REV NO 11850 OF 2 024 JIMMY MWANKENJA VRS SWISSPORT TANZANIA PLC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 11850 OF 2024 CASE REFERENCE NO. 202405221000011850 BETWEEN JIMMY MWANKENJA................... ...... ........................... ........ APPLICANT VERSUS SWISSPORT TANZANIA P LC .............. . RESPONDENT RULING Date of last Order: 14/ 08/2024 Date of Ruling: 05/ 09/2024 MLYAMBINA, J. Aggrieved by the decision of the Commission for Mediation and Arbitration (herein CMA) dated 02/04/2024 in Labour Dispute No. CMA/OSM/ILA/413/21, the Applicant filed the present application on the following grounds: i. That, the Honourable Arbitrator errored in law and fact in dismissing the complaint for non-appearance of the Applicant. ii. That, the Honourable Arbitrator errored in law and fact in dismissing the matter for the first non-appearance of the Applicant. iii. That,the Honourable Arbitrator erred in law in deciding in favour of the Respondent. The matter was to be disposed by way of written submissions, however, none of the parties complied with the Court Schedule. Since there is an affidavit evidence and counter affidavit evidence, I find dismissing the application for non-compliance of the Court's order will be unjustified. In terms of the decision of this Court in the case of Atuwonekye Mwenda v. Hezron Mangula, Miscellaneous Application No. 05 of 2020, High Court of Tanzania at Iringa Sub Registry and the case of Stephen Ngalambe v. Onesmo Ezekia Chaula and Songea Municipal Council, Miscellaneous Land Application No. 05 of 2022, High Court of Tanzania, Songea Sub Registry; I hereby proceed to compose a decision based on the available affidavit evidence and the records of the CMA. The Applicant filed this revision application against an order of setting aside a dismissal order. As per Rule 28(l)(a) o f the Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN. No. 67 o f 2007wher\ the party who referred the dispute to the CMA fails to attend the hearing, the Arbitrator may dismiss the matter. Rule 28 (1) (a) (supra) reads together with Rule 28(2) o f the Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 o f 2007. In the case at hand, both parties did not appear at the arbitration proceedings. Hence, the Arbitrator dismissed the application. From the background of this application, it is my view that the Applicant was supposed to file application to set aside dismissal order at the CMA and not revision application before this Court. Such application should have been made before the CMA pursuant to Rule 29 o f GN. No. 64 o f2007. Thus, it is a settled position when a matter is dismissed for non-appearance, the application may be restored upon good cause shown. This is also the Court's position in the case of Catholic Relief Service v. Erasto Charles Bugoye & 7 Others, High Court Labour Division, Dar es Salaam, Revision No. 129 of 2011 [2013] LCCD 1 in which it was held: It is true that a matter dismissed for want of prosecution can be restored but only if the party adduces sufficient grounds for the alleged absence. In the event, I hereby dismiss the application for want of merits. Order accordingly. Y. J. MLYAMBINA JUDGE 05/09/2024 Ruling delivered and dated 5th September, 2024 at 14:25 hours in the absence of both parties. Right of appeal explained.