RULING RAAWYA NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DODOMA IN THE MAIN REGISTRY AT DODOMA MISCELLANEOUS CAUSE NO. 19227 OF 2024 IN THE MATTER OF AN APPLICATION FOR ORDERS OF MANDAMUS, PROHIBITION AND CERTIORARI AND IN THE MATTER OF THE CRIMINAL PROCEDURE ACT, CAP. 20 R.E. 2022 AND IN THE MATTER OF THE PENAL CODE. CAP. 16 R.E. 2022 AND IN THE MATTER OF THE NATIONAL PROSECUTIONS SERVICE ACT, CAP 430 R.E. 2022 AND IN THE MATTER OF THE POLICE FORCE AND AUXILIARY SERVICES ACT, CAP. 322 R.E. 2019 AND IN THE MATTER OF IMPEDING THE INVESTIGATION OF UNNATURAL OFFENCE COMMITTED AGAINST AWAB ISACK IBRAHIM - A MINOR AGED 7 YEARS OLD AND UNLAWFULLY PERMITTING THE ALLEGED SUSPECT AND HIS BIOLOGICAL MOTHER NASHWA HERMOHAMED JALAL TO FLEE FROM TANZANIA WITH THE VICTIM TO OMAN - ACTIONS WHICH OCCASSIONED OBSTRUCTION AND MISCARRIAGE OF JUSTICE, PRE­ EMPTED THE ORDERS OF THE JUVENILE COURT OF DAR ES SALAAM AT KISUTU AND DIRECTIVES OF THE CITY DIRECTOR OF DAR ES SALAAM CITY COUNCIL, BOTH DATED 28th FEBRUARY, 2024 BETWEEN RAAWYA HERMOHAMED JA LA L..............................................1st APPLICANT SAIFA A L L Y ..............................................................................2 nd APPLICANT Page 1 of 35 VERSUS WAZIRI NASHIRI (SOCIAL WELFARE OFFICER)................. 1st RESPONDENT WATER AMANDUS KAYOMBO............................................... 2nd RESPONDENT WP. 8726 SGT. DIANA (INVESTIGATOR).............................3rd RESPONDENT THE OFFICER COMMANDING STATION (CENTRAL POLICE STATION) DAR ES SALAAM POLICE SPECIAL ZO N E)..................................4th RESPONDENT THE ZONAL CRIMES OFFICER) DAR ES SALAAM SPECIAL POLICE ZONE) .............................................................................................. 5th RESPONDENT THE ZONAL POLICE COMMANDER) DAR ES SALAAM SPECIAL POLICE ZO N E)......................................................................................6th RESPONDENT THE INSPECTOR-GENERAL OF POLICE................................ 7th RESPONDENT THE DIRECTOR OF CRIMINAL INVESTIGATION..................8th RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS....................... 9th RESPONDENT THE HONOURABLE ATTORNEY GENERAL...........................10th RESPONDENT RULING 11/11/2025 & 14/02/2025 MANYANDA, J:. This Court has been moved under section 17(2) of the Law Reform (Fatal Accident and Miscellaneous Provisions Act [Cap. 310 R. E. 2019] read with Rules 8(1)(a) and (b) and (2) of the Law Reform (Fatal Accident and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, G.N. No. 324 of 2014 to grant the following three orders. One, two declaration orders be given, namely, first, that, the action by the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Respondents of halting and Page 2 of 35 closing the investigation proceeding in respect of unnatural offence committed against Awab Isack Ibrahim, a Minor aged 7 years old and reported at Central Police Station in Dar es Salaam as CD/lR/606/2024 and subsequently registered through Investigation File No. CD/IR/209/2024, handing over of the victim to his biological mother Nashwa Hermohamed Jalal contrary to the order of the Juvenile Court of Dar es Salaam at Kisutu and the omission to arrest a criminal suspect was unlawful and offended criminal procedures and consequently occasioned miscarriage of and obstruction of justice; and second, that, the investigation proceeding in respect of Investigation File No. CD/IR/209/2924 be resumed, the victim namely, Awab Isack Ibrahim, be returned to Tanzania and the criminal suspect Tariq Ahmed Ali Alismaili be returned and charged. Two, a certiorari order be issued to quash and set aside, first the orders by the 1st and 2nd Respondents of handing over the victim Awab Isack Ibrahim to Nashwa Hermohamed Jalal and the criminal suspect Tariq Ahmed Ali Alismaili, and second the orders by the 3rd, 4th and 5th Respondents of closure of the Investigation File No. CD/IR/209/2024 made without seeking opinion of the 9th Respondent (The Director of Public Prosecutions); Page 3 of 35 Three, Mandamus to order be unleashed for purpose of directing, first, the 3rd, 4th, 5th 6th, 7th, 8th and 9th Respondents to resume Investigation File No. CD/lR/209/2024 wherein the victim is, Awab Isack Ibrahim, a Minor aged 7 years old and to order an arrest of the criminal suspect namely, Tariq Ahmed Ali Alismaili, a National of Oman and second the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th Respondents to return the victim child of unnatural offence Awab Isack Ibrahim, who was forcefully taken from the lawful custody of the 1st and 2nd applicants to be returned to Tanzania be placed under the care and supervision of the applicants. It is supported by a joint affidavit, joint statement and joint rejoinder to the counter affidavit which the counsel adopted to form part of his submissions. It is opposed by the Respondents who filed a joint counter affidavit by the 1st and 2nd Respondents and a joint affidavit by the 3rd to 10th Respondents and a joint statement in reply by the 3rd to 10th Respondents. When this application was called on to hearing the Applicants were represented by Messrs. Warehema Kibaha, Advocate, physically present and Eric Akaro, Advocate, present by virtual court. On the other hand, the Respondents were represented by Mr. Omary Ngatanda, State Page 4 of 35 Attorney Ms. Agnes Makuba, State Attorney and Mr. Dunstan Mkisa, State Attorney. Before delving into the merits