Key Facts

Issues

• The respondent argued that the applicant failed to comply with the Court's order of 12th April 2022 to file an amended memorandum of appeal. The court held that this issue could not be determined at the current stage, as the primary focus was on whether sufficient cause existed for the absence. The compliance issue would be addressed if the appeal were restored, indicating it is a separate matter from the restoration determination.
• The court had to determine whether the applicant's counsel's absence, due to traveling to Mbeya for his sister's burial, constituted a sufficient cause under Order XXXIX, Rule 19(1) of the Civil Procedure Code to justify restoring the appeal. The applicant provided evidence including a burial certificate and travel documentation to support this claim. The court found that the bereavement and subsequent travel to attend the burial constituted sufficient cause for the non-appearance.
• The respondent contended that Mr. Mwangwala did not represent the applicant's counsel in the dismissed appeal. The court found this argument unsupported by the pleadings, as Mr. Mwangwala had previously introduced himself as the applicant's counsel. The court applied the principle that parties are bound by their own pleadings, dismissing the argument as lacking legal foundation. This issue was resolved in favor of the applicant, affirming the validity of the counsel's representation.

Holdings

• The court deferred ruling on the applicant's failure to file an amended memorandum of appeal, stating that this issue cannot be determined at the restoration stage. It will be addressed if the appeal proceeds after restoration.
• The court dismissed the respondent's argument that the applicant's counsel was not the proper representative, citing that the counter-affidavit explicitly acknowledged the counsel's introduction as the applicant's representative. The court held that parties are bound by their own pleadings, and the argument lacked legal basis.
• The court found that the applicant's counsel had a sufficient cause (bereavement and travel to bury his sister) to miss the hearing on 11th July 2022. Despite arriving late, the counsel's presence after dismissal was noted, and the court ruled that this constitutes a valid reason for restoration under Order XXXIX, Rule 19(1) of the CPC. The dismissal order of Civil Appeal No. 111 of 2021 was set aside, and the appeal was restored.

Remedies

• Costs to follow event in the appeal.
• The dismissal order of Civil Appeal No. 111 of 2021 is hereby set aside. In lieu thereof, Civil Appeal No. 111 of 2021 is restored. Costs to follow event in the appeal.

Legal Principles

• The court emphasized that the applicant must prove sufficient cause for missing the hearing under Order XXXIX, Rule 19(1) of the CPC. This principle requires the applicant to demonstrate legitimate reasons for non-appearance to justify restoration of the appeal.
• The court held that parties are bound by their own pleadings, invalidating the respondent's argument that the applicant's counsel lacked authority to represent them. This principle prevents parties from contradicting their prior submissions.

Precedent Name

• Hashim Ndwangila vs Yusta Njechele
• Honest Marandu vs Farida Rashid
• Mwanahawa Haruna vs Fatuma and Another

Cited Statute

Judge Name

Passage Text

• The facts deposed in the supporting affidavit show that six days before the hearing date, the applicant's counsel lost his sister, namely Ruth Emmanuel Mwangwala who met his demise on 5th July, 2022. It was further deposed that the said counsel travelled to Kyela District, Mbeya Region where his late sister was buried on 9th July, 2022. Appended to the affidavit are copies travelling certificate issued by Lutethan Church- Boko, Burial Certificate which support the contention by the applicant's counsel.
• "Where an appeal is dismissed under sub-rule (2), of rule 11 or rule 17 or rule 18, the appellant may apply to the Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit." (Emphasis supplied)
• It is my considered view that the fact that the applicant's counsel was bereaved and inclined to travel to bury his sister is a sufficient cause which prevented him from appearing when the appeal was called on for hearing 11th July, 2022 at 9.00 a.m.