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JUDICIAL REVIEW: APPLICABLE LAWS, GROUNDS AND PROCEDURES IN TANZANIA

[ELEMENTARY LECTURE’s & CASE NOTES: MARCH-MAY, 2015]
By
KATABARO, JACKSON∗
“For long time the prerogative remedies as a body suffered from hereditary procedural defects. They had escaped that radical reforms of the
nineteenth century in which the old forms of action, with their exclusive character and their multifarious peculiarities were swept away. The
prerogative remedies were left on one side, so they remained as isolated survivors from the old era. They thus retained their own special
procedure, which was of summary and limited character and could not be combined with applications for other remedies. In 1933 a new system
was introduced under Administration of Justice (Miscellaneous Provisions) Act 1933 for certiorari, prohibition and mandamus which required a
motion to be made to the High Court asking for leave to apply for the remedy. The motion was made ex parte i.e. without notice to the
respondent public authority. Refusal was subject to appeal and the Court of Appeal might then dispose of the whole case itself. The rules of court
prescribed a time limit of six months for seeking certiorari, though the court had discretion to extend it.”
- H.W.R. Wade1
Subject to some alteration, this expression by Professor Wade reflects Tanzania and the current celebrated Law Reform (Fatal Accident and
Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 (G.N.No 324 of 5/9/2014)

PERTINENT APPLICABLE LAWS

The Constitution of the United Republic of Tanzania2 1977 as amended 2005
The Judicature and Application of Laws Act (JALA) CAP 358 R.E 202
The Law Reform (Fatal Accident and Miscellaneous CAP 310 R.E 2002
Provisions) Act
The Appellate Jurisdiction Act Cap 141 R.E 2002
The Law Reform (Fatal Accident and Miscellaneous
Provisions) (Judicial Review Procedure and Fees) Rules, G.N.No 324 of 5/9/2014
2014

∗
Assistant Lecturer, SAUT-School of Law
1 th
Administrative Law, 9 edition at pp 647
2
See, Articles 30(3) 64 (5), 108 (1) & 13 (6)
Also see, The Proposed Constitution of the United Republic of Tanzania, 2014
1 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

Judicial Review: Applicable Laws, Grounds and Procedures in Tanzania

∗
KATABARO, Jackson

1.1 THE MEANING, SCOPE AND PURPOSES OF JUDICIAL REVIEW

Case Law The Addressed issues Courts Observations

Fauz Twaib, J, observed that; see pp 19-20

“…….What the petitioner wanted us to do in this case is

analogous to exercise of the powers of judicial review. He
Saed Kubenea vs. Defining Judicial Review has exercised an important right as a citizen….that power
Attorney General3
represents in our opinion, the most fundamental
constitutional reason for the existence of the
judiciary…Judicial review it is a tool that enables the
Judiciary to counter balance the exercise of powers of the
State and ensure that all that is done by the various State
bodies and public officials is within the parameters of the
law and the Constitution..” (emphasis is mine)

∗
LL.M-Taxation (UDSM), LL.B (SAUT)
Assistant Lecturer-SAUT-School of Law
Available at [email protected]
3
High Court of Tanzania at Dar es Salaam , Misc. Civil Cause No 28 of 2014
2 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

Kyando J, Observed that;

Felix Mselle vs. “Judicial review of administrative actions is the power or
Minister For Labour Defining Judicial Review
process by which the High Court exercises its supervisory
and Youth and three
others4 jurisdiction over proceedings and decisions of inferior
tribunals or other authorities, bodies or persons charged
with the performance of public acts and duties; this power is
not statutory but inherent in the High Court”
Mwalusanya J. opines that;
“Judicial review is an important weapon in the hands of the
John Mwombeki judges of this country by which an ordinary citizen can
Byombariwa vs. Defining Judicial Review
challenge an oppressive administration action. And judicial
Regional
Commissioner, review by means of prerogative orders (certiorari,
Kagera and Another5
prohibition and mandamus) is one of those effective ways
employed to challenge administrative action. It is my
conviction that the courts should not be too eager to
relinquish their judicial review functions simply because
they are called upon to exercise it in relation to weighty
matters of state.”

4
[ 2002] T.L.R 437
5 th
High Court of Tanzania at Mwanza, Miscellaneous Civil Cause No 22 of 1986 , delivered at Mwanza 28 March, 1987

3 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

Kyando J, Observed that;

“If administrative authority is acting within its jurisdiction or
Jama Yusuph vs. Concept of Judicial Review intra-vires and no appeal from it is provided by statute, then
Minister for Home
it is immune from control by court of law. But if it exceeds
Affairs6
them, a court of law can quash its decision and declare it to
be legally invalid through the inherent powers of judicial
review” (emphasis supplied)
Lord Hoffmann observed;
“…..The principles of judicial review give effect to the rule of
R (Alcombury) vs. Judicial Review and Rule of law. They ensure that administrative decisions will be taken
Secretary of State7 Law
rationally in accordance with a fair procedure and within the
powers conferred by Parliament.”

Reid v. Secretary of Lord Clyde observed that;

State for Scotland8 Scope of Judicial Review “Judicial review involves a challenge to the legal validity of
the decision. It does not allow the court of review to examine
the evidence with a view to forming its own view about the
substantial merits of the case. It may be that the tribunal
whose decision is being challenged has done something,
which it had no lawful authority to do (ultra-vires). It may
have abused or misused the authority, which it had. It may
have departed from the procedures which either by statute
or at common law as a matter of fairness it ought to have
observed…”

6
[1990] T.L.R 80
7
[2001] 2 All ER 929, 981
8
1999 SCLR 74; [ 1999] 2 WLR 28 [1999] 1 ALL ER 481

4 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

Lord Hailsham of St. Marylebone said;

Chief Constable of The Purpose of Judicial “it is important to remember in every case that the purpose
the North Wales Review of the remedies in judicial review is to ensure that the
Police vs. Evans9 individual is given fair treatment by the authority to which
he has been subjected and that it is no part of that purpose
to substitute the opinion of the judiciary or of individual
judge for that of the authority constituted by law to decide
the matters in question. The function of the court is to see
The purpose of judicial that lawful authority is not abused by unfair treatment and
review is to ensure that the not to attempt itself the task entrusted to that authority by
individual receives fair the law. There are passages in the judgment of Lord Denning
treatment, and not to
MR (and perhaps in other judgments of the Court of Appeal)
ensure that the authority,
after according fair in the instant case…..which might be read as giving the
treatment, reaches on a courts carte blanche to review the decision of the authority
matter which it is on the basis of what the courts themselves consider fair and
authorized by law to decide reasonable on the merits. I am not sure whether the Master
for itself a conclusion of the Rolls really intended his remarks to be construed in
which is correct in the eyes such a way as to permit the court to examine, as for instance
of the court.
in the present case, the reasoning of the subordinate
authority with a view to substituting its own opinion. If so, I
do think this is the correct statement of principle. The
purpose of judicial review is to ensure that the individual
receives fair treatment, and not to ensure that the authority,
after according fair treatment, reaches on a matter which it is
authorized by law to decide for itself a conclusion which is
correct in the eyes of the court.” (emphasis is mine)

