Henry Zephyrine Kitambwa vs President of the United Republic of Tanzania & Others (Civil Appeal No. 460 of 2022) [2025] TZCA 833 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LILA, 3.A., MASOUD. 3.A. And AGATHO. J J U CIVIL APPEAL NO. 460 OF 2022 HENRY ZEPHYRINE KITAMBWA ................................................. APPELLANT VERSUS THE PRESIDENT OF THE UNITED REPUBLIC OF TAN ZA N IA................................................... 1 st RESPONDENT THE ATTORNEY GENERAL....................................................2 nd RESPONDENT THE NATIONAL AUDIT OFFICE........................................... 3 rd RESPONDENT (Appeal from the Ruling of the High Court of Tanzania - Main Registry at Dar es Salaam) (De-Mello. J.1 dated the 19th day of December, 2019 in Miscellaneous Civil Application No. 33 of 2018 JUDGMENT OF THE COURT 21st July & 7th August 2025 AGATHO. 3.A.: The appellant, Henry Zephyrine Kitambwa preferred the present appeal challenging the High Court's ruling which dismissed his application for a prerogative order of certiorari to quash the decision of the 1st respondent, the President of the United Republic of Tanzania, dated 26th December 2016. The 1st respondent's decision blessed the i

Appellant's dismissal from public service by the 3rd Respondent, the National Audit Office (NAO), following allegations of embezzlement of T7S 123/330,000.00. The appellant raised eight grounds of appeal, asserting procedural irregularities, violation of natural justice, and errors of law in the dismissal process, rendering the decisions of the NAO, the Public Service Commission (PSC), and the President null and void. To appreciate the gist of the appeal at hand, we will sketch its background albeit briefly. The appellant, who prior to his dismissal was a Principal State Attorney Grade I, was employed by the Office of the 2n d respondent and seconded to the 3rd respondent as Head of the Legal Services Unit under section 16 (2) of the Office of the Attorney General (Discharge of Duties) Act, Cap. 268 [R.E. 2002], On 13th September 2016, the 3rd respondent issued a notice alleging that the Appellant fraudulently obtained TZS 123,330,000 between April and June 2014 for unperformed activities, including awareness campaigns and consultancy fees. On 17th October 2016, the 3rd respondent charged the appellant with three counts which are: 2

1. Em bezzling o fp u b lic funds TZS 123,333,000/- and spending them fo r persona! use instead o f o fficia l activities intended by the office contrary to the Code o f Ethics and Conduct fo r the Public Service as stipulated under Public Service Act, No. 8 o f2002, Regulation 42 (2003) first schedule Part A (14).
2. Failure to ensure that an im prest issued to him was used wholly and exclusively fo r the purpose fo r which it was issued contrary to Public Finance Act, (2001) as am ended (R.E 2004), Section 9 and Regulations 100 (1) (a) o f2001 regarding the use o f public funds; and
3. Violation o f public service ethics by failure to perfum e duties diligently and with a high degree o f discipline; use o f h is time, sk ills and expertise so as to attain the expected goals and thereby leading to assigned duties not to be com pleted within required tim e and standards contrary to regulation 65(1) (2003); Third Schedule section 11 (l)(v iii). The Appellant denied the charges, asserting that he neither received nor managed the funds, a claim supported by the NAO's Chief Accountant. He requested audit reports and payment records to prepare his defence, but they were not availed to him. 3

Moreover, the appellant claims that his disciplinary inquiry began on 6th January 2017 as per the summons issued for his attendance before the disciplinary committee which is 80 days after the charges were allegedly under police supervision, which the appellant found intimidating. On 20th February 2017, the 3rd respondent's Controller and Auditor General dismissed the appellant from employment. He appealed to the Public Service Commission (PSC) on 1st March 2017, raising nine grounds, but the PSC dismissed the appeal on 25th July 2017, addressing only one ground and without showing the 3rd respondent's representations, as required by regulation 61(3) of the Public Service Regulations, 2003. Still undeterred, the appellant appealed to the President (1st respondent) on 9th October 2017, but his appeal was dismissed on 26th December 2017, communicated to him by a letter dated 11th January 2018, which he received on 29th January 2018. In the decision the appeal was dismissed for being meritless. The Appellant sought for judicial review in the High Court, which was filed on 5th April 2018, citing violations of his constitutional right to a fair hearing under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977, and errors of law encompassing the issue 4

of time limitation. The High Court dismissed the application, finding that the 3rd respondent acted within its jurisdiction and complied with principles of natural justice. The appellant now appeals to this Court, contending that the High Court erred in upholding the dismissal process, raising eight grounds of appeal paraphrased as follows: One, that the NAO (3rd respondent) was not his disciplinary authority. Two, that the inquiry conducted against him was out of time, contrary to the law. Three, four, five, seven and eight that the appellant was denied his right to defend himself for failure to be given documents, charges and written representations against which he was convicted on. Six and lastly, that the trial court failed to grant reliefs sought in the application. At the hearing of appeal, the appellant was represented by Messrs. Mpaya Kamara, Abraham Senguji and Robert Rutaihwa learned advocates while Mr. Deodatus Nyoni, learned Principal State Attorney, Mr. Ayoub Sanga and Mr. Mathew Fuku both learned State Attorneys appeared for the respondents. We appreciate the submissions made by the learned counsel. We shall refer them where necessary. In determining the appeal and after scrutinizing the grounds of appeal and interrogating the record of appeal as well as considering the

