Euro Commercials Limited Vs Victor Karega (Miscellaneous Labour Application No 15221 of 2024) 2024 TZHCLD 163 (10 September 2024)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
LABOUR DIVISION
AT DAR-ES-SALAAM
MISC. LABOUR APPLICATION NO. 15221 OF 2024
CASE REFERENCE NO. 202406271000015221
BETWEEN
EURO COMMERCIALS LIM ITED.........................................................APPLICANT
VERSUS
VICTOR KAREGA............................................................................ RESPONDENT
RULING
Date of last Order: 16/ 08/2024
Date of Ruling: 10/ 09/2024
MLYAMBINA,J.
In the instant matter, the Applicant is praying for this Court to grant
extension o f time to file an Application for Revision o f the Ex-parte CMA
award delivered by the Hon. Arbitrators. Ndonde, on the 4 h day o f October,
2022 in Labour Dispute No. CMA/DSM/ILA/551/22. The dispute emanates
from the following background; That, on the 9th March, 2022, the
Respondent referred a complaint to the Commission for Mediation and
Arbitration (herein CMA) claiming for breach of contract. The matter
proceeded ex-parte in absence of the Applicant herein. The dispute was
determined in favour of the Respondent. The Applicant alleges that on the 8th
December, 2022 he became aware of the existence of the ex-parte CMA
Award after she was served with a copy of the Award and Application for
Execution No. 520 o f2022 at the High Court of Tanzania Labour Division of
the said ex-parte Award.

That, immediately after being served with the ex-parte Award and
application for execution, the Applicant on the 12th of December, 2022 filed
an application at the CMA for setting aside the ex-parte Award delivered
against her. Such application was dismissed for being filed out of time. That,
the Applicant is still interested in challenging the ex-parte Award delivered
against her, hence this application.
The application proceeded by way of written submissions. The
Applicant was represented by Mr. Patric Malewe, learned Counsel. On the
other side, the Respondent appeared in person.
After considering the rival submissions of the parties I find the Court is
called upon to determine one issue; whether the Applicant has adduced
sufficient cause for the grant o f extension sought
In deciding this application, the Respondent pleaded the Court to be
guided by the principles stated in the daily cited 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 where it was held as follows:
As a matter of general principles, 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 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.
(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 be challenged.
In the affidavit in support of the application, the Applicant pleaded the
following reasons for the delay to file the intended application.
That, the Hon. Arbitrator erred by determining referral No.

CMA/DSM/ILA/551/21, without affording the Applicant the
right to be heard.
That, the Hon. Arbitrator determined referral No.

CMA/DSM/ILA/551/21 illegally by awarding the Respondent
a claim for severance pay after making a finding that the
Applicant breached the Respondent's employment contract.
That, the Hon. Arbitrator erred by determining referral No.

CMA/DSM/ILA/551/21 oblivious of the existence of a
defective CMA form no. 1 which had claims which do not
co-exist.
As observed above, the Applicant is pleading illegality and irregularity of
the challenged decision. From the case of, Lyamuya construction (supra),
illegality of the challenged decision can stand as a good ground for the grant
of extension of time. Again, in the case of Tauka Theodory Ferdinand v.
Eva Zakayo Meita (administratix of the estate of the late Albanus
Mwita) and 3 Others, Civil Application No. 200/17 of 2016, Court of Appeal
of Tanzania it was held that:
I wish to state here that not every illegality will amount to
good cause to grant extension. It is only a point of law

which is of such significance as to warrant the attention of
this Court that will sail through as good cause.
In this case, the Applicant pleaded illegality as a reason for the delay to
file the intended application. After examining the records, I find the alleged
illegality is not apparent on the face of record to suffice the extension
sought. The case of Tauka Theodory (supra) stated clearly that the
illegality should be on point of law sufficient to warrant the attention of the
Court, such as the point of jurisdiction or time limitation. This is also the
Court's position in the case of Charles Richard Kombe v. Kinondoni
Municipal Council, Civil Reference No.13 of 2019, Court of Appeal of
Tanzania at Dar es salaam where it was held:

...it is our conclusion that for a decision to be attacked on
ground of illegality, one has to successfully argue that the
Court acted illegally for want of jurisdiction, or for denial of
right to be heard or that the matter was time barred.
The Applicant in this case also alleges that he was denied the right to be
heard. Looking at the records, the impugned decision was delivered on
23/03/2023. Thereafter, on 20/05/2024 the Applicant filed an application for
extension of time to file revision against the CMA's decision. Such application
was struck out on 24/06/2024 for being incompetent.
Therefore, after the impugned decision was delivered, the Applicant took
a year and two months to file an application before this Court. There is no
reason adduced in his affidavit for such delay other than pleading illegality of
the impugned decision of which, as stated earlier, it is not apparent on the
face of records. Under such circumstance, it is my findings that the Applicant
failed to account for the delay.
I thus, join hands with the Respondent's submission that each day of the
delay ought to have been accounted for as it is the position in the case of
Wambele Mtumwa Shahame v. Mohamed Hamis, Civil Reference No. 8
of 2016, Court of Appeal of Tanzania where it was held that:
Delay of even a single day, has to be accounted for

otherwise there would be no point of having rules
prescribing periods within which certain steps have to be
taken.
In the result, the application is hereby marked dismissed for lack of
merits.
It is so ordered.
JUDGE
10/09/2024
Ruling delivered and dated 10th September, 2024 in the presence of
the Respondent in person and in the absence of the Applicant. Right of
Appeal explained.
Y.J. MLYAMBINA
JUDGE
10/09/2024

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MISC. LABOUR APPLICATION NO. 15221 OF 2024

CASE REFERENCE NO. 202406271000015221

extension o f time to file an Application for Revision o f the Ex-parte CMA

award delivered by the Hon. Arbitrators. Ndonde, on the 4 h day o f October,

2022 in Labour Dispute No. CMA/DSM/ILA/551/22. The dispute emanates

Respondent referred a complaint to the Commission for Mediation and

Arbitration (herein CMA) claiming for breach of contract. The matter

proceeded ex-parte in absence of the Applicant herein. The dispute was

December, 2022 he became aware of the existence of the ex-parte CMA

the said ex-parte Award.

the Applicant is still interested in challenging the ex-parte Award delivered

against her, hence this application.

The application proceeded by way of written submissions. The

Applicant was represented by Mr. Patric Malewe, learned Counsel. On the

other side, the Respondent appeared in person.

sufficient cause for the grant o f extension sought

In deciding this application, the Respondent pleaded the Court to be

guided by the principles stated in the daily cited 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 where it was held as follows:

As a matter of general principles, it is in the discretion of

(a) The Applicant must account for all the period of

(b) The delay should not be inordinate.

(c) The Applicant must show diligence, and not apathy,

(d) If the Court feels that there are other sufficient

In the affidavit in support of the application, the Applicant pleaded the

following reasons for the delay to file the intended application.

That, the Hon. Arbitrator erred by determining referral No.

That, the Hon. Arbitrator determined referral No.

That, the Hon. Arbitrator erred by determining referral No.

of extension of time. Again, in the case of Tauka Theodory Ferdinand v.

Eva Zakayo Meita (administratix of the estate of the late Albanus

of Tanzania it was held that:

I wish to state here that not every illegality will amount to

good cause to grant extension. It is only a point of law

illegality is not apparent on the face of record to suffice the extension

illegality should be on point of law sufficient to warrant the attention of the

Court's position in the case of Charles Richard Kombe v. Kinondoni

Municipal Council, Civil Reference No.13 of 2019, Court of Appeal of

Tanzania at Dar es salaam where it was held:

heard. Looking at the records, the impugned decision was delivered on

23/03/2023. Thereafter, on 20/05/2024 the Applicant filed an application for

was struck out on 24/06/2024 for being incompetent.

the impugned decision of which, as stated earlier, it is not apparent on the

face of records. Under such circumstance, it is my findings that the Applicant

failed to account for the delay.

Wambele Mtumwa Shahame v. Mohamed Hamis, Civil Reference No. 8

of 2016, Court of Appeal of Tanzania where it was held that:

Delay of even a single day, has to be accounted for

In the result, the application is hereby marked dismissed for lack of

Ruling delivered and dated 10th September, 2024 in the presence of

the Respondent in person and in the absence of the Applicant. Right of

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