ABOUT THE AUTHOR

Author’s Name: Angetile Mwakilembe

Email Address: [email protected]
Mobile Phone: +255 713 741 468
Physical Address: Dar-es-Salaam, Tanzania.

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PREROGATIVE ORDERS
Procedures & Case-law
 Angetile Mwakilembe
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PREROGATIVE ORDERS

Procedures and Case-law

Table of Contents
1. Brief Introduction ................................................................................................................................ 2
2. Examples of Prerogative Orders ......................................................................................................... 3
2.1 Mandatory Orders (Mandamus) ............................................................................................. 3
2.2 Quashing Orders (Certiorari)................................................................................................... 4
2.3 Prohibiting Orders ................................................................................................................... 4
3. Law governing Prerogative Orders ..................................................................................................... 5
4. Forum(s) for issuing Prerogative Orders (Jurisdiction) ....................................................................... 6
4.1 Can Commercial Division of the High Court issue Prerogative Orders? ....................................... 7
4.2 Pecuniary Jurisdiction V. Prerogative Orders in the High Court-Commercial Division ................. 8
4.3 Instances where High Court (Commercial Division) has exercised the jurisdiction.................... 10
5. Parties in relation to Prerogative Orders .......................................................................................... 10
5.1 Who can apply for Prerogative Orders? ..................................................................................... 10
5.2 Against whom Prerogative Orders can be applied? ................................................................... 10
5.3 When is mandatory to include the A.G? ..................................................................................... 11
6. When can a person apply for Prerogative Orders? .......................................................................... 11
Must the applicant exhausted all the available remedies before invoking for judicial review? ...... 12
7. Grounds for Application for Prerogative Orders............................................................................... 13
a) Illegality ..................................................................................................................................... 14
b) Irrationality ............................................................................................................................... 15
c) Procedural impropriety ............................................................................................................. 16
8. Procedures in relation to application for Prerogative Orders .......................................................... 17
i) Application for Leave to Apply for Prerogative Orders.................................................................. 17
ii) Application for Prerogative Orders ............................................................................................... 18
9. Conclusion ......................................................................................................................................... 18

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PREROGATIVE ORDERS

Procedures and Case law

1. Brief Introduction

Prerogative Orders are orders issued by the High Court in exercising its supervisory
jurisdiction over inferior/subordinate courts, tribunals, and public authorities through a
process known as judicial review.1 From the definition, Prerogative Orders are neither
a process nor cause of action, instead, they are remedies available against a decision or
proceedings of the administrative authority/the Government. They include mandatory
orders (mandamus), quashing orders (certiorari), prohibiting orders (Prohibition), bring
the body orders (habeas corpus’) and under what authority orders (Quo warranto).2

In John Mwombeki Byombalirwa V. The Regional Commissioner and Regional Police

Commander stated that,

“Judicial review is an important weapon in the hands of the judges of this country by
which an ordinary citizen can challenge an oppressive administrative action. And
judicial review by means of prerogative orders (certiorari, prohibition and mandamus)
is one of those effective ways employed to challenge administrative action.”3

The brief background can be traced from Common Law. Under Common law the
sovereign was considered to be the source of justice. It was vested with the so called
prerogative powers in the interest of justice. Such powers were intended to be used as
a shield in upholding the rights and liberties of subjects and in providing effective
safeguards against arbitrary exercise of power by public authorities. The orders were
exercised by issuing the so called prerogative writs.4

1
This is inherent jurisdiction vested on the High Court, that is, the jurisdiction which does not owe its origin
to statute i.e. it is not a creature of statute. In that sense it is different from appellate functions which are
statutory in nature.
2
The scope of this paper does not extend to cover prerogative orders of habeas corpus’ and Quo warranto
3
[1986] TLR 73. H.C. Bukoba.
4
C.K. Takwani. Lectures on Administrative Law (?) page. 30.

