Deusdedit Mugasha vs Attorney General & Another (Civil Appeal No. 255 of 2024) [2025] TZCA 850 (12 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM; NDIKA, J.A.. KENTE. J.A.. And MANSOOR. J.A.^ CIVIL APPEAL NO. 255 OF 2024 DEUSDEDIT MUGASHA ............................. VERSUS APPELLANT THE ATTORNEY GENERAL ............................ DAR ES SALAAM INSTITUTE OF TECHNOLOGY . 1 st RESPONDENT 2n d RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mqanga, 3.^ dated the 8th day of February, 2024 in 1 s t & 12t hAugust, 2025 NDIKA. 3.A.: The appellant, Deusdedit Mugasha, challenges the ruling of the High Court of Tanzania, Labour Division at Dar es Salaam ("the High Court"), in Miscellaneous Application No. 240 of 2023, issued on 8th February 2024. The court's decision granted the Attorney General, the first respondent, an extension of time to seek a revision of the decision dated 25th September 2009 of the defunct Industrial Court of Tanzania ("the ICT") in Trade Inquiry No. 69 of 2001, between the appellant and the Dar es Salaam Institute of Technology, the second respondent. The essential details of this matter are as follows: the appellant commenced employment with the second respondent on 1s t June 2000, as Miscellaneous Application No. 240 of 2023 JUDGMENT OF THE COURT l

the Chief Accountant, subject to a six-month probationary term, which concluded on 30th November 2000. He was not promptly confirmed in his employment following the conclusion of the specified period. After an additional two months of employment, the second respondent terminated his employment. The appellant duly filed an unfair dismissal claim under Trade Inquiry No. 69 of 2001 in the ICT. On 25th September 2009, the ICT adjudicated the claim in his favour. The second respondent, having failed to contest that decision within the prescribed limitation period, submitted Miscellaneous Application No. 38 of 2009 to the High Court seeking an extension of time to file an application for revision in that court. The said application concluded unsuccessfully, prompting the second respondent to engage in a succession of protracted proceedings before the High Court and this Court. Civil Appeal No. 106 of 2016 was the one but last of the proceedings that this Court struck out on 6th July 2021. Although the second respondent did not subsequently take any further legal action, the first respondent joined the fray more than two years later by lodging Miscellaneous Application No. 240 of 2023 in the High Court on 21s t August 2023 seeking extension of time to apply to that court for revision of the ICT's decision. Indeed, the High Court possessed the discretion to extend the time limit upon the demonstration of good cause, which might have been justified 2

either by accounting for the entire duration of the delay or by establishing that the contested decision of the ICT was marred by illegality. Certainly, the High Court determined that, despite the first respondent's failure to justify the delay, a valid reason for an extension of time was established due to the illegality of the ICT's decision. It affirmed the first respondent's argument that, the ICT's determination that the appellant was automatically confirmed in his employment after completing the six-month probationary period contradicted the established legal principle requiring explicit confirmation of a probationary employee by the employer. That this error of law constituted an evident illegality on record. Mr. Dennis Msafiri, learned counsel for the appellant, argued a singular ground of appeal, asserting that the High Court erred in determining that the ICT's decision was evidently illegal, hence justifying the extension of time prayed for. It was Mr. Msafiri's essential submission that the alleged error of law in the ICT's decision was not an illegality under the law as defined by the Court in its numerous decisions, notably Ramadhani Omary Mbuguni (A Legal Representative of the Late Rukia Ndaro) v. Ally Ramadhani & Another [2024] TZCA 344; and Attorney General v. MICCO’s International (T) Ltd. & Another [2023] TZCA 17868. In the said decisions, the Court took the view that an illegality is a substantial violation that affects the validity of the decision of the court. It illustrated such 3

violations to include an occasion where a court or tribunal acts without jurisdiction or entertains a matter barred by limitation or abrogates a party's right to be heard. The learned counsel was unwavering that the ICT's apparent misapplication of the law on confirmation of a probationary employee was not an illegality contemplated under the law as ground for enlargement of time. For the respondents, Mr. Erigh Rumisha, learned State Attorney, who was assisted by Ms. Lilian Mirumbe and Mr. Gideon Bujiku, learned State Attorneys, fully supported the High Court's reasoning and finding. In essence, his argument was two-fold: first, citing D.P. Mtenga v. University of Dar es Salaam [1972] EACA 3; and David Nzaligo v. National Microfinance Bank PLC [2019] TZCA 540, he argued that it was settled that a probationary employee cannot be automatically confirmed upon expiry of the period of probation since the law requires explicit confirmation by the employer. Apart from faulting the ICT for violating the said position by applying the contrary position, he was resolute that the tribunal's decision was not just erroneous but also evidently illegal and unjust. Secondly, Mr. Rumisha posited that the aforesaid error was an illegality as defined by this Court in its seminal decision in Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R. 185. He also placed reliance on Eurasia Holdings Limited v. The Attorney General & Others [2023] TZCA 17871 for the proposition 4

