IN THE HIGH COURT OF TANZANIA

(MAIN REGISTRY)
AT PAR ES SALAAM

MISC. CIVIL CAUSE NO. 15 OF 2018

BAGENI OKEYA ELIJAH............. ............................ 1st APPLICANT

THOMAS WAYOGA................................................. 2nd APPLICANT
NYASIGE KAJANJA NYAMWAGA...............................3rd APPLICANT
ANDREW HOSTA SIWALE....................................... ..4th APPLICANT

VERSUS

THE JUDICIAL SERVICE COMMISSION.............2nd RESPONDENT

THE CHIEF COURT ADMINISTRATOR.... ........... 3rd RESPONDENT
THE ATTORNEY GENERAL..................................4th RESPONDENT

RULING

28/09/2018 & 07/01/2019

Masoud. J.
The applicants were on 20/07/2018 granted leave of this court by my brother Hon. I.

Arufani, J. to apply for orders of certiorari and mandamus. The applicants thereafter

commenced this matter when the present application was filed on 30/07/2018. The

applicants would now want this court to invoke its prerogative orders of certiorari

and mandamus to quash the decision of first respondent which "retired" them from

employment in the public interest from 18/01/2018 and communicated the decision

to the applicants by identical letters dated 19/01/2018.

It is not without relevance to note that all the applicants were judiciary employees.

The first applicant was employed as a resident magistrate on 27/06/2012; the

second applicant was employed as a primary court magistrate on 21/06/2010; the

third applicant was employed as a resident magistrate on 06/06/2007; and the fourth

applicant was employed way back on 16/12/1990 and before his "retirement' in the

public interest was working with the judiciary as a primary court magistrate.

The application is brought under section 17(2) of the Law Reform (Fatal Accidents

and Miscellaneous Provisions) Act [cap. 310 R.E 2002] and rule 8(1) (a) and (b) of

the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review

Procedure and Fees) Rules, 2014. The application is supported by applicants'

affidavits and accompanied by a statement which sets out grounds upon which the

applicants rely for the relief of certiorari and mandamus.

Before I make further progress on this application, I must first dispose of a

preliminary objection raised by the respondents. The same was to the effect that

"the application was bad in law for containing facts which are different from which

the leave was sought thus contravening the provision of rule 8(1) (a) of the Law

Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure

and Fees) Rules, 2014." The submissions on the preliminary objection made by Mr

Nyakiha which are on the record did not detail, identify and clarify the alleged new

facts which were not part and parcel of the application for leave but which were

allegedly included in the present application.

To ascertain as to whether the point raised is meritorious, one would necessarily

have to consider documents which are not part of the present application and

compare them with the present application. Such documents were not appended to

the application. I agree with the applicants that the point raise a question of fact

which needs to be proved by evidence. I am therefore settled that the point raised is

not a pure point of law. I therefore overrule the objection.

The grounds upon which the applicants rely for the relief of certiorari and mandamus

could be summarised as thus: That, the first respondent acted in bad faith with

improper motive when it removed the applicants from service in the public interest

without disclosing reasons and valid grounds amounting to alleged public interest;

failure to observe the procedure under the Judiciary Administration Act, No. 4 of

2011 and the Judicial Service (General, Termination of Service and Disciplinary)

Regulations, 1998 (GN No. 660 of 1998).

In relation to the failure to observe the procedure, it was averred that the applicants

were not given notice to show cause why the decision should not stand against

them, that the applicants were not informed of any investigation or disciplinary

charges against them on which the decision was based, and that the applicants were

not accorded the right to be heard.

The first, second and third respondents filed a joint counter-affidavit in response to

the application. They basically opposed the application and supported the decision of

the first respondent that "retired" the applicants in the public interests.

I
The facts giving rise to the present application as they can be gathered from the

affidavits of the applicants can be stated briefly. The applicants were employees of

the first respondent. They were employed as magistrates at various places. They

were on various dates charged with, and prosecuted for offences relating to corrupt

practices. Whereas the first and third applicants were acquitted of the charges in

2016, the second and fourth applicants were acquitted of the charges in 2014. Prior

to their acquittal from the charges, all applicants had been interdicted from working.

