THE UNITED REPUBLIC OF TANZANIA

JUDICIARY
IN THE HIGH COURT OF TANZANIA
(LABOUR DIVISION)
AT MBEYA
REVISION NO. 11 OF 2020
(Arising from the Award of the Commission for Mediation and Arbitration at
Mbeya in Labour Dispute No. CMA/MBY/89/2016)

LILIAN SIFAEL................................................................. APPLICANT

VERSUS

MBEYA WATER AND SANITATION AUTHORITY......... RESPONDENT

JUDGMENT

Dated: 21st Sept. & 01st November, 2021

KARAYEMAHA, J

The applicant Lilian Sifael filed the instant application seeking for

revision of the award of the Commission for Mediation and Arbitration,

hereinafter referred to by its acronym, the CMA, in Labour Dispute No.

CMA/MBY/89/2016 delivered on 20/02/2019 by Hon. Naomi

Kimambo, Arbitrator. The application was made under section 91 (1)

(a), (b) and 91 (2) (b), (c), 91 (4) (a) and (b), and 94 (1), (b), (i) of the

Employment and Labour Relations Act, No. 6 of 2004 as amended by

section 14 of Act No. 17 of 2010, Rule 24 (1), 24 (2) (a), (b), (c), (d),

(e) and (f), 24 (3) (a), (b), (c), (d) (herein the Act) and Rule 28 (1) (b),

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(c), (d) and (e) of the Labour Court Rules G.N. No. 106 of 2007 (herein

the Rules).

On the other hand, the application supported with the affidavit

sworn by Lilian Sifael, the applicant and on the other hand, the

respondent is challenging the application through the counter affidavit

sworn by Simon Bukuku, respondent's learned Counsel.

Brief facts leading to the present application are as follows; Way

back on 24th October, 2015 the respondent Manager through the Board

of Directors of Mbeya Water Supply and Sanitation Authority (herein the

Board of Directors), advertised a carrier opportunity, namely, a post for

Finance. Following the said advertisement, the applicant applied and

underwent an interview on 13th February, 2016 in which she emerged

the second winner. The post was therefore offered to the first winner.

However, due to the qualities the applicant demonstrated in the

interview, she was offered a post of Senior Revenue Officer in

Commercial Department by the panel with the approval of the Board of

Directors on 25/02/2016. Joyfully and without delay, the applicant

accepted the offer vide a letter dated 29th February, 2016 and stated

that she would start the job on 9th March, 2016. She obliged to her

promise and reported at work on that day only to be told to wait. After a

month or so she was served with a letter of revocation of employment

Coca Cola Kwanza Limited - Mbeya (herein CCK) the applicant's former

employer. The revocation of the offer did not bed well with the

applicant. She decided to refer the matter to CMA - Mbeya blaming the

respondent for breaching the contract between them. The trial Arbitrator

was not convinced by her claim and explanations, hence decided against

her favour on the reason that there was no contract of employment

between her and the applicant. As such, that concrete base she was of

the considered opinion that there was no breach of contract by the

respondent. The trial Arbitrator, however, awarded the applicant Tshs.

20,000,000/= for revocation of the offer.

Dissatisfied with the CMA award, the applicant has filed the

current application seeking for this Court to set aside and quash the

impugned award on the following grounds:

1. That the arbitrator seriously erred in law and facts by failure to

find that Eng. Simon Mutalemwa Shauri act of terminating the

applicant on 14/4/2016 was ultra vires because on the first

place it was the Board of Directors which employed the

applicant and therefore the Board of Directors had the powers

to decide otherwise as per the law governing the respondent

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 2. That the Arbitrator erred in law and fact in holding that there

was no contract between the applicant and the respondent and

failed to realize that the offer and acceptance was the valid

contract.

3. That the Arbitrator erred in law and fact by awarding Tshs.

20,000,000/= without stating explicitly if that was or not

general damages hence narrowed the relief claimed by the

applicant at CMA.

4. That the Arbitrator erred in law and fact by making an irrational

and illegal award without which was not known on contractual

relief including but not limited to compensation and restitution

for breach of employment contract which was still valid due to

lack of revocation by the Board of Directors.

Following those complaints the applicant raised several issues

which converge to the following issues:

1. Whether it was proper for the Arbitrator to declare that there

was no contract of employment between the applicant and the

respondent

2. Whether it was proper to simply ignore the testimony of the

applicant.

