Chikira Laurence Jahari vs Higher Education Students' Loans Board & Others (Civil Appeal No. 39 of 2022) [2025] TZCA 998 (25 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. J.A.. KHAMIS. 3.A. And AGATHO, J.A.) CIVIL APPEAL NO. 39 OF 2022 CHIKIRA LAURENCE JAHARI . .......... . ...... . ................................APPELLANT VERSUS HIGHER EDUCATION STUDENTS' LOANS BOARD ................ 1 st RESPONDENT PUBLIC SERVICE COMMISSION . ....................................... 2 nd RESPONDENT THE CHIEF SECRETARY .............................. . ............... .....3 rd RESPONDENT THE ATTORNEY GENERAL .................................... . ............ 4 th RESPONDENT (Appeal from the decision of the High Court of Tanzania, Main Registry at Dar es Salaam) fMaaoioa, J.) dated the 17th day of December, 2020 in Miscellaneous Cause No. 53 of 2020 JUDGMENT OF THE COURT 14th March & 25th September, 2025 KHAMIS, J.A.: This appeal arises from the refusal by the High Court (Magoiga, J) to grant leave to the appellant to seek the prerogative orders of certiorari and mandamus under rule 5 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, G.N No. 324 of 2014 (the Judicial Review Rules). i

In order to grasp the context of this appeal, it is necessary that we set out the essential facts related to it. The details was employed by the first respondent as Senior Loans Disbursement Officer on 5th July, 2006. Three years later, he was promoted to the post of the Zonal Manager, Dodoma. On 1s t January, 2014 he was elevated to become the Assistant Director of Loans Allocation in the Loans Allocation and Disbursement Department. On 22n d August, 2016 the appellant was served with a notice of intention to institute disciplinary proceedings against him. According to the charge sheet, he was accused of failure to satisfactorily perform duties assigned to him as a public servant contrary to regulation 59 and Paragraph 8, Part A of the First Schedule to the Public Service Regulations, 2003 read together with Paragraph 9.10 (b) (xiii) and (xix) of the Higher Education Students Loans Board Staff Service Manual of 2016 as amended. The particulars of the offence showed, between 1st January 2014 to 2016 the appellant failed to coordinate review of criteria for granting loans such that TZS 2,254,675,000.00 was granted to 294 students from St. Joseph University of Tanzania (SJUITA) who did not meet the criteria for

the loan, an act which occasioned loss to the Government of the United Republic of Tanzania and the first respondent. The disciplinary hearing was conducted as scheduled but before the panel delivered its decision, the first respondent's board of directors nullified its proceedings, quashed the report and directed retrial before a different panel. The new panel was formed and the appellant charged afresh with three counts, namely: one, failure to perform satisfactorily duties assigned to him as a public servant contrary to regulation 42, Paragraph 8, Part A of the First Schedule to the Public Service Regulations, 2003, G.N No. 168 of 2003; two, negligence occasioning loss to the employer contrary to Paragraph 12, Part A of the First Schedule to the Public Service Regulations; and three, gross negligence in the performance of duty contrary to Paragraph 13, Part A of the First Schedule to the Public Service Regulations. Upon hearing, the appellant was found guilty of the first and third counts. Accordingly, he was terminated from employment on 12th June, 2018. Aggrieved by the termination, the appellant unsuccessfully appealed to the second respondent. In terms of regulation 42 (1) of the