Consequent to their acquittal, they were all "retired" from their respective offices in

the public interest In this respect, the identical letters dated 19/01/2018 which were

respectively served to the applicants had it that:

YAH: KUSTAAFISHWA KAZI KWA MANUFAA YA

UMMA
Tafadhali rejea kichwa cha habari hapo ju u na kikao
kffichofanyika na Tume ya Utum ishi wa Mahakama cha tarehe
17 January 2018, kiiichohusu masua/a ya Utum ishi na ajira
yako.

2. Tume ya Utum ishi wa Mahakama kwa Mamiaka iiiyopew a na

Katiba ya Jam huri ya Muungano wa Tanzania ya mwaka 1977
ikisom wa pam oja na kifungu cha 33(1) cha Sheria ya
Uendeshaji wa Mahakama na.4 ya mwaka 2011, imeamua
ustaafishwe kwa manufaa ya Umma kwenye kazi ya Uhakimu
kuanzia tarehe 18 Januari, 2018.

3. Aidha, utalipwa haki zako kwa m ujibu wa Sheria ya Mafao ya

Utum ishi wa Umma Sura 371 (R .E 2015). Utaratibu wa kukuiipa
gharama za kurejea kwenye m akazi yako (Dom icile Place)
kutoka kituo cha kazi ulichopo sasa, yanaandaiiwa kama
nyaraka na taarifa zilizom o kwenye jaiada iako binafsi na
utaju/ishwa mara tu m alipo yakifanyika.

4
 4. Nakutakia k/la ia heri kwenye m aisha yako nje ya Utum ishi
wa Mahakama

Prior to their respective "retirement" in the public interest, each applicant appeared

before the first respondent for a meeting. The meeting was to discuss matters

relating to employment of each applicant. Each applicant was so summoned for the

meeting by identical letters dated 08/01/2018 which were respectively served to the

applicants. The contents of the said letters were to the following effect.

YAH: WITO WA KUFIKA MBELE YA TUME YA

UTUMISHI WA MAHAKAMA

Tafadhali rejea kichwa cha habari cha hapo juu.

2. Kwa m ujibu wa Ibara ya 113(4) ya Katiba ya Jam huri ya
Muungano wa Tanzania ikisom wa pam oja na Kifungu cha 29 (1)
(d) cha Sheria ya Uendeshaji wa Mahakama Na, 4 ya mwaka
2011 unaelekezwa uflke mbefe ya Tume ya Utum ishi wa
mahakama siku ya Jum atano tarehe 17/01/2018 saa 6.45
mchana kwa minajHi ya kuzungumzia masua/a ya utum ishi
wako. Mkutano utafanyikia kwenye ukum bi ulioko Tume ya
Kurekebisha Sheria Tanzania, Mtaa wa Luthuii D ar es salaam
Tafadhali fika biia kukosa.

3. Utatipwa posho za kujikim u kwa kuzingatia viwango vya

serikati na kwa m ujibu wa kanuni na taratibu. Aidha, utatakiwa
kuwasihsha tike ti za usafiri wa basi Hi kurejeshewa fedha za
nau ii katika usafiri huo.

The applicants had it that in the said meeting which lasted for a few minutes for

each applicant there was no discussion held that involved each of the applicants in

respondent. As such, each applicant was informed that he/she had been
The applicants appeared in person unrepresented while all respondents were

represented by learned State Attorneys who appeared on behalf of the respondents

on various dates that the matter came before me. The matter was ordered to be

disposed of by written submissions which were duiy filed as per the schedule set by

the court.

Looking at the applicants' submission holistically, it was clear that it was built on the

same grounds upon which the applicants rely for the relief of certiorari and

mandamus. In a nutshell, the submission anchored on the following. One, the

decision was in contravention of natural justice, for they were "retired" in the public

interest without being heard, for they were not invited to show cause why the

decision should not stand against them; and they were not informed of any

investigation conducted or disciplinary charge levelled against them upon which the

decision was based. Two, there were no reasons disclosed that warranted the

"retirement" in the public interest. And, three, the first respondent did not act in

accordance with the procedure established by the law when she purportedly "retired"

the applicants in the public interests.