of the matter, the Applicant's counsel chose to submit on legal issues, raised by the Respondents limiting himself to only one issue, among others, that this matter is time- barred. It was his view that others concern evidence, hence do not amount into legal issues. The issue of time bar was raised in Paragraph 15 of joint counter affidavit of the 1st and 2nd Respondents and Paragraph 20 of the 3rd to 10th Respondents' joint counter affidavit. Mr. Warehema Kibaha submitted shortly that the application is not time-barred, as it is in time because it was filed within 14 days after the Applicants were granted with leave on 24/07/2024. The main application was uploaded on 06/8/2024 in the system and payment made on 07/08/2024, a last day. Hence, the matter was filed within time limit of 14 days per the Exchequer Receipt. Then regarding the theme of the application Mr. Warehema Kibaha divided the facts into two groups namely, "disputed and undisputed facts". Page 5 of 35 He narrated the undisputed facts that the victim is AWAB ISACK IBRAHIM, a minor aged 7 years and Tanzanian by birth. He suffered sexual abuse namely, sodomy, while in care and custody of his biological mother namely, NASHWA HERMOHAMED JALAL, while in Oman. That the matter was reported at Central Police, Special Zone at Dar es Salaam and subsequently registered as CD/IR/209/2024 and was assigned to the 3rd Respondent, who was the investigator of the police case file. The 2nd Respondent through his application Misc. Civil. Appl. No. 4038 of 2024 at the Juvenile Court at Kisutu was first granted temporally order for care and supervision and later on given absolute care and supervision order of the victim. The victim has been under the absolute care and supervision of the Applicant through up to on 28/2/2024. Further that, the allegation of commission of the unnatural offence was medically examined and the two medical reports (PF3) both revealed positive result that the victim was sodomized or the natural offence was committed on the victim child and the victim was remitted back to Oman. Also, there was a drawn order of the Juvenile Court at Kisutu granting absolute care and supervision order of the victim child under the Applicants. Page 6 of 35 Regarding the disputed facts, Mr. Warehema Kibaha listed them that the interest of the Applicant to the victim cannot supersede the interest of the biological mother; the Applicants' position is victim that the victim child AWAB lSACK IBRAHIM was interviewed and a statement by 3rd Respondent recorded. While the 1st and 2nd Respondents in their sworn joint counter affidavit at Para 7 averred that interrogation was not made owning to the absence of the 2nd Respondent and other officers permitted by the law to be present when the child is been interrogated. Further that, taking into account the degree of trauma still the victim was interviewed alone by the 3rd Respondent in absence of Applicants, Social Welfare Officers and other officers permitted by the law to be present. The victim child AWAB lSACK IBRAHIM mentioned the suspect as "an Indian Plumber" he did not mention the name of his step father but in their statement, the Applicants gave detailed information of the suspect to be the victim child's step-father. That, the handing over of the victim child which per "Annexure A4 collectively" in the Applicants' affidavit headed " Taarifa fupi ya mtoto Awab kufanyiwa vitendo vichafu with R e f No. DCC/DC/53/1 dated 21/2/2024" was effected on 21/02/2024 by a Social Welfare Officer, not the OCD of Dar es salaam Special Zone and 2nd Respondent, the same Page 7 of 35 placed the victim to the Applicants temporary. Later on, 7 days after the temporary order, the 2nd Respondent filed an application registered as Misc. Civil. Application No. 4038 of 2024 of the Juvenile Court at Kisutu against the victim's biological mother of, NASHWA HERMOHAMED SALAL, whereas the victim child AWAB ISACK IBRAHIM was made an interested party; That, in that application a certificate of urgency was filed and on 28/2/2024 based on its urgency, the 2nd Respondent was granted an absolute care and supervision order by the court. On the same date the 2nd Respondent handed over the victim to the Applicants to have absolute care and supervision per "Annexure A4 collectively" of the Applicants' joint affidavit which is a letter with Ref. No. DCC/DC/53/1 dated 28/02/2024. The 5th Respondent dealt with investigation only while the issue of the custody of the victim child was under the supervision of the Social Welfare Officer. Although this fact was disputed, but it is undisputed fact police have a duty to safeguard the safety of the people per PGO No. 01 Rules 21 and 23. Further, it is a contention by the 3rd to 10th Respondents that they never issued directive to close investigation nor closed investigation because by 8/3/2024, the investigation was still pending but now it is completed and the DPP's opinion is to the effect that courts in Tanzania Page 8 of 35 have no power to deal with the instant matter as the offence was committed abroad in Oman. The applicants dispute this fact because allegations that by 08/03/2024 investigation was still pending is not supported by any affidavit filed in Court by the 3rd Respondent. Also, the fact that courts in Tanzania have no power to deal with the issue, is also disputed as the same the police still have power to investigate the matter. Also, that, the 3rd to 10th Respondents failed to show the extent they did work upon the opinion of the DPP on investigating this matter through Interpol as to date there is no report as to what steps were taken while both Tanzania and Oman are Interpol member states. Then, the counsel for the Applicant went on mentioning the principle of law applicable in judicial review cases as stated in the case of Lausa Alfani Salum and 116 others vs. Minister for Lands, Housing and Urban Development and NHC [1992] TLR 293, where was held that judicial review does not deal with the merits of the impugned decisions but concerns only with checking whether there was non-adherence of procedures in making such decisions. Further to that the counsel submitted asking this Court to look at the procedure used by the Respondents in closing the investigation of Page 9 of 35 the incident of sodomizing of the victim child under the guidance in Sanai Mirumbe and Another vs. Muchere Chacha [1990] TLR 54 where six guidelines were put up in order to guide courts in exercise of their powers in judicial review. The counsel surfed through the said guideline starting with the first about taking into account matters which ought not to be taken, where he argued that the 1st and 2nd Respondents took into account matters which they ought not to take. That in Para 9 of their joint counter affidavit averred that the 1st Respondent, placed the victim in the hands of the Applicants temporarily. They ought not to have taken into account the issue of temporary care and supervision order and the facts surrounding it because that temporary order was made on 21/02/2024 before the grant of absolute care and supervision order of 28/02/2024. The facts which they ought not to have taken into account are temporary order and the facts that upon hearing or consulting the victim's mother and satisfying himself of her inability to take care of the victim and the best interest of the child, the 2nd Respondent decided to revoke his earlier orders and handle the victim to his mother for maintenance. Page 10 of 35 He was of the view that all these facts were not supposed to be taken into account. These conducts by the 1st and 2nd Respondents were in total violation of the Juvenile Court absolute care and supervision order of 28/02/2024. In respect of the second guidance in Sanai Mirumbe's case, that not taking into account matters which it ought to have taken into account Mr. Warehema Kibaha submitted that the 1st and 2nd Respondent failed to take into account matters they ought to have taken because the 1st - 2nd Respondent were required to take into account that handing over of the victim to his biological mother was illegal and in contravention of the Juvenile Court Order and prejudicial to the victim based on the grounds advanced in the 2nd Respondent's Certificate of Urgency, that the victim would be subjected to permanent abuse and psychological torture. He went on submitting that it was on the same 08/03/2024 when the 1st and 2nd Respondents handed the victim to his mother was the day a medical report was handed to 3rd and 5th Respondent, but via letter Ref. No. DCC/CW/2024 dated 08/03/2024. These facts ought to be considered before handing over of the victim to his mother. Page 11 of 35 In respect of 3rd guideline which states that lack or excess jurisdiction, he submitted that the 1st and 2nd Respondent lack jurisdiction and acted ultra vires when they ignored and vacated the Juvenile Court absolute care and supervision order dated 28/02/2024. He was of the view that their conducts had no blessing of the law; thus, they lacked jurisdiction. In respect of 4th guideline in Sanai Mirumbe case (supra) that conclusion arrived at is so unreasonable so that no reasonable authority could either come to it Mr. Warehema Kibaha submitted that the conclusions by the 1st and 2nd Respondents were so unreasonable because the decision was based on fact that the handling of the victim to his mother was based on misconceptions that the Applicants had temporary order of care and supervision of the Kisutu Juvenile Court, a fact was is not true because there was an absolute order. In their conclusion the 1st and 2nd Respondents said that upon hearing and consulting the victim and his mother and considering the best interest of a child, the 2nd Respondent decided to handle the victim to his mother. His opinion is that that holding is not reasonable because the issue before the 1st and 2nd Respondent was not about maintenance of a child but about best interest and safety of the child. Page 12 of 35 Mr. Warehema Kibaha went on submitting that the 1st and 2nd Respondents in letter Ref. No. DCC/CW/2024 dated 08/3/2024 is that the 2nd Respondent handed the child to his mother from the Applicant because the Applicants were given temporary care and supervision order, but they did pretend to forget that by that time an absolute care and supervision order was already given. The reason for handing the child for purpose of limiting the child with his family is also unreasonable. He was of the view that, that conclusion, as a whole was unreasonable and in a pure and good example of compromising with the order of the lawful Court. That, the 1st and 2nd Respondents knew from the medical report that the victim was sodomized. Based on para 18 of the 2nd Respondent in Misc. Civil Application No. 4038 of 2024, deponed that the victim was reluctant to go back to Oman. That, the 2nd Respondent's Certificate of Urgency also wrongly stated that the victim would be in a