MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR-ES-SALAAM MISC. LABOUR APPLICATION NO. 16768 OF 2024 CASE REFERENCE NO. 202407151000016768 BETWEEN VIVO ENERGY TANZANIA LIMITED................................................. APPLICANT VERSUS OMAR SHAREEF......... ...................................................... ..........RESPONDENT RULING Date of last Order: 13/ 08/2024 Date of Ruling: 21/ 08/2024 MLYAMBINA, J. The Applicant herein filed the present application seeking for this Court to extend time within which the Applicant can file an Application for Revision of the Award of the CMA (Hon. Mikidadi, Arbitrator), in Labour Dispute No. CMA/DSMITEM/71/2021/54/2021, between Omar Shareef and Vivo Energy Tanzania Limited, dated 4th May 2024. The application was disposed by way of written submissions. The Applicant was represented by learned Counsel Mr. Ezron Jasson, and Ms. Oliva Mkanzabi, appeared for the Respondent. The Court is called upon to determine only one legal issue; whether the Applicant has adduced sufficient cause for the grant o f this application As rightly argued by both Counsel, the grant of 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. Such position was celebrated in the case of Mumello v. Bank of Tanzania (2006) 1 EA 227 Court of Appeal of Tanzania. Mr. Jasson submitted that the reasons for delay is that the Applicant had been diligent pursuing Revision Application No. 13382 o f2024, which in turn was struck out for being incompetent on 11th July 2024 and thereby rendering the Applicant time barred to institute a fresh Application. He submitted that the delay occasioned was purely technical and that the Applicant having been penalized for the striking out of Revision Application, No. 13382 o f 2024, constitute sufficient reason for extension of time. In support of submission, he referred the Court to the case of Fortunatus Masha v. William Shija and Another [1997] T.L.R 154 where it was held that: I am satisfied that 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 these circumstances an extension of time ought to be granted. On their part, the Respondent strongly disputed this application on the ground that the Applicant did not adduce sufficient cause for the delay. In support of her submission, Ms. Mkanzabi referred the Court to range of decisions including the case of Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 which stated guidelines to be considered in determining the application for extension of time. The following are the relevant guidelines: a) The Applicant must account for all the 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 he intends to take; d) 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 he challenged. Though it has been contested by the Respondent, it is my view that the delay to file the present application purely lies on technical delay. The record shows that the Award was delivered on 04/05/2024. Thereafter, on 07/06/2024 the Applicant filed Revision Application No. 13382 o f2024. The referred Revision Application was struck out on 11/07/2024 for being incompetent. Then, as clearly seen from the judiciary electronic case management system, the present application was filed on 12/07/2024. Under such circumstance, the delay is purely technical since the first application was filed timely but was struck out for being incompetent. It is my observation that at this juncture the Court will not be troubled with the reason for the striked out Revision No. 13382 o f2024 because any negligence of the Applicant or his Advocate (if any), has been already penalised by the striking out of the application. This is also the Court's position in the case of ZET Construction Company Limited v. Kalokora Bwesha & Cecilia Boniface Shiyo, (Civil Application No. 314/01 of 2022) [2024] TZCA 197 where it was held that: In the circumstance, the negligence, if any, really refers to the filing of an incompetent appeal not the delay in bringing it. The bringing 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. In the end result, it is my findings that the Applicant has adduced sufficient cause for the grant of extension of time prayed. Thus, the Applicant is hereby granted seven days leave to file the intended revision application. It is so ordered. Y.J. MLYAMBINA JUDGE 21/08/2024 Ruling delivered and dated 21st August, 2024 at 14:10 hours in the presence of learned Counsel Mr. Ezron Jasson, and Davis Vedastus for the Respondent.