IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM SUB REGISTRY

AT DAR ES SALAAM

MISCELLANEOUS CIVIL CAUSE NO. 7635 OF 2024

(Phillip, Kirekiano, Mtembwa, JJJ)

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF

TANZANIA 1977 AS AMENDED FROM TIME TO TIME

AND

IN THE MATTER OF THE BASIC RIGHTS AND DUTIES ENFORCEMENT

ACT (CAP. 3 R.E. 2019)

AND

IN THE MATTER OF THE BASIC RIGHTS AND DUTIES ENFORCEMENT

(PRACTICE AND PROCEDURE) RULES, 2014

AND

IN THE MATTER OF A PETITION TO CHALLENGE CONSTITUTIONALITY

OF SEVERAL REGULATIONS OF ILALA MUNICIPAL BY LAW NAMED
“SHERIA NDOGO ZA (KUTHIBITI OMBA OMBA) ZA HALMASHAURI YA
MANISPAA YA ILALA, TANGAZO LASERIKALI NAMBA 529 LA TAREHE
19/7/2019”

BETWEEN

KUSEKWA MELICKI KAZIMOTO……………………………………PETITIONER

VERSUS

THE HONOURABLE ATTORNEY GENERAL ………………..1ST RESPONDENT

MINISTER OF STATE IN THE PRESIDENT’S

OFFICE (REGIONAL ADMINISTRATION AND
LOCAL GOVERNMENT) ……………………..…………………2nd RESPONDENT

1
ILALA MUNICIPAL DIRECTOR……………………………….3RD RESPONDENT

RULING
Date of last Order: 28th May 2024
Date of Ruling: 20th June 2024

MTEMBWA, J.:

As discerned from the pleadings, the Applicant herein is an illiterate

Tanzanian born sometime in March 1981 in Mwanza City and currently living

for gain in Dar es Salaam City. By blessings, he was born normal but while

still a child suffered from poliomyelitis, an illness caused by poliovirus that

mainly affects nerves in the spinal cord of the brain stem. As such, he cannot

properly move his upper and lower limbs extremities as a normal human

being. In that, he cannot move his legs in a normal way or hold things

properly with his arms. His bones and joints cannot work properly. However,

he is married to one lovely wife blessed with nine (9) issues both dependent

on him.

Having been unable to secure support from his family in Mwanza City,

the Applicant relocated to Dar es Salaam City Centre for better survival as a

beggar in various city areas. Under section 89 of the Local Government

Authorities (Urban Authorities) Act, Cap 288 RE 2019, on 22nd March

2
2019, Ilala Municipal Council passed a By-laws that was ultimately published

in the Government Gazette No. 529 dated 19th July 2019. The said By-laws

have the effect of controlling the beggars within the vicinity and province of

the 3rd Respondent.

Offended by the said By-laws, the Applicant has filed to this Court a

Constitutional Petition under articles 26 (2) of the Constitution of the

United Republic of Tanzania, sections 4 and 5 of the Basic Rights

and Duties Enforcement Act, Cap 3 (R.E 2019) (hereinafter “BRADEA”)

and Rule 4 of the Basic Rights and Duties Enforcement (Practice and

Procedure) Rules, 2014) to challenge the constitutionality of the following

provisions;

(a) The provisions of Regulations 3 definition of eneo la wazi “open area”,

hifadhi isiyo rasmi “unspecified reserve area”, mtaa “street”, omba
omba “beggars”, na wakala “agency” 4(1), 4(2), 4(3), 6(1) and 6(2),
8(1 )(a), (b), (c), (d), (e), (f), (g), 8(2), 9(1), 9(2), 9(3) and 10 of GN
529 of 2019 Sheria Ndogo za (Kudhibiti Omba omba) Za Halmashauri
ya Wilaya ya Ilala promulgated and accepted by the Respondents are
unconstitutional for offending the provisions of Articles 12(2), 13(1),
13(2) and (4), 13(6)(a), 15(1) and (2), 17, 19, 22(1) and 29 (1) of the
Constitution of the United Republic of Tanzania of 1977, as amended
from time to time.