6
In so far as the alleged failure of the first respondent to act in accordance with the

procedure established by the law, it was particularly argued that the first respondent

did not follow the procedure provided for under section 35(1) & (2) of the Judiciary

Administration Act (supra) as well as regulation 22 of the Judicial Service (General,

Termination of Service and Disciplinary) Regulations, 1998 (GN l\lo. 660 of 1998).

The above provisions of law were duly reproduced in the applicants' submission. The

provision of section 35(1) & (2) of the above Act which was quoted by the applicants

reads thus:

Section 35(1) The powers to remove from office o r term inate

the appointm ents o f ju d icia l officers other than the Chief
Justice, Justices o f Appeal, the Ja ji Kiongozi, Judges o f the High
Court, the C hief Registrar, the Registrar o f Court o f Appeal and
the R egistrar o f the High Court, sh all be exercised in
accordance with this section.

(2) A ju d icia l officer sh all not be dism issed unless the

Commission is satisfied that:
(a) a disciplinary charge has been made and proved on a
balance o f probability against such officer on any o r a ll o f the
follow ing grounds-
(i) m isconduct incom patible with the holding o f ju d icia l
office;
(ii) gross negligence in the discharge o f ju d icia l duties;
(Hi) breach o f the Code o f Ju d icial Ethics;
(iv) bad reputation incom patible with the holding o f ju d icia l
office;
(b) such officer has had an opportunity to answer a charge
under paragraph (a); and
(c) an inquiry has been held into the charge

Likewise, regulation 22 of the Judicial Service (General, Termination of Service and

Disciplinary) Regulations (supra) also quoted by the applicant stipulates thus:

22. Removal in the public interest

(1) Where the Commission is o f the opinion that there are
grounds upon which a ju d icia l officer should be rem oved from
office in the public interest, it sh all notify the officer concerned
in w riting o f the grounds on which, his rem oval is contem plated

7
 and invite him to show cause in writing why he should not be
so removed, and sh all afford him an opportunity o f showing
cause.
(2) .............................
(3) ..........................

According to the submission of the applicants, the above provisions specify a

procedure which must be followed by the first respondent before removing a judicial

officer from office in the public interest. Clearly, the procedure limits powers of the

first respondent in so far as removal of a judicial officer from office in public interest.

In their further submissions, the procedure was not at all followed by the first

respondent when she "retired" the applicants from office in public interest.

In line with the foregoing, the applicants pointed out how the procedure set out by

the law was not complied with. One, no adequate show cause notice stating exactly

the nature of the proceedings commenced against them was served to the

applicants. Two, they were not invited to show cause in writing why the

contemplated decision should not be imposed. And three, the First respondent did

not afford them opportunity to appear at an ora! hearing to show cause why the

contemplated decision should not be imposed against them. And fourth, no ground

was assigned for the decision imposed against them.

At any rate, it was argued, the letters dated 08/01/2018 calling upon the applicants

to appear before the first respondent for the meeting, served to them two days

before the scheduled meeting, did not in view of its contents meet the requirements

of the mandatory provisions of the law which ought to have been adhered to by the

first respondent. Equally, the meeting of 17/01/2018 involving each of the applicants
and the first respondent fell short of the requirements of proceedings envisioned

under the above cited provisions as the applicants were not afforded a proper

hearing and were not charged.

In a bid to bolster their case, the applicants drew my attention to a number of

authorities in support of their arguments. The authorities included Said Juma

Muslim Shekimweri versus Attorney General [1997] TLR 3; and Gabriel

Antony Dewa versus Tanzania One Mining Revision No. 30 of 2011 High Court

Labour Division (unreported); Elia Kasalile and 20 others versus the Institute

of Social Work Civil Appeal No. 145 of 2016 (unreported) which were referred to

me in relation to the right to be heard.

