tanzania cigarette company limited vs elizabeth kipuyo 2022 tzhcld 883 16 august 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISC. APPLICATION NO. 159 OF 2022 (Arising from Revision No. 326 of 2015, High Court of Tanzania Labour Division at Dar es Salaam, Hon. Justice LS. Mipawa, Dated 2&h day of October 2016) BETWEEN TANZANIA CIGARETTE COMPANY LIMITED ................. APPLICANT VERSUS ELIZABETH KIPUYO .............. RESPONDENT RULING S. M. MAGHIMBI, J, The applicant has moved this Court for orders extending time within which she can file a Notice of Appeal in respect of Labour Revision No. 326 of 2015, determined by the High Court of Tanzania, Labour Division at Dar es salaam, by Hon. I.S. Mipawa, J, on the 28th day of October, 2016. She is also seeking for any other reliefs) that this court may deem just and fit to grant. The application was lodged under the provisions of Section 11(1) of the Appellate Jurisdiction Act, Cap 141 R.E 2019 and Rules 24(1), 24(2)(a)(b)(c)(d)(e)&(f); 54(1)&(2), 55(1), (2) and 56(1)&(3) of the Labour Court Rules, G.N. No. 106 of 2007. The application is supported by an i affidavit of Mr. Frank Killian, learned advocate representing the applicant, deponed on the 19th day of April, 2022. In this Court, Ms. Glory Venance, learned advocate, represented the applicant while the respondent was represented by Mr. Josiah Samwel, learned Advocate. On her part, the respondent opposed the application by filing a notice of opposition and a counter affidavit of Mr. John Martin Silayo, learned advocate, dated 23rd May, 2022. The application was disposed by written submissions. The background of the current application as gathered from the records can be briefly narrated as follows; the Applicant herein was also an applicant in Labour Revision No. 326 of 2016, a judgment of which was delivered on the 28th day of October 2016 (Annex-IC-1). After delivery of Judgment in Revision No. 326 of 2015, the applicant herein timely filed Notice of Appeal on 11th November 2016 (annexure TC-2). At that time, there was legal requirement of obtaining leave before going to the Court of Appeal hence the applicant filed an Application for leave No. 24 of 2017 and on 17th July, 2017 the applicant sought and was permitted to withdraw the said application as the mandatory requirement for obtaining leave in Labour Matters was adjudged no longer a condition precedent. Thereafter, the 2 applicant filed Application No. 306 of 2017 praying for extension of time to file appeal to the Court of Appeal pursuant to Notice of Appeal filed in Court on 11th November 2016 and instead of granting what was prayed in Chamber Summons the Court ordered the applicant herein to file a fresh Notice of appeal to which the applicant complied with (Annex TC 5 and TC 6). Subsequently the applicant filed Civil Appeal No 172 of 2018 on 13th September pursuant to Notice of Appeal dated 13th August 2018 and on 22nd March 2022 when the said appeal was called for hearing at the Court of Appeal, the applicant was forced to withdraw the appeal following several technical issues including the presence of two Notices of Appeal hence the present application. Having considered the submissions of the parties, I find that I should not be detained much by this application. Since it is undisputed fact that the applicant had previously tabled his grievance at the Court of Appeal timely after getting extension of time in this court as per the background above, the only time that will be my concern is between the 22nd day of March, 2022 when the appeal at the Court of Appeal was withdrawn, to the 21st day of April,2022 when the current application was lodged (according to the e-filing report). 3 In considering the delay, the court considers many factors including the length of delay and whether it is inordinate. Since I am satisfied that the previous reasons for the delay were accepted by this court and extension was granted by the court, and considering the period of filing this application between the time when the Court of Appeal issued the order of withdrawal, which is less than one month, I find it just that this application is allowed which I so do. Time is hereby extended for the applicant to lodge a notice of appeal to appeal to the Court of Appeal against the judgment of this Court in Labour Revision No. 326 of 2015 dated 28th October, 2016. The notice of Appeal shall be lodged in this court within 30 days from the date of this Ruling. Dated at Dar es Salaam this 16th day of August, 2022. ^S^MAGHIMBI JUDGE 4