(b) That the provisions of Regulations 3 definition of eneo la wazi “open

area”, hifadhi isiyo rasmi “unspecified reserve area”, mtaa “street”,

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 omba omba “beggars”, na wakala “agency” 4(1), 4(2), 4(3), 6(1) and
(2), 8(1 )(a), (b), (c), (d), (e), (f), (g), 8(2), 9(1), 9(2), 9(3) and 10
of GN 529 of 2019 Sheria Ndogo za (Kudhibiti Omba omba) Za
Halmashauri ya Wilaya ya Ilala Tangazo la Serikali Na 529,
promulgated by the Respondents be declared unconstitutional and
expunged from statute immediately without allowing the government
to amend the same.

(c) Declaration that the By-laws contravene the principles of criminal law,
including that offences must be precise and not overbroad, and that
offences ought not to criminalize persons based on a status
involuntarily entered into and which cannot voluntarily or easily be
abandoned, in this case the status of being a beggar (Omba Omba).

(d) Declaration that all persons, irrespective of their social status, are
human beings deserving of respect and dignity, and that the By-laws
undermine the right to dignity and equal protection before the law.

Upon service, the Respondents resisted the Petition and in addition

raised a preliminary objection to the effect that;

The Petition is incompetent for contravening the provision of section

8(2) of the Basic Rights and Duties Enforcement Act (Cap 3 R.E 2019)

When the matter came for orders on 28th May 2024, the Petitioner

was represented by Mr. Jebra Kambole, the learned counsel, while the

Respondents were symbolized by the presence of Ms. Narindwa

Sekimanga assisted by Ms. Lucy Kimaryo, both learned state attorneys.

By consent, both counsels agreed to argue the preliminary objection by way

4
of written submissions. Having passed through the records, we are satisfied

that both counsels adhered to the agreed schedule which we intensely

recommend. Given the circumstances, we are constrained to look into what

has been argued for and against the preliminary objection by both counsels

before we embark into the crux of the matter.

Taking the podium, Ms. Sekimanga observed that the provisions of

section 8(2) of the Basic Rights and Duties Enforcement Act (supra)

require that, before approaching a Constitutional Court, the Petitioner must

ensure that there are no other means of redress under any other law. She

added further that the Petitioner is challenging the provisions of the By-laws

named Sheria Ndogo za (Kudhibiti Omba omba) za Halmashauri ya

Wilaya ya Ilala, Tangazo la Serikali Na, 529 la Mwaka 2019 involving

understanding of the legal framework and processes for enacting and

enforcing them. That, the By-laws are delegated legislation with a limited

application made by local authorities to deal with matters which affect their

locality and thus they are peculiar creatures in administrative law. She

argued further that the By-laws are seemingly laws made by legislative

bodies like Parliament and the provincial and territorial legislatures but they

are made by bodies that are administrative or executive in nature. To fortify,

5
the learned counsel cited Keyes, J.M titled Judicial Review of Delegated

Legislation: The Long and Winding Road to Vavilov [2020]

University of Ottawa.

Ms. Sikimanga continued to argue that, the power of the Local

Government Authorities particularly Urban bodies to make By-laws is

provided for under section 89 of the Local Government (Urban

Authorities) Act (supra) and based on that, the impugned By-laws were

made and are being enforced by the Dar es Salaam City Council. Since By-

laws are made by the local government authority, they are administrative in

nature and therefore can be challenged by way of Judicial Review.

As to what judicial review entails, the learned state attorney submitted

that Judicial Review means Judicial scrutiny and determination of the legal

validity of instruments, acts, decisions, and transactions of administrative

organs. She referred this Court to page 23 of an article by De Smith titled

Judicial Review of Administrative Action.

It was her further submissions that the Local Government is an

administrative body and its acts, decisions and or instruments are challenged

by way of Judicial Review. That, thus, the right to challenge the impugned

By-laws is provided for under the Law Reform (Fatal Accidents

6
Miscellaneous Provisions) Act Cap 310, RE 2019 and its rules. To

buttress, she cited the case of Catalyst Paper Corporation Appellant Vs.

Corporation of the District of North Cowichan [2012] 1 R.C.S where

the Applicant challenged the Municipal Taxation By-laws by way of Judicial

Review.

Ms. Sekimanga observed further that, since there is a redress provided

for by another law, then the Petitioner is barred from instituting a

Constitutional Petition under section 8(2) of the Basic Rights and

Duties Enforcement, Cap 3, R.E 2019. She referred this Court to Article

26(2) of the Constitution of the United Republic of Tanzania which

states that, every person has the right, by the procedure provided by law,

to take legal action to ensure the protection of the Constitution and the laws

of the land. To cement the obvious, the learned counsel argued that taking

legal action to ensure protection of the Constitution must be as per the

procedure provided for by the laws of the land. She insisted that the

impugned By-laws could be better challenged by way of Judicial Review as

opposed to a Constitutional Petition. Lastly, she beseeched this Court to

strike out the Petition.

