SBC Tanzania Limited vs Leila Chilebo (Civil Appeal No. 264 of 2023) [2025] TZCA 1121 (15 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. 264 OF 2023 SBC TANZANIA LIMITED..........................................................APPELLANT VERSUS LEILA CHILEBO..................................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha) fMasara. J.) dated the 21s t day of October, 2022 in Revision Application No. 7 of 2022 JUDGMENT OF THE COURT 2n d & 15th October, 2025 FELESHI. J.A.: This appeal arises from a labour dispute between SBC Tanzania Limited (the appellant) and its former employee, Leila Chilebo (the respondent), whose employment was terminated on 29.5.2021 on allegations of fuel misappropriation and financial loss. Briefly, the facts giving rise of this appeal are that the respondent was employed by the appellant as a Store Clerk from 5.07.2019 for an unspecified term. Among of her duties was to issue fuel and sign fuel issuing receipt on requests prescribed by a fleet supervisor. 1

In February and March 2021, the appellant discovered that there was discrepancy between the amount of fuel requested and the amount of fuel filled by store clerks which caused a loss of TZS. 18,858,114.00 to the appellant. The respondent was subjected to investigation and disciplinary hearing. She all along denied the allegations. On 21.6.2021, based on the outcome of the disciplinary hearing, she was terminated from employment. Dissatisfied, the respondent challenged her dismissal before the Commission for Mediation and Arbitration (CMA), claiming it was substantively and procedurally unfair. Geofrey George Kimario, a fleet supervisor (DW1), Hussein Muhamed, assistant finance manager (DW2) and Edwin Arbogast, administrative manager (DW3), testified for the appellant, whereas the respondent (PW1), testified as the applicant. During the hearing, DW1 testified that a fuel request book had three slips. He said, while the first slip was kept by a store clerk, the second was kept by him as a fuel requesting officer and the third remained in the book. Those slips were also signed by the store clerk and a fuel recipient. He said, thirteen slips which were not signed by the respondent which were collectively admitted in evidence as exhibit D1 were subject of the allegations mounted to her and she did not assign 2

any reason why she didn't sign. In their evidence, DW2 and DW3 tendered exhibits D2 to DIO to support the appellant's case. Unlike exhibit Dl, exhibit D5 is comprised of duly signed slips. The appellant contended that the respondent did not sign exhibit Dl deliberately. On her part, the respondent denied the allegations and as exposed at page 151 of the record of appeal, attributed the operational gaps obtained in annexture Dl to DW1, the fleet supervisor. She thus beseeched the CMA to find her termination from employment was substantively and procedurally unfair. The CMA found that the termination was based on a valid reason but was procedurally unfair. It therefore, among other reliefs, awarded the respondent compensation equivalent to four months' salary. Still dissatisfied, the respondent preferred a revision before the High Court, which, while concurring with the CMA that the termination was procedurally unfair, enhanced the award from four to twelve months' salary compensation. Aggrieved by that outcome, the appellant preferred this appeal, raising four grounds of appeal:

1. That the trialjudge erred in iaw and fact by entertaining the revision application in absence o f notice o f intention to seek for revision from the respondent

2. The trial judge erred in law and fact by awarding the respondent twelve months' compensation without any justification.

3. That the trial judge erred in law and fact by failure to analyse the evidence on record that suggests the respondent had an assertion o f having no further claim against the appellant.

4. That the trial Judge erred in law and fact by disregarding that there was indeed loss occasioned by the respondent as the result o f her conduct making the termination justifiable. At the hearing of the appeal, M r. Kapimpiti Mgalula, learned advocate, appeared for the appellant, whereas, Mr. Emmanuel Sood, learned advocate, appeared for the respondent. At the outset, M r. Mgalula sought and was granted leave to abandon the third ground of appeal. Mr. Mgalula submitted in support of ground one that the High Court erred in entertaining the revision without proof of compliance with the Employment and Labour Relations (General) Regulations, 2007 G.N. No. 47 of 2017 (hereinafter G.N. No.47 of 2007) prescribing a notice of intention to seek revision (CMA. Form No. 10). He argued that Regulation 34 (1) of G.N. No. 47 of 2007 recognizes the form, and the word "shall" used renders its compliance, in terms of section 54 (2) of the Interpretation of the Laws Act, Chapter 1, mandatory.

