Geita Gold Mining Limited vs Kilimani Dotto Richard (Civil Appeal No. 575 of 2023) [2025] TZCA 1106 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: KOROSSO, J.A. KENTE. J.A. And KHAMIS, J.A.1 CIVIL APPEAL NO. 575 OF 2023 GEITA GOLD MINING LIMITED .................... ......................... APPELLANT VERSUS KILIMANI DOTTO RICHARD .................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division at Mwanza) (Robert, J.j dated the 16th day of September, 2022 in Labour Revision No. 33 of 2021 JUDGMENT OF THE COURT 8th & 15th October, 2025 KHAMIS, J.A.: This appeal arises from the decision of the High Court of Tanzania, Labour Division at Mwanza (the High Court) which overturned the decision of the Commission for Mediation and Arbitration (the CMA) at Mwanza and effectively condoned the time for the respondent to lodge a dispute to the CMA against his employer, the appellant. The facts of the case which led to this appeal reveal that, on 28t h March, 2012 the respondent was employed by the appellant as a security guard in its security department. On 16thJuly, 2015 he was suspended from

work pending investigation in respect of the alieged breach of the code of conduct. On 15th October, 2015 the respondent successfully sought a one- day permission to escort his child for treatment in Bugando Referral Hospital, Mwanza. The appellant paid him the requisite travel allowance and after the treatment, he reported back to the employer. On 4th November, 2015 the respondent received a termination letter titled a reply to your appeal. The letter referred to the respondent's letter of 30th July, 2015 in which he challenged the findings of the disciplinary committee which terminated his employment contract for breach of the code of conduct. However, the termination letter was dated 8th September, 2015. On 12th November, 2015 the respondent filed the CMA Form No. 7 applying for condonation of late referral of the dispute to the CMA. The form was accompanied by an affidavit sworn by the respondent giving out the reasons for condonation. In paragraph 4 of the affidavit, the respondent stated that, immediately after receiving the termination letter, he consulted the branch office of the Tanzania Minerals Commission (TAMICO), a trade union for workers in the mining, construction, energy and allied sectors for legal assistance. The TAMICO branch communicated with the zonal office in Mwanza with a view to assist him with legal representation, hence the delay.

The respondent contended at the CMA that he had a reasonable prospect of success in the intended labour dispute because his termination was substantively and procedurally unfair. The appellant filed a counter affidavit sworn by one Kashindye Kichanja, a lawyer and public relations officer with the appellant company. He challenged the application for condonation alleging that, the respondent was terminated on 8th September, 2015 and the reasons advanced were not justified. In a reply to the counter affidavit and the final submissions lodged at the CMA, the respondent reiterated his earlier averments and questioned the reasonability of the alleged termination of 8th September, 2015. He advanced that, the employer's permission and payment of allowance to enable him escort his child for treatment in Bugando; the handover of the company's properties and the mandatory health checkup at the appellant's clinic on 4th November, 2015 proved that, his termination was on 4th November, 2015 and not 8th September, 2015. On 3r d February, 2016 the CMA (Esther Kimaro, Mediator) delivered a ruling dismissing the respondent's application for condonation on the ground that, he failed to produce evidence showing that he received the termination letter on 4th November, 2015. Further, the Mediator said the respondent

failed to follow up with the appellant on the reasons for the alleged payment of TZS 1,255,858.87 into his bank account on 17th September, 2015. Aggrieved, the respondent moved the High Court to revise the proceedings, decision and order of the CMA and make an order quashing them on the ground that the mediator misdirected herself in law and facts in failure to consider the reasons for delay and ultimately declined to grant the application for condonation based on unjustified reasons. The High Court (Robert, J) found the respondent was eight (8) days late in filing his application for condonation. It further found the said period of 8 days was not too excessive in the circumstances of the case. It also faulted the CMA for failure to consider the evidence presented by the respondent justifying the reasons for condonation. In concluding that the respondent had a good reason for condonation the High Court considered that he was dissatisfied with the decision of the disciplinary committee and unsuccessfully presented his appeal to the higher authority which decided to terminate his services on 8th September, 2015. It faulted the appellant for failure to timely communicate the decision to terminate the respondents services until on 4th November, 2015, a fact that was not disputed by the appellant. In this regard, the learned Judge held that: 4

'From those facts, lam constrained to hold that the applicant had a good reason for the delay as there was no way he could have known or become aware that he had been terminated except through formal communication o f the results o f his appeal\ Since he was served and became aware o f the termination on 4h November, 2015, then he was eligible for condonation as it only took him eight days after being notified o f the termination to lodge his application before the CMA." Disgruntled by the judgment and decree of the High Court, the appellant approached this Court with one ground of appeal faulting the learned Judge for failure to exercise his discretion judiciously when he condoned the alleged inordinate delay of filing the dispute at the CMA. At the hearing of this appeal before us, the appellant was represented by Mses. Marina Mashimba and Elizabeth Karua, learned advocates, while the respondent enjoyed the legal representation of Mr. Akram Adam, also learned advocate. At the outset, Mr. Adam successfully sought leave of the Court to withdraw the notice of preliminary objection he had earlier on filed challenging the competency of the appeal on the ground that, it was based on an interlocutory decision of the High Court which did not determine the