Furthermore, James F. Gwagilo v Attorney General [1994] TLR 73 and Said

Juma Muslim Shekimweri (supra); and Njagi Marete versus Teachers Service

Commission [2013] eKLR were cited in relation to the duty to give reasons for a

decision made and particularly so when one is removed from office in the public

interest. Said Juma Muslim Shekimweri (supra); and Permanent Secretary

(Establishments) and another versus Hilal Hemed Rashid and Four Others

[2005] TLR 121 were likewise referred to me in relation to non-existence of

"retirement" in public interest under the relevant law as was arguably in the present

instance. Additionally, Sanai Murumbe v Muhera Chacha [1990] TLR 54 was

cited to support the argument that as the impugned decision was characterised by

illegality, irrationality, and procedural unfairness, the court must grant prerogative

orders of certiorari and mandamus.

9
Replying written submission by the respondents was filed by Mr Daniel Nyakiha,

learned State Attorney on behalf of the respondents. It was contended that the

submissions by the applicants are challenging the decision of the first respondent on

merit contrary to the guidance set by the case of Sanai Murumbe (supra). Thus,

judicial review is therefore not appropriate in the circumstances.

It was contended on behalf of the respondents that the first respondent was justified

in discontinuing the employment of the applicants because she is vested with power

to remove, appoint, or terminate such judicial officers from their office. The decision

was to the large interest of the society, the judiciary and for the own respect of the

applicants. It was argued that in reaching at the decision which was never made in

bad faith, the procedure stipulated under regulation 22(1) of the Regulations (supra)

was complied with and the first respondent acted in accordance with the law before

removing the applicants from their respective office. Each of the applicants was

respectively called for a meeting held on 17/01/2018 to discuss "the outcome of their

employment." Each applicant attended the meeting and was adequately heard by the

first respondent. The decision to remove each applicant from office was reached

after the hearing.

It was argued by the learned State Attorney that prior to the hearing each of the

applicants was required by a letter written by the first respondent to appear before

her for a meeting. It was argued that when the applicants appeared before the first

respondent on 17/01/2018, it was within their respective knowledge that the first

10
respondent was empowered to appoint, promote and discipline any judicial officer as

was any of the applicants. It was also within the knowledge of each of the applicants

that the meeting would involve section 29(l)(d) of the Judiciary Administration Act

(supra). Thus, each of the applicants, it was argued, came prepared for a discussion

regarding his/her respective service with the first respondent. For want of precision,

section 29(1) (d) of the above Act provides that:

29(1) The functions o f the Commission sh all be to:

(3) ........
(b).........
(c) ........
(d) appoint, prom ote and discipline any ju d icia l officer other
than the C hief Registrar, Registrar o f the Court o f Appeal o r the
Registrar o f the High Court;

It was emphasised by the learned State Attorney that the hearing on 17/01/2018

involved the issue whether the applicants who were once charged with corruption

offences and acquitted would still have the faith of the public in their action and

decisions as magistrates. It was also pointed out by the learned State Attorney that

the decision of the first respondent to remove the applicants from their respective

office was based on the above issue, consideration having been had on large

interests of the society.

As if the foregoing was not enough, the learned State Attorney called upon the court

to exercise due care when it considers whether or not to grant the orders sought by

the applicants. On this point the learned State Attorney relied on Sanai Murumbe

(supra) and Tanzania Air Services Ltd versus Minister for Labour and Others.

The latter was in relation to the duty to give reasons which was non-existent under

li
the common law and the power of this court to vary the common law to suit local

circumstances. He also distinguished the case of Elia Kasaile and 20 Others

(supra) arguing that unlike the cited case, in the present case the applicants'

profession is regarded by the public as noble. The learned State Attorney challenged

the prayer for reinstatement as the same does not reflect any of the reliefs under

section 17(2) of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) Act

(supra).

In their rejoinder, the applicants made a detailed submission, which by and large

reiterated their submissions in chief. I do not therefore with due respect, intend to

summarise the submission here.

