CHAMBER
APPLICATION
CHIWESHE
JA: This
is a chamber application for reinstatement of appeal and exemption
from payment of security for costs made in terms of Rule 70(2) and
Rule 55(3) of the Supreme Court Rules respectively.
After
hearing submissions from counsel, I reserved judgment on the several
preliminary objections raised by counsel for the second respondent. I
subsequently gave an order striking the matter off the roll.
The
applicant has requested the reasons for that order. These are they.
The
facts of the matter as narrated by the applicant are these.
The
applicant is the appellant under SC378/22, the main matter. She
alleges that her appeal was wrongly dismissed by the Registrar, the
second respondent. For that reason she has filed the present chamber
application for reinstatement of the appeal and exemption from
payment of security of costs.
The
applicant avers that the Registrar's misconduct lies in the fact
that he or she has deemed the applicant's appeal abandoned for
failure to pay security for costs. Such determination, argues the
applicant, is wrong for the reason that there is no valid
determination of costs to be adhered to and even if there was, the
thirty (30) working days within which the applicant had to furnish
the security for costs had not lapsed at the date of dismissal of the
appeal in the main matter.
The
second respondent, Monica Gondo, had entered into an agreement of
sale with the applicant's former husband when there was no valid
subdivisional permit at the time the sale was concluded. Accordingly,
the subsequent transfer to the second respondent was defective,
fatally so.
The
applicant challenged the validity of that sale through an application
for cancellation of title made before the High Court. The High Court,
according to the applicant, erroneously found
that the matter was “res
judicata”
and upheld the second respondent's preliminary objection on that
ground.
The
second respondent, through her legal practitioners, founded part of
the basis against which the present application motivated.
The
applicant has lodged a hybrid application for the reinstatement of
the appeal in the main matter and for exemption from paying security
of costs in that matter.
She
proceeds by way of Rule 70(2) and Rule 55(3) of the Supreme Court
Rules 2018, respectively.
The
second respondent opposed the application.
Mr
Gama,
her counsel, raised a number of preliminary objections, chief among
which was that the cause in the main matter was “res
judicata”.
This
Court under SC489/20 judgment no. SC77/22 definitively disposed of
the dispute in the main matter. At p3 of the ex tempore judgment,
CHATUKUTA JA, who read the court's unanimous decision had this to
say:
“It
is our view that this appeal can be resolved by the determination of
the fourth ground of appeal. The ground raises whether the first
respondent (applicant herein) had a direct and substantial interest
to impeach the agreement of sale between the appellant (second
respondent herein) and fifth respondent (applicant's former
husband). (My own brackets)
We
agree with Mr Gama
that the first respondent did not have a direct and substantial
interest in the subdivision. The main property and the subdivision
were subsequently registered in the name of the fifth respondent. As
the owner of the properties he could dispose of the properties.
Instead
the first respondent has an indirect interest in that she has a
personal right against the first respondent. That personal right
dis-entitles her from vindicating the subdivision.
The
court a
quo
therefore misdirected itself, in making a finding that the first
respondent had a direct and substantial interest in the main property
and subdivision.
It
was therefore not necessary for the court a
quo
to inquire into the validity of the certificate of compliance.
In
any event, the first respondent was not privy to the contract between
the appellant and the fifth respondent. She therefore could not sue
for it.
There
is no reason why we should depart from the general principle that
costs follow the cause.
Accordingly,
we make the following order:
1.
The appeal be and is hereby allowed with costs.
2.
The order of the court a
quo
be and is hereby set aside and substituted with the following:
“The
application for a declaratory order filed under Case No. HC3715/19 be
and is hereby dismissed with costs.”
Having
upheld the respondent's submission that the matter was res
judicata
on account of that judgment of this court, it is no longer necessary
to deal with the rest of the respondent's preliminary objections.
The
matter must end here.
It
was for these reasons that I ordered that the matter be struck off
the roll. I am advised that I should have dismissed the matter.
Stansilous
& Associates,
applicant's legal practitioners
Gama
& Partners, respondents legal practitioners