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 3. Whether it was proper for the Arbitrator to award general

damages of Tshs. 20,000,000/= and failed to award any

remedy for breach of contract.

4. Whether the trial Arbitrator properly evaluated the evidence

before him.

Reliefs prayed are as follows:

1. To declare that there was a contract between the applicant and

respondent.

2. To declare that the respondent revoked the contract not offer of

employment.

3. To order restitution of the employment contract or in alternative

compensation for the breach of employment of contract.

4. To particularize that amount of Tshs. 20,000,000/= ordered by

the Arbitrator as general damages.

5. This application to be granted as prayed in the chamber

summons.

The hearing of the matter took a form of written submissions. On

the one hand the applicant was represented by Mr. Isaya Z. Mwanri,

learned Counsel. On the other hand, Ms. Silvia Mwalwishi, learned

Counsel, appeared for the respondent.

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 Let me start with the 1st issue which is whether there was a

contract of employment between the applicant and the respondent. Mr.

Mwanri submitted to the effect that when the respondent made an offer

to the applicant and applicant accepted it and communicated the

acceptance, they formed a valid contract between them. While making

general reference to the labour law, law of the contract and case laws,

Mr. Mwanri stated that the applicant received an offer from the

respondent via a letter with Ref. No. UWSA/MB/CONF/SC/7/170 (exhibit

N2) with conditions that if the applicant was willing to be employed by

the respondent was required to express her willingness in writing.

Thereafter, the applicant accepted the offer via a letter dated

29/02/2016 (exhibit Nl) hence finalized a contract. He referred this

court to cases of Louis Dreyful Commodities Tanzania Limited v

Roko Investment Tanzania Ltd, Civil Appeal No. 4 of 2013 Court of

Appeal Tanzania (unreported) at page 9 and Hotel Traventine

Limited and two others v National Bank of Commerce Limited

[2006] TLR 133. The applicant's counsel further referred to section 14

(2) of the Act, sections 2 (1) (a) (b) and (h) and section 5 (1) of the Law

of Contract Act Cap 345 R.E. 2019.

The line of argument taken by Mr. Mwanri was opposed by Ms.

Mwalwisi who held the view that the offer and acceptance did not

6
finalize the employment contract. Referring to exhibit N2 the learned

counsel stated that the applicant was required to accept the offer of

employment and indicate show the date to start the job in order to

enable finalization of the employment formalities which was recited by

the applicant in the acceptance letter. To her, the formalities which were

to be finalized included signing the contract. He argued adding that

since those formalities were not fulfilled, there was no valid contract

concluded.

The learned respondent's counsel was quite emphatic that offer

and acceptance are not the only elements of a valid contract as argued

by Mr. Mwanri referring cases of Louis Dreyful Commodities

Tanzania Limited and Hotel Tra ven tine Limited and two others

(supra). Besides, she mentioned the fundamental elements to the

contract to include offer and acceptance, intention to create legal

relationship and consideration. She held the view that if all these

elements exist the contract is valid and enforceable. She said that in the

current matter these elements did not exist because the meditated

conditions which were to be fulfilled to create a legal and binding

relationship had not been done. To support her views, she called to her

aid and placed reliance on the decision of the High Court in the case of

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WARNERCCOM (T) Ltd v TATA Africa Holding (T) Ltd, Civil Case

No. 114 of 2018 at page 13.

Finally, Ms. Mwalwishi observed that elements of contract in the

current matter lacked therefore, there was no binding contract between

the parties. She remarked that there was no any written employment

contract between parties. In respect of exhibit N2, she said that the

same did not provide whether the employment contract would be for

unspecified period of time, for specified period of time or specific task

as provided for by section 14 (a - c) of the Act.

In his laconic but focused rejoinder, Mr. Mwanri submitted

zealously that the contents of exhibit N2 required the applicant to accept

the offer or reject it.

On employment formalities, Mr. Mwanri observed that those were

subject to acceptance not acceptance subject to them. The formalities

contemplated by Mr. Mwanri included request for bank account for

receiving the salary, orientation and induction courses of employee,

introduction of new staff to the company, introduction of new

employee's names to other regulatory authorities including Tanzania

Revenue Authority (TRA), Social Security Schemes (PSSSF), Workers

Compensation Fund (WCF), trade union, if any, office arrangement and

handling of working tools.

that the same should be looked at from the angle of the words used by

parties in their offer and acceptance. If the words used in the contract

be it offer and acceptance intend to create a binding contract by

imposing obligation among parties a legal relationship is created.

