Phinias Abamwesiga Kalokola vs Republic & Others (Civil Appeal No. 595 of 2023) [2026] TZCA 490 (6 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: MWANDAMBO. J.A.. KENTE, J.A. And MGONYA, 3.A.) CIVIL APPEAL NO. 595 OF 2023 PHINIAS ABAMWESIGA KALOKOLA APPELLANT VERSUS HIS EXCELLENCY THE PRESIDENT OF THE UNITED REPUBLIC OF TANZANIA 1 st RESPONDENT THE ATTORNEY GENERAL 2 nd RESPONDENT THE DISTRICT EXECUTIVE DIRECTOR OF BUKOMBE DISTRICT COUNCIL 3 rd RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) 28th April & 6th May, 2026 MWANDAMBO, J.A.: The appellant, Phinias Abamwesiga Kalokola, was aggrieved by the decision of the High Court (Manyanda, J) made on 29 July 2021 striking out Misc. Civil Application No. 6 of 2020 for judicial review. The High Court struck out that application at the instance of the respondents (Manvanda, J.) dated the 29th day of July, 2021 in Miscellaneous Civil Cause No. 6 of 2020 JUDGMENT OF THE COURT through two preliminary grounds in the notice of preliminary objections. It was contended that, the application was incompetent allegedly for joining H. E. the President in contravention of section 18A of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act (the Act) and, for want of leave to apply for judicial review. The appellant has appealed that decision upon seven grounds set out in the memorandum of appeal. However, at the hearing of the appeal, Mr. Mathias Mashauri, learned advocate prayed to abandon the 1st, 2nd, 3rd, 6th and 7th grounds. The above arose from the following background. The appellant was a public servant employed by Bukombe District Council 3rd respondent) until his dismissal on 17 May 2017 on disciplinary grounds. Pertinently, the 3rd respondent dismissed the appellant upon finding him guilty of disciplinary offences in connection with irregularities in the procurement of goods and services in his capacity as Head of Procurement Unit. The Public Service Commission to which the appellant preferred his appeal allowed ordering his reinstatement but at a lower rank of Supplies Officer Grade II. Dissatisfied, the 3rd respondent successfully appealed to the first respondent who vacated the decision of the Public Service Commission restoring the 3rd respondent's decision to dismiss him. 2 Subsequently, the appellant sought to challenge the first respondent's decision by judicial review. This he did, first by filing Miscellaneous Civil Cause No. 3 of 2019 for leave which was granted by consent on 4 June 2019. Armed with that leave, he filed Miscellaneous Civil Application No. 09 of 2019 ("the 1st application") for the substantive application for the prerogative orders of certiorari and mandamus. However, that application was found to be wanting in form and thus incompetent. Mdemu, J (as he then was), sustained the respondents' preliminary objection and struck it out in a ruling delivered on 4 October 2019. It is significant that, the striking out of Miscellaneous Civil Application No. 9 of 2019 did not bar the applicant from filing a fresh application subject to limitation set out under rule 5 of the Law Reform (Fatal Accidents and Miscellaneous provisions) (judicial Review and Fees) Rules, G.N. 324 of 2014 ("the Judicial Review Rules"). That rule prescribes 14 days for filing such an application reckoned from the date of the grant of leave. As time for doing so had already lapsed, the applicant successfully applied for extension of time in Miscellaneous Civil Application No. 159 of 2019. Having sought and obtained an order for extension of time, he subsequently filed Miscellaneous Civil Application No. 6 of 2020 from which this appeal has arisen. That application was 3 met by a preliminary objection on two grounds sustained by the High Court as alluded to earlier on. The learned High Court judge agreed with the respondents in the 1st ground that the appellant had wrongly joined the President in the application contrary to the dictates of section 18A of the Act rendering it incompetent. Besides, the learned Judge also found merit in the 2n d ground of objection. He took the view that, the leave granted to the appellant in Miscellaneous Civil Application No. 3 of 2019 had been utilized in Miscellaneous Civil Application No. 19 of 2019 and did not survive the striking out of that application. According to him, the order striking out of the application for judicial review rendered the leave struck out leaving nothing in court. In his view, if the applicant was minded to pursue his application for judicial review, he could only do so subject to seeking and obtaining a fresh leave. After abandoning the 1st, 2nd, 3rd, 6th and 7th grounds the appeal on the remaining grounds boils down to two issues, that is; one whether the joining of the 1st respondent to the application for judicial review along with the Attorney General contravened section 18A of the Act rendering it incompetent, and, two, whether the leave granted by the court in Misc. Civil Application No. 3 of 2019 was struck out along with Miscellaneous Civil Application No. 09 of 2019. 4 At the hearing of the appeal, Mr. Mashauri, learned advocate appeared for the appellant as he did before the High Court. On their part, the respondents were ably represented by Ms. Subira Mwandambo, learned Principal State Attorney assisted by Mr. Allen Mbuya, learned State Attorney. Earlier on, Mr. Mashauri had lodged written submissions the contents of which he stood by to the extent they relate to the remaining grounds with a few additional oral arguments to reinforce his stance but largely a repetition of the written submissions. He thus invited the Court to find merit in the appeal. The substance of the appellant's submission both written and oral in the first: issue was that, joining the President in the application for judicial review was quite in order. He justified that contention by the argument that, the President was joined in his capacity as a quasi judicial body and not in his official capacity as such. The Court's decision in V. G. Chavda v. Director Immigration Services & Others [1995] T.L.R. 125 was cited for the proposition that, civil proceedings do not include applications for prerogative orders. Addressing the Court in reply, Ms. Mwandambo argued, and rightly so in our view that, whether or not the application was for prerogative orders, it was caught up by section 18A of the Act which is too clear to be misunderstood. All the