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2. Examples of Prerogative Orders

2.1 Mandatory Orders (Mandamus)

Mandamus is a command issued from the High Court ordering the performance
of a public legal duty. Mandamus is discretionary remedy and courts assume a
free discretion to grant them in suitable cases and withhold them in others.5 The
principal in granting orders of mandamus is that, “Except where the delay is duly
accounted for, mandamus will not be granted unless applied for within a
reasonable time after the demand and refusal to do the act.”6

Conditions necessary for an order of mandamus to be issued are:

• The applicant must have demanded performance and the respondents

must have refused to perform;
• The respondents as public officers must have a public duty to perform
imposed on them by statute or any other law but it should not be a duty
owed solely to the state but should be a duty owed as well to the
individual citizen;
• The public duty imposed should be of an imperative nature and not a
discretionary one;
• The applicant must have a locus standi, that is he must have sufficient
interest in the matter he is applying for;
• There should be no other appropriate remedy available.

These were discussed in the case in the case of John Mwombeki Byombalirwa
V. The Regional Commissioner and Regional Police Commander.7

5
Sylvester Cyprian and 210 others V. DSM University, Misc. Civil Application No. 68/94 H.C. at DSM
6
Alfred Lakaru V. Town Director [1980] TLR 326 HC at Arusha ( Maganga,J)
7
[1986] TLR 73. H.C. Bukoba.

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2.2 Quashing Orders (Certiorari)

Certiorari is used to bring up into the High Court a decision of some inferior
tribunal or authority in order that it may be investigated. If the decision does
not pass the test, it is quashed i.e. it is declared completely invalid, so that no
one need respect it.8 As in the case of Mandamus, certiorari is also discretionary.

Conditions necessary for an order of certiorari to be issued are:

• That the judicial or quasi-judicial body must have legal authority

• That such authority must be in respect of determining questions affecting

rights of subjects

• It must have duty to act judicially

• The authority must have acted in excess of its authority

These were discussed in the case in the case of R v Electricity Commissioners.9

2.3 Prohibiting Orders

A writ of prohibition is an order directed to an inferior Tribunal forbidding it
from continuing with a proceeding therein on the ground that the proceeding is
without or in excess of jurisdiction or contrary to the laws of the land, statutory
or otherwise.10

Conditions necessary for an order of prohibition to be issued are:

• There must be a proof that a judicial or quasi-judicial body has no

jurisdiction or it acts in excess of jurisdiction vested on it.

8
Sylvester Cyprian and 210 others V. DSM University, Misc. Civil Application No. 68/94 H.C. at DSM.
See also Sanai Murumbe and another V. Muhere Chacha [1990] TLR 54 CAT at Mwanza.
9
[1924] 1 KB 171
10
East India Commercial Co. V. Collector of customs, AIR 1962 SC 1893

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• There must be proceedings pending before a judicial or quasi-judicial

authority. If the proceedings have been terminated and decision given,
then it cannot be issued

• If the proceedings are partly out of the jurisdiction of the particular body
then it can be issued only against such matters which the judicial or quasi-
judicial body lacks jurisdiction.

3. Law governing Prerogative Orders

Apart from case laws, application for and issuing of Prerogative Orders are governed
by the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310 of the
Revised Edition, 2002 and the Law Reform (Fatal Accidents and Miscellaneous
Provisions) (Judicial Review Procedure and Fees) Rules, 2014 – GN No. 324 of 2014.
Before the Rules were made, the application for and issuing of Prerogative Orders was
governed by case law which borrowed much from the common law jurisprudence.

Hon. Mwalusanya, J. confirmed the position above in John Mwombeki Byombalirwa’s

case (Supra) where the following insight is given;

“The law on the prerogative orders is on the move to meet the changes of modern
government. What was the position in 1960 as regards the contents of those rules is
not the same now. The law has been constantly changed by judges to see how
effectively the law can protect an individual citizen from oppressive administrative
actions. Lord Diplock of the House of Lords has soundly reminded us in the case of
I.R.C. v Small Business: [1982] A.C. 617 at p.641 that:

“The rules (on prerogative orders) were made by the judges and by judges they
can be changed; and so they have been over the years to meet the need to
preserve the integrity of the rule of law despite changes in the social structure,
methods of government and the extent to which the activities of private citizens
are controlled by governmental authorities, that have been taking place
continuously sometimes slowly, sometimes swiftly, since the rules were
originally propounded. Those changes have been particularly rapid since World
War II. Any judicial statements on matters of public law if made before 1950
are likely to be a misleading guide to what the law is today.”
In Tanzania no rules of procedure have been made by the Chief Justice as he is
empowered so to do under s.18(1) of the Law Reform (Fatal Accidents and Misc.
Provisions) Ordinance (Amendment) Act No. 55 of 1968. We follow the common law

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as developed and expounded by the case-law in England and our Tanzania judges. That
is a blessing in disguise for if we had fixed and immutable rules, that would have fettered
the judges to develop the law to meet changing conditions. As it is now the law on
prerogative orders is constantly being developed by our judges. They often take relief
from decisions of other Commonwealth countries.

Further, this position is reflected by Hon. Bukuku, J. in M/S. Tanalec Limited V. The
Honourable Attorney General & Another,11 where he states,

The source of the jurisdiction of this court to entertain applications for prerogatives
orders is the Judicature and Applications of Laws Ordinance, Cap 543, which imports
into this country the substance of the common law, doctrines of equity and statutes of
general application in force in England on the reception date, i.e 22/7/1920. Such
applications are not governed by the provisions of the Civil Procedure Code or the
Government Proceedings Act. The matter is one of judicial discretion to be exercised by
the court in the light of the circumstances of each particular case.

Again, there are specific laws which providing for judicial review or in essence allowing
persons with grievances to consider applying for judicial review before the High Court
of Tanzania. The laws include the Public Procurement Act, 2011 under Section 101(1).

4. Forum(s) for issuing Prerogative Orders (Jurisdiction)

Application for and issuing of Prerogative Orders falls exclusively under the jurisdiction
of the High Court of Tanzania by virtue of Section 2 of the Judicature and Application
of Laws Act12 as confirmed in Alfred Lakaru V. Town Director13 and also from the
implication gathered from Section 17 of the Law Reform (Fatal Accidents and
Miscellaneous Provisions) Act. There has never been an issue on whether the High Court
have jurisdiction to hear and determined an application for and issue Prerogative
Orders. The issue of dispute has been on whether the commercial division of the High
Court of Tanzania is clothed with jurisdiction enough to hear and determine an
application for and issue Prerogative Orders.

11
Misc. Civil Cause No. 9 of 2011 (H.C. Commercial Division)
12
[CAP 538, R.E. 2002]
13
[1980] TRL 326 H.C. at Arusha.

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4.1 Can Commercial Division of the High Court Issue Prerogative Orders?

In answering this issue, wisdom of Hon. Songoro, J. in M/S Intertek International

Limited V. The Public Procurement and Appeals Authority and 2 others14 will be heavily
relied on. To start, the High Court Commercial Division is just a division of the High
Court and pursuant to Rule 2 of the High Court Registries Amendment Rules 1984
Government Notice No 141 of 1999 as amended by Government Notice No 96 of
2005, has original jurisdiction over cases of commercial significance. Section 2 of the
Magistrates Court Act, Cap 11 [R.E.2002] defines commercial cases as any case which
have commercial significance, including but not limited to:

a) The formation of a business or commercial organization;

b) The governances of a business or commercial organization;
c) The contractual relationship of a business or commercial organization with other
bodies or person outside it;
d) The liability of a commercial or business organization or official arising out of its
commercial or business activities;
e) The liabilities of a commercial or business person arising out of that, person
commercial or business activities;
f) The restructuring or payment of commercial debts by or to business or
commercial organization or person;
g) The enforcement of commercial arbitration award;
h) The enforcement of awards of a regional court or tribunal of competent
jurisdiction made in;
i) Accordance with a Treaty or Mutual Assistance arrangement to which the United
Republic is a signatory and which forms part of the law of the United Republic
j) Admiralty proceedings; and
k) Arbitration proceedings.