9
[1982] 1 WLR 1155
5 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

R vs. Kenya Roads The Purpose of Judicial

The High Court in Kenya stated;
Board ex parte John Review
Harun Mwau10
“The remedy of judicial review is available as a procedure
which the applicant can come to court for the determination
of any constitutional issue including striking down of
legislation which may be unconstitutional…In countries with
written Constitutions the Rule of Law implies certain
limitations on legislative power and all other organs of state.
Parliament can only exercise its power within certain
parameters for acts of parliament to be constitutional. The
limitation which the law imposes upon the Executive and the
legislature can only be meaningful where there is a
procedure to interpret the law and examine Executive actions
or decisions with finality…This unique power to test the acts
of the three arms of the state for consistency is vested in the
judiciary. These are what is called judicial review powers.
The judiciary in such exercise is also subject to the rule of
law”

10
Miscellaneous Civil Application No 1372 of 2000
6 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

The Court stated that;

R vs. Judicial Service The Purpose of Judicial
Commission11 Review “The remedy of judicial review is concerned with reviewing
not the merits of the decision in respect of which the
application for judicial review is made, but the decision
making process itself. It is important to remember in every
case that the individual is given fair treatment by the
authority to which he has been subjected and that it is no
part of that purpose to substitute the opinion of the judiciary
or the individual judge for that of the authority constituted
by law to decide the matter in question.”

R vs. Cambridge The Purpose of Judicial Bingham MR stated that;

Health Authority ex Review “ a court exercising judicial review has ‘one function only,
parte B12
which is to rule upon the lawfulness of decisions”

Republic vs.
Permanent Secretary The Purpose Of Judicial The Court was of the view that; the general purposes of
to the Cabinet and Review judicial review is to check that public bodies do not exceed
Head of Public
their jurisdictional powers and carry their duties in a manner
Service of the
President & 2 Others that is detrimental to the public at large.
ex-parte Stanley
Kamanga Nganga13

11
Misc. Civil Application No 1025 of 2003
12
[1995] 1 WLR 898, 905
13
[2006 ] eKLR

7 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

The Court stated;

Commissioner of The Purpose of Judicial But it must be remembered that judicial review is not
Lands vs. Kunste Review concerned with private rights or merits of the decision being
Hotel Limited14 challenged but with the decision making process. Its purpose
it to ensure that the individual is given fair treatment by the
authority to which he has been subjected”

1.2 JUDICIAL REVIEW VERSUS APPEAL: A TABLE OF DISPARITIES

Judicial Review versus Appeal Courts observations

Ally Linus and Eleven Others vs. Tanzania Harbours Nyalali C.J (as he then was) observed that;
Authority& The Labour Conciliation Board of Temeke
District15 “ Granting an order of certiorari in this case would not
amount to hearing an appeal from the Board; while an
appeal requires the appellate court to re-hear the case
decided by the Board either generally or on particular
issues, in application for judicial review (certiorari) the
High Court merely exercises its supervisory function to
ensure that the Board acts in accordance with the law”

14
Civil Appeal no 234 of 1995
15
[ 1998 ] T.L.R 5

8 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

Mwalusanya , J
John Mwombeki Byombariwa vs. Regional “…..It is important to realize that judicial review is not
Commissioner, Kagera and Another16 the same thing as substitution of the court’s opinion on
the merits for the opinion of the person or body to
whom a discretionary decision-making power has been
committed. It is for the executive to make
administrative decisions. Parliament has empowered
the executive to decide what it thinks necessary. It has
to make political and economic judgments. It may make
a sound one or a bad one. The courts might have been
able to make a better one than the executive made; but
it must be remembered that Parliament, no doubt for
good reason, has not entrusted guidance to the courts.”

It was held that;

Rita Biwott vs. The Council for Legal Education17
“My power is not like that of appellate authority to
override the decision of the Council for Legal
Education. Mine is that of directing my mind to the
issues as to whether or not the Council for Legal
Education has acted on the principles of justice and
fairness in this particular matter, on the facts before it
and in the circumstances prevailing at the material
times”

16 th
High Court of Tanzania at Mwanza, Miscellaneous Civil Cause No 22 of 1986 , delivered at Mwanza 28 March, 1987
17
HCCC Misc. Application number 1122 of 1994

9 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

R vs. Chief Justice of Kenya and Others ex parte Lady The Court held inter alia;
Justice Roselyn Naliaka Nambuye18 “This can not be a cause of action under judicial review
because the judicial review jurisdiction does not avail
to attack a decision given on merit by a tribunal. The
remedy lies on appeal. The Court while exercising its
judicial review jurisdiction does not sit on appeal…”
The Court held that;
Chief Constable of the North Wales Police vs. Evans19 Judicial review should be differentiated from appeal;
judicial review is concerned not with the merits or
demerits of the decision reached by an administrative
authority- with whether that decision was right or
wrong –but with the process by which the decision was
reached.
Hoffman LJ remarked that;
Quigly vs. Chief Land Registrar20 “A right of appeal to the court is entirely a creature of
the statute’ there was no provision in the relevant
legislation for a right to appeal against the decision in
question. This does not mean that the exercise of
administrative powers by the registrar is altogether
beyond judicial control. I should have thought that it
would be subject to judicial review in the same way
and on the same principles as any other public power”

18
Miscellaneous civil case number 764 of 2004
19
[1982 ] 1 WLR 1155
20
(1993) CA

10 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

1.2.1 JUDICIAL REVIEW VERSUS APPEAL: GENERAL TABLE OF DISPARITIES

Judicial Review Appeal

It is the inherent jurisdiction of the High Court to review Appeal is the statutory right, not inherent right

administrative actions/decisions of public and private

bodies

It does not deal with the merit and demerit of the case, it The court when sitting for appeal, it deals with the

does explore the procedure used by administrative merits of the case and the actual decision taken

authorities to reach the intended decision

The court is barred from substituting the decision made The court sitting to hear an appeal, may uphold the

by the administrative authority but rather it has the decision taken by subordinate court or substitute it

mandate to examine the process which led to the decision with a new decision favouring the appellant

made.

