IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM SUB-REGISTRY

AT DAR ES SALAAM

MISCELLANEOUS CAUSE NO. 17245 OF 2024

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW FOR ORDERS

OF CERTIORARI AND PROHIBITION

IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS AND

MISCELLANEOUS PROVISIONS) ACT, [ CAP. 310 R.E. 2019];

IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS AND

MISCELLANEOUS PROVISIONS) (JUDICIAL REVIEW PROCEDURE AND FEES)

RULES GN. NO 324 OF 2014;

IN THE MATTER OF THE DISQUALIFICATION OF ADVOCATE BONIFACE

ANYISILE KAJUNJUMELE MWABUKUSI TO VIE FOR THE POSITION OF THE

PRESIDENT OF THE TANGANYIKA LAW SOCIETY IN ITS GENERAL ELECTION

TO BE HELD BETWEEN THE 1st AND 3rd AUGUST, 2024.

AND

IN THE MATTER OF REGULATION 50 (4) THE TANGANYIKA LAW SOCIETY

(ELECTIONS) REGULATIONS OF 2022 (GN.NO. 598 OF 2022) CONTESTING
THE DECISION OF THE ELECTORAL APPEALS COMMITTEE OF THE
TANGANYIKA LAW SOCIETY MADE ON 5th OF JULY 2024 TO DISQUALIFY
ADVOCATE BONIFACE ANYISILE KAJUNJUMELE MWABUKUSI FROM VYING
FOR THE POSITION OF THE PRESIDENT OF THE TANGANYIKA LAW SOCIETY

BETWEEN

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BONIFACE ANYISILE KAJUNJUMELE MWABUKUSI APPLICANT

AND

TANGANYIKA LAW SOCIETY...................................................RESPONDENT

RULING

Date o flast order: 22/07/2024

Date o fRuling: 26/07/2024

B.K. PHILLIP, 3

Aggrieved by the decision of the Electoral Appeals Committee of the

Tanganyika Law Society, the applicant herein lodged this application under
the provisions of Section 2 (3) of the Judicature and Application of Laws Act
( Cap. 358 R.E 2022), Section 17 (2) of the Law Reform ( Fatal Accidents
and Miscellaneous Provisions) Act ( Cap. 310, R.E 2019) and Rules 8 (1) (a)
(b) of the Law Reform ( Fatal Accidents and Miscellaneous Provisions)
Judicial Review and Fees) Rules, 2014, Government Notice Number 324 of
2014. The applicant's prayers are reproduced verbatim hereunder;

i. This honorable Court be pleased to grant to the applicant an order

of certiorari against the decision of the Electoral Appeals Committee
of the Respondent dated 5th July 2024 to disqualify the applicant
from contesting the post of President of Tanganyika Law Society in
its general Elections to be held between 1st and 3rdof August, 2024.

ii. This Honorable Court be pleased to grant to the Applicant an order

of prohibition against the Respondent from conducting Presidential
General Elections scheduled between 1st and 3rd August 2024.

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 iii. This honorable Court be pleased to grant a stay order to suspend
the presidential election of the Tanganyika Law Society scheduled
between the 1st and 3rd of August, 2024 or any subsequent date
thereto including election processes and election sub-processes
thereof pending final determination or disposal of substantive
judicial review application;

iv. That the Court be pleased to make any other orders and reliefs as
it deems just and fit.

The application is supported by an affidavit sworn by the applicant, Mr.

Boniface Anyisile Kajunjumele Mwambukusi together with his statement in
which he stated the grounds for this application, to wit;

i. The Respondent's Electoral Appeals Committee acted in excess of

its powers by assuming powers to correct the decision of the
Electoral Committee on the reason that it was tainted with illegality
despite not being vested with such powers.
ii. Although the jurisdiction of the Electoral Appeals Committee was
only limited to either dismissing appeal No.4 of 2024 or rescinding
the vetting process and election objections process through which
the applicant was declared eligible to contest the post of the
President of the Tanganyika Law Society by the Electoral Committee
and consequently to order such vetting Process and election
objection process to commence a fresh, the Electoral Appeals
Committee disqualified the applicant from contesting the said post

