MKURUGENZI KIMBINYIKO INTERNATIONAL CO LTD VS BALTAZARI JOEL MANYIKA

IN THE HIGH COURT OF TANZANIA DODOMA SUB- REGISTRY AT DODOMA MISC LABOUR APPLICATION NO. 10436 OF 2024 (Arising from Labour Disputed No. CMA/DOM/121/2019/23) BETWEEN MKURUGENZI KIMBINYIKO INTERNATIONAL CO LTD ………………………………..APPLICANT VERSUS BALTAZAR JOEL MANYIKA ………………..………….RESPONDENT RULING Date of last order: 12/11/ 2024 Date of the Ruling: 02/12/ 2024 LONGOPA, J.: The applicant and respondent were parties to employment agreement whereas the respondent used to work as a driver at applicant’s company since 2012 and the employment agreement was terminated on 24th September 2019 which gave rise to the Labour Dispute No. CMA/DOM/121/2019/23 that was determined in favour of the respondent. The Commission for Mediation and Arbitration (CMA) found in favour of the respondent for unfair termination. It that decision/ Award of the 1|Page CMA that the applicant intends to challenge. However, time has lapsed thus this instant application. This is an application for extension of time to file an application for revision preferred under Rule 24(1) Rule 24 (2)(a), (b), (c), (d), (e) 24 (3) (a), (b), (c)and (d) and 56(1) of the Labour Court Rules, 2007 (G.N. No 106 of2007). This application was filed on 8th May 2024 on the following prayers: 1. That, the honourable Court be pleased to grant order for Extension of time within which to file a Revision of the CMA Award with Ref. No. CMA/DOM/121/219/24 dated 2.3.2020, by Hon. Matalis, R. Arbitrator, at Dodoma, out of time 2. Costs to abide the result of this Application 3. Any Other relief(s) this Honourable Court deems fit and just to grant. The application was supported by an affidavit of one Issa Salum Abdallah, a Principal Officer of the applicant. The application was opposed by a counter affidavit of the respondent, Mr. Baltazar Joel Manyika. On 12th November 2024, both parties appeared before this Court for viva voce hearing of the application for extension of time. The applicant 2|Page enjoyed the legal services of Mr. Leonard Haule, learned advocate and the respondent was represented by Sostenes Mselingwa, learned advocate. The applicant counsel commenced the submission by adopting the affidavit in support of the application contained in the Chamber Summons. It was reiterated that the application was preferred under Rule 24(1), (2) (a), (b), (c), (d), (e) and (f), 3(a), (b), (c) and (d); and Rule 56(1) of the Labour Court Rules 2007 GN No 106 of 2007. The applicant stated that being aggrieved by Award of Commission for Mediation and Arbitration in CMA Award No. CMA/DOM/ 121/ 2019/24 pronounced on 2nd March 2020 by Hon Matalis R, Arbitrator preferred an application for revision. The decision resulted to the filing of the Labour Revision No 14 of 2020 in the High Court of Tanzania Labour Court Division at Dodoma. It is argued that on 13/04/2020, the applicant brought the application for filing the same and handed over to the one Fatuma Nkamirwa, Court Clerk. According to the applicant, the Court Clerk informed the applicant that on that date the filing system was down and 3|Page inoperative and that there was a pile-up of cases in que waiting to be filed. Therefore, the Court Clerk advised the applicant to follow up the documents on 14/04/ 2020. On the second day 14/04/ 2020, the filing of the application was successful thus the applicant was given the hard copy. It was further stated that when the Labour Revision No 14 of 2020 came for hearing on 07/08/2023, the Presiding Judge Hon Hassan J. noticed suo motto that the matter was time-barred by one day therefore he struck out the Labour Revision No 14/ 2020. According to the applicant, striking out of the application was promptly acted upon by the applicant whereas on 15/08/2023, the applicant filed Miscellaneous Labour Application No 10 of 2023 for extension of time was struck out on 29/ 4/2024 for wrong citation of enabling provision of the law. Immediately, the applicant filed Labour Application No 10436/2024, the instant application. It was stated further that application for extension of time to succeed, the applicant must show good cause for the delay. It was the submission by applicant that the applicant has met the conditions for the 4|Page order of extension of time to be issued as it stated in the Registered Trustees of Khoja Ithnasheri Jamat and Others versus Salum Juma Jussa and another, Civil Application No. 44 of 2017 at pages 9-10, the principles were laid down as contained in the following guidelines may be formulated:- The applicant must account for all the period of delay; the delay should not be inordinate; the applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and 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. On account of all days of delay, it was submitted that the days of delay in the instant application was only one day that the 14th April 2020 on which the revision number 14/2020 was in the hands of the Court Registry as stated in Paragraphs 4-7 of the affidavit in support of the application. On the second aspect is that delay should not be inordinate, it was submitted that the one-day delay was never inordinate and it was not caused by the applicant. 