It is important to note that, the above cited Section emphasizes that, the court is not
limited on matters listed therein. Impliedly, in matters which are not listed in the

14
Misc. Cause No 92 of 2015. H.C. (Commercial Division) at DSM.

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section, it is the Presiding Judge who has a discretion of determining whether or not
the case is of commercial significance.

So in essence, so long the decision, matter or proceeding complained of has a

commercial significance the Commercial Division has a power to do all that the Main
Registry can in relation to prerogative orders including issuing of the same.15 This
position, that is, commercial division of the High Court having jurisdiction to entertain
application for prerogative orders, in Tanzania is not strange from its neighbours as in
Herbert Niwamanya V. Uganda Revenue Authority16 where the commercial division of
the High Court of Uganda entertained an application for prerogative orders.

4.2 Pecuniary Jurisdiction V. Prerogative Orders in the High Court-Commercial Division

There is no clear positon of the law in regard to pecuniary jurisdiction of the High Court
and at least there are two opposing schools; one advocating that the High Court has a
limited pecuniary jurisdiction and one which holds that the High Court of Tanzania has
no limited pecuniary jurisdiction.17 With their differences, the two schools at least have
a common stance in that regardless of the amount set as a pecuniary jurisdiction of the
High Court (currently at Tshs. 70,000,000 and Tshs. 100,000,000 on cases involving
movable and immovable property respectively), pecuniary value is not the sole
determinant of Jurisdiction of the High Court.

15
See Diamond Motors Ltd V. The Central Tender Board and Another Misc. Civil Case No. 24 Of 2004; Islam
Saleh Nahdi Ltd V. The Commissioner General and 2 Others. Misc. Civil Cause No.5 Of 2010 where the high
Court (Commercial Division) entertained applications for prerogative orders.
16
High Court Civil Suit No.0003/2008 (O.S)
17
Read M/S Intertek International Limited V. The Public Procurement and Appeals Authority and 2 others,
Misc. Cause No 92 of 2015. H.C. (Commercial Division) at DSM (Unreported) and Tanzania-China Friendship
Textile Co. Ltd V. Our Lady of Usambara Sisters. Civil Appeal No. 84 of 2002 (Unreported) for the school
that holds the high Court has a limited pecuniary jurisdiction. Haji Ukwaji t/a Wajenzi Enterprises V. The
National Microfinance Bank and Joseph Msiba Commercial Case No. 27 of 2003 (Unreported) and Renada
Minerals Corporation V. Consolidated Holding Corporation and National Bank of Commerce, High Court of
Tanzania (Arusha) Civil case No. 52 of 1999 (Unreported) for the school that holds the High Court has no
limited pecuniary jurisdiction.

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This is so because there are cases which do not involve movable, or immovable
property, like cases on formation of a company, or contractual relationship and others,
which are of commercial significance. In those cases, as per the Hon. Judge Songoro,
the criteria for determine jurisdiction is left to the court to decide, if the matter has
"commercial significance".

A good example can be inferred from the case of BP Tanzania Limited V. The
Commissioner General TRA18 where Hon. Kimaro, J. while refusing to entertain the
case before the High Court commercial division for not being commercial case, had this
to say;

“However, I totally agree with Mr. Prim that this court has no jurisdiction to adjudicate
on the matter because of two reason:

i) Reading the plaint as a whole, particularly the nature of the claim and the prayers,
the matter is one which should have been pursued by way of prerogative orders.
Although an application for prerogative orders was filed but rejected by My Brother
Judge Chipeta, as he then was, I am highly convinced that it was the only right
avenue for having orders compelling the Commissioner General to perform his
duties.

ii) I fail to find a space in Rule 2 of the High Court Registries Rules 1984 as amended in
1999, for fitting in, this case. Rule defines what is a commercial case. Going by the
list which is given, this case does fit in. It is not a commercial case.”