highest chance of permanent abuse and psychological torture, which is not true. In 5th guidance about violation of rules of nature justice the counsel submitted that the 1st and 2nd Respondents violated the rules of natural justice by their conduct of removing the victim from the care and Page 13 of 35 supervision of the Applicant without asking him, hence affording him opportunity to be heard about his free wishes about a person he would like to stay with as he was not willing to go back to Oman to live with his mother para 18 of the 2nd Respondent's affidavit, before the Juvenile Court. In his view, Mr. Warehema Kibaha, the decision to hand the victim to his mother was illegal and void abinitio for violation of natural justice. In respect of the 6th guideline in Sanai Mirumbe's case (supra) about illegality of the procedure or decision, the counsel submit that there was an illegality of procedure as the 1st and 2nd Respondents invoked illegal procedure since there was no any superior Court order which overruled the Juvenile Court of Kisutu dated 28/03/2024, and the same has not been vacated by the said Juvenile Court to date. There is no any order, appeal, revision intended to challenge the order is a Superior Court to date. He was of the view that the proper procedure was for the 2nd Respondent and apply vacation of the order. In absence of that procedure, then the conducts of the 2nd Respondent were unprocedural and illegal too. His reason was that under section 18(3)(d) of the Law of the Child Act, (LCA) require in a safe and suitable place, therefore, it was Page 14 of 35 improper to hand the victim to his mother was against the provision cited above, that is why, at first the 2nd Respondent applied in Court before handing the victim into the Applicants care and supervision from his mother. As regard to the 3rd to 10th Respondents, Mr. Warehema Kibaha submitted that despite the two discoveries made on 19/2/2024 and 08/03/2024 which resulted from medical examination contained in PF3 issued by 3rd Respondent, Sgt. Diana and A/Insp. Nuba respectively. Despite of all these medical reports which revealed that the victim was sodomized, the 3rd to 9th Respondents left the victim under dangerous and unhelpfulness hands of his mother. He went on arguing that the 3rd to 9th Respondents failure to consider the reports let to the victims forcefully and unlawful transfer from Applicants to his mother. He pointed that per the holding in the case of Sanai Mirumbe, the conducts by the 3rd to 9th Respondent are unlawful as demonstrated hereunder. Mr. Warehema Kibaha followed the same pattern he did when submitting on the guideline in the case of Sanai Mirumbe (supra). Arguing that the 3rd to 9th Respondents ought not to have taken into account a fact that the interest of Applicants cannot super cede the Page 15 of 35 interest of the biological mother the fact that the victim, suspect and her (sic) flee to Oman as a result it contributed to poor investigation of the matter. He also argued that the 3rd to 9th Respondents did not take into account a fact that in their investigation committed the victim to medical examination at Mnazi Mmoja Hospital on 19/2/2024 where the 3rd Respondent issued a PF3 and the result was that the victim was sodomized. He added that by order of the 7th Respondent a PF3 was issued by an officer of the 5th Respondent one A/Insp. Nuba to Muhimbili National Hospital, where again to result was that the victim was sodomized. He was of the view that despite those two identical medical reports from reliable Government Hospitals the 3rd to 9th Respondents which were sufficient evidence that the victims were sodomized they ought to have acted on them as directed under PGO No. 1 Rule 21 and PGO No. 1 Rule 23 which insist police officers to have specific responsibilities in matters affecting children. He was of the view that had the 3rd to 9th Respondents took into account the requirements of these PGO's they could have taken steps in safeguarding the interest of the victim. Page 16 of 35 He added that had they took into account also that there was an order of police, could as well have acted in safeguarding the interests of the victim per annexure A4 collectively, a letter Ref. No. DCC/DC/53/1 of 21/02/2024 para 5 thereof that it was said the victim was supposed to be placed under the Applicants and the Welfare Officer had directed the victim to be under the Applicant temporarily pending finalization of matter according to the LCA and its procedural law 2016. As regard to 3rd Guideline about lack or excessive jurisdiction, he submitted that the 3rd to 9th Respondents admit in paragraph 17 of their affidavit that the OCD required them to go with the victim at Central Police and that the child should not be handled over which they have been evasively denied without giving any negating evidence. He added that since the handing over was done in the 5th Respondents, then he conducted himself without authority or ultra vires. The argument that the decision was made by 1st and 2nd Respondent not 3rd to 9th Respondent has no merit because the obligation of protecting and safeguarding citizens is shouldered by them legally and practically. In regard to the fourth guideline the counsel submitted that emphasis was put on courts to entertain the case on allegation that the offence was committed in Oman; out of jurisdiction of courts of Tanzania Page 17 of 35 instead of dealing with investigation in order to safeguard