final RULING TANESCO V

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 30290 OF 2024 (From the award of the Commission for Mediation & Arbitration of DSM at Ubungo Labour Dispute No. CMA/DSM/UBG/86/19/59 delivered by Hon. Ng’washi, Y. dated 28th August 2024). TANZANIA ELECTRICITY SUPPLY COMPANY LIMITED.................................................................APPLICANT VERSUS STANSLAU KIZY...................................……….………………..RESPONDENT RULING OPIYO, J. This is an application for condonation to file revision application to challenge the decision of the Commission for Mediation and Arbitration of Dar es Salaam, Ubungo (CMA). The decision was issued on 28th August 2024. In the CMA, the Applicant claimed to have been unfairly terminated from his employment and prayed for compensation. The arbitrator found the termination was both substantively and procedurally unfair, hence awarded compensation for unfair termination. Aggrieved with the decision the applicant lodge first application, the same was rejected, being time barred. hence this application for extension of time. In her affidavit, the applicant 1 advanced a ground of technical delay and illegality as a reason to justify extension of time. Starting with technical delay, Pascas Alexander Masoye, State Attorney, in his submissions, submitted that, the gist of seeking extension of time, is due to technical difficulties at the court’s filing system, the application could not be approved by the Registrar as demonstrated by Ms. Nancy Mapunda in her sworn affidavit. In relation to that, Mr. Masoye argued that, the revision application was filed via e-filling on 8th October 2024, after which the applicant believed the application was accepted by the court for further steps. However, on 9th October 2024 afternoon, the office of Solicitor General became aware that the application was actually rejected on technical issues. She stated that, since it was late hours, it was not possible to access the court on that day. On the following day, the officer of Solicitor General made physical follow up in the court, and was informed that, for what transpired it was difficult to cure the problem, he was advised to apply for extension of time following the fact that the time to file the application for revision had already lapsed. On that advice, Mr. Masoye submitted that, the applicant filed an application for extension of time on 7th November 2024. Thereafter the 2 matter was called for hearing after courts satisfied itself that all pleadings were complete as per court order. However, the application for extension of time within which to file an application for revision was struck out with leave to re-file, for the respondent to amend the heading of the application to reflect the extension of time and not application for revision as it was indicated. She added that extension of time is discretional matter, but the same should be exercised judicial, as was discussed in the case of Lyamuya Contraction Company Limited V/s Board of Registered Trustee of Young Women’s Christian Association of Tanzania, Civil Application 2 of 2010 (unreported). In reply, Ms. Martina Nicola Lazaro, learned counsel, submitted that, the award was delivered on 28th August 2024. That, the applicant in this matter claims to have filed an application for revision on 8th October 2024, thereafter, it was rejected on technical issue, as per his affidavit. However, according to her, the allegation of technical delay holds no water. She further added that the applicant claim that she was informed by the Court that, the remedy on that circumstance is to re-upload the application for revision as per paragraph 2.16 of the affidavit which she failed to comply. Also, that, she filed an application for extension of 3 time without mentioning the alleged person who offered such advice, contrary Rule 20 of the Judicature and Application of Laws (Electronic Filing) Rules of 2018. In addressing the issue of technical delay, the Law governing timing for filing a Revision Application is Section 91 (1) of the Employment and Labour Relations Act, Cap. 366 of 2019 R.E. which directs the same to be filed within six weeks of the date that the award was served on the applicant unless the alleged defect involves improper procurement. On the above legal position, the records available shows that, the award was issued on 28 august 2024, and the first application for revision was filed on 8 October 2024 as per annexture 6. That means, it was filed within time as 42 days ended on 12 October 2024. Further to that, annexture 7 remarks that, there was a technical error in e- filing, by filing the application as Labour Application, instead of labour Revision. In the case of Fortunatus Masha v William Shija & Another [1997] TLR 154 which held that; - "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 has 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 4 the pronouncement of the ruling of the court striking out the first appeal. In these circumstances, an extension of time ought to be granted." From the above legal position, since the first application was filed within time, then an extension of time ought to be granted in this application, on technical delay grounds. In such circumstances, respondent’s allegation that applicant ought to mention the person who directed them regarding e-filling lacks merits, as the records itself justify technical delay. On that reasoning, I allow the extension of time to file revision application out of time against the decision of the CMA in Labour Dispute No. CMA/DSM/UBG/86/19/59. The same be filed within 10 days from the date of this order. It is so ordered. M. P. OPIYO, JUDGE 12/3/2025 5