Even if the application for leave to apply for prerogative orders would have been in
the normal District, or Main Registry of the High Court, the test for jurisdiction would
not have been on pecuniary jurisdiction of that District or Main Registry of High Court.
In view of what is stated above, it is safe to say there are commercial cases which the
High Court has jurisdiction to hear them notwithstanding that, the claimed pecuniary
amount is zero cent like cases on formation of companies and contractual relationship.
(Hon. Songoro, J.)

18
Commercial Case No. 61 of 2003

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4.3 Instances where High Court (Commercial Division) has exercised the jurisdiction

Surprisingly, the commercial division of the High Court has long been exercising its
jurisdiction in hearing and determining application for prerogative orders and issuing
of the same. The following are example of the instances where the High Court
(Commercial Division) has invoked its jurisdiction in relation to prerogative orders
regardless of the outcome;

Diamond motors Limited V. the Central Tender Board and Another. Misc. Civil case
No. 24 of 2004; M/S. Tanalec Limited V. The Honourable Attorney General & Another.
Misc. Civil Cause No. 9 of 2011 and Islam Saleh Nahdi Limited V. The Commissioner
General TRA and 2Others. Commercial Case No. 19 of 2009.

5. Parties in relation to Prerogative Orders

5.1 Who can apply for Prerogative Orders?

Any person whose interests have been or believes will be adversely affected by any act
or omission, proceeding or matter, may apply for judicial review i.e. may apply for
prerogative orders.19 Hence in this case we have an Applicant on one side. The applicant
must have a locus standi, that is, he must have sufficient interest in the matter he is
applying for.20

5.2 Against whom Prerogative Orders can be applied?

Who can be a Respondent in an application for Prerogative Orders depends on various
factors including the specific order to be applied for (see conditions necessary for issuing
of the prerogative orders above). Prerogative Orders are remedies available against a
decision or proceeding of the administrative authority/the Government or even private
entities exercising public functions. As seen in Simeon Manyaki V. the Institute of
Finance Management21 where it was held;

19
Rule 4 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and
Fees) Rules, 2014 – GN No. 324 of 2014.
20
John Mwombeki Byombalirwa v The Regional Commissioner and Regional Police Commander, [1986] TLR 73
H.C. Bukoba.
21
1984 TLR 304 (HC)

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“An administrative body exercising functions that impinge directly on legally recognized
interests has a duty to act judicially in accordance with the rules of natural justice.”

Also in Mecaiana Establishments V. The Commissioner of Income Tax and six others 22
the Court held,

“…application for prerogative orders can be proceeded against any party, not necessary
the AG, as we have seen above, then they are not in the nature of the Government
Proceedings which must be against or by the AG only.”

In any event, Prerogative Orders can only be issued where the Government has an
interest on the power making decision of the body whose decision is to be reviewed,
as per Republic V. Kenya African National Union and 5 Others exparte Rotino23

5.3 When is mandatory to include the A.G?

During an application for leave to apply for Prerogative Orders is it mandatory to

include the A.G as a necessary party as per Section 18 (1) of the Law Reform (Fatal
Accidents and Miscellaneous Provisions) Act, Cap. 310 of the Revised Edition, 2002.
This position is backed by decision in Mecaiana Establishments V. The Commissioner of
Income Tax and six others24 where the Court held,

“From the clear and unambiguous words of that sub-section,[to wit, S.17A(1) of the Law
Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance], the requirement to
summon the Attorney General as a party in proceedings for prerogative orders is when
leave for application to institute those proceedings is sought. Thus after leave has been
granted to institute those proceedings, then there is no requirement for summoning the
AG as a party.”