submissions of the parties we think that beginning with the second ground of appeal on limitation of time may be ideal because if we find it to have merit it can dispose the entire appeal. We thus direct our attention to this ground first. The complaint in the second ground of appeal is that the inquiry on the termination of the appellant was conducted out of time rendering the whole proceedings before the 1st respondent null and void. In support, Mr. Rutaihwa contended that the inquiry commenced out of time, and what was extended was the completion of inquiry as per regulation 47(10) of the Public Service Regulations (PSR). He insisted that the commencement of the inquiry on 6th January 2017 was out of time. He added that the PSR is silent on a room for extension of time to commence the inquiry. He contended that anything done out of time implies jurisdiction is ousted. In reply Mr. Nyoni began with a preamble that when it comes to judicial review, the Court as held in Sanai Murumbe and Another v Muhere Chacha [1990] T.L.R. 54 should look on how the decision was reached, that is the fairness of the procedure. It is not about the conclusion. Turning to the second ground on time limitation, he conceded that the inquiry commenced out of time. He submitted that the appellant was given notice of a charge on 17/10/2016, hearing 6

commenced on 6th January 2017. He admitted that the inquiry was out of time for about 22 days. The sixty (60) days ended on 15/12/2016. The learned Principal State Attorney contended that as per Sanai Murumbe's case (supra) the issue is not on fairness of procedure but rather on substance. He sought refuge on rule 62(3) PSR of 2003 G.N. 168 of 2003 and regulation 62(4) PSR of 2022. According to him this rule cures the mischief in regulation 47 (10) PSR on extension of time to commence inquiry. He was of the view that any irregularity is curable. If there is any irregularity the cure is to order proceedings to commence de novo. Rejoining on the issue of time for commencement of inquiry, Mr. Rutaihwa submitted that time is of essence, that is why there is time limit for commencement of inquiry. He contended that regulation 62(3) PSR does not deal with time limitation. Therefore, regulation 47(10) on time limitation applies. As for the issue of rule 5 (1) of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) (Judicial Review and Procedure and Fees) Rules, 2014 G.N. No. 324 published on 5/9/2014., Mr. Rutaihwa submitted that the referred rule does not restrict the raising of new points of law in the main application for review. The issue of time limitation, authority of the disciplinary authority, fair hearing, and 7

jurisdiction are points of law. In the end he urged the Court to allow the appeal. Before delving into the crux of the second ground of appeal we are enjoined to say a word or two on raising the issue of time limitation, which as per the record of appeal at page 15 on grounds for seeking prerogative orders ( certiorari ), namely, error of law item (a) that the inquiry commenced beyond sixty days set by regulation 47(10) of the PSR. The record of appeal is also explicit on page 89 that the respondents denied the allegation of inquiry commencing out of time and stated that the 3rd respondent's decision was valid and within the prescribed time in accordance with relevant laws. Similarly, it featured in the appellant's written submissions on pages 114, 120- 122 of the record of appeal, found also in the respondents' joint written submissions at pages 129-130 of the record. That means the point was raised at the High Court and it was resolved in general terms that the respondents did not contravene any law. Therefore, the issue of time limitation was well placed before this Court. Having done so, we now proceed to examine the said ground, and while disposing it we shall consider regulation 62(3) of the PSR and determine its linkage if any with regulation 47(10) of the same Regulations. 8

As alluded to earlier, in the second ground of appeal, the appellant complained that the inquiry was conducted out of time. In respect of this ground, the appellant argued that the inquiry started after about 80 days after charges were served, contrary to regulation 47(10) of the PSR, which requires commencement of the inquiry to be within sixty days. The respondents argued that the rule does not provide for extension of time to commence inquiry because it is more concerned with determination of person's rights that are alleged to have been infringed. This aligns with Mr. Nyoni's argument that the concern is on the outcome of the decision not the procedure. That is why he referred us to Sanai Murumbe's case (supra) and regulation 62(3) PSR. Let us start with regulation 47(10), which provides: "Where the disciplinary authority has served a charge or charges to an accused public servant in accordance with the provisions o f regulation 44 o f these Regulations, the inquiry sh all commence not later than sixty days from the day the accused public servant was served with the charge or charged. There is no doubt the said law mandatorily stipulates that when a public servant is served with a charge the inquiry shall start not later 9

