JUDGEMENT RSM V

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 278 OF 2023 (Originating from Ruling of Labour Dispute No. CMA/DSM/ILA/R 1026/17/1084 delivered on 10th October 2023 by Faraja: Arbitrator) RSM EASTERN AFRICA……………………………..APPLICANT VERSUS MADUHU MATANA…….…….………………..………RESPONDENT JUDGEMENT OPIYO, J This is an application for revision in respect of the ruling in Labour Dispute No. CMA/DSM/ILA/R1026/17/1084 delivered on 10th October 2023. In this application the parties had an employment relationship. They came into conflict after termination of employment contract between them. This landed the applicant to the Commission for Mediation and Arbitration where it was alleged that, the respondent breached employment contract by resigning without paying three month’s salary in lieu of notice and training costs incurred by the employer. At arbitral stage the matter was heard ex parte for the alleged non-appearance of the respondent, hence applicant was awarded three month’s salary in lieu of notice, specific 1 damages and training costs incurred by the employer on him to the tune of TZS 61,575,686.46/=. Not satisfied with ex-parte award, the respondent filed application praying for a leave to challenge it. The prayer was granted and ex-parte award was set aside. The Applicant herein being aggrieved by the Ruling in the above labour dispute filed this application for revision on the following grounds: - 1. The Honourable Arbitrator erred in law and fact in failing to appraise the evidence given by the Applicant and thereby reached an erroneous conclusion of setting aside the ex-parte award. 2. The honourable Arbitrator erred in law, fact and procedurally by delivering a biased ruling against the Applicant during the proceedings. 3. That, honourable Arbitrator erred in law and fact for issuing a biased, irrational, improper, unreasonable, unsolicited and unlawful decision/ruling. 4. That, the honourable Arbitrator erred seriously in fact and law in failing to evaluate the evidence on the records. The application was disposed of by way of written submissions, applicant was represented by Ms. Elizabeth Mlemeta, while respondent was represented by Mr. Innocent Mkenda. 2 In support of the application, the applicant’s counsel started by adopting the contents of the Affidavits of Elizabeth John Mlemeta and Farida Hussein that were filed in support of this application to form part of their submission. She then proceeded to state to have noted some jurisdictional error that was committed by the CMA which in her humble view, vitiated all its subsequent proceedings and orders followed thereafter, which led to the revision at hand. She contended that, such concern is properly raised at this stage due to the trite law that the issue of jurisdiction can be belatedly raised even on appeal or revision as was held by the Court of Appeal of Tanzania in Tanzania Posts Cooperation vs Evaristo Miho (Civil Appeal No. 87 of 2023) [2024] TZCA 443 (11 June 2024) - TanzLII at page 9. Bringing her concern home, she submitted that, it is on record that on 11th November 2021 after the lapse of three years, the respondent made an application to set aside the ex parte award that was issued on 14th November 2018. The Applicant herein raised a preliminary objection on point of law stating that the application was time barred. The CMA (Hon. Faraja, Arb) sustained the said objection on 25th January 2021 following concession by the respondent, and proceeded to strike out the said 3 application for being time barred. However, it was surprising that the CMA proceeded to grant leave to the Respondent to refile a proper application within 14 days. It is her argument that, CMA having noted that the former application for setting aside the ex parte award, that is CMA/DSM/ILA/R1026/17/1084 was out of time, it was duty bound to dismiss it since this is the remedy available for a matter which is found to be time barred. Thus, having noted the matter to be time barred, the CMA was not vested with residual jurisdiction to grant leave to the applicant to bring the matter which was said to be time barred within 14 days as it did. The effect is that, such order given after the CMA admitting that such application was time barred, marked a conclusive determination of such application to the extent that, the order granting leave to file another application within 14 days was legally unjustified and unavailable. She therefore prayed that, this court be pleased to hold that the Commission for Mediation and Arbitration had no jurisdiction to grant leave to file another application within 14 days having agreed that the former application of like nature was time barred. She argued that, the CMA equally lacked jurisdiction to entertain all subsequent applications in respect of the award of Labour Dispute No. CMA/DSM/ILA/R1026/17/1084 after striking out the former application. 