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 of President of Tanganyika Law Society without jurisdiction to do
so.
iii. The Respondent's Electoral Appeal Committee acted in excess of
its jurisdiction by raising new issues suo motto in the course of
composing its judgment.

iv. The Respondent's Electoral Appeals Committee acted improperly

and in total violation of principles of natural justice in failing to invite
the applicant to address the issue of illegality which was raised by
the committee suo moto thereby prejudicing the applicant his right
to be heard by disqualifying him from contesting in the presidential
election of the Tanganyika Law Society scheduled between 1st and
3rd August 2024.

v. The respondent's Electoral Appels Committee abrogated the

principles of natural justice in acting both as a complainant,
prosecutor, Judge and executor in the determination of the appeal.
The Respondent's Electoral Appeals Committee ruled out that
Baltazary Bosco Mahai, the appellant had no locus standiand thus
his appeal was incompetent yet proceeded to hear and determine
the appeal on merits on the ground that the decision of Electoral
Committee was tainted with illegality without giving the applicant
who stood to be prejudiced in the circumstances, the right to be
heard.

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vi. Despite admitting that one Bartazary Bosco Mahai who was an
appellant before the committee had no locus standi, the
Respondent's Electoral Appeals Committee went on determining the
merits of the appeal which was both unreasonable, irrational and
improper.

vii. By disqualifying the applicant, the respondent's Electoral Appeals

Committee punished the applicant twice in the same matter.lt was
unreasonable to punish the applicant for the offence for which he
had already served the sentence of warning.

viii. It was unreasonable to punish the applicant on account of the

decision of the National Advocates Committee which did not provide
for such punishment.

ix. It was unreasonable for the Respondent's Electoral Appeals

Committee to assume that the conviction for professional
misconduct has indefinite consequences against the right of the
applicant to participate in the affairs of his society by being elected
in elective posts.

x. It was unreasonable for Respondent's Electoral Appeals Committee

to disqualify the applicant on the ground that he is not of good
moral and ethical standing, while he was not, convicted and warned
for that offence by National Advocate Committee.

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 xi. It was unreasonable for the Respondent's Electoral Committee to
find out that the Applicant is not of good moral and ethical standing
while he was warned and continued with practice as he was neither
suspended nor removed from the Roll of Advocates.

The above grounds can conveniently be summarized into three broad

grounds, to wit;

i) The Respondent's Electoral Appeals Committee acted beyond its

power, thus its decision is ultra vires.

ii) The decision of the Respondent's Electoral Appeal Committee was

made in violation of the principles of natural justice.

iii) The decision of the Respondent's Electoral Appeals Committee is

unreasonable and irrational.

The respondent's Executive Director, Mariam Othman filed a reply to the

applicant's statement and a counter affidavit in which she just noted the
contents of the applicant's statement and affidavit in support of this
application.

For a better understanding of the coming discussion, a brief background of

this application is important. The applicant herein is an Advocate of the High
Court of Tanzania and subordinate Courts thereto, Commissioner for Oaths
and Notary Public with a valid Certificate to Practice as an advocate,
Commissioner for Oaths and Notary Public for the year 2024, and the
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respondent's member. The respondent is the National Bar Association for
Tanzania Mainland. On the 12th of June 2024, the Tanganyika Law Society
("TLS") issued a notice of the 2024 Annual General Conference, General
Meeting, and the Annual General Meeting of the TLS. The said Notice
stipulates that the agenda for the General Meeting includes among others
the general elections of the TLS for the following positions;

i) President.

ii) Vice president.

iii) Honorary treasurer.

iv) Representatives in the Council for Legal Education.

v) Trustees of the Wakili Trust.

vi) Trustee of the AWTF ( formerly DATF).

Before the issuance of the Notice for the General meeting, on 8th May 2024,
the Electoral Committee of TLS issued a call for nomination of candidates
for the coming election. The applicant was among the candidates who
registered their interests to vie for the position of president of the TLS. The
period for nomination ended on June 2024 and thereafter the Electoral
Committee met for the vetting process. The applicant was among the
members vetted to contest for the position of the President of the TLS. Upon
pronouncement of the nominated candidates for the position of the President
of the TLS, the learned Advocate Baltazari Bosco Mahai objected to the
nomination of the applicant before the Electoral Committee on the ground
that he does not qualify to contest for the position of the president of TLS
because he is not an Advocate of " good moral and ethical standing" as
required in Regulation 13 (c) of the TLS ( Election) Regulations GN.No. 598
of 2022, ( hereinafter referred to as "GN.No. 598 of 2022). To support his
objection, Mr. Mahai advanced some reasons among them are; that the
applicant was found guilty of professional misconduct and warned by the
National Advocates' Committee, in Application No.10 of 2023, between the
Attorney General and the applicant and is an active member of a political
party.

Mr. Mahai's objection was heard on merit and the Electoral Committee
dismissed it. It ruled out that the applicant was eligible for the presidential
election. The fact that he was found guilty of professional misconduct by
the National Advocates Committee cannot be a ground to disqualify him
from contesting in the TLS presidential election. Undaunted, Mr. Mahai
lodged his appeal to the TLS Electoral Appeals Committee. Upon being
served with the appeal, the advocate for the applicant raised a Point of
Preliminary objection that the appeal was incompetent on the ground that
the appellant, Mr. Mahai had no right to appeal against the decision of the
Electoral Committee, in terms of Regulation 50 (1) of GN.No. 598 of 2022.
Upon hearing the parties, the Electoral Appeals Committee upheld the Point
of Preliminary Objection that the appeal was incompetent. However, it
proceeded to deal with the determination of what it called the "Illegality" in
the decision of the Electoral Committee. Consequently, it set aside the
decision of the Electoral Committee and ruled out that the appellant does
not qualify to contest for the position of president in the coming General
Election of the TLS. The details of the decision of the Electoral Appeal
Committee are the subject of determination in this Ruling.The same shall
be put into light in the course of the determination of this application.

Following the decision of the Electoral Appeals Committee aforesaid, the

applicant lodged in this court an application for leave to file an application
for Judicial Review for order of certiorari against the decision of the
respondent's Electoral Appeals Committee dated 5th of July 2024 and
prohibition against the respondent from conducting presidential General
Elections scheduled between 1st and 3rd August 2024, vide Miscellaneous
Application No. 16500 of 2024. On 17th July 2024 this Court
(Hon.Maghimbi,J) granted the applicant the orders sought aforestated
which paved a way for the applicant to file the application at hand.

Back to the application at hand, at the hearing of this application, the learned

Advocates Mpale Mpoki, Jebra Kambole, Edson Kilatu, Ferdinand Makore,

John Nyange, Reginald Shirima, Jacob Katundu Mwambasi, Frederick Msaki,

Victor Ndumbaro, Deogratias Cosmas Mahinyila, Michael Mwangasa, Aziza

Msangi, Faraji Mangula, Paul Kaunda, Frank Chundu, Sikujua Clement,

Happiness Michael and John Seka appeared for the applicant. The learned

Advocate Steven Mwakibolwa and Hekima Mwasipu appeared for the

respondent.

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The application was heard viva voce. Five advocates addressed this court.Mr.

Mpale Mpoki, lead counsel for the team of advocates for the applicants was

the first one to address this court on the merit of the application. He started

his submission by adopting the contents of the applicant's statement and

affidavit in support of this application. He went on to submit as follows; This

is an application for Judicial Review the purpose of which is to check whether

the quasi-judicial body acted within the scope of the power granted by

statute. He contended that on the 5th of July 2024, the Electoral Appeals

Committee of the TLS made a decision over its power / without jurisdiction

as outlined in GN No.598 of 2022 and while exercising those powers it acted

irrationally and unreasonable, as well as violated the principles of natural

justice. Expounding on the violation of the principles of natural justice, Mr.

Mpoki pointed out that the applicant was not accorded his right to be heard.

