MCA NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 9432 OF 2024 (Arising from the decision of the Inspector General of Police dated 5th October 2023) ________________________ IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND IN THE MATTER OF DISMISSAL FROM THE EMPLOYMENT OF RABSON MOSHA, AMELDA HONGA AND DENICE KASIMBAZI BETWEEN RABSON MOSHA………………………..….………..…………1ST APPLICANT AMELDA HONGA…………………….……….…………………2ND APPLICANT DENICE KASIMBAZI……………….……….……………..….3RD APPLICANT VERSUS THE INSPECTOR GENERAL OF POLICE………………..1ST RESPONDENT THE ATTORNEY GENERAL…………………………………2ND RESPONDENT RULING Date of last order: 22nd August 2024 Date of Ruling: 10th September 2024 1 MTEMBWA, J.: The Tanzania Police Force employed the Applicants herein as police officers stationed at Julius Nyerere International Airport in Dar es Salaam under the office of the DCO. The first and second Applicants were employed as detective corporals (D/CPL), officially known as EX. G4350 and EX. WP 7845 CPL. The third Applicant was employed as a Detective Constable (D/C), officially known as EX. H5338. On 30th September 2022, charges were laid against them for two offenses namely, Kufanya Kitendo Kibaya na Mwenendo Mwema wa jeshi la Polisi kwa Kumuhoji Abiria kwa Dakika 51 contrary to regulation C.5 (3) XLVII of Police Force and Auxiliary Service Regulation of 1995 read together with PGO No. 106 Appendix 21 and Kushawishi na Kuchukua Pesa za Rushwa Kutoka Kwa Abiria contrary to Section 50(1)(y) of the Police Force and Auxiliary Services Act, Cap 322, R.E 2002 and Item 25 of Police General Order (P.G.O) No. 106. The Applicants resisted the accusations. As a result, the evidence were adduced before an inquiry tribunal, led by ASP Jackline Mtangi and prosecuted by Inspector Sophereth Masatu. Having evaluated the 2 evidence adduced, on 13th October 2022, the Applicants were convicted as charged and on 15th October 2022, ASP Geremia Shila entered a punishment by terminating them from employment. Consequently, the certificates of discharge from duties were issued. Dissatisfied, on 16th October 2022, the Applicants appealed to the Inspector General of Police (IGP) on various grounds. The midpoint of the appeal was that the hearing was conducted unprocedurally. Having considered the grounds for appeal, the IGP confirmed the punishment. Having obtained leave to file this Application in Miscellaneous Cause No. 6575 of 2024, the Applicants have filed this Application under the provisions of Section 17 (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310 R.E 2019 and Rule 8(1) and (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 G.N No. 324 of 2014 seeking for orders of Certiorari to quash the decision of the 1st Respondent dated 5th October 2023 terminating the Applicants for being tainted with illegalities in procedure and contrary to the principles of natural justice. 3 When this matter came for orders on 12th June 2024, the Applicants were represented by Mr. Peter Majanjara, the learned counsel, while the presence of Ms. Doreen Muhina, the learned state Attorney, symbolized the Respondents. By consent parties agreed to argue this Application by way of written submissions. Having passed through the records, I am satisfied that parties adhered to the agreed schedule with regard to the Applicants’ submissions in chief and reply submissions by the Respondents. In this regard, I will not consider the Applicants’ rejoinder submissions for having been filed out of time without leave of this Court. I will, therefore, look into what has been argued for and against the Application. Stagging the floor, Mr. Majanjara adopted the contents of the supporting Affidavit. Having prefaced on what transpired before, the learned counsel argued on the procedural impropriety of the impugned decision. On this, he argued that for Non-Commissioned Officers and corporal rank, paragraph 4 of the Police General Orders (supra) provides that the recorded proceedings in every defaulter case shall be in two parts: the preliminary inquiry of the alleged offence and the record of evidence taken when the case is tried by an officer so 4 empowered to hear it. Under paragraphs 6(a) (b) and 7 thereof, a preliminary inquiry ought to have been prepared to ascertain the truth or falsehood of the complaint, allowing its assessment and a decision to be reached as to whether or not a disciplinary charge should be laid against the alleged offender. Mr. Majanjara argued further that the 1st Respondent was obliged to disclose the full proceedings together with the preliminary inquiry as stipulated in the above-mentioned provisions, and by not doing so, there was a procedural irregularity. He added that no evidence is annexed to the 1st Respondent’s affidavit showing whether the decision to prosecute was made as required by the above provisions. The learned counsel also faulted the 1st Respondent for failing to suspend the punishment during the pendency of the Appeal contrary to regulation C.18 (5) of the Police Force Service Regulations of 1995. In view of annexure RAD 1 to the affidavit, the Applicants were discharged from service on the 15th October 2022, the same day they were terminated. Moreover, the Applicants appealed on the 16th of October 2022 as per annexure RAD 1. 5 On Unreasonableness, Unfairness and Illegality, Mr. Majanjara cited the case of E933 CPL Philimatus Fredrick vs. IGP and AG, Misc. Civil Cause No. 03 of 2019, High Court of Tanzania @ Musoma, where it was observed that unreasonableness includes acting in bad faith, abuse of powers, taking into account of matters which one ought not to take into account or failure to take into account matters they ought to have taken into account. It was pointed out that a decision can be unreasonable under the following circumstances; 1. A decision is one which no reasonable person could have arrived at; 2. A decision is irrational or illogical 3. A decision-maker has failed to give adequate weight to factor of great importance or has given excessive weight to an irrelevant factor of no great importance 4. A decision is plainly unjust, arbitrary, capricious or 5. A decision does not relate intelligibly to the purpose of the statutory power being exercised. Based on the above, in the first limb, the learned counsel observed that the offense with which the applicants were charged was illegal. He added that, the offense known as Kufanya kitendo kibaya kinyume na mwenendo mwema wa Jeshi la Polisi kwa kumuhoji abiria kwa dakika 51 contrary to regulation C.5 XLVII of the Police Force Service Regulations 1995 together with the Police General Orders R.E 2021 Appendix “A” 47” is unknown and there is no such offense under the cited law. He 6 observed further that the offence was made up at the whims of the tribunal so as to terminate the Applicants from their employment. That the offense is vague, wide in its interpretation, and unreasonable in the sense that it captures every conduct to be wrong as the disciplinary authority sees fit. He cited the cases of Bahame Sitta and Giluisha Nimbu vs. the Republic, Criminal Appeal No. 166 of 2018, Court of Appeal of Tanzania at Shinyanga and Francis S/O Tumsime vs. the Republic, Criminal Appeal No. 24/2005, High Court of Tanzania at Bukoba. In the second limb, Mr. Majanjara submitted that there was no evidence proving the two alleged disciplinary offenses against the Applicants. There was no place showing records of the alleged transaction being conducted between PW5 (Jaffar Gardol), PW6 (Husna Gardol) and PW4 (Happiness Msambaji Mshana). PW4 never mentioned the name of the person who withdrew the money from Airtel Money. Likewise, PW5 never showed any documentation showing that he sent money to PW6, so PW6 gave the same to the Applicants herein. He added that PW6 only mentioned that the name of the Airtel Money agent was Sharifa Khamis. However, there was no evidence showing 7 that PW6’s name (Husna Gardol) was registered in her alleged mobile phone number used to withdraw the alleged Tanzanian Shillings 300,000/= as a bribe. On the third limb, Mr. Majanjara stressed that there is illegality occasioned in the provision of evidence. He pointed out that PW1, ASP Duncan Gitagno, was given documents on the alleged money transactions from the officer in charge of immigration and he proceeded to tender them as exhibits. PW2, A/INSP Ngenda Luja Ngenda, obtained CCTV footage from the Director of Julius Nyerere International Airport, which was tendered as an exhibit and PW3, A/INSP Willy Elinaja, was also given a flash drive containing footage showing the 3rd Applicant taking money from PW4. He observed that the evidence was contrary to the law. They ought to have been tendered by the persons in whose custody such exhibits were created. Otherwise, all that was explained was hearsay, which is not admissible in law. In his further submission, the learned counsel submitted that the officer in charge of Immigration did not explain where the documents for money transactions from Airtel were derived. He failed to explain 8 how he got them, which were the basis of the finding that the Applicants herein were guilty of the offense. On the fourth limb, the learned counsel