the interest of the victim who was here in Tanzania, hence the conclusion arrived at by the 3rd to 9th Respondents were so unreasonable that no reasonable authority can arrive at. He was of the view that A conclusion that courts had no jurisdiction, per Annexure OSG 2 letter Ref. No. NPS/C/DSM/2024/0022/7 dated 02/08/2024 the same letter does not make a conclusion preventing the 3rd to 9th Respondents from mutual assistance and Interpol collaboration investigating the matter He added that the letter directed the matter be closed but at the same time to involve Interpol a directive which is unreasonable because once the file is closed, no more investigation could be carried out because under mutual assistance, investigation could continue with aid of Interpol as well. Mr. Warehema Kibaha submitted further that the 9th Respondent seriously violated the principles of natural justice of the Applicants for failure to give reasons why the 3rd to 9th should continue with investigation in collaboration with Interpol and did not give reasons for failure to observe the Juvenile Court Order with which the domestic court have full jurisdiction to handle. Page 18 of 35 In respect of illegality of procedure or decision, he submit that the 9th Respondent's procedure to close the investigation decision is illegal because under the National Prosecutions Services Act, he is mandated to order further investigation. That the victim's statement was not taken in the presence of a guarding, parent or social welfare officer. That, the victim's mother denied the victim to have been sodomized while the victim said in his statement was been sodomized and her mother was treating him when the medicine which when got depleted, she went to collect it from Zanzibar. The counsel was of the view that since there was evidence that the victim was sodomized, then 9th Respondent ought to have ordered further investigation. That the 9th Respondent report was purposely prepared in order to outsmart this application as he didn't issue it at leave stage. He concluded that the conditions for issuance of a certiorari and declaratory order per the Sanai Mirumbe's case (supra) were all met and prayed the same be issued. As regard to the order of mandamus, the counsel referred this Court to the case of Mwombeki Byombalirwa vs. RC and RPC of Bukoba [1986] TLR 74 where five conditions for order to issue were Page 19 of 35 stated by Hon. Mwalusanya, J. He argued that there was a refusal by the Respondents to perform their function to investigate the case in that they have imperative public duty to protect the rights of the victim. He concluded that there is no other remedy available to the Applicants because the 9th Respondent decision has no way to be challenged, save by this Court by way of judicial review and prayed the application to be allowed and the prayers in the Chamber Summons be granted. In reply, Agnes Makubi submitted that according to Rule 3 of the GN No. 324/2014, the declaratory order prayed for does not fall under the judicial review, it is not among the prerogative orders. Then after adopting the joint counter affidavits by the 1st and 2nd Respondents and 3rd to 10th Respondents and their statements in reply went on submitting that in this matter there is no decision to be quashed. Because as per paragraph 15 of the 3rd to 10th Respondents counter-affidavit, the 5th Respondent never closed the investigation. She added that even leave was erroneously granted in absence of any decision. In her view, this Court has no power to grant certiorari order due to absence of any order to be quashed. When Mr. Omary Ngatanda took over from Ms. Agnes Makubi submitted that the conditions for issuance of certiorari were stated in Page 20 of 35 the case of Rahel Mbuya vs Minister for Labour and Youth Development and Another, Civil Appeal no. 121 of 2005 [2008] TZCA 35 (14 May 2008) at page 7 to be taking into consideration matters which it ought not to take into consideration; not taking into consideration matters which it ought to take into consideration, acting without jurisdiction, exceeding its jurisdiction, failure to comply with rules of natural justice, the decision is so unreasonable such that no reasonable authority could come at it, there is an error on the face of record. Mr. Ngatanda was of the view that the Respondents acted within their jurisdiction; they did not act out of their jurisdiction issues of natural justice, did not arise in this matter as there are no circumstances suggesting that the Applicants were deprived of their opportunity to be heard. He added that regarding reasonableness, he was of the view that the 1st and 2nd Respondents acted with reasonable. The State Attorney submitted further that there was no error of law on the face of record and there was no any error when the Respondents handed the victim to his mother. Then, he went on clarifying that sections 18(3)(d) the Law of the Child Act, [Cap. 13 R.E. 2019], the LCA, empowers the 1st and 2nd Page 21 of 35 Respondents who are Social Welfare Officer to take care of a child and determine its custody. He went on further that at the time the 1st and 2nd Respondents made the application, had heard only one side but after hearing the child's mother, they decided to hand over the child to his mother, a decision which is in conformity with section 7(1) of the LCA which provide for child's right to be under his parent's custody. He was of the view that every conduct was in conformity