The review is concerned only with ensuring that the legal An appeal allows the appellate body to decide the whole
matter again, unless the particular statute or agreement
procedures are complied. A claim for judicial review as
limits the ground of appeal. Depending on the enabling
such is possible only in the High Court.
statute, an appellate body might be a court, tribunal or
Minister.

11 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

1.3 THE GROUNDS FOR JUDICIAL REVIEW

Case law Determined issues Courts observations

Council of Civil Service The Grounds for the Judicial Lord Diplock Stated that;
Unions vs. Minister for Review
the Civil Service21
“Judicial review has I think developed to a stage
a) Illegality
today when….. one can conveniently classify under
b) Irrationality
three heads the grounds upon which administrative
c) Procedural impropriety action is subject to control by judicial review. The
first ground I would call “illegality’, the second
‘irrationality’ and the third procedural impropriety’.
That is to say that further development on case basis
may not in course of time add further grounds. I
have in mind particularly the possible adoption in
the future of the principle of ‘proportionality’ which
is recognized in administrative law of several of our
fellow members of the European Economic
Community.” (emphasis is mine)

21
[1985] AC 374, 410
12 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

Sanai Murumbe and The Court of Appeal of Nyalali CJ, Makame JJA & Ramadhani JJA stated;
Another vs. Muhere Tanzania approved the
Chacha22 grounds of judicial review by
Lord Diplock;23
The High Court is entitled to investigate the
1. Illegality-; (failure to follow the law
proceedings of a lower court or tribunal or a public
and lack of jurisdiction.
authority on any of the following grounds, apparent
2. Procedural impropriety-; (failure
to observe the principles of natural on the record; One, that the subordinate court or
justice and failure to act with tribunal or public authority has taken into account
procedural fairness)
matters which it ought not to have taken into
3. Irrationality-; (making a decision account; Two, the court or tribunal or public
which is outrageous in its defiance of
logic or of accepted moral standards authority has not taken into account matters which it
that no reasonable person who had ought to have taken into account.
applied his mind to it could have
made such decision Three, lack or excess of jurisdiction by the lower
court. Four, the conclusion arrived at is so
4. Proportionality-; (that the means unreasonable that no reasonable authority could ever
employed by a decision-maker are come to it. Five, rules of natural justice have been
non more than is reasonably
necessary to achieve his or her violated. Six, illegality of procedure or decision
legitimate aims and not that intended
by law

22
[ 1990] TLR 54 (CA)
23
Also see, James F. Gwagilo vs. Attorney General 1994 TLR 73 (HC)

13 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

Moshi J opines that;

Lausa Alfan Salum and Ground for judicial Review or “Broadly speaking prerogative orders of certiorari
116 others vs. Minister prerogative orders in Tanzania and prohibition may be issued in certain cases,
for lands Housing and either to quash a decision made in the course of
Urban Development and
performing a public duty or prohibit the
National Housing
Corporation 24 performance of a public duty, where the injured
party has a right to have anything done, and has no
other specific means of , either having the decision
Any action of public official quashed or the performance of the duty prohibited,
done in official capacity is when the obligation arises out of the official status
challenged on the ground of of the party or public body complained against …had
illegality, irrationality and
an imperative legal duty of public nature which they
procedural impropriety.
had to perform in their official capacity. In my
considered view, any of their actions or decisions is
challenged; firstly, if it is tainted with illegality that
is the power exercised is ultra vires and contrary to
the law. Secondly, if it is tainted with irrationality
that is the action or decision is unreasonable in that
it is so outrageous in its defiance of logic or
accepted moral standards that no sensible person
who had rightly applied his mind to the matter to be
acted upon or to be decided could have thus acted or
decided. Thirdly, if the action or decision is tainted
with procedural Impropriety that is, failure to
observe the basic rules.” (emphasis is mine)

24
[ 1992] TLR 293 (HC)
14 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

a) Taking into account matters which it ought not

Associated Provincial The Ground for issuance of to have taken into account
Pictures House Ltd vs.
prerogative orders against
Wednesbury Corp25 b) Not taken into account matters which it ought
public or bodies exercising
to have taken into account
public function
c) Lack or excess of jurisdiction

d) Unreasonable decision that no reasonable

tribunal or authority could ever come to it;

e) Violation of natural justice rules; and illegality

of procedure or decision

Republic vs. Attorney The grounds for judicial review The Court of Appeal in Kenya observed that;
General and Registrar of should not only be confined to
Societies26 illegality, irrationality and “The law to judicial review had not yet reached the
procedural impropriety
furthest or the last frontier and that courts must
endeavor to expand the grounds of intervention
depending on the circumstances before them.”

25
[1947] 2 ALL E.R 680
26
Miscellaneous Application 769 of 2004

15 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

1.3.1 THE COURTS DESCRIPTIONS ON THE GROUNDS FOR JUDICIAL REVIEW

Lord Greene MR observed that;
“It is true to say that, if a decision on a competent
Associated Provincial Picture matter is so unreasonable that no reasonable authority
Houses Ltd vs. Wednesbury Irrationality /the test
could ever have come to it, then the courts can
Corpn27 (Wednesbury principle) for unreasonableness
interfere. That, I think, is quite right; but to prove a case
of that kind would require something overwhelming
….it must be proved to unreasonable in the sense that
the court considers it to be decision that no reasonable
body could have come to. It is not what the court
considers unreasonable, a different thing altogether”
Lord Diplock observed that;
“What can now be succinctly referred to as wednesbury
Council of Civil Service Unions Wednesbury
v. Minister for the Civil Service28 unreasonableness unreasonableness …applies to a decision which is
principle
outrageous in its defiance of logic or of accepted moral
standards that no sensible person who had applied his
mind to the question to be decided could have arrived
at it.”