I have carefully considered the submissions made by the parties to this application. I

have also carefully considered the provisions of law referred to me by the parties and

the authorities which the parties have cited to support their respective positions. I

have therefore formed an opinion that determination of this application rests on the

issue whether the applicants have made out a case for an order of certiorari to issue.

It is evident to me that parties to this application are at one that the endeavor of the

first respondent was to remove the applicants from their respective office in the

public interest. It is also clear to me that parties to this application do not dispute the

law and procedure applicable in removing a judicial officer from office in the public

interest. It is vivid from the written submissions made by the applicants and by the

learned State Attorney, on behalf of the respondents, that section 35(1)&(2) of the

12
Judiciary Administration Act (supra) and regulation 22(1) of the Judicial Service

(General, Termination of Service and Disciplinary) Regulations (supra) are relevant

provisions of the law in this application. In this-regard, I am not aware of, and

neither was I shown, any Regulations recently enacted under the Judiciary

Administration Act (supra) that replace the Regulations enacted under the now

repealed Judicial Service Act.

I am aware of the Judicial Service (Special Commission) (Genera!, Termination of

Service and Disciplinary) Regulations, G.N. No. 661 of 1998 which applied to primary

court magistrates. The provision of regulation 22(1) of these Regulations is similar to

regulation 22(1) of the Judicial Service (General, Termination of Service and

Disciplinary) Regulations (supra) word for word save for the use of a 'magistrate'

instead of a 'judicial officer'. However, by virtue of section 3 of the Judiciary

Administration Act (supra) which now defines a "judicial officer" in a manner that

includes any magistrate of the courts of law, I am settled that the Judicial Service

(General, Termination of Service and Disciplinary) Regulations (supra) is now

applicable to all magistrates as were the applicants irrespective of whether or not

they were in the primary court.

In the light of the above, I agree that despite the repeal of the Judicial Service Act,

the Judicial Service (General, Termination of Service and Disciplinary) Regulations

(supra) which were made under the repealed Act continue to have effect and

therefore regulation 22(1) of the said Regulations is still relevant to this application.

13
This position is by virtue of section 67(2)(b) of the Judiciary Administration Act

(supra) which reads thus:

67. Repeal and Savings

(1) The Judicial Service Act, is hereby repealed.
(2) Notwithstanding the repeal o f the Ju d icial Service Act-
(a ) .............
(b) a ll orders, notices, regulations, rules, directions,
appointm ents and other acts law fully made, issued or done
under any o f the provisions o f the A ct and made, issued o r
done before the commencement o f this Act, sh all be deem ed to
have been made, issue or done under the corresponding
provision o f this A ct and sh all continue to have effect
accordingly.

My reading of the provisions of section 35 of the Judiciary Administration Act (supra),

and regulation 22(1) of the Judicial Sen/ice (General, Termination of Service and

Disciplinary) Regulations (supra) which were all reproduced verbatim herein above

leaves me in no doubt that the provisions specify a procedure that must be complied

with by the first respondent when considering removing a judicial officer from office.

As such, determination of the issue whether the applicants have made out a case for

an order of certiorari to issue would undoubtedly depend on how this court will

resolve two issues. The first issue is whether the first respondent complied with the

procedure under the above provisions of the law in "retiring" the applicants in the

public interest. In other words, whether the "retirement" of the applicants by the first

respondent in the public interest was tainted with illegality of procedure. I am in this

respect mindful that whilst the respondents maintained in their respective counter

affidavits and replying written submission made in their behalf that the applicants

were removed from their office in the public interests, the record has it that the

applicants were "retired" in the public interest. The second issue is whether the

14
applicants were denied of their fundamental right to be heard when they were

"retired" from office in the public interest.

It is not in dispute that the applicants were "retired" in the public interest on

18/01/2018 by the first respondent. The "retirement" of the applicants in the public

interest is evidenced by the identical letters dated 19/01/2018 which were issued to

the applicants. It is also not in dispute that before each of the applicants was retired

in the public interest, on 17/01/2018 each applicant attended the meeting which was

called by the first respondent. This is evidenced by the identical letters dated

8/01/2018 that were issued to the applicants. In the said meeting, the first

respondent was to discuss with each of the applicants "...masuala ya utum ishi....".

