Gladness Gasper Kileo & Others vs HJF Medical Research International Inc. (Civil Appeal No. 359 of 2023) [2025] TZCA 818 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: SEHEL, J.A.. GALEBA. J.A. And KHAMIS. J.A.^ CIVIL APPEAL NO. 359 OF 2023 GLADNESS GASPER KILEO 1 st APPELLANT SIGSMUND AKARO................................................... TUMAINI JOHN MRANG'U (as an administrator of the estate of the late ISSAYA MWAIKAMBO .................... 2 nd APPELLANT 3 rd APPELLANT VERSUS HJF MEDICAL RESEARCH INTERNATIONAL INC. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) 30th July & 7th August, 2025 KHAMIS, J.A.: This is an appeal and cross appeal against the decision of the High Court, Mbeya, (the High Court) which upheld the award issued by the Commission for Mediation and Arbitration (the CMA) in favour of the appellants, Gladness Gasper Kileo, Sigsmund Akaro and Issaya David Mwaikambo. The appeal turns on the issue of the appropriate package to an employee whose fixed term contract was terminated on disciplinary grounds. (Nqunyale, J.) dated the 14th day of February, 2023 in Labour Revision No. 04 of 2022 JUDGMENT OF THE COURT l

The appellants were employed in different capacities by the HJF Medical Research International Inc., the respondent, an international medical research organization. Whereas Gladness Gasper Kileo, the first appellant, was employed as the Finance and Accounts Coordinator, Sigsmund Akaro, the second appellant, was the General Accountant and Issaya David Mwaikambo, the third appellant, now deceased since 1s t September, 2021, was the Accounting Manager. The administratrix of his estate, Tumaini John Mrang'u, was appointed in that capacity on 11th May, 2022. The appellants were employed on fixed term contracts commencing on 18th September, 2018 and were to expire on 18th September, 2019. On 23r d October, 2019 the trio were suspended with full pay following the internal auditor's report of 25th September, 2019 which revealed multiple payments were issued using falsified payment procedures. An investigation firm, HLB Mekonsult, was contracted by the respondent to conduct forensic investigation regarding 49 wire transfers to unauthorized bank accounts. The investigation findings showed TZS 866,577,888.00 was lost as a result of 50 fraudulent transactions. Based on the findings of the investigation, the appellants were informed that they would be charged for misconduct and subjected to a disciplinary hearing. On 27th November, 2019, a disciplinary hearing was

held where the appellants were found guilty on the basis that, they acted in gross dishonest and performed their duties negligently. Whereas the forensic investigation report was a subject of disciplinary hearing, the standard operating procedures (SOPs) was not presented nor was a copy thereof given to the appellants. They were not afforded an opportunity to deal with it during their respective defense testimonies although the charge sheets were based on it. On 5th December, 2019 the appellants were issued with letters terminating their one year fixed term contracts effective that date on grounds of fraud. They were paid salaries up to the date of termination, leave accruals as on that date and annual bonus equal to one-month basic salary pro-rated for the number of full months worked in the calendar year up to 5th December, 2019. Aggrieved, the appellants lodged a dispute in the CMA for unfair termination and breach of contract. Upon failure of mediation, the dispute proceeded to hearing where the arbitrator (Severin Ndonde, Arbitrator) was of the view that, the appellants were wrongly charged for fraud contrary to a non-existing law as the respondent's SOPs cited in the charge sheets, was neither operationalized, referred to in the forensic report nor tendered in evidence at the disciplinary hearing. She maintained that, the infraction was contrary to rule 12 (1) (a) of the