27
[1948] 1KB 223, 230
28
[1985] AC 374, 410

16 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

Lord Mustill observed that;

R vs. Secretary of State for the Procedural impropriety-
“(1) where an Act of Parliament confers an
Home Department, exp p The test to be
Doody 29
established administrative power there is a presumption that it will
be exercised in a manner which is fair in all the
circumstances….(5) procedural propriety and fairness
will very often require that a person who may be
adversely affected by the decision will have an
opportunity to make representations on his own behalf
either before the decision is taken with the view to
producing a favourable result; or after it is taken, with a
view to procuring its modification or both.(6) since the
person affected usually can not make worthwhile
representations without knowing what factors may
weigh against his interest procedural propriety and
fairness requires that he is informed of the gist of the
case which he has to answer.” (emphasis is mine)

29
[1994] 1 AC 531, 560
17 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

1.3.2 THE GENERAL DESCRIPTIONS ON THE GROUNDS FOR JUDICIAL REVIEW

Illegality Irrationality/Unreasonable Procedural impropriety

Any public authority operating in bad - The question of unreasonable An authority is guilty of procedural

faith, intentionally exceeding statutory is not explicit; it must always impropriety if in exercising a statutory

conferred limits by the Parliament is be decided in the contexts of power, it fails to comply with statutory

guilty of illegality. This may include but particular statutory powers. procedural including;

not limited to; - Irrationality may also be as the - Violating statutory decision

- lack of jurisdiction result of taking irrelevant making procedure

- operating beyond the limits defined factors into account in - Lack of fair hearing/ against the

by the statute decision making rules of natural justice

- errors of law and errors of facts - Bias

- taking irrelevant factors into - Failure to give reasons for the

account or failing to take relevant decision

facts into account

18 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

1.4. THE ENABLING PROVISIONS FOR JUDICIAL REVIEW IN TANZANIA

Any person;
i Who believes his interest will be adversely affected or
Who may apply? Rule 4
of the ii Whose interest have been affected by
G.N.No 324 of 5/9/ 2014 iii An act or omission in a proceeding or matter
iv May apply for judicial review

Whether the court Nyongesa and Others v. Courts are loath to interfere with decisions of domestic bodies and
can exercise it Egerton University tribunals including college bodies. However courts will interfere and
judicial review College30 quash decisions of any bodies when moved to do so………….”
powers suo moto

Any person;
i Who believes his interest will be adversely affected or
ii Whose interest have been affected by
iii An act or omission in a proceeding or matter
iv May apply for judicial review
Where to apply Section 17 of Cap 310 v At the High Court of Tanzania

The High Court has inherent jurisdictional powers to supervise and

counter balance the proceedings of the administrative bodies. In
application for judicial review; the High Court merely exercises its
supervisory function to ensure that public bodies actions are in line
with the constitutional principle of rule of law.

30
[1990] KLR 693
19 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

Transport Equipment Ltd The Court of Appeal of Tanzania defined inherent jurisdiction of a
vs. Devram P. Valambhia31 court (Nyalali C.J, Makame, Kisanga, Ramadhan, Mnzavas, Mfalila
and Lubuva, JJ.A) held that
Where to apply;
Inherent jurisdiction to “ The inherent jurisdiction of a court is not a creature of statute,
review administrative although may be embodied or re-stated in a statute; inherent
The concept of
actions or decisions of
inherent jurisdiction is the inherent power of a court that is necessary for the
jurisdiction of public and private bodies
(with public character) proper and complete administration of justice and it is vested in all
High Court and
Court of Appeal through judicial review is courts of superior jurisdiction and is essential to their existence. The
vested to the High Court
Court of Appeal has limited inherent jurisdiction to review its
decisions when such decisions are nullity, or where a party is
wrongly deprived of opportunity to be heard; and there is also
inherent jurisdiction in the Court to review its own decision
wherever such decisions are based on manifest error on the face of
the record resulting in miscarriage of justice.”

Where to address Any person aggrieved by an order made by the High Court in
Section 17 (5) of Cap 310
an appeal to
exercising its inherent powers of judicial review may appeal there
challenge the
orders issued by from to the Court of Appeal of the United Republic of Tanzania
High Court

31
[ 1998] T.L.R 89 (CA)
20 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

Kimaro J.A made reference to AG vs. Philemon Ndesamburo33 and

The Attorney Appeal from the order made held that;
General and by the High Court through “Under Section 5(1) of the Appellate Jurisdiction Act, 1979, and as
Minister for judicial review- whether this Court held in Ngalai’s appeal, it is obvious that the right to
Foreign Affairs vs. appeal to this court is not granted by the Appellate Jurisdiction Act,
there is requirement for the
Valerian Bamany A
leave to appeal to the Court 1979 alone but that there are other laws providing for such right. In
t/a Tanzania
Associated of Appeal Ngalai the other law was the Constitution of the United Republic of
Merchandise32 Tanzania, 1977. In the present case it is the Law Reform (Fatal
Accident and Miscellaneous Provisions) Act. There is no need for
leave to appeal; the present appeal is from orders made in
application for judicial review. Section 17(5) makes it clear that no
leave is required before lodging an appeal to the court. The section
says; Section 17(5) ‘Any person aggrieved by an order under this
section may appeal there from to the court of Appeal” (emphasis is
mine)
The Requirement of Leave to
Attorney General appeal under Section 5(1) of Ramadhani, Lubuva and Lugakingira JJ.A observed that;
vs. Philemon the Appellate Jurisdiction
Ndesamburo34 Act, 1979- whether the same “ There was no need for leave in the matter as Section 17(5) of the
is applicable under Section
Law Reform (Fatal Accidents and Miscellaneous Provisions) Act
17(5) of the Law Reform
(Fatal Accidents and provides for an automatic right of appeal to the Court of Appeal” 35
Miscellaneous Provisions)
Act

32
The Court of Appeal of Dar es Salaam, Civil Appeal No 79 of 2005
33
Civil Appeal No 14 of 1998 (CA)
34
[2003 ] T.L.R 194 (CA)
35
See, Leonsi Silayo Ngalai vs. Honorable Justice Alfred Salakana and Attorney General CAT-Civil Appeal Number 38 of 1996