It is in dispute whether the applicants knew from the letters that the first respondent

was contemplating to remove them from office in the public interest, and that it was

such contemplation that was a subject matter of the meeting between the first

respondent and each applicant. It is also in dispute whether each applicants was in

the meeting informed of the respondent's decision to remove him/her in the public

interest without being heard on the first respondent's contemplation.

Upon consideration of the procedure for removing a judicial officer from office and

perusal of the record, it is clear to me that the letters were issued pursuant to article

113(4) of the Constitution of the United Republic of Tanzania and section 29(l)(d) of

the Act. The provision of section 29(l)(d) of the Act concerns powers of the first

respondent to appoint, promote, and discipline a judicial officer. The letters informed

15
the applicants that the meeting was "kwa m in ajiliya kujadili m aswala ya utum ishi...

The first respondent did not therefore specify in the letters whether the meetings

were with regard to promotion, discipline or appointment. The allegation that each

applicant knew that the meeting involved the question whether the public would still

have faith in them as magistrates and the wider interests of the society, judiciary and

the applicants own respect just emerged from the bar from the respondents' learned

counsel. It is not at all reflected in any of the record brought to my attention.

Going by the contents of the letters, I am of a firm opinion that the letters that were

used to notify each of the applicants about the meeting which was to discuss

"...m asuala ya utum ishi..." did not notify the applicants about the contemplated

removal from their respective office as is required by regulation 22(1) of the

Regulations, let alone the contemplated "retirement" in the public interest. I am

equally satisfied that there was no hearing properly held in the meeting that saw

each of the applicants removed from office in the public interest.

My position that the first respondent did not notify the applicants about the

contemplated removal is fortified by the following reasons. One, the tetters by the

first respondent did not notify the applicants of the grounds on which their respective

removals were contemplated. Two, the letters by the first respondent did not also

invite the applicants to show cause in writing why they should not be so removed.

Three, there is nothing on the record suggesting that the applicants made any

written submission to the first respondent showing cause why they should not be

removed from office. Four, although the applicants were then interdicted from work

16
for reasons of having criminal cases that were respectively pending against them

which eventually ended in their favour, there was nothing in the letters that would

have suggested that "...m asuaia ya utum ishi..." would in the circumstances squarely

mean the contemplated removals of the applicants from their office,

My finding and conclusion that each of the applicants was not afforded opportunity

to be heard in the scheduled meeting is backed by the following.

Firstly, each of the applicants was not given notice of what he/she was specifically to

expect so that he/she could prepare himself/herself for the meeting and defend the

position he/she maintains. As shown above, for example, no single ground upon

which the first respondent contemplated to remove the applicants from office in the

public interest was disclosed in the letters.

Secondly, whilst there were specific averments in the affidavit of each applicant that

the meeting only informed the applicants the decision that had been reached to

remove them from office in the public interest and how they were all denied the

opportunity to be heard before the decision was made, there was evasive denial in

the counter-affidavits of the respondents. As such, there was no specific averment in

the counter-affidavits as to how the hearing was if at all conducted. It was only from

the bar that the learned State Attorney told the court that all applicants were heard

on whether they should be removed from office in the public interest. However, the

source of such information was never disclosed and no proceedings of the meeting
that saw the applicants removed from office in the public interest were produced to

the court.

In view of the foregoing, I am fully satisfied that the first respondent violated the

procedure relating to removal of the applicants from office and in so doing the

applicants right to be heard was not met when the applicants were called to the

meeting without being given information of the contemplated removal and without

being invited to show cause in writing why they should not be removed from office.

It is not correct to suppose that according to the procedure their right to be heard is

only available to the first respondent through attendance in the meeting and making

oral representation. In so far as the latter is concerned, I am fully satisfied that they

were not accorded oral representation either.

