ELVIS PETER KASHAIJA V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 26951 OF 2024 (Arising from a Ruling delivered on 18/10/2024 by Hon. Anita Kazimoto, Mediator, in Labour dispute No. CMA/DSM/ TEM/168/2024 at Temeke) ELVIS PETER KASHAIJA ............................................................... APPLICANT VERSUS BRAVO GROUP TANZANIA LIMITED ........................................ RESPONDENT JUDGMENT Date of Last Order: 03/12/2024 Date of Judgment: 12/12/2024 B. E. K. Mganga, J. Brief facts of this application are that, Elvis PeterKashaija, the herein applicant was employed by Bravo Group Tanzania Limited, the herein respondent, as Head of Transport and Logistics stationed at Dar es Salaam. It is said that, on 23rd March, 2024 respondent terminated employment of the aplicant. Aggrieved with termination of his employment, applicant filed Labour dispute No. CMA/DSM/ TEM/168/2024 before the Commision for Mediation and Arbitration(CMA) at Temeke together with an application for condonation as he was out of time. In the referal Form(CMA F1) applicant complained that respondent breached his contract of employment by termination. On 18th October 2024, having considered evidence of the parties in both the affidavit and 1 the counter affidavit, Hon. Anita Kazimoto, Mediator, dismissed the application for condonation for want of merit. Aggrived with the ruling dismissing the application for condonation, applicant filed this application seeking the court to revise and set it aside. In support of the notice of application, applicant filed his affidavit in which he raised one ground namely, that the Honourable Mediator had no jurisdiction to determine the matter hence her ruling is tainted with illegality. When the application was called on for hearing, Mr. Ceasor Kabissa, learned advocate appeared and argued for and on behalf of the applicant while Mr. Shilinde Ngalula, learned advocate appeared and argued for the respondent. Arguing in support of the application Mr. Kabissa submitted that, applicant filed an application for condonation, but the said application was determined by Anita Kazimoto, the Mediator. He added that, section 86(3) and (4) of the Employment and Labour Relation Act[ Cap. 366 R.E. 2019] provides the roles of the mediator which are limited to assisting parties to reach settlement. He went on that, those roles do not include determination of legal issues. Counsel submitted further that, rule 3(1), (2), (3) and (5) and rule 5(1), (2)(a)(i), (ii), (iii), (iv)(b) and (c) of the Labour Institutions (Mediation and Arbitration Guidelines) 2 Rules, GN. No. 67 of 2007 provides powers of the mediator namely, to resolve dispute within 30 days or within a period that will be agreed upon by the parties. Counsel submitted that, in the application at hand, the mediator granted condonation exercising jurisdiction that she was not vested with. To bolster his submissions he cited the case of Benjamin Lazaro Isseme v. Yapi Merkezi Insaat Ve Sanayi Anonim Sirket, Revision No. 26 of 2023, HC (unreported), Dorman (Tanzania) Limited v. Paul Mboriko, Revision No. 5927 of 2024, HC(unreported), Elton Elisha Nyamtogota v. Complex Nursery & Primary School, Revision No. 16923 of 2024, HC(Unreported) and Barclayd Bank (T) Limited v. Ayyam Matessa, Civil Appeal No. 481 of 2020,CAT(unreported). With those submissions, he prayed that the application be allowed, the CMA ruling be quashed and set aside and order the parties to go back to CMA so that the application for condonation can be heard properly by the arbitrator. On his part, Mr. Ngalula, counsel for the respondent submitted that he has read Matessa’s cas (supra) and concur with submissions made on behalf of the applicant that, the mediator had no jurisdiction to grant the application for condonation. With those submissions, counsel for the respondent prayed that the application be allowed, CMA proceedings be nullified and order the application be heard on merit before an arbitrator. 3 I have considered submisions made on behalf of the parties who are at the same footing that the mediator had no jurisdiction to grant the application for condonation. I entirely agree with their submissions based on the decision of this court cited by counsel for the applicant and further based on the decision of the Court of Appeal in Matessa’s case (supra) cited by counsel for the applicant. I therefore allow the application, nullify CMA proceedings, quash and set aside the ruling that granted condonation to the respondent and direct that the parties should go back to CMA so that the application for condonation can be heard and properly determined by the arbitrator. Dated at Dar es Salaam on this 12th December 2024. B. E. K. Mganga JUDGE Judgment delivered on this 12th December 2024 in Chambers in the Ceasor Kabissa, Advocate for the Applicant and Leila Lola, Advocate for the Respondents. B. E. K. Mganga JUDGE 4