Gumbo v Paradin Africa Limited (Civil Cause 5 of 2012) [2013] MWHC 493 (30 October 2013)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY CIVIL CAUSE NO. 5 OF 2012 Between MARK SEXTER GUMBO...........csccsscssssrscssesessesescsssersersseencens PLAINTIFF -And- PARADIN AFRICA LIMITED............csccccssrsesssscsssersereresnsreenees -DEFENDANT CORAM: Howard Pemba, Assistant Registrar David Banda, of counsel for the Defendant Plaintiff, Not present Nkhwazi, Official interpreter RULING This is an application on the part of the above named Defendant for an order that the plaintiff’s action herein be dismissed with costs for want of prosecution, the Plaintiff having failed to initiate a mediation session within 90 days after service of defence. The background to this action is that the plaintiff commenced this action by way of a writ of summons issued on 9'" day of January, 2012 claiming damages for pain and suffering and loss of amenities of life and loss of his earning capacity while working at the Defendant’s mine at Kayerekera in Karonga pursuant to which the Plaintiff believed was the negligence of the Defendant and costs of the action. The Defendant filed and served their Defence on the Plaintiff on 26" of March 2012. Since that time, it is alleged that the Plaintiff has done nothing to proceed with that matter. The Defendant now applies to this court that the claim as against the Defendant be dismissed for want of prosecution considering that it is almost a year after 3 months expired when the matter was set down for mediation. | have heard counsel for the Defendant attentively and appreciated his arguments in support of this application. | have furthermore looked at and considered alt the records concerning the matter herein in the light of the applicable law. In all faimess, | have found out that the argument by counsel for the Defendant is meritorious looking at the circumstances of the matter. [t is trite law that matters should have time limit; they should commence and then come to an end. There is no way a party to a matter should just be kept in suspense as to the progress of the matter. It is against the same background that laws have been provided within the rules of the Supreme Court as well as the Courts Mandatory Mediation Rules such as Rule 7(2) of the latter that guard against this to ensure that matters do come to an end. | agree with counsel for the Defendant that this matter has taken almost a year without any progress made by the Plaintiff. The Defendant has just been kept waiting with a burden on them at the instance of the Plaintiff who has deliberately decided to sit on his own litigation. | am of the view that he is no longer interested to proceed with the matter and the Defendant therefore ought to be relieved of this burden. Worse still, when the date for hearing of the application herein was scheduled, the Plaintiff herein let alone his legal counsel did not turn up despite clear evidence that they were served with the notice and no any communication was made as to why they were not available. This, | believe, just emphasizes a point that they no longer wish to prosecute the matter herein as enunciated by counsel for the Defendant. Thus, considering the argument advanced by counsel for the Defendant, there is merit in this application and the court would like to concur with him that the action herein ought to be dismissed. | therefore proceed to dismiss the Plaintiff’s action herein for want of prosecution. Costs are for the Defendant. Pronounced in Chambers this 30° day of October 2013 at Zomba. r c ny oe , ve Howard Pemba ASSISTANT REGISTRAR