Before I part with this matter, I should also point out that I was invited to find that

the decision was invalid as it was not made in accordance with the law for two

reasons. One, no reasons were assigned for the decision and as to what rendered

the "retirement" to be of interest to the public at large. And two, whilst the

applicants were all purportedly "retired" in the public interest, there was no law that

provided for 'retirement' in the public interest. I earlier made it clear that the

respondents' position in the counter-affidavits and replying written submission was

that the applicants were removed from office in the public interest in accordance

with the law.

18
I have looked at the record before me whilst benefiting from the guidance offered by

James Gwagilo (supra) and Said Juma Muslim Shekimweri (supra). I am

satisfied that the decision that the applicants were now challenging is reflected in the

letters dated 19/01/2018 that the applicants were given by the first respondent.

Indeed, there were no reasons that were disclosed by the first respondent for the

decision and which rendered the "retirement" to be of interest to the public at large.

On the authorities cited above, the failure to disclose reasons, as was the case in this

matter, is fatal to the decision. In addition, the applicants were, contrary to the

procedural requirements, purportedly "retired" in the public interest as opposed to

being removed from office in the public interest. As would transpire below there is

nothing like retirement of a judicial officer in the public interest in the law, but

compulsory retirement.

In so far as compulsory retirement is concerned, the only legislative provisions which

permit such retirement is regulation 11 of the Judicial Service (General, Termination

of Service and Disciplinary) Regulations (supra) which would in appropriate cases be

utilised only for the purpose of compulsorily retiring a judicial officer for reasons

other than medical grounds. The provisions would only be utilised after the judicial

officer has been notified about such consideration and asked to make any written

representation on such step. In view of my previous observations and findings which

are reflective of the written submissions of the parties, it is clear that the applicants'

employment discontinuation was purportedly done under the procedure governing

the removal of a judicial officer in the public interest.

19
Even if it were to be argued that the applicants' retirement in the public interest

meant compulsory retirement in the public interest, the argument would not in my

view hold water. I say so because of the following reasons. One, there is no material

showing that the applicants were notified of the consideration for their compulsory

retirements. Two, there is nothing showing that the applicants were given room to

make written representations on such consideration. Thus, going by the

requirements of the provisions on compulsory retirement, it would still be clear that

there was violation of procedure and rules of natural justice.

All said and done in respect of a prayer for an order of certiorari, I would make a

final finding and hold as I hereby do so that the first respondent neither complied

with the procedural requirements of the law when she retired the applicants from

office in the public interest, nor afforded the applicants an opportunity to present

their respective written representations why the decision should not be taken against

them, and nor a hearing in the scheduled meeting. I accordingly find that the

applicants have made out a case for an order of certiorari to issue for the decision of

the first respondent to be removed into this court for the purpose of being quashed.

I so find and hold as I am content that the law is settled that prerogative order of

certiorari can issue where an applicant establishes that he was denied his right to be

heard or where there was illegality of procedure or decision as was in the present

instance. See Sanai Murumbe (supra).

Having found that the applicant can benefit from the prerogative order of certiorari,

it is important to determine whether the applicants have laid out a basis for a grant

20
the law on the basis of my decision.

In the final result, the applicants have made out their case; and accordingly I grant

the prayer for an order of certiorari to quash the decision of the first respondent that

"retired" the applicants in the public interest. Consequently, an order of mandamus is

issued only to the extent of directing the first respondents to act in accordance with

the law on the basis of my decision in this application. The applicants will have the

costs of the application. Ordered accordingly.

21
7/ 1/2019
Coram: Hon. Sarwatt Dr.

For 1st Applicant - Present 1st only -

For the 2nd Applicant

For the 3rd Applicant - Absent

For the 4th Applicant .

For 1st Respondent - Gaudensia Bruno - HR

For the 2nd Respondent - Karama Omary - Legal Officer

3rd Respondent Nyakiha Daniel - State Attorney

CC: Rehema.

Court:

Ruling Delivered in the presence of parties as per Coram.

Right of appeal fully explained.

S.S. Sarwatt

DEPUTY REGISTRAR

7/ 1/2019