mgonja another vs permanent secretary ministry of works others 2003 tzhc 5 18 march 2003

1 •.•..l:BDiiLL'ili K. MGONJ:~ ) 2. ROBINSON HONYO ) 1. THE Pl!J?J.11'Jri.OO ~l1ETIu{y H!NIf,TRY ) OF \IJOmeS ) ) 3. THE N!.TIGlT,lL THL.NSPORT COHP.:\NY ) (IN llT::CEIVI8RSHIP) ) 4. THF~ PRESIDElffLI.L Pfil1:~STflT.:.L SLCTOR JIl!.amHM CONHIStSION (psnc) ) In ~f'leellanaoo.5 8ivil Cause No. 63/2002 the applicants, Abdallah K. Hgonja and Robinson I'!onyo throUiej:l the legal services of N.J. LUG,~ZIYi't .i'..dvocate cf Dar os 8Cllaam law Chambers, lodged .a -chamber sumroons secking for the fol10\d.ng orders: (i) grant of loave to file an application for prerogative ordors agDinst the Permanent Secretary t Ninistry of Horks and the Prcsidenti31 ?araBt?<tal Sector Reform (11) costs Dl,C: ':"::1y other reliefs deemed appropriste. The ap:PliCl'tiol'l filed UYV'Zlr section. 2 (2) of tho Judicature and ilpp1ica-ti~ of le'vlS Ordinance, Section 17 (2) of the LDw Reform (Fatal l~ccide:lts) Dud Niscellaneous Provisions Ordinance Cap 360 as amended by ,\ct No. 55 of 1963, section 17 of ,~ct No. 27/91, Order XXXVIIHulcs i and 2 and section 95 of the Ci-..ril Procedure Code "1966 is tccolllp<.ni0d by the ,joint affidavit of the applicants. It is depondedby the applic, nts trot they are the lawful tenants of houses on Plot No. 35 THB -EistateKijitonyarna and Plot No. 83 A Drive Inn Area the property of the National Transport Company. the 3rd Respondents and that they have been notified that the premises have reverted to the 1st respondent "v:'hiletheir tenancy agreements subsists. That following this movethe applicants are apprehensive that their rights under the tenancy agreements will be compromised,hence their application seeY~ngorders of prohibition, certiorari and mandamus against the first and 4th respondents respectively. On 10th April 2002 I granted leave to the parties to argue the' application through written submissions and a schedule to that effect \'iaS agreed to. Ruling \'!as to be delivered on 03/07/2002. As neither the aIJiJlicants nor the respondents complied with the order of the court ~o file the 1{_Ti tten submissions, the court on 03/7/2002 dismissed the application for lack of prosecution. Onreoeipt of tho dismissal o~der of 3rd July 2002 tIre applicants have filed a chamber summonsvnder section 95 and Order IX Rule 13 for orders that the dism.ssal order be set aside and time be extenc100for filing ofvJritten !submissions.In the affidavit in support of the chamberapplication Hr. HutDbaoziJulius Luea~iya has deponed that ;'11i,5sick relative "whoeventually passed away on 23rd June 2002;:prevented him from complyine:with the order of filing the \1.t'itten Bubmi6l3ions. Furthermore the application under reference COJlt~:LnB mattors .of great public importance as such the interests c =·~)tice :;.~equiretlwt it be disposed on meri,t, . In reply the respondents 2ver th.?t the reasons for .non c;wmpliancewith the order of 10/L:/2002 are neither sufficient norjustifj,able to warran~ the :::':lttingaside of the respective order, Careful consideration of the Clrgumentsfor and against the applioation for Getting Aside the dismissal order and restoration 9£..the min appl:'.cDtion clearly ShOHSlack of sufficient and ju.,stifiablc cause/reason as ('"quired by lm'l~ It ~T be true that thE' leomed advocate \vas attending a sick relative who eventually passed away on 23rd June 2002, but the record clearly indicates that the applicant was ordered to file his submir;siol1 in chief and the rejoinder on 16/5/2002 and 5/6/2002 respectively. Thero is every reGson to opine that the applicant's advocate bad ample time to take c,."re of his sick relative as \'Iell as file the 'dritten submissions in compliance "lith the order of the ccurt. In the circumstances I am satisfied that the Bl"IJlication before me has failed to satisfy tho requirements of Q-.cderIX Rule 13 (1) for lack of sufficient cause and I d ismss it with costs. Ruling deli v~,rec1b(~forp l1r. KambaClndHr•• Lugaziya l~a~ ndv0C2tes for the parties this 18i3j2003. •..... 'i,'·_·C j, .\,'- C ...:;:.. S. Ihoma