, 2025 in the presence of M r. Stephen Mosha, learned counsel for the Appellant, Respondent in person and M r. Musa Amry, Court Clerk; is hereby certified as a true copy of the original. t * ’’" ' - ' v X MYWAFU D. P . KI | DEPUTY REGISTRAR J ZI COURT OF APPEAL S I j&jl 10