Employment and Labour Relations (Code of Good Practice), Rules (G.N. No. 42 of 2007) (the Code). The arbitrator further found that, the appellants were improperly terminated on the basis of fraud whereas they were convicted for gross dishonest and negligence at the disciplinary proceedings. In her conclusion, the termination was substantively and procedurally unfair for the first appellant but substantively unfair for the other appellants. On the issue of reliefs, the CMA held that, each of the appellants was entitled to repatriation costs, 12 months' salaries as compensation and one-month salary in lieu of notice. On those basis, the first appellant was awarded T7S 142,425,368.00 while the second and third appellants were granted TZS 306,641,900.00 and TZS 142,721,468.00 respectively. Disgruntled by the CMA's findings, the respondent approached the High Court for revision of the arbitration award on the grounds that the arbitrator erred in law and fact in: entertaining the dispute on unfair termination while the parties were under fixed term contracts; finding unfair termination of contract despite lack of sufficient evidence; awarding compensation under section 41 of the Employment and Labour Relations Act RE. 2023 (the ELRA) in disregard of a fixed term contract; awarding repatriation costs and subsistence allowance despite proof that

the appellants were paid full terminal benefits; and lastly, failure to examine the evidence hence arrived at wrong conclusions on fairness of termination and the reliefs granted. The High Court (Ngunyale, J.) held that, the offences charged at the disciplinary hearing were not proved and therefore, the termination was substantively unfair. He reckoned rule 13 of the Code to find that, the procedure for termination was fair. In determining the reliefs, the revisional court held that, the appellants had served two months of their contractual periods which started on 22n d September, 2019 and therefore, entitled to ten months' compensation for unfair termination. The same was to be calculated on the basis of basic wages excluding allowances. The unpaid repatriation costs were awarded to each of the appellants on the basic salaries excluding allowances. The appellants were further awarded subsistence allowances from the date of termination to the date of delivery of the award. At the end, with those modifications, the High Court sustained the CMA's award. As it transpired, both sides of the dispute were aggrieved by the High Court findings. The appellants preferred this appeal vide a memorandum of appeal premised on two grounds, namely: one, the

High Court erred in holding that the appellants were entitled to subsistence allowance from the date of termination to the date of award contrary to section 44 (1) of the ELRA and two, in holding that, the appellants were entitled to compensation of ten months' basic salaries instead of ten months' remuneration as per section 41 (1) of the ELRA. Subsequently, the respondent issued a notice of cross appeal in terms of rule 94 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Initially, it listed down six grounds of cross appeal but at the hearing of the appeal, it abandoned five grounds and retained one ground, namely: that the High Court Judge erred in law in raising and deciding on new facts without affording the parties the right to be heard hence erroneously held that, the employment contracts were renewed and expected to be signed in the future dates without any proof on it. At the hearing of this appeal both sides were duly represented. Mr. Daniel Lawrence Muya, learned advocate, appeared for the appellants while the respondent enjoyed the services of Mr. Luka Elingaya, also learned advocate. By consent of the parties, the appeal and the cross appeal were heard concomitantly. For the reasons that will soon be apparent, we have opted to address the cross appeal ahead of the appeal. 6

In support of the only ground of cross appeal, Mr. Elingaya submitted that, the High Court Judge misdirected himself in determining factual matters that were not raised by the parties without affording them the rights to be heard. To deliver his point home, the learned counsel referred us at pages 4 to 25 of the record of appeal which contained the appellants' CMA form no. 1, and contended that, the appellants had wrongly founded their disputes on two causes of action, unfair termination and breach of contract. He faulted the CMA for turning its back against the issue of breach of contract and centering its proceedings and decision on only unfair termination. The learned counsel asserted that, the choice of unfair termination over breach of contract as a cause of action attracted the application of sections 38 and 40 of the ELRA and resulted to a miscarriage of justice. In his view, an employee on a fixed term contract cannot claim an unfair termination but rather, breach of contract. He referred us at pages 1043, 1044, 1045 through to 1047 of the record of appeal and contended that, the concern raised before the High Court but ignored. Further, the learned counsel contended that, despite ignoring the respondent's concern, the High Court awarded compensation based on