21 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

MROSO, J.A. KAJI, J.A and RutakangwA, J.A stated that

Appeal from the order made “It appears to us obvious that section 17 of Cap 310 apart from
The Attorney prohibiting the High Court from issuing prerogative writs of
General vs. by the High Court through
judicial review- whether mandamus, prohibition and certiorari, it provides for the
Wilfred Onyango
& Peter Gikura there is requirement for the jurisdictional the High Court to issue the orders of mandamus,
Mburu & 10 leave to appeal to the Court prohibition and certiorari, henceforth to be referred to only as the
others36 of Appeal orders. It also provide for a right of appeal by an aggrieved party
where an application for orders is either granted or refused. It does
not deal with application for leave to apply for the orders. That
being the position, section 17 (5) discussed above can not be cited as
the authority for a right to appeal against the grant or refusal of
leave to apply for the orders. Subsection (5) of section 17 as quoted
specifically refers to person who is “aggrieved by an order made
under this section…..meaning section 17….similarly in the case of
the Senate of University of Dar es Salaam vs. Edmund Amin
Mwasaga and 4 others, Civil appeal No. 83 of 1999 it was held that
section 17 (5) of Cap 310 is invoked only if a final decision in
application for orders has been given. Although per the Senate of the
University of Dar es Salaam case a decision at the leave stage is
appealable with leave under section 5(1) (c) of the Appellate
Jurisdiction Act, 1979 the same thing could not be said of this
criminal appeal because there is no equivalent of sub section (1) (c)
of section 5 which deals with civil appeals, in section 6 which relates
to criminal appeals to the Court of Appeal. So the question of leave
to appeal does not arise in criminal appeal.” (emphasis is mine)

36
Criminal Appeal No. 276 of 2008
22 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

Any person who wishes to apply for judicial review at the High Court
of Tanzania must;
Rule 5, 6,7&8 a) Seek leave from the court or permission to make application
How to apply of the
for judicial review. It is a necessary preliminary step in making
G.N.No 324 of 5/9/ 2014
a claim for judicial review one must obtain the permission of
the court.
b) The leave to apply for judicial review must be made within six
Prior to The Law Reform month after the date of the proceedings, act or omission to
(Fatal Accident and which the application for leave relates (S.19 Cap 310)
Miscellaneous Provisions) c) An application for leave must be made through Chamber
(Judicial Review Procedure
summons and be accompanied by the name and prescription
and Fees) Rules, 2014, the
requirement of leave to of the applicant, the relief thought, the grounds in which the
apply for judicial review and relief is thought and affidavit verifying the facts relied on.
time limit was determined in (Form A)
the following case laws in d) An application for leave shall be made ex parte provide that
Tanzania.i where circumstances require the judge may direct that
(see Appendix ‘A’) at page application be served for hearing inter-parties before the
33
grant of such leave.
e) Such circumstance include the requirement of section 18(1) of
CAP 310 which requires the Court to order that Attorney-
General be summoned to appear as a party to the proceedings
for leave and if he does not appear on the date set for hearing
Section 18(1) of CAP 310 the application may proceed ex-parte. Attorney General must
be a necessary party where the applicant seeks Court orders
against the Government or public officer.

23 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

Kisanga JA; observed;

National Housing Parties to proceedings - The Attorney-General was not summoned as a party to appear
Corporation vs. involving interpretation of for the hearing of the proceedings and failure to so summon
Tanzania Shoe constitutional provisions the Attorney-General by the trial court contravened the
Company and enshrining basic rights and
provision of section 18(1)&(2) of the Law Reform (Fatal
Others37 freedoms without
summoning Attorney- Accident and Miscellaneous Provisions) Act Cap 310 38
General to appear as a party - Since the trial commenced and continued in the absence of
in the proceedings-whether necessary party the Court proceeded without authority and
the High Court was that constituted a major defect which went to the root of the
competent to proceed with trial thus rendering the proceedings null and void
the hearing without the
Attorney-General
The Court observed that
Mecaiana The mandatory requirement “From the clear and unambiguous words of that sub-section the
Establishments of summoning Attorney requirement to summon the Attorney General as a party in
(Vaduz) vs. The General; whether it is proceedings is being sought. Thus after the leave has been granted
Commissioner of necessary at the application to institute those proceedings, then there is no requirement of
Income Tax39 stage summoning the Attorney as a party. It may be necessary to point out
here that as the Chief Justice has not made rules to govern these
proceedings, the High Court has been following the procedure
obtained in England. A party first makes an application for leave to
apply for prerogative orders. After leave has been granted, the party
proceeds to file an application for prerogative orders. The
requirement of summoning the Attorney-General as a party is for
first stage of seeking leave. That requirement is absent in the second
stage of application for prerogative orders.”

37
1995 T.L.R 251 (CA)
38
Previously it was Section 17A of the Law Reform( Fatal Accidents and Miscellaneous Provisions) CAP 360
39
The Court of Appeal of Tanzania at Dar es Salaam (1995), unreported

24 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

“……….. the application before this court at this point is one for
leave to apply for the prerogative orders of certiorari. The applicant
Pavisa Enterprises
vs. The Minister The Rationale behind the is at this stage, seeking the permission of this court to bring an
for Labour Youth requirement of Leave or
application for certiorari. In the book "JUDICIAL REMEDIES IN
Development & Court Permission to file an
Sports and application for Judicial PUBLICLAW Second Edition by Clive Lewis at page 263 it is stated:
Attorney Review.
"The requirement of permission is designed to filter out applications
General40
which are groundless or hopeless at an early stage. The purpose is to
prevent the time of the court being wasted by busy bodie's with
misguided or trivial complaints of administrative error and to
remove the uncertainty in which public.... Authorities might be
left..... JJ [quoting the dicta or Lord Diplock in R.V.T.R.C, Exp
National Federation of Self Employed and small business Ltd [1982]
A.C.617 at p.643] The learned author goes on to state that factors to
be considered in determining whether to grant permission are: 1.
The applicant must demonstrate that there is an arguable case that a
ground for seeking judicial review exists. 2. The applicant is
required to show sufficient interest in the matter to which the
application relates. 3. That the applicant has acted promptly 4. The
applicant has to show that there is no alternative remedy which
exists.”

