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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA MISCELLANEOUS CIVIL CAUSE NO. 9182 OF 2024

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF MANDAMUS/PROHIBITION/CERTIORARI

AND

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR

JUDICIAL REVIEW AGAINST THE DECISION OF THE UMOJA WA MADEREVA

NA WAMILIKA WA BAJAJI JIJI LA MBEYA

BETWEEN MWASIMBA FESTO ANDAMILE………………………..…………………….APPLICANT

VERSUS

UMOJA WA MADEREVA NA WAMILIKI WA BAJAJI JIJI LA MBEYA…………………………………..……………RESPONDENT

RULING Date: 30 September 2024 & 12 December 2024 SINDA, J.: 1 The application is for leave to apply for orders of mandamus and certiorari made under section 2(3) of the Judicature and Application of Laws Act, Cap 358 R.E. 2019 (the JALA), section 19 (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310 R.E. 2019 (the Law Reform Act) and Rule 5 (1) and Rule 5(2)(a)(b)(c)(d) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 (the Rules). Briefly, this application is a result of the respondent conducting a general election on 15 December 2023 to elect new leaders. The results were announced and the applicant was aggrieved by the election. He explained the abnormalities of the elections to the respondent and despite numerous number of complaints, no action was taken. Hence this application. The applicant is therefore praying to be granted leave to apply for: 1. An order of certiorari to quash and set aside the decision of the respondent to conduct general election and pronounce results of the election unlawfully; and 2. An order of mandamus to compel and direct the respondent to conduct another election according to the constitution of its members. 2 The application is by way of chamber summons supported by the applicant’s statement of facts and the affidavit sworn by the applicant. The

hearing of the application was through oral submissions. The applicant was represented by Mr. Imani Mbwiga learned counsel. The respondent was represented by Mr. Mathayo Mbilinyi learned counsel. Submitting for the application, Mr. Mbwiga laid down the criteria necessary for bringing this kind of application. First, the applicant should have a prima facie case. Secondly, the application is within six months from the last decision he is applying for review. Thirdly, the applicant has sufficient interest. The same being provided in the case of Engelbert Lucas Chelele vs The Police Force, Immigration and Prisons Service Commission & 3 Others, Misc Civil Cause No. 11 of 2022 HC (unreported). In relation to the first criteria, Mr. Mbwiga argued that the applicant has a prima facie case because he was vying for the post of the chairman of Umoja wa Madereva na Wamiliki wa Bajaji Mbeya (the Association). The members/voters who participated in the election are 465 as per annexure M2 “Fomu ya Matokeo ya Uchaguzi”. That, the number of voters is contrary to Article 11(2)(d) of the constitution of the association (the Constitution). 3 The article requires 2/3 of the members to vote for the election to be valid. He continued, paragraph four of the applicant’s affidavit, annexure M1 provides the list of members of the association is 27624, thus 2/3 of the members required to vote was not met.

That, the applicant was aggrieved by the results but was not accorded the right to be heard. On the second criteria, the applicant submitted that the applicant must lodge his application within six months as required by the law. That, the election results were on 15 December 2023 and the applicant filed this matter on 20 April 2024. Therefore, the applicant is within time. With regards to the third point, Mr. Mbwiga argued that the applicant has sufficient interest as he is a member of the Association and also contested for the position of chairman of the Association. In his reply submission, Mr. Mbilinyi did not object the criteria submitted by the applicant and that all three criteria must exist for the applicant to be granted leave for judicial review. He added that the advocate for the applicant referred to article 11(2)(b) of the Constitution which is not in relation to the coram. That there is no arguable case as per the provided section. Mr. Mbilinyi was of the view that the condition of 2/3 is not an 4 absolute condition, as it is a general rule whose exception is provided under Article 12(2)(ii) & (iii) of the Constitution. Therefore, the election can proceed even if 2/3 of the members is not met. The counsel further stated, that the applicant was the chairman of the association when the election was conducted. Therefore, if there is any error in compliance with

the coram, the applicant should be at fault because he was the chairman at the time of election. The counsel urged the court to be guided by a principle that a person should not benefit from his own wrong. It was his argument that the first criterion was not met. He insisted that the Association had a right to proceed with the election even though the 2/3 requirement was not met. In his short rejoinder, Mr. Mbwiga submitted that the counsel for the respondent does not object on criteria number two and three. He further clarified that on the first criterion, he referred to article 11(2)(b) of the Constitution and not article 11(2)(d) as stated by Mr. Mbilinyi. I have gone through the submissions from both sides in relation to the application before me. The question remains, has the applicant demonstrated three basic conditions which must exist before granting leave. 5 I am satisfied that this application has met all three prerequisite conditions for granting leave to apply for judicial review as well stated in the case of Emma Bayo vs Minister of labour and Youth Development and Others, Civil Appeal No. 77 of 2012. That is existence of any arguable case in that there is a need to consider issue of the procedures and coram for the election, secondly, the application has been preferred within six months limitation period counting from 15 December 2023 to the date of filing on 20

April 2024 and thirdly, that the applicant has sufficient interest in applying for the orders because he was the Chairman of the Association and contested for the election. He was therefore personally affected by the election. In the light of the above discussion, this court finds that the application for leave has merit. The prayer for leave to file application for judicial review is granted. The same must be filed within 14 days from the date hereof as provided for under rule 8 (1) (b) of the Rules. There is no order as to cost. 6 DATED at MBEYA on this 12 Day of December 2024. A. A. SINDA

JUDGE

JUDGE 7