He thus contended that the absence of the prescribed form was fatal and rendered the revision application time-barred in terms of section 92 (1) of the ELRA which required a revision to be filed within six weeks of service of the award. He said, while the award was issued on 26.11.2021, the revision application was filed on 17.1.2022 (a lapse of some 52 days). For that reason, he urged that the High Court's proceedings and judgment be struck out for being a nullity. On grounds two and four which were conjointly argued, M r. Mgalula submitted that it was common ground that the respondent occasioned loss to the appellant and that the CMA awarded four months' salary as a compensation for procedural breach. He argued, the High Court should not have increased the award to twelve months without giving reasons or demonstrating that the CMA had not exercised its discretion judiciously. He contended that the record showed the respondent had sought reinstatement in CMA Form No.l and that the High Court's approach to substitute or enhance relief without clear justification was therefore improper. He argued that since the High Court did not find violation of procedure it was barred to grant twelve months' salary compensation. Counsel referred us to Simac Limited v. TPB Bank PLC (Civil Appeal 171 of 2018) [2023] TZCA 173 in which it was observed that the issue which is not found in the pleadings and prayers 5

should not be granted. M r. Mgalula thus prayed for this Court to allow the appeal, quash the judgment of the High Court and set aside its decree. In reply, M r. Sood opposed the appellant's submission on ground one relying on the Court's decision in Guardian Limited v. Edmund Msangi (Civil Appeal No 453 of 2021) [2024] TZCA 1117, where it was held that, unlike notices of appeals, the non-compliance with CMA Form No. 10 is not necessarily fatal as it is more an administrative form facilitating the transmission of the CMA record to the High Court. He further submitted that as the appellant did not raise the time-bar point before the High Court, it is improper to raise issues of service and limitation for the first time on appeal for want of factual proof as to when the award was served. On grounds two and four M r. Sood strenuously argued that both the CMA and the High Court had found there was a valid reason for termination while the procedure was defective, and that the High Court properly exercised its discretion under the Employment and Labour Relations Act, Chapter 366 (the ELRA) in awarding compensation commensurate with the procedural breach and other considerations. He submitted that the four months' award granted by the CMA was beyond

the discretion conferred on it, hence reassessment for the appropriate remedy made by the High Court under, by then, section 40 (1) (c) of the ELRA. He contended that the High Court was guided by the relevant jurisprudence that, when there is procedural unfairness in termination of employment, the compensation must not be below twelve months. He further argued that the respondent's admission of loss, if any, did not mean to disentitle her to compensation for the procedural unfairness during her termination from employment. Finally, Mr. Sood implored the Court to dismiss the appeal and uphold the High Court's decision. We have keenly followed the parties' counsels' submissions and considered the record and the law. The main issue before us is whether the appeal has merit. To resolve it, we will address the appellants grounds in the order they have been argued. The appellant's main complaint in ground one is that the revision was conducted without observance of the regulation prescribing a notice of intention to seek revision (CMA Form No. 10). The respondent's counsel strongly objected the appellant's contention arguing that CMA Form No. 10 serves administrative purpose only. 7

