michael lessan kweka vs john eliafte 1995 tzhc 705 20 november 1995

AT PAR IS S&LAftl'I. c im Aj? ?3 l l ho * 76 o p 1993 MICHAEL L33SA1T E3M<A . . . . . . . . . . . . ..• •A P K & IA IIT V3B3US JCBH ^T.TAWi?! .......... ..E3SPCKI>3JT. H U L H G . BDSSSHI. J. Off -loaBiPd brother Chua, J. dismissed tho appoal that had boon filed "by Michael Lessani ICffolsa {«&** was the defen&ant in the lower court) for non - appearanco* Following that action the appellant filed a chamber sucuaons socking for orders that the applicants appeal ho re admittod tenxL of cousc costs* The application was set for hearing on 18*5*95 vriaoroin I dismissed the application for want of prosecution* Assisting tho partios was Mr# Kbuya learned counsel fox' tho applicant and Mr* Mwakasungula for tho respondent. In this instance the respondent sought to have tho application ^appiicanl fras^raissing though aware of tho hearing date* Ilr* Ilbuya for the applicant has filed an application for the orders that: tho order dismissing the appliction on 18*5*95 a side? that tho application for re-admission of the appeal ho heard and determine! on merits* Tho reasons for this application are to "be found in the affidavit filed by Mr* Svarist Mbuya, learned counsel* Ussentially Mr. Mbuya is saying that he was aware of their application in this court but was held up at the lowor court until 9*15 am •when ho had that case adjourned and rushed to this court only to find his application dismissed for non appearance at around S.2Q. ®ia*t the AS®licaa±*A -any! was picasa-fr In cotrrt hot o o u H »o% «eko aay representation regarding his failure to appear* Also Mr* Mbuya has stated in para 7 of the affidavit that thoro is a serious triable issue in tho matter of tho appeal hence it would be in the interest of justice to hear tho application and the appoal on morits* One Sismas Kwoka, the son of tho applicant has deposed in his affidavit that he appeared in court when the application was called but that his advocate was not then around* Ilr* Disnas Kwoka however does not say whether he said anything to the court concerning the late arrival of his advocate* Ho is, on the other hand, of. the view tha ' • • 2/ &»Gm Buboshi JUDG3 20/11/95 the dismissal of tiio case will causo a 'big loss to his father* This loss has not.heon explained to this court* The respondent was quick to rcact* Ho called upon the court to dismiss the application which in his view had no merit. The respondent felt disturbed by what he called delayed tactics on the peart of the applicant and that since the ease started, it is running in ts the fourth year now* Ho prayed for this court to dismiss the application as' the applicants have not "been vigilant enough to pursue their case* After a careful study of the application^ I am, with duo respect to loaBied counsel Kbuya, inclirod to disallow the samo* I am not convincod that ho .has been diligent to pursue this case* This is the second tirao that ho has failed to appear in respect of the samo caso* I am sure counsel JIbuya would agree with no that this court takes procedonco over the district court and it woiild havo been prudent on his part to start with this court whilst sending a massage of adjournment to the lower court I must add that when the son of the applicant came into court during the hearing of his father’ s application, ho did not intimate to this court that their lowyer was on his and therefore ask the court maybo to start with other cases* He stayed mum in the court room, apart from saying that ho was listening in on bohalf of his father* I havo also considered the contention made by Mr* Mbuya that there is a serious triable issue in the matter of this appeal* In order to discern this issue X had to grant myself the privi lodge of looking at tho grounds of appeal as presented in tho memorandum of appeal* One clear complaint that omorgos is that the trial magistrate did not take evidence on tho issue of revocation* But a study of the proceedings and judgment gives a dlffcroat pic+uxo - the defendant failed to produce their witness despite several adjournments* 7. cannot at this juncture agreo with the applicant then defendant that the issue of revocation was not looked into by tho trial magistrate* In ray view, he did address his mind to tho matter* In the event tho application by tho applicant is disallowed with costs* For tho applicant Mr* Mbuya L.Qt, Duboshi Respondent present in porson JUDGE 20/11/95 Mr* Mbuya —My hard I want to appeal against this ruling* I thoroforo pray for leave - this is under S. 5 (l)* QEDIIU - leave granted to appeal to court of Appeal* A.G« Buboshi JUDGE 20/ 11/95