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 In rebuttal, Mr. Kambole prefaced that the Petitioner is an individual

with disability, a beggar and living for gain within Ilala Municipal Council in

Dar es Salaam City. That, he is seeking for declaratory orders on the

unconstitutionality of several provisions contained in the impugned By-laws.

The counsel observed further that the said By-laws were enacted by the Ilala

Municipal Council on 22nd March 2019 and subsequently published in the

Government Gazette No. 529 dated 19th July 2019. That, the petitioner has

been offended by regulations 3 on the definition of eneo la wazi “open

area”, hifadhi isiyo rasmi “unspecified reserve area", mtaa “street”,

omba omba “beggars”, na wakala “agency" 4(1), 4(2), 4(3), 6(1)

and 6(2), 8(1 )(a), (b), (c), (d), (e), (f), (g), 8(2), 9(1), 9(2), 9(3)

and 10 of Sheria Ndogo za (Kudhibiti Omba omba) Za Halmashauri

ya Wilaya ya Ilala promulgated and accepted by the Respondents which

are unconstitutional violating the provisions of Articles 12(2), 13(1),

13(2) and (4), 13(6)(a), 15(1) and (2), 17, 19, 22(1) and 29 (1) of

the Constitution of the United Republic of Tanzania (supra).

Mr. Kambole joined hands with the learned state attorney on the

procedural aspects of enacting the By-laws and the purpose of delegated

legislation. However, he was not ready to agree with her on the assertion

8
that the constitutionality of the By-laws cannot be determined by this Court

if brought by way of a Constitutional Petition. He added further that, the By-

laws can be challenged through Judicial Review if only the intended

Petitioner is contesting either the procedure of its enactment (procedural

ultra vires) or the legality of the By-laws itself (substantive ultra vires). That,

in this Petition as per the Originating Summons and supporting affidavit, the

petitioner is explicitly challenging the constitutionality of the By-laws, in

which case, coming to this Court by way of a Constitutional Petition is a

proper recourse.

The learned counsel faulted the learned state attorney on her

suggestion that the legal validity of the By-laws should be challenged by way

of Judicial Review as she did not explain and lay a ground on the procedure

to be taken if a party is interested to challenge the constitutionality of it.

In his further submissions, Mr. Kambole noted that the petitioner

claims for violation of human rights guaranteed under the Constitution of

the United Republic of Tanzania enhanced by the provisions of the Basic

Rights and Duties Enforcement Act (BRADEA). He referred this Court

to the case of Meckzedeck Maganya Vs. Minister of State, President's

Office, Regional Administration and Local Government & Another,

9
Misc. Civil Cause No. 10 of 2023, handed down on 15th December 2023,

where it was observed that;

Therefore, since the instant petition befits the bill of a constitutional

petition on its own merits, there is no remedy for the petitioner to
exhaust as the procedure under BRADEA is the only way to go to
seeking readdress for alleged violations according to Article 30(4) of
the Constitution.

Mr. Kambole also contended that if this Court focuses on the

Originating Summons and affidavit, it will find out that the petitioner's claim

concerns the violation of fundamental human rights guaranteed under

Article 12 to Article 29 of the Constitution of the United Republic of

Tanzania. As such, it is only this Court sitting as a Constitutional Court that

has mandated authority to declare the particular provisions of the impugned

By-laws unconstitutional. He recited the case of Meckzedeck Maganya

(Supra) where the Court observed that;

In my opinion, the court shall register, hear and determine a petition

seeking redress on the grounds of basic rights and duties, for as long
as the pleadings show that the grievances therein and reliefs being
sought are based on violations of basic rights and duties. It appears
to me that, this criterion shall apply irrespective of the category of
legislation the provisions of which are being impugned. This is to say,
the criterion has to be the same for both principal and subsidiary
legislations. For this reasons, if a subsidiary legislation is impugned

10
 for violating basic rights, and the petitioner is able to show in his
petition and accompanying affidavit, how that subsidiary legislation
has affected his basic rights, and he observes all the requirements
under BRADEA and its rules for filing his petition, such a petitioner
shall have the right to petition this court for redress based on
violations of basic rights and duties, and this court shall be obliged
to exercise its Jurisdiction under section 8(1) (a) of BRADEA

Based on the above cuts and paste passages, Mr. Kambole implored

this Court to subscribe to the above position because it is a sound legal

principle and a proper interpretation of the Basic Rights and Duties

Enforcement Act (supra). He added further that, the proposition ensures

that the fundamental rights of individuals are upheld and that any legislation

whether principal or subsidiary that infringes upon these rights can be

subjected to judicial scrutiny.