rights of the parties as per section 8 (2) (d) of the Appellate Jurisdiction Act, Cap 141 R.E 2023 (the A3A). In support of the appeal, Ms. Mashimba adopted the written submissions earlier on filed by the appellant's Finance Department, Legal Section in terms of rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). She contended that, in determining the application for condonation, the learned Judge did not address himself on rule 11(3) of Government Notice No. 64 of 2007 which required him to consider the degree of lateness, the reasons for the lateness, its prospect of succeeding with the dispute and obtaining the relief sought against the other party, any prejudiced the other party and any .other relevant factor. She referred us at pages 83 and 84 of the record of appeal and argued that, had the learned Judge considered the contents of CMA Form No. 7, the facts deposed by the appellant in the counter affidavit filed at the CMA and before the High Court, he would have not condoned the delay. Further, Ms. Mashimba referred us to page 89 of the record of appeal where a counter affidavit deposed by Kashindye Kichanja in Labour Revision No. 33 of 2021 featured. She additionally referenced pages 92, 93, 94, 95, 96, 97 and 98 of the record which exhibited the disciplinary hearing form and the typed minutes of a disciplinary hearing of 22n d July, 2015.

Relying on the disciplinary form and the typed minutes of the disciplinary proceedings, the learned counsel contended that, the respondent pleaded guilty to the charge against him in the disciplinary hearing such that there were no prospects of success in the labour dispute, a fact that was not considered by the learned Judge. Lastly, the learned counsel faulted the High Court Judge for not considering whether the respondent accounted for each day of the delay. She cited the cases of Nyanza Road Works Limited v. Giovanni Guidon [2021] TZCA 396 and Mtengeti Mohamed v. Blandina Macha [2023] TZCA 17328 for the proposition that, equity aids the vigilants and not the indolents. On that basis, she asserted that, the respondent rested on his legal right to lodge a dispute at the CMA such that his delay could not be protected under the law. She urged us to allow the appeal and reverse the impugned judgment and decree of the High Court in favour of the appellant. In response, Mr. Adam adopted the written submissions earlier on filed on behalf of the respondent and exercised the right to highlight them. He referred us to G. N No. 64 of 2007 and contended that, the learned High Court Judge properly exercised his discretion in granting the application for condonation.

The learned counsel referred us to the respondent's affidavit at page 33 of the record and contended that, the respondent disclosed the reason for delay and accounted for it at paragraph 4 thereof. He submitted that, the learned Judge was justified to find that, in the circumstances of this case, the delay of 8 days was not inordinate as alleged by the appellant. He insisted that, in so holding, the Judge took into account the parties affidavit, counter affidavit and reply to the counter affidavit plus other documents on record. . On the prospects of success, the learned counsel for the respondent referred us to pages 90, 91, 92, 93, 94 and 95 of the record of appeal and contended that, the documents relied upon by the appellant did not show that the respondent pleaded guilty to the charges as alleged or at all. He admitted that, the Judge did not address himself on the prospects of success but he was quick to state that, by implication, the impugned decision considered the factors stated in rule 11 (3) of the G.N No. 64 of 2007. Mr. Adam distinguished the cited cases of Nyanza Road Works and Mtengeti Mohamed (supra) on the ground that, the respondent's conduct demonstrated that he did not seat on his rights as he took several steps to challenge the unfair dismissal. To cement his assertion, he referred us to 8

page 33 of the record of appeal. Finally, the learned counsel urged us to dismiss the appeal for want of merits. On rejoinder, Ms. Karua reiterated the appellant's earlier submissions and maintained that, the learned Judge did not exercise his discretion judiciously. She referred us to pages 41, 42 and 43 of the record where Kashindye Kichanja deposed a counter affidavit in opposition to the respondent's application for condonation which was allegedly not considered by the Judge. The learned counsel contended that, the Judge did not explain as to why the 8 days' delay was not inordinate. She thus, invited us to allow the appeal. 1 »■* --■is ; We have considered the learned counsel rival submissions alongside the record of appeal and the applicable provisions of the law. The main issue for determination is whether the learned High Court Judge acted judiciously in allowing the application for condonation. In terms of rule 10 (1) of the Labour Institutions (Mediation and Arbitration) Guidelines, G. N No. 64 of 2007, a referral of a dispute about the fairness of an employee's termination of employment to the CMA must be referred within thirty days from the date of termination or the date that the employer made a final decision to terminate or uphold the decision to terminate.