the remaining contractual period which is a relief founded on breach of contract and not unfair termination. He lamented that, in so doing, the learned Judge addressed himself on the factual matters that were not canvassed by the parties. To cement his argument, Mr. Elingaya referred us at pages 1098 and 1099 of the record where the High Court examined the parties' contracts and termination letters admitted at the CMA and concluded that, the contracts were renewed effective September, 2019. He submitted that, the decision violated a constitutional right, namely, the right to be heard before an adverse decision is made against someone. He reasoned that, the High Court Judge ought to have invited parties to address him on the facts in issue before he could make a decision on it. He submitted that, the learned High Court Judge did not have the advantage of the parties' submissions on the relevant facts in order to determine the issue of renewal or non-renewal of the fixed term employments contracts. Further, the learned counsel contended that, the issue raised a valid point of law to be decided by this Court as the Judge's findings did not conform with the facts on record which showed the contracts expired

in September 2019 although the appellants were terminated on 5th December, 2019. For those reasons, the learned counsel for the respondent moved the Court to allow the cross appeal and quash the impugned decision of the High Court. In response, Mr. Muya sharply differed with his counterpart. He submitted that, unfair termination and breach of contract were not distinct causes of action for an employee whose services were terminated under a fixed term contract. They are interrelated. He cited Stella Lyimo v. CFAO Motors Tanzania Limited, Civil Appeal No. 378 of 2019 [2022] TZCA 742 for the proposition that, unfair termination is one and the same as a breach of contract by termination. He contended that, the issue at stake was validity of the appellants' termination of employment which included the reason and procedure for termination. He argued that, both sides led their evidence at the CMA on the unfair termination and therefore, a criticism on the Judge's findings was unjustified. He referred us at page 1098 of the record where the learned Judge referred to the evidence of PW1 and PW3 who testified that, the contracts were renewed until 22n d September, 2020. He submitted that, the respondent's failure to cross examine those two

witnesses on the extension of contracts implied that their testimonies were not disputed. Mr. Muya further argued that, renewal of the parties' contracts was long settled as the appellants were suspended, subjected to disciplinary hearing and subsequently terminated after the lapse of the previous contract on 22n d September, 2019. He submitted that, the appellants could not undergo such disciplinary procedure if they were not employees of the respondent. He added that this was not a new issue which could not be determined before parties were invited to address the Court. The learned counsel maintained that, the learned Judge could not be faulted for deciding that the contracts were renewed as he simply examined the evidence on record and translated it in the context of the parties' disputation at the CMA. He argued further that, the reliefs granted by the High Court were consequential to the parties' competing arguments and should not be termed as new factual matters. On those basis, the learned counsel moved us to dismiss the cross appeal. Responding to questions by the Court, Mr. Muya insisted that, an extension of contract was not a new issue as alleged by the respondent and referred us at page 1098 of the record where the learned 10

Judge reproduced the evidence of PW1 and PW3 who testified that, the employment contracts were renewed. On rejoinder, Mr. Elingaya reiterated his earlier submissions and prayed for the success of the cross appeal. Having heard the learned counsel' rival submissions and on consideration of the sole ground of cross appeal and the record, the issue commending our determination is whether the High Court Judge raised and determined a new issue without affording the parties the right to be heard. On this issue, we need not restate the law that, the right to be heard is a cornerstone of any credible judicial process. In Kastan Mining Pic v. Tanzania Mortgage Company Limited [2025] TZCA 173 it was held that, the failure to afford the parties the right to be heard in any judicial proceedings undermines the entire process and invalidates the entire proceedings. In Raza Somji v. Amina Salum [1993] T.L.R 208, the Court emphasized the need to invite parties to address it before a decision is rendered on an issue raised suo motu. In Rukwa Auto Parts & Transport Limited v. Jestina George Mwakyoma [2003] T.L.R 251, the Court observed that, natural justice is not merely a principle of common law, but a fundamental constitutional li