The learned counsel was of the view that since the petitioner does not

challenge the procedural aspect of the enactment of the impugned By-laws

titled "Sheria Ndogo za (Kudhibiti Omba Omba) za Halmashauri ya

Wilaya ya Ilala, Tangazo la Serikali Namba 529 la Mwaka 2019"

under section 89 of the Local Government (Urban Authorities Act),

nor does he challenges the ultra vires nature of the said By-laws, instead

challenges the constitutionality of it as per the Originating Summons and

11
Affidavit, this Court is pleased to find out that it has jurisdiction to grant

what has been asked for.

The learned counsel for the Petitioner also distinguished the cited case

of Catalyst Paper Corporation Appellant Vs. Corporation of the

District of North Cowichan (supra) on the ground that, firstly, the same

does not address what should be done when a person challenges By-laws

by way of a constitutional petition. And, secondly, the tax By-laws were

challenged on grounds of judicial review for being ultra vires which differs

from the present case. He further observed that it is not the first time this

Court or the Court of Appeal has been called upon to determine the

constitutionality of the By-laws, delegated legislations, orders or circulars.

That, one such case is Zakaria Kamwela and 126 Others v. The

Minister of Education and Vocational Training and Another (Tanzilii

(2013) (TZCA 256) where the constitutionality of a circular issued by the

commissioner for education was called into question.

Based on the foregoing, Mr. Kambole implored this Court to find out

that the preliminary objection is devoid of merit and thus proceeds to

determine the Petition on merits.

12
 In rejoinder, Ms. Sekimanga was again on duty. She rejoined that the

By-laws, unlike Regulations, are not tabled in the parliament in the same

way the Acts of parliament do. Conversely, By-laws are made by following

procedures in the local governments. In other words, By-laws are

administrative proceedings in nature and thus are challengeable by way of

judicial review as opposed to Constitutional Petition, Ms. Sekimanga

observed.

The learned counsel noted further that, the By-laws are challenged by

way of judicial review irrespective of whether the dissatisfaction is on the

substance or procedure. That, since the Petitioner is challenging the

substance of the impugned By-laws, this Petition is incompetent as it was

supposed to be preferred by way of Judicial Review as opposed to

Constitutional Petition. In addition, the learned counsel contended that, the

cited case Meleckzedck Maganya Vs. Minister of State, President’s

Office, Regional Administration and Local Government (supra) is

distinguishable and not binding to this Court. That what could be gathered

from the rejoinder submissions by the learned state attorney.

Having dispassionately considered the rival arguments by both parties,

the question before us is whether there is merit on the preliminary objection

13
raised by the Respondents. Before determining the objection, we find it

important to venture into the powers of this Court in relation to the

Constitutional Petition. The Constitution of the United Republic of

Tanzania (supra) gives mandate to this Court (Constitutional Court) to

hear cases regarding violation and infringement of basic rights which are

provided for under part III of chapter one of the Constitution. Article 30(3)

of the Constitution lucidly states as follows;

Any person claiming that any provision in this Part of this Chapter or
in any law concerning his right or duty owed to him has been; is
being or is likely to be violated by any person anywhere in the United
Republic may institute proceedings for redress in the High Court

Before the enactment of BRADEA, the Court of Appeal of Tanzania

had this to say in Director of Public Prosecution Vs. Daudi Pete (1993)

TLR 22, thus;

The Constitution confers upon the High Court original jurisdiction to

entertain proceedings in respect of actual or threatened violations of
the basic rights and freedoms and, until Parliament enacts the
procedure for the enforcement of those rights and freedoms, the
same may be enforced using the procedure available in the High
Court in the exercise of its original jurisdiction

After the enactment of BRADEA, this Court enjoys its powers under

section 4 as amended by the Written Laws (Miscellaneous

14
Amendment) Act No. 3 of 2020. Under subsection (1) thereof, the law

says, thus;

If any person alleges that any of the provisions of sections 12 to 29

of the Constitution has been, is being or is likely to be contravened
in relation to him, he may, without prejudice to any other action with
respect to the same matter that is lawfully available, apply to the
High Court for redress.