5|Page With regard to third aspect relating to diligence on part of the applicant and absence of negligence or sloppiness, it was submitted that there was no negligence on part of the applicant in this matter as he acted promptly. On sufficient point of legal importance, it was submitted that these conditions are not cumulatively in nature. It is only important to show good cause that is what the applicant was required to do. The illegality has not been pleaded in the application thus no paragraph in the affidavit in support of the application reiterates about this point but this court is not precluded from determining existence of the illegality in the decision of the CMA to warrant extension of time. It was argued that with regard to supplementary affidavit as per Court Order that the applicant managed on 26/07/2024 to file the supplementary affidavit while the respondent's counter affidavit to supplementary affidavit was filed on 19/08/2024 which was 13 days late beyond the time contained in the order of the Court without the leave of the honourable Court. It was reiterated that the failure to file counter affidavit timely amounts to have not filed a counter affidavit thus the application is not 6|Page opposed by the respondent. Under such circumstances, the respondent is precluded by the law to defend on points of facts. He can only submit on points of law. This was the position of the Court of Appeal in the case of Yusuph Mulla and another versus International Commercial Bank (T) Limited, Civil Application No 192/16 of 2023 [2024] TZCA 852 (4 September 2024) TANZLII, at page 4. The applicant concluded by praying that this court be pleased to find the application meritorious thus application be granted to pave the way for hearing of the Labour Revision No. 14 of 2020 on merits. On the other hand, the counsel for respondent commenced his submission by adopting the counter affidavit of one Baltazar Joel Manyika to form part of the submissions for the respondent. The application was opposed on the following reasons:- The respondent argued that the CMA Award was pronounced on 02/03/2020 in presence of both parties and it was supplied on the same day. The Award stated categorically that the application for revision must be preferred within six (6) weeks whereas the unsatisfied party was required to take immediate action. 7|Page It was reiterated that the Counsel for applicant stated that this application was filed on 05/07/2024 which was filed after three years, four (4) months and three (3) days which is the period of delay. The applicant has failed to account for each day of delay which the applicant has not stated before this Court. It is obvious that the applicant had no good cause for such delays. As such, it was respondent’s view that the affidavit of the applicant does not state about the whereabouts of the applicant on all those days which they did not pursue their rights. The respondent argued further that it is not a single day of delay as asserted by the applicant and reiterated that in the cited case of Khoja Ithnasheria Jamaat, the Court emphasized on the need to account for every day of delay of the applicant failed to account and all the criteria have not been established. Therefore, it was the respondent submission that the application stood objected as there were no cogent reasons for the extension of time as there is no illegality on the CMA Award as the affidavit does not disclose. 8|Page On the last aspect of the counter affidavit for the supplementary affidavit, the respondent submitted that the same was filed timely thus there was nothing to complain on party of the applicant. In rejoinder, the applicant stated the supplementary affidavit states clearly that the account of every day of delay. The six weeks period ended in 13/04/2020 and it is the same date when the applicant submitted the same for filing in court. It is supported by the affidavit sworn by the Court Clerk as Annexure MK- 3 to the affidavit. According to the applicant, there was no delays for three years four months and three days as alleged. It was further argued that eventhough that the same would be correct that delay was for all those three years, a good cause would have been shown in technical delay as the applicant was in the corridors of the Court prosecuting various related applications on the same matter including Labour Application No 14 of 2020 that was struck out on 07/08/2023 before Hon Suleiman Hassan, J. It is noted that promptly filed a Labour Application No 10 of 2023 and the same was struck out by Hon Kokalaki, J for citation of wrong provision of the law. It is at this juncture when the applicant immediately filed the 9|Page Labour Application No. 10436 of 2024 that is the instant application before this Court. The chronological order of events shows that the applicant was in this Court pursuing his rights from day one. This would have catered for the technical delay principle in accounting for every day of delay as stated in the case of Fortunatus Masha vs William Shija [1997] TLR 154 thus extension permitted on technical delay grounds. It was the applicant's submission that on the strengths of all these submissions and authorities cited, this application be allowed to see the light of the day by allowing it to pave the way for hearing on merits of the application for revision i.e. Labour Application No 14 of 2020. That is all. Having heard the rival submission of the parties to this application, I have dispassionately considered the application in light of applicable legal principles to find out the validity of the application. Extension of time involves exercise of discretionary powers of the Court which must be exercised judiciously on existence of good cause on the part of the applicant. In Shoprite Checkers Tanzania Limited vs Commissioner General of Tanzania Revenue Authority (Civil Application No.358 of 2021) [2023] TZCA 17379 (3 July 2023) (TANZLII), 10 | P a g e at pages 5-6, the Court stated that: As per rule 10 of the Rules the extension of time is granted where the Applicant has shown good cause for the delay. The good cause is determined by considering various factors, including promptness in taking action after one has learned of the delay, considering whether the Applicant has accounted for each delayed day, and the existence of the sufficient point of law such as illegality of the decision sought to be impugned. See; Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 4; [03 October, 2011, TANZLII], Ngao Godwin Losero v. Julius Mwarabu, Civil Application No. 10 of 2015 and Regional Manager Tanroads Kagera v. Ruaha Concrete Company Limited, Civil Application No. 96 of 2007 all unreported. In Lyamuya Construction case (supra) this Court stated that: "As a matter of general principle, 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 11 | P a g e 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; and (d) If the court feels that there are other sufficient reasons, such as the existence o f a point of law of sufficient importance; such as the illegality of the decision sought to be challenged." The applicant affidavit that supports application has stated about the cause of delay. According to the affidavit, the following aspects can be discerned from the applicant, namely: one, the decision of the CMA was delivered on 2nd March 2020 in favour of the respondent. Two, the applicant was dissatisfied by the Award thus preferred a revision. Three, on 13th April 2020 well-within time, the applicant presented the application before the Court for filing and the same was received by a court clerk who informed the applicant that filing system was not properly working on that material date. Four, the filing of the application was successful on 14th April 2020 whereas the applicant received his copy of the filed application as Labour Revision No 14 of 2020. Five, the matter stayed in court until 7th August 2023 when the Court suo moto struck it out for being filed out of time for one day. Six, the applicant promptly filed a Miscellaneous Labour 12 | P a g e Application No. 10 of 2023, which was struck out on 29th April 2024, hence this Application. Seven, the applicant states to have acted diligently and promptly in prosecution of the matter. Indeed, the affidavit of the applicant is well supported by the affidavit of court clerk who asserts to have received the application from the applicant on 13th April 2020 for filing. The supporting affidavit is from a Court Clerk who attended to the matter on that particular date. It reveals that actually the documents were received by the Court on 13th April 2020 which was within time but the system was not functioning properly thus led to delay of the admission of the same by a single day. According to this supporting affidavit, the application was dully filed on 14th April 2020. On the other hand, the counter affidavit of the respondent vehemently states in opposition to the averments in the applicant’s affidavit. It reveals that: First, the court should not be blamed as the counsel knew about timeliness to file relevant application for revision. Second, the applicant did not take a due care to meet the deadline. Third, it was the duty of the applicant to know whether he was within time or out 13 | P a g e of time. Fourth, the respondent has no employment since 2020 while dependent by his family. Considering the contents of affidavit of the applicant and counter affidavit of the respondent, it is clear that time of delay is articulated in two limbs. It was the applicant’s view that the application for review was presented to court timely on 13th April 2020 which was the deadline for preferring an application for revision within time. According to the applicant the presentation was accepted by the Court filing system was inoperative on that material date and the applicant was so informed. The filing was successful on 14th April 2020 which was one day late. The affidavit by the Registry Officer affirms the assertion by the applicant’s officer that there was no negligence on party of the applicant to file an application timeously. It is clear that he acted diligently save for court’s system inoperative on the fateful date. It appears pertinent that affidavit of the applicant and supporting affidavit from the Court clerk absolves the applicant from being late in that single day. 14 | P a g e For this court to grant extension of time there must be a