IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

CIVIL APPLICATION NO. 63/01 OF 2017

COCACOLA KWANZA LTD............................ ............. APPLICANT

VERSUS
1. CHARLES MPUNGA
2. EMANUEL KAYALA
3. ELILVIS TESHA
4. CHRISTOFA MKINGA
5. BONN TADEUS
6. 5. WAYLES MSAGATI
7. MUHIDINI MJUKWA
8. 7JOHN OKUNGU
9. JOHN MBAGA
10. YOHANA KAYALA
11. ABAS ALLY
12. ABDALA CHAMBALA
13. HAMAD SAIDI RESPONDENTS
14. AIZACK MICHAEL
15. SAIDI HAJI
16. HADSSANI NGAKINA
17. SALUM UPESI
18. KAIMA MCHUCHULI
19. SAID ISSA
20. FESTO MSUMARU
21. SHANIALLY
22. YAHAYA ABDALA
23. MOHAMED JAFARI
24. JASEN BARABINGA
25. MANENO MILIMA
26. MOHAMEDI ABDALA
27. MATIASI SAMSON
28. SAIDI JUMA
29. MAHAMUDU RASHIDI
30. OMARY RAMADHANI
31. ABDALLAH SINGIRIMA
32. CHARLES WILSON
33. SULTAN ABDALA
34. SHABANI MTUNGUJA
35. HAMISI LUAMBO
36. SEFU NGWAYA
37. BAKARI MBWANA
38. ANISETI TARIMO
39. JUMA ALLY
40. BENARD LUKASS
41. OMARY SALUM
42. MUSSA HASSAN
43. ABDALLA MKWAMA
44. RAMADHANI GUMBO
45. RESHID GEMA
46. TWAHA HASHIM
47. GERADY NDEKANGO
48. EDUADY TESHA
49. MOHAMED SELEMAN
50. HOSENI NGAO
51. PITER PAULO
52. HASSA SEYVUNDE
53. MUSSAATHUMANI MRAGADI
54. KASIM ALLY
55. DAUDI MWASUKA
56. WILLY URASA
57. SADIKI RUPINDO
58. STANFODY KAYANGE
59. AMOSSY MZIZA
60. DAUDI ISSA
61. KASIM KUAKA
62. ABDALA MKUMBA
63. YUSUFU ABELY
64. MOHAMED KULUSUNGU
65. ISIHAK MOBISA
66. NELSON MACHIBWA
67. SADDI JUMA
68. STIVEN JAMES

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 69. FREDU MASSU
70. EGYDY KWATAKWATA
71. LAURANCE MUNISI
72. TOBIASI ANTONI
73. EUSANTE PITER
74. RAMADHANI MWARAMI
75. HAMISI ALLY LILA
76. IDDILUA
77. HASSAN OMARI
78. KESSY SULEMANI
79. ATHUMAN MUSTRY
80. IDDI MOHAMEDI
81. JUMANNE NGUOGAN
82. CALESS MPUNGA
83. ALLY BASIOKE
84. KIFUA SALIM
85. ALLY HABIB
86. RENATUS HERY
87. MUSSA ALFANI
88. EMPHRANCIA M. REMICHO
89. MUSSA ATHUMAN
90. JOICE MMANGA
91. ERNEST KISONGA
92. ALLY HASSANI
93. FOKASI MLAGADI
94. ALMANUS KUTALIKA
95. MFAUME MNUNGU
96. ALEN MALONGO
97. JUSTIN KAMUNGU
98. RAJABU KUZIGA
99. WOLFAGAN HENJEWELE
100. NATHERN NONDE
101. STAMIUSITAYARI
102. DASTANI PITER
103. HONEST MWAMHAVI
104. EDGA MROPE

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(Application for extension of time to apply for leave to appeal to the
Court of appeal against the whole decision of the full bench of the
High Court of Tanzania)
in
Misc. Appeal No. 10 of 2008