Giving effect to the cited law above, the Court in Re Dezydelius

Patrick Mgoya and Another Vs. Attorney General and Others (Misc.

Civil Cause No. 19 of 2019) [2020] HCT 2982; (08 September 2020)

had this to say;

Basing on the position governing this petition; which as aforesaid,

was filed on 23/08/2019 it is patently clear that the textual
presentation of the natural wordings of the quoted provisions above
leaves no doubt that, the Court is vested with jurisdiction to adjudge
allegations regarding any of the provisions of articles 12 to 29 of the
Constitution which has been, is being or is likely to be contravened.

.... On the other hand, the Court is also vested with jurisdiction to
adjudge allegations relating to violation on basic rights and duties
emanating from any provision in any law other than articles 12 to 29
of the Constitution which are clearly pleaded under the second part
of article 30 and 26(2) of the Constitution amongst others, as the
case may.

15
 In the exercise of such powers therefore, this Court has original

jurisdiction to hear and determine any application made before it in response

to any violation of fundamental rights in view of section 8(1)(a) of

BRADEA. It has also mandate to determine any question in the course of

the trial of any case which is referred to and may give orders or directions

whichever is desirable for securing and enforcing basic rights under section

(b) thereof. In addition, it has powers to determine issues arising from trials

from the subordinate Courts in view of section 9(1) thereof.

However, although the law imposes such powers to the Constitutional

Court as we have so observed hereinabove, the right to petition to this Court

has never been absolute. There are always limitations to litigants in view of

section 8(2) of BRADEA which dictates that this Court shall not exercise

its powers under if it is satisfied that 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. Giving it thoughtful attention, this Court in SP Christopher

Bageni Vs. Attorney General, Misc. Civil Cause No. 1 of 2021, High

Court (main Registry), Dar es Salaam observed;

Despite the functions of the constitutional court provided by the

foregoing sections, still there are limitations which are stipulated by

16
 the law when the constitutional court exercises its powers conferred
to it; One, the court cannot exercise its powers when there are other
means of redress provided by other law(s) or if the application is
merely frivolous or vexations; Two, the court can dismiss the
application if the application claims infringement of the basic rights
in the proposed Bill which is not yet a Law; Three, no prerogative
orders shall be ordered by this court when enforcing rights provided
by the Basic Rights and Duties Enforcement Act, the same are
provided under section 8(2),(3) and (4) of BRADEA; Four, under the
provisions of section 8 and 9 of the BRADEA this court cannot enforce
rights, the infringement of which arises in the judicial
proceedings/trials in courts other than subordinate to it.

The preliminary objection has been predicated on section 8(2) of

BRADEA. The learned state attorney was not amused at all by the

Petitioner’s act of preferring this matter by way of a Constitutional Petition.

She observed that the correct avenue was to prefer it by way of Judicial

Review under the provisions of Law Reform (Fatal Accidents

Miscellaneous Provisions) (supra) and its rules. To fortify, she cited the

case of Catalyst Paper Corporation Appellant Vs. Corporation of the

District of North Cowichan (supra). It was her view further that this

Court is mandated to determine the matter of this nature brought to it by

way of judicial review irrespective of whether the dissatisfaction is on the

procedure or substance.

17
 On his part, the learned counsel for the Petitioner did not find it worth

the purchase. He observed that since the petitioner does not challenge the

procedural aspect of the enactment of the impugned By-laws nor does he

challenge the ultra vires nature of the said By-laws, instead, he challenges

the constitutionality of it, this Court has jurisdiction to determine the matter.

He was fortified by the decision of Meckzedeck Maganya (Supra).