right guaranteeed under article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977. In Pan African Energy Tanzania Ltd v. Jacquiline Kawishe [2025] TZCA 246 this Court pointed out that, much as the revisional court enjoys the power to raise an issue suo motu, such an issue cannot be determined without affording the parties the right to be heard as long as it is likely to affect their rights. In this appeal, as earlier on stated, the respondent was aggrieved by the CMA findings and preferred an application for revision in the High Court whose decision is the subject of this appeal. The Chamber Summons in the Amended Revision Application No. 4 of 2022 was supported by an affidavit sworn by one Jovither Mirumbe, Senior Administration & Logistics Manager of the respondent. Whereas the chamber summons moved the High Court to call for records and examine the proceedings of the CMA with a view to satisfy itself as to legality, propriety, rationality, logical and correctness thereof, the affidavit in support of the application clarified the respondent's prayer, thus: "9. The applicant disputes the findings o f the Arbitrator ; both in law and in fact and also disputes reliefs granted to the respondents by

the arbitrator in his Award referred to in paragraph 7 above. 10. That the Arbitrator failed to analyze the evidence adduced by the applicant's witnesses and ignored or failed to properly examine documentary evidence tendered during the hearing and hence arriving at a wrong conclusion The appellants filed a counter affidavit sworn by Daniel Lawrence Muya, learned advocate. In specific response to paragraph 10 of the affidavit, the deponent stated that: "8. The contents o f paragraph 10 o f the applicant's affidavit are denied. The arbitrator properly analyzed the evidence on record and correctly ruled in favour o f the respondents herein ; relatedly, the arbitrator correctly examined all the exhibits tendered by both parties, thus properly delivered the award". The application was canvassed by way of written submissions and parties extensively addressed the revisional court on the evidence given at the CMA. The learned Judge considered the parties' rival submissions on each ground of revision and made relevant findings thereon. At page 1083 of the record, he addressed the alleged failure of the arbitrator to 13

evaluate the evidence properly. In tackling the issue, he referred to the contents of exhibits D.13, Dl, D.2, D5 and testimonies of the second and third appellants. At page 1098 of the record, the learned Judge examined contents of the employment contracts and re-evaluated the evidence of PW1 and PW3 to arrive at the finding that, the contracts were renewed for another one year effective September, 2019 to September, 2020. Whereas the Judge's comment that, the extended contracts could be signed at a later date was not backed by the evidence, we noted that, the same was an obiter dictum, and therefore, had no significance to the rights of the parties. On this path, we agree with Mr. Muya that, the Judge examined the evidence on record to resolve the issues canvassed by the parties and his findings on renewal of the contracts was consequential to such evaluation of the evidence. In our considered view, the learned Judge neither raised nor determined any new issue without affording the parties the right to be heard as alleged by the respondent or at all. With this conclusion, we dismiss the only ground of cross appeal. 14

The next level is determination of the appeal. In support of the two grounds of appeal, Mr. Muya adopted the written submissions earlier on filed and exercised the right to clarify a few points. On the first ground of appeal, the learned counsel submitted that, the High Court Judge erred in law in interpreting the subsistence allowance due to the appellants. He explained that, the appellants were entitled to subsistence allowance from the date of termination to date of the award and not as ordered by the High Court. He cited sections 44 (1) (c), 44 (2) of the ELRAand regulation 16 (1) of the Employment and Labour Relations (General) Regulations G.N. No. 47 of 2017 (G.N. No. 47 of 2017) to justify his assertion. The learned counsel argued that, subsistence allowance is payable on a daily basis covering the period from termination to the date of repatriation. He cited the High Court decision in the case of the General Manager Pangea Minerals Ltd v. Migumo Mwakalasya, Revision No. 35 of 2008 (unreported) for the proposition that, in case an employment is terminated at a place other than where the employee was recruited, the law requires payment of daily subsistence expenses during the period, if any between the date of termination and date of transporting the employee to the place of recruitment.

