fredrick antony mboma vs serikali ya mtaa kibangu and others 2023 tzhc 17081 5 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY)

DAR ES SALAAM MISCELLANEOUS CAUSE NO. 39 OF 2022

BETWEEN FREDRICK ANTONY MBOMA.................................................... APPLICANT

VERSUS SERIKALI YA MTAA KIBANGU.......................................1st RESPONDENT UBUNGO MUNICIPAL COUNCIL.................................... 2nd RESPONDENT ATTORNEY GENERAL..................................................... 3 rd RESPONDENT

RULING 13fhMarch 2023& Mav 2023 MZUNA, J.: The applicant (above mentioned) seeks before this court for leave to file Judicial Review against the decision of the Serikali ya Mtaa wa Kibangu which refused the request to name one of the streets in his father's name Mboma a decision which was made on 20th February 2022 as well stated under paragraph 3 of the affidavit. He moved this court under Rule 5(2) of Law Reform (Fatal accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 (herein after, the Rules) and Section 84A of the Interpretation of Laws Act, Cap 1 RE 2019. The application is by chamber summons supported by sworn affidavit of the applicant and statement. "...It is a t the stage o f leave where the High court sa tisfies its e lf that the applicant fo r leave has m ade out a n y a rg u a b le ca se to ju s tify the filin g o f the m ain application. A t the stage o f leave the High court is also required to consider w hether the applicant is w ith in th e s ix m o n th s lim ita tio n p e rio d w ithin which to seek a ju d ic ia l review o f the decision o f the tribunal subordinate to the High court. A t the leave stage is where the applicant sho ws th at he o r she has s u ffic ie n t in te re s t to be allow ed to bring the m ain application. These are the prelim inary m atters which the High Court sittin g to determ ine the

appellant's application fo r leave should have considered w hile exercising its ju d ic ia l discretion to either grant o r not to grant leave to the applicant/appellant herein." (Emphasis mine) In other words, there must be established the following conditions; One, the applicant must demonstrate that there is an arguable case, that a ground for seeking judicial review exist. Two, the applicant has to show sufficient interest in the matter to which the application relates. Three, the applicant has acted promptly. Four, the applicant has to show that there is no alternative remedy available. Starting with time limitation, the order sought to be challenged was made on 20th March, 2022. The respondents did not challenge issue of time limitation. The applicant has submitted and I thing rightly so, that the application is within time. It is an undeniable fact that he filed this application on the 5th, August 2022 and therefore within time. I am convinced that the application is well within time. The applicant acted promptly. In regard to the interest in the matter. It is not in dispute that he sought for the name of his father to be mentioned as one of the Street names because he happened to reside there. This can also be seen under page 4 of OSG 1 titled Muhtasari wa Mkutano wa Wananchi wa Mtaa wa Kibangu of 20/3/2022. On account of this fact, Ms. Rose Kashamba, the learned State

Attorney strongly challenged the existence of interest in the matter. She referred to rule 4 of the Rules on who can apply for judicial review. The person must be affected directly. But the applicant wanted to speak on behalf of his father. That he ought to have filed a representative suit. I entirely agree with her on this point. The applicant's father is the one who ought to have lodged this application not the applicant. He has no interest in the matter even if he resides there. The next point for consideration is whether there is an arguable case? The applicant's view is that there is an arguable case because he was denied chance to give his opinion in the general assembly meeting. The applicant stated in his affidavit under paragraph 5 that there was wrong interpretation of the "Mwongozo wa Mfurno wa anwani za makazi" mentioned under paragraph 4 of his affidavit. That, there was violation of natural justice in that he was denied the chance to give his opinion during the general meeting. He referred to the case of Halima James Mdee & 18 Others v. The Registered Trustees of CHADEMA & 2 Others, Misc. Cause No. 27 of 2022, High Court, Main Registry (unreported). He made further reference to the respondents' reply where they denied that the applicant had never requested for the documents but denied same contrary to annexure OSG 1 page 11 paragraph 7. He therefore, request this