We have given deserving attention to the submissions for and against

the raised preliminary objection and we are of the considered opinion that

section 8(2) of BRADEA needs no interpolations. As correctly prefaced

above in SP Christopher Bageni case, this Court cannot exercise its

powers conferred to it if there are other means of redress provided for by

other law (s) or if the application is merely frivolous or vexatious. The

rationale behind this rule is to uphold the presumption of constitutionality of

all Acts of Parliament and the obligations they impose to Courts. In

Tanzania Cigarate Company Limited Vs. the Fair Competition

Commission and Another, Misc. Civil Cause No. 31 of 2010, High

Court of Tanzania at Dar es Salaam, we noted;

Apart from the principle of constitutionality of Acts of Parliament, we

think, law in Tanzania is also settled on the principle that litigants
should first exhaust other lawfully available remedies under statutory

18
 or case law, before they can seek remedies under the Basic Rights
and Duties Enforcement Act. This principle of resorting to lawfully
available remedies before seeking basic rights remedies
complements the principle of constitutionality of Acts of Parliament.
The duty to exhaust other lawfully available remedies before
resorting to basic rights and duties remedies is borne out from our
reading of sections 4 and 8 (2) of Basic Rights and Duties
Enforcement Act. Section 4 of the Basic Rights and Duties
Enforcement Act in essence restates the position of law that is the
Enforcement Act in essence restates the position of law that is also
articulated under subsection (2) of section 8. We think that these
provisions exhort litigants to first exhaust other lawfully available
remedies before seeking remedies under the Basic Rights and Duties
Enforcement Act.

In our determination of the preliminary which, as we see it, is premised

on the jurisdictional issue, we shall continue to seek guiding principles from

the decisions of this Court and those of the Court of Appeal of Tanzania,

which have interpreted the said provisions in question. For example, it is now

settled law that until the contrary is proved, a piece of legislation or a

provision in a statute shall be presumed to be constitutional. The Court of

Appeal in Julius Ndyanabo Vs. Attorney General [[2004]] TLR 14,

regarded it as a sound principle of constitutional construction that, if

possible, legislation should receive such a construction as will make it

19
operative not inoperative. So, we shall construe the alleged contravened

section with the view to make it operative.

Before we venture to resolve as to whether the instant Petition falls

under the rubric of “other means of redress provided for by other law (s)”

we shall first look into what judicial review entails.

According to the Black’s Law Dictionary, Judicial review is defined

as a Court’s power to review the actions of other branches or levels of

government; especially the court’s power to invalidate legislative and

executive actions as being unconstitutional. The power of judicial review may

be defined as the jurisdiction of superior Courts to review laws, decisions

and omissions of public authorities to ensure that they act within their given

powers.

According to Justice Ssekaana Musa of the High Court of Uganda

(in his paper presented to East Africa’s Emerging Public Interest Advocates

Programme at MS TCDC in Arusha on 1st March 2023), the Court has

power in a judicial review application, to declare as

unconstitutional, laws, By-laws or governmental action which are

in inconsistent with the Constitution. This involves reviewing

governmental action in the form of laws or acts of the executive for

20
consistency with the Constitution. Judicial review also establishes a clear

nexus with the supremacy of the constitution, in addition to placing a grave

duty and responsibility on the judiciary. Therefore, judicial review is both a

power and duty given to the courts to ensure the supremacy of the

Constitution.

In the course of discharging such duty, the Court moved by way of

judicial review has mandate to issue the following discretionary remedies;

Injunction, Certiorari, Mandamus, Prohibition, Declaration and Damages (as

compensation) to mention but few. The Court may not grant any such

remedies even where the applicant may have a strong case on the merits,

so the Courts would weigh various factors to determine whether they should

lie in any particular case (See R vs Aston University Senate ex p Roffey

[1969] 2 QB 558 and R vs Secretary of State for Health ex p

Furneaux [1994] 2 All ER 652).

In Tanzania, the law governing Applications brought by way of judicial

review is the Law Reform (Fatal Accidents Miscellaneous Provisions)

Act, Cap 310, RE 2019 as amended and the Law Reform (Fatal

Accident and Miscellaneous Provisions) Judicial Review Procedure

and Fees) Rules, GN No. 324 of 2014. According to rule 4 of the Rules;

21
 A person whose interests have been or believes will be adversely
affected by any act or omission, proceeding or matter, may apply for
judicial review."

In Iddi Haruni Vs. the Permanent Secretary President’s office,

Public Service Management and Good Governance & 3 Others, Misc.

Civil Cause No. 59 of 2022, this Court noted that;

Considering Rule 4 of the Law Reform (Fatal Accidents and

Miscellaneous Provisions) (Judicial Review Procedure and
Fees) Rules of 2014 the person whose interests have been or
believes that his interests shall be adversely affected by any act,
omission, proceeding or matter can file for judicial review. One
shows interest in a case by showing how he has or shall be affected
by the actions of the administrative authority.