The matter that was brought before the Electoral Appeals Committee was

an appeal, but the Electoral Appeals Committee raised suo motto matters

that were not raised in the appeal and proceeded to entertain them while

they were not part of the appeal. He contended that the Electoral Appeals

Committee transformed itself into a revisional body. It did not accord the

parties the opportunity to be heard whereas justice demands that if at all

the Electoral Appeals Committee had the revisional power, which he insisted

that it had no such powers, it was supposed to accord the parties their right

to be heard, but it did not do so. Mr. Mpoki contended that the overall effect

of what was done by the TLS Electoral Appeal Committee was that the

committee was the complainant, the prosecutor, and a decision maker

because it proceeded to determine the point it raised itself under the

purported revisional powers. TLS Electoral Appeals Committee clothed itself

with the revisional powers that it did not have and ended up disqualifying

the applicant.

Mr. Mpoki pointed out that there are numerous authorities to the effect that

any decision that violates the rules of natural justice is null. To cement his

arguments he cited the case of Lugwisha s/o Ngwinamila Vrs James

s/o Lugwisha Civil Appeal No.195 of 2019, ( (unreported), Elias

Kamonyo Vs Jasson kasaizi and 2 others, Misc. Land Appeal No. 39

of 2021 and John Robert Maitland Vs The Republic, Criminal Appeal

No. 179 of 2011. He was emphatic that the appellate Electoral Appeals

Committee grossly violated the applicant's right to be heard, thus its decision

is a nullity. He implored this court to make a finding that there was a breach

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of the principles of natural justice and invoke its powers of judicial review to

quash the decision of the Electoral Appeals Committee.

The learned Advocate Jebra Kambole submitted that the respondent's

Electoral Appeals Committee had no power to disqualify the applicant from

vying for the presidential position. He contended that under Regulation

50(4) of the GN. No. 598 of 2022 the Electoral Appeals Committee has

powers to either dismiss the appeal before it or rescind the election process

and commence the process afresh. Not more than that. He insisted that if

the Electoral Appeal Committee found any fault in the decision of the

Electoral Committee, then it had the power to rescind the election process

not otherwise. Mr. Kambole went on to submit that the Electoral Appeals

Committee did not have revisional powers. Revisional powers are creatures

of the statute. No statute confers revisional powers to the TLS Electoral

Appeals Committee, contended Mr. Kambole.

Further, Mr. Kambole argued that the Electoral Appeal Committee made a

finding that the appeal was incompetent and it struck it out. Thus, it had

nothing on its table for determination. He faulted the- Electoral Appeals

Committee for transforming itself into a revisional body relying on the case

of Chama cha Walimu Vs Attorney General Civil Appl No.151 of

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2008, (unreported) in which the Court of Appeal after striking out the

appeal before it, relied on section 4 ( 3) of the Appellate Jurisdiction Act

which conferred revisional powers to proceed with the determination of the

illegality found in the impugned decision. Mr. Kambole argued that the

Electoral Appeals Committee misapplied the principle established in the case

of Chama Cha Walimu ( supra) since no statute confers revisional powers

to it. In the impugned decision the Electoral Appeals Committee did not cite

any provision of the law which it relied on to exercise the revisional power it

clothed itself. He was emphatic that once a Tribunal always a Tribunal,

nothing more. The Electoral Appeals Committee erred in transforming itself

into a court of law and did not have inherent powers conferred to the Courts

of law by law.

Furthermore, Mr. Kambole argued that the Electoral Appeals Committee

did not have jurisdiction to raise legal issues suo motto and determine the

same without giving the applicant the opportunity to be heard. Expounding

on the powers of the Electoral Appeals Committee, Mr. Kambole argued that

the Electoral Appeals Committee had no jurisdiction to exercise revisional

powers. He pointed out that lack of jurisdiction is among the reasons for

Judicial Review. To cement his arguments he cited the case of Sanai

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Mulumbe and Another Vrs Muhele Chacha (1990) TLR 54. He

beseeched this court to find that the decision of the respondent's Electoral

Appeals Committee dated 5th July 2024 is ultra vires and illegal.

