Impala Warehouse & Logistics (T) Ltd vs Samwel Kayombo & Others (Civil Appeal No. 18 of 2022) [2025] TZCA 948 (9 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL. J.A.. KHAMIS. J.A. And AGATHO. J.A.^ t CIVIL APPEAL NO. 18 OF 2022 IMPALA WAREHOUSE & LOGISTICS (T) LTD ........................ APPELLANT VERSUS SAMWEL KAYOMBO......................................................1 st RESPONDENT KUZWA HAJI NYAMBI..................................................2 nd RESPONDENT FRANCIS NYAMBI ............ . .......................................... 3 rd RESPONDENT ROBERT MAYOLERA.....................................................4™ RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division, at Dar es Salaam) (Arufani. J.^ dated the 22n d day of October, 2021 in Labour Revision No. 220 of 2020 JUDGMENT OF THE COURT 11th March, & 9th September, 2025 SEHEL. J.A.: The respondents, in this appeal, were employees of the appellant, Impala Warehousing & Logistics (T) Ltd. They were employed on diverse dates as warehouse administrators in a position known as tally clerks and worked in that position until termination on 31s t December, 2015 on ground of gross misconduct. It was alleged that they breached the confidentiality clause of their employment contract by divulging the appellant's confidential information to the i

Guardian newspaper of 25th November, 2015 contrary to clause 20 of their employment contracts and Company's code of business. It was the appellant's case that, without permission from the management, the respondents informed the media on their intention to conduct an illegal strike, and that, they exhibited gross insubordination to the management by failing to receive the show cause notice. On the other hand, the respondents denied breaching confidentiality clause and maintained that their termination was unjust. In that respect, they filed a complaint before the Commission for Mediation and Arbitration at Dar es Salaam (the CMA), CMA/DSM/TEM/35/2016 seeking for compensation of 15 months' salary, one month's salary in lieu of notice, severance allowance and payment for breach of contract of employment for expected income until retirement age. After completion of the preliminaries, both parties appeared for mediation, which was unsuccessful. Hence, the dispute was referred for arbitration. In its findings, the CMA was satisfied that the termination of the respondents' employments was both substantially and proceduraiiy unfair. It held that there was no valid reason for the respondents' termination as the appellant failed to establish and prove the confidential information divulged to the media. It further held that the 2

information published by the Guardian Newspaper was an intention of the respondents to strike which could not be termed as the appellant's confidential information. Regarding the procedure, the CMA noted that the appellant properly conducted and complied with the disciplinary hearing. At the end, it awarded each of the respondents compensation of twelve months' salaries, one month's notice and severance allowance. Dissatisfied with the award, the appellant filed an application for revision in the Labour Court raising three grounds which were later on consolidated as one. Essentially, the appellant faulted the CMA for failure to consider DWl's re-examination on whether the information was confidential or not thus, arrived at an improper conclusion. After hearing the parties, the Labour Court concurred with the CMA's Award that the termination of employment of the appellant was substantially unfair and that the procedure was fair. Accordingly, the Labour Court dismissed the application by upholding the CMA's award. Still aggrieved, the appellant filed the present appeal. In the memorandum of appeal, the appellant listed three grounds, which we shall not reproduce for a reason shortly to be apparent. It suffices to point out here that, pursuant to rule 106 (1) and (7) of the Tanzania Court of Appeal Rules (the Rules), the 3

appellant and the respondents filed their respective written submissions for and against the appeal. At the hearing of the appeal, Mr. Gilbert Mushi, learned advocate, appeared for the appellant, whereas, Mr. Stanley Nyamle, also learned advocate, appeared for the respondents. At the outset, we wish to point out here that for the reasons beyond our control, the appeal could not be disposed of timely. Further, in terms of rule 113 (1) of the Rules, Mr. Mushi sought leave of the Court to add and argue one additional ground of appeal and abandoned all the grounds of appeal raised in the memorandum of appeal. The additional ground of appeal was that: "The revlsionaI court failed to find out that the respondents were provisionally employees, thus, cannot sue for unfair termination." Arguing the additional ground of appeal, Mr. Mushi submitted that the respondents were employed on diverse dates and their employment was subject to a probational period of three months. Detailing the dates of employment of each of the respondents, he pointed out that the 1s t respondent was employed on 28th May 2014, the 2n d respondent was employed on 28th May 2014, the 3r d respondent was employed on 28th May 2014 and the 4th responded