Furthermore, the learned counsel cited Security Group Tanzania Limited v. Mashaka Ali Setebe, Revision No. 54 of 2017 (unreported) for the proposition that, it was improper for the High Court Judge to limit the subsistence allowance from the date of termination to date of delivery of the award. He asserted that, the appellants were entitled to such payment because they were not repatriated to their places of recruitment. On the second ground of appeal, Mr. Muya drew our attention at page 1099 of the record where the High Court ordered payment of ten months' basic salaries as compensation for unfair termination. He contended that, the finding was incorrect as it contravened section 41 (1) of the ELRA which provides that such payment shall be based on the remuneration and not basic salary. The learned counsel further referred us at page 950 of the record where the CMA found the appellants were entitled to compensation based on remuneration inclusive of transport, housing and COLA (cost of living allowance) allowances. He argued that, the impugned judgment ought to have aligned with the CMA award and section 41 (1) (c) of the ELRA as a baseline. 16

Further, the learned counsel implored us to examine section 4 of the ELRA which defined the terms remuneration and basic wage. He capped that, the appellants were entitled to compensation as per the legal provisions and not otherwise. In reply, Mr. Elingaya adopted the written submissions on record and exercised the right to highlight. On the first ground of appeal, he submitted that, the appellants were not entitled to subsistence allowance on the ground that they were duly paid the repatriation expenses upon termination. He referred us at page 868 of the record, particularly the evidence of DW2 Jovether Gabriel Mirumbe. He also relied on exhibit D14 and the case of Vodacom Tanzania PLC v. Joseph Allim Ngoti, Civil Appeal No. 343 of 2021 (unreported) for the proposition that, where evidence is admitted without objection it signifies that it is accepted. On the second ground of appeal, the learned counsel for the respondent supported the High Court findings on the ground that, house, transport and cost of leaving allowances could only be awarded to the working employee. He distinguished the case of Stella Lyimo v. CFAO Motors Tanzania Limited (supra) and urged the Court to dismiss the appeal. 17

Having considered the parties' submissions, the issues for our determination are twofold: one, whether the High Court was justified to award the appellants the subsistence allowance from the date of termination to the date of the award, and two, whether the High Court was entitled to find that the appellants were entitled to ten months' compensation for unfair termination based on their basic salaries. We shall address the two issues in seriatim. On the first issue, the center of the dispute is the yardstick for the subsistence allowance. This issue is not virgin. In Hamisi & Others v. Tanzania Shoe Company Limited & Another [2003] TZCA 135 the Court addressed itself on a similar issue, thus: " Subsistence allowance is payable upon repatriation following termination of employment to the former employee's place of engagement or his place of domicile. There should have been credible evidence that the appellants were taken on at places other than Dar es Salaam or that there was a contract obliging the employer to transport the employees to their places o f domicile for the first respondent to be responsible for their repatriation ana\ with that ; subsistence allowance during the journey..." [Emphasis supplied]. 18

In this appeal, the parties are not in dispute that the appellants are entitled to subsistence allowance. Whereas the counsel for the respondent asserted that the respondent led evidence to prove payment of repatriation expenses to the appellants, such argument was casually made as there was no ground of appeal or cross appeal to fault the High Court on such a question. In any case, the counsel repeated the argument made at the High Court which was considered and rejected by the High Court Judge as shown at page 1099 to 1100 thus: "With regard to ground on repatriation and subsistence allowance, Mr. Ngowi submitted that it was proved that it had been paid to the respondents, retying on exhibit D14. There was no dispute in the manner o f computation o f subsistence allowance and payment o f repatriation expenses. Also seems no quell on entitlement o f the respondent to the same. The point o f convergence is whether it was paid or not... From the evidence available, I have to resolve that payment requisition form is not conclusive evidence that repatriation costs and subsistence allowance were paid to the respondents. The same are internal process o f the applicant. Bank transfer statement could have assisted the 19