Black’s Law Dictionary defines By-laws as a law of local or limited

application, passed under the authority of a higher law specifying what

things may be regulated by the By-laws or it can refer to the internal rules

of a company or organization. According to Oxford Advanced Learner’s

Dictionary, 7th Edition, By-laws means a law that is made by a local

authority and that applies only to that area (see page 198 thereof).

Cambridge Dictionary widely defines By-laws to mean a law made by the

local government that only relates to its particular Region.

22
 Basing on the above observations, thus, there is no dispute that the

impugned By-laws were promogulated by Ilala Municipal Council in its

administrative meetings. Similarly, there is no dispute that the said council

is a local Government Authority discharging a public duty within its

jurisdiction. In that stance, we are constrained to hold, as a point of law that

the impugned By-laws emanate for judicial review as opposed nearly to

Constitutional Petition. We are not far from agreeing with the learned state

attorney for the Respondents that section 8(2) of BRADEA acts as a bar

to litigations brought to this Court by way of Constitutional Petition in the

circumstances where there are other adequate means of redress.

This Court has held times without number that constitutional

proceedings are not expected to be pursued as alternatives to ordinary

proceedings. They are preferable as a matter of necessity and where the law

does not provide for the avenues or where judicial processes in ordinary suits

or applications have been blocked. The rationale behind, as said before is to

uphold and comprehend the presumption of constitutionality of all Acts of

Parliament and the duties they impose to Courts. In other words, being a

mother law to which all laws draw authority therefrom, coming to this Court

by way of a Constitutional Petition should be the last resort a party may take

23
having considered unavailability of other judicial processes. For this reason,

we entertain no doubt that the matter has been brought prematurely (see

also Philip Samson Chigulu t/a Philip Samson Chugulu Agent Vs.

Judge of the High Court of Tanzania & 7 Others, Misc. Civil

Application No. 23 of 2021, High Court, Dar es Salaam).

As said before, section 8(2) of BRADEA is essentially a bar and

shield to the Constitutional Petitions brought before this Court in blatant

disregard of other available means of redress available to the potential

litigant. We thus make as a point of law that this Court has no jurisdiction to

entertain any Constitutional Petition in contravention of the cited law above.

In Tanzania Cigarate Company Limited Vs. the Fair Competition

Commission and Another (supra), this Court firmly noted on pages 21

and 22, thus;

In our interpretation, subsection (2) of section 8 suggests that

recourse to provisions of the Basic Rights and Duties
Enforcement Act is not to be resorted to where there are other
adequate means of redress available to a potential petitioner.
Subsection (2) of section 8 of the Basic Rights and Duties
Enforcement Act provides that the jurisdiction of High Court is not
to be exercised if the High Court is satisfied that adequate
means of redress are or have been available to the person
concerned under any other law, or that the application is merely

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 frivolous or vexatious. In fact, this interpretation of section 8 of the
Basic Rights and Duties Enforcement Act gives effect to the
presumption of constitutionality of statutory provisions.
(emphasis supplied)

Mr. Kambole implored this Court to disregard the objection as long as

the Petitioner intends not to challenge the procedural aspect of the

enactment or the ultra vires nature of the said By-laws, instead, he intends

to challenge the constitutionality of it. With respect, we hasten to say that

the counsel’s arguments are manifestly flawed. We think he appears to have

misinterpreted the law. The clear interpretation of section 8(2) of

BRADEA leaves no room for interpolations of any kind. We cherish the

learned state attorney’s far-reaching interpretation resulting in restricting the

litigants from filing Constitutional Petitions where there are other adequate

means of redress irrespective of whether they intend to challenge the

procedure, ultra vires nature or the constitutionality of the act complained

of. To hold it as a point of law, will lead to creating a new pigeonhole to

which, as of now, we are not ready.

To that end, we agree with the learned state attorney for the

Respondents that the Petitioner has not adequately resorted to the remedies

available under the Law Reform (Fatal Accidents Miscellaneous

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Provisions) Act, Cap 310, RE 2019 as amended and the Law Reform

(Fatal Accident and Miscellaneous Provisions) Judicial Review

Procedure and Fees) Rules, GN No. 324 of 2014. In fine, we sustain

the preliminary objection and proceed, as we hereby do, struck out the

Petition. Since it is a public interest case, we enter no order as to costs.

We order accordingly.

Right of appeal explained.

DATED at DAR ES SALAAM this 20th June 2024.

H.S. MTEMBWA
JUDGE

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