Public Service Regulations, the second respondent dismissed the appeal and substituted the termination with dismissal from employment. Still aggrieved, the appellant appealed to the President of the United Republic of Tanzania. On 11th September, 2019 the President, exercising his powers under section 25 (1) of the Public Service Act and regulation 60 (5) of the Public Service Regulations, dismissed the appeal upon satisfaction that the appellant's dismissal was lawful. Undeterred, the appellant preferred an application for the prerogative orders of certiorari to quash the decision of the President. He also sought an order of mandamus directing the respondents to reinstate him in his employment. The application was preferred by way of chamber summons supported by the applicant's own affidavit. The chamber summons was made under section 2 (1) and (3) of the Judicature and Application of Laws Act, Cap 358 (the JALA), section 17 (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310 (the Fatal Accidents Act) and rule 5 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, G.N No. 324 of 2014 (the Judicial Review Rules). In response to the application, the respondents filed a counter affidavit deposed by Abdallah M. Mtibora, the Director of Legal Affairs of

the first respondent. He deposed that, the appellant was fairly terminated from employment in accordance with the applicable legal procedures. That, the appellant issued loans to 594 students of SJUIT who were neither form six leavers nor holders of diplomas contrary to clause 2.6 of the Guidelines and Criteria for Issuance of Students Loans and Grants 2014/15. Upon hearing the parties, the learned trial Judge dismissed the application for lack of merits and addressed the issue on whether the appellant had an arguable case to justify the filing of an application for the prerogative orders, thus: "...With due respect to the applicant, having quickly gone through the record attached to this application by the applicant, I noted that the issue o f clause 2.6 was not among the clauses raised, argued, considered and determined by the first respondent in its findings. Nevertheless, the issue o f clause 2.6 o f the Guidelines was raised at an appealstage by the applicanthimseifand misleads the second respondent that it was among the issues considered and determined by the first respondent The applicants written defence filed in reply to the charges will borne me on this point very dearly.

In the circumstances therefore, the applicant was bound by his pieadings or defence and raising an issue that was not subject o f the first respondent's findings was wrong and cannot be a ground envisaged forjudiciai review." In the same wave length, the Judge tackled the alleged first respondent's refusal to supply the appellant with an investigation report in order to mount a sound defense at the disciplinary hearing. On analysis of the application and the counsel rival arguments, the Judge ruled that, the allegation regarding breach of the principles of natural justice was unfounded. In winding up, he established that, the appellant failed to raise an arguable case for judicial review. Resentful, the appellant complained that such findings amounted to predetermination of a substantive application for judicial review which was yet to be filed. As such, he fronted three grounds of appeal geared to fault the learned trial Judge for; one, holding that clause 2.6 of the Guidelines and Criteria for Issuance of the Students' Loans and Grants for the year 2014/15 was not raised, argued and considered by the first respondent; two, improperly placing on the appellant the burden on failure to produce the investigation report which was the basis of the offences facing him;

and three, holding that the appellant did not present sufficient reasons warranting the grant of the application for leave to seek judicial review. At the hearing of this appeal Ms. Nsangizyo Zilahulula and Mr. Victor Kikwasi, learned advocates, jointly appeared for the appellant, while Ms. Jacqueline Kinyasi, learned State Attorney, acted for the respondents. At the outset, Ms. Kinyasi rose to inform the Court that, the respondents concede to the third ground of appeal as the trial Judge considered irrelevant matters at the stage of determining an application for leave to seek the prerogative orders. She drew our attention at page 13 of the record of appeal and submitted that, it was improper for the learned Judge to dwell on the investigation report which was at the center of the dispute that was yet to be filed. The learned State Attorney cited the case of Emma Bayo v. the Minister for Labour and Youth Development & 2 Others [2013] TZCA 190 for the proposition that, at the stage of leave the High Court is required to consider the preliminary matters necessary for the exercise of its discretion either to grant or refuse the application for leave to seek prerogative orders, namely: one, that the applicant has made out an arguable case to justify the filing of the main application; two, whether the application was lodged within six months of the administrative action