good and reasonable cause in doing so. In the case of Barclays Bank Tanzania Limited vs Phylisian Hussein Mcheni (Civil Application 176 of 2015) [2015] TZCA 255 (30 December 2015) (TANZLII), the Court of Appeal stated that: Under rule 10 of the Rules the Court has wide discretionary powers to extend the time for the doing of any act provided good cause has been shown. What constitutes good cause differs from case to case. This Court, in Joel Silomba v. R., -Mbeya Criminal Application No. 5 of 2012 (unreported) held that among factors to be considered in an application for extension of time under rule 10 of the Rules are: (a) The length of the delay; (b) The reason for the delay- whether the delay was caused or contributed by the dilatory conduct of the applicant?; (c) Whether there is an arguable case, such as, whether there is a point of law or the illegality or otherwise of the decision sought to be challenged. Accordingly, the delay of filing of the application for a single day of 14th April 2020 while the same was supposed to be filed by 13th April 2020 was very short delay. Further, the reason for delay was beyond the control of the applicant as it was caused by inoperative nature of the filing system 15 | P a g e of the court on that material date. Thus, the delay was not attributed to negligence of the applicant. The applicant has demonstrated that actually he was prevented by a good cause that delayed filing of the application within time prescribed by the law. On the other hand, it is to the satisfaction of this court that period from 14th April 2020 to 29th April 2024, the applicant has been in this Court’s corridors prosecuting different applications relating to this matter. These were the Labour Revision No 14 of 2020 and the Miscellaneous Labour Application No 16 of 2023. It has been decided by the superior Court in this jurisdiction that a person who is in pursuit of right in judicial systems whether in proper forum or otherwise to amount to sufficient cause in respect of time limitation. For instance, in the case of Tanzania Rent a Car Limited vs Peter Kimuhu (Civil Reference No. 28 of 2019) [2023] TZCA 94 (10 March 2023) (TANZLII), at page 12, the Court of Appeal observed that: Although it was rejected by the Single Justice for not constituting good cause, we are of the considered view that in the circumstance of this matter it does. The efforts which were made by the applicant above indicate that the 16 | P a g e applicant regardless of whether she took a right or wrong course of action or whether she was represented or not, she was busy in pursuit of her rights. In other words, she did not lie idle. Further, in the Bank M T. Ltd vs Enock Mwakyusa (Civil Application No. 520 of 2017) [2018] TZCA 291 (25 October 2018), at pages 8-10, the Court noted that: In Rwegasira (supra), for instance, the full Court quoted the holding and subscribed to the position taken by a single Justice of the Court in Fortunatus Masha (supra), the holding which I cannot resist the urge to recite here: "A distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case the applicant had acted immediately after the pronouncement of the ruling of the Court striking out the first appeal. In these circumstances an extension of time ought to be granted." 17 | P a g e In Fortunatus Masha (supra) a single justice of the Court had put it this way at p. 155: "... a distinction should be made between cases involving real or actual delays and those like the present one which only involve what can be called technical delays in the sense that the original appeal was lodged in time but the present situation arose only because the original appeal for one reason or another has been found to be incompetent and a fresh appeal has to be instituted. In the circumstances, the negligence if any really refers to the filing of an incompetent appeal not the delay in filing it. The filing of an incompetent appeal having been duly penalized by striking it out, the same cannot be used yet again to determine the timeousness of applying for filing the fresh appeal. In fact, in the present case, the applicant acted immediately after the pronouncement of the ruling of this Court striking out the first appeal." Given the circumstances in instant case, and the applicant’s promptness in acting, it is firm view of this Court that all the time spent in pursuit of the applicant’s rights through the Labour Revision No 14 of 2020 that was struck out for being delayed by a single day through ruling dated 7th August 2023 and Miscellaneous Labour Application No 16 of 2023 that 18 | P a g e was struck out for wrong citation are considered to be technical delays that are not attributed to neither sloppiness nor negligence of the applicant. In totality of the events, it is settled view of this Court that the application has merits and it is hereby granted. The applicant is granted a total of thirty (30) days from today to file an application for revision to challenge the CMA Award in Labour Dispute No CMA/DOM/121/2019/23. Each party shall bear its own costs with regard to prosecution of this application. It is so ordered. DATED at DODOMA this 2nd day of December 2024 E.E. LONGOPA JUDGE 2/12/2024. 19 | P a g e