40
High of Tanzania Court, Misc, Civil Cause No. 65 of 2003
25 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

f) The application for leave shall be heard and determined within

How to apply Rule 5 fourteen days from the date the application was made

Rules 1-17 Candidates are highly advised to Read and reread

The Law Reform (Fatal Accident and Miscellaneous Provisions)
(Judicial Review Procedure and Fees) Rules, 2014

How to apply The question of Locus Standi An applicant for judicial review ought to show sufficient Locus
in application for leave and Standi to the court for his application for leave to be entertained.
The requirement application for judicial However, the question of assessing locus standi in judicial review is
of Locus Standi review still controversial.ii (See, Appendix ‘B’) at page 36

5.-(1) An application for judicial review shall not be made unless a leave to file such
application has been granted by the court in accordance with these Rules. (2) An
How to apply application for leave under sub-rule (1) shall be made ex parte to a judge in chambers
Rules 5, 6, 8 and 9 and be accompanied by- (a) a statement providing for the name and description of the
The Law Reform (Fatal applicant; (b) the relief sought; (c) the grounds on which the relief is sought; and (d)
Legal Documents Accident and Miscellaneous affidavits verifying the facts relied on. (3) An application for leave shall be
Provisions) (Judicial Review substantially in the Form A set out in the First Schedule to these Rules and shall be
Procedure and Fees) Rules, signed by or on behalf of the applicant.
2014
8.-(1) Where a leave to apply for judicial review has been granted, the application shall be
made-(a) by way of chamber summons supported by an affidavit and the statement in respect of
which leave was granted; and (b) within fourteen days from the day of the leave
was granted. (2) The chamber summons shall be in the format subscribed in Form B set out in
the First Schedule to these Rules and shall be signed by or on behalf of the applicant. (3) The
affidavit shall be made by the applicant in person or by an authorized officer of the applicant.
(4) Where the applicant is unable to make the affidavit, the affidavit may be made by another
person on the applicant's behalf, and it shall state why the applicant is unable to make the
affidavit.

26 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

1.5 REMEDIES/PREROGATIVE ORDERS OUT OF JUDICIAL REVIEW

Mwalusanya J noted that;
Prerogative John Mwombeki
There are available prerogative orders which can be used by the
Orders in Byombariwa vs. Regional
Tanzania Commissioner, Kagera and Court as Judicial Review Weapons and the same as remedies to the
Another41
party affected by administrative actions including but not limited
to;
i Certiorari
ii Prohibition
iii Mandamus
In any case where the High Court would but for subsection (1) have
Section 17 (1) & The Law Reform (Fatal
(2) Accidents Miscellaneous had jurisdiction to order the issue of a writ of mandamus requiring
Provisions) Act, Cap 310
any act to be done or a writ of prohibition prohibiting any

proceedings or matter, or a writ of certiorari removing any

proceedings or matter into the High Court for any purpose, the

Court may make an order requiring the act to be done or prohibiting

or removing the proceedings or matter, as the case may be.

41 th
High Court of Tanzania at Mwanza, Miscellaneous Civil Cause No 22 of 1986 , delivered at Mwanza 28 March, 1987
27 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

Lord Atkin defines the necessary conditions for the Court to issue
CERTIORARI R vs. Electricity
the writ of Certiorari
Commissioners42
a) That the judicial or quas judicial body must have legal
authority
b) That such an authority must be in respect of determining
questions affecting rights of subjects
c) It must have duty to act judicially
d) The authority must have acted in excess of its authority

PROHIBITION East India Commercial Co. The supreme Court of India observed that;
vs. Collector of Customs43
“A writ of prohibition is an order directed to an inferior Tribunals,

Executive and public authorities forbidding them from continuing

with a proceeding therein on the ground that the proceeding is

without or in excess of jurisdiction or contrary to the laws of the

land, statutory or otherwise.”

42
[ 1924] 1KB 171
43
AIR 1962 SC 1893

28 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

The general conditions for

Lausa Alfan the prerogative orders of Moshi J opines that;
Salum and 116 Certiorari and Prohibition
others vs. “Broadly speaking prerogative orders of certiorari and prohibition
Minister for lands
may be issued in certain cases, either to quash a decision made in
Housing and
Urban the course of performing a public duty or prohibit the performance
Development and
of a public duty, where the injured party has a right to have
National Housing
Corporation44 anything done, and has no other specific means of, either having the
decision quashed or the performance of the duty prohibited…”
(emphasis is mine)

John Mwombeki The general conditions for

Mwalusanya J observed that
Byombarlirwa vs. the prerogative order of
Regional Mandamus “For what we know mandamus is the High Court order to compel a
Commissioner,
Kagera and public officer to perform a public duty entrusted to him. It is said it
another45
will be granted if the duty is in the nature of public duty and

specifically affects the rights of an individual, provided there is no

more local appropriate remedy.” (emphasis is mine)

44
[ 1992] TLR 293 (HC)
45
High Court of Tanzania at Mwanza, Miscellaneous Civil Cause No 22 of 1996

29 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

Mwalusanya J stated that;

John Mwombeki “For that we know mandamus is the procedure whereby a citizen
MANDAMUS Byombarlirwa vs. Regional with sufficient legal interest may apply to the high Court to compel
Commissioner, Kagera and a public officer to perform a public duty entrusted to him. It is said
another46
it will be granted if the duty is in the nature of a public duty and
specially affects the rights of an individual, provided there is no
more appropriate remedy. The person or authority to whom it is
issued must be either under an authority or legal duty to do
something or not to do something; the duty itself being of an
imperative nature. From the foregoing discussion it has been said
there are five conditions to be proved in order for an order of
mandamus to be issue. These are;
1. The applicant must have demanded performance and the
respondents must have refused to perform
2. The respondents as public officers must have a public duty to
perform imposed on them by statute or any other law but it
should not be a duty owed solely to the state but should be a
duty owed as well to the individual citizen
3. The public duty imposed should be of imperative nature and
not discretionary one
4. The applicant must have a locus standi ; that is he must have
sufficient interest in the matter he is applying for and
5. There should be no other appropriate remedy available to the
applicant

46
High Court of Tanzania at Mwanza, Miscellaneous Civil Cause No 22 of 1996
30 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

Mapigano J observed that

“The remedy sought for, …… is the issue of directions in the nature

Sheikh Mohamed Nassor
of habeas corpus. This remedy has its roots in England. At common
HARBEAS CORPUS Abdullah vs. Regional Police
Commander, Dar es Salaam law the prerogative writ of habeas corpus is directed to a person
Region and Two others47 who detains another in custody and commands him to produce or
have the body of that person before the court for a specified
purpose. The most important specie of habeas corpus is that which
is called habeas corpus subjiciendum. This commands the person
to whom it is directed to produce the body of a person detained,
with the day and cause of his caption and detention, to do, submit
to and receive whatsoever the court shall direct. We are told that
this writ was formerly much used for testing the legality of
imprisonment for political reasons, especially during the reigns of
the Stuarts. Besides the efficacy of the writ in liberating the subject
from illegal confinement in a public prison, it also extends its
influence to remove every unlawful restraint of personal freedom in
private life, availing, for example, to release a person from a place
where he has been unlawfully banished. It is part of the law of this
country. But, it may be stressed, to invoke the remedy of habeas
corpus it must be shown that the detention is improper or illegal:
See Zabrovsky v Palestine General Officer Commanding (1947) AC
246. That, of course, is trite law. So much for the writ of habeas
corpus.”
Criminal Procedure ( Harbeas Corpus Rules) G.N.No 150 of 1930

