Kajoloweka v Botha (Civil Cause 103 of 2016) [2022] MWHCCiv 57 (16 November 2022)

IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 103 OF 2016 BETWEEN CHARLES KAJOLOWEKA (On behalf of the Kajoloweka Family)..............66. CLAIMANT -and- PESSI BOTHA.............0sececseees ee DEFENDANT CORAM: THE HON. JUSTICE T. R. LIGOWE Ms. T. Manda Counsel for the Claimant Mr. C. Ghambi Counsel for the Defendant Mr. G. Msukwa Official Interpreter Mrs. R. Luhanga Senior Court Reporter RULING Dy The record of this case shows that pleadings were closed by the Defendants filing their defence on 21st November 2016. That was before the Courts (High Court) (Civil Procedure) Rules 2017 came into force. Under the old rules of procedure, it meant the matter had to go for mandatory mediation and proceed to trial after the mediator had issued a certificate terminating the mediaticn. That was not done, but we see on file the Defendant's witness statements filed on 2°4 March 2017, Defendant's trial bundle filed on 29! May 2017, and an application to dismiss the action for want of prosecution filed on 5th September 2017. That failed to take place on 9th November 2017. It was adjourned to 19! December 2017 and failed also. It was adjourned again to 18th January 2018, when it was heard and the Registrar made the order dated 23 March 2018, declining to dismiss the action but ordering the Plaintiffs to pay costs and file the necessary documents within 14 days, failing which the matter would stand automatically dismissed. Counsel for the Defendant understands this order as requiring the Claimant to file for a scheduling conference and thereafter a pre-trial conference. Counsel for the Claimant understands this order as requiring the Claimant to file a trial bundle and notice of hearing. At this point the Courts (High Court) (Civil Procedure) Rules 2017, had come into force. According to these rules, at the stage this matter stood, it still had to go for mediation before proceeding to trial. Unlike for Counsel for both sides, my understanding of the order is that the Claimant would then have filed his statement of issues together with a notice for mediation. Even if mediation were to be skipped, the Claimant would not have jumped to file a trial bundle and notice of hearing before a scheduling conference and if needed a pre-trial conference were done. Counsel therefore missed the point. 10. Vis 12. On the notice of hearing the Claimant filed on 29't November 2018 Justice DeGabriele queried why the notice came before the costs were paid and the writ of execution thereof had not been executed. Counsel for the Claimant has argued that it was for the Defendant to act on the Judge's query by executing the writ of execution. Counsel for the Defendant has argued that following this query, the Claimant paid the costs and should have filed another notice of hearing for the matter to proceed but he did not until yesterday, 15!" November 2022 when he filed the notice of hearing along with his response to the present application by the Defendant to dismiss the action. lf we follow the Registrar's order of 12'? March 2018 in view of the record, the Claimant did not comply with all the directions given by the order. The matter therefore, automatically stood dismissed for want of prosecution upon failure to comply with that order. It required all necessary processes to be filed within 14 days and costs also to be paid within 14 days. Nothing had been done since 12!" March 2018 until the Defendant issued a writ of execution for the costs on 17th July 2018, and the Claimant filed a notice of hearing on 29th October 2018. As earlier noted, when the Judge refused to accept the notice of hearing fled on 29th October 2018, the other notice was filed yesterday 15" November 2022. As earlier noted also, this is not what was supposed to be done according to the rules of procedure. In view of all this, | find that the Claimant has failed to explain his delay to take necessary steps to prosecute his case since the pleadings were closed 13. 14, 15. on 21st November 2016. In that regard, this matter automatically stood dismissed 14 days after the order of the Registrar of 12!" March 2018. To quote from Lord Denning in Allen Vs Sir Alfred McAlpine & Sons (1968) 1 ALL ER 543, at page 547, cited by Counsel for the Claimant; The principle on which we go is clear: when the delay is prolonged and inexcusable, and is such as to do grave injustice to one side or the other, or to both, the Court may in its discretion dismiss the action straightaway, leaving the Plaintiff to his remedy to his own solicitor who has brought him to this plight. Whenever a solicitor, by his inexcusable delay, deprives a client of his cause of action, the client can claim damages against him. That is the situation in the present case. The Claimant's action stands dismissed. It stood dismissed 14 days after 12th March 2018. It was not even necessary for the Defendant to bring the present application. For that reason, | will order no costs. Made in Chambers this 16"? day of November 2022.