Marrying that position to the current case, Mr. Mwanri submitted that

parties agreed and used terms which clearly meant that the respondent

employed the applicant and the applicant as well agreed to work for the

respondent and stated the commencing date. He was, therefore,

convinced that the employer employee relationship was created.

Rejoining in respect of section 14 (1) and (2) of the Act, Mr.

Mwanri argued zealously that mandatory requirements were complied

with because the offer and acceptance were in writing.

Having considered the learned counsel's arguments, it is clear to

me that the applicant on one hand, harbours the feelings that, it was

wrong for CMA to declare that she had no contract of employment while

she was offered a job which she accepted. These events made her get

to conclusion that she is having a valid and binding employment

contract. On the other side of the coin, the respondent concedes that

there was an offer and acceptance but parties had not finalized the

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employment contract. The respondent was of the conviction that the

trial Arbitrator did not err in her findings.

I took liberty to look at exhibits Nl, N2 N3, N4 and N5. In doing

so, I found out that exhibit Nl concerns the minutes of 13/02/2016. This

document exhibits that the applicant was shortlisted and interviewed for

the post of Financial Manager. The interview results showed that she

took the second position. This document states further that, I quote:

"Kikao kiiibaini kuwa kuna umuhimu wa kuimarisha kitengo

cha mapato cha Mamlaka Hi kuongeza mapato kwa jumia.

IHpendekezwa kwa kuwa katika usaili wa Meneja wa Fedha

aHyekuwa mshindi wa pili alionekana naye ana uwezo

mkubwa, ilielekezwa aulizwe kama hata akikosa nafasi ya

umeneja wa fedha anaweza kukubaH nafasi ya chini yake na

baada ya kuuiizwa alikubali. Azimio: Bibi Linian Sifaei

ambaye ana sifa zote hata za kuwa Meneja wa Fedha

aajiriwe kama Mhasibu wa mapato..."

The meeting resolution was that the applicant was highly qualified

to the financial post but was the second and therefore be employed as a

Senior Revenue Officer in the Commercial Department, gave birth to a

letter titled RESULTS OF INTERVIEW FOR THE POST OF FINANCIAL

MANAGER (exhibit N2). It was addressed to the applicant

communicating the following information, I quote:

"... Basing on these results the interview panel with the

approval of the Board of Director has recommended offering

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 you a different post of Senior Revenue Officer in the

Commercial Department. This post has a monthly salary of

Tsh. 2,885,000 @117,000 - 3,236,000/= in the scale of

UWS 8. Other incentives like house allowance and transport

allowance are also provided. This letter requires you to

confirm to me in writing whether you accept this offer of

employment and the date to start the job in order to enable

us finalize the employment formalities."

On receiving that letter, the applicant replied on 29/02/2016

intimating acceptance of the offer. She excitedly, replied as follows, I

quote:

"It is with great pleasure that I accept your offer to join

Mbeya Water Supply and Sanitation Authority as Senior

Revenue Officer in Commercial department. I certainly plan

to confirm your trust in my abilities by working hard and

smart. I accept a monthly salary of Tsh. 2,885,000

@117,000 - 3,236,000/= as per your scale UWS 8. I

understand I will be provided other incentives like house

allowance and transport allowance, etc... lam excited to let

March 2016. Please finalize your employment formalities."

A month later, on 14/4/2016 through exhibit N5 the offer of

employment was revoked. The Managing Director informed the applicant

as follows, I quote:

"... as per your letter, you accepted an offer of employment

for the position of Senior Revenue Officer, in Commercial

department. Despite of your acceptance, I regret to inform

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 you that, following the receipt of negative recommendations

from your former employer, the Board of Directors has

revoked such an offer."

While it is indeed correct to argue that the process of recruiting

the respondent was initiated by the Board of Directors of Mbeya Water

Supply and Sanitation Authority (herein the water authority) as per

exhibit N1 and the evidence of Eng. Simon Mtalemwa Shauri (DW2), I

am in agreement with Mr. Mwanri that the revocation decision was not a

result of the Board of Director's meeting for lack of minutes to that

effect or any evidence. It was made by the Managing Director after

receiving recommendations from the applicant's former employer, i.e.,

CCK embedded in exhibit N4.