that a claim of illegality of the impugned decision constitutes good cause for extension of time regardless of whether the entire period of delay has been accounted for. On that basis, he urged us to dismiss the appeal. In a brief rejoinder, Mr. Msafiri referred to MICCO's International {supra) to hammer home the point that "illegality" contemplated in all the cited authorities is not of the impugned decision itself but the way it was arrived at. He maintained that the respondents failed to establish that alleged illegality concerned the manner of the judicial process through which the impugned decision was made. For a start, we readily agree with the learned counsel's concurrent submission that extension of time may be granted where it is established that there is a point of law of sufficient importance such as the illegality of the decision sought to be challenged even if the period of delay is not accounted for: see, for example, Devram Valambhia ( supra ); and VIP Engineering and Marketing Limited, Tanzania Revenue Authority and Liquidator of TRI-Telecommunications (T) Ltd v. Citibank (T) Ltd, Consolidated Civil References No. 6, 7 and 8 of 2006 (unreported). In Devram Valambhia {supra) at page 188, this Court held that: "... where, as here, the point o f law at issue is the illegality or otherwise o f the decision being challenged, that is o f sufficient importance to constitute 'sufficient reason' within the meaning o f rule 8 o f the Rules [now rule 10 o f the 2009 Rules] 5

for extending time. To hold otherwise would amount to permitting a decision, which in law might not exist, to stand. In the context o f the present case this would amount to allowing the garnishee order to remain on record and to be enforced even though it might very well turn out that order is, in fact a nullity and does not exist in law. That would not be in keeping with the rote o f this Court whose primary duty is to uphold the rule o f law". What amounts to an illegality contemplated in the above decision has obviously been a subject of contestation in numerous decisions. In Lyamuya Construction Co. Ltd v. Board of Registered of Young Women's Christian Association of Tanzania [2011] TZCA 4, a single Justice of the Court elaborated that an illegality complained of must be both significant and manifest on the record: "Since every party intending to appeal seeks to challenge a decision either on point o f law or fact, it cannot in my view, be said that in VALAMBHIA's case, the Court meant to draw a general rule that every applicant who demonstrates that his intended appeal raises points o f law should as o f right be granted extension o f time if he applies for one. The Court there emphasized that such point of law must be that 'ofsufficient importance'and, I would add that it must be apparent on the face o f the record, such as the question of jurisdiction; not one that would be 6

discovered by long drawn argument or process." [Emphasis added] More recently, in Charles Richard Kombe v. Kinondoni Municipal Council [2023] TZCA 137, which was referred to in MICCO's International {supra), this Court defined the term " Illegality" , quoting Black's Law Dictionary, 11th Edition, as "an act that is not authorized by law" or "the state o f not being legally authorized." The Court then excerpted a passage, with approval, from Keshardeo Chamria v. Radha Kissen Chamria & Others AIR 1953 SC 23, 1953 SCR 136, a decision of the Supreme Court of India: " ... the words "illegally" and "material irregularity" do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects o f procedure and not to errors o f either law or fact after the formalities which the law prescribes have been complied with". [Emphasis added] Ultimately, the Court concluded in Charles Richard Kombe ( supra ) as follows: "From the above definitions, it is our conclusion that for a decision to be attacked on the ground o f illegality, one has to successfully argue that the court acted illegally for want of 7

jurisdiction, or for denial of the right to be heard or that the matter was time-barred". [Emphasis added] Based on the preceding discussion, we believe that a claim of illegality regarding any contested decision, for the purpose of extending time, pertains to a severe and substantial breach of law or process that impacts the validity of the case's resolution. It surpasses trivial mistakes or irregularities. Both "irregularity" and "illegality" denote deviations from established procedure; nevertheless, illegality constitutes a more significant violation of law or procedure, potentially rendering the decision in question void. In other words, an illegality signifies a critical defect in the judicial process or decision making - Keshardeo Chamria {supra). Examined in the above context, we have no difficulty to find the allegation that, the ICT rendered its decision in violation of the settled rule against automatic confirmation of a probationary employee, a mere error of law. The ICT's decision pertained to a straightforward legal question: whether the appellant was effectively confirmed in his employment after surpassing the probationary period. The perceived misinterpretation or misapplication of the law constituted a mere decisional error made within the lawful exercise of its jurisdiction. It cannot be likened to a court or tribunal operating without jurisdiction, entertaining a stale claim, or infringing upon a party's right to be heard. We are, therefore, convinced that the first respondent's assertion of illegality failed to satisfy the necessary threshold to 8

raise valid enquiries regarding the process by which the ICT reached the contested decision. Consequently, we are convinced that the High Court exercised its discretion in favour of the first respondent upon a misapprehension of the law. Consequently, we find merit in the appeal. In the upshot, we allow the appeal and proceed to quash the High Court's decision and set aside the corresponding order extending time in the first respondent's favour. This being a labour matter, we make no order as to costs. DATED at DAR ES SALAAM this 11th day of August, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 12th day of August, 2025 in the presence of Mr. Mwang'enza Mapembe, holding brief for Mr. Dennis Msafiri, learned counsel for the appellant and Mr. Tumaini Paul, learned State Attorney for 9