47
[ 1985] T.L.R 1 (HC)
31 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]
 [email protected]

Chipeta , J Observed That;

George Lugga Malliyamkono vs. Principal “Let me reiterate here that as I understand the law, orders of
Secretary of the Ministry of Science, Certiorari and Mandamus will only be issued where it has been
Technology and Higher Education and Two
shown that the authority in question has acted without, or in excess
Others48
of its jurisdiction; or where such authority is shown to have acted
with bias; or where there is an error on the face of the record; or
where, on the totality of the facts and circumstances disclosed, ……”

1.5.1 OTHER COMMON LAW WRITS

Means “by what authority”. It is used question a person who occupiers a substantive public
QUO-WARRANTO office without legal authority to show by what right he or she occupies the office. The applicant
for this writ ordinarily requests the Court to issue the writ of quo-warranto to remove persons
who are not legally qualified or competent from substantive public offices. 49 This writ was used
by the Crown against those encroaching royal prerogative rights, franchises or liberties of the
Crown. However, it was abolished by the Administration of Justice Act, 1938 and replaced by
injunction.50
NE EXEAT REGNO Is writ issued to restrain a person about to leave the territory without licence of the Crown or
the leave of the court. It may also be used to restrain a debtor who is about to abscond. 51

48
[2000] T.L.R 44
49
See, Frank Mirindo ( 2011) Administration of Justice in Mainland Tanzania, at pp 513
50
Ibidem
51
Ibidem at 513-514

32 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

1.6 JUDICIAL REVIEW AND HUMAN RIGHTS ENFORCEMENT

Applicable Law Pertinent notes
– High court in exercising its criminal or civil jurisdiction may issue
prerogative Orders of: Mandamus, Prohibition, and Certiorari
Section 17, 18 & 19 – A-G m must be summoned as a party
Law Reform Fatal (Accidents and – Procedure – application for leave to apply for prerogative orders – is a must.
Miscellaneous) Provisions Act and It must be supported by affidavit of the applicant.
the Judicial Review Rules, 2014 – Upon issuance of leave – the applicant has to apply for such orders using
Chamber application, supported by Affidavit.
Inapplicable Law Pertinent Notes

(1) The High Court shall have and may exercise original jurisdiction–
(a) to hear and determine any application made by any person in pursuance of section4;
(b) to determine any question arising in the course of the trial of any case which is referred
to it in pursuance of section 6, and may make such orders and give directions as it may
consider appropriate for the purposes of enforcing or securing the enforcement of any of the
provisions of sections 12 to 29 of the Constitution, to the protection of which the person
Section 8 concerned is entitled.
Basic Rights and Duties enforcement (2) The High Court shall not exercise its powers under this section if it is satisfied that
Act [Cap 3 R.E 2002] adequate means of redress for the contravention alleged are or have been available to the
person concerned under any other law, or that the application is merely frivolous or
vexatious.
(3) The High Court shall dismiss every application brought under this Act which it is
satisfied is brought only on the grounds that the provisions of sections 12 to 29 of the
Constitution are likely to be contravened by reason of proposals contained in any Bill
which, at the date of the application, has not become a law.
(4) For the avoidance of doubt, the provisions of Part VII of the Law Reform (Fatal
Accidents and Miscellaneous Provisions) Act which relate to the procedure for and the
power of the High Court to issue prerogative orders, shall not apply for the purposes
of obtaining redress in respect of matters covered by this Act.

33 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

i
APPENDIX ‘A’
THE TIME LIMIT AND REQUIRMENT OF LEAVE TO APPLY FOR JUDICIAL REVIEW: THE POSITION BEFORE 2014
JUDICIAL REVIEW RULES (G.N. No 324 of 5/9/2014)

Whether an application for Mwakibete J observed that;

Mohamed vs. Regional C.I.D Officer, an order of mandamus can “The urgency of the matter-the subject of this application can not be
Mbeya, Miscellaneous Criminal be entertained in absence of overemphasized. There is an allegation-albeit impliedly of flagrant misuse
cause No 29 of 1978 (Mbeya prior leave of the Court
of authority to the suffering of the applicant. Surely the circumstances
Registry)
demand that the application is heard with dispatch on its merits……it is a
case properly crying for dispensation of the alleged leave. Thus by virtue
of this courts inherent powers I herby order that the leave to file the
application be dispensed with”
Mroso, J made a reference to the case of D.M.T Ltd vs. Transport
Makule vs. The R.P.C Kilimanjaro, Whether Section 2(2) of the Licensing Authority [1959] E.A 403 AND Section 2(2) of the Judicature
Miscellaneous Civil Application No judicature and application of and application of laws Act and came into conclusion that the requirement
87 of 1979 laws Act implies also the
of leave to apply for judicial review was not part of the law of this
leave to apply for judicial
review as it was under country. However, this decision was latter challenged that section 2(2)
English common law also necessitate leave to apply for judicial review as it was also the
position under the common law of England.
Maganga J observed that;
Lakarau vs. Town Director Arusha, Whether an order of “….it is still appears to me that the application for mandamus as filed is
Miscellaneous Civil Application No mandamus can be obtained incompetent for reason that no leave to file the application had been
56 of 1979 without prior leave to apply
granted. The procedure for orders of mandamus and other writs as stated
for judicial review
at page 70 of Halsbury’s Laws of England (3rd Ed. Vol 11) make it
mandatory for leave to apply to be obtained before an application for any
of the writs is made. It is stated therein that…. No application can be made
unless leave therefore has been granted……”

34 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

NSKEKA J.A, MSOFFE, J.A And KAJI J.A stated that;