From the above quoted contents of the letters and minutes, it is

obvious as per both parties converging observations that the applicant

was offered an employment opportunity on 25/02/2016, she accepted

the offer on 29/02/2016 and the offer was revoked on 14/04/2016 more

than a month after it was accepted and the acceptance communicated.

From the submissions, it is revealed that both parties are in agreement

that there was an offer an acceptance. On my part, guided by the

evidence on record, specifically exhibits Nl, N2 and Bl, I agree with

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them. However, they part ways on whether or not there was a valid

contract of employment.

I have anxiously considered the rival arguments of the counsel for

parties. On my part, I agree with both learned counsels that it is part of

our jurisprudence that generally, the Law of Contract Act Cap. 345 R.E.

2019 (herein the Law of Contract) governs all types of Contracts in

Tanzania. But for specific types of contracts there are specific laws

governing the same, for instance, the Employment and Labour Relations

Act Cap. 366 R.E. 2019 (the Act) specifically provides for employment

contracts. Nonetheless, some elements of a valid contract such as offer

and acceptance are not covered by the Act. It is, therefore, correct to

state that the employment contracts are governed by both the Law of

Contract and the Act.

Having this position can it be said that there is a contract between

parties? On the basis of the testimonies of PW1, DW1 and DW2 along

with exhibits Nl, N2 and Bl I have noted the following fundamental

matters:

First, the Board of Directors offered the applicant a post of Senior

Revenue Officer in Commercial department. The same was

communicated to the applicant by DW1 via a letter dated 25/02/2016.

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The letter went further to mention the salary scale the applicant was to

be paid, other entitlements and allowances.

Two, the applicant accepted the offer without reservations on

29/02/2016.

Further, through exhibit N2 the respondent required the applicant

to confirm the date of starting the job so that the respondent would

finalize the employment formalities. The applicant confirmed that she

was going to start her employment on 09/03/2016 hence allowed the

respondent to finalize the employment formalities.

A scrupulous review of the above destines me to a conclusion that

parties were intending to be bound by the conditions contained in the

offer and acceptance. Exhibit N2 signifies willingness on the part of the

respondent water authority to offer a job to the applicant on the terms

and conditions enumerated therein. The concluding sentence was in the

following terms:

"This letter requires you to confirm to me in writing whether

you accept this offer of employment and the date to start

the job."

Section 2.-(l) (h) of the Law of Contract defines a contract as an

agreement enforceable by law. Satisfied that exhibits N2 and Bl

together constituted an offer from the respondent and an acceptance by

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the applicant respectively, the trial Arbitrator faulted the respondent for

revoking the offer which had been accepted. She, however, concluded

that offer and acceptance did not constitute a concluded agreement.

On my side, guided by exhibits N2 and Bl as well as sections 2 (a)

(b) and 7 of the Law of Contract, parties' intentions constituted a valid

contract with a binding effect. I say so because the applicant accepted

the terms and conditions embodied in exhibit N2. Therefore, in brief,

there was an employment agreement between parties which was

governed by the terms and conditions acknowledged by the applicant in

exhibit Bl.

In the case of Brogden v. Metropolitan Railway Co. (1877) 2

App. Cas. 666 (HL) Lord Blackburn observed as under -

"I have always believed the law to be this, that when an

offer is made to another party, and in that offer there is a

request express or implied that he must signify his

acceptance by doing some particular thing, then as soon as

he does the thing, he is bound."

The respondent had prescribed the mode of acceptance and the

respondent did comply with the full knowledge of the respondent. The

following but vexing question is whether or not there was an

employment contract between parties. My considered view is in the

affirmative.

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 Both counsel had lengthy arguments on the issue of employment

formalities. Ms. Mwalwisi argued that the formalities which were to be

finalized included signing of the contract. She argued adding that since

those formalities were not fulfilled there was no valid contract

concluded. On his part, Mr. Mwanri observed that those formalities were

subject to acceptance not acceptance subject to them.

Contrary to these appreciated views, my view is that exhibit N2 is

very clear and needs neither deep nor wide interpretation. It states at

paragraph 5:

" This letter requires you to confirm to me in writing whether

you accept this offer of employment and the date to start

the job in order to enable us finalize the employment

formalities."

The confirmation of the date to start working, was important to

enable the respondent finalize the employment formalities. This means,

the applicant physical presence was not needed in finalizing the

employment formalities. That is my take of the 5th paragraph of exhibit

N2. It was, therefore, the respondent's contemplation that after the

applicant had confirmed the date to commence working for her, the

respondent would immediately finalize the employment formalities. As

per the evidence on record the respondent started finalizing the

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employment formalities on 29/02/2016 on 09/03/2016 when she

reported at work.

From the above facts, I am certain that the respondent

contemplated the offer and acceptance as a valid and binding

agreement. The applicant's acceptance caused the respondent to

proceed with other employment formalities and therefore, the employer

employee relationship was created at that time. By all means a valid

contract came into existence.

Another aspect worth of discussion is that labour laws, particularly,

the Act makes it mandatory for the contract of employment to be in

writing. (See section 14 (2) of the Act). The Act does not provide for a

hard rule in which the contract of employment should be. If that is the

case, the respondent signing on the written offer and applicant signing

on the written acceptance, in my view it constituted a written contract of

employment in compliance with section 14 (2) of the Act.

Now agreeing that one cannot talk about the employment contract

without using the general Law of Contract, it goes without saying

therefore that elements of contract in Law of Contract are applicable to

the employment contract. In any contractual transaction the following

elements under Sections 10, 11 and 12 of the Law of Contract must

exist.
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 Section 10 defines Agreements to be Contracts. The same states:

"10. All agreement are contracts if they are made by the

free consent of parties competent to contract, for a lawful

consideration and with a lawful object, and are not hereby

expressly declared to be void:

Provided that nothing herein contained shall affect any law

in force, and not hereby expressly repealed or disappiied, by

which any contract is required to be made in writing or in

the presence of witnesses, or any law relating to the

registration of documents."

Further to that, section 11 (1) and (2) of the Act (Supra), provides

for the persons competent to contract and the remedy to the Agreement

which has been contracted by incompetent party, the same states:

11. (1) Every person is competent to contract who is of the

age of majority according to the law to which he is subject,

and who is of sound mind, and is not disqualified from

contracting by any law to which he is subject.

(2) An agreement by a person who is not hereby declared to

be competent to contract is void."

Further, section 12 (Supra) refers to what is a sound mind for the

purposes of contracting. The same provides:

12. (1) a person is said to be of sound mind for the purpose

of making a contract if, at the time when he makes it, he is

capable of understanding it and of forming a rational

Judgment as to its effect upon his interests.

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 (2) A person who is usually o f unsound mind, but

occasionally o f sound mind, may make a contract when he

is o f sound mind.

(3) A person who is usually of sound mind, but occasionally

of unsound mind, may not make a contract when he is of

unsound mind.

From the above definition of the term agreement/contract, in my

view, essential ingredients to the same which must be in place in order

to make an agreement valid includes: free consent, competency or

capacity to contract and lastly lawful consideration or object. All these

exist in the present matter.

Ms. Mwalwisi argued forcibly that the offer and acceptance in this

matter did not finalize the employment contract. She submitted that the

fundamental elements to the contract are offer and acceptance,

intention to create legal relationship and consideration. She held the

view that if all these elements exist, the contract is valid and

enforceable. She said that in the current matter these elements did not

exist because the meditated conditions which were to be fulfilled to

create a legal and binding relationship had not been done.

Mr. Mwanri correctly observed that words used by parties in their

offer and acceptance letters intended to create a binding contract by

imposing obligation among, as such, a legal relationship was created. I

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absolutely agree with him. The offer and acceptance, first of all, met the

conditions provided for under section 14 (2) of the Act. They also

complied with sections 10, 12 and 13 of the Law of Contract Act. Further

to that, fundamental elements to the contract, that is, offer and

acceptance, intention to create legal relationship and consideration exist

abundantly. The respondent offered a job and the applicant accepted. In

offering and accepting, the words used were calculated to create and

indeed created a legal relationship between the applicant and

respondent. The job was to be done at a monthly salary of Tsh.

2,885,000 @117,000 - 3,236,000/= in the scale of UWS 8, which, in my

view, is a consideration.