with law, there is no any illegality. As regard to the order of certiorari prayer against the 3rd, 4th and 5th Respondents for act of closing the investigation file without seeking opinion of the 9th Respondent the Mr. Ngatanda submitted that the principles in Rahel Mbuya's case (supra) do not fall in the situation of this case because there is no decision of closing investigation. He referred this Court to the case of F.3329 Cpl. Buberwa Leonard Magayane and Another vs the Minister for Home Affairs and 2 others, Civil Appeal No. 119 of 2020, where the order of certiorari was withheld due absence of a decision of the Regional Police Commissioner. He submitted in alternative in case it is presumed that there is a decision, arguing that this Court cannot grant the order since the evidence revealed that the sodomy act was committed on the victim Page 22 of 35 while in Oman out of the jurisdiction by an unknown person referred to as a Fundi Bomba (Plumber) "wa Kihindi" by the victim. Hence, investigation could not go further for want of jurisdiction and supporting evidence. He opined that closure of investigation file was within the law, a decision which now has back up of the 9th Respondent (DPP). As regarding to the prayer for orders of mandamus against the 3rd to 9th Respondents to resume investigation and arrest the suspect Mr. Ngatanda, relying on the directive in John Mwombeki Byombalira (supra) which he conceded as correct position of the law as of today he submitted that they already discharged their duties as they investigated the crime report made by the Applicants the statements were recorded and medical examination conducted and concluded to close the file hence, no criteria for issuance of mandamus as the same complaint ca not be reopened again. Further, Mr. Ngatanda supported the act of the police officers' failure to arrest the suspect one Tariq Ahmed Ali Alismaili, arguing that under the provisions of the CPA and PGO No. 1 Rule 24, police are bound by the doctrine of innocence presumption of suspects. He was of the view that since in this matter there was no clear indication of the Page 23 of 35 perpetrator of the offence, they were correct for not arresting the suspect. He added that the duty to perform compellable by mandamus must be imperative not discretionary. He opined that in this matter the duty of the police to arrest the suspect Tariq Ahmed Ali Alismaili was discretionary. As regard to the second limb of the mandamus order against the 1st to 9th Respondents to return the victim to the Applicant Mr. Ngatanda reiterate what we have submitted in prayer for certiorari that the 1st and 2nd Respondents acted according to the law to place the victim under care of his biological mother, hence they cannot be forced to return the child by taking him from his biological mother. He was of the view that if the Applicants were dissatisfied, they ought to have challenged that decision to the Juvenile Court at Kisutu which had given the Respondents custody of the child. Mr. Ngatanda argued in alternative that the decision to place the victim under care of his mother was only made by the 1st and 2nd Respondents, the rest did not take part in that decision, hence it is improper to have the 3rd to 9th Respondents compelled to return the Page 24 of 35 victim as they don't have any duty to perform. He prayed the application be dismissed. Then, Ms. Makubi came up again, this time arguing in support of the legal issue that this application is time barred under Rule 8(1)(b) of GN No. 324 of 2014 as it was filed out of the 14 days after leave was granted. The State Attorney submitted that leave was granted on 24/07/2024 and this application was filed on 06/08/2024 which was the last date but court fees paid on 07/08/2024. She added that since under Rule 21(1) of Electronic Filing Rules of 2018 read with Rules 3 and 5(1) of the Court Fee Rules of 2018, a document is deemed to be filed in Court when the appropriate fee is paid. She opined that in this matter fee was paid on 07/08/2024 a day after the deadline day, then the same was filed out of time. As if it was not enough, Mr. Dunstan Gerald Mkisa, out of what I think was just a mere show up, joined his colleague, genuinely adding nothing material, submitted simply by saying that the 3rd to 9th Respondents adhered to the law, they did not violate any law in their conducts. When the room was opened to Mr. Warehema Kibaha for rejoining, he basically reiterated his submissions in chief and briefly added that Page 25 of 35 On the legal issue of time clarifying that the fees were paid within the 16th day as the laws listed by the State Attorney, the Court Filing Fee Rules and the Electronic Filing Rules have not overturned the provisions of the first day, hence the use of the word "from". He also elaborated that the authority in the case of Rahel Mbuya (supra) the Court of Appeal of Tanzania just echoed the principles in Sanai Murumbe's case (supra). According to him, the decision in Rahel Mbuya (supra) is like old wine in a new bottle, the criteria are the same. He distinguished the case of Buberwa Leonard Magayane (supra) is arguing that the complaint was against the RPC whose decision was not attached in both leave and main application while in the case at hand the first decision was made by the 1st and 2nd Respondents against an order of a Court, the second decision was by 3rd to 9th Respondents to close the file and follow up through Inter Pol, but it was impossible