and three, that the application has shown sufficient interest to be allowed to bring the main application. For further emphasis, she cited the case of Hamis Babu Bally v. the Judicial Officers Ethics Committee & 3 Others [2024] TZCA 1010 where the Court held that, at the stage of leave to seek the prerogative orders, the applicant is required to merely raise arguable points and not to prove the errors he alleges. When given the floor to address the Court, Ms. Zilahulula relied on the respondents' concession regarding the third ground of appeal to move the Court to allow the appeal and remit the record to the High Court for proper determination before a different Judge. We have considered the appeal in its entirety. The issue that requires our determination is whether the High Court properly dismissed the application for leave to seek the prerogative orders. The learned State Attorney referred us to the cases of Emma Bayo and Hamis Babu Bally (supra). Indeed, these decisions laid down the principles for consideration of an application for leave to seek the prerogative orders. Judicial review is the process by which the High Court examines the lawfulness of the administrative actions and decisions to 8

ensure they comply with the law and the Constitution. It involves two stage proceedings: application for leave and then substantive application for the reliefs sought, using grounds like illegality, irrationality, and procedural impropriety. In the case of F3329 CPL Buberwa Leonard Magayane & Another v. Minister for Home Affairs & Others [2023] TZCA 17399, we restated the law that: "an application for leave is a necessary step to an application for prerogative orders because the purpose o f leave stage is to give the court an indication if the applicant has sufficient interest or has established a prima facie case to warrant the grant o f leave to apply the prerogative orders..." In Hamis Babu Bally (supra) the Court addressed an allegation that in determining the application for leave to apply for prerogative orders, the High Court went astray to determine the intended main application for judicial review and termed it as a fatal irregularity. Upon examination of the record at hand, we noted that, the learned Judge at first appreciated the law governing the granting of leave for judicial review and correctly cited rule 5 (1) of the Judicial Review Procedure Rules and the case of Emma Bayo (supra). He also cited the

Kenyan case of Republic v. Council of Kwale & Another, Exparte Kondo & 57 Others, Misc. Application No. 384 of 1996. The Judge appreciated that, an application for leave to seek the prerogative orders was a screening process through which a number of factors were to be considered but without going into the details of the substantive application. However, in an unexpected twist, he ransacked into an analysis of the two grounds intended to be relied upon in the application for judicial review as listed down in the supporting affidavit. In so doing, the learned Judge set on resolving whether the respondents acted judiciously in terminating the appellant from employment and to that end, concluded that, the assertion was devoid of merits. Further, the Judge resolved the issue whether the appellant was denied the right to be heard on account of the respondent's alleged refusal to supply him with copy of the investigation report. We note that leave is granted at the court's discretion, not as a matter of course. The purpose of this procedural step which allows the applicant to demonstrate to the Judge that his case has sufficient merit to be heard, is to filter out frivolous claims and save the precious time of the court and the parties' resources. By preventing cases that lack legal 10

basis from proceeding to a full hearing the court ensures that only legitimate claims are given the weight of full judicial review. According to the Halsbury's Laws of England, 4th Edition, Volume 1 (1) at page 276, the test applied in an application for leave to seek the prerogative orders is whether on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting the relief sought by the applicant. To determine an arguable case, the applicant must show a plausible legal ground to challenge the administrative decision, the facts presented supports the claim, the application was filed within the prescribed time, and the applicant has sufficient interest in the matter. In the present matter, the learned trial Judge plumbed into the merits of the substantive application, and made findings on the matter that was not yet filed and heard by the court. In so doing, he overstepped by making a definitive ruling at the leave stage. For the reasons stated, we allow the appeal, set aside the impugned ruling and drawn order of the High Court dated 17th December, 2020. We remit the record to the High Court for fresh determination of the

application before a different Judge. In the circumstances, each party shall bear own costs. It is so ordered. DATED at DODOMA this 24th day of September, 2025. B. M. A. SEHEL JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The Judgment delivered this 25th day of September, 2025 in the presence of Mr. John James, learned counsel for the Appellant and Ms. Jennifer Kaaya, learned Senior State Attorney for the Respondents via virtual link from Dar es Salaam and Ms. Regina Komba, Court Clerk; is hereby certified as a true copy of the original. 12