than 60 days after service of the charge. Going by the record of appeal, it reveals that the appellant was served with notice of formal disciplinary proceedings on 17th October 2016. That means by simple arithmetic 60 days would have lapsed on 16th December 2016. However, it appears the appellant was served with summons to appear before the disciplinary committee on 30th December 2016 notifying him to appear before it on 6th January 2017. It is worth to note that there was another letter written on 11th January 2017 by the disciplinary committee for extension of time for inquiry vide regulation 11 of the PSR claiming that the said inquiry started on 13th December 2016 and it was seeking extension to go beyond 13th January 2017, which is 30 days after the alleged starting date. The respondents agree that the inquiry commenced out of time, and the extension of time was for the completion of the inquiry because the law providing for commencement of inquiry does not provide for extension of time. From the above, we are of the considered view that the inquiry was conducted out of time. Moreover, the appellant was not notified when the inquiry was initiated. There is completely no evidence to show when the committee was appointed on any earlier date than 16th December 2016. Further, the notice of inquiry was communicated to the appellant vide the notification of a charge on 30th December 2016 10

when the 60 days' time limit set for commencement of the inquiry had lapsed. Worse still the day it wanted the appellant to appear before them was also out of time. Conversely, the only evidence showing that the inquiry started on 13th December 2016 is a letter for extension of time which was not communicated to the appellant. Even if that letter would have been sent to the appellant, it would not have the effect of extending the time of commencement of the inquiry. What can be concluded here is that the letter was for extension of time for completion of the inquiry and not for its commencement. As can be recalled, at the hearing the learned Principal State Attorney conceded that the inquiry was done out of time. In attempting to rescue the situation, he referred us to the Employment and Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 of 2007 that to our dismay does not deal with time limitation for commencing the inquiry. We thus hasten to dismiss his argument. In the end, it is our firm view that by commencing the inquiry out of prescribed time, the Disciplinary Committee contravened the law. We must emphasize here that the time limitation fixed by the law is neither for cosmetic purposes nor legal technicality. It goes to the jurisdiction of the court or quasi-judicial body. If the action was time barred, it li

implies that the quasi-judicial body such as the 3rd respondent acted without jurisdiction. We are fortified by a plethora of our decisions including Muse Zongori Kisere v. Richard Kisika Mugendi and Others [2022] TZCA 640. The law on time limitation aims at ensuring the rights of litigants are determined timely. In law, the consequence of doing anything out of time is rendering it a nullity for want of jurisdiction. That is our reading and reasoning by analogy of the case of NBC Limited & Another v. Bruno Vitus Swalo, [2021] TZCA 122. We firmly think that the 3rd respondent had no jurisdiction to commence an inquiry out of time prescribed by rule 47(10) of the PSR. It renders the whole process illegal as per Sanai Murumbe's case (supra). Since the 3rd respondent had no jurisdiction, everything that was done by her and by the others subsequently thereto are nullity. See also, Monica Alex vs. Serengeti District Council [2024] TZCA 283; CRDB Bank PLC vs. Lusekelo Mwakapala [2023] TZCA 17637 and Sarbjit Singh Bharya & Another vs. Nic Bank Tanzania Ltd & Another [2021] TZCA 212. Upon examining the record of appeal and the law, we note that an inquiry must commence before expiry of 60 days as provided for under the regulation 47 (10) of the PSR. This provision of the law is self- explanatory on the time limit as far as commencement of the inquiry is 12

concerned. Therefore, it goes without saying that given what is contained in the record of appeal especially the record of inquiry, the said inquiry could not commence beyond the time prescribed by the law. With profound respect to the learned Principal State Attorney for the respondents, it is illogical to argue that the irregularity, that is acting outside the time set by the law cannot vitiate the proceedings. The inquiry ought to have commenced within sixty days short of which amounts to violating the law. In the same spirit, cementing on time bar being sacrosanct, the Court in Backlays Bank Tanzania Limited v. Phylisiah Hussein Mchemi [2021] TZCA 202 inspired by a High Court decision in John Cornel v. A. Grevo (T) Limited, Civil Case No. 70 of 1998 (unreported) stated that: "...the Law o f lim itation on actions knows no sym pathy or equity. It is a m erciless sw ord that cuts across and deep into a ll those who get caught in its web". For the above reasons, we find the second ground of appeal to have merit. Since the second ground disposes of the appeal, it will be superfluous to examine other grounds of appeal.

In the circumstances, we find the appeal to have merit. We allow it and grant the order of certiorari. We nullify the entire proceedings of the disciplinary committee. Similarly, the proceedings before the first respondent and the High Court which emanated from the nullity proceedings are also a nullity and are quashed. The decisions ensued therefrom are set aside. The appellant's termination from employment cannot therefore stand. Consequently, we direct that he has if not attained his retirement age to be reinstated without loss of remuneration. Otherwise, he should be paid his remuneration from the date of the purported termination to the date of retirement and other retirement benefits according to law. We make no order as to costs. DATED at DAR ES SALAAM this 6th day of August, 2025. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 7th day of August, 2025 in the presence of Mr. Abraham Hamza Senguji, learned counsel for the Appellant and Mr. Sharif Sirry Abdallah, learned State Attorney for the Respondents; is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 14