Balele Kabila vs Dong Brothers Ltd (Labour Revision No. 10731 of 2025) [2025] TZHC 8358 (17 December 2025)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MWANZA AT MWANZA LABOUR REVISION NO. 10731 OF 2025 (Arising from the Labour Dispute No. CMA/MZ A / ILEM/211/2023/98/2023 at the Commission for Mediation and Arbitration - Mwanza) BALELE KABILA …………………………….….……… … …….. ……………. APPLICANT VERSUS DONG BROTHERS LTD …………………………………………… ….. ……RESPONDENT JUDGMENT 11/ 11/2025 & 17/12/2025 E. L. NGIGWANA , J. Being aggrieved by the award of the Commission for Mediation and Arbitration of Mwanza at Mwanza (henceforth the CMA) in a Labour Dispute with reference No. CMA/MZA/ILEM/211/2023/98/2023 handed down on the 17 th day July 2024, in favor of the respondent, the applicant has moved this court under Sections 91 (1) & (b), (2) (a), (b) & (c ) and 94(1) (b) (i) of the Employment and Labour Relations Act, No. 06 of 2004 as amended by section 14 of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2013 and Rules 24 (1), (2)(a)(b) (c),(d) & (f), and (3) (a),(b),(c) & (d), and 28 (1) (a), (b), (c ) and (e) of the Labour Court Rules, G .N No. 106 of 2007, inviting this Court to exercise its revisionary jurisdiction by calling and

2 exami ning the records of the proceedings before the Commission for Mediation and Arbitration (CMA) to satisfy itself as to the correctness, legality, and/or propriety of the award made by the arbitrator and then, revise, and quash the whole of the CMA proceedings and award and further order that the applicant’s application for reinstatement was justifiable before the CMA. The applicant also pray s to the court to grant any other relief it may deem fit and equitable. On the other hand, the application is strenuously opposed by the respondent through a notice of opposition and a counter - affidavit deposed by the respondent’s manager, Sospeter Phabian Lugola. In the said notice of opposition, the respondent averred that the application is devoid of merit and thus should be dismissed in its entirety. The CMA record reveals that on the 4 th day of October, 2023, the applicant, through F.1, titled “Referral of dispute to the Commission for Mediation and Arbitration,” knocked on the doors of the CMA alleging unfair termination. According to F.1 , a fair solution suggested by the applicant is rei n statement .

3 The applicant alleged that he was orally employed by the respondent as a night watchman and paid a salary of TZS 200,000/= per month and TZS 45,000/= as food allowances. On the other hand, the respondent disputed the existence of any contractual relationship between the applicant and the respondent, as the respondent was a worker who was only called when there was a need to do so. The CMA, after going through the parties' opening statements, framed the following issues for determination. Firstly, whether there was an employment contract between the applicant and the respondent. Secondly, if the 1 st issue is answered in the affirmative, whether the applicant’s employment was terminated. Thirdly, whether there were reasons for termination. Fourthly, whether the procedure for termination was adhered to, and fifthly, what reliefs the parties are entitled to. In the first issue, the CMA found that there was a presumption of a contract of employment between the parties , but it should be noted that the presumption is not always conclusive . In the 2 nd issue, the CMA ruled that the applicant was a casual laborer, and therefore, their relationship falls within the meaning of section 14 (1)(c) of the Employment and Labour

4 Relations Act , which provides for a contract for a specific task, where upon completion of the task and the payments made, nothing binds the parties any more. Based on the said findings , the CMA found no reason to address the 3 rd and 4 th issues. Finally, the complaint was dismissed in its entirety. Aggrieved by the CMA award, the applicant has knocked on the doors of this court , alleging the following: one, that the Hon. Arbitrator has failed to reasonably assess the applicant’s evidence in comparison with the respondent’s evidence and consequently reached the erroneous decision. Two, that the Hon. Arbitrator erred in law and fact for rejecting the applicant’s documentary evidence, to wit, the introduction letter from Nyamhuge Local Government dated 13/08/2021 and the respondent’s register, without an y legal justification. Three, that the Hon. Arbitrator erred in law and fact by bringing in extraneous matters out of the framed issues by holding that the applicant used to work at the respondent’s company as a casual laborer, while the same was not among the framed issues before the commission, and hence reached an erroneous decision. Four, the Hon. Arbitrator totally failed to analyze the evidence brought by the applicant and hence reached an erroneous conclusion, and five, the Hon. Arbitrator wrongly de prived the applicant of the right to be heard properly by denying