argued that there was an inconsistency between the charges laid against the Applicants and the evidence given by the prosecution witnesses. He added that PW6 could not have immediately entered the INTERPOL offices at 21:25 Hours and had the alleged bribe withdrawn from Airtel money at 21:00 Hours, which was 15 minutes before she entered the offices. He insisted that the decision was irrational, lacked logic and justification, and was not sensible and the 1st Respondent confirmed the same erroneous decision. Regarding bias, the learned counsel observed that ASP Jackline Mtangi was biased in the proceedings. She questioned the Applicants in a manner that showed she was siding with the prosecution side while she was supposed to be neutral. He added that it was the duty of the prosecutor, Inspector Sophereth Masatu, to question the Applicants herein and not ASP Jackline Mtangi. He condemned her for playing a double role as an adjudicator and a prosecutor by building the prosecution’s case. 9 In addition to the foregoing, the learned counsel pointed out the requirements of the warrant order of certiorari. He cited the case of Sanai Murumbe and Another vs. Muhere Chacha 1990 TLR 54 (CA), where it was observed that the High Court is entitled to investigate the proceedings of a lower court or tribunal or public authority on any of the following grounds apparent on the record; taking into account matters which it ought not to have taken into account; not taking into account matters which it ought to have taken into account; lack or excess of jurisdiction; conclusion arrived at is so unreasonable that no unreasonable authority could have ever come to it; rules of natural justice have been violated; or illegality of the procedure or decision. Based on that, it was argued that the prayers for certiorari had been successfully made out. In his final analysis, Mr. Majanjara argued that it has always been the duty of the Respondent to make a full, fair, and prompt disclosure of relevant material. This includes due diligence in investigating what material is available. He cited the case R (Bancoult) vs. Secretary of State for Foreign and Commonwealth Affairs (No. 4) [2016] UKSC [2017] AC 300, where it was observed that the public authority 10 whose actions or decisions are under challenge has a duty to make full and fair disclosure of all the relevant material. Only if this is done can the court perform its vital role of deciding whether or not those actions were lawful. To fortify the above position, the learned counsel cited the following decisions: Secretary of State for the Home Department and Secretary of State for Levelling Up, Housing and Communities vs. The King on the Application of IAB & Others, [2024] EWCA Civ. 66, North Mara Goldmine Limited vs. Minister of State, Vice President’s Office (Union and Environment) and the Attorney General of the United Republic of Tanzania, Miscellaneous Civil Cause No. 31 of 2023, High Court of Tanzania (Main Registry) at Dar es Salaam and Engelbert Lucas Chelele vs. The Police Force, Immigration and Prison Service Commission and 3 others, Misc. Civil Cause No. 30 of 2022, High Court of Tanzania (Main Registry) at Dar es Salaam. Based on the above, the learned counsel implored this Court to allow the Application. 11 In response, Ms. Mdendemi adopted the Counter Affidavit sworn by MAURILIO FIDELIS CHANG’A as part of her submissions. She added further that the Applicants have raised new complaints different from what they stated in their Joint Affidavit and Statement. Under procedural impropriety, the Applicants’ complaints are non-adherence to procedures as provided under the Police General Order (supra), elaborating more that a preliminary hearing was not conducted to ascertain the truth or falsehood of the alleged offenses and non- adherence to Regulation C.18 (5) of the Police Force Service Regulations (supra) which requires suspension of punishment during the pendency of the appeal. With regard to bias, the Applicants have submitted that ASP Jackline Mtangi was biased in the proceedings by questioning the Applicants in a manner that showed she was siding with the prosecution side. She argued that the grounds above were new and did not feature anywhere in the Applicants' Joint Affidavit or Statement. Ms. Mdendemi continued to argue that it is a settled principle that parties are bound by their pleadings and, as such, claims must be specifically pleaded for them to be considered. She cited the case of Pendo Fulgence Nkwenge vs. Dr. Wahida Shangali, Civil Appeal 12 No. 368 of 2020, page 24. She further stated that submissions are not evidence as they tend to elaborate or explain the evidence already in place. She then cited the cases of Rosemary Stella Chambejairo vs. David Kitundu Jairo, Civil Reference No. 6 of 2018 , and the Registered Trustees of the Archdiocese of Dares Salaam vs. The Chairman, Bunju Village Government & 11 Others, Civil Appeal No. 147 of 2006. Ms. Mdendemi also refuted the assertion that the 1st Respondent must disclose the entire proceedings and the preliminary inquiry proceedings to this Court. She added that the 1st Respondent only has to respond to the allegation raised by the Applicants in their Joint Affidavit and Statement. That duty was fully discharged. Had the Applicants needed the entire disclosure of the information, they would have pleaded as such in the Affidavit to enable the 1st Respondents to work on them. Based on that, she was of the view that the Applicant failed to abide by the above principles, and thus, the grounds raised should be dismissed. The learned state attorney referred this Court to page 60 of the proceedings where the preliminary inquiry was conducted. She implored 13 this Court to find out that failure to conduct a preliminary inquiry is not a new complaint and invited the Court to consider annexure OSG 1 to the Counter Affidavit. With regard to Unreasonableness, Unfairness and Illegality, the learned state attorney argued that the Applicants were not charged with the offense relating to interviewing a person for 51 minutes but instead, they were charged for “kufanya kitendo kibaya kinyume na mwenedo mwema wa jeshi la Polisi” contrary to Regulations C. 5. xlvi of the Regulations read together with PGO 106 Appendix “A’ 47. Even if there is a wrong citation, it is not fatal. As to whether the offense was proved, it was submitted that in Judicial Review, the Court Reviews and scrutinizes the validity of the acts, decisions, instruments, or any transaction performed by administrative bodies. In other words, in Judicial Review proceedings, a Judge reviews the lawfulness of a decision or action made by a public body or authority. The Court has no authority to enquire into the conclusion as if it is an appellate Court. As to whether the Applicants satisfied the requirements to warrant the grant of the order of certiorari, Ms. Mdendemi argued that the same is a prerogative remedy appropriate when a decision made pursuant to 14 a statutory power or duty to decide has been made in error or in access to the bestowed powers or in contravention of the principles of natural justice. The Court of Appeal of Tanzania in Ally Linus others v THA and another (1998) TLR CAT 910 observed that certiorari lies where there is absence or lack of jurisdiction, errors of law on the face of the record, breach of natural Justice or where the determination was procured by fraud, collusion or perjury. She also recited the case of Sanai Murumbe (supra). Based on the above, the learned counsel observed that the Applicants have failed to satisfy the criteria for granting the order of certiorari; instead, they just mentioned the grounds in their Statement and raised new complaints during submissions. She implored this Court to dismiss the Application with costs. I have dispassionately considered the rival arguments of the parties and formulated one issue: whether the application for orders of Certiorari has been made out. As prefaced, the Applicants seek for orders of Certiorari to quash the decision of the 1st Respondent dated 5th October 2023, which terminated them from employment for being 15 tainted with illegalities in procedure and contrary to the principles of natural justice. To recap, the Applicants were accused of Kufanya Kitendo Kibaya na Mwenendo Mwema wa jeshi la Polisi kwa Kumuhoji Abiria kwa Dakika 51 contrary to regulation C.5 (3) XLVII of Police Force Service Regulation of 1995 read together with PGO No. 106 Appendix 21 and Kushawishi na Kuchukua Pesa za Rushwa Kutoka Kwa Abiria contrary to Section 50(1)(y) of the Police Force and Auxiliary Services Act, Cap 322, R.E 2002 and Item 25 of Police General Order (P.G.O) No. 106. The Application has been pegged on procedural impropriety, unreasonableness, unfairness and illegality. In his submissions, Mr. Majanjara complained that there was no preliminary inquiry conducted on the alleged offenses and no records of evidence by the officer so empowered to hear it. He added that the preliminary inquiry ought to have been conducted to ascertain the truth or falsehood of the complaint. He also complained about the failure of the Respondents to supply materials or proceedings to the Applicants. On her part, Ms. Mdendemi submitted that the Applicants were 16 supposed to allege in the Application so that the same can be attended to through the Respondents’ Counter Affidavit. Indeed, regulation C.7 (1) – (4) of the Police Force Service Regulations of 1995 (herein the Regulations) provides for procedures for preliminary inquiry of the alleged offenses by the tribunal. In view of regulation C.7 (5) thereof, at the conclusion of the hearing, the appropriate tribunal may give its finding forthwith and, if it finds the defaulter guilty of any of the charges against him or if the defaulter has pleaded guilty thereto, make an award, or reserve its findings and award (or its award only). Under regulation C.7 (6), where the defaulter pleads or is found guilty but the appropriate tribunal considers that the punishment which it can award is insufficient to meet the gravity of the case, it shall not make an award but send a report to the Commanding Officer together with a copy of the proceedings, its finding and the reasons therefor. The Commanding Officer may then, under regulation C.7 (7) (a)(i) and (ii), proceeds to confirm or vary the award. From the above, the requirement to conduct a preliminary inquiry is mandatory under the respective law by the inquiry officer appointed under regulation C.14 of the Regulations. To avoid doubts, the inquiry 17 should be conducted in view of the provisions of regulation C.15 (1) – (15) of the Regulations. However, I looked at the records and noted that the preliminary inquiry was conducted by an inquiry tribunal led by ASP Ms. Jacquiline S. Mtangi from 30th September 2022 to 8th October 2022. In such circumstances, I am constrained to find out that the Applicants' complaint is devoid of merits, and I proceed to dismiss it. The Applicants also complained that they were not supplied with the proceedings. Of course, this was also one of the complaints in their Joint Affidavit supporting the application. The learned state attorney refuted the complaint, alleging that they were supposed to allege such facts in their Affidavit so that the same could be attended to through the Respondents' Counter Affidavit. Having realized that this Court can not determine this Application effectively in the absence of the inquiry proceedings, on 31st July 2024, it ordered the Respondents to file them electronically. However, the same were not supplied to the Applicants before filing this Application or preparing the submissions in chief. With respect, for reasons to be given hereinafter, I am unable to agree with the learned state attorney’s assertation. Being in control of 18 the inquiry proceedings, including the evidence adduced during an inquiry, a public authority whose decision is called into question is mandated to divulge or supply the material for use by the Applicants to enable them to adequately prepare appeals to the disciplinary authority or commission or file judicial review before this Court. It was observed in R (Bancoult) vs. Secretary of State for Foreign and Commonwealth Affairs (No. 4) [2016] UKSC [2017] AC 300 that; it is a proud feature of judicial review of administrative action that the public authority whose actions or decisions are under challenge has a duty to make full and fair disclosure of all the relevant material. Only if this is done can the court perform its vital role of deciding whether or not those actions were lawful In several cases, this Court has been allowing applications for orders of certiorari on the grounds, among others, of failure to supply the Applicants with records of an inquiry. In Engelbert Lucas Chelele vs. Police force, Immigration and Prison Service Commission and 3 Others (Misc. Civil Cause 11 of 2022) [2022] TZHC 10263 (23 June 2022) had this to say; I again agree with applicant's advocate submission in respect of the second, third and fourth issue, the respondent's 19 conduct of failing to supply the applicant with the proceeding and failure to attach the same to the counter claim, prejudiced the applicant. It is obvious that he cannot argue his case in respect of 2nd, 3rd and 4th issues, to show whether the respondents followed the procedures in terminating applicant's employment. The Applicants complained that the punishment was not suspended during the appeal's pendency, contrary to regulation C. 18 (5) of the Police Force Service Regulations of 1995. He referred this Court to annexure RAD 1 to the joint affidavit. The learned state attorney considered this a new issue and thus she did not discuss it in length. Of course the regulation provides that in every case in which an appeal is lodged, the punishment shall be suspended during the hearing and determination of the appeal, provided that the Inspector General may in considering any appeal against a finding of an appropriate tribunal or a Commanding Officer remit any punishment so imposed by him or substitute therefor any other punishment which he could have imposed. In my opinion, this ground requires a detailed discussion to assess the propriety of the whole process leading to dismissal. It is on record that the preliminary inquiry was conducted from 30th 20 September 2022 to 8th October 2022. At page 60 of the typed proceedings, the tribunal was recorded as follows; AFISA MSIKILIZAJI: Ushahidi upande wa utetezi umefungwa baada ya washitakiwa wote watatu kujitetea kwa makosa yote mawili walioshitakiwa nayo. AFISA MSIKILIZAJI: Nahairisha shauri hili hadi tarehe 11/10/2022 saa 09:00hm asubuhi kwa ajili ya kusoma hukumu. From what I perceived, having gathered the evidence adduced during the inquiry, the matter was then adjourned to 11th October 2022 for the decision or findings. The records reveal further that the tribunal proceeded to summarize the evidence in the absence of the Applicants. This is because the proceedings with the heading “ muhutasari wa kesi” were summaries of what transpired during the inquiry. It is not established whether the Applicants were present. After the summary, at page 72 of the proceedings, the tribunal was recorded as follows; AFISA MSIKILIZAJI: Kutokana na aina ya makosa ambayo washitakiwa wameshitakiwa nayo na mahakama kuwatia hatiani kwa makossa yote mawili, mahakama hii haina mamlaka ya kutoa adhabu hivyo nawasilisha mwenendo wa mashitaka haya kwa kamanda wa Polisi V/Ndege Tanzania kwa ajili ya kutoa adhabu kwa mujibu wa PGO 106(32) b. 21 In view of the above, having summarized the evidence adduced during the inquiry, the matter was then remitted to the commanding officer in charge of the airport's (kamanda viwanja vya ndege) for him to enter punishment or otherwise, as the case may be. The tribunal only convicted the Applicants while leaving the sentence to the commanding officer. In other words, the tribunal never entered any punishment. Having convicted the Applicants of the offenses charged as aforesaid, the tribunal correctly forwarded the proceedings to the commanding officer in view of regulation C.16 (1) of the Regulations, which provides that, upon the conclusion of an inquiry, the officer conducting the inquiry shall, save where such officer himself is the disciplinary authority, forward the record of proceedings before him together with his report thereon to the disciplinary authority. The proceedings to be forwarded shall state whether, in the opinion of the officer conducting the inquiry the charges against the accused officer have been proved; state reasons for such opinion; state any fact which, in the opinion of the officer conducting the inquiry, aggravates or mitigates the gravity of the act or omission which was the subject; state 22 any other fact which in the opinion of the officer conducting the inquiry is relevant in view of sub-regulation (2) thereof. Sub- regulation (4) of the Regulations provides that upon receipt of the record of proceedings and the report or where the disciplinary authority himself conducted the inquiry, upon conclusion of the inquiry, the disciplinary authority shall, after considering the evidence and where the inquiry was not conducted by him, the report of the officer conducting the inquiry, make and record a finding whether, in his opinion, the accused officer is guilty of the disciplinary offence with which he was charged. Where the disciplinary authority finds the accused officer guilty, he shall proceed to award any of the punishments stipulated under the proviso to sub-regulation (6), in which case, dismissal is inclusive. When the accused officer is dissatisfied, regulation C.18 (3) of the Regulations comes into play. It lucidly provides that; Any non-commissioned officer or constable aggrieved by any finding of an appropriate tribunal or any award of an appropriate tribunal or a Commanding Officer may, within seven days of the notification to him thereof, appeal to the Inspector General in writing and the Inspector General may confirm or vary any finding of the appropriate tribunal or substitute therefor any finding at which the appropriate 23 tribunal or Commanding Officer could have arrived upon the evidence, including any additional evidence which the Inspector General, in his discretion, admits at the hearing of the appeal, and may confirm or remit any punishment imposed by the appropriate tribunal or a Commanding Officer or may substitute therefore any punishment which the tribunal or such officer could have imposed, and in all such cases the decision of the Inspector General shall be final. The harmonization of the cited provisions of the law goes as follows: An inquiry may be conducted by the tribunal led by the appointed inquiry officer. Any authorized commanding officer or disciplinary authority may also conduct it. The commanding officer has the mandate to convict and or enter punishment. An inquiry Tribunal has mandate to convict, enter punishment, or make findings that the offenses have been proven to the required standards considering the offenses. Where the tribunal or commanding officer cannot enter punishment (as in our case), it shall forward the records of the proceedings to the commanding officer, together with the recommendations. Having taken into consideration the records, findings, and recommendations, the commanding officer shall enter punishment, including dismissal. Dissatisfied, the offended officer may, within seven days, appeal to the disciplinary authority. The decision of the disciplinary 24 authority, the IGP, is final and only challengeable through judicial review or an appeal to the commission (not mandatory). In such circumstances, if I may add, the right to appeal to the disciplinary authority, the IGP, is only available if the tribunal or commanding officer entered the punishment. Of course, it makes sense. Under the rules of natural justice, no one can be a judge on his cause. That means the IGP (1st Respondent) can not serve as an appellate authority to discuss the punishment he or she entered. In the instance matter, the inquiry tribunal convicted the Applicants of the offenses charged and left the punishment to be entered by the commanding officer (Kamanda Viwanja vya Ndege). It could appear, as per the records, that the commanding officer never entered the punishment. Instead, he proceeded to issue the certificate of discharge attached to the Joint Affidavit as Annexure RAD 1. In my opinion, the commanding officer was required by law to enter punishment before issuing the certificates of discharge to the Applicants. This is because he is supposed to assign reasons to be recorded as to why he reached to such a conclusion. 25 As said before, on 31st July 2024, I ordered the Respondents to provide the Court with the records, including the inquiry records and proceedings, before the commanding officer and the disciplinary authority, the 1st Respondent. To my surprise, only the proceedings of an inquiry tribunal were filed electronically. There is no record of whether the commanding officer entered punishment, and if any, prudence would have required the Respondents to file them for the Court to assess. To me, such failure or refusal means that there have been no such proceedings, and so no punishment was entered by the commanding officer. The 1st Respondent determined the Applicants' appeal as if the punishment was in place. As said before, the inquiry tribunal did not enter the dismissal order as a punishment. Similarly, there are no records that the commanding officer entered what and which punishment. The punishment, therefore, was entered by the 1st Respondent sitting as an appellate authority. As such, the Appeal to the 1st Respondent was premature as it was preferred before the commanding officer entered the punishment. As the records stand, it is 26 as good as the Tanzania Police Force never purnished the Applicants. To date, they stand only to be convicted of the offenses charged. Since I have already observed that the commanding officer never entered any punishment against the Applicants as required by the law, it follows that there was no appeal to be preferred to the 1st Respondent. Similarly, the impugned decision of the 1st Respondent is illegal as it was issued before the commanding officer entered the punishment. It must be noted that, under the Regulations, there can be no appeal to the 1st Respondent if the inquiry tribunal or commanding officer entered no punishment. To that end, I see no reason to discuss this Application any further. In the premises, the order of certiorari is hereby entered in favor of the Applicants. The decision of the 1st Respondent dismissing the Applicants from employment is hereby quashed and set aside. Considering the circumstances, there will be no order as to costs. I order accordingly. Right of appeal explained. 27 DATED at DAR ES SALAAM this 10th September, 2024. H.S. MTEMBWA JUDGE 28