court to grant leave and an order to stay the process of naming the street. On her part, the learned State Attorney insisted that all the procedures were followed and all parties did participate. It was agreed that no individual name should be used to name the streets unless he has done something commendable like offering a plot for building school, mosque etc, as well shown in the minutes of the meeting. The name of the applicant's father was proposed but denied by the villagers. The 5 participants set the criteria for naming of a person to the street. The applicant was given a chance to be heard but his proposal was refused. Regarding the denial to be given the documents which he requested, she responded that not all the documents are issued to the villagers. The directives can be accessed through the internet pursuant to section 36 of Local Government Urban Authorities Act, Cap 288 RE 2002. It was therefore her strong view that the Applicant has no arguable case because the process of naming the streets has already been closed, it cannot be stayed at this moment. Therefore, this application should be dismissed. In the rejoinder, the Applicant reiterated his submissions in chief. Having considered the submissions from both parties, the question rem ains, h as the a p p lica n t dem onstrated an arguable case? Reading from the above submission, I tend to agree with the learned

State Attorney that it is not true that the applicant was denied the right to be heard. The filed documents, OSG1 clearly shows that he was heard but his request was denied. There was given cogent explanation for refusal to allow his request as well explained by the learned State Attorney. I quote the excerpts from OSG1 "Taarifa ya zoezi la upatikanaji wa majina ya Barabara na njia Mtaa wa Kibangu". It reads:- "K a tik a M k u ta n o n d u g u F re d ric k M b om a a tiru d is h a h o ja ya kw a m b a b a ra b a ra ip e w e jin a /a B ab a yake na w a n a n ch i w a k a ik a ta a h o ja y a k e k w a v ile h a w a k u w a n a ku m b u k u m b u y a ja m b o lo io te am b a/o a m e lifa n y a . . . " The street which was referred to was called "M w e m b e " A request to change it to that of his father's name "M b o m a "w as refused. The requirement for existence of an arguable case was insisted in the case of Republic V Land Dispute Tribunal Court Central Division and Another [2006] 1 EA 321. The court held that:- "...le a v e s h o u ld b e g ra n te d , I f o n th e m a te ria l a v a ila b le th e c o u rt co n sid e rs, w ithout going into the m a tte r in depth, th a t th e re is a n a rg u a b le ca se fo r g ra n tin g le a v e a n d th a t le a v e s ta g e is a f ilt e r w h o se p u rp o s e is to w e e d o u t h o p e le s s ca s e s a t e a rlie s t p o s s ib le

tim e , thus saving the pressure on the courts and needless expense fo r the applicant by allow ing m alicious and fu tile claim s to be weeded out o r elim inated so as to prevent public bodies being paralysed fo r m onths because o fpending court action which m ight turn out to be unm eritorious. " (Underscoring mine). Applying the principles above, the Applicant has not satisfied the criteria set out in Republic V Land Dispute Tribunal Court Central 7 Division and Another (Supra). Even the cited case of Halima James Mdee & 18 Others v. The Registered Trustees of CHADEMA & 2 Others, (supra) which was cited to derive a point that there is a prima facie case and an arguable case, is distinguishable. At most the applicant can be described as a "busy body" with no interest in the matter. This can also be seen under paragraph 8 of the respondent's reply statement to his paragraph 4 of his stament that:- "...n i m aeiezo anayoyajua m w om baji yeye b in a fsi ...m aelezo hayo h ayahu siani kabisa na m adai ya m /eta m aom bi...yanaongetea m asuala to fa u ti kabisa na h ayahusiani na u w ekaji wa an u an i za m akazi." He was talking about sewage collection and its fees as well as copy of the levy collection of Kibangu street which as above noted, has no connection with the codification of the streets with names. Even assuming that point is anything to go by, still the sought

order of stay in the naming of street exercise, in view of Ms. Kashamba, that process is completed. There is no way it can be reviewed especially so because there is no arguable case to fault a decision of the judicial body. That being the case, the application for the order of stay cannot stand given the fact that no materials upon which leave can be granted. s In the circumstances, this application does not meet the required factors for the grant of leave. The same stands dismissed with costs. ar es Salaam, this 5th day of May, 2023 M. G. MZUNA, JUDGE. 9