FRANK MASINGIA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA MISC. LABOUR APPLICATION NO 28 OF 2023 (0riglnfltln9 Commission for Mediation and Arbitration Application No CMA/ARA/ARS/182/2020) FRANK MSINGIA.................................................. 1st APPLICANT AMINIEL SARAKIKYA........................................... 2nd APPLICANT EMMANUEL SUMAYE............................................ 3rd APPLICANT GERALD MAPANGO............................................. 4th APPLICANT ATHUMAN JUMA................................................. 5th APPLICANT EMMANUEL AMIDIUS KISANGA.........................6th APPLICANT GERAD TANAKI.................................................. 7™ APPLICANT FRANK PAULO.................................................... 8™ APPLICANT DERICK PENIEL MBISE...................................... 9th APPLICANT GOODLUCK BENSON MALISA............................ 10™ APPLICANT SALIMU DELIMA................................................. H™ APPLICANT VERSUS TANGANYIKA WILDERNESS CAMPS LTD............... RESPONDENT RULING 15th April & 13* May 2024 KIWONDE, J: The applicants in this matter, moved this court by way of a notice of application accompanied by a chamber summons supported by a joint affidavit of the applicants for the grant of the following orders: - Page 1 of 9 P That, this honourable court be pleased to extend time for the applicants to file application for revision out of time against the decision of CMA Application No CMA/ARS/ARS/182/2020. 2) Any other orders that this honourable court deems fit and just to grant. The respondent opposed the application by filling a notice of opposition accompanied by a counter affidavit deponed by Ombeni Elisa Mollel, the respondent's Human Resource Manager. Hearing of the application was by way of filling written submissions and each side filed them. In their joint affidavit, the applicants raised only one reason for the grant of extension of time, that is, technical delay. In the submissions in-chief, the counsel for the applicants argued that, the decision subject of the current application for extension of time was pronounced by the CMA on 28/05/2021 and the applicants promptly filed an application for revision on 25/06/2021, that is, Revision Application No 49 of 2021 but it was struck out for lacking of CMA Form No 10. Page 2 of 9 at immediately after the order striking out the application, the applicants through Misc. Application No 44 of 2022 on 12/07/2022 filed another application for extension of time and the said application was withdrawn on 2/03/2023 and the other application was preferred thereto on 16/03/2023 which is Miscellaneous Civil Application No. 10 of 2023 which again was brought under a wrong provision of law and the same was struck out on 15/06/2023. The counsel for the applicants further submitted that, technical delay has been one among the reasons for extension of time. To cement his position, reference was made to the decisions in Bank M (Tz) Vs. Enock Mwakyusa, Civil Application No 520/18 of 2017, Fortunatus Masha Vs. William Shija and another [1997] TLR 154. Finally, the counsel for the applicants stated that the grant of extension of time will in no way prejudice the respondent but its denial will affect the applicants. He prayed that the application be granted. In reply, the counsel for the respondent submitted that there was no any technical delay, rather, negligence on the part of the applicants by prosecuting incompetent applications. It is the claim by the respondent that each case should be decided on its own peculiar circumstance and for that he referred this court to the case of Judge (RTD) Edward Page 3 of 9 .„nV Mwesiumo & 7others Vs. Joel Sambua, Civil Appeal No 9 of ^ntony 1 2021 (2022). The respondent's counsel distinguished the cases cited by the applicants in their submission in-chief from the current application on reason that, in the current application the applicants prosecuted three incompetent applications as against to those cases. That the incompetent applications by the applicants cannot be baptised as technical delay, rather negligence, hence the same cannot suffice the grant of extension of time. To buttress his submission, he referred to the cases of Inspector Sadiki and another Vs. Gerald Nnkya [1997] TLR, The Registered Trustees of Sibusiso Foundation Vs. Angelas Bandali Ngatunga. The respondent's counsel was of the view that, among other factors for the grant of extension of time the court must satisfy that the applicant shows diligence and apathy, negligence or sloppiness in prosecuting the action does not amount to good cause. He cited the case of Lyamuya Construction Company Limited Vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No 