4 Consequently, the counsel submitted that all subsequent proceedings and consequential orders issued after 25th January 2022, including the Ruling dated 10th October 2023, leading to this revision were therefore nullity. To fortify her argument, she made reference to the decision of the Court of Appeal of Tanzania in the case of MM Worldwide Trading Company Limited & Others vs National Bank of Commerce Limited (Civil Appeal 258 of 2017) [2021] TZCA 192 (10 May 2021) - TanzLII) where the court had the following view regarding the issue where a suit was struck out instead of being dismissed: - “…the issue for our consideration is whether, upon the trial court striking out the former suit for being time barred instead of dismissing it, it was open for that court to entertain the second suit founded on the same subject matter … … It is clear to us that irrespective of the words used, the final order amounted to a conclusive determination by the trial court disposing of the former suit for being time barred. In our view, it was not open for the respondent to institute a fresh suit as it were, simply because the trial court struck out the former suit rather than dismissing it as mandated by section 3 (1) of the Act”. That, the Court in the cited case (Supra) citing with approval the case of Hashim Madongo and Two Others versus Minister for Industry and 2 others Civil Appeal No. 27 of 2003 (Unreported) where the 5 Court held that it is not open for a party to go back to the same court and seek extension of time upon finding the matter time barred. She further cited the case of Swila Secondary School vs Japhet Petro (Civil Appeal 362 of 2019) [2021] TZCA 169 (30 April 2021) - TanzLII), the court stated that:- “… The law is settled that, the issue of jurisdiction for any court is basic as it goes to the very root of the authority of the court or tribunal to adjudicate upon cases or disputes. Courts or tribunals are enjoined not to entertain any matter which is time barred and in any event they did so, the court unsparingly declared the proceedings and the consequential orders a nullity…” At page 12 of the same case the court held that: - “Since, in the present case, the application for setting aside the ex- parte award was time barred, the CMA lacked jurisdiction to entertain it. Therefore, the proceedings before it and the order setting aside the ex-parte award were therefore a nullity. The ex- parte award therefore remained unchallenged, hence intact as the learned judge rightly and firmly held.” Other cases he cited include the case of John Barnabas vs Hadija Shomari (Criminal Appeal 195 of 2018) [2019] TZCA 280 (28 August 2019) - TanzLII) where CAT held that 6 "Consequently, in fine with what we have endeavored to traverse above, we hold that the Ward Tribunal of Kinyangiri, lacked jurisdiction to entertain the land dispute which was lodged by the respondent because it was time barred. As a result, the proceedings before the Ward Tribunal and those subsequent thereto, were nullity and we nullify them." And cases of Chama Cha Walimu Tanzania vs Attorney General (Civil Application 151 of 2008) [2008] TZCA 12 (11 November 2008) - TanzLII) and Hodi (Hotel Management) Co. Ltd vs Yohana Ladislaus Malima and 211 Others (Labour Application 48 of 2021) [2022] TZHC 1169 (28 April 2022) - TanzLII where learned Mwaseba, J was of the view regarding the consequences of striking out the suit for being time barred instead of dismissing as follows: - “… it was wrong for the arbitrator to strike out the application which was time barred while its effect is to dismiss it…thus I hereby invoke the revisional powers and proceed to quash the order of striking out the application and hereby order that the CMA application be dismissed…” She concluded on the matter that, the above being the case, all subsequent proceedings and orders were nothing but a nullity. She therefore called upon this Court to exercise its revisionary powers conferred to by rule 28(1) of the Labour Court Rules, GN No. 106 of 2007, 7 to quash, nullify and set aside all the proceedings and subsequent orders of the CMA issued after the 25th January 2022. In reply to the concern, counsel for respondent, Mr. Innocent Mkenda simply submitted that according to the records of CMA at page 16 the applicant through his representative had accepted the respondent filing application for extension of time to file application to set aside ex parte order, which was filed as conceded to, no prejudice to the applicant proceeding the way the CMA did. Therefore, as CMA is a tribunal of equity which is bound by minimum legal formalities, the fact which requires it to deal with cases in substantive rather than stick to legal technicalities, by the arbitrator striking out the application and allowing the respondent to file application for extension of time to set aside expert award which its nature does not relate to employment relationship will never prejudice the right of the applicant. Parties’ submissions in regard to the applicant’s jurisdictional concern has been keenly considered. The above contentions by counsels brings us to the need to examine CMA proceedings painstakingly. According to the proceedings of 25/2/2022, the CMA did not grant leave to the applicant to bring application for setting aside ex parte award that was alleged to be time barred within 14 days as insinuated by Mlemeta. This is because, 8 what was alleged to be time bared was application for setting aside ex parte order not application for extension of time to file application for setting aside ex parte order. For clarity what transpired at CMA on that day, the 25th January, 2022 complained about as being a jurisdictional error runs as follows at pg 16 of the typed CMA proceedings “Yaliyojiri Mh. Upande wa pili wameleta P/O yao sisi kwa kuokoa muda tunaomba kuikubali(concede) na tunaomba muda wa kuleta application sahihi. Adv