MISC NO 15221 OF 2024 EURO COMMERCIALS LIMITED VRS VICTOR KAREGA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR-ES-SALAAM MISC. LABOUR APPLICATION NO. 15221 OF 2024 CASE REFERENCE NO. 202406271000015221 BETWEEN EURO COMMERCIALS LIM ITED.........................................................APPLICANT VERSUS VICTOR KAREGA............................................................................ RESPONDENT RULING Date of last Order: 16/ 08/2024 Date of Ruling: 10/ 09/2024 MLYAMBINA,J. In the instant matter, the Applicant is praying for this Court to grant extension o f time to file an Application for Revision o f the Ex-parte CMA award delivered by the Hon. Arbitrators. Ndonde, on the 4 h day o f October, 2022 in Labour Dispute No. CMA/DSM/ILA/551/22. The dispute emanates from the following background; That, on the 9th March, 2022, the Respondent referred a complaint to the Commission for Mediation and Arbitration (herein CMA) claiming for breach of contract. The matter proceeded ex-parte in absence of the Applicant herein. The dispute was determined in favour of the Respondent. The Applicant alleges that on the 8th December, 2022 he became aware of the existence of the ex-parte CMA Award after she was served with a copy of the Award and Application for Execution No. 520 o f2022 at the High Court of Tanzania Labour Division of the said ex-parte Award. That, immediately after being served with the ex-parte Award and application for execution, the Applicant on the 12th of December, 2022 filed an application at the CMA for setting aside the ex-parte Award delivered against her. Such application was dismissed for being filed out of time. That, the Applicant is still interested in challenging the ex-parte Award delivered against her, hence this application. The application proceeded by way of written submissions. The Applicant was represented by Mr. Patric Malewe, learned Counsel. On the other side, the Respondent appeared in person. After considering the rival submissions of the parties I find the Court is called upon to determine one issue; whether the Applicant has adduced sufficient cause for the grant o f extension sought In deciding this application, the Respondent pleaded the Court to be guided by the principles stated in the daily cited case of Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania Civil Application No. 2 of 2010 where it was held as follows: As a matter of general principles, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason and justice, and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated: (a) The Applicant must account for all the period of delay (b) The delay should not be inordinate. (c) The Applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. (d) If the Court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged. In the affidavit in support of the application, the Applicant pleaded the following reasons for the delay to file the intended application. That, the Hon. Arbitrator erred by determining referral No. CMA/DSM/ILA/551/21, without affording the Applicant the right to be heard. That, the Hon. Arbitrator determined referral No. CMA/DSM/ILA/551/21 illegally by awarding the Respondent a claim for severance pay after making a finding that the Applicant breached the Respondent's employment contract. That, the Hon. Arbitrator erred by determining referral No. CMA/DSM/ILA/551/21 oblivious of the existence of a defective CMA form no. 1 which had claims which do not co-exist. As observed above, the Applicant is pleading illegality and irregularity of the challenged decision. From the case of, Lyamuya construction (supra), illegality of the challenged decision can stand as a good ground for the grant of extension of time. Again, in the case of Tauka Theodory Ferdinand v. Eva Zakayo Meita (administratix of the estate of the late Albanus Mwita) and 3 Others, Civil Application No. 200/17 of 2016, Court of Appeal of Tanzania it was held that: I wish to state here that not every illegality will amount to good cause to grant extension. It is only a point of law which is of such significance as to warrant the attention of this Court that will sail through as good cause. In this case, the Applicant pleaded illegality as a reason for the delay to file the intended application. After examining the records, I find the alleged illegality is not apparent on the face of record to suffice the extension sought. The case of Tauka Theodory (supra) stated clearly that the illegality should be on point of law sufficient to warrant the attention of the Court, such as the point of jurisdiction or time limitation. This is also the Court's position in the case of Charles Richard Kombe v. Kinondoni Municipal Council, Civil Reference No.13 of 2019, Court of Appeal of Tanzania at Dar es salaam where it was held: ...it is our conclusion that for a decision to be attacked on ground of illegality, one has to successfully argue that the Court acted illegally for want of jurisdiction, or for denial of right to be heard or that the matter was time barred. The Applicant in this case also alleges that he was denied the right to be heard. Looking at the records, the impugned decision was delivered on 23/03/2023. Thereafter, on 20/05/2024 the Applicant filed an application for extension of time to file revision against the CMA's decision. Such application was struck out on 24/06/2024 for being incompetent. Therefore, after the impugned decision was delivered, the Applicant took a year and two months to file an application before this Court. There is no reason adduced in his affidavit for such delay other than pleading illegality of the impugned decision of which, as stated earlier, it is not apparent on the face of records. Under such circumstance, it is my findings that the Applicant failed to account for the delay. I thus, join hands with the Respondent's submission that each day of the delay ought to have been accounted for as it is the position in the case of Wambele Mtumwa Shahame v. Mohamed Hamis, Civil Reference No. 8 of 2016, Court of Appeal of Tanzania where it was held that: Delay of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken. In the result, the application is hereby marked dismissed for lack of merits. It is so ordered. JUDGE 10/09/2024 Ruling delivered and dated 10th September, 2024 in the presence of the Respondent in person and in the absence of the Applicant. Right of Appeal explained. Y.J. MLYAMBINA JUDGE 10/09/2024