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IN THE HIGH COURT OF TANZANIA
(MAIN REGISTRY)
AT DAR ES SALAAM
MISC. CIVIL APPLICATION NO. 10 OF 2017
In the matter of an Application for extension of Time to
apply for Leave to Apply for an Order of Certiorari
AND
In the Matter of the Decision of the Ethics Tribunal
BETWEEN
SHABANI RAJAB GURU MO •••••••••.•..•..••...••.••• APPLICANT
VERSUS
THE ETHIC TRIBUNAL ..........•••.•••...••.•.•• 1st RESPONDENT
THE ATTORNEY GENERAL •••••••••••••••••••••2ND RESPONDENT
DateLastorder 21/06/2017
Dateof Ruling 11/07/2017
RULING
KIHIO, J.
The applicant, Shaban Rajab Gurumo filed this application•applying for extension of time within which he can apply for leave
to apply for an order of certiorari.
The application is brought under section 14(1) of the Law of
~ Limitation Act, Cap. 89 R.E. 2002.
The affidavit in support of the application is deponed by the
applicant himself.
The respondents are The Ethics Tribunal and The Attorney
General (herein after referred as 1st and 2nd respondents,
respectively) .
The applicant is represented by Dr. Kamanija, learned
advocate while the respondents are represented by Mr. Daniel
Nyakiha, learned State Attorney.
The learned counsel for the parties argued the application
orally.
Dr. Kamanija prayed to adopt the contents of the applicant's
affidavit and reply to counter affidavit in his submission in support
of the application. He submitted that the applicant was charged
with six charges of violating the Public Leader ethics contrary to
the provisions of Public leadership code of Ethics Act No. 13 of
1995 and was found guilty on all complaints. He further
submitted that on 4/11/2015 he filed application for leave to
apply for judicial review in Mise. Civil Cause No. 672 of 2016 after•
he was supplied with the decision of the Ethics Tribunal on
8/9/2015.
He contended that the applicant's application in Mise. Civil
Cause No. 672/2016 was struck out by this court on 4/8/2016 for
2
,..
being time barred as per annexture "SRG 7" to the affidavit. He
further contended that on 8/11/2016 the applicant filed Mise. civil
Application No. 80/2016 applying for extension of time to file
leave to file an application applying for an order of certiorari
against the 1st respondent's decision. He went on contending
that on 29/12/2016 Mise. Civil Application No. 80/2016 was struck
out by this court on grounds that it was defective as per the
ruling (annexture SR 9 to the affidavit). He argued that the
reasons for the delay to file the application within time are (1) the
decision of the 1st respondent was delayed by the Ethics
Commissioner in that the applicant was supplied with the copy of
the said decision on 8/9/2015 after two written requests for the
same was made by the applicant's counsel as per annextures
"SRG5" and "SRG 6" to the affidavit in support of the application
when the decision was delivered on 24/3/2015 (2) After receiving
the copy of the decision of the 1st respondent the applicant acted
promptly and diligently.
He further argued that the applicant intends to challenge the•
illegality of decision of the 1st respondent as stated in paragraph
20 of the affidavit and cited the Case of The Principal Secretary.
Ministry of Defence and National Service Vs Deviran Valambia
(1992) T.L.R. 185. (2) The respondent do not dispute the facts
3
---------
,..
which account for the applicant is delay in filing application within
time in paragraphs 4 and 6 of the counter affidavit.
Mr. Daniel Nyakiha submitted that the letters (Annextures
SRG 5 and 6 to the affidavit), were requesting for "Ombi la
kupewa nakala ya Taarifa ya Uchunguzi wa Baraza la Maadili ya
Viongozi wa Umma Kuhusu Lalamiko Na. 6 la 2015 Sekretariati ya
Maadili ya Umma ( Mlalamikaji) dhidi ya Bw. Shaban Rajabu
Gurumo mlalamikiwa" and not the decision of the Ethics
Committee. He further submitted that instead of filing application
for leave to challenge the decision of the Ethics Committee
"Sekretarieli ya Maadili ya Umma" he opted to request for Taarifa
ya Uchunguzi wa Baraza la Maadili so this does not amount to
sufficient cause in granting extension of time. He argued that
having filed the first application on 4/11/2015, the applicant was
already barred by time as per rule 6 of the Law Reform (Fatal
Accidents and Miscellaneous Provisions) (Judicial Review
Procedure and Fees) Rules, 2014. He further argued that seeking
extension of time at this stage is laxity and negligence on the part•
of the applicant's counsel as he was aware that leave to apply for
prerogative order of Certiorari would have been made within six
months after the decision. He contended that negligence on the
part of an advocate or counsel for the applicant does not amount
4
to sufficient cause for this court to grant an extension of time
and he cited the Court of Appeal of Tanzania Case of A. H.
Muhimbira and 2 others Vs John K. Mwanguku, C.A.T. Civil
Application No. MBY 13 of 2005 (unreported) in support of his
Submission. He prayed that the application be dismissed with
costs as there are no sufficient reasons for the delay.
In rejoinder Dr. Kamanija submitted that the "Taarifa ya
Uchunguzi is issued by the 1st respondent under section 22 (6) of
Public Leadership Code of Ethics Act 1995 and "Taarifa ya
Uchunguzi" which was supposed to be issued under the said
section 22 (6) is the very decision by the 1st respondent as per
Annexture "SRG 2" to the affidavit. He further submitted that
Baraza la Maadili was the one supposed to give decision because
The Sekretarieti ya Maadili ya Umma never gave "Taarifa na
Maamuzi" because the said Sekretarieti was the complainant as
per annexture "SRG1" to the affidavit. He argued that it is not
true that the applicant's counsel was negligent but he was
• pursuing applications in this court as submitted in chief in good•
faith.
It is the law that in order for the court to exercise it's
discretion in extending time under section 14(1) of the Law of
Limitation Act, Cap. 89, R.E. 2002 reasonable and sufficient cause
5
---~------
for the delay has to be shown. Therefore, the issue I have to
determine here in whether the applicant has shown reasonable or
sufficient cause for delay in filing leave to apply for an order of
certiorari.
According to Dr. Kamanija's submission the decision of the
1st respondent was given on 24/3/2015and the applicant was
supplied with a copy of the said decision on 8/9/2015 as per
annextures SRG3 and SRG4 to the affidavit in support of the
application after two written requests by applicant's counsel
(annextures SRG 5 and SRG 6, to the affidavit)". The said written
requests were made on 22/6/2015 and 7/9/2015, respectively.
It is also Dr. Kamanija's submission, and as clearly shown in
paragraph 12 of the applicant's affidavit, that the applicant filed
the application for leave to apply for order of certiorari on
4/11/2015. No doubt, the application for leave, Mise. Civil Cause
No. 672/2016 was filed nearly one month from the date the
applicant was applied with the copy of the decision of Ethics
Tribunal
It is apparent on the ruling in Miscellaneous Civil Cause No.
672 of 2016 that this court, Dyansobera, J., struck out the said
application on 4/8/2016 on ground that it was filed out of the
prescribed limitation period and without an order for extension of
6
time sought for and granted. It is also apparent on the record of
the case that the applicant filed an application for extension of
time in Mise. Civil Application No. 80 of 2016 but on 29, 12 2016
this court, Wambali, JK struck out the application for being
defective.
The present application was filed on 14/2/2017, 47 days
after the application for extension of time in Misc. civil Application
No. 80 of 2016 was struck out for being defective. I agree with
Dr. Kamanija's argument that after receiving the copy of the
decision of the 1st respondent the applicant acted promptly and
diligently. I do not agree with Mr. Daniel Nyakiha's submission
that there was laxity and negligence on the part of the applicant's
counsel in seeking extension of time at this stage. In my view A.
H. Muhimbira and 2 others Case (supra) is distinguishable here as
the facts in that case are different from the facts in the present
case.
From the foregoing reasons I am satisfied that the applicant
has shown reasonable and sufficient cause for delay in filing the•
application for leave in time. This is a fit case which warrants this
court's exercising its discretion to grant extension of time to file
leave to apply for an order of certiorari.
7
Accordingly, the application succeeds and the same is
granted. The applicant should file the application for leave to
apply for order of Certiorari within two weeks from the date of
this ruling.
Imake. no. order for costs. Order accordingly.,'," '~....: ,,'.' '.' A
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s.s.~JUDGE
11/07/2017Court: Ruling pronounced in the presence of Mr. Daniel Nyakiha,
learned state Attorney for respondents and holding brief
for Dr. Kamanija learned advocate for applicant.
~5.5.5. ·Kihio
JUDGE11/07/2017
,
8