By Evarist Baimu Nyaga Mawalla - Home

That, the exparte application for temporary Injuction, and now the current application fortemporary Injuction inter-parties, were bad in law, as they were not based on the civilProcedure Code ORDER XXXVII, Government proceeding Act, the proper applicationof which, would have culminated -1- into notice being served upon the AttorneyGeneral, should have been issued or should hence be issued, was the learned Mr.Warema’s next front, for resisting the application. It would seem, Prof. Shivji notimpressed, nor amused by this submission, the Prof. refused to countenance it, maintainthat, the power to grant temporary Injuction, under the civil procedure code 1966 i.e.under ORDER XXXVII, was just an instant in private law proceedings, and that the HighCourt, in constitutional proceedings, or public law proceedings, its source of remedies,whether final or interim, is the constitutional itself and under Basic Rights and DutiesAct and not the civil procedure code 1966, - ORDER XXXVII.I have, to confess, seriously given commensurate consideration, to this fundamental andimportant question, as we proceed, we are appreciating, that this is a constitutionalpetition, brought under the constitutional provisions, and the basic rights and duties act,already above cited, and this temporary Injuction application relates thereto. Thequestion here inevitably emerging for consideration, and whose answer is anxiouslyawaited, is whether the civil procedure code 1966, in particular the Injuction provisionsORDER XXXVII, are applicable to the proceedings, at hand, the constitutional petition.In my view the answer that seem to emerge is negative.For it is the view, I hold confidently, that the provisions of ORDER XXXVII of theprocedure code, 1966, apply to a suit, and in civil procedure, a suit is instituted by fillinga plaint, which is the first pleading in a civil suit, for the recovery of individual rights, orredress of individual wrong, - see ORDERS 1 and 2 of the civil procedure code, 1966. onthe other hand constitutional proceedings, or petition is not a suit, for settlement ofprivate wrong, but a constitutional litigation, though put in motion by an individual, orindividuals, with a bearing, to give all the citizens, the full measure of justice, soproclaimed on constitutional issues raised, avoiding the austerity of tabulated legalism,enhancing principles of practical Government, and the National aspirations, of a freedemocratic society.The constitutional proceedings belong to the area of public law, and therefore the abovecited ORDER, is not applicable, as it is not meant to cater for constitutional matters, sothat any interim relief, in the interest of Justice desirable in constitutional proceedingswhich are put in motion by filling of petitions and not suits, cannot legally spring fromORDER XXXVII, which does not apply to petitions, which to repeat motorizeconstitution proceedings.Having, with respect, ruled above that the civil procedure code, 1966, is not the source ofpower, of the High court to grant temporary injections or interim relief, the question 15,what is the actual fountain of the High Court’s power, to grant such interim relief’s stilllingers on. My brother Mapigano, J. in that direction in the KAHAMA MINE’s case,was of the view, that, the court, has original and independent jurisdiction, to issue95