because investigation was closed and there was no way of appeal from those decisions except by assailing the same through judicial review. Let me start with the legal issue embodied in Paragraph 15 of joint counter affidavit of the 1st and 2nd Respondents and Paragraph 20 of the Page 26 of 35 3rd to 10th Respondents' joint counter affidavit, which the parties have argued. It was the submission by Ms. Makubi that this application is time barred under Rule 8(1)(b) of GN No. 324 of 2014 as it was filed out of the 14 days after leave was granted. The State Attorney submitted further that leave was granted on 24/07/2024 and this application was uploaded in the Court System on 06/08/2024 which was the last date but court fees paid on 07/08/2024. She added that since under Rule 21(1) of Electronic Filing Rules of 2018 read with Rules 3 and 5(1) of the Court Fee Rules of 2018, a document is deemed to be filed in Court when the appropriate fee is paid. She opined that in this matter fee was paid on 07/08/2024 a day after the deadline day, then the same was filed out of time. On the other hand, Mr. Warehe Kibaha submitted in rebuttal that the application is not time barred, it is in time because it was filed within 14 days after the Applicants were granted with leave on 24/07/2024. It was uploaded on 06/8/2024 in the system and filing fees payment made on 07/08/2024, a last day. Further to that he argued that since the the laws listed by the State Attorney, the Court Filing Fee Rules and the Electronic Filing Rules have not overturned the provisions of the first day Page 27 of 35 and fees were paid within the 16th day then the use of the word "from" makes exclusion the first date. This being a legal issue, I am obliged to dispose it before delving into other factual issues. It is trite law that where a court is seized with a legal issue, it becomes obliged to dispose it first before proceeding to other factual issues. See the case of Shahida Abdul Hassanali vs. Mahed M.G. Karji, Civil Application No. 42 of 1999 (CAT), (unreported). As it can be seen, there is no dispute that this Court in Miscellaneous Civil Cause No. 13565 of 2024 delivered its ruling on 24/07/2024. It is also not disputed by the counsel for the parties that this application was uploaded on 06/08/2024. Further to that, it is also not disputed that filing fee was paid on 07/08/2024. It follows that the version by the State Attorney is that 06/08/2024 was the 14th day counted from 24/07/2024. On the other hand, the version by the applicants' counsel the 14th day was on 07/08/2024 counted from 25/7/2024. The question that follows is which side is correct. I will come to this issue later. The law on filing documents in this Court is governed by two sets of Rules both promulgated by the Chief Justice. The first set is found in Page 28 of 35 Electronic Filing Rules, 2018 and the second set in Court Fees Rules, 2018. Rule 21(1) of the Electronic Filing Rules, 2018 reads as follows: - "21(1) A document sh all be considered to have been filed if it is subm itted through the electronic filin g system before midnight, East African time, on the date it is subm itted unless a specific time is set by the court or it is rejected". On the other hand, Rule 3 of the Court Fees Rules, 2018 reads as follows: - "3. The fees fo r any m atter shall, unless otherwise expressly provided, be paid in accordance with these Rules". And Rule 5(1) reads thus: - "5. For the purposes o f this Part, fees specified in the First Schedule to these Rules sh all be paid to the High Court, a court o f a resident m agistrate and district court in respect o f proceedings and m atters other than those fo r which specific fees are prescribed under any other written law". As seen from the quotations above, while Rule 21(1) of the Electronic Filing Rules, 2018 provides that the time of filing a document in court is reckoned from submission of the said document on the Page 29 of 35 judiciary electronic filing system, Rules 3 and 5(1) of the Court Fees Rules, 2018 provides that a document is considered to be filed in Court when court fees are duly paid in accordance with the scale provided by the law. From the submissions by the counsel, it seems there is no dispute on the application of these two pieces of the law, in that they do complement each other. It is that while the Electronic Filing Rules, 2018 starts by bringing the document in court, the Court Fees Rules, 2018 finalizes that it has in fact been filed. This position of the law, as far as this Court is concerned is settled through a plethora of authorities. In the in Maliseno B. Mbipi vs. Ostina Martine Hyera, Misc. Civil Application No. 08 of 2022, by Hon. Mlyambina, J emphasized that the two Rules are to be read together in establishing the relevant date of filing of documents in Court. Similar position was taken in Timamu Billy Mziray vs. Saria Ringo & Another, Misc. Land Application No. 31 of 2022, tz h c 15732 (21 February 2023) and in Msafiri Omary Sadala vs. Salima Mohamed & Another, Misc. Civil Application No. 10 of 2021, [2022] TZHC 14379 (3 November 2022), National Insurance Corporation of Tanzania Limited vs Otieno Michael Oliech (the Personal Legal Page 30 of 35 Representative of Nikusubial John Brown) & Two Others, Civil Appeal 31 of 2021, [2022] TZHC 10253 (21 June 2022) and Sheikh Hashimu Mbonde vs Tip Top Connection Company Limited and Hamis Shabani Tale Tale, Miscellaneous Civil Application No. 28325 of 2023 [2025] TZHC 