Benedict Ihuya Mayenga vs Teachers Service Commission & Attorney General (Civil Appeal No. 755 of 2025) [2026] TZCA 618 (2 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA f CO RAM: MWANDAMBO. J.A.. KENTE. J.A. And MGONYA. J.A.T CIVIL APPEAL NO. 755 OF 2025 BENEDICT IHUYA MAYENGA................................................. . ..... APPELLANT VERSUS THE TEACHERS SERVICE COMMISSION..............................1 st RESPONDENT THE ATTORNEDY GENERAL................................................. 2 nd RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) fltemba. J.1 dated the 23rd day of April, 2024 in Misc. Civil Application No. 121 of 2023 JUDGMENT OF THE COURT 11th & 2nd June, 2026 KENTE, 3.A.: The appellant Benedict Ihuya Mayenga was, until the occurrence of the events leading to the present dispute, employed by the Government of the United Republic of Tanzania as a Primary School teacher in Kwimba District Council. He was first employed as a Teacher Grade IIIA in 1986. Through what he called "a demonstration of high level performance", he ascended the hierarchy over the years and finally attained the position of a Head Teacher Grade IIA. However, the course of events in the appellant's career changed dramatically in 2016 when he was two years away from retirement. That was caused by a nationwide Presidential Directive requiring verification and assessment of academic credentials for all public servants. In compliance with the said directives, the appellant submitted his certificates for scrutiny. Upon analysis which was conducted by the National Examination Council of Tanzania, a damning finding was returned to the effect that, the appellant's Form Four Certificate bearing Index No. S0329/054, was forged. Acting on the above-mentioned report, the District Executive Director for Kwimba District Council through his letter dated 10th July, 2017, unilaterally went on terminating the appellant's employment contract on allegations of forgery. Deeply aggrieved by this dismaying decision, the appellant embarked on an interminable administrative appeal process. Initially, the appellant appealed to the Public Service Commission which remitted the matter to the District Council for further investigation and later on recommended a disciplinary trial by the Teachers Service commission, the first respondent herein. After the recommended trial which was to his detriment, the appellant finally appealed to the President where, once again, he came across an unsurmountable obstacle. On 16th September, 2022 he received the decision of H.E the President of the United Republic of Tanzania finally terminating his employment contract. Undaunted and determined to challenge the said termination in a court of law, the appellant sought the indulgence of the High Court of Tanzania (sitting at Mwanza) in Miscellaneous Civil Application No.28 of 2023 seeking leave to apply for prerogative orders. But then, the said application was struck out of the court register following two preliminary points of objection raised by the respondents. It was contended that the application was time-barred and misconceived for being filed against the District Executive Director of Kwimba District Council while it was the Teachers Service Commission which had terminated the appellant's employment contract. Following the striking out of his initial application but with the leave to refile, the appellant who was at the time claiming to have been thrown into a state of extreme poverty and a precarious economic situation, sought legal assistance on a pro bono basis from the Tanganyika Law Society (Mwanza Chapter) on 5th August, 2023. His request for free legal services was finally approved on 18th August, 2023. Enjoying free legal representation, he then filed Miscellaneous Civil Application No.121 of 2023 seeking an extension of time within which to apply for leave to file a judicial review application. Before the High Court, the application was ferociously resisted by the respondents who, through their joint counter-affidavit contended that, the appellant had failed to account for each day of the delay. The respondents further argued that, negligence was not a sufficient ground to warrant an extension of time. After hearing the parties, the learned High Court Judge was convinced that indeed, the application before her was completely lacking in merit. Without further ado, she went on dismissing it. It is against that dismissal order of which the appellant was not happy that, he has now appealed to this Court faulting the learned High Court Judge for allegedly, failing to appreciate his financial constraints and the unfavourable circumstances that resulted in the delay to prosecute this matter. However, when the appeal was called on for hearing, having unscrupulously gone through the record of appeal, we raised ex m erro mottuan issue