6. When can a person apply for Prerogative Orders?

Section 19 (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act,
Cap. 310 of the Revised Edition, 2002 and Rule 6 of the Law Reform (Fatal Accidents
and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 – GN

22
Civil Appeal No. 14 of 1995. CAT at DSM.
23
[2008] 2KLR (EP)
24
Civil Appeal No. 14of 1995. CAT at DSM.

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No. 324 of 2014, state that the application for leave to file application for judicial
review must be filed within six months after the proceedings, act or omission intended
to be impugned was given. The interesting question however is;

“Must the applicant exhaust all available remedies before applying for judicial review?”

It is the practice of courts in this jurisdiction founded upon prudence that an application
for leave to file an application for judicial review will not necessarily be rejected if the
remedies available to the applicant were not exhausted before determining such an
application25 - see Alfred Lakaru V. Town Director Arusha;26 The Republic Ex-Parte Peter
Shirima V. Kamati ya Ulinzi na Usalama, Wi/aya ya Singida, the Area Commissioner
and the Attorney General;27 Hans Wolfgang Golcher V. General Manager of Morogoro
Canvas Mill Limited28 and E-Fulusi Africa (T) Limited & Another V. Tanzania Electric
Supply Company Limited.29

However, depending the circumstance of each case, there are instances when the courts
have refused to grant leave for the reason that the applicant did not exhaust available
remedies30 - see Abadiah Selehe V. Dodoma Wine Company Limited31 and Moris
Onyango V. the Senior Investigating Officer Customs Department Mbeya32

To rest the matter and answer the question raised above, the words of Hon. Judge
Mwambegele in a yet more recent decision should guide us;

“In view of the foregoing, it may be summarized that much as it may be desirable that
an applicant exhausts remedies available to him before making a resort to this court,
the law does not bar courts from entertaining and hearing an application for leave to

25
Miscellaneous Commercial Cause No. 19 Of 2015. (High Court-Commercial Division, DSM)
26
[1980] TLR 326 CAT
27
[1983] TLR 375 H.C. In this case, Lukangira, J. (as he then was) stated, "from the totality of these authorities,
that the existence of the right of appeal and even the existence of an appeal itself, is not necessarily a bar to
the issue of prerogative orders. The matter is one of judicial discretion to be exercised by the court in the light
of the circumstances of each particular case. Where an appeal has proved ineffective, and the requisite
grounds exist, the aggrieved party may seek and the court would be entitled to grant, relief by way of
prerogative orders."
28
[1987] TLR 78 H.C.
29
Miscellaneous Commercial Cause No. 19 Of 2015. (High Court-Commercial Division, DSM)
30
Miscellaneous Commercial Cause No. 19 Of 2015. (High Court-Commercial Division, DSM)
31
[1990] TLR 113
32
Criminal Application No. 25 of 1981

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file an application for prerogative remedies just because alternative remedies available
were not exhausted. Should an applicant wish to exhaust the remedies available to him
before filing an application for leave, that course will be of his own choose and to his
detriment in terms of limitation as time will start clicking against him right from the
moment the decision intended to be complained of was made and not from the
moment such remedies available to him were exhausted.”33 (Emphasis ours)

7. Grounds for Application for Prerogative Orders

The Court of Appeal of Tanzania in Sanai Murumbe & Another V. Muhere Chacha34
stated six grounds for judicial review.35 The court stated as follows;

“The High Court is entitled to investigate the proceedings of a lower court or tribunal
or a public authority on any of the following grounds, apparent on the record. One,
that the subordinate court or tribunal or public authority has taken into account matters
which it ought not to have taken into account. Two, that the court or tribunal or public
authority has not taken into account matters which it ought to have taken into account.
Three, lack or excess of jurisdiction by the lower court. Four, that the conclusion arrived
at is so unreasonable that no reasonable authority could ever come to it. Five, rules of
natural justice have been violated. Six, illegality of procedure or decision.”