was employed on 28th May 2014. He added that, according to Paragraph 5 (1) of the Employment Contract, the respondents were on probation period for three months but entire record of appeal does not indicate when they were confirmed to their employment. He asserted that since there was no confirmation letter, the status of the respondents remained to be provisional employees, that is, they were still on probation period. He further pointed out that the respondents lodged a complaint before the CMA claiming for unfair termination and prayed for reliefs concerning unfair termination while they had no right to file such a claim. He relied on the case of David Nzaligo v. National Microfinance Bank Pic (Civil Appeal No. 61 of 2016) [2019] TZCA 540 to assert that there was no automatic confirmation upon expiry of the probation period. In the end, he urged us to nullify the proceedings, quash the CMA's award and the High Court's judgment and set aside its resultant decree. When probed by the Court on the legality of the additional ground of appeal in terms of section 57 of the Labour Institutions Act (the LIA), Mr. Mushi replied that since the High Court Judge did not properly appraise the evidence then this Court has jurisdiction to determine it. He asserted that a point of law incudes a

misapprehension of evidence, therefore, within the ambit of section 57 of the LIA. In reply, Mr. Nyamle submitted that the additional ground of appeal contravened the provisions of section 57 of the LIA as it calls for evidence to ascertain on whether the respondents were confirmed or not. He asserted that the appellant did not dispute on the respondents status and it was a fact that the respondents were employed by the appellant and had been working with the appellant until terminated on 31s t December, 2015. The argument that the respondents were provisional employees was an afterthought and it attracts evidence which the Court cannot determine at the second appellate stage. He added that the respondents had been working with the appellant on several renewal contracts. It was his assertion that each of the respondents was issued with a certificate of service which proves they were notcasual employees. He contended that a casual employee is not entitled to be issued with a certificate of service. He therefore prayed that the appeal be dismissed. When probed by the Court on whether the ground of appeal is based on facts only, he replied that it raises not only a point of law but also it requires to re-evaluate the evidence to establish it. 6

Responding on whether there is any authority on his submission that a probationary employee is not entitled to be issued with a certificate of service, he referred us to section 44 (2) of the ELRA which made reference to an employee and contended that it does not mention a probationary employee. Mr. Mushi rejoined by reiterating the duty of the revisional court of re-evaluating the proceedings of the CMA on its correctness and propriety. He reiterated that the dispute before the CMA was for unfair termination while the respondents were probationary employees. Rejoining on the confirmation letters, he argued that the act of issuance of certificate of service is not a confirmation letter that is why the respondents were paid social security benefits, health insurance and tax on pay as you earn was paid to the Tanzania Revenue Authority. He stressed that the respondents were required to prove confirmation of their employment. We have given due consideration to the contending written submissions and oral arguments advanced for and against the additional ground of appeal. We wish to start with the point of law raised by Mr. Nyamle, whether the additional ground of appeal raise a point of law, thus, making it within the ambit of the provisions of section 57 of the LIA. The said section provides that: 7

"A party to the proceedings in the Labour Court may appeai against the decision of that court to the Court of Appeal of Tanzania on a point of law." Deducing from the above provision of the law, the jurisdiction of this Court is restricted as it requires an intended appellant to appeai to the Court on point (s) of law only against the decision arising from the Labour Court. A point of law or a question of law was well defined in the case of CMA - CGM Tanzania Limited v. Justine Baruti (Civil Appeal No. 23 of 2020) [2025] TZCA 458, that: "...first, an issue on the interpretation of a provision of the Constitution, a statute, subsidiary iegisiation or any fegaf doctrine on tax revenue administration. Secondly \ a question on the application by the Tribunal of a provision of the Constitution, a statute, subsidiary iegisiation or any legal doctrine to the evidence on record. Finally, a question on a conclusion arrived at by the Tribunal where there is failure to evaluate the evidence or if there is no evidence to support it or that it is so perverse or so illegal that no reasonable tribunal would arrive at it ” 8