On our part, as correctly submitted by the respondents' counsel, we wish to underscore that as long as the governing law has not changed, this Court is not prepared to find that CMA Form No. 10 can be equated to the notice of appeal but rather as we held in the Guardian Limited v. Edmund Msangi (supra), the Form is equivalent to an official calling for record from the CMA to the High Court. In that case a similar contention was raised and in clarifying the requirements in filing a revision to the High Court, we reasoned and settled that: "... CMAF10 made under the GN No. 47 o f 2017 and the LCF4 made under the GN 106 o f 2007 are different and serve different purpose. LCF4 is a notice o f application which is filed before the revisional court and as such it is a necessary part and parcel o f the application for revision. Rule 24 (1) (2) o f the GN No. 106 o f2007 mandatory requires that a party wishing to make any application for labour revision before the High Court, must initiate the process by lodgment o f notice o f application in a form o f LCF4. In other words, LCF4 initiates the application for the revision before the High Court Labour Division.... CMAF 10 is filed before the CMA with the purpose o f prompting the CMA to forward certified copies o f the proceedings, judgment\ and decree or order to the High Court Labour Division.... It is not a document whose absence ousts 8

the jurisdiction o f the High Court Labour Division or vitiates the proceedings. "[Emphasis supplied.] In view of the above, with due respect to Mr. Mgalula, we decline his submission that the High Court lacked jurisdiction to determine the impugned revision application for want of CMA Form No. 10. On whether the revision application was time-barred, we agree with the counsel for the appellant that section 91(2) prescribes the time limit within which a revision of a CMA award must be instituted in the High Court to be six weeks from the date the award was served. Whether that period was complied with depends on facts, specifically, when the respondent was served with the CMA award. The record before us does not clearly establish on what date service to the parties was effected, the award entry merely indicates "copy to the complainant and respondent" without more precision as to the date of service or the persons present when it was issued. In view of the above position obtained from the appeal record, this Court cannot make a factual finding on service for the first time on appeal. It is settled that issues of fact which require evidential proof should ordinarily be determined in the first instance by the trial or revision court. This is the spirit of section 57 of the Labour Institutions Act, Chapter 300. See- Ladislaus S. Ngomela v. The Treasury 9

Registrar & Another (Civil Appeal 66 of 2022) [2022] T7CA265. For these reasons we decline to entertain the time-bar point raised for the first time on appeal. We therefore find that the time-limit contention cannot succeed. To that end, the entire ground one of appeal lacks merit and we dismiss it. On grounds two and four which faults the High Court decision to enhance the award of compensation from four months' salary awarded by the CMA to twelve months, the appellant's counsel argued that the High Court did not assign reasons for its decision and did not consider the loss the respondent had occasioned to the appellant which based the CMA's award. Going by the record, it is common ground that both the CMA and the High Court put into consideration of the then section 40 (1) (c) of the ELRA which guided in awarding a compensation for unfair termination. The provision provided: "40.-(1) Where an arbitrator or Labour Court finds a termination is unfair, the arbitrator or Court may order the emp/oyer- (c) to pay compensation to the employee o f not less than twelve months remuneration." This provision was interpreted to mean that twelve months remuneration was awarded upon the discretion of a court. An awarding 10

court, may also award lesser especially where unfair termination was proved only on procedural aspect. We held this in Felician Rutwaza v. World Vision Tanzania (Civil Appeal No. 213 of 2019) [2021] TZCA 2 where we confirmed the High Court decision holding that: "The learned Judge discussed the remedies flowing from unfair termination in the light o f section 40 (1) (c) o f the ELRA and held (at page 225 o f the record) that it is not mandatory that in aii cases o f unfair termination, the arbitrator should order compensation o f not less than 12 months' remuneration. In the context o f the case in which the unfairness o f the termination was on procedure only, guided by some decisions o f that court, the learned Judge reduced compensation from 12 to 3 months. With respectwe agree with her entirely.. /'[Emphasis added] In the matter under our consideration, the basis of the appellant's complaint is the High Court observation at page 300 of the record of appeal where it held that: "Lastly it is noted that the CMA Arbitrator awarded compensation o f four months only. He did not allude to the grounds that necessitated him to award less compensation than the one that the law i i