Perhaps Lord Diplock in Council of Civil Service Union v Minister for the Civil Service36
made it easier by classifying grounds into three major categories, and he stated as
follows;

“Judicial review has I think developed to a stage today when, without reiterating any
analysis of the steps by which the development has come about, one can conveniently
classify under three heads the ground on which administrative action is subject to control
by judicial review. The first ground I would call illegality, the second irrationality and
the third procedural impropriety. This is not to say that further development on a case

33
Miscellaneous Commercial Cause No. 19 Of 2015. (High Court-Commercial Division, DSM)
34
[1990] TLR 54 (CA)
35
In other words grounds upon which one can apply for prerogative orders.
36
[1985] AC 374

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by case basis may not in course of time add further grounds. I have in mind particularly
the possible adoption in the future of the principle of proportionality.”

These grounds where elaborately discussed by C.K. Takwani37 as follows:

a) Illegality

This can further be sub-divided into;

• Excess of jurisdiction

The powers conferred on administrative authority must be exercised only within the
ambits of the law. If the limits are exceeded, then the exercise of such power is ultra
vires.
• Absence of power
There is no exercise of power unless provided under the law. Any
purported exercise of the power which does not exist under the law is
ultra vires.

• Unlawful delegation
The law requires that only those bodies to which powers are entrusted
must exercise such powers. A person can only delegate his powers if he
has been expressly empowered to do so. If one delegates his function
unlawfully to another person and such powers are used to the detriment
of another individual, such delegation can be challenged as ultra vires.

• Error of law on the face of records

The action of administrative authority may also be challenged on point
of law where the authority reached its decision basing on improper
position of the law.

• Improper motive/purpose
This is where the authority, though not actuated by ill-will, it exercises in
good faith its power but not for the purpose intended in the statute but

37
Lectures on Administrative Law.

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for different purpose. That is to say the power has been used for collateral
purpose.

b) Irrationality

This can further be sub-divided into;

• Failure to exercise discretion

Sometimes the authority is required to apply its mind to the facts and
circumstances of the case at hand. If one is acting mechanically, that is,
without due care and caution or without a sense of responsibility in the
exercise of its discretion, then there is failure to exercise discretion.

• Unreasonableness
The term unreasonable is ambiguous and one cannot get an express
definition of it. It is normally referred according to the circumstances of
each case. This term may include irrelevant or extraneous considerations,
improper or collateral purpose, etc. Lord Wrenbury in Roberts V.
Hopwood stated that;

“A discretion does not empower a man to do what he likes merely

because he is minded to do so-he must in the exercise of his discretion
do, not what he likes, but what he ought. In other words, he must, by
use of his reason, ascertain and follow the course which reason directs.
He must act reasonably.”

The test normally is whether a reasonable man could have come to a

decision in question without misdirecting himself or the law or the facts
in material respects. If the conclusion is so unreasonable then the court
will intervene.

• Irrelevant consideration
Statutory power must be exercised on the basis of the ground provided
under the statute. If the authority takes into consideration irrelevant
considerations or extraneous considerations, the exercise of such power

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will be ultra vires. Similarly, where the authority leaves out relevant
considerations the exercise of power will be bad.

• Mala fide
This means ill-will, dishonest intention or corrupt motive. The power may
be exercised maliciously, out of personal animosity, ill-will or vengeance
or fraudulently and with intent to achieve certain goal foreign to the
statute. Bad intent or malice can be either malice in fact (one which infer
personal bias or oblique motive) or malice in law (one which the
administrative action is contrary to the objects, requirements and
conditions of a valid exercise of power).

