IN THE HIGH COURT OF TANZANIA

(MAIN REGISTRY)

AT DAR ES SALAAM

MISC. CIVIL APPLICATION NO. 10 OF 2017

In the matter of an Application for extension of Time to

apply for Leave to Apply for an Order of Certiorari

AND

In the Matter of the Decision of the Ethics Tribunal

BETWEEN

SHABANI RAJAB GURU MO •••••••••.•..•..••...••.••• APPLICANT

VERSUS

THE ETHIC TRIBUNAL ..........•••.•••...••.•.•• 1st RESPONDENT

THE ATTORNEY GENERAL •••••••••••••••••••••2ND RESPONDENT

DateLastorder 21/06/2017

Dateof Ruling 11/07/2017

RULING

KIHIO, J.

The applicant, Shaban Rajab Gurumo filed this application•applying for extension of time within which he can apply for leave

to apply for an order of certiorari.

The application is brought under section 14(1) of the Law of

~ Limitation Act, Cap. 89 R.E. 2002.

The affidavit in support of the application is deponed by the

applicant himself.

The respondents are The Ethics Tribunal and The Attorney

General (herein after referred as 1st and 2nd respondents,

respectively) .

The applicant is represented by Dr. Kamanija, learned

advocate while the respondents are represented by Mr. Daniel

Nyakiha, learned State Attorney.

The learned counsel for the parties argued the application

orally.

Dr. Kamanija prayed to adopt the contents of the applicant's

affidavit and reply to counter affidavit in his submission in support

of the application. He submitted that the applicant was charged

with six charges of violating the Public Leader ethics contrary to

the provisions of Public leadership code of Ethics Act No. 13 of

1995 and was found guilty on all complaints. He further

submitted that on 4/11/2015 he filed application for leave to

apply for judicial review in Mise. Civil Cause No. 672 of 2016 after•

he was supplied with the decision of the Ethics Tribunal on

8/9/2015.

He contended that the applicant's application in Mise. Civil

Cause No. 672/2016 was struck out by this court on 4/8/2016 for

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,..

being time barred as per annexture "SRG 7" to the affidavit. He

further contended that on 8/11/2016 the applicant filed Mise. civil

Application No. 80/2016 applying for extension of time to file

leave to file an application applying for an order of certiorari

against the 1st respondent's decision. He went on contending

that on 29/12/2016 Mise. Civil Application No. 80/2016 was struck

out by this court on grounds that it was defective as per the

ruling (annexture SR 9 to the affidavit). He argued that the

reasons for the delay to file the application within time are (1) the

decision of the 1st respondent was delayed by the Ethics

Commissioner in that the applicant was supplied with the copy of

the said decision on 8/9/2015 after two written requests for the

same was made by the applicant's counsel as per annextures

"SRG5" and "SRG 6" to the affidavit in support of the application

when the decision was delivered on 24/3/2015 (2) After receiving

the copy of the decision of the 1st respondent the applicant acted

promptly and diligently.

He further argued that the applicant intends to challenge the•

illegality of decision of the 1st respondent as stated in paragraph

20 of the affidavit and cited the Case of The Principal Secretary.

Ministry of Defence and National Service Vs Deviran Valambia

(1992) T.L.R. 185. (2) The respondent do not dispute the facts

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which account for the applicant is delay in filing application within

time in paragraphs 4 and 6 of the counter affidavit.

Mr. Daniel Nyakiha submitted that the letters (Annextures

SRG 5 and 6 to the affidavit), were requesting for "Ombi la

kupewa nakala ya Taarifa ya Uchunguzi wa Baraza la Maadili ya

Viongozi wa Umma Kuhusu Lalamiko Na. 6 la 2015 Sekretariati ya

Maadili ya Umma ( Mlalamikaji) dhidi ya Bw. Shaban Rajabu

Gurumo mlalamikiwa" and not the decision of the Ethics

Committee. He further submitted that instead of filing application

for leave to challenge the decision of the Ethics Committee

"Sekretarieli ya Maadili ya Umma" he opted to request for Taarifa

ya Uchunguzi wa Baraza la Maadili so this does not amount to

sufficient cause in granting extension of time. He argued that

having filed the first application on 4/11/2015, the applicant was

already barred by time as per rule 6 of the Law Reform (Fatal

Accidents and Miscellaneous Provisions) (Judicial Review

Procedure and Fees) Rules, 2014. He further argued that seeking

extension of time at this stage is laxity and negligence on the part•

of the applicant's counsel as he was aware that leave to apply for

prerogative order of Certiorari would have been made within six

months after the decision. He contended that negligence on the

part of an advocate or counsel for the applicant does not amount

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to sufficient cause for this court to grant an extension of time

and he cited the Court of Appeal of Tanzania Case of A. H.

