Ex Tempore
KAMOCHA
J: This matter was handled in very cavalier
fashion by the applicant's erstwhile legal practitioners. The present legal
practitioners were trying to rectify the many errors made by the previous
lawyers. The new lawyers had, however,
not made a formal application for condonation.
Mr Shenje, appearing for the applicant then made an oral application
for condonation which was opposed. I,
however, granted it after hearing both parties although I had held that the
applicant and his erstwhile legal practitioners had not treated the matter with
the urgency it deserved. I did so in the
interest of justice in order that the application for rescission could be dealt
with.
After listening to both counsels in
respect of the application for rescission it was clear to me that the legal
practitioners and their client were negligent.
The lawyers' negligence was gross.
The applicant did not show a keen interest to prosecute his application
for rescission. After instructing his
legal practitioners he should have made a follow up since he was not getting a
feedback from them. Instead he went to
his rural home and only came back after a period of 8 months. On his return he went to his lawyers who told
him that they had been looking for him but he was nowhere to be found. What he and his lawyers did renders them
culpable.
The applicant has no defence. He assaulted the respondent and caused
blindness in one eye. The respondent suffered permanent disability due to the
blindness in one eye.
He complained about the quantum but
produced no precedent to illustrate that what was awarded in the default
judgment was out of step.
This was not a proper case where the
default judgment should be rescinded. In
the result I would order that the application be and is hereby dismissed with
costs.
Shenje & Co. Legal Practitioners, applicant's legal practitioners
Moyo & Nyoni
respondent's legal practitioners
