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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA MISC. CIVIL CAUSE NO. 17268 OF 2024 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION AND IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) ACT, CAP. 310 R.E 2019 AND IN THE MATTER OF AN APPLICATION TO CHALLENGE THE DECISION OF THE MINISTER OF AGRICULTURE WHO REJECTED THE APPLICANT'S APPEAL CHALLENGING THE DECISIlDN OEREGISTRAR OF COOPERATIVE SOCIETIES WHO SURCHARGED 'THE APPLICANTS HEREIN FOR THE LOSS OCCASIONED AT ARUSHA KURUGENZI SAVINGS AND CREDIT MX, X r x COOPERATIVE SOCIETY BEtWEEN FREEDOM MAKIAGO ©FREEDOM ELIEZA MAKIAGO .. 1st APPLICANT CHRISTINA SUMAYE ©CHRISTINA HIMINDI SUMAYE....... 2nd APPLICANT X- ‘.X ’i > i ZAINABU NASSORO @ZAINABU NASSORO MSHANA 3rd APPLICANT EDITH MALLEY ©EDITH EUSARIA MALLEY........................... 4th APPLICANT AND THE MINISTER FOR AGRICULTURE............................................................ 1stRESPONDENT REGISTRAR OF COOPERATIVE SOCIETIES........................ 2nd RESPONDENT ATTORNEY GENERAL................................................................................... 3rdRESPONDENT 1 | Page RULING IS* Dec 2024 and 21st March 2025 Masara, J In this Application, the Applicants are seeking leave to file an application for prerogative orders of certiorari, mandamus and prohibition against the decision of the 1st and 2nd Respondents. The Application was preferred by way of a chamber summons under the provisionsof section 2(3) of the Judicature and Application of Laws Act, Cap. 358TR.E 20021, section 18(1) and 19(3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310 [FLB2019Tand Rule 5(1) and (2) of the Law \ ‘ \ ■*. j ' </• x X- 'x \ f Reform (Fatal Accidents and Miscellaneous ProVisions) (Judicial Review VX , ' XX \\ Procedures and Fees) Rules 2014. v X \\ X.S. \ -4. V...X V- AX '* X""') x The Application is supported by a statement and an affidavit deponed by the Applicants herein. The Applicants crave for five orders before this V. \ x ’'X ■ V?\ ' - Court, namely: ajLeavetobe granted to the Applicants to file an application for Certiorari, to call for, examine, quash and set aside the decision of the 1st Respondent which rejected the Applicants appeal challenging the decision of the 2nd Respondent on ground of illegality, irrationality, unreasonableness, violation of principle of naturaljustice and procedural impropriety; b)Leave be granted for the Applicants to file an application for leave for an order of Certiorari, to call for, examine, to quash and set 2 | Page aside the decision of the ^Respondent which surcharged the Applicants herein for the loss occasioned at Arusha Kurugenzi Savings and Credit Cooperative Society for being biased and failure to grant the Applicants the right to be heard; c)Leave be granted for the Applicants to file an application for Mandamus to compel the 1st and 2nd Respondent to act according to the laws and grants the Applicants the right to be heard before surcharging the Applicants for loss occasioned at Arusha Kurugenzi Savings and credit Cooperative Society; \X\ d)Leave be granted for the Applicants''^fiie^ah^ppiication for Prohibition to prohibit the 2ld Respondent to\prbceed with the execution of the surcharge whichdemanded the Applicants to pay loss occasioned atArusha Kurugenzi Saving^andCredit Cooperative Society without granting the Appiicants the right to be heard; _ Xx, XX., XX,:i e)Any other oiderfslthat^iTe^^rt'deems^tand equitable to grant. The grounds upon which the Applicants,„rely-in filing the application for . c'x\( \x \VzzXx \ X \ x-x V". ;z x\ prerogative’orders are set forth in the'statement and the affidavit deponed by the Applicants. xPnncipally, the Applicants intend to challenge the decision issuedby the. 1st and 2nd Respondents. Whereas for the 1st Respondent theyintendto challenge the decision which rejected their appeal aimed at challenging the decision of the 2nd Respondent for being illegally made and in violation of the principles of natural justice; on the part of the 2nd Respondent, they intend to challenge the decision that surcharged them for the loss occasioned at Arusha Kurugenzi Savings and 3 | Page Credit Cooperative Society, for being biased and denied them the right to be heard. Facts antecedent to this Application can be summed up as follows: following auditing and investigation conducted by the 2nd Respondent at Arusha Kurugenzi Saving and Credit Cooperative Society, it was established that a loss of shillings One Billion Thjee Hundred Million (TZS 1,300,000,000/=) was occasioned by the Applicants. Thus, on 10/04/2018, the 2nd Respondent issued tofthe Applicants ^ notice of ' 'MX Surcharge. Unhappy with the>decisionf therApplicants decided to appeal '■y against the order of surcharge. That, while the Applicantswere awaiting the determination pfJthe appeal lodged Jo the 1st Respondent, they were v ' 'X, \ x X arraigned before a courtpf lavVMn a jiumberpf cases; that is, Economic ________ r\Xr’ xfx, \.x . Crimes Case No. 94 of 2019f andxCriminal Case No. 69 of 2023. The • . S \* \ \X ■ \ A I■ ' decision by the ls^ Respondent had an effec^of automatically allowing the \ \ \ x'X 2nd Respondent to issue a certificate that operates as a decree validly entered by a court and an execution can be carried out in the Applicants detriment. At the time of hearing, which proceeded orally, Mr Hamisi Mkindi, learned advocate appeared for the Applicants while Mr Leon Mbise, learned State Attorney, represented the Respondents. Mr Mbise was the first to take the 4 | Page floor and informed the Court that, upon reading the Applicants Application, they did not intend to contest the same at this stage. Mr Mkindi there after prayed that the Application be granted since there were no objections by the Respondents. In determining whether to or not to grant the Application, I have considered the pleadings, the law cited within th<e pleadings and the fact that the Respondent does not object the Applicadon^Qbtaining of leave is a perquisite for filing of an application fdr certiorar^^hd311105 ar|d z—-- J \\ prohibition as per Rule 5 (of the Law Reform Fatal Accidents and NK \\ ) Miscellaneous Provisions) (Judicial-Review Procedure and Feed) Rules 2014. In the decision of Emma Bayo vs The Minister for Labour and Youth __ ' X • _ ■ '*----- _v.' <A _______ X _ V, ____ _______________ —__________ __ - __ ________________ —________________ 190 (23\March 2013); thve Court of Appeal set out matters to be \n \\ considered in determinipg^an application for leave. The Court stated that: "It is at this stage of leave where the High Court satisfies itself that the Applicant for leave has made out any arguable case to justify the filing of the main application. At the stage of leave the High Courtis also required to consider whether the Applicant is within six months limitation period within which to seek ajudicial review of the decision of a tribunal subordinate to the High Court. At the leave stage is where the Applicant shows that he or she has sufficient interest to 5 | Pa ge be allowed to bring the main application. These are preliminary matters which the High Court sitting to determine the Appellant's application for leave should consider while exercising its judicial discretion to either grant or not grant leave to the Applicant..." From the above statement of the Court of Appeal, the issue before me is whether the Application meets the criteria for issuance of leave. First for '';K determination is whether the Application was;made within 6 months limitation period. Whereas from the records the Application would appear, to be out of time, as per annexure A10 to the Applicarits affidavit, this Court in Misc. Civil Cause No. 06 of 2023 extended time limit .within;which this application Z?. ”\\ was to be filed by an order dated 1.4th June 2024. Thus, the first C*\ \ "'j X\\ requirement is complied with. . ’ The other factbrxto be determined by this Court is whether the Applicants demonstrates sufficient interest to be allowed to bring the main ' \ Z. application. Upon reading the pleadings and the supporting affidavit, I harbour no doubts that the Applicants were personally affected by the impugned decisions of the Respondents. Such decisions triggered various economic and criminal cases against them. Plus, the surcharge decision imply that the Applicants are personally liable to pay the amount of the loss and an execution may be made against them. Therefore, it is 6 | Page apparent that the Applicants managed to show interest in the matter for leave to be granted. The Applicants have demonstrated that they are challenging the decisions issued by the Respondents for being promulgated without adhering to the rules of natural justice; specifically, that they were denied the right to be heard. In the circumstances, an arguable case'been established which needs deliberation in the main application. In the upshot, this Court finds this application/tcx h"ave\ merit and accordingly grant leave toKjJie Applicants/to file, an \ application for certiorari, mandamus and prohibi&pxyvithin the period prescribed by law. \\ '• ■ Considering the nature of this application; no order as to costs is made. DATED and DELIVERED at-Arush? this'21^day of March 2025. JUDGE 7 | Page