mlemeta/ Mleta P/O Hatuna shida na hilo, pili kesi hii pia ipo nje ya muda mtatakiwa kifile application ya extension ya muda kuanza kabla ya maombi yao mapya ADV/ Mjibu P/O hatuna pingamizi na hilo pia Tume: maombi yao yote yamekubaliwa, hivyo shauri hili linaendelea kwa order ya kuliondoa/ kuondoa maombi ya mleta maombi ili afuate utaratibu ndani ya siku 14 tokea leo” Literally translates it is that:- “Your Honour, The other side have brough the notice of objection, on our side in order not to waste time we concede and pray for leve to bring fresh application ADV Mlemeta/the one who filed the PO 9 we have no problem with that, however this matter is also time bared, they will need to file application for extension of time first before filing a fresh application Adv/ the one replying to the objection We have no objection to that as well Commission: the prayer is granted, therefore the application is struck out. To allow the applicant to take necessary actions within 14 days.” It is important to note here that, the application resulting to our current application is the application for extension of time to file ex parte award filed after the former application for setting aside ex parte award was struck out as per the above quoted proceedings. From the above quotation, we note that, there were two points of objections that were raised by the applicant at CMA. The respondents counsel had conceded to the first which had the effect of striking out the application for being incompetent. That is when the applicants counsel alerted the court that the applicant’s application would also be time barred, the fact that would require them to file for extension of time before filing a proper application afresh. It is at this point when the CMA decided not to leave it open endlessly for the applicant to take necessary steps relating to him filing fresh application for extension of time. 10 The necessary steps insinuated by both parties and the commission in the above quotation was filing for extension of time to file application for setting aside ex parte award out of time. It is the period for taking such necessary steps that the commission limited within 14 days instead of leaving it open for the then applicant to bring the application at any time he wished, no matter the duration. The 14 days were not leave for filing application for setting aside the ex parte award (that was alleged to be time barred) as wrongly argued by Mlelmeta, but for taking the necessary steps of filing application for extension of time to be able to file the time barred application (application for setting aside ex-parte award) out of time. In my considered view, based on what transpired afterwards, that was the understanding, both parties and the CMA had at the time of the order, because, the application for extension of time to file application to set aside ex parte order was indeed filed within the time frame (the 14 days). The application was heard inter parties to its conclusion on 10th October 2023 ending in favour of respondent by being granted extension of time to file application for setting aside ex parte award. He complied and filed the application within the time he was provided with. This application was also heard inter parties to its conclusion again in respondent’s favour or 11 the respondent, and the ex parte award was set aside, the fact that aggrieved the applicant, landing him to this court in the current application. The above quotation also reveals that, it is the then applicant’s advocate, one Elisabeth Mlemeta, (who is still her advocate in this matter) who brought the issue of necessity of seeking leave of the court to file the application for setting aside ex parte award out of time for the first time. The arbitrator just blessed the parties’ prayer. All these in my view, were made on the understanding that, by conceding to the first preliminary objection regarding defect in the affidavit had already rendered the application incompetent before the court. There was then no valid application to be dismissed for being time barred as Ms. Mlemeta is trying to argue now. What I see is that, the arbitrator was enjoined by the law to struck out the respondent’s incompetent application upon the then applicant’s advocate conceding to the first objection and that is what he correctly did, after which he was left with no application to measure the remaining objections, if any, against. I am not in conflict with the principle that, the remedy for time barred applications is dismissal rather that striking out in terms of the cases cited by the counsel for the applicant. However, I embrace the view that, the 12 principle is only applicable where there is competent application before the court which did not prior fall to the pray of incompetence for some other reasons or objections like in our case, in which, the application was already incompetent in terms of the first objection on defectiveness of affidavit. Conceding to the objection rendering application incompetent is as if erases the existence of the application. Therefore, nothing is left to be challenged for being time barred as there was no competent application before the court in the first place. In other words, conceding to the preliminary of objection having the effect of invalidating the application like the one in our case dealing with defectiveness of affidavit disposes the matter