This was an application by residents of Kunduchi Mtongani for Orders of Certiorari, prohibition, Mandamus and costs thereto, to quash the decision of the Dar es Salaam City Council to dump the city's waste and refuse, to prohibit the respondent from continuing to carry out its decision; and to compel the respondent to discharge its function properly by establishing an appropriate refuse dumping site and use it.
Kunduchi Mtongani is within the area of jurisdiction of the City Council, but it is zoned in the city's Master plan as a residential area. The Council began to dump waste and refuse at this area effectively from September, 1991 after the High Court's order in Joseph D. Kessy and Others v. The City Council of Dar es Salaam not to dump refuse at Tabata. The dumped refuse and waste were burning emitting much smoke covering wide area and offensive smell has attracted swarms of flies.
For the applicants, it was argued that collection and disposal of refuse was one of the city Council's Mandatory duties, but the law required that statutory duties to be performed lawfully and that by dumping refuse at Kunduchi-Mtongani the respondents were executing its duty unlawfully, thus ultra vires. The respondents did not consider the relevant factors in deciding to dump waste at Mtongani; the decision was also without plausible justification because the dumping activity was posing a health hazard and nuisance to the residents and thereby making life extremely unbearable; and the decision was unreasonable.
In reply, for the respondents it was submitted that in depositing refuse at Kunduchi Mtongani they were performing a statutory duty lawfully, and the activity was not ultra vires the Empowering Act.
The Court held that the respondent's decision to disposing refuse and waste at Kunduchi Mtongani was ultra vires the Local Government (Urban Authorities) Act, 1982. Firstly, it was contrary to the City's Master plan; and secondly, it was not a statutory duty of the respondent to create nuisance but to stop it. Nor is it to create sources of danger to the residents' health. And that it was not proper for a public authority, or an individual to pollute and thereby endanger people's lives. To do so would be contrary to article 14 of the constitution which guarantees the right to life and its protection by the society.