Hezron M. Nyachiya vs. Tanzania Is the law of Limitation Act “Generally speaking the law of limitation plays many roles including the
Union of Industrial Commercial 1971 applicable to following; One to set time limit within which to institute proceedings in a
Workers and Organization of applications filed under the Court of law, Two, to prescribe the consequences where proceedings are
Tanzania Workers Union; The Court law Reform (Fatal Accidents
instituted out of time without leave of the court. Where a period of
of Appeal of Tanzania, Civil Appeal and Miscellaneous
No 79 of 2001 Provisions) Act Cap 310 limitation for any proceeding is prescribed by any other written law, the
provisions of the law of limitation apply as if such period of limitation had
been prescribed by the law of limitation Act. This is provided for under
section 46 of the law of limitation which states where period of limitation
for any proceedings is prescribed by any other written law, then, unless the
contrary intention appears in such written law and subject to the provision
of section 43, the provisions of this Act shall apply as if the such period of
limitation had been prescribed by this Act. In the instant case, the time
limit for instituting proceedings under the Law Reform (Fatal Accident
and Miscellaneous Provisions) Act read together with G.N. No 324 of
2014 is six months as provided under section 19 and Rule 6. But the Act
and its rules do not prescribe the consequences when such proceedings are
initiated out of time without leave of the court. The law of limitation has a
provision for the consequence where a proceeding is instituted out of time
without leave of the court. It is section 3; the consequence is that such
proceeding shall be dismissed whether or not limitation has been set up as
a defence. Since under section 46 where period of limitation for any
proceedings is prescribed by any written law the provisions of the Law of
Limitation Act applies, it is our considered view that Section 3of the law
of limitation applies also in respect of proceedings instituted under the
Law Reform (Fatal Accident and Miscellaneous Provisions) Act read
together with G.N. No 324 of 2014.” (Emphasis supplied)

35 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

Mobrama Gold Corporation Limited Limitation period for

vs. Minister for Water, Energy and application for prerogative Sammatta C.J, Ramadhani and Lugakingira, JJ.A held that;
Minerals and three others [2001] orders
T.L.R 505 “The Period limitation for prerogative orders can not exceed six months

from the date of the act or omission to which the application relates”

Also See the Current Rule 6 of the G. N. No. 324 of 5/9/2014

Application for interim

TUICO –OTTU UNION and relief pending intended
Another vs. NBC (1997) Ltd and Two appeal against refusal of Mapigano J Observed that;
Others [2000] T.L.R 3016 application for leave to
apply for judicial review-
Whether the High Court may
entertain such an application “Once the High Court Refuses an application for leave to apply for
for interim relief
prerogative orders the matter is thereby thrown out of the court and the

court becomes functus officio with no jurisdiction to grant any form of

interim relief in the matter.”

36 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

APPENDIX ‘B’
ii

THE QUESTION OF LOCUS STANDI IN APPLICATION FOR JUDICIAL REVIEW : THE SYNOPSIS OF CASE LAW

Mackanja, J held that;

Josiah Baltazar Baisi and 138 Application for prerogative orders i. Apart from the applicants obligation to make a full and frank
others vs. Attorney General of Prohibition and mandamus- disclosure of all material facts on which they rely in their
and Others [1998 ] T.L.R 331 Locus Standi-Meaning of locus application, uberrima fides is also required and leave will not be
(HC) standi-when Locus standi can be granted if there has been a deliberate misrepresentation or
raised as an issue in proceedings concealment of material facts in the applicant affidavits.
for prerogative orders ii. It is the matter of high constitutional principle that of there is a
good ground for supposing that a government or public authority
is transgressing the law or is about to transgress it, in a way that
offends or injures thousands of subjects, then any one of those
offended or injured can draw it to the attention of the courts of
law and seek to have the law enforced, and the courts in their
discretion can grant whatever remedy is appropriate;
iii. Today, locus standi is not viewed in its original narrow meaning;
it has been expanded to include “sufficient interests” so that
anyone with sufficient interest may seek a remedy on behalf of
others who are also injured.
iv. Locus standi can be raised as an issue during the preliminary
stage in the application for leave; at that early stage the court may
find, in simple cases that an application for judicial review has no
right of being heard. In cases that involve complex issues, the
question of sufficiency of interest has to be considered together
with the legal and factual context of the application.
v. If application for prerogative orders is made, the question of locus
standi will then be determined regarding those who passed the test
at the threshold stage, those who can establish that, indeed, they
had a grievance.

37 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

The meaning of “sufficient Lord Wilberforce at page 630 argues that;

R vs. Inland Revenue interest” in application for “….the courts in exercising the power to grant prerogative writs or, since
Commissioners ex parte judicial review
1938, prerogative orders, have always received the right to be satisfied
National Federation of Self
Employed and Small Business that the applicant had some genuine locus standi to appear before it. This
Ltd [1922] A.C 617 they expressed in different ways. Sometimes it was said, usually in
relation to certiorari, that the applicant must be a person aggrieved or
having a particular grievance…..usually in relation to mandamus, that he
must have specific legal right……sometimes that he must have a
The rationale behind court sufficient interest…..
permission to apply for judicial
review was stated as follows;
At page 653 Lord Scarman said;
.. The curb represented by the “The sufficiency of the interest is, as I understand all your Lordships
need for an applicant to show, agree, is a mixed question of law and fact.
when seeks leave to apply, that he …The one legal principle, which is implicit in the case law and
has such a case is an essential accurately reflected in the rules of court, is that in determining the
protection against abuse of legal sufficiency of an applicant’s interest it is necessary to consider the matter
process. It enables the court to
to which the application relates. It is wrong in law, as I understand the
prevent abuse by busybodies,
cranks and other mischief- cases, for the court to attempt an assessment of the sufficiency of the
makers.” applicant’s interest without regard to the matter of his complaint. If he
fails to show, when he applied for leave, a prima facie case, or
reasonable grounds for believing that there has been failure of public
duty, the court would be in error it granted leave. The curb represented by
the need for an applicant to show, when seeks leave to apply, that he has
such a case is an essential protection against abuse of legal process. It
enables the court to prevent abuse by busybodies, cranks and other
mischief-makers...”

38 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]

 [email protected]

FURTHER READINGS
Author Titles
B.D Chipeta (2009) Administrative Law in Tanzania, A Digest of Cases, Mkuki na Nyota Publishers
C.M. Peter (1997) Human Rights in Tanzania, Selected Cases and Materials
C.K Takwan (2012), Lectures on Administrative Law 4th edition Eastern Book Company
Chris Maina & Hellen Law & Justice in Tanzania, Quarter of A century of the Court of Appeal, Mkuki na Nyota
Kijo-Bisimba (ed), Publishers
(2007),
H.Maddick, 1963 Democracy, Decentralization & Development (Asia Publishing House) Bombay
H.W.R Wade & C.F F Administrative Law 9th edition Oxford University Press
William, Tordoff Government and Politics in Tanzania, East African Publishing House
(1967),
Frank Mirindo (2011) Administration of Justice in Mainland Tanzania, Law Africa
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Monday, April 13, 2015

39 By; KATABARO, Jackson, LL.M-Taxation (UDSM), LL.B (SAUT) [email protected]