In trying to bring the additional ground of appeal into the perspective of a pure point of law, Mr. Mushi contended that the contentious issue between the parties was a probationary status of the respondents who were yet to be confirmed for them to be entitled for remedies under Part III Subpart E sections 35-40 of the ELRA as held in the case of David Nzaligo v. National Microfinance Bank PLC (supra). Much as we agree that a failure by the High Court to evaluate the evidence is a question of law, we are not persuaded by Mr. Mushi's submission for the following reasons: One, the facts in the cited case of David Nzaligo v. National Microfinance Bank PLC (supra) are distinguishable to the present appeal. In that appeal, the appellant was employed by the respondent on six months' probation period. According to clause 1 of his employment contract, the starting date of his employment was 1s t July, 2010 but subject to an assessment of his performance, and that, if positively assessed, he would be issued with a confirmation letter for his first appointment and, in case of termination, a seven (7) days written notice would be issued to him followed by a written notice of thirty (30) days. Nonetheless, before any decision being made by the employer, on 13th January, 2011, the appellant resigned from his 9

employment and went to the CMA complaining for constructive termination. The CMA decided in favour of the appellant that his resignation was a result of the respondent's conduct which led to intolerable working conditions for the appellant. The respondent was dissatisfied with the award and appealed to the Labour Court which held that the appellant was still a probationer at the time he resigned, thus, not entitled to any claim for unfair termination. On appeal, the Court was invited to consider whether the Labour Court correctly arrived to a conclusion that, at the time of resignation, the appellant was still a probationary employee while he worked beyond probationary period. In that respect, we find that the issue before the Court was on pure point of law as it invited to consider whether the Labour Court's finding was legally sound. Two, in the appeal before us, while Mr. Mushi claimed that the contentious issue was the employment status of the respondents, the record of appeal does not support his contention. It is evident from the respondents' application (Form No. 1) appearing at pages 7-14 of the record of appeal that the respondents claimed to be employees of the appellant and claimed for unfair termination. On the other hand, the appellant did not dispute such a fact and did not raise any concern on their status. Yet again, when that the appellant filed an application 10

for revision before the Labour Court, it did not raise any issue concerning the respondents' employments status. As alluded earlier on, the appellant raised three grounds for revision which according to its written submissions, at pages 402-405 of the record of appeal and in particular at page 403, the appellant consolidated them and argued that the CMA failed to consider the re-examination of DW1 on the issue of confidential information. In that respect, we find that the major concern of the appellant was whether the information availed to the Guardian newspaper was confidential or not and not whether the respondents were probationary employees. Three, the invitation made to us by Mr. Mushi was to re evaluate the evidence by scrutinizing Form No. 1 and the employment contracts of the respondents in order to ascertain whether they held the status of employees. We find such invitation necessitates a re- evaluation of evidence which this Court has no jurisdiction to consider as are factual matters. From what we have endeavoured to explain, we find that, in terms of the provisions of section 57 of the LIA, the Court has no jurisdiction to determine the additional ground of appeal. Given that the additional ground of appeal is not premised on a pure point of law, we concur with Mr. Nyamle that the appeal is

incompetent before the Court. As this point suffices to determine the entire appeal, we find no reason to determine the remaining submissions made to us by the counsel for the parties. In the end, we strike out the appeal with no order as to costs as the dispute arose from a labour dispute. Order accordingly. DATED at DODOMA this 8th day of September, 2025. B. M. A. SEHEL JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The Judgment delivered this 9th day of September, 2025 in the presence of Mr. Gilbert Mushi, learned counsel for the Appellant and Stanley Mnyale, learned counsel for the Respondents via virtual Court and Julius Kilimba, Court Clerk; is hereby certified as a true copy of the original. 12