(before their Lordships Justices Shangwa, J., Wambura, 3 . and

Mgaya, 3.)

dated 25 day of October, 2010

after leave was denied by the High Court of Tanzania

in
Misc. Application No. 10 of 2010

(before Mushi, 3.)

dated 30th day of October, 2012

RULING

18th & 24th August, 2017

MBAROUK, J.A.:

The applicant COCACOLA KWANZA LTD, by way of a notice

of motion made under Rules, 10,45 (b), 48(1) and (2) of the Court

of Appeal Rules, 2009, seeks for an order that extension of time to

file an application for LEAVE to appeal against the judgment and

orders of the High Court of Tanzania before Shangwa, X,

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Wambura, X and Mgaya, J. dated 25/10/2010 after leave was

denied by the High Court of Tanzania in Misc. Application No. 10 of

2010 before Mushi, J. dated 30/10/2012 and after Application for

leave No. 107 of 2015 was struck out by the Court of Appeal on

10th October, 2016 for lack of names of other Respondents apart

from Charles Mpunga, be granted for the following ground:-

"That the judgment o f the full bench o f the High

Court is tainted with illegality as it did not take into

account that the award o f the full bench o f the

Industrial court dated 7/11/2008 in application for

Revision No. 23 o f 2007 which partly upheld the

award o f the Industrial Court in Enquiry No. 04 o f

2004 dated 01/8/2007 were both procured illegally

after taking into consideration a sworn written

statement o f evidence which did not form part o f

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 the Respondent's evidence as it was withdrawn by

the Respondents before cross examination."

The application was supported by the affidavit of Erick

George Ongara, employed by the applicant as Country Human

Resources Manager, hence well conversant with the facts deposed

in the affidavit.

The genesis of this application originated from an

employment dispute in retrenchment held on 30/8/2003. The

respondents were not happy with applicant arrangements as such

they filed an industrial Dispute Enquiry No. 4 of 2004 (defunct

<
Industrial Court of Tanzania). Hon. Mipawa, J. by then Deputy

Chairman awarded each respondent 24 months salaries. The

applicant dissatisfied, hence filed Revision No. 23 of 2007 which

reduced the award of 24 months salaries to 12 months salaries.

Still aggrieved, the applicant unsuccessfully appealed to the full

bench of the High Court in Misc. Appeal No. 10 of 2008.

Undaunted, the applicant further wants to appeal to this Court. As

much as her appeal is concerned, before this Court, it lies with

leave. On 5th May, 2015 this Court Hon. Kimaro, J. granted him

extension of time to file leave to appeal, however subsequently,

her application for leave to appeal was struck out on 10th October,

2016, because she failed to exhibit names of all the respondents.

She once tried to apply for leave to appeal to this Court but denied

before the High Court

On 12th October, 2016 the applicant wrote a letter to the High

Court Labour Division requesting to be availed with all names of

respondents. Those names were supplied to the applicant on 30th

January, 2017. On 16th February, 2017, the applicant lodged this

application. Essentially, the above facts shows what transpired

prior to this application.

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-- In this application, Mr. Arbogast Mseke, learned advocate

appeared for the applicant whereas Mr. Mashiku Sabasaba, learned

advocate appeared for all one hundred and four (104) respondents.

When the application was called on for hearing, Mr. Arbogast

prayed to adopt to what has been submitted in the affidavit of Erick

Ongara in support of the application as part of his submissions. He

basically started by giving a historical background of the events

which gave rise to this application. He then relied on paragraphs

16, 17 and 18 of the affidavit sworn by Erick Ongara which read as

follows:-

"16. That on lf f h October, 2016, when the

Application No. 107 o f 2015 came for

hearing, the matter was struck out for

lack o f names o f the other respondents

apart from Charles Mpunga.

17. That as the Applicant was still

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 determined to apply for leave to appeal

but still had not the names o f the

Respondents, on 12th October, 2016, the

Applicant requested the labor court to

avail him with the names o f the

Respondents, however regardless o f

several follow-ups he was not availed

with the names timely until 3tfhJanuary,

2017 when he was availed with names o f

the Respondents.