5 the applicant the right to call his three (3) witnesses to testify before the commission to corroborate the applicant’s evidence. When the matter came for hearing, the applicant appeared in person and was represented by his personal representative, known as Mr. Nyanjugu Masoud, while the respondent appeared through Mr. Ally Zaidy, learned advocate. Submitting in support of the application, Mr. Nyanjugu adopted the chamber summons and the applicant’s affidavit and argued that before the CMA, five issues were framed for determination, but only the 1 st , 2 nd , and 5 th issues were addressed. He went on to submit that on 4 /06/2025, the Hon. arbitrator denied the applicant the right to tender the Attendance Register covering the years 2021 – 2023 and the right to call three (3) witnesses . He explained that the attendance registers and the letter writt en to the respondent were filed with the CMA on 19/03/2024, and the said letter had the message that the applicant would call the witnesses , and hence the omission by the arbitrator offended section 85(5) of the LREA. He went on to submit that on page 5, paragraphs 2 – 3, the arbitrator was satisfied that there was an employment contract between the applicant

6 and the respondent. Mr. Nyanjugu cited s ection s 15(1) - (7) and 37(2)(a)(b)(i)(ii)(c) and (3) (i) of LREA [Cap. 366 R.E. 2019], alleging that they provide for who the employee is and who the employer is . He elaborated that the employer had the duty to keep the records of the employee. To buttress his stance, he cited the case of Asteria Lazaro Shihini & Another vs. Emati Annex Hotel (Labour Revision No. 39 of 2023) [2024] TZHC 1210 (28 March 2024) TanzLII. He concluded his submission, urging the court to quas h and set aside the CMA award and order reinstatement of the app licant and payment of his entitlement as stipulated in CMA F1 . In reply, Mr. Ally Zaidy adopted the counter affidavit deposed by the respondent’s manager, Sospeter Phabian Lugola, and submitted that the argument by the applicant’s personal representative that the applicant was denied the right to tender exhibits and call witnesses is unfounded because, l ooking at the CMA records, there is nowhere where it is indicated that the applicant prayed to tender exhibits and admission was denied , or that he prayed to call his three witnesses but was denied the right to do so. He added that the well - established principle is that court records are presumed to accurately represent what happen ed, and one cannot lightly impeach

7 court records. He placed his reliance on the case of Halfani Sudi v. Abieza Chichili [1998] TLR 527 , in which the above principle was emphasized. As to whether the respondent employed the applicant, Mr. Zaidy submitted that there is no evidence on record proving that the applicant was the employee of the respondent. He explained that the CMA record shows the applicant was assigned special duties and was paid after he had done the work. SU1 at page 15 of the CMA typed proceedings said the applicant had no contract but was a laborer who was called whenever a need arose to call him for a special task and paid upon its completion. He added that according to SU2 , the applicant was paid TZS 6,300/=, and it is in that respect that the applicant cannot be equated to an employed person. The learned counsel cited the case of Hamidu Abdallah Mbekae & Others vs. Be Forward Tanzania Ltd. (Civil Appeal No. 380 of 2019) [2023] TZCA 62 (24 February 2023) TanzLII, where the Court stressed that : “Since the appellants were not employees of the respondent, and as their engagement with the respondent was on contracts for specific tasks as provided under section 14 (1) (c) of the ELRA, then the appellants' claims for unfair termination before the CMA were rightly dismissed. The appellants had no right to claim for unfair termination. It is a trite law that rights and remedies

8 provided for under unfair termination of employment do not apply in contracts for specific tasks. ” The learned counsel for the respondent prayed to the court to be guided by the above - cited case and dismiss this application accordingly. In his brief rejoinder, Mr. Nyanjugu submitted that since SU1 and SU2 confirmed that the application was given working tools and that he was signing, i.e., the attendance register, it was upon the respondent to issue a contract to the applicant . The respondent was duty - bound to prove whether the applicant was an employee or not . Having considered the rival submissions for and against the application, and having considered the chamber summons and the affidavits for and against the application, the issue for determination is whether there are sufficient grounds to revise and set aside the CMA award . Ordinarily, he who alleges must prove. Section 1 17 (1) of the Evidence Act [Cap . 6 R.E. 2023] is to the effect that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts that he asserts must prove that those facts exist. Section 118 of the Evidence Act [Cap 6 R.E. 2023] provides that the burden of proof