The CMA may, however, condone the non-observance of the timeframe prescribed upon good cause being shown by the applicant. The burden of showing the existence of good cause in an application for condonation rests with the applicant. This entails satisfying the CMA five requirements outlined under rule 11 (3) of G.N No. 64 of 2007, thus: "11 (3) An application for condonation shall set out the grounds for seeking condonation and shall include the referring party's submissions on the following: a) The degree o f lateness; b) The reasons for the lateness; a c) Its prospects o f succeeding with the dispute and obtaining the reliefsought against the other party; d) Any prejudice to the other party; and e) Any other relevant factors ." It is trite law that in considering an application for condonation, the CMA exercises a discretion which has to be exercised judiciously premised on all the relevant factors. It should also be noted that an appellate court cannot simply interfere with the lower court's discretionary power, unless the lower court manifestly erred in its exercise of such powers. In Tofiki Juma v. Republic [2015] TZCA 410 this Court pointed out that: 10

"The second principle is that,, like in all cases o f exercise o fjudicial discretion before interfering with the exercise o f the lower court's or tribunal's exercise o f discretion, this Court may only do so on well settled principles, which are, that the Court must be satisfied that the decision is clearly wrong due to misdirections, or because the lower court or tribunal acted on matters on which it should not have taken into consideration and in doing so, arrived at a wrong conclusion." Thus as a general principle, the High Court would not be entitled to interfere with the exercise of discretion by the CMA solely on the basis that it does not agree with the decision made. It is however, entitled to interfere -.p; t . with the decision of the CMA where it has been shown that the CMA failed to exercise its discretion judiciously. As the law stands, the CMA exercises its discretionary power to grant condonation for the late filing of an employee's termination of employment in terms of rule 11 (3) of G : N No. 64 of 2007. Accordingly, the test to apply on appeal by the High Court is whether the CMA in exercising such powers, acted outside its jurisdiction, failed to consider relevant factors, or took irrelevant-matters into account. The High Court may also interfere if the decision is so unreasonable that no reasonable authority could have reached l i

it or committed a misdirection, or an irregularity or exercised its discretion improperly or unfairly. The approach to adopt in determining whether good cause has been shown to justify the granting of condonation entails consideration of all the relevant factors outlined under rule 11 (3) of G. N No. 64 of 2007. These factors must not be considered in isolation. The overriding consideration in such application for condonation is the substantial justice meaning the CMA will balance the reason for the delay against the prejudice to the other party and the merits of the case. In determining whether the CMA acted judiciously, the High Court considered the reasons given by" the mediator in declining condonation, namely: the respondent was aware of his termination since he was paid terminal benefits on 17th September, 2015; and the respondent did not produce evidence that he was served with the termination letter on 4th November, 2015. The Judge analyzed each, of these two reasons and differed with the reasons recorded in pages 17 and 18 of the record. In our reading of the impugned judgment, we noted that' the Judge reproduced rule 11 (3) of the G. N No. 64 of 2007 and addressed the first two and the last requirements under the rule, namely: the degree of lateness, reasons of lateness and any other relevant factors but ignored the

other two conditions: the prospects of succeeding with the dispute and obtaining the relief sought against the appellant and any prejudice to the appellant. For that reason, we shall step into the shoes of the High Court and do the needful. On the prospects of success, the affidavit in support of the application stated generally that, the confusion on the date of termination was itself a relevant factor that attracted a decision of the CMA. The respondent further deposed that, the termination was substantively and procedurally unfair because he was suspended from work while on safari in Mwanza. However, the counter affidavit deposed by Kashihdye Kichanja shed more light. He deposed that the respondent was charged with the offence of dishonest, major breach of trust, dishonest in performance of duty and collusion in or assisting others to unlawfully obtain the company's properties. Upon arraignment in' the disciplinary committee, the respondent allegedly pleaded guilty to all the charges. • Our examination of the documents attached to the counter affidavit did not show any plea of guilty in the real sense. The hearing fornrafipage 94 of the record recorded the chairperson's findings based ori the evidence presented as: "admitted guilty for all the charges" The columns for the summary of evidence and the main points of evidence on the appellant's 13

side were shown at page 93 of the record where nothing was recorded. The respondent did not sign anywhere on the document to prove that he pleaded guilty to the charges levelled against him. Again, the alleged minutes of a disciplinary hearing at pages 95, 96, 97 and 98 of the record were not signed by the respondent or any other person who attended the alleged disciplinary hearing. We cannot say much on these factual issues which call for determination of the CMA where parties can lead their respective evidence. In the circumstances and without going to the merits of the intended dispute, the prospects of success have been sufficiently demonstrated to allow the condonation.. Regarding the prejudice, the counter affidavit did not show how the appellant would be prejudiced if the respondent was granted condonation to present his dispute at the CMA where ■ both parties will have the opportunity to present their respective cases and lead relevant evidence, if any. Having considered all these factors including.' the High Court's determination of the other three requirements whose findings, in our view, are correct, we find that, in the interest of justice, the respondent's application for condonation should be granted. 14

In the result, we are satisfied that the appeal has no merit and we hereby dismiss it in its entirety. On this basis, the decision of the High Court is upheld. This being a labour matter, we make no order as to costs. DATED at MWANZA this 14th day of October, 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 15th day of October, 2025 in the presence of Miss Marina Mashimba, learned counsel for the appellant and Mr. Akram Adam, learned Counsel for the Respondent and Miss Harida Hamisi, the Court Clerk; is hereby certified as a true copy of the original. 15