To cum it all, Ms. Mwalwisi got it wrong and the learned Trial

Arbitrator's conclusion on this aspect was also wrong. I say so because

once an acceptance has been made and communicated it amounts to

binding contract. In view thereof, the Managing Director of the

respondent wrongly applied the principles of revoking the offer. Section

5 (1) of the Law of Contract provides that an offer may be revoked at

any time before the communication of its acceptance as against the

proposer but not afterwards. Revoking it a month or so after it had been

accepted and the applicant had reported at work place was indeed a

violation of the law. However, the respondent was not curtailed from
20
breaking the contract. While authorized by law to do so, she had to

observe all procedures of terminating the employment contract. In

addition the law did not allow the Managing Director to revoke the offer.

It was the Board of Directors with that mandate. He, therefore, acted

ultra vires. What does this mean, the revocation was voidab initio.

On a full consideration of the available evidence and the law on

the issue, I am of the settled view that the applicant and the respondent

had a valid and binding contract of employment.

Let me now turn to issue Number three because issue number two

was abandoned by the applicant, as to whether it was proper for the

arbitrator to award general damages of Tshs, 20,000,000/= and failed

to award any remedy for breach of contract.

On this area, this court has already decided that the respondent

breached the contract of employment. It is evident also that the

Managing Director being the Principal Officer of the respondent signed

the revocation of offer without the approval of the Board of Directors.

The position is that the Managing Director manages day to day affairs of

the Water Authority but that is subject to the directions of the Board.

This means that before executing any action or decision, must first take

directives of the Board of Directors. That is the law and no magic can

undo it. In her testimony, Jane Hamis Mwanjejele (DW1) testified at

of Directors including employment. Scanning from her testimony, it

was/is the Board of Directors which has powers to employ and terminate

employees of the Water Authority.

In a nutshell, therefore, to establish that the applicant's offer was

legally and procedurally revoked, the respondent was bound to produce

the evidence. In this matter there is no iota of evidence to prove that

the Board of Directors convened and resolved to revoke the offer.

No wonder that after deciding that there was no contract of

employment between the applicant and the respondent, the trial

Arbitrator had no other option than passing orders that the applicant

was not entitled to damages for breach of contract of employment.

That conclusion brings me to the last issue which concerns the

reliefs. Mr. Mwanri laments bitterly on the general damages awarded to

the applicant of Tshs. 20,000,000/=. This, to him, is the critical part of

the award which is weak in relation to the findings that there was no

breach of employment contract. Conceding that that general damages

were awarded at the discretion of the court as per the case of

Consolidated Holding Corporation v Grace Ndeana [2003] TLT

191, he said that the trial Arbitrator had to award damages for breach of

contract of employment.

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 Mr. Mwanri is contented with the awarded amount, but faults the

trial Arbitrator's decision not to grant relief for the breached contract of

employment. I wish to pose here and observe that irrespective of

whether she was right or wrong, it could not be easy for the trial

Arbitrator to grant the reliefs because she had concluded that there was

no employment contract between the parties. Seeking aid of section 73

(1) of the Law of Contract Mr. Mwanri remarked that any person who

suffers from breach should be compensated for that breach. Mr.

Mwanri's conviction is that since the applicant's employment has never

been terminated, it would be fair and just for this Court to order

payment of compensation of Tshs. 100,000,000/=, re - employment by

reinstatement of the applicant. To solidify his position, he placed

reliance on the case of Mohamed Idrissa Mohammed v Hashim

Ayoub Jaku [1993] TLR 280 where by the court of Appeal observed

that the court can order specific performance when the other party

refuses or fails to perform the contract.

Ms. Mwalwisi's conception of this issue is different. Briefly, she

submitted that the respondent was not entitled to any reliefs because

there was no any legal relationship between the parties. She said that

reliefs are granted in terms of section 40 (1) (a) of the Act where it is

established that there was unfair termination. Moreover, she was very
23
quick to observe that section 35 of the Act excludes employees with less

than six (6) months of employment to compensation.

In his rejoinder, Mr. Mwanri said that the applicant's claim is

centered on the argument that there was no proper decision on the

breach of contract and the contract was not revoked. To him what was

revoked was an offer. Therefore, the applicant was to be re - employed.

The question is whether that was one of the prayers fronted at CMA.

The answer is in the negative.

In respect of the reliefs, Mr. Mwanri did not have a word on

section 40 (1) (a) or 35 of the Act. He, however, reiterated his

submission in chief regarding their reliance on the law of contract to

benefit from the reliefs.

