kafoi estates limited vs elias obadia kimarion 2023 tzhcld 1371 10 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT MOSHI MISCELLANEOUS LABOUR APPLICATION NO. 14 OF 2021 (Arising from award of the Commission for Mediation and Arbitration at Moshi CMA/KLM/MOS/ARB/49/2020j KAFOI ESTATES LIMITED APPLICANT VERSUS ELIAS OBADIA KIMARIO RESPONDENT RULING 25th January, 2022 & io= February, 2023 A.P.KILIMI, 1.: The applicant has moved this court by way of chamber summons under rule 24 (1), Rule 24 (2) (a), (b), (e), (d), (e), (f). Rule 24 (3) (a), (b), (e), (d) and Rule 56 (1) of the Labour Court Rules, GN No; 106, 2007) praying for the following orders; first, this Court be pleased to grant an extension of time for him to file revision against an award of the Commission for Mediation and Arbitration at Moshi 'hereinafter the Commission' issued in CMA/KLMjMOS/ARB/49/2020 dated 28th April, 2021 and second any other relief(s) as this Court may deem just to grant. 1 The applicant has supported this prayer by duly sworn affidavit of his Managing Director one Felix Mosha, while the counter affidavit has been sworn by one John Lunodzo Vahaye , the Principal Officer of the Respondent Trade Union and legal representative of the Respondent. When the matter came for necessary orders, both parties acceded for written submissions, with the leave of this court, the schedule of filing the same was made and I thank both parties for their timely compliance of the schedule issued and the same will be referred in due course of this application. In the affidavit supporting the application, Mr. Felix Mosha averred that, on 28th April 2021 the Commission delivered its award, ordering payment of Tshs. 3,150,000/- as outstanding salaries for the Respondent. Dissatisfied with the Commission's decision, on 8th June 2021 the Applicant through his advocate, John Mushi, filed an application for revision challenging the award of the Commissionon several grounds, among others, that the Arbitrator decided the complaint by relying on documents which were not produced and admitted as exhibits. 2 Further at para twelve stated that, the said application was filed electronically as required and the advocate received a proof that the said application has already been submitted and it was waiting for admission. The said proof is a print out of electronic filing and he has attached a copy of which is marked "IKEL-4". At para 13 he added that his advocate made a close follow up at the judiciary online e-filling system but the status continues to be the same that the application was pending for admission. Later on 23rd August 2021 the Applicant's Advocate requested another attorney, Mr. Gideon Mushi to inquire with this Court's registry on the status of the said application. The affidavit further maintained that, upon inquiry, Mr. Gideon Mushi was informed that the Applicant's application for revision was supposed to be filed to High Court (District Registry of Moshi) at Moshi and not High Court (Labour Division) at Moshi. The deponent further averred that, the failure to file an application for revision within the prescribed time was not occasioned by Applicant's negligence, because initially he lodged the application within time but due to changes made by the judiciary e-filling system, which the Applicant was not notified, the Applicant's application was not admitted within the prescribed time. 3 In the other hand, the respondent through counter affidavit refuted all of the above and desired the applicant to proof them. I have considered parties averment on their affidavit and their written submissions, the point to be considered is whether the applicant has established sufficient ground to the satisfaction of this court. It is trite law that an application for extension of time is entirely in the discretion of the Court to grant or refuse it, and that extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause. (See the case of Benedict Mumelo v Bank of Tanzania [2006] 1 EA 227). Meanwhile it in principle what constitutes "sufficient reason" cannot be laid down by any hard and fast rules. This must be determined by reference to all the circumstances of each particular case. This means that the applicant must place before the Court necessary material which will move the Court to exercise its judicial discretion in order to extend the time limited by the rules. (See Regional Manager TANROAD Kagera v Ruaha Concrete Co. Ltd, CAT Civil application No. 96 of 2007, at DSM (Unreported). 4 Thus, being guided by the above legal principles, I have considered the submissions of both parties, in principle submission is not evidence, they are required to elaborated the law and expound what has been averred in the affidavit. The respondent in his submission has encountered that the applicant did not account each day of delay. I have an ample time to inquire into court registry and online submission system. I have discovered it is true that the said Labour Revision was filed electronically on 08th June, 2021 as provided in the said acknowledgment which was submitted as annexure KEL -4, through applicant affidavit. Therefore, the fact that, the applicant filed electronically as required by the Judicature and Application of Laws (Electronic Filing) Rules, 2018, G.N. No 148 of 2018 and the Applicant was issued with a proof that the said application has already been submitted and it was awaiting admission, he has referred the said acknowledgement print out at paragraphs 11 and 12 and which was also annexed as annexure KEL -4 in his affidavit. And the fact he made a close follow-up at the judiciary online e-filling system but the status was still the same that the application was pending for admission. And later when one Mr. Gideon Mushi went physical to the court where he was 5 informed that the Applicant's application for revision was supposed to be filed to High Court (District Registry of Moshi) at Moshi and not High Court (Labour Division) at Moshi. It therefore my considered opinion, the court contributed much to the said delay, nonetheless, the said delay is shielded by the so called technical delay, because the way I see it was not the negligence of normal human error. The fact that Commission for Mediation and Arbitration delivered the award on 28th April 2021 and application for revision was filed on 08th June 2021, I concede with the averment of the applicant that the same was filed within the prescribed time of 42 days in terms of Section 91(1) (a) of the Employment and Labour Relations Act (Cap 366 R.E 2019). Thus, in view of the above to my opinion the delay in filing the said revision was not actual. It was a mere technical delay. In the circumstance, I have no hesitation to hold that, as the said revision was filed within time, therefore it was not the fault of the applicant since he was not negligence on his part, by so doing this situation in my view constituted sufficient cause for extension of time, since it a matter of law that, a technical delay amounts to a reasonable or sufficient cause for extending time. (See the case of Fortunatus Masha vs William Shija and Another [1997] TLR 154) 6 Having observed above, I am settled this reason stated is enough to dispose this application, I see no need to extend to other reasons such as illegality which also was submitted by the applicant. For the above reasons, I find it justifiable to grant the application. However, I will not condemn any party to pay costs since the court also contributed to the circumstances that led to this delay. In the upshot, the application is allowed. Let the applicant file his intended revision within thirty (30) days from the date of delivery of this Ruling. It is so ordered. JUDGE 7 ') "7- __