2 of 2010. Page 4 of 9 The counsel for the respondent prayed that the application be dismissed there ought to be an end to any litigation and that the applicant failed t0 account for each day of the delay. There were no rejoinder submissions. From the pleadings and written submissions, the major issue for determination is whether sufficient cause has been shown for the court to grant order extending time within which the applicants can lodge an application for revision. I have considered the arguments by both sides, the affidavit, the counter affidavit, the record and the relevant law. In fact, it is not disputed that the impugned judgement of the CMA was made on the 28th May 2021. The existence of all three previous applications which were struck out before this court as demonstrated above is also not at issue. It is a long-standing legal principle of law that, where the doctrine of technical delay is applicable, such delay finds excuse and constitutes a sufficient reason for granting an order for extension of time. In the present application, it is apparent that the applicants depend solely on Page 5 of 9 t^e doctrine of technical delay as the one and only reason for the grant of the order sought. Whereas, the counsel for the respondent is of the view that the applicants negligently prosecuted incompetent applications which the same can not be accommodated under the doctrine of technical delay. However, it is not disputed that the applicants spent sometime in court corridors prosecuting Revision Application No. 49 of 2021 right from 25th June 2021 and the proceedings were terminated on 23rd June 2022 on technical grounds for failure to file Form No. 10 at the CMA. The applicants were diligent in filling their revision timely but as stated earlier on, the same was struck out on technical ground. In pursuing their rights, the applicants, on July 12, 2022 preferred another application, Miscellaneous Civil Application No 44 of 2022 which was withdrawn with leave to refile and it prompted the filling of Miscellaneous Application No. 10 of 2023 which again was filed under a wrong provision of law leading to its striking out on 15th June 2023. The applicants then filed the current application on 19th July 2023. From the material facts surrounding this application, it is the firm stand of this court that the doctrine of technical delay applies. The reason for Page 6 of 9 saying so is due to the fact that, the applicants timely lodged their application for revision before this court; but it was found incompetent and struck out. This was followed by other two applications stated above which were ended on technical ground. Under the circumstances, it can not be certainly said that the applicants were negligent. Technical delay has been held sufficient ground to extend time within which the applicants can do a certain act. The time the applicants spent in court conducting null proceedings is to be excluded. This was a position in Geita Gold Mines Limited Versus Anthony Karangwa, Civil Appeal No.42 of 2020 [2023] TZCA 28 (20th February 2023) TanzLii. The last application, Miscellaneous Application No. 10 of 2023 was struck out on 15th June 2023. From this date backwards, the period is not counted in determining the length of delay. Under section 91(1) of the Employment and Labour Relations Act, (R. E 2019), the aggrieved party may file application for revision to the High Court to challenge the decision of the CMA within 42 days from the date of decision. Page 7 of 9 The period of 42 days lapsed on 27” July 2023. So, when this application was lodged on 19” July 2023, the applicant was within time to lodge application for revision. Yet, he filed application for extension of time and thus delayed. The applicants are receiving a legal aid, so, it is not their fault to persist prosecuting wrong proceedings in court. They cannot therefore, be penalized for the wrongful acts of the advocates from the Legal Aid Centre. For the reason of technical delay, I find the application merited and the same is hereby granted. The applicants are availed with 20 days from the date of this ruling to lodge their application for revision before this court. I order no cost as the application originates from a labour dispute and the applicants are assisted by the legal aid providers. Order accordingly. DATED at ARUSHA this 13th day of May 2024. ’ ’ I' F. H. KIWONDE JUDGE 13/05/2024 0 Page 8 of 9 Court: Ruling is delivered in chamber in the presence of the 2nd, 3rd- 4th, 5th, 6th, 9th and 10th applicants and Mariam (RMA) but in the absence of the rest of applicants and the respondent this 13th May 2024 and the right of appeal is explained. F. H. KIWONDE JUDGE 13/05/2024 O Q