Kazembe v January & 2 others (Civil Cause 488 of 2019) [2022] MWHC 216 (23 June 2022)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NO. 488 OF 2019 BETWEEN SAMSON KAZEMBE... ese cecerccer ces cessssceneereecsssses coe ceecsenssess costes ces ec LAIMANT AND PETERKINS JANUARY ....00ssscseees cos coe renneeeseess sos resuneeee cesses sesaeaf RESPONDENT MULLI BROTHERS LIMITED... 22. 00. ccc cee cee cesses ene ee ceeee ces cee see ee ene2© RESEPONDENT LIBERTY GENERAL INSURANCE COMPANY LIMITED... ... 00.000 ee eee eee 3°? DEFENDANT CORAM: ATHONY. P KAPASWICHE ASSISTANT REGISTRAR Mr. Silungwe Counsel for the Claimant Mr, Kalampa Counsel for the 2" Defendant Mr. Kumwenda Counsel for the 1%* Respondent ORDER ON PRELIMINARY OBJECTION On the 28" June 2019, the Claimant commenced the present action seeking damages for pain and suffering; damages for loss of amenities of life; damages for disfigurement; loss of earnings and earning capacity; medical and police report and costs of the action. On 6t April 2020; the parties signed an agreement endorsed by the Court on liability. The said Judgment on liability was entered against the 2"4 Defendant and damages were to be assessed by the Assistant Registrar if not agreed by the parties. The matter was then set down for assesment of damages. Before the assesment proceedings were heard; the 2" Defendant made an Ex- parte application for an order for stay of proceedings on the basis that they signed the consent order on liability by mistake and as a result, the 24 Defendant filed an application before the Judge to set aside the consent order. This Court, on the 23" February 2021 directed that the application for stay of proceedings should come Inter-parties. The 2"¢ Defendant did not file the Inter-parties’ application and the matter was then set for assesment of damages on 9" August 2021 after a number of adjournments. On the date of hearing of the assesment of damages; the 2™ Defendant raised a pretiminary objection to the hearing on the basis that the consent order upon which these proceedings rise was entered under mistake of fact and is now subject to the proceedings before a Judge to have the said consent order set aside. | do not understand as to why the 2" Defendant failed to adhere to my directions on made on the 23" February 2021 as | had directed that their application to stay proceedings should come inter-parties. Instead of bringing an Inter-party application for stay of proceedings; the 24 Defendant decides to stop the proceedings by bringing a notice of preliminary objection. The issue raised in the notice of preliminary objection is the same issue raised in the Ex-parte application for stay of proceedings which this Court had directed that the application should come Inter-parties. The 2" Defendant simply needed to proceed as per the directions of this Court and it is on this basis that | dismiss the preliminary objection with costs. The Claimant should file a notice of assesment of damages as the purported _ preliminary objection has been dismissed. Delivered on the 23 day of June 2022 at LILONGWE. ANTHONY PITILIZANI KAPASWICHE ASSISTANT REGISTRAR