concerning the competence of the subsequent application (No. 121 of 2023) and the propriety or otherwise of the order by Kamana J, striking out the earlier application (Misc. Application No. 28 of 2023) for being time barred. Specifically, we engaged the parties on the propriety or otherwise of the learned High Court Judge's order in the second- mentioned application by which the applicant was given leave to refile another application which was similarly struck out for being barred by the law of limitation. For his part, the appellant being lay, he had nothing substantial to tell us. He simply implored us to take into account his grounds of appeal and finally allow the appeal. On her side, Ms. Grina Aden learned Principal State Attorney who appeared through a virtual meeting platform from Dar es Salaam to represent the respondents, had very little to say. She simply submitted but without elaborating or citing any authority to support her position that, the application before Kamana,J ought to have been dismissed and not struck out for being time barred. The issue as we see it in this case, is only one and quite narrow. It is whether, given the undisputed finding that the first application filed by the appellant was time barred, the learned High Court Judge was correct to strike it out and not to dismiss it. Section 3(1) of the Law of Limitation Act, Chapter 89 of the Revised Laws (the LLA) provides in no ambiguous terms, that: "3(1) - Subject to the provisions o f this Act, every proceeding described in the first column o f the Schedule to this A ct and which is instituted after the period o f lim itation prescribed therefor opposite thereto in the second column, sh a ll be dism issed whether or not lim itation has been set up as a defence." The above-posed question together with the attendant legal provision enjoin us to make, albeit very briefly, a clear distinction between a matter that is procedurally incompetent and one that is time barred. When an appeal or application is incompetent due to some procedural defects, the proper order by the court is to strike it out. This course of action removes the defective matter from the court register but leaves the door open for the litigant to cure the anomaly and institute the same matter afresh. (See Ngoni Matengo Co-operative Marking Union Ltd v. Osman [1959] E.A. 577). However, on the other hand, the legal position changes fundamentally when an application or appeal is caught by the configuration of the law of limitation hence the mandatory provisions of section 3(1) of the LLA. We must emphasize here that, under the mandatory terms of section 3(1) of the LLA, the proper remedy for a time- barred appeal or application is an outright dismissal. Obviously, such a dismissal was intended to ensure finality in litigation as it acts as a substantive judgment preventing the appellant or applicant from filing the same matter. (See the cases of East African Development Bank V. Blue Line Enterprises Ltd, Civil Appeal No. 101 of 2009 and Johnson Amir Garuma V. The Attorney General and Three Others, Civil Appeal No. 206 of 2018 [2023] TZCA 116 (15 March 2023)). Applying the above settled principles to the present case, it is certainly clear that, the proper course which the learned High Court Judge ought to have taken after finding that the initial application which was before him was time barred, was to dismiss it, leaving no window for the appellant to refile it as he did. It follows in our judgement that, the subsequent application before Itemba,J seeking yet again an extension of time, was barred by the doctrine of res judicata . Having found that the proper course for the learned High Court Judge to take in Miscellaneous Civil Application No.28 of 2023 was to dismiss and not strike it out, we proceed in terms of S.6(2) of the Appellate Jurisdiction Act Chapter 141 of the Revised Laws, to nullify the proceedings and quash the ruling of the High Court in Miscellaneous Civil Application No. 121 of 2023 the subject of this appeal. To avoid unnecessary litigation and ensure finality, we step into the shoes of the V High Court in Miscellaneous Civil Application No.28 of 2023 and vary the decision therein to the effect that, the application is dismissed for being time barred. Mindful that the above variation order does not mean the appellant's final defeat in the pursuit of his rights, we make this order without prejudice to the appellant's right of appeal. Each party shall bear their own costs. DATED at DODOMA this 29th day of May, 2026. L. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL Judgment delivered this 2n d day of June, 2026 via Virtual Court, in the presence of Appellant in person/unrepresented, Mr. Felician Daniel, learned State Attorney for the Respondents and Mr. John Banene, Court Clerk; is hereby certified as a true copy of the original. 8