Muhimbira and 2 others Vs John K. Mwanguku, C.A.T. Civil

Application No. MBY 13 of 2005 (unreported) in support of his

Submission. He prayed that the application be dismissed with

costs as there are no sufficient reasons for the delay.

In rejoinder Dr. Kamanija submitted that the "Taarifa ya

Uchunguzi is issued by the 1st respondent under section 22 (6) of

Public Leadership Code of Ethics Act 1995 and "Taarifa ya

Uchunguzi" which was supposed to be issued under the said

section 22 (6) is the very decision by the 1st respondent as per

Annexture "SRG 2" to the affidavit. He further submitted that

Baraza la Maadili was the one supposed to give decision because

The Sekretarieti ya Maadili ya Umma never gave "Taarifa na

Maamuzi" because the said Sekretarieti was the complainant as

per annexture "SRG1" to the affidavit. He argued that it is not

true that the applicant's counsel was negligent but he was

• pursuing applications in this court as submitted in chief in good•

faith.

It is the law that in order for the court to exercise it's

discretion in extending time under section 14(1) of the Law of

Limitation Act, Cap. 89, R.E. 2002 reasonable and sufficient cause

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for the delay has to be shown. Therefore, the issue I have to

determine here in whether the applicant has shown reasonable or

sufficient cause for delay in filing leave to apply for an order of

certiorari.

According to Dr. Kamanija's submission the decision of the

1st respondent was given on 24/3/2015and the applicant was

supplied with a copy of the said decision on 8/9/2015 as per

annextures SRG3 and SRG4 to the affidavit in support of the

application after two written requests by applicant's counsel

(annextures SRG 5 and SRG 6, to the affidavit)". The said written

requests were made on 22/6/2015 and 7/9/2015, respectively.

It is also Dr. Kamanija's submission, and as clearly shown in

paragraph 12 of the applicant's affidavit, that the applicant filed

the application for leave to apply for order of certiorari on

4/11/2015. No doubt, the application for leave, Mise. Civil Cause

No. 672/2016 was filed nearly one month from the date the

applicant was applied with the copy of the decision of Ethics

Tribunal

It is apparent on the ruling in Miscellaneous Civil Cause No.

672 of 2016 that this court, Dyansobera, J., struck out the said

application on 4/8/2016 on ground that it was filed out of the

prescribed limitation period and without an order for extension of

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time sought for and granted. It is also apparent on the record of

the case that the applicant filed an application for extension of

time in Mise. Civil Application No. 80 of 2016 but on 29, 12 2016

this court, Wambali, JK struck out the application for being

defective.

The present application was filed on 14/2/2017, 47 days

after the application for extension of time in Misc. civil Application

No. 80 of 2016 was struck out for being defective. I agree with

Dr. Kamanija's argument that after receiving the copy of the

decision of the 1st respondent the applicant acted promptly and

diligently. I do not agree with Mr. Daniel Nyakiha's submission

that there was laxity and negligence on the part of the applicant's

counsel in seeking extension of time at this stage. In my view A.

H. Muhimbira and 2 others Case (supra) is distinguishable here as

the facts in that case are different from the facts in the present

case.

From the foregoing reasons I am satisfied that the applicant

has shown reasonable and sufficient cause for delay in filing the•

application for leave in time. This is a fit case which warrants this

court's exercising its discretion to grant extension of time to file

leave to apply for an order of certiorari.

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Accordingly, the application succeeds and the same is

granted. The applicant should file the application for leave to

apply for order of Certiorari within two weeks from the date of

this ruling.

Imake. no. order for costs. Order accordingly.,'," '~....: ,,'.' '.' A

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s.s.~JUDGE

11/07/2017Court: Ruling pronounced in the presence of Mr. Daniel Nyakiha,

learned state Attorney for respondents and holding brief

for Dr. Kamanija learned advocate for applicant.

~5.5.5. ·Kihio

JUDGE11/07/2017

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