This court has made a finding that general principles of Law of

Contract will be applied in this matter. Applying it, it has been concluded

that in all circumstances parties had a valid contract the termination of

which obviously sinned against the labour laws and the clear provisions

of section 17 (4) of the Water Supply and Sanitation Act No. 5 of 2019

which provides that:

"The Managing Director shall be the principal officer of the

water authority and, subject to the directions of the Board,

shall be responsible for the day to day management of the

affairs of the water authority."

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 The vexing question at this juncture is what reliefs should be

awarded to the applicant. I pose this question because in Form No. 1

(referral of a dispute to the commission), the applicant termed the

nature of dispute as breach of contract. It was not about termination of

employment. In my view, therefore, provisions of section 40 and 35 of

the Act are not applicable. The applicant forecasted the outcome of

mediation to be payment as per the schedule which is:

1. Salary of March and April 2016....................... Tshs. 5, 770,000/=

2. Housing allowance of March and April 2016....... Tshs. 577,000/=

3. Transport allowance for March and April 2016.... Tshs. 360,000/=

4. Airtime allowance for March and April 2016......... Tshs. 200,000/=

5. Responsibility allowance for March and April 2016..Tshs.461,600/=

6. Damages for breach of contract................... Tshs. 100,000,000/=

These were claims which formed the base of the trial in CMA and

baking on them the Arbitrator came out with the impugned award.

Strangely, the applicant has emerged at this level of revision with

new prayers, to wit, first, declaration that the respondent revoked the

contract not offer of employment and second, order restitution of the

employment contract or in alternative compensation for the breach of

employment of contract. Obviously, these claims needed the respondent

25
to respond to them and give evidence or encounter them during the

trial. Raising them at this level, in my view, is wrong and unprocedural.

Similarly, the revision is intended to default errors committed by CMA.

Since, the trial Arbitrator had no opportunity to deliberate on them, she

cannot be faulted. As a general rule, therefore, new issues are not

supposed to be raised at the revision stage.

Bringing home the point, this court has already declared that the

applicant and respondent had a binding agreement. Therefore, the

employer employee relationship existed. It was also illegal for the Water

Authority Managing Director to revoke the offer without directions of the

Board of Directors.

Since the respondent breached the binding agreement, I share the

Trial Arbitrator's views that there is no wrong without remedy (ubijus ibi

remedium). For her wrong, the respondent should compensate the

applicant Tshs. 50,000,000/=.

Regarding the prayer of general damages, this was not one of the

prayers tabled before CMA. But in her findings, the Arbitrator considered

the laments of the applicant in her evidence that she was affected

psychologically, as female she was suppressed because she was to be

given first priority in the interview, time wasted going to her working

place and later told to wait. All these made her to award Tshs.
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20,000,000/= as general damages. Apparently, the respondent has no

problem with that. Her pleadings speak it open and loud.

It is evident that after accepting the offer, the applicant made it

clear that she would start to work on Wednesday 9th March, 2016.

According to her evidence, she went to work but was told to wait. Later

she was served with a revocation letter. Well, we may invoke the

requirements of section 60 (2) (a) of the Labour Institutions Act [Cap.

300 R.E. 2017] that the applicant needed to prove that fact. However,

the question that comes to the fore is whether or not, the applicant was

able to access the attendance register or was she given an opportunity

to sign in any register. On this I am behooved to believe her testimony

she gave on oath and disregard any contention that might be deceiving.

Since she had legitimate expectation and remained more than a month

waiting to be called, I think it is proper to award her a Salary of March

and April 2016 Tshs. 5, 770,000/=, Housing allowance of March and

April 2016Tshs. 577,000/=and Transport allowance for March and April

2016 Tshs. 360,000/=. Airtime allowance was to be paid when she was

performing official duties and responsibility allowance. I decline to grant

these two.

In view of the above, this Court settles for the following orders:

1. That the application is partly allowed.

2. That the applicant should be paid Tshs. 50,000,000/= by the

respondent being compensation for breaching the contract for

employment.

3. Tshs. 20,000,000/= should be paid to the applicant by the

respondent as general damages.

4. That the applicant should be paid Tshs. 5, 770,000/= being

salary of March and April, 2016.

5. The applicant should be paid Tshs. 577,000/= being housing

allowance of March and April, 2016.

6. The applicant should be paid Tshs. 360,000/= being transport

allowance for March and April, 2016.

It is so ordered.

Dated at MBEYA this 1st day of November, 2021

J. M. Karayemaha
JUDGE

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