applicant to prove the payment Failure to prove that it was indeed paid to the respondents is a problem. It makes the complaint by the applicant that it was wrongly awarded to respondents unmerited. I find the arbitrator was justified in awarding it..." Having examined the record, we entirely agree with the findings of the learned High Court Judge as reproduced above. Therefore, the respondent's assertion that the appellants were paid repatriation expenses fails for lack of proof. It should be noted that, the Court's reasoning in Hamisi & Others v. Tanzania Shoe Company Limited & Another (supra) was grounded on section 53 of the Employment Ordinance, Chapter 366 which is no longer in force. Currently, the law applicable is the ELRA whose relevant provisions is section 44 (1) and (2) read together with regulation 16 (1) of G.N. No. 47 of 2017. The same are reproduced below: "44 (1) Where an employee's contract o f employment is terminated at a place other than where the employee was recruited, the employer shall either: (a) Transport the employee and his personal effects to the place o f recruitment 20

(b) Pay for the transport o f the employee to the place o f recruitment, or (c) Pay the employee an allowance for transportation to the place o f recruitment in accordance with subsection (2) and daily subsistence expenses during the p e r i o d i f any\ between the date of termination of the contract and the date of transporting the employee and his family to the place of recruitment (2) An allowance prescribed under subsection (1) (c) shall be equal to at least a bus fare to the bus station nearest to the place o f recruitment" Regulation 16 (1) of G.N. No. 47 of 2017 provides that: "16 (1) the subsistence expenses provided for under section 43 (1) (c) o f the Act shall be quantified to daily basic wage or as may\ from time to time, be determined by the relevant wage board" [Emphasis supplied]. In the case of Attorney General v. Yakuti & Others [2006] TZCA 8 this Court addressed a similar issue and restated the law thus: ' 7/7 view o f the established facts in this case and the law as expounded in the cases referred to the 21

Court by Mr. Ngwembe , we agree with both counsel in this appeal that the respondents were only entitled to be paid subsistence expenses for the entire period they were kept waiting for payment of their terminal benefits" [Emphasis supplied]. Applying the relevant authorities to the facts of this case, we are of the view that, the High Court misapplied the law in limiting the subsistence expenses from the date of termination to the date of the award. On the second issue, the appellant challenged the relief granted by the High Court. The learned counsel for the appellant proposed payment in line with section 41 (1) of the ELRA. On the other hand, the learned counsel for the respondent submitted that, allowances should not be paid to employees who are not working. He did not cite any authority for the proposition. Attractive as it may be, the argument by Mr. Elingaya has no legal basis. Parties referred us to the case of Stella Lyimo v. CFAO Motors Tanzania Limited (supra) where we pronounced ourselves that, breach of an employment contract is not distinct from a complaint based on unfair termination. As clearly stated in that decision, unfair termination is one and the same as a breach of contract by termination. 22

Considering that legal position, section 41 (1) (c) of the ELRA is applicable in the circumstances of the case. It reads: "41 (1) If an arbitrator or Labour Court finds a termination is unfair, the arbitrator or Court may order the employer: (a) N/A (b) N/A (c) To pay an employee compensation: (i) in case the termination is based on unfair procedure, not less than six months remuneration but not exceeding twelve months remuneration. (ii) in case the termination is based on unfair reason not less than twelve months remuneration but not exceeding eighteen months remuneration. (Hi) in case the termination is based on both unfair procedure and unfair reason ; not less than twelve months remuneration but not exceeding twenty months remuneration and, (iv)in case the termination is unfair for reason o f discrimination or harassment, not less than twelve months remuneration but not

exceeding twenty for months remuneration." Section 41 (1) (c) of the ELRA as reproduced above, provides that, compensation should be calculated based on the remuneration. At this point, we think it is opportune to address some key terms which are relevant for the determination of the issues framed. Basic wage referred to by the learned Judge is defined in section 4 of the ELRA to mean, part of an employee's remuneration paid in respect of work done during the hours ordinarily worked but does not include allowances, pay for the overtime worked, additional pay for work on a Sunday or public holiday, or additional pay for night work as required under section 21 (4) of the ELRA. Our understanding of basic wage as defined above as opposed to basic salary is that, basic wage typically refers to a fixed amount of money paid to an employee, often calculated on an hourly, daily, or weekly basis. Basic salary, on the other hand, is a fixed monthly or annual amount paid to an employee, regardless of the number of hours worked. The term remuneration was defined under section 4 of the ELRA to mean the total value of all payments in money or in kind made or 24

owing to an employee arising from the employment of that employee. Generally speaking, it means any money or its equivalent given for services rendered. In India, remuneration is broadly defined as any monetary or equivalent payment provided for services rendered, and it includes perquisites (benefits). So in short, it means, any money or its equivalent, like benefits (perquisites) given to a person for work done. This means, remuneration is a broader term encompassing all forms of compensation, including salary and additional benefits. It may include bonuses, commissions, stock options, and other benefits provided by the employer. In our jurisdiction, when a fixed term employment contract is terminated before its expiry date, the employee is generally entitled to compensation, specifically the salary for the remaining period of contract. This principle is based on the understanding that the employer's premature termination constitutes a breach of contract, and the employee's loss of salary for the unexpired term is a foreseeable consequence. In Peter Ng'homango v. Messa Secondary School [2024] TZCA 753, the Court subscribed to the High Court decision in Good Samaritan v. Joseph Robert Savari Munthu, Revision No. 165/2011 25

(unreported) that, when an employer terminates a fixed term contract, the loss of salary by an employee of the remaining period of unexpired term is a direct foreseeable and reasonable consequence of the employer's action. Further, the Court in Peter Ng'homango (supra) underscored that, for a fixed term contract, the foreseeable relief to redress unfair termination is payment of salary in respect of the remaining months in the fixed term contract. Section 41A of the Labour Laws (Amendments) Act, No. 4 of 2025 has cleared the position even better. It provides that: "(41A) An arbitrator or Labour Court may on determining that there is material breach o f a fixed term contract on part o f the employer, order the employer to pay compensaton to the employee equal to the remuneration for the remaining term o f contract.' In this appeal, it is evident that the parties' relationship was based on fixed term employment contracts which were terminated before their expiry. As per the established legal principles, the appellants are entitled to payment of renumeration for the remaining period of the contracts as compensation for unfair termination/breach of contract. 26

We have also examined the employment contracts between the parties. The salary clause therein uses the term "remuneration". The said remuneration is detailed to include the employee's basic wage per month, transportation, housing, COLA and the annual bonus which is equivalent to one-month basic salary. Considering the legal principle, pacta sunt servanda, and the fact that, the ELRA has not excluded allowances for employees under fixed term contracts, we uphold the second ground of appeal. Having considered the appeal generally, it is our finding that, the High Court misdirected itself in two respects: Firstly, in limiting the payment of subsistence expenses from date of termination to date of delivery of the award. In so doing it overlooked the clear provisions of section 44 (1) (2) of ELRA and regulation 16 of G.N. No. 47 of 2017. Secondly, the High Court misdirected itself in awarding ten months' basic salaries as compensation for unfair termination. Section 41 (1) (c) of the ELRA clearly provides that such computation should be based on remuneration and not basic salary. In the result, the appellants are entitled to payment of subsistence allowance from the date of termination to date of repatriation and compensation of ten months' remuneration as per section 41 (1) (c) of the ELRA. 27

This is to say that the order of the High Court on these two reliefs is set aside and replaced with an order that, in addition to other reliefs issued by the High Court, the appellants should be paid subsistence allowance from the date of termination to date of repatriation and ten months' remuneration as compensation for unfair termination. In effect, the cross appeal is hereby dismissed and the appeal is upheld to the extent shown above. Each party to bear own costs. DATED at MBEYA this 6th day of August, 2025. B. M. A. SEHEL JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 7th day of August, 2025 in the presence of the M r. Daniel Lawrance Muya, learned counsel for the Appellants and holding brief for M r. Juvenalius Ngowi and M r. Lucas Elingaya both learned counsel for the Respondent, is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 28