Omar JJA, Mustafa, JJA and Mapigano Ag JA.: This appeal emanated from an application by Fredrick G. Kibwana, now the respondent, against the Assistant Registrar G of Buildings, the appellant for the order of certiorari to issue in order to quash the decision of the Assistant Registrar of Buildings in terminating the tenancy of the respondent.
The prayer for the order of certiorari to issue was granted by the High Court H (Mwalusanya, J); the decision of terminating the tenancy of F.G Kibwana was quashed and he was reinstated as the lawful tenant of the premises.
Against this decision of the High Court the Assistant Registrar of Buildings appealed to this court. The most important ground of appeal (and there are eleven of them) was that I the order of certiorari
OMAR JJA, MUSTAFA JJA AND MAPIGANO Ag JA
was bad in law. Also the learned judge misdirected himself on the fact by holding that A the respondent had no alternative remedy available to him.
The learned judge quoted para 147 of Halsbury's Laws of England which states that certiorari "will issue to quash a determination for excess or lack of jurisdiction or error B of law on the face of record or breach of the rules of natural justice or where the determination was procured by fraud, collusion or perjury".
In this case the learned judge held that since the tenant was not served with any demand notices for arrears of rent or letter of notice to quit the premises, the tenant was C condemned unheard which was in breach of rules of natural justice.
Be that as it may, I hold as did my brother Mustafa, J.A. that certiorari being a discretionary remedy for the courts to issue, it cannot be issued in this case where there is already a contractual relationship between landlord and tenant - a relationship of a D commercial or business nature. The recource to the courts of law to adjudicate on the breaches of contract would be a better procedure.
I too would allow the appeal, quash the order made and set aside the ruling made by E the High Court. I would award the costs of the appeal to the appellant.
F Appeal allowed.