Cosmas Mwaifwani vs Minister For Health, Community Development, Gender, Elderly And Children and Others (Civil Application No. 202507140001354 of 2025) [2026] TZCA 326 (19 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 202507140001354 OF 2025 COSMAS MWAIFWANI ........ . ...........................................................APPLICANT VERSUS THE MINISTER FOR HEALTH, COMMUNITY DEVELOPMENT, GENDER, THE ELDERLY AND CHILDREN ................................ 1 st RESPONDENT THE MEDICAL STORES DEPARTMENT BOARD OF TRUSTEES.............................................................2 n d RESPONDENT THE ATTORNEY GENERAL ...................................................... 3 rd RESPONDENT (Application for extension of time to file Review against the Judgment of the Court of Appeal of Tanzania) fNdika, J.A, Galeba. J.A and Mqeyekwa. J.A.:1 dated the 24th day of December, 2024 in Civil Appeal No. 446 of 2023 RULING 2@h February & 19" March, 2026 KITUSL J.A.: Cosmas Mwaifwani, the applicant, moves me to extend the time within which he may apply for a review of the decision of the Court in Civil Appeal No. 446 of 2023 (Ndika, Galeba and Mgeyekwa JJA), dated 24tn December, 2024. Briefly, in 2003, the applicant was employed by the Medical Stores Department, a creature of the statute within the Ministry of Health though an independent non - profit organisation. The Board of Trustees

of the Medical Stores Department, being a body corporate in respect pf the said Medical Stores Department, features as the second respondent in this matter. The applicant started off as Customer Service Manager in 2003, and by 2012 he had risen to the position of Acting Director General. However, in the year 2016 the applicant was implicated in matters that were later to affect his employment. It is that, on 15th February, 2016 the second respondent suspended the applicant from employment followed by disciplinary proceedings, that ultimately saw the applicant's employment being terminated on 8th July, 2016. The applicant challenged the termination through an application for prerogative orders vide Miscellaneous Application No. 58 of 2022 before the High Court but he lost. He preferred an appeal against the ruling of the High Court, Civil Appeal No. 446 of 2023 which was also decided against the applicant and it is this decision which the applicant intends to have reviewed, subject, of course, to time being extended. The application is supported by an affidavit of the applicant himself. Apart from narrating the background, the affidavit attempts to

account for the lapse of time from the delivery of the judgment in Civil Appeal No. 446 of 2023 to the date of filing this application. There are two sets of reasons advanced by the applicant. The main reason for the delay appears in what the applicant has averred from paragraph 8 to 13 of his affidavit. That is that after the decision of the Court in Civil Appeal No. 446 of 2023, the applicant opted to seek for an out of court intervention through the office of the Chief Secretary. However, that option did not work, for the reason that only the court had the power to vary its own decision. There is also an alleged illegality in the decision of the Court and it is argued that the applicant is, on that basis, entitled to an order of extension of time. The applicant has dedicated some paragraphs of the affidavit to this thread of argument, questioning the integrity of the disciplinary hearing that allegedly denied him the right to cross- examine witnesses. He argues that it was an illegality for the Court, in considering Civil Appeal No. 446 of 2023, to brush aside this aspect because denial of the right to cross- examine goes to one's right to a fair hearing. The applicant who prosecuted this application in person cited the case of 3

Michael Mabula Nzengula & Another v. Kahama Town Council & Others [2025] TZ CA 357, to support his argument. It has also been alleged that a senior officer from the second respondent wrongly participated in the disciplinary proceedings in violation of rules of natural justice that prohibit a person being a judge in his own cause. The point being pursued here is that since the second respondent was the author of the charges against the applicant, his participation in the disciplinary proceedings was wrong. The respondents were represented by Messrs Stanley Mahenge and Francis Wisdom, learned State Attorneys. In apposition, Mr. Mahenge submitted that the applicant has no one to blame for the delay but himself, because delay caused by a party seeking political solutions on a matter that is in court, is not good cause for extension of time. He cited the case of The Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman Bunju Village Government and 11 Others [2007] TZCA 249. I will first consider the delay that resulted from the applicant's bid to recruit the Chief Secretary's intervention. Part of paragraphs 8 of the

respondents' joint affidavit refers to the Chief Secretary's response to the applicant as hereunder: "...The Chief Secretary replied to the applicant that the matter was determined by the court so administrative measures cannot override the court's decision in furtherance o f rule o f law". In paragraph 13 of the applicant's affidavit it is acknowledged that the Chief Secretary would not interfere with the court's decision. I will be the last to disagree with the position that was taken by the Chief Secretary in cherishing the rule of law. Besides, limitation law being the merciless monster that it is, has no room for negotiations or communications that affect a party's timely institution of court proceedings. The cases of M/S P & O International Ltd. V. The Trustees of Tanzania National Parks (TANAPA) [2021] TZCA 248 and Scania Tanzania Limited v. Romanus J. Chumi & Another [2025] TZCA 832 are among many decisions on the point. Therefore, based on the foregoing reasons, it is my finding that the applicant has not accounted for the delay of a long span from 24th

December, 2024 when the decision sought to be reviewed was pronounced, to 16th July, 2025 when he filed this application. I shall now turn to the other ground alleging illegality. As alluded to earlier the applicant contends that the disciplinary proceedings were tainted by flaws that rendered those proceedings a nullity. The chief complaint relevant to this point is that the witnesses who testified against the applicant did so in his absence a fact that denied him the right to a fair hearing. Paragraph 3 of the applicant's affidavit raises this complaint in the following statement: - 'That in the High Court the claim was a violation o f the principle o f natural justice by the first and second respondents against which is the right to be heard in nature that the applicant did not avail with the right to attend and cross examine the witness in the disciplinary hearing but he was called to make a defence without knowing what was tendered in the disciplinary hearing". The applicant submitted further that the disciplinary committee was wrongly constituted with the second respondent, a complainant, being one of the members. And also, that the Medical Stores Department 6

Act was applied in determining the disciplinary proceedings instead of the Public Service Act. Those complaints were raised before the Court in Civil Appeal No 446 of 2023 and resolved. It was held that the participation of the first respondent was justified by the doctrine of necessity and that there was no misapplication of the law as alleged. Mr. Mahenge submitted that not every point of law constitutes an illegality rather it should be one of sufficient importance. He cited the case of Dar es Salaam Water and Sewerage Authority v. Didas Kameka & 19 Others [2023] TZCA 17485. It calls for my taking precaution that the scope of my instant ruling is limited to considering whether the issue raised is of sufficient importance such as to trigger my discretion in favour of extending time. In my view, the issue of the constitution of the Disciplinary Committee and the alleged possible bias goes to the rule of natural justice that no one should be a judge of his own cause. The Court dismissed the contention that the applicant was denied the right to cross examine the witnesses brought by the second respondent because it got satisfied that that complaint was raised belatedly as an afterthought.

In my view, the applicant's alleged denial of fair hearing is a point of sufficient importance which upon being established it may potentially render the decision reached a nullity In fine, and for the reason of illegality stated above, I grant this application and extend the time for the applicant to make an application for review within sixty (60) days from the date of the delivery of this ruling. I make no order for costs. DATED at DODOMA this 18th day of March, 2026. Ruling delivered this 19th day of March, 2026 in the presence of applicant in person, Mr. Stanley Mahenge, learned State Attorney for the respondents, via virtual Court and Mr. Issa Issa, Court Clerk is hereby certified as a true copy of the original. I. P. KITUSI JUSTICE OF APPEAL r \ . v v . \ - i IAUNGU y DEPUTY REGISTRAR COURT OF APPEAL 8