Automated Summary
Key Facts
The Applicant, Solomon Magagula, filed an application for rescission of a 2000 judgment dismissing his case for non-attendance. The rescission was sought two years and six months after the original judgment, which the court deemed an inordinate delay. The Applicant's counsel, Obsorne Nzima, cited that his colleague Sikelela Magongo arrived late via public transport on the original court date, but no supporting affidavit from Magongo was provided. Additionally, Nzima failed to appear for the rescission hearing on October 15, 2002, without explanation. The court refused the rescission application, ruling the delay and lack of evidence constituted an abuse of process.
Issues
- The rescission application was not supported by a affidavit from the colleague who was supposed to represent the applicant, and the source of the information provided by the applicant's counsel was not disclosed.
- The applicant's counsel, Mr. Nzima, failed to attend the hearing on October 15, 2002, and no explanation for the non-attendance has been provided to the court to date.
- The court refused the rescission application due to a delay of two years and six months after the judgment was handed down, which was deemed inordinate and an abuse of the court process.
Holdings
- The application for rescission is refused due to an inordinate delay of two years and six months after the judgment was handed down, even if it had any merit, as it amounts to an abuse of the court's process.
- The application is also refused because counsel for the Applicant failed to appear for the hearing on 15th October 2002 and no explanation for the non-attendance has been provided to the court.
Remedies
- Counsel is ordered to pay costs of the rescission application debonis propis.
- The application for rescission is refused and counsel is to pay costs of the same debonis propis.
Legal Principles
The court refused the application for rescission due to inordinate delay (2 years and 6 months) in filing, which constituted an abuse of the court process. The delay, combined with the applicant's counsel's failure to appear at the hearing, led to the dismissal of the application.
Judge Name
- Nderi Nduma
- Nicholas Manana
- Josiah Yende
Passage Text
- For the aforesaid reasons, the application for rescission is refused and counsel is to pay costs of the same debonis propis.
- This delay is inordinate and even if the application had any merit at all, which I find it has not, the court would have used its discretion to refuse the application for rescission as this amounts to an abuse of the process of the court.
- There is no Supporting Affidavit by Mr. Magongo and Mr. Nzima does not disclose the source of this information.