9 in civil proceedings lies on that person who would fail if no evidence at all were given on either side. See Hemed Said v. Mohamed Mbilu [1984] TLR 113, and Paulina Samson Ndawavya v. Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) Tanz LII . Notwithstanding the general rule, in labor case s, when there is the issue of whether or not termination was substantially and procedurally fair, the burden of proof lies with the employer . S ection 40 of the ELRA [Cap. 366 R.E. 2023] states as follows: “ In any proceedings concerning the unfair termination of an employee by an employer, the employer shall prove that the termination is fair. ” Even where there is a dispute on whether the employee was paid or not after termination, it is my considered view that it is still upon the employer to prove what entitlements have been paid to the employee . From the above, it is clear that the burden of proof in an employment contract lies on the employer when it is already established that an employment relationship exists . In the matter at hand, the respondent

10 denied having an employment relationship with the applicant . According to SU1 and SU2, the applicant was a laborer who worked when there was a task to perform and then was paid a wage of TZS 6300.00. Part of SU1’s evidence read : “Mimi ni meneja kwenye kampuni mlalamikiwa inayojishughulisha na uzalishaji na uchakataji wa mabondo, namfahamu mlalamikaji, alikuwa kibarua ofisini kwetu , alikuwa anakuja kazi zikiwepo na analipwa hela yake na anaondoka. Hakuwa mwajiriwa wa kampuni; vifaa vya kazi alikuwa anapewa na kurudisha baada ya kazi.” Part of SU2’s evidence read “Mimi ni mlinzi, namfahamu mlalamikaji, alikua akiitwa marachache panapokua na kazi . ” On his side, the applicant testified that he was employed on 24/01/2023 under a permanent contract, but his employment was terminated on 03/10/2023. He told the CMA that he was paid TZS 200,000/= per month and TZS 45,000/= as food allowances. The respondent neither tendered any document, including his salary slip and bank statement, nor summoned any witness to substantiate his claim.

11 The applicant's personal representative submitted that the applicant was denied the right to tender documentary exhibits and summon three witnesses to substantiate his claims. However, I agree with the respondent’s advocate that the CMA record does not ind icate that the applicant had prayed to tender and document or call his three witnesses, but he was denied by the Hon. Arbitrator. The law is settled to the effect that court (tribunal) records are taken to be sacrosanct; they are believed to refle ct exactly what transpired in court relevant to the case and thus cannot be easily impeached. In the matter at hand, there is no reason to doubt the CMA proceedings, as they reflect exactly what transpired in the CMA. As per CMA records, the applicant, Mr. Nyanjugu, after he had re - examined the applicant, stated that “ Sina swali li ngi ne na tunafunga Ushahidi wetu . ” Thereafter, the arbitrator fixed the date for filing closing submissions and the date for judgment. In that respect, the complaint that the applicant was denied the right to tender documentary evidence and call his three ( 3) witnesses cannot stand. Indeed, the complaints raised by the applicants are all devoid of merit because the respondent denied the existence of the employment contract,

12 and the applicant has failed to prove to the required standard that there was such a relationship. Instea d, he again came with a complaint that he was denied the right to tender documentary evidence and call his witnesses, but as said earlier, the complaint is not supported by the CMA records . From the foregoing analysis, the issue as to whether there are sufficient grounds to revise and set aside the CMA award is answered negatively. Regarding reliefs, since the first issue is answered negatively, I find that the available remedy is a dismissal of this application for revision and upholding the CMA award. In the upshot, t he application is hereby dismissed, and I proceed to uphold the CM award. This being a labor matter, I enter no order as to costs . It is so ordered . D ated at MWANZA this 17 th day of December , 202 5 . E. L. Ngigwana Judge 1 7 /1 2 /2025

13 Delivered virtually on the 17 th day of December 2025 , in the presence of Mr . Nyanjugu Masudi, the applicant’s personal representative; Mr. Ally Zaidy, advocate for the respondent, Hon. Baraka Mafuru - JLA; and M s. Gladness Mnjari - RMA . E. L. NGIGWANA JUDGE 17 / 12 /2025