18. That applicant is still desired to appeal to

the Court o f appeal on grounds stated in

the notice of motion hence this

application for enlargement o f time to file

application for determination by the

Court o f Appeal as per the notice o f

motion."
 As demonstrated in those three paragraphs of the affidavit in

support of the application, Mr. Arbogast prayed for their application

to be granted as they have shown good cause for the delay.

On the outset, Mr. Sabasaba opposed the application,

because, he said, the applicant has only shown the reasons for

delay in the last part after this Court (Kimaro, J.A. as she then was)

struck out its application for lack of other names of the respondents

apart from that of Charles Mpunga. He simply prayed for this

application to be looked at in its broader terms as it started from

the High Court when its application for leave to appeal was denied.

For that reason, Mr. Sabasaba prayed for this application to be

dismissed as no good cause for delay was shown.

In his rejoinder submissions Mr. Arbogast reiterated his

earlier submission and further prayed for justice to prevail

considering the fact that they have always been in court corridors

since when they were aggrieved by the decision of the Industrial

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Court. He therefore prayed for extension of time to file an

application for leave to appeal to this Court be granted as prayed.

Rule 10 of the Court of Appeal Rules, 2009 (the Rules) under

which this application was made, provides as follows:-

"The Court may upon good cause shown, extend

time limited by these Rules or by any decision o f

the High Court or tribunalfor the doing o f any act

authorized or required by these Rules, whether

before or after the expiration o f that time and

whether before or after the doing o f the act; and

any reference in these Rules to any such time shall

be construed as reference to that time as so

extended. "

What constitutes good cause cannot be laid down by any hard and

fast rules. This depends on the prevailing circumstances of each

particular case. It is upon the party to provide the relevant material

in order for the Court to exercise its discretion - See Ratnam v.

Cumarasamy and Another, (1964) 3 ALL ER 933 where Lord

Guest stated as under:-

"The rules o f court must, prima facie, be obeyed,

and in order tojustify a court in extending the time

during which some step in procedure requires to

be taken, there must be some material on which

the court can exercise discretion. I f the law were

otherwise, a party in breach would have

unqualified right to an extension o f time which

would defeat the purpose o f the rules which is to

provide for a time table for the conduct o f

litigation."

In the case of SHANTIV. HINDOCHA & OTHERS (1973) EA 207

the then Court of Appeal for East Africa had this to say at page

209-

"The position o f an application for extension o f

time is entirely different from that o f an application

 for leave to appeal. He is concerned with showing

”sufficient reason" why he should be given more

time and the most persuasive reason he can show

..... is that the delay has not been caused or

contributed to by dilatory conduct on his part. But

there may be other reasons and these are all

matters o f degree. He does not necessarily have

to show that his appeal has a reasonable prospect

o f success or even that he has an arguable case."

Reasons for extension of time in this application, are stated

in paragraphs 16 to 18 of Erick George Ongara as pointed herein

above, but material for this application may be fetched under

paragraph 17 of the applicant's affidavit, that the delay was caused

by High Court Labour Division by failure to handle him names of

the respondents timely. From above observation, it is evident in

my view that the applicant has been in Court immediately from a

time when she lost her case. Since the applicant has shown

meticulousness in pursuing his appeal, I am of the view that the

applicant's prayer be granted.

In final analysis, I am of the view that the applicant has

shown good cause to exercise my discretion conferred upon me

under Rule 10 of the Rules so as to grant her an extension of time.

For that reason, the applicant is hereby granted extension of time

as prayed, she is supposed to file her application for leave within

fourteen (14) days from the date of the delivery of this Ruling. It

is so ordered.

DATED at DAR ES SALAAM this 21st day of August, 2017.

M.S. MBAROUK
JUSTICE OF APPEAL

I certify that this is a true

- _ DEPUTY REGISTRAR
COURT OF APPEAL

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