19991212 TZHC Dar es Salaam

~~.~~ ,, ' ' w It' ..,...., ;p1111~1•.... t: =--;<~!7. ) . . ...,,. ':If' - - 4 y - : ~ - --:-···- '4)- ·' ~'. . •· -. ' ·,· .. -,-· t>.,~ . . ...._. .. . . . ' ~ ..., IN THE HIGH COURT OF Tf\.NZ1\NIA ' AT Df.\R ES SALAAI'': D::::;TrtICT REGI.STRY MISCELLANDOUSE CIVIL CAtSE NO~l62 OF' 1996 d /;JVU'iNIEL ELIMSU KIWELU . . . . . . . APPLICANT VERSUS T1~NZANI!i RAILWAYS CORFORJ1TION • • • HJ~SPONDENT R U 1,_.I N G BUBESH~: On 6/5/98, this court .::;ranted the application for certiorari and ordered that the Respondent's Board deal· with the applicants case in accordance with the law. N-.. costs were ordered and none of the counsel present at delivery of the Ruling prayed for costs. Counsel fc,r the applicant has subrr.itted that they are entitled to costs while the Respondents are opposed to the grant of costs •. Before I gc into the merits of the application I have to put the record straight that while my ruling ' of 6/5/98 did nut contain an order for costs; it was clearly in proper for the drawn order to include costs. This was clearly usurpatic,n of the courts discretionary powers. Mr._Nyange learned counsel has submitted with force that they are entitled to :o~ts, mainly, on the ground that as the decision of the T.R.C Board was queshed, certiorari granted and the Board ordered· to deal with the application then f?r all intent_s and purposes their application was successful. And further added Mr. Nyange that.where the party has succeedGd then the winning party is entitled to costs. I think I should pause here and.determine whether the arJplicant was -the successful party to be entitled to costs. The ruling of this court was to the effect that the Respondent Board had to revisit the applicants case and deal with it according to proper law. This in my view is synonynous with hearing a matter de novo, where generalJ_y in such case one car.not talk of who has won or who lost. It may be p0rtinen~ to observe that a part from finding the purnishment meted out to the applicant being ultra vires, the 0thor grvunds upcn which . .,..·9r.>-ll''"F'II . .1 2 the applic21tion for certiorari s.ncl mandamus were based on lackE:d support. In other words? a part from the finding of this court that the. p.J.rnishment meted out· to the aJ.;pliumt was not according to the law, and therefore ultra vires, the Board was dir:ectf.:d to rehear the matter and deal with the charges levelled against the applicant in accordance with the appropriate laws. and regula.ticns. I would hestate to term this as winning the matter~ In the final event I decline to exercise my discreticn and award costs aB the matter i's to be reheard by t&e Board. ,"-· ,·) r /I : • I '. /11 1) .I , I I ).+ <.r_.) l·Lf'Qt2.J,.!,~ A • G • BUBESHI . Msirikale fer _,._ JUDGE Mbuna for Respondent 12/12/1999 and in absence of the applicant