Pensulo v Prime Insurance Co. Ltd. & Ors. (Civil Cause 366 of 2016) [2018] MWHC 704 (21 May 2018)

Triza Pensulo v. Fredwick Mswayo and 2 Others Kenyatta Nyirenda, J. o JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO 366 OF 2016 BETWEEN TRIZA PENSULO........................................................................... CLAIMANT c AND PRIME INSURANCE COMPANY LIMITED.................... 1st DEFENDANT BRITAM INSURANCE COMPANY LIMITED................ 2nd DEFENDANT MALAWI TELECOMMUNICATIONS LIMITED...........3rd DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. Mr. Chayekha, of Counsel, for the Claimant Mr. Kalanda, of Counsel, for the 1st Defendant Mr. A. Mkwanda, of Counsel, for the 2nd Defendant 3 rd Defendant, absent and unrepresented Mrs. Jessie Chilimapunga, Court Clerk _________________________RULING__________________________________ Kenyatta Nyirenda, J. This is my ruling on an application by the Claimant to extend time within which to serve Amended Summons and Amended Statement of Claim. O o The application is supported by a sworn statement by Mr. Charles Mlozeni Chayekha wherein he deposes as follows: “3. THAT the Court on 28lh November 2017 delivered its ruling which among other things directed the Claimant to serve the amended Statement o f claim on the Defendants within 14 days o f the Order and for the 3rd Defendant to serve its defence within 14 days o f the service o f the Statement o f claim. w wi> l Triza Pensulo v. Fredwick Mswayo and 2 Others Kenyatta Nyirenda, J. 4. 5. 6. 7. THAT the said Order was not handed down to the parties in Court hence it took some time for the parties, the Claimant in particular to get the Order. THAT after getting the Order, the claimant failed to file the amended Statement o f Claim in time due to the festive season break, the Claimant only filed the amended Summons and Statement o f claim on 4th January 2018. I attach a filed copy marked “CMC1 ”. THAT the Claimant was then awaiting for the amended Summons to be issued by the Court so that if could he served on the Defendants but for reasons not known to the Claimant the Court has taken long to have the amended summons issued and in the process lime has elapsed and the Defendant have fded Certificate o f non-compliance. THAT however tty Claimant is desirous o f prosecuting the matter and the delay herein is not deliberate and the Defendants have not suffered any prejudice. ’’ The 3rd Defendant is opposed to the application. Having filed no sworn statement, Counsel Mkwanda stated that the 3rd Defendant would only raise purely legal issues. The opposition by ths>3ld Defendant to the application is premised on three grounds. The first ground has to do with effluxion of time. It is the case of the 3rd Defendant that the application herein should have been brought before the expiry of 14 days from the date of the order granted herein on 28th November 2017. Counsel Mkwanda argued that these proceedings are now null and void because the 14 days having expired, there is nothing for the Claimant to extend. Counsel Mkwanda cited the case of Lilongwe“Water Hoard and 3 Others ex-parte Malawi Law Society, MSCA Civil Appeal No. 59 ol‘2017. The second ground is to the effect that the Claimant has unclean hands. Counsel Mkwanda submitted that it is not true that the Claimant did not receive the Ruling in good time. He drew the Court’s attention to the Amended Statement of Claim which is dated 20th December 2017 and argued that this meant that the Ruling was received much earlier. In this regard, Counsel Mkwanda contended that the Claimant has himself to blame for not taking any steps to have the documents filed before the start of the Christmas holiday on 23rd December 2017. Thirdly, the 3 Defendant accused the Claimant for being reactionary in that the application for extension of time was only made after the Claimant had been served with the Certificate of non-compliance on 8th January 2018. I am not persuaded by the grounds advanced by the 3rd Defendant for its opposition to the application herein. Order 3, r.5, of the Court (High Court) (Civil Procedure) O o Triza Pensulo v. Fredwick Mswayo and 2 Others Kenyatta Nyirenda, J. Rules [Hereinafter referred to as “CPR”j is clear: “The Court may by order extend or abridge any time fixed by -these Rules or by a final or an interlocutory order. Further, much as a failure to comply with the CPR or a direction of the Court constitutes an irregularity, an irregularity in a proceeding, document, step taken or order does not render the proceeding, document, step taken or order a nullity: see Order 2 of CPR. Furthermore, it is always important, 1 believe, to bear in mind that the ultimate aim of the court is to facilitate fbfe fair and expeditious resolution of the real issues in the proceedings: see Order 1, r.5, of CPR. I need hardly say that courts loath the perdition of cases through technicalities. In the present case, the Claimant has put forward satisfactory reasons for his failure to file the amended statement of claim and the delay was a matter of days and not months. That coupled with" the fact that there is no evidence of prejudice to be suffered by the Defendant tilts the scales of justice in favour of allowing the application. In the premised, the time within which the amended Summons and the amended Statement of Claim have to be served on the Defendants is extended by 7 days hereof. It is so ordered.0 Pronounced in Court this 21st day of May 2018 at Blantyre in the Republic of Malawi. \<4 K e n y a t t a Nyirenda JUDGE O