prescribes. That was not appropriate. Section 40 (1) (c) o f the ELRA specifically provides that once termination is found to be unfair on procedural grounds, the Applicant is entitled to compensation o f not less than twelve months- remuneration. "[Emphasis added.] It is evident from holding above that the High Court enhanced the compensation from that awarded by the CMA on the ground that the CMA did not assign reason for awarding lesser compensation than that provided under the then section 40 (1) (c) of the ELRA. Nonetheless, the CMA's award found at page 166 of the record of appeal speaks by itself, the original being the Kiswahlli version that: "Hata hivyo kwa kuwa Tume imejiridhisha kuwa mlalamikiwa hakufuata utaratibu katika kusitisha Ajira ya mlalamikaji, kifungu cha 40 (1) (c) cha sheria ya Ajira na Mahusiano kazini kama kilivyofanyiwa marekebisho mwaka 2019 kinampa mamtaka muamuzi kuweza kuamuru fidia ya mishahara isiyopungua miezi 12 kulipwa na mwajiri kwa mwajiriwa au mlalamikaji. Tume kwa kuzingatia kuwa mwajiri au mlalamikiwa alikuwa na sababu halali ya kusitisha ajira ya mlalamikaji na amepatwa na hasara kubwa ambayo mlalamikaji na mwezake mtumishi wa 12

store ndiyo chanzo chake kwa utendaji wao wa kazi, Tume inaamuru mlalamikiwa kumlipa mlalamikaji fidia ya mishahara ya mieziminne ."[Msisisitizo umeongezwa.] This can literally be translated in English as that: "However, since the Commission is satisfied that the respondent did not follow the proper procedure in terminating the complainant's employment, section 40 (1) (c) o f the Employment and Labour Relations Act, as amended in 2019, empowers the arbitrator the authority to order compensation o f not less than twelve months' salary to be paid by the employer to the employee or complainant. Taking into account that the employer or respondent had a valid reason for terminating the complainant's employment, and has suffered significant loss for which the complainant and his colleague, the store employee, were the cause due to their work performance, the Commission orders the respondent to pay the complainant compensation equivalent to four months' salary. "[Emphasis added.] From the above excerpts, we hold a view that, the reason assigned by the CMA on awarding the respondent four months' salary 13

compensation had escaped the attention of the High Court. This is because, as it reads above, the CMA in granting its award considered the quantum of the loss (hasara kubwa) the employer had suffered from the employee who was subject of the compensation award. Therefore, we are settled in our minds that the CMA judiciously awarded the four months' salary remuneration to the respondent. That was after it had found that the respondent's termination was on valid reason but procedurally unfair and paid regard to the applicable law by then. In our view, this reasoning confirmed the rule we alluded in the Felician Rutwaza v. World Vision Tanzania (supra). Furthermore, we are of the view that, if the revisional High Court had different view distinct from that advanced by the CMA it would have applied its discretion judiciously (giving reasons) in enhancing the compensation. This is because, the law by then allowed an arbitrator or a judge to discretionally award less than twelve months provided under section 40 (1) (c) of the ELRA when a termination is held had valid reasons but procedurally unfair. Under the circumstances, we are inclined to accede to the appellant's complaint that the revisional Judge erred in law to award the respondent twelve months' compensation without any justification. Guided by the discussion above and the record 14

of appeal, we hereby allow the second and fourth grounds which were conjointly argued by the parties. With what we have endeavoured to discuss, we partly allow the appeal to the extent stated above. Consequently, we quash the High Court's decision on enhancing the compensation to 12 months' salary remuneration and set aside the order. We thus, restore the four months' salary remuneration to be enforced along with other reliefs granted by the CMA which were not disturbed by the High Court. This being a labour dispute, we make no order to costs. DATED at ARUSHA this 15th day of October, 2025. The Judgment delivered this 15th day of October 2025 in the presence of Mr. Kapimpiti Mgalula, learned counsel for the appellant also holding brief for Mr. Emmanuel Sood, learned counsel for the respondent and Mr. Musa Amry, Court Clerk; is hereby certified as a true copy of the B. M. A. SEHEL JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL