20171030 TZHC Dodoma

I I ,, IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA MISC. CRIMINAL APPLICATION NO. 41 OF 2017 (Original PI Criminal Case No. 2 of 2016 of the District Court of Dodoma at Dodoma) LAZARO MAZE NGO. ■ •• I ■ ••• ■■■ I •• ■■ •• ■■■• I. ■■ •• ■ •••• ■■■• ■ •••••• ■ •• ■ ••• •• APPLICANT VERSus-------------- THE REPUBLIC. ■ •• ■■ •• I ■■• I. ■■ I ■■■•■■ •• ■ ••••• ■ •••• ■■ I •••••• ■■ •• ■■ ••• ■■ .RESPONDENT -,"' RULING 06/12/2017 KWARIKO, l. Applicant herein stands charged with the offence of Manslaughter contrary to section 195 and 198 of the Penal Code [CAP 16 R.E. 2002] and is already committed to this court for trial in accordance with the law. The applicant has filed this application for bail pending trial in terms of 148 (1) (2) (3) of the Criminal Procedure Act [CAP 20 R.E. 2002] and supported by his affidavit where he essentially deponed that the offence of Manslaughter is bailable and have reliable sureties to stand him bail. His submission in court was very short to the effect that he has properties at home. On the other hand the respondent Republic which was represented by Ms. Nsana learned State Attorney did not oppose this application citing that the offence of Manslaughter is bailable. At this point the court is supposed to decide whether the application has merit. Upon consideration of the applicant's affidavit and submission in _____co_u_ct from botb_Qarties this court is satisfied that the application has merit ------------- ------- since the offence of Manslaughter is bailable and bail is accused's right unless otherwise directed by law. And no any reason has been given by the respondent why the applicant should not be granted bail after all they ______ did_oot1ile any counter-affidavit. -------- --- -~ - ~ Therefore, the application is granted and the applicant shall be released on bail pending trial upon the following conditions; 1. The applicant shall sign a bail bond in the sum of Tshs. 1,000,000/= with two reliable sureties in the like sum. 2. The sureties shall be the residents of Dodoma Region who should present letters from their respective local area leaders showing that they possess movable or immovable properties worth not less than Tshs. 2,000,000/= each situated within Dodoma Region. 3. The applicant shall not leave the jurisdiction of Dodoma Region without written permission from the Deputy Registrar. \ 4. The applicant shall surrender to the Deputy Registrar any travelling documents. -~--- 5. The applicant should report to the1feputy-Registry-once- ·monthly------- _ at the dates to be fixed thereat until his main case is finalized. Order accordingly. ~ =- M.~M.IKO- JUDGE 06/12/2017 Court: Sureties will be approved by the Deputy Registrar. ~ M.A.KWAR~O JUDGE 06/12/2017 - - -,j IN THE HIGH COURT OF TANZAN-IA AT DODOMA MISC. CIVIL APPLICATION NO 57 OF 2017 In the matter·of ah Application for leave to apply for the Prerogative Order of Mandamus And In the matter of the Parliamentary Immunities, Powers and Privileges Act, Cap 296 [R.E 2002] 1. HON. HALIMA JAMES MDEE } 2. HON. ESTER AMOS BULA YA - ............................. .. APPLICANTS VERSUS THE SPEAKER OF THE NATIONAL ASSEMBLY OF THE UNITED REPUBLIC OF TANZANIA & 2 OTHERS ............. RESPONDENTS 13/10/2017 & 30/10/2017 A. Mohamed, J: RULING This rul_ing - - is in respect_ - -- ----·--· .. -- ____ __ ---- .. ----- ., of a preliminary - ... ---- .- . - objection - on---peints - - . ---- -- ·. of --- ---- ... - ··"··· - - law raised by Mr. Mwipopo, learne·d Principal State Attorney; for the - -------- .. ~--~-~---'-------- _,.·····--· ..·.._ .. ------------ -,-•,- -- ----··-- - ---·-.-·- .,;._...;;,..... ________ __,_::....~----··· respondent. It has the following --- - grounds: . . ;· -_-, ~ : 1 l. That the application is incompetent and bad in law as the applicants' joint affidavit in support of the chamber summons- (i) contains legal arguments and extraneous matters (ii) does not reveal sources of information (iii) contains false information and misleading facts. 2. That the application is incompetent and bad in law as the applicants have not exhausted available remedies. A brief background of the matter is as follows: On 2/6/2017, Hon Halima Mdee (the l st applicant), and Hon. Esther Bulaya (the 2 nd applicant), members of Parliament for Kawe and Bunda Mjini - cons1ituencies- re-spectTvefy together -with all ___ members of the opposition present, left the debating chamber of the National Assembly following their discontent with the Hon Speaker's expulsion of Hon. John Mnyika (MP) from the chamber during proceedings of the said Assembly. Consequently, prompted by Hon. Ghasia's point of order, the Hon Speaker (the l st respondent) ordered the Parliomentary Ethics and Powers Committee (hereinafter "the - Committee") to hold a disciplinary hearing against the applicants' conduct which was duly held oh 3/6/2017. On 5/6/2017, the ,·-----· Committee presented- its report to the National Assembly which in · _ , _ _ _ _ _, · • . - ~ - - - --·--.-~ ·- - ~. . . _.,,_,.,- -- ·,_ _ _ _ _ -~-•-- ---- ·-·: ----·· - •'< • ...... ' ,_, --, ___ .: -·-'-------- - ······-- -----------~- ~---- --~------·----~--~ turn banned fhe applicants from attending the remainder of its 7th as .. ._, .. ,. ,.·.·-·,·,. •,,,~ ,__ ,_, __--~'.a.:,.:,~_:,•.=:-,- : ...,._-~.;,..•,. _,.,_,,__a·•·'-':--•r-, ·, _, __ ___ •·-- - , =-·• •""· ,. ••··- well as the entire 8th and 9th sessions. The applicants seek this court to 2 grant them leave to.file an application for judicial review to compel the 1st respondent to grant them leave to use the Hansard and proceedings of the National Assembly of 2/5/2017 and 5/5/2017, the Committee's report and the Hon. Shonza's written amendment to the committee's resolutions as evidence in their application for judicial review challenging the National Assembly's 5/6/2017 decision. At the hearing of the preliminary objection, Mr. Mtobesya and Mr. Kalonga, advocates, appeared for the applicants whilst Mr. Angaza Mwaipopo, Principal State Attorney, represented the respondent Republic. In amplifying the 1st ground of the objection, Mr. Mwipopo contended the application is incompetent since the applicants' joint affidavit (hereinafter "the affidavit") in support of the chamber summons has three defects. He said, first, four paragraphs to wit the 7th , 8 th , 21s t , and 22 nd of the applicants affidavit contain legal arguments and extraneous matters that contravene Rule (3) ( l) of Order XIX of the Civil Procedure Code [Cap 33 RE 2002]. He insisted an affidavit's contents ought to be confined to facts the deponent is able of his own knowledge to prove except in interlocutory applications on which statements of his belief •may be agmitted. The counsel -dem·onsfratea-by-corrtrrrent:-ih_g_ with-paragra-plY7-tnatreods; -- · · ------ 3 ---·~ --- --· - -- . - - -- --- - ·- -- -- --- . __:- -~-- ------ - --- ·-. =--~~ - - -----===~~.:....:. --=:--~=~_- __ . . :. -~-- .=:- __,:_:---~-- _:;; -· - - ·- - __ ..,_ - ·--·-" _. ·-·······-~---.--- :- "That instead of taking the appropriate action with - the relevant Parliamentary Standing Orders ... " He said it is also stated in paragraph 8: "That instead of taking the appropriate action required of him by the Parliamentary standing Order ... " It is also further stated in paragraph 21; "There is no such offence as "kutangatanga ukumbini" Yet, again in paragraph 22, the following phrase in the l st line, reads; "Even thought she was not charged with any offence known to the Parliamentary Standing Orders" In reply, Mtobesya for the applicants disputed Mr. Mwipopo' s claim that the 7th and 8th paragraphs contained arguments. He __ insistedthey contained statements of fact- that the l st responden I - faile<:V t6 take action as is required of him according to the said 0 - -- Parliamentary Standing Orders. He-~··~ -was --···-· •• • • --- -~--~--- ·-•·· ·- --· of the view; --· --------.. ---·---·--· - .. ·-· - ·- - • ... •• ,_ - • the question ·--~ --·-·. . ..... ---· ----· ---· - -··· ... - .... ··- - - -··- - ___ .., __ ------- ··--: .-·--···-- •• -- --··- - - · - - - - --- ---· - .- whether or not that fdct is true, is d matter to be determined at the hearing of the application and not at the leave stage. • - ~•i ' C •, •. • • • ,; ''." •• • • •-•• •....,__,~ - ~ - .r -_ • ' • 4 With respect to the 21 st ahd 22nd paragraphs, the counsel took a different approach. He submitted paragraph 21 is a statement of facts for the reason that knowledge~ whether an act is an offence or not, is a fact. As to the 22nd paragraph, he submitted an act of -charging a person is a fact. It was his submission all 4 phrases contained in the 7th, 8th 21st and 22 nd paragraphs complained of are not arguments, but rather statements of facts. It was his further submission that according to Order XIV rule 1, 2, 3 and 4 of the Civil Procedure Code [Cap 33 RE 2002], an inference is drawn that a material proposition of a fact and o denial by the other party in the pleadings forms a district issue that should be looked at the hearing stage of an application through which the party alleging the facts seeks redress in court. Mr. Mtobesya maintained the phrases ,n paragraphs 7, 8, 21 and 22 in the applicants' affidavit have been denied by the respondents in paragraphs 4, 11 and 12 of their counter affidavit. It was his submission, this is an issue that has to be determined at the hearing and not at this leave stage; it cannot therefore be the substance of a preifrt1"fnary objection. The counsel contended in the event this court is convinced the impugned phrases·. contained OfgUme·nts; the remedy is twofold; ... - .•~-···'-----···,•·--••--•--·~•·--•-·-~·----•--···0..-.+, ···- ·: · .. ~-• . ..,.·_-..::-_--,•· _. ., __ k } ' --••·----~--- ..... • -··•- --- - -~-=•-- - - • ··-·•·-•· -••·-- ~ ---· - . either the offending paragraphs· are expunged from the affidavit . ., .,.,,,' - . ·-.' and if the remaining ones carry substance to support the application 5 the court can determine the application on its merits or, the court orders an amendment of the affidavit by filing a fresh one. He referred this court to the following cases on the above remedies; Abdi Ali Mumin v. M.S GS motors LTD and Another Civil Ca·se No. 82 of 1997 HC c,t Dar es Salaam, (unreported), VIP Engineering and Marketing LTD v. SGS Societe Generale de Surveillance, SA and Another, Civil Appeal No. 65 of 2006, CAT at Dar es Salaam, (unreported) and Phantom Modern Transport (1995) Ltd v. DT Dobie (Tanzania Ltd), Civil Reference Nos 15 of 2001 and No 3 of 2002, (CAT), at Dar es Salaam, (Unreported). In his reply on this limb of the objection, with regard to the applicants' claim that the respondents' paragraphs 4, 11 and 12 of their counter affidavit were in reply to the applicants' assertions in paragraphs 7, 8, 21 and 22 of their affidavit, thus forming issues to be determined in a hearing according to Order XIV Rule 1 and 3 of the Civil Procedure Code, Mr. Mwipopo •maintained rule 2 of the same order provides where issues of both law and fact arise in the same suit, the court may dispose of the issues of law only and postpone the settlement of the issues of fact. He submitted the respondents' objections are on issues of law and therefore they ought· to be determined first prior to a full hearing. In concluding, he rnaintained paragraphs 7, 8, 21 and 22 of the affidavit contravene Rule 3 ( 1) of Order XIX of the Civil Procedure Code and Jherefore it is an issue. of ldw. He pointed out he did not argue the application to be struck out on this limb. 6 Mr. Mwipopo then submitted on the 2nd limb of the first objection by alleging that paragraphs 12, 14, 15, 16 and 17 of the affidavit do not disclose the source of information. He said, as averred in paragraphs- 10 and 11 of their affidavit, the applicants left the debating chamber of the National Assembly after Hon. John Mnyika was removed from it. His argument was that since the applicants were absent from --- ~ ~ _th_e_ deboting_cha!'Dbet,- -it- ~ was not possible for them to know what ~~~- ~~-~---- ~~-~~ ~~ transpired therein unless they were told by someone whom they failed to mention. In addition, the counsel said in paragraphs 18 and 19 of the affidavit; the applicants stated after being removed from the chamber on 2/6/217, they travelled to Kilimanjaro to attend a funeral and they were also absent when the Parliamentary Immunities, Ethics and Power committee met on 3/6/2017. But, the counsel argued, in paragraphs 20, 21, 22, and 23 of the affidavit, they gave information of what transpired in the committee proceedings without revealing who provided them with the inforrnation. He said their verification clause slated; ''What IS stated in all 36 paragraphs of our affidavit is true t6 the best dfoui khowiedg~';_ 1 It Wds the counsel s submission; the above mentioned -paragraphs contain allegations. H Wds his further view; an affidavit ~~-- •.c.__~~--·-----,-..----------· ~~--:__--~·--·---- ·-•-· .. , . ... -~-----..,.-~-•-- --.-·.:.._-:~...:...-...-:;--·~·_,,.....·_ . - - .,.,_____ .-...,-- .,_'. ·--,- ----~---·----· - - --·- --- ---~----· -·-·-- .. _. -,,............._ -~-- :--- . ·---- .. ·- -~- -~ that _fails. to disclose the source. <SL irYformation or which contains allegations is inc-urably defective and has to be struck out rendering 7 the application to be incompetent. In support of his proposition, he referred this court to the case of Solima Vuai Foum v. Registrar of Cooperative Societies and 3 others [l 995] TLR 75 in which, the Court of Appeal cited with approval the case of Bombay Flour Mill V. Hounibhai M. Patel. [1962] EA 803 wherein the court dismissed the applicant's application on account of his failure to disclose his sources of information in his affidavit that rendered the application to be incompetent. Mr. Mtobesya, for the applicants, in response, maintained that whatever transpired in the debating chamber is public knowledge as Hansards are available whether corrected or not. In addition, the counsel insisted what the applicants knew is a matter gf f9ct Jhat ha_? t(? __be proy~~-- He contended knowledge is a matter of proof and made reference to the case of Colgate Pa/motive Company V. Chemi Cotex Industries Ltd, Civil Case No. 70 of 2004, where Mlay J, (as he was then) said. " ... as for the second test, in order to determine that matters deponed in the affidavit are not within the knowledge -- or -the deponent - as -it is stated in the verifictiticrn clause, that fact has to be prove·d, and this would n-bt meetthe seconcftest in Mukisa's case" 8 In view of the above statement, the counsel submitted, since knowledge is subject to proof, then Mr. Mwipopo' s argument that the applicants had no knowledge as stated in paragraphs 12, 14, 15, 16 and 17 of the affidavit cannot be dealt with at this stage as only pure maters of law have to be considered. He further contended, an objection in the mentioned paragraphs cannot be raised at this stage as it needs proof. With respect to allegations that the applicants failed to disclose their source of information in paragraphs 20, 21, 22 and 23 of the affidavit since they were absent in the chamber during the proceedings, Mr. Mtobesya reiterated that knowledge 1s a matter of proof and it cannot arise in a preliminary objection. He went on to say, even if this was a proper stage, in paragraph 25 of the affidavit, it is stated the committee presented its report to the National Assembly, and therefore the applicants could have known what transpired in the committee's proceedings because they were present in the chamber on 5/6/2017. He emphasized, the applicants had knowledge of what transpired in the chamber. He suggested if the court is convinced indeed that the applicants failed to disclose their source of information, it should either strike out the offending paragraphs and consider the remaining ones if they cdn carry the substance of the application --· - - - - - -·--- -•- ~ ------- - - .,... -· - - - --- - - . ____ _. __ . ~----,-- -- . --- L· ,· -·· . . _ .·.. -- - . . ~--. -~-- - - -~ - - _, ____ _.___ - -~. or order an amendment of the affidavit by filing a fresh one. It 9 - - ----- - - --~~_:-.::7=:. __ - ·-.•- ---~-- was his view; the remaining paragraphs would substantiate -the application. Mr. Mtobesya further submitted that the respondents do not contest paragraphs 24 to 36 of the joint affidavit. And that reading through those paragraphs the following facts are put forward; first; that the committee presented its report in the National Assembly, secondly; that the committee's findings were amended and it was adopted by the National Assembly through which the applicants were punished, thirdly; that the _a p RliG9nts_ weLe-di-SsG-t-i-s:f:ieei-wi-t-h-the-sa-i a- aecisio n and filed an application for judicial review to challenge the same, fourthly; that the application was assailed by a preliminary objection from the respondents that was sustained by the trial court to the - e_ff~cJt_he appl.icants-were -required to - cfpply - for leave and obtain the same before using Hansard as per section 21 ( l ) and (2) of the Parliament Immunities, Power and Privileges Act [Cap 296 RE 2002], and lastly; that the applicants made on application for such leave but -the respondents declined to grant such leave. It wQs h'is _orgument paragraphs 24 to 36 of the affidaYif confdlh' stJUi2Jei1t facts to support the- application for the sought orders of mandamus to compel the respondents to •••••- • . ,_ ••••••• •••••~•••--,••-•-•-v~----•••••••- .,,.. • ••-•-••~ •----• --•• --. - ·- - -~ ·-- ·--- ---- - -·. ·-------~------ . - perform their duty which they did not do. --- ------------- -- ------·~-~~~~~---- ---.--~----.·.----------""--·•--· .. -.- . - - ---- ------------ - ~ - . --. ----- - -- . ____ He _urged this court to dismiss the preliminary ... __ -, _, ____ , - __ ., '~-'- _, - objection to the ~;f~~f;~Jbmitted. 10 The counsel then submitted the case of Solima Vuai Foum v. the Registrar of Cooperative Societies and 3 others should be disregarded by this court as the holding therein is not good law at the moment. He went on to say knowledge is a matter of proof and cannot be dealt with in a preliminary objection. The counsel insisted offending paragraphs in the affidavit can be expunged and a court can consider the remaining ones if they support the application; or alternatively order an amendment of the affidavit by filing a fresh one. In the 3rd limb of the 1st objection, Mr. Mwipopo submitted the applicants' 33rd paragraph in the affidavit contains false information and misleading facts. He quoted the same thus: "On the 10 th day of July 2017 we applied to the 2 nd respondent for leave to be supplied with· and use the official Hansards of the proceedings of the sessions of the /\lciflonar AsSembly heid on- the fncT-a,id 5th days of May 2017, attached herewith are copies of two letters which we used to apply for the said leave and the same are edlle~tively tritirked: Annex Ef for whlch leave ()f this Honourable court is craved fot the same to form part of this affidavit" 11 ,\ It ·was the· counsel's further argument the applicants' two request letters appended as "Annex B" to the application was for copies of Hansard proceedings for the 2 nd and 5th June, 2017, the Committee's report submitted on the 5th of June, 2017 and Hon Shonza's written submission to amend the committee's resolution dated 5th June, 2017. The counsel submitted the applicants failed to apply for special leave to use the Hansard or the other two documents as evidence in any proceedings. However, he complained, the applicants claim they applied for special leave to use the requested documents as is indicated in paragraph 33 of their affidavit. In addition, he argued, the applicants' two letters (Annex B) indicate they applied for Hansard proceedings of the 2nd and 5th June, 2017; but paragraph 33 of the affidavit shows they applied for Hansard proceedings of the 2nd and 5th day of May, 20 l 7. He pointed out, the letters state totally different dates from those in paragraph 33 of their affidavit. On this aspect, he submitted the application should be struck out since the affidavit supporting the chamber summons is incurably defective for containing false information thus rendering the whole 9pplication to be incompeterH. · In response to the allegation, Mr. Mtobesyo insisted Annex 11 8'' contains what is, stated in· paragraph 33 of the applicants'• affid~~if f"br--~-~-nCn,ber of t;oSo~s: :H-e c~~t~~~~Jedl first ___s~ct~n il--~f ---·- the F'orliamenfary lmmunifies" Powers and Privileges Act [Cap 296 RE . 12 2002] does not provide for a specific manner or form for which the leave specified in that provision should be sought. He submitted the applicants wrote a letter requesting to be availed of the 3 documents and that the 3rd paragraph of both letters states the law that makes it mandatory to seek such leave before using the Hansard, the committee's report and Hon Shonza's amendment. In that regard, the counsel argued, the letter suffices to be an application for leave within the meaning of section 21 ( 1) and (2) of the Parliamentary Immunities, Powers and Privileges Act. In reply to the respondents' claim alleging contents of paragraph 33 of the affidavit ore misleading since the applicants seek to be availed with the Hansard of the proceedings of the National Assembly held on 2nd and 5th of May, 2017 whilst Annex B referred in that paragraph requests for copie·s of the Hansard proceedings for the dates of 2nd and 5th June, 2017, the counsel submitted the word "May" is a slip of the pen because even the respondents reply (Annex "C") refers to the month of June. He urged this court to overlook that lapse and regard the 33 rd paragraph and Annex B referring to the month of June and not May. And that in the event the court finds the paragraph is misleading and contains false information; it can order the applicants to file a fresh affidavit to remedy the fault of the slip of the pen in view of the cited authorities. In the -2 nd ground. of the objection, it was Mr. Mwipopo' s --·--- --"---------.,.....:.:..... .... :------·--·----·-·'·-· -··---'-·- --'--•-•-•·-------"- · - - , - - , .....................,....:.... _ __ __,_,_ ,. _____ ·--.-•------ -- -------- -·-- a(glirherit the application is prematurely before this court as the ·:... -~· -~· appliccinfs have not yet exhausted avGilable remedies. 13 He clarified . the applicants' 1 st prayer in their chamber summons seeks this court to compel the 1st and 2nd respondents to grant them leave to use the Hansard of the National Assembly's proceedings of the 2 nd and 5th May 201 7 and attached their request letters as Annex "B" to their affidavit. The counsel said the applicants also attached the reply from the 2nd respondent as Annex "C" which in essence informed the applicants their request is the hands of the 1st respondent and it would be answered once he makes his decision. 1\/\r. Mwipopo's submitted, since their request has not been rejected or denied yet, they ought to make further follow ups of the matter from the 1st respondent. And therefore, they prematurely rushed to this court. The counsel further submitted section 21 of the Parliamentary Immunities, Powers and Privileges Act [Cap 296 RE 2002] does not provide a time limit for the 1st and 2nd respondent to act in response to the applicants' request. He further submitted, since the applicants did not specify the intended use ·of the requested documents, it was not possible for the I st and 2 nd respondents to see the urgency in the said request. He exploined that preparation of an approved Haf1sard is a lirne consurning process as the san1e has to be cornpiled, ediled, reviewed, and approved before use for public consumption. Moreover, he said, an unapproved Hansard cannot be used as 14 evidehce in any proceedings. The counsel then urged this court to strike out the application for the failures he mentioned with costs. In resisting the 2nd point of the objection, Mr Mtobesya submitted a judicial review action has to be instituted within 6 months from the date of the complained of act or omission, which in this case took place on the 2 nd and 5 th June 201 7. He clarified the 6 month window will lapse on 5 th December 2017. He submitted the applicants first attempt at judicial review on 10/7/2017 ended with their application being struck out on l 0/7/201 7 on account of their failure to seek the respondents' leave to use the Hansard, the committee's report and Hon. Shonza's amendment of the resolution. Consequently, on 10/7/2017 they sought the necessary leave by Annex "B". He said the 2nd respondent replied on 25/7/2017 by simply stating the 1st respondent is acting on the request and he will inform the applicants of the 1st respondent's decision once made. Mr. Mtobesya complained of the undue delay by the respondents to act in response to their request by arguing from 10/7/2017 to 9/10/2017, the 2 nd respondent has not acted in compliance with section 21 ( 1) and (2) of the Parliamentary Immunities and Powers Act (Cap 296 RE 2002)~ And counting from _ _, ______··------· June to October; it was four months from the date of accrual of the .. . . -- ~lgh_t_ -;f. •a~fio~ ·. j~~'~fn'g- -Th"~ --dp,plf~a"~t;L- with ·-~~'iv"- 2 . mbn-ths- -·- t-~•--"---- - ' ·'"· ·:· . ·~~. . ' ••-•~•~-.'''-• •••~• .-~••'•" •,,•.•.,.•,., • ~. •--'•L•• •-•-• -••'• •·• • ,,,_•, ,--~-•~• .~." ••••• •••• challenge the fsf respondent's decision of 5/6/2017. He said, in the 15 event this court does not issue the sought order of mandamus, the time will elapse by 5 th December. H was his submission, the timing of this application from the date the leave was sought should be considered in line with the National Assembly's decision made on 5/6/2017. Next, he assailed the respondent's counsel's failure to submit any authorities supporting his claim the applicants should await the l st respondent's decision. He insisted the applicants' decision to come to court was the appropriate action in the circumstances of the case. He further submitted the issue of non-exhaustion of local remedies cannot be raised at the preliminary objection stage since the court looks at compliance matters and whether there is a prima facie case. It can be raised at the leave stage. He submitted both preliminary objections raised by the respondent are not preliminary objections within the principle .. ~ enunciated in Mukisa Biscuits Manufacturing Company Ltd v. West ,~. End· Distributors Ltd [1969] EA 696 that a preliminary point of law if argued may dispose of the suit. He insisted the issues raised by the respondent on prelirninary objections are not wiH,in the n,eaning of lhe low, and if they are, there are remedies .to cure the defects raised by the respondent and in any case. they cannot dispose of the application · . entirely. 16 Finally, Mr. Mtobesya urged this court to disregard the preliminary objection so the applicants can be heard on the application for leave. In his rejoinder submission on the 2 nd limb of the 1st objection, Mr. Mwipopo reiterated that paragraphs 12, 14, 15, 16 and 17 of the affidavit contain information of what transpired in the debating chamber in the applicants' absence. He said the applicants ought to have revealed the source of that infonnation in those paragraphs. And in concluding, he insisted it is fatal as their verification clause has failed to disclose the source. Mr. Mwipopo agreed with Mr. Mtobesya's assertion that indeed, knowledge is a matter of proof. But he argued, the applicants have sworn in their affidavit they were not in the debating chamber and could therefore not know what transpired in it. He agreed since the applicants were present ,n the debating chamber on 5/6/2017 when the committee presented its report, but insisted they still had a duty to disclose in paragraphs 20, 21, 22 and 23 of their affidavit that they got the information from the committee's report .. Mi". Mwipop6 rnoiriluined it is trite law thdt any affidavit that does not · disclose the source of information is incurably -•-·----·-- ------c-__ .,_....:..._,_•_. __ ~ ----.<-...:.·.:;..;..,• .• ·.::---·-···---:'_ -·· -·-,•.--···-·-; .•• , -· -- - ---· - - - · - defective and cannot be amended. He said the remedy is to strike out the whole affidavit and not to expunge paragraphs. He 17 " reiterated that Salitnd Foum Vuai's case is still good law being· a Court of Appeal decision. And ih reliance thereof, he urged this court to strike out the affidavit for being incompetent and the application will therefore collapse. With regard to the 3rd limb of the 1st objection, the counsel agreed that since section 21 of the Parliamentary Immunities, Powers and Privileges Act (Cap 296 RE 2002) does not provide a specific manner or form in which leave can be sought, a letter can suffice. Mr. Mwipopo, however; submitted the provision requires an applicant member or officer to obtain the special leave where he intends to use proceedings of the National Assembly or any committee or the contents of any document laid before the Assembly or committee as evidence elsewhere. He insisted Annex B - doesnbt snow thec::ipplicants requested for the special leave to use the Hansard or the other documents. In addition, it was his view any person who requests for such leave has to state he wants to use that •\ document or the proceedings as evidence elsewhere. He submitted it was not sufficient for the applicants to simply cite the provision of the law in their request; they ought to have specifically stated their intention to use the requested tfoturnebts in judieidl review proceedings. He pointed out this failure affected the urgency of the matter as the 1st and 2nd respondents were UndWdre of the application for judicial review and acted in the •._.. -.:;...: . - ~ --~ . • • _ _ . __ . _ , ___ 0 ___ -~- ---:-··, ~C-_ ....,_ · ______ ._ . . _ -··-·~-....... -·-<--•.,-,.··--· ·~:-~----- -·-.--: ....... ~------·---·c, - --------.-·---·-- - --···•--------~--- -- way they did. 18 In response to the applicants' claim that the error appearing all their pleadings to proceedings of May 2 nd and 5th of 201 7 and not June 2 nd and 5th of 201 7 was a slip of the pen, Mr. Mwipopo disagreed by insisting d slip of the pen cannot be shown in all these documents. As regards the 2nd ground of the objection, the counsel submitted he did not cite any authority to support recourse to available remedies. But, he also suggested, this is a novel ground and there is no authority on the matter in hand. Nevertheless, he insisted since the applicants' request has not been denied, they can make follow ups by reminding the respondents to avail them of the requested documents or alternatively; make a fresh request for leave to use the documents as evidence in their application for judicial review. He concluded by urging this court to strike out the application with costs. Upon hearing the parties and on examination of the record, I will now consid_er the parties' contentions. Let me begin with restating established principles guiding preliminary objections with a quote from the celebrated case of Mukisa Biscuit Manufacturing Company Ltd. v. West End Distributors Ltd. (1969) EA 696, where Sir Charles Newbold P. said at page 701> ---+-.,.--.• • • • -----~- - - ~ . -- •.• -------.,,- •• ~-----· • ---- • 19 "A preliminary objection -is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is the exercise of judicial In the same case, Law JA, at page 700 stated thus:- consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings, and which, if argued as a preliminary objection> may dispose of the suit. Examples are_an objection to the jurisdiction of the court, or a plea of (time)_ lfmitation, or a submission thc1f the parties are bound by the arblfrafion''. 20 I will commence with the first limb in the 1st ground of the objection. As correctly submitted by Mr. Mwipopo, I am of the considered view; the 7th , 8th , 21 st and 22 nd paragraphs of the appliconts' affidavit contain legal arguments and extraneous matters that contravene Rule (3) ( 1) of Order XIX of the Civil Procedure Code [Cap 33 RE 2002] pertaining to affidavits. The provision reads: "Affidavits shall be confined to such facts as the deponent is able to prove except on interlocutory _applications, on which statements o( his belief may be admitted" Applying the above principle embodied in the case law cited by Mr. Mtobesya to wit Abdi Ali Mumin v. G. Schnoor and Colgate Pamotive Company v. Chemi Cotex Industries Ltd (supra) to the instant case, I expunge the 7th, 8th, 21 st and 22n° paragraphs from the affiddvit. Turning to the 2nd limb of the first ground of the objection - --- alleg1ng-lneapplicont\~fa1led io•-a,sclose - tne source of - their -- - - information in paragraphs 12, 14, 15, 16 and 17 of the affidavit, it is 21 evident, as was submitted in paragraphs 10 and 11 of the affidavit, the applicants, walked out of the debating chamber subsequent to Hon. Mnyika's removal from the chamber by the 1st respondent. Moreover, in paragraphs 18 and 19, the applicants averred they travelled to Kilimanjaro to attend a funeral. As was stated by Mlay, J. (as he then was) in the unreported case of Colgate Pamotive "The question whether any matter deponed in an .. ___ _a.ffidgvit-- is - based -- ~ - --- - on- knowledge, --· - - - ----- information -- - - -- - - - ·--· or- belief ·- - -- - can be answered by looking at the verification clause." In the instant case, the verification clause shows the applicants verified what was stated in all the paragraphs was true to the best of their knowledge. With respect, I disagree with Mr. Mtobesya's contention that the applicants could have had known . of what transpired in the chamber without being told by someone ~t~~ ~. I g_rJJ_s_qtisfi~~JJbgJ 9_$i_n_g_ qbsent frornJ□.~ d~bqtin9. chomber, -· astTdm·itte-d-in•p-aragraphs-· 10·ancJ-·i-1 otlneircrffiaavir,- tneapplic-dlfff ·-- - ·c-001d--not-"h-ave--1<rrownae_-·-wnat~ h"oppen~d:__trrere-rrr. ·rrrerefore~·-lrYey·- ought to httve:· disc;:ltJs·ed the source ol infbrmati"t)h conloihed in 22 paragraphs 12, 14, l 6 and 18 of the affidavit. Having so held, I also expunge paragraphs 12, 14, l 6 and 18 from the affidavit for the said defect. With respect, in regard to paragraphs 20, 21, 22 and 23 of the affidavit, I disagree with Mr. Mwipopo's argument that the applicants had to reveal their source of information in those paragraphs despite being present in the debating chamber on 5/6/2016. I think his proposition would overstretch the principle of the ~disclosur_e Qf ~ -source ~- of information - - ~-- - - - - -- ~ in --· affidavits. ~- Since, the ~- ~- -- - - - ~· - respondents do not contest the applicants' presence in the chamber on that day as is indicated in paragraph 25 of their affidavit, I am satisfied they properly verified the said paragraphs _ _ since _ the_ ta_c_ts_ _cpr,t_ain.?d _ therein - - were - - within -- - - -· -· - - - -·- - their- ··- - - personal - --- - - -- -- - knowledge. I therefore over rule the objection in respect of paragraphs 20, 21, 22 and 23 of the affidavit. I now move to the 3rd limb of the first objection. The bone of contention 1s in paragraph 33 of the affidavit. I will quote the same; "That on the 10th day of July 2017 we applied to the 2 nd respondent for leave to be supplied with and use the official Hansards of the proceedings of the sessions of the National Assembly held oh ·the 2nd and 5 th days of ••••••• --~- •.:,z.•••--"•r• • •-••-•.- -- •--•- ,_ .. _____,__.__ • • :_,. ,--,-.':--•'~· •---, - • •--••----+-•••:._ __ --••~•--- ___•_ May 2017. Attached herewith ar.e copies of two letters ~hich we used to apply f~~ th~ s-aid leave and the same 23 are collectively marked as Annex B for which leave of this honourable court is craved for the same to be part of this affidavit" - - - - --- - -~- -- Mr. Mwipopo' s argument was that paragraph 33-o(the affiaavif nos- -- --- -- false and misleading information in that the applicants claim they applied for leave to use the Hansard and the other documents whilst their letters in Annex B state they were only requesting to be availed -- ~ ~ ~oJ_tb_e _s_ai.d_documents_.___O_Q_ the~ther hon~ Mr. Mwipopo's view was the letters in Annex B sufficed as section 21 of the Parliamentary Immunities, Powers and Privileges Act does not provide the manner or form of such a request. 'fhe provision reads: "21.-(1) Notwithstanding the provisions of any other law, no member or officer of the Assembly and no person employed to take minutes of evidence before the Assembly or any committee shall save as provided in this Act, give evidence elsewhere in respect of the contents of such minutes or evidence or of the contents of any document laid before the Assembly or such committee, as the case may be, or in respect of any proceedings or exdthination held beloie tne Assembly or such committee as the case may be~ without the sp·e-cial leave of the Assembly first had and obtained~ 24 (2) The special leave referred to in subsection ( 1) of this section may be given during it recess or adjournment by the Speaker or, in his absence or other incapacity or during any dissolution of the Assembly, by the Clerk" I think the proper interpretation of the above provision is twofold; first; any member or officer of the Parliament has to first seek and obtain the special leave of the National Assembly in order to give evidence elsewhere on the contents of any document laid before the Assembly or any of its committees, secondly; the procedure for obtaining the above leave is through a request to the Speaker, and in certain circumstances, the Clerk to the Assembly. In regard to the applicants request (Annex B), as is shown in the first paragraphs of their identical contents, they requested to be availed with copies of the Hansard of 2nd and 5th June 20 l 7 as well as the committee's report presented on June 5th 2017 together with Hon Shonza's proposal to amend the committee's resolution of the 5th June 2017. Then in the next paragraph, the contents read: "Naleta maombi haya kwa mujibu wa masharti ya kifungu cha 21 {1) - (2) cha shefia ·-ya Kinga, Haki na Madaraka ya Bunge." 25 It was Mr. Mwipopo's argument that the applicants failed to specify they were requesting for the special leave referred to in section 21 of the above provision; that they simply requested to be availed of the said documents. And furthermore that they were required to state the intended use of the requested documents as evidence in judicial review proceedings in this court. However, a close scrutiny of the applicants' two {Annex B) letters shows the applicants request was in accordance with section 21 (1) (2) of the Parliamentary Immunities, Powers and Privileges Act. As agreed by both parties, section 21 of Parliament Immunities, Powers and Privileges Act does not provide a specific form or manner for such a request. Nor is there a requirement to state specifically where an applicant member or officer will give evidence since the word used "elsewhere" is permissive. I am therefore satisfied the applicants' letters in the form of Annex 8 complied with the requirements of section 21 of the Parliamentary Immunities, Powers and Privileges Act and therefore the applicants properly sought the stated leave. In addition, they also requested for the documents listed in their letters of 10/7/2017. I now turn to tile second contention in this lirnb regarding the claim that the applicants' chamber summons, affidavit and statement referred to the 2nd and 5th of May 2017 instead of the 2no and 5th days of June 2017. It was Mr. Mtobesya's argument the error was a "slip of the pen". On the other hand, Mr. Mwipopo insisted it 26 .. -··~ ... ,·,,,.;,.·~-,:~~~~-:-:1:'.~~,t;·. was not, as the error recurred in the chamber summons, the affidavit as well as the statement. It is trite law parties are bound by their pleadings. I am alive to the decision in Leila Jalaludin Haji Jamal v. Shaffin Jalaludin Haji Jamal, Civil Appeal No. 55 of 2003, Dsm, (unreported), where Munuo, JA in over ruling an objection by a party for wrongful citation of the year in a case said: ~- ~- ~ ~ --- -'~We _ate,_fudh_e_rmore_,_ of the settled ---- - - ~· mind that the ---- - - - - - - --- --- ~-- --- - ~~ error of citing year 2002 instead of 2001 is a minor curable defect. We, therefore, overrule ground one of the preliminary objection" I think the principle in the above case applies to errors in wrongful citation of cases quoted by parties and it is thus inapplicable to the instant case. In my view, the applicants' error in citing the events of 2nd and 5th of May 2017 instead of the proper date when the acts complained of took place which is the 2nd and 5th of June 2017 in the chamber summons, the affidavit and the statement is incurable as it goes to the root of the applicants' claim. In t_he event their application -is granted, it would compel the respondents to avail thern of docurnenls of the 2nd and 5 111 of May 2017 which, obviously cannot assist then\ in obtaining their sbught remedy. 27 I could have had ordered an amendment as prayed for by Mr.· Mtobesya, but I am constrained by rule 7 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 as this court has discretion to so order at the hearing stage only. In regard to the aspect of the allegation that paragraph 33 of the affidavit contained false information, in essence the reference to the month of May as opposed to the Annex B's contents referring to the month of June, I think I need not belabor on this as the above discussion suffices to dispose of this argument. I will now consider the second ground of the objection alleging the applicants' failure to exhaust available statutory remedies prior to filing of their judici.al review - - - application - - . in court. In -· - the case of Parin A. A. and Another v. Abdurasul Ahmed Jaffer and Two Others ( 1996) TLR, the Court of Appeal had this to say on the principle: "Where the law provides an extra-judicial machinery alongside a judicial one for resolving a certain cause, the· extra judicial machinery should in general, be exhausted before recourse is made to the Joaicialproctiss~" - ~ •· In view of the above statement, exhaustion of available remedies is one of the requisite conditions before applying for 28 judicial review remedies. As submitted by Mr. Mtobesya, the applicants have no alternative remedy apart from filing an action in this court. On his part, Mr. Mwipopo failed to provide any authority either from the Parliamentary Standing Orders or law to support his proposition on the existence of an available remedy. I therefore find merit in Mr. Mtobesya's argument. If there were another remedy, then the respondents ought to have brol.Jght it to this court's attention. I therefore find this point bereft of merit and I overrule it. The second stroke of Mr. Mwipopo's argument on this aspect was that the 1st and 2nd respondents have not denied or refused the applicants' request detailed in Annex B. He said the 2nd - - - - - -r:e-spondent'-s-le-tt.er:- (Annex-CJJo_tbe Lst _appJic_ant is oo_t o_refusDL_ Lwill___ _ quote the relevant part of the letter as follows: " Nafanya rejea ya barua yako ya tarehe 10 Julai, - 2017 ukiomba kupatiwa naka/a ya Hansard za tarehe 2 na 5 Juni, 2017 pamoja na taarifa ya kamati ya Haki, Maadili na Madaraka ya Bunge kuhusu shauri lililowahusu Mhe. Esther A. Bulaya na Mhe. Halima J. Mdee.- Napenda kukutaarifu kUwa sua/c, hili liko k_w_a Mhe. · - -:;;::::;: .. -·. -· --"··-- ·.----'-,-.-- ------ ·-·- ---•·---·..:...--,-------·,----.-····~--·---- -- - ,----- - Spika, hivyo atakapolitolea maamuzi utaarifiYI~. 29 ' -1,:;;i,l,~ In essence, the 2nd respondent's reply letter informed the 1st applicant that her request is in the hands of the 1st respondent and she would accordingly be informed once he makes a decision. On the other hand, Mr. Mtobesya insisted, in the circumstances of the case, there is justification for applying for judicial review. am in agreement with the respondents that indeed the reply letter (Annex C) simply informed the 1st appHcant that once the 1st respondent makes a decision on the matter, she would be informed. I am satisfied, the contents of the letter show it is neither a refusal nor a denial to grant the applicants' request. However, as submitted by the applicants, the provisions of the Fatal Accidents (Miscellaneous Provisions) Act Cap RE 2002) as well the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 set a 6 month limit within which an applicant can bring an action in court. They thus have a predicament as the 6 month limit runs from the date of accrual of their claim, that is the 2 nd and 5 th of June 201 7 and will lapse on 5/12/2017. And in view_of the time frame, they have made efforts to get a . remedy first with an unsuccessful judicial review action, followed by an application on 10/7/201 7 for the 1st respondent's leave in accordance with section 21 of the Parliamentary Immunities, Powers arid -Privfleges Act which he has withheld to 9/10/2017. In short, time is runhirig out for the applicants - .. , ~ --------- ---··-··-·---·- --·--- ~- ·.·- ----·-····--- -·------------·---.·--··~·--·-•--.·--. -· ---•----···-- -- ---··--·-·------.--- ---~------·- to seek the only remedy in law available to them. -.:._ ·. 30 I. thihk this is a credible argument as both parties are bound to abide by the ldw. Mr. Mwipopo submitted that section 21 of the Parliamentary Immunities, Powers and Privileges Act does not set a time frame for the 1st respondent to respond to a request. It was also suggested that had the applicants specified in their request their intention to apply for a judicial review proceeding, then the 1st respondent would have seen the urgency of the said request. With due respect, I think otherwise. The court takes judicial notice of the -- - ~presenc.e~of~Misc~Cb.dL _Application No. 27 of 2017 wherein th§L _ ~- __ respondents were served by the 1st and 2nd applicants and they were represented in that application that was struck out for non compliance of section 21 of the Parliamentary Immunities, Powers _and- Pr::iYiJeges _Act._lt is tberetore, _imput_ed Jbe re_spQod_enJs bqd 9D _ implied notice of the said application and therefore had knowledge of the applicants' intention to · file a judicial review action challenging the events of the 2 nd and 5th of June 201 7. For the aforesaid reasons, I find merit in the third limb of the 1st ground of the preliminary objection and I accordingly sustain it. I consequently strike out the application with costs. It is so ordered. A. MOHAMED - - - - - - - - , · - - - · . , .. - - · · · - · · . - - - - .. ·-- ·-=---,,. _ _:____ __-,__ ________ - - JUDGE 30/10/2017 31