513 (26 February 2025) to mention but a few. In the latter case the impugned decision was made on 21st November 2023. The time limit to file an application for review of a judgment decree, ruling/order is 30 days from the date of delivery of the impugned decision, the application before it was supposed to be filed on or before 20th December 2023, this Court, Hon. Philip held at page 5 as follows: - "As correctly subm itted by Mr. Chance, the online filin g system shows that this application was file d on 20th December 2023. N ot only that, in h is subm ission, Ms. Ngowi argued that the paym ents for the application were made on 21st December 2023, w hich m eans th a t th e p aym en ts w ere m ade one d a y o u t o f tim e ; thus, th e a p p lica tio n w as file d o u t o f tim e sin ce th e filin g d ate o f th e a p p lica tio n is re cko n e d from th e d ate o f p aym e n t o f th e filin g fe e s." (em phasis added) Also, in the case of Mpale Kaba Mpoki vs Advocates Committee, Civil Appeal No. 6438 of 2024 TZHC 5522 (4 June 2024), Page 31 of 35 the Full Bench of this Court composed of Masabo, J., Kagomba, J. and Musokwa, J. in respect of harmony application of the two Rules held as follows: - "Reading harm oniously the above two pieces o f subsidiary legislation and applying the highly persuasive decisions o f this Court cited im m ediately above, we have no doubt that the proper position o f the law is that a document is considered electronically file d in this Court, not m erely upon tim ely subm ission on the system, but having been so tim ely submitted, when its prescribed court fees are duly paid and such paym ent exhibited by an exchequer receipt or other legally acceptable receipts to that effect." The counsel lock horns on the reckoning of the time. While the State Attorney says the first days inclusive, the counsel for the applicant says is from the next day. He put reliance on the word "following". Time limit for filing of a main application for judicial review is provided under I have read the provisions of Rule 8(1)(b) of GN No. 324 of 2014 which reads as follows: - "8(1) Where a leave to apply fo r ju d icia l review has been granted, the application sh all be made (b) within fourteen days from th e d a y o f th e le a ve w as g ra n te d ." (emphasis added) Page 32 of 35 As it can be seen the word "from" relied upon by Mr. Warehema Kibaha is not to be read in isolation, but together with other words making sub-rule (b) which carry a very clear meaning that the time is within 14 days is from the date leave was granted. In my understanding, the word "within" and "from the leave was granted" means the date on which leave was granted is inclusive. The interpretation by Mr. Warehema Kibaha of the word "from" to mean reckoning of time starts from next day is not in conformity with the clearing wording of Rule 8(1)(b) of GN No. 324 of 2014. In the result, I agree with Ms. Makubi that under Rule 8(1)(b) of GN No. 324 of 2014, time is reckoned including the date from which leave was granted. Having found so, it means that in this matter the 14 days are counted from 24/07/2024 and they expired on 06/08/2024. At the time the 14 days expired, no filing fee was paid by the applicant, which means the process of filing this application had not materialized by the time the 14 days' limit expired. The purported fee paid on 07/08/2024 was paid out of time, hence filing of the application materialized out of time too. Page 33 of 35 The Full Bench of this Court Mpale Kaba Mpoki vs Advocates Committee (supra), emphasized on need of parties in litigations to act watchful of time for filing fees prior to expiry of time limit. The Judges stated as follows: - "We would add that, it was the duty o f the appellant to realize that the filin g o f his appeal in Court could only be effective upon paym ent o f the court fees, except if the same were duly waived. Ip so fa cto , th e a p p e lla n t w as e xp e cte d to p u t in to co n sid e ra tio n th e tim e re q u ire d fo r p ro ce ssin g o f c o u rt fe e s p aym e n t a s an in se p a ra b le re q u ire m e n t fo r th e due filin g o f h is a p p eal" (emphasis added) Be it as it may and to use the emphasized words in the holding by Hon. Philip, J. in Sheikh Hashimu Mbonde vs Tip Top Connection Company Limited and Hamis Shabani Tale Tale (supra) that " paym ents were made one day out o f tim e; thus, the application was file d out o f time since the filin g date o f the application is reckoned from the date o f paym ent o f the filin g fees" this application was filed out of time. It is time barred. I could have dealt with the merits of this application, but that I have found that this Court lacks jurisdiction due to lack of time. Hence, I find it expedient to end here by striking out the application because by Page 34 of 35 doing so will avail the applicants time to apply for enlargement of time in a proper forum, a course which I advise the applicants to take. Consequently, I do hereby strike out this application for want of jurisdiction, been filed out of time. No order as to costs. It is so ordered Dated at Dodoma this 13th day of March, 2025 F.K. MANYANDA JUDGE Delivered at Dodoma virtually this 13th day of March 2025 in the presence of Mr. Warehema Kibaha, Eric Akaro, Advocates for the Applicants and Mr. Erasto Baluwa, State Attorney, for the Respondents. Application struck out. Right of appeal to the parties fully explained. F.K. MANYANDA JUDGE Page 35 of 35