• Fettering discretion
Discretionary powers must be exercised after considering individual cases.
Imposing fetters on one’s own discretion by adopting fixed rules of policy
amounts to imposing fetters on discretion and may lead to failure to
exercise discretion.

• Acting under dictation

This happens where a body entrusted with certain powers of carrying out
decision surrenders such power under the influence of another authority
which has not conferred such by under the law. So the entrusted body
will purport to give the decision of its own which in actual fact has been
influenced by the other authority. In that case such decision is ultra vires
and amount to abdication and surrender of discretion.

c) Procedural impropriety

This can further be sub-divided into;

• Failure to follow statutory procedures

• Breach of rules of natural justice

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 Angetile Mwakilembe
[email protected]

8. Procedures in relation to application for Prerogative Orders

In applying for Prerogative Order, a person must first apply for a leave of the Court
and it is only after obtaining the leave that such a person will be able to apply for
Prerogative Orders.

i) Application for Leave to Apply for Prerogative Orders

It is a mandatory requirement to seek leave of the court before applying for

Prerogative Orders. This is evident under Rule 5 (1) of the Law Reform (Fatal
Accidents and Miscellaneous Provision) (Judicial Review Procedure and Fees)
Rules, 2014. An application for leave is required to be heard and determined
within 14 days as per Rule 5 (4) of the Rules (Supra)

In the book JUDICIAL REMEDIES IN PUBLIC LAW second Edition by Clive Lewis
at pg. 236 quoted with approval in M/S. Tanalec Limited V. The Honourable
Attorney General & Another,38 it is stated:

"The requirement of permission is designed to filter out applications which are

groundless or hopeless at an early stage. The purpose is to prevent the time of
the court being wasted by busy bodie's with misguided or trivial complaints of
administrative error and to remove the uncertainty in which the public
authorities might be left”

In seeking leave to file an application for prerogative orders, the applicant

merely required to raise arguable points. He is not required to prove the alleged
errors for, that proof would only be required, during hearing of the main
application if leave is granted. Regard being had to the statement and the
attached supporting document. This was as per Workers of Tanganyika Textile
Industries Ltd V. Registrar of The Industrial Court of Tanzania and Others.39

Documents Required

38
Misc. Civil Cause No. 9 of 2011 (H.C. Commercial Division)
39
Misc. Civil Cause No. 144/93 H.C. at Dar (Kalegeya, J). See also THA V. Minister for Labour and AG, Misc. Civil
Cause No. 7/99 HC at DSM.

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 Angetile Mwakilembe
[email protected]

The documents required in application for leave to apply for Prerogative Orders
as per Rule 5 (2) of the Law Reform (Fatal Accidents and Miscellaneous
Provision) (Judicial Review Procedure and Fees) Rules, 2014 are; Chamber
Summons supported by an affidavit and a Statement. Depending on the urgency,
it is imperative to also include a certificate of urgency for quick determination of
the application.

ii) Application for Prerogative Orders

Upon being granted leave to apply for prerogative orders, the next step will be
to actually apply for Prerogative Orders which must be done within 14 days after
leave has been granted as provided for under Rule 8 (1) of the Law Reform (Fatal
Accidents and Miscellaneous Provision) (Judicial Review Procedure and Fees)
Rules, 2014.

Documents Required

The same as in application for leave to apply for prerogative orders. The relevant
rule is Rule 8 (1) (a) of the Law Reform (Fatal Accidents and Miscellaneous
Provision) (Judicial Review Procedure and Fees) Rules, 2014

9. Conclusion
It is for the executive to make administrative decisions. Parliament has empowered the
executive to decide what it thinks necessary. It has to make political and economic judgments.
It may make a sound one or a bad one. The courts might have been able to make a better one
than the executive made; but it must be remembered that parliament, no doubt for good
reason, has not entrusted guidance to the courts.40

40
Hon. Mwalusanya, J. in John Mwombeki Byombalirwa’s case (Supra)

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