completely, making no need to consider further objections. It follows therefore that, since the application for extension of time was heard inter parties to the completion allowing the applicant to file the application to set aside the ex parte award and the application for setting aside the ex parte award was subsequently filled and heard inter parties to the completion, the applicant’s current objection is an afterthought that should not be left to strive. All along, the applicant had no problem with the decision of the commission allowing the respondent to file the respective applications. The problem arose when the ex parte award was 13 set aside. This seems purely an afterthought to me. Out of curiosity, one wonders if the applicant’s concern would have still brought forward by her, if the application for setting aside ex parte order was dismissed. I bet not, because the decision would be in her favour. From the above observation, I find no merit on the applicant’s objection or legal concern as the counsel call it. It is my finding that, the applicant’s concern is unfounded. It is therefore, overruled. Having overruled the applicant’s jurisdictional concern, I now turn on the merits of the application. In support of the application, the applicant started by submitting on ground two that, the arbitrator erred in law, fact and procedurally by delivering a biased ruling against the applicant during the proceedings, she submitted that, this dispute traces its origine back in 2017 in the Commission for Mediation and Arbitration (CMA) in labour dispute CMA/DSM/ILA/R1026/17/1084, whereby, the applicant herein lodged a labour dispute against the respondent on 27th September 2017 claiming breach of employment contract. She then continued to narrate the whole series of application leading us here today as also reflected in our brief background facts provided above, which, I would not wish to reproduce here. She then stated that, arbitrators are required to strive to 14 observe their competency on jurisdictional issues as conferred upon them by the law. That, irrespective of vigorous objections the applicant has been putting against the respondent’s applications before CMA, the CMA have been all along holding on respondent’s favour without basis. This makes the decisions biased against applicant as the Arbitrator failed to strive to observe his competency on the jurisdictional issues that were raised before the Commission as conferred upon him by the law. Thus, failure to uphold the rule of law. She contended that, because of that, she sees that, the legal process was not fair and just in accordance with the requirements of law. With that in mind, she argued that, the commission’s ruling dated 10th October 2023 that has been issued by the Commission in favour of the Respondent had no sufficient legal basis. She therefore, invited the court to nullify both the proceedings and the order of Arbitrator. Ground 1 and 4 were jointly argued. Ground one is that, the arbitrator erred in law and fact in failing to appraise the evidence given by the applicant and thereby reaching an erroneous conclusion of setting aside the ex-parte award. Ground four is that, the arbitrator erred seriously in facts and law in failing to evaluate the evidence on the records. That, the 15 CMA failed to critically and objectively appraise the evidence and grounds adduced by the applicant in opposition to the application for setting aside the Arbitration Award and as a result erroneously decided the matter in favour of the respondent. The counsel argued that, at page 5 of the ruling dated 10th October 2023 the arbitrator admitted that, the reasons adduced in applying for setting aside the award are not sufficient as the applicant, in person and through an advocate had appeared sometimes prior to the ex parte ruling against him and neglected to appear subsequently, but proceeded with granting his prayers in a false premise that, the amount involved is ‘huge’ and ‘for the sake of justice.’ She contended that, the sole ground of ‘hugeness of the amount involved’ and ‘for the sake of justice’ are not sufficient grounds. She argued that, the arbitrator was required to consider whether there were sufficient grounds for setting aside an ex parte award by considering the requirements provided under the law and case laws vis-à-vis the facts of the matter. To the contrary, the Commission decided to formulate its own grounds for setting aside the ex parte award being ‘amount involved’ and ‘justice’. To him, this was contract to the well-established legal principle that sufficient reasons for failure to appear on the date that was fixed for hearing are the pre conditions for a court to set aside its ex parte 16 order. To substantiate his arguments, he cited the case of Mbeki Teachers Sacco's Vs. Zahra Justas Mango, Revision No. 164 of 2010, High Court Labour Division at Mbeya, (Unreported) and Rule 31 of the Labour Institutions (Mediation and Arbitration) Rules, 2007 which explicitly states the principle of evidence appraisal. She continued to argue that, first, the courts of law are legally bound to critically and objectively evaluate the entire evidence on record, act impartially and provide relevant reasons to justify the findings. And second, discretionary powers of the Court are to be discretionarily exercised according to the rules of reasoning and not according to privileges