The learned Advocate Edson Kilatu submitted on the grounds of

unreasonableness and irrationality. His submission was to the effect that

despite making a finding that Mr. Mahia, the appellant had no locus standi

and the appeal was incompetent in terms of Regulation 50 (4) of the TLS

regulation GN. No. 598/2022, the Electoral Appeals Committee went on to

entertain the appeal. Mr Kilatu contented, as a matter of logic, that it was

irrational and unreasonable for the Electoral Appeals Committee to proceed

with the determination of that appeal. What was done by the Electoral

Appeals Committee, did not meet any of the purposes governing the TLS

elections. He referred this court to the case of E933 Coplo Philmatus

Fredrick Vs the IGP and another, Misc Civil Cause No. 3 of 2019, to

fortify his arguments.

Further, Mr. Kilatu argued that the Electoral Appeals Committee erred in law

and fact to disqualify the applicant on the ground that he was found guilty

of professional misconduct and was warned by the National Advocates

Committee because that amounted to punishing the applicant twice on the

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same charge he had already been punished by the National Advocates

Committee. He maintained that the Electoral Appeals Committee acted

unreasonably since the applicant was given a warning, which was a

punishment. It was not expected the same offence to resurrect during the

election process of the TLS. Mr. Kilatu insisted that if the stance held by the

Electoral Appeals Committee of the TLS is something to go by, then, it means

the applicant will be barred from exercising his rights of being elected in the

society in which he is a member indefinitely. He maintained that such kind

of jurisprudence is unjust and arbitrary, and in any case, it was not the

purpose of the statutes or the laws governing the membership in the TLS.

The decision of the Electoral Appeals Committee did not meet the test of

reasonableness required in the exercise of the powers of any quasi-judicial

body.

On his part, the learned Advocate Ferdinand Makore, faulted the decisions

of the TLS Electoral Appeals Committee for being based on the decision of

the National Advocates Committee in which the applicant was found guilty

of professional misconduct. He argued that the National Advocates

Committee imposed a warning sentence on the applicant which had already

been served by the applicant. The matter before the Electoral Appeals

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Committee did not touch the professional misconduct of the applicant. The

Electoral Appeals Committee was dealing with moral and ethical standing

in terms of Regulation 13 of GN No. 589/2022. He contended that it was

unreasonable for the Electoral Appeals Committee to invoke its powers

relying on conditions not provided in section 13 of Regulations GN.No.598

of 2022. He insisted that Regulation 13 deals with moral and ethical standing

and does not deal with professional misconduct. Before the Advocates

Committee, the applicant was not charged with a lack of good moral

standing. The Electoral Appeals Committee dealt with matters of

professional misconduct which were not before it. It acted on extraneous

matters which were not before it. Mr. Makore implored this court to find that

the impugned decision was irrational and unreasonable.

The learned Advocate Aziza Msangi was the last advocate to address the

court. She referred this court to the submissions made by her colleagues.

She beseeched this court to grant an order of certiorari sought in this

application against the decision of the TLS Electoral Appeals Committee

which disqualified the applicant from participating in the coming TLS

presidential election.

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Further, she informed this court that they have abandoned the second and

third prayers for prohibition and the stay of the presidential election of the

TLS respectively as the respondent has conceded this application. Moreover,

she pointed out that this application is of extreme urgency since the

respondent is set to conduct its General Election between the 1st and 3rd of

August 2024, thus expeditious determination of this application will serve the

interests of justice. In conclusion of her submission, Ms. Aziza informed this

court that the applicant does not pray for costs since the respondent has

conceded to this application.

Upon being called upon to address the court, the learned Advocate

Mwakibolwa informed this court the respondent does not object to the

prayers made by the applicant. He implored this court to determine this

application as it deems fit.

Before embarking on the determination of the merit of this application, it is

worth noting that this application is not contested. As alluded to earlier at

the beginning of the Ruling, the statement in reply and counter affidavit filed

by the respondent does not challenge in any way the applicant's allegations
in this application. Similarly, Mr. Mwakibolwa did not make any argument

before this court to oppose this application. Therefore, in this Ruling I will

only examine the arguments raised by the applicant's advocates in support

of the 1st prayer for certiorari. The 2nd and 3rd prayers are hereby marked

as abandoned as prayed by Ms. Msangi.

Having dispassionately analyzed the submissions made by the applicant's

advocates, let me proceed with the determination of the merit of this

application. Starting with the first ground on the powers/jurisdiction of the

Electoral Appeals Committee, I think a good starting point is to look at the

law establishing the TLS Electoral Appeals Committee whose decision is the

subject of this Ruling. The Electoral Appeals Committee of the TLS is

established under the provisions of Regulation 6(1) of GN.No. 598 of 2022.

The functions of the Electoral Appeals Committee are provided in Regulation

8 of GN.No.598/2022. The same reads as follows;

"Regulation8(1) TheElectoralAppeals Committeeshallhearanddetermineappealsfrom

the decision of the Electoral Committee.

(2) The Electoral Committee shall make its decision before the next

electoralprocess. Starting with the firstground for this application1

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I have perused the impugned decision, the same reveals that upon hearing

the point of preliminary objection on the incompetency of the appeal in terms

of Regulation 50 (1) of GN.No.598/2022, raised by the applicant's Advocates,

the Electoral Appeals Committee made a finding that the appeal was

incompetent, thus upheld the point of preliminary objection. However,

relying on the decision of the Court of Appeal in the case of Chama cha

Walimu (supra) and Mathias Eusebia Soka Vs. the Registered

Trustee of Mama Clementina Foundation and two others, Civil

Appeal No. 40 of 2001 (unreported), the Electoral Appeals Committee

proceeded to determine the illegality/ legality of the decision of the Electoral

Committee on the reason that the decision of the Electoral Committee was

tainted with illegality since the Electoral Committee failed to take into

consideration the fact that the six conditions for an advocate to qualify to

participate in an election process provided in Regulation 13 of GN.No.

598/2022 should all co-exist. So, the Electoral Appeals Committee was of

the view that it was necessary to overturn the decision of the Electoral

Committee to get rid of the illegality embodied in that decision.

Consequently, the Electoral Appeals Committee disqualified the applicant

from participating in the coming TLS election because he was found guilty
of professional misconduct and warned by the National Advocate Committee,

thus did not meet the conditions stipulated in Regulation 13 (c) of GN.No.

598/2022. The pertinent question here is; whether or not the Electoral

Appeals Committee had powers to determine the legality/ illegality of the

decision of the Electoral Committee after making a finding that the appeal

before it was incompetent. The powers of the Electoral Appeals Committee

are provided in Regulation 50 of GN.No.598/2022. The same reads as

follows;

"Regulation 50 (1) A nominee candidate or his agent who is aggrieved by

the decision o f the Committee may appeal to the Electoral Appeals

Committee.

(2) The appeal under Sub regulation (i) may be made after

the decision o f the Committee and before the commencement o f the next

stage o f the election process.

(3) The Electoral Appeals Committee shalldetermine the appeal

immediately before the stage o f the election process

(4) On the determination of the Appeal, the Electoral

Appeal Committee shall either

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 (a) Dismiss the appeal; or

(b) rescind the election process and commence that

particularprocess afresh".

( Emphasis added).

As correctly submitted by the applicant's advocates, according to Regulation

50 (4) of GN.No 598/2022, upon hearing an appeal the Electoral Appeals

Committee has powers to either dismiss the appeal before it or rescind the

election process and commence the process afresh. The law ( GN No.

598/2022) does not give room to the Electoral Appeals Committee to do

anything more than the two options provided in Regulation 50 (4) of GN.No.

598/2022. Moreover, GN.No. 598/2022 does not confer revisional powers

to the Electoral Appeals Committee over the decisions of the Electoral

Committee. No wonder, in its decision the Electoral Appeals Committee did

not cite any Regulation to back up its decision to proceed dealing with the

issue of illegality of the decision of the Electoral Committee it raised suo

motto after holding that the appeal was incompetent..

From the foregoing, it is the finding of this court that the Electoral Appeals

Committee wrongly relied on the case of Mathias Eusebia Soka ( supra)

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in which the Court of Appeal after striking the notice of Appeal against the

National Insurance Corporation, a specified Public Corporation which had

been sued without prior leave of the High Court in terms of section 9 of the

Bankruptcy Ordinance invoked its revisional powers to quash the

proceedings of the High Court because they were tainted with illegality.

Similarly, in the case of Chama cha Walimu (supra) in which the Court of

Appeal after making a finding that the application before it was not proper,

invoked its revisional powers to quash and set aside the proceedings of the

High Court because the same were incompetent, was misapplied by the

Electoral Appeals Committee because the Electoral Appeals Committee has

no revisional powers over the decisions of the Electoral Committee. In the

upshot, I agree with the applicants' advocates that the Electoral Appeals

Committee acted beyond its power provided in Regulation 50 (4) of

GN.No.598/2022, thus, its decision is ultra vires. As correctly argued by the

applicants' advocate the Electoral Appeals Committee clothed itself with

revisional power which it did not have and proceeded to revise the decision

of the Electoral Appeal Committee contrary to Regulation 50 (4) of GN.No

598/2022.After upholding the point of preliminary objection the Electoral

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Appeals Committee was supposed to dismiss or strike out the appeal and

that would have been the end of the matter.

Coming to the ground on the violation of the principles of natural justice, the

impugned decision shows that the Electoral Appeals Committee raised a

concern on the illegality of the decision of the Electoral Committee suo motto

after holding that the appeal was incompetent. Neither the applicant nor Mr.

Mahai who was the appellant in that appeal was accorded the opportunity

to be heard. I agree with the applicant's advocates on the position of the

law that the right to be heard is fundamental and any decision made in

violation of the right to be heard is a nullity. There is a plethora of case laws

to that effect. For instance, in the case of The Managing Director Kenya

Commercial Bank (T) Limited and Albert Odongo Vs Shadrack J.

Ndege, Civil Appeal No. 232 of 2017, ( unreported), the Court of Appeal

held as follows;

"Jurisprudence is settled that the right to be heard is much more than a statutory right

It has become a fundamental Constitutional right under Article 13 (6) (a) o f

the Constitution,1977(as amended)...."

( Emphasis added)

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In the case of Lugwisa s/o Ngwinamila (supra), the court of appeal held

as follows;

"Even if it was to be assumed, for the sake o fargument, that the revisionaijurisdiction was

properly exercised, yet the trial court was bound to afford the parties the opportunity

to submit on the issues necessitating for revision. Otherwise, a decision made in

curtailment o f the parties' right to be heard is as good as no decision. We said this very

dearly in the case o fDeo Shirima and Two Others v. Scandinavian Express Services Limited, Civii

Application No. 34 o f2008 (unreported), where was observed:

'The law thatno person shallbe condemned unheard is now legendary. It is trite law thatany

decision affecting the rights or interests o f anyperson arrived at without hearing the

affected party is a nullity, even if the same decision would have been arrived at had

the affected party been heard. This principle o f law o f respectable antiquity needs no

authority to prop it up. It is common knowledge.."

(Emphasis added)

Guided by the holding of the Court of Appeal quoted herein above, it is the

finding of this court that the decision of the Electoral Appeal Committee is

as good as no decision. I have pointed out earlier in this Ruling that the

impugned judgment shows clearly that the issue of illegality raised by the

Electoral Appeals Committee suo motto was determined without giving an

audience to the applicant.

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Having made the findings that the Electoral Appeals Committee acted

beyond its power, thus its decision is ultra vires and denied the applicant the

right to be heard, I do not see any plausible reasons to continue with the

determination of the ground on unreasonableness and irrationality of the

impugned decision as the determinations of the same will not change my

findings already made herein. So long as the Electoral Appeals Committee

acted beyond its powers as well as denied the applicant the right to be heard,

it does not matter whether its decision was reasonable and rational, the

same deserves to be set aside.

In the upshot, the order of certiorari is hereby granted. The decision of the

Electoral Appeals Committee of the Tanganyika Law Society dated 5th July

2024 which disqualified the applicant from contesting in the coming TLS

General Elections is hereby quashed. Each party will bear its costs.

Dated at Dar es Salaam this 26th Day of July 2024

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