same, counsel conceded that the fact that the 5 Attorney General was joined along with the President, the application was not necessarily incompetent. With respect, although Mr. Mashauri was adamant in his stance on the necessity of joining the President, we agree with the learned Principal State Attorney that, the case cited to us by Mr. Mashauri is not helpful to the appellant in view of section 18A of the Act on the basis of which the High Court found the application incom petent for joining the President. Section 18A stipulates: "Notw ithstanding any provision to the contrary, ieave o f application fo r orders under section 18 o r any su it under th is A ct fo r any a ct o r om ission by President\ Vice President, Prim e M inister, Speaker, D eputy Speaker o r C h ief Ju stice sh a ll be sought o r brought against the Attorney G eneral." It is plain from the above that the distinction that Mr. Mashauri sought to persuade us between a suit and application for prerogative orders does not exist in the light of the clear provision of section 18A of the Act. Nevertheless, as rightly submitted by the learned Principal State Attorney, the joining of the President along with the necessary party; the Attorney General was, with respect, innocuous. It did not render the application incompetent warranting an order striking it out as the High Court did. In our view joining the President was simply a defect involving joinder of a wrong person who couid not have been joined by applying the provisions of Order I rule 10 (2) of the Civil Procedure Code ("the CPC") permitted by rule 17 of the Judicial review Rules. That rule provides for the practice and procedure applicable to the High Court resorted to for matters not provided for in the said Rules. One of such matter is the remedy in cases where, as it were a wrong party has been joined in the application. The defect could have been cured by striking out the first respondent which could have left the 2n d and 3rd respondents as necessary parties. In the upshot, the learned judge strayed into error in holding that the joinder of the President rendered the application incompetent. Instead, he couid have struck out the President and left the application intact with the remaining 2n d and 3rd respondents. We thus allow the 4th ground albeit for a different reason from what Mr. Mashauri canvassed in his submissions. Next on the issue whether the striking out of the first application for prerogative orders in the 1st application had the effect of striking out the leave granted in Misc. Civil Application No. 4 of 2019. Counsel locked horns on this. While Mr. Mashauri took the view that the leave granted by the court remained intact regardless of the order striking out the 1st application filed subsequently, Ms. Mwandambo relentlessly argued in support of the impugned decision that no more of it was left upon 7 striking out the first application. She argued that, no leave could have survived the order striking out the substantive application considering that it had already been utilized in that application. It was her further submission that, leave could not have survived indefinitely in the spirit of the public policy that, litigation must come to an end. She was reluctant to accept that the circumstances could have attracted invoking the overriding principle since there was a clear violation of the law; want of leave to apply for judicial review in the second application from which the appeal has emanated. In rebuttal, Mr. Mashauri reiterated that, the appellant could not have applied for another leave since the application was only struck out rather than being dismissed which rendered the court functus officio. We have dispassionately followed rival submissions on the issue but, we are, with settled that, unlike the learned judge, the order striking out of the first application did not extend to the leave in Misc. Civil Application No. 4 of 2019. We say so fully aware that, what was before the learned Judge in the first application was an application for judicial review in proceedings distinct from the previous application for leave. Consequently, the learned judge's conclusion that; "the strikin g out o f the application [M isc. C iv il Application No. 19 o f 2019] fo r ju d ic ia l review a/so rendered the leave struck out, nothing was le ft in C ourt...." was, s with tremendous respect, erroneous. Apparently, the learned judge cited no authority to support his conclusion. We have, on our own research not come across any such authority. The nearest we could get are decisions of the Court in relation to the striking out of which affect the notices of appeal appeals in civil matters. See for instance: Tanganyika Cheap Store vs National Insurance Corporation of Tanzania Limited [2005] TZCA 165. Be it as it may, that analogy cannot, in our view apply to applications like the instant one. We say so mindful that notices of appeal to the Court are initiated by litigants intending to appeal as opposed to leave to apply for judicial review applied for and granted by the court itself in separate proceedings. It follows thus that, contrary to Ms. Mwandambo's argument, the striking out of the application for judicial review cannot have any adverse consequence on the leave. On the contrary, the leave already granted can only be said to have been utilized had the substantive application been determined on merit resulting into its dismissal which is not the case in the instant appeal. As rightly argued by Mr. Mashauri, the argument supporting the impugned decision on the need for a fresh application for leave does not arise. Contrary to the learned judge's holding, that leave survived the 9 order striking out the previous application. We thus answer the second issue affirmatively. In the light of the foregoing, we find merit in the appeal and order that the name of the President be struck out from the proceedings and remit the record to the High Court for determination of the application according to law. We make no order as to costs. DATED at MWANZA this 5th day of May, 2026. Judgment delivered this 6th day of May, 2026 in the presence of Mr. Mathias Mashauri, learned counsel for the appellant, Ms. Subira Mwandambo, learned Principal State Attorney for the respondents and Mr. John Banene, Court Clerk; is hereby certified as a true copy of the original. L. J. S. MW ANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL