Gabbs Mukuwa Sichibbalo (Suing in his capcity as administrator of the esate of the late Moses Mudenda Sichibbalo) v Kelvin Kaunda (2023/HPC/0104) [2025] ZMHC 77 (29 September 2025)

2023/HPC/0104 IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA. (Commercial Division) BETWEEN: GABBS MUKUWA SICHIBB (Suing in his capacity as administrator Moses Mudenda Sichibbalo) AND KELVIN KAUNDA DEFENDANT Before Lady Justice B. G. Shonga this 29th September 2025 For the Plaintiff Mr. E. B. Kaluba with Mr. M. Libalceni, Messrs. Mwenya & Mwitwa Adv. & Messrs. Stasion Oliver & Kennedy LP For the Defendant: Mr. M. Shamaleka, Messrs . Munansangu & Co./ RULING Cases Referred to: 1. Raimo Demetria and Another vs Mushota Mushota Junior, Appeal No. 152 of 2014. Legislation and Other Material Referred To: 1. The High Court Rules, Chapter 27 of the Laws of Zambia: 0. XXXV, r. 5 2. The Rules of the Supreme Court of England, 1965, Supreme Court Practice, 1999 Edition: 0. 35. R.2 3. The High Court Act: S. 10. Page J2 of JG 1.0 INTRODUCTION 1.1 This matter comes before me by way of an application to set aside the Judgment of this Court', delivered on 21 st May 2024. 1.2 The application, brought by summons dated 28th June 2024, seeks to reopen the case for trial pursuant to Order 35 rule 5 of the High Court Rules, Chapter 27 of the Laws of Zambia (HCR), read in conjunction with Order 35 rule 2 of the Rules of the Supreme Court of England, 1965, Supreme Court Practice, 1999 Edition (the 'White Book). 1.3 0. XXXV, r. 5 HCR stipulates: 11 Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside upon such terms as may seem fit. 11 1.4 0. 35, r. 2 of the White Book, provides: ''Any judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the court, on the application of that party, on such terms as it thinks fit. 11 1.5 I observe that both provisions convey essentially the same principle. The fact that the defendant has relied on both provisions prompts me to speak to the import of Section 10 of the High Court Act, CAP 27 of the Laws of Zambia, which clarifies that the White Book applies only in the absence of a relevant proposition of law in Zambian law. Given the clarity of Zambian law on this matter, I find it unnecessary for the applicant to rely on the White Book. The local rules suffice to govern this application. Consequently, I will not rely on the quoted rule from the White Book in my determination. 2.0 BACKGROUND 2.1 The genesis of this action dates back to 10 th February 2023, when the plaintiff commenced proceedings against the defendant. Page J3 of J6 2.2 Following the close of pleadings, this Court issued a Notice of Hearing on 28th September 2023, apprising the parties that the trial would be conducted on 23 rd January 2024. On the scheduled trial date, neither the defendant nor his advocates appeared. 2.3 After satisfying myself that the defendant had due notice of the proceedings and noting the absence of a properly filed application for adjournment, I proceeded with the trial in the defendant's absence. 2.4 On 21 st May 2024, I delivered judgment on the merits in favour of the plaintiff. The defendant, dissatisfied with the judgment rendered, filed this application to have the judgment set aside. 3.0 THE DEFENDANT'S APPLICATION 3.1 The defendant's application to set aside the judgment is supported by an affidavit deposed by Kelvin Kaunda, the defendant herein. The deponent asserts that the judgment was delivered following a trial that proceeded in his absence , as well as that of his legal representatives . 3 .2 The defendant explains that he was unable to attend the trial on 23 rd January 2024, as he had travelled to Chiengi District in Luapula Province to visit his critically ill brother. This circumstance, it is avowed, was communicated to his then attorneys. 3 .3 The defendant's affidavit further discloses that his legal representatives also failed to attend court, having opted to prioritize an appearance in the Subordinate Court. The defendant was subsequently informed that the trial proceeded in his absence. 3.4 The defendant now implores this Court to set aside the Judgment dated 21 st May 2024, in the interests of justice, there by affording him an opportunity to present his defence and subject the plaintiffs witnesses to cross-examina tion. Page J4 of JG 3.5 The defendant acknowledges that this application has been brought out of time. He attributes the delay to his initial attempt to appeal against the Judgment, only to be advised by his lawyers to withdraw the appeal and instead seek relief from this Court. He submits that this Court possesses the jurisdiction to enlarge time and determine the matter in the interests of justice. 4.0 THE OPPOSITION 4.1 The plaintiff, Gabbs Mukuwa Sichibbalo, has deposed an affidavit in opposition to the defendant's application. He contends that the defendant's failure to attend the trial, along with his legal representatives, constitutes a deliberate disregard for the Court's authority. 4.2 The plaintiff highlights that the trial date was set at a compliance conference, with a notice period of approximately three months, thereby affording the defendant ample opportunity to prepare. 4.3 The plaintiff argues that the defendant's absence at trial, coupled with his lawyers' decision to prioritize an appearance in the Subordinate Court without seeking an adjournment, demonstrates a lack of respect for this Court. 4.4 The plaintiff concedes that O. 35 r. 5 HCR, empowers this Court to set aside a judgment obtained after trial in the absence of the defendant, provided sufficient cause is demonstrated. The plaintiff relies on the guidance of the Supreme Court in the case of Raimo Demetria and Another vs Mushota Mushota Junior1, which underscores the need for sufficient cause to be shown. 4.5 The plaintiff submits that the defendant's proffered reasons fall short of the threshold required by the Supreme Court, and accordingly, urges this Court to dismiss the application . 1 Appeal 152 of 2014 (SC) Page JS of JG 5.0 ANALYSIS OF THE LAW AND DETERMINATION 5.1 Having carefully considered the affidavit evidence and skeleton arguments presented by both parties, I am of the settled mind that the issue for determination is whether the defendant has demonstrated sufficient cause to warrant the setting aside of my Judgment dated 21 st May 2024. 5.2 As I have already observed, this application is brought pursuant to 0.35, r.5 HCR, quoted above. This rule clearly prescribes that this Court possesses the jurisdiction to set aside a judgment obtained in the absence of a party, provided the absent party can furnish sufficient reasons for their absence. 5.3 I now turn to evaluate to reason for absence that has been advanced by the defendant. The defendant cites visiting his critically ill brother in Luapula Province as the reason for his absence, further supported by a death certificate indicating the brother's passing. However, upon examination, the death certificate reveals the brother's demise occurred in February 2024, aligning with the defendant's affidavit stating the brother died at least a week after the trial. 5.4 While I empathize with the defendant's situation, it's evident that he had alternatives, such as traveling after the trial or filing a motion to adjourn. The timing of the brother's illness and subsequent death does notjustify the defendant's absence on the day of the trial. Given these circumstances, I find the defendant's reason for absence unconvincing, lacking sufficient grounds to warrant setting aside the judgment. 5.5 In conclusion, I find that the defendant has failed to demonstrate sufficient reason for his absence from the trial. In light of the foregoing, I decline to exercise my discretion in his favour and I hereby dismiss the defendant's application. 5.6 The Judgment of 21 st May 2024 stands, and the defendant's application to set aside the judgment is dismissed. Page JG of JG 5.7 Costs are awarded in favour of the plaintiff, to be taxed in default of agreement Dated this 29 th day of September,