with a spirit of demanding litigation to come to an end not denying prevailing parties rights of their victory. Therefore, the applicant’s opposition that the respondent had not provided sufficient grounds to move the Commission to exercise its discretionary powers to set aside the ex-parte award were in line with what the law requires. However, to the contrary, no summary of submissions on issues of law and authorities submitted by the Applicant were made when reaching into the decision by CMA decision. She argued that, absence of evaluation of evidence may lead to a wrong conclusion as was held in the case of Leonard Mwanashoka vs Republic 17 (Criminal Appeal No. 226 of 2014) [2015] TZCA 294 (24 February 2015) where court of Appeal was of the view that, failure to evaluate or an improper evaluation of the evidence inevitably leads to wrong and/or biased conclusions or inferences resulting in miscarriages of justice. Further that, in terms of holding in the cases of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 and Tanga Cement Co. Ltd vs Jumanne D. Masangwa & Another (Civil Application 6 of 2001) [2004] TZCA 45 (8 April 2004) - TanzLII), the unfettered discretion of the court has to be exercised judicially and the overriding consideration is that there must be "sufficient cause" for so doing. It is therefore her submissions that, the Arbitrator did not judiciously exercise his powers of judicial discretion as he considered grounds which are not guided by the principles of law, hence, arrived to an erroneous decision and worse enough, the Arbitrator did not demonstrate how the discretion has been exercised to reach to his decisions. He consequently persuaded this court to interfere with the discretion of the Arbitrator in order to bring justice to the Applicant herein who has failed to enjoy the fruits of the award that was issued in 2018 due to the 18 Respondents tactics of filing and refiling unnecessary applications that had been condoned by the Commission for Mediation and Arbitration. On ground three that, the arbitrator erred in law and fact for issuing a biased, irrational, improper, unreasonable, unsolicited and unlawful decision she submitted that, as submitted in ground 1 and 2 it is their further submission that the ruling delivered was irrational and improper because the reason for allowing the Application has no legal basis for failure to consider the submissions of the Applicant in opposition to the Application which caused injustice to the Applicant. She contended that, the fact that the Arbitrator admitted that the Respondent had a legal duty to make follow up of his case in person but failed to do so and that the arguments by the Respondent with regards to the forged summons were baseless, these alone were sufficient reasons to deny the application, but still out of baseless reasons and sympathy the honourable Arbitrator as had been done in the other applications in respect of the same subject matter set aside the award. This was contrary to the principle of law that courts should not be guided by misplaced sympathy: - ‘The law knows no sympathy and equity” as has been stipulated in numerous cases such as the case of Barclays Bank 19 Tanzania Limited vs Phylisiah Hussein Mcheni (Civil Appeal 19 of 2016) [2021] TZCA 202. Therefore, based on the fact that, the respondent failed to take action of setting aside the ex parte award since 2018 and applied for the same in 2021 three years later it is their submission that the Arbitrator acted irrationally, unreasonably and unlawfully in setting aside the ex parte Award. She thus, prays that this Court be pleased to set aside the orders by CMA. On his side the respondent’s counsel stated briefly that the arbitrator was right to set aside the ex parte award because some of the reliefs granted did not fall within the employment relationship entitling applicant to all the award he was awarded as claimed. And that since 2019 when such ex parte award came to the knowledge of the respondent, he has been in court seeking for the above award to be set aside until 10th October 2023 when the CMA decided to set aside the award, he has not slept on his right. In determining the first point we have seen that there is no rule of law that was breached by the arbitrator to take a blame for as insinuated by the counsel. It is now prudent to tend to look on the merits of the application for which the applicant argued that, there was no sufficient 20 legal basis relied upon by the arbitrator in setting aside the ex parte award. That, the arbitrator failed to critically and objectively appraise the evidence and the grounds adduced by the applicant in opposing the application for setting aside arbitral award, resulting to erroneously deciding the matter in favor of the respondent. On the grounds the respondent generally submitted that not all the claims were among terms of their employment contract but CMA proceeded ex parte in granting them all in favour of applicant including refund for training costs allegedly applied on the respondent while saving the applicant as an employee. As a general rule the Commission may condone any failure to comply with the time frame on good cause being shown. It is true that in setting aside ex parte order/award or decision, sufficiency of reasons for failure to appear forms the basis for consideration as argued by the applicant’s counsel. However, categories of sufficient reasons are not limited to certain ascertained factors. It is left to the discretion of the decision maker depending on the circumstances of each case. The term "sufficient cause" has been shown to be open ended by the Court of Appeal in the case of Tanga Cement Company Limited v. Jumanne D. Masangwa Amos A. Mwalwanda, Civil Applicant No. 6 of 2001. The issue is now whether the 21 respondent had adduced sufficient cause to be granted the prayer of setting aside ex parte award. The applicant maintained that the respondent had no sufficient reasons to attract positive decision on his side. Her counsel made reference to rigorous objection she has been putting against various respondent’s applications at CMA which however ended in respondents favour to insinuate biasness on part of the arbitrator. This to me, is a misconception as all decisions are independent of one another to the extent that one’s victory in one cannot be used against him in a different case/matter as being favoured. Outcome of the matter in one case is independent of the other as each entail different considerations depending on particular facts and requirements in each case. Therefore, referring to one winning in each one of those cases as indicating biasness against the other is wrong since in each case, particular facts determine the outcome and one considers no external facts from a particular case. It follows therefore that, the applicants claim of biasness against him at CMA because of respondent success in different applications is baseless. This also goes to the argument that the arbitrator failed to strive to observe his competency on the jurisdictional issue that was raised by the applicant leading to failure to uphold rule of law. Now that we have found 22 that the jurisdictional issue the applicant raised accusing the arbitrator for ignoring is actually unfounded, this line of argument is also rendered baseless. On ground 1 and four that the arbitrator failed objectively to appraise the evidence put before it by the applicant in opposition, the applicant argued on the insufficiency of reasons adduced by respondent for setting aside ex parte award. Indeed, the applicant had put forward evidence of respondent’s involvement in the case at the early stages of the matter before disappearing. But it is also on record that respondent’s disappearance resulted from some issues that kept him outside for long that might have prevented him from tightly following up on the matter, allowing some lenience on applicant’s reasons for absence by CMA. It is also noted that during that period of alleged respondent’s silence, the applicant was also not idle. He was filing various applications for execution, including application number for 21 of 2019, application for execution number 106 of 2021 seeking for an order for imprisonment of the respondent as a civil prisoner as per Annexture RSM 10 at the same time. So these parties has been on unending and long trail of legal battle against each other. Given the consequences of such application, the court can go beyond the already set factors by taking holistic approach situation 23 analisis. This may include peeping on the wider viability of the ex parte award/decision as the CMA did. This is what we call holistic appraisal of evidence. In appraisal of the evidence, holistic approach is usually adopted where the entire evidence and records are considered in reaching a decision. This usually goes to the extent of critically examining the ex parte decision that is sought to be set aside. It is from there where the arbitrator noted the amount awarded and the way it was arrived at and decided that given the hugeness of the amount for the end of justice, the award be set aside to enable inter parties hearing. It is a common understanding that, discretionary powers are judicial and has to be exercised judiciously. For that reason, it is not wrong for the one exercising the powers to peep on the wider effect or viability of the decision intended to be set aside. In the impugned decision, the centre of dispute is on the amount to be refunded by the respondent to the applicant. My glance to it also reveals that it is not very certain how the amount was arrived in the ex parte award. This kind of uncertainty is likely a sufficient cause that can persuade the court to exercise discretionary powers in favour of the party who was not heard when the award or decision was not reached regardless of his reasons for absence. After all, 24 setting aside an ex parte decision is not a total denial of the of the decree holders right, rather, it is allowing relooking on the matter in presence of both sides. Therefore, setting aside ex- parte decision is not solely limited in consideration of reasons for absence as argued by the applicant. Assuming so will be putting a limit to the discretionary powers usually available to the decision maker in the circumstances. With that in mind the arbitrator did not err in law by reaching conclusion putting into consideration wider end of justice in setting aside the ex parte award. I would also reach the same in the circumstances of this matter. For the reasons, this application is dismissed and the decision of CMA setting aside ex parte award is upheld. The file is remitted back to the CMA for the rehearing of the matter to proceed inter parties. M.P. OPIYO JUDGE 19/9/2024 25