The
applicants seeks a declaratory order in this matter in the following terms...,
-
1.
That it be and is hereby declared that the stay of execution of Honourable Mr.
Justice KARWI's provisional order under case number HC6541/09 obtained by the
third respondent as the applicant under case number HC128/2010 (HH16-10) has
lapsed for want of prosecution of an application for rescission of judgment
within the time limits ordered and directed by Honourable Justice KARWI under
case number HC128/2010 (HH16-10).
2.
That it be and is hereby ordered that the applicants are authorized and
empowered forthwith to attend to the execution and implementation of the
interim relief as provided for under case number HC6541/09.
3.
It be and is hereby ordered that any purported noting of an appeal against this
order shall not have the effect of staying or suspending the execution of the
interim relief granted under HC6541/09.
4.
That the third respondent, in the event of opposition, pay the costs of this
application.
The
relief sought is opposed by the third respondent.
There
was no appearance on behalf of the first, second, and fourth respondents
respectively.
The
first respondent filed a document stating that the first respondent will abide
by the decision of the court.
The
factual background relevant, and of essence, to the determination of this
matter, and which is not in dispute, is as follows:
In
proceedings in case number HC6541/09, the present applicants filed an urgent
chamber application in which they sought, and were granted, a provisional order
of spoliation against the present third respondent on 5 January 2010...,. The
present third respondent then filed an urgent chamber application in proceedings
filed under case number HC128/10 seeking a stay of the spoliation order granted
by KARWI J. This court, having considered the application, issued a judgment
and granted interim relief..., on 26 January 2010 as follows -
“INTERIM
RELIEF
Pending
the determination of this matter, the applicant is granted the following
relief:
(a)
The operation of, and execution of the default order handed down by KARWI J in
case number HC6541/09 be and is hereby stayed.
(b)
The applicant shall file his application for rescission of judgment granted in
case number HC6541/09 within seven days of the granting of this order.”
It
is clear from the interim order issued by MUSAKWA J that he granted the present
third respondent a stay of execution. The third respondent was directed to file
an application for rescission within a period of seven days of the date of the
grant of the order – which was 26 January 2010.
The
third respondent submitted that in proceedings under case number 128/10 he
filed an application for rescission. The final order sought in those papers was
one of rescission of the interim order granted in default by KARWI J.
A
perusal of the papers filed under case number HC128/10 confirms this position.
The
relief sought by the present applicants is misplaced given the presence of an
application for rescission which is pending.
The
complaint by the present applicants is understandable. It should not have taken
more than fourteen days for the present respondent to have enrolled this matter
on the opposed roll for hearing on notice to the present applicants.
That
was not done.
Under
the circumstances, the relief sought cannot be granted.
In
order that this matter is finalised, it is proposed to grant the following
directions -
1.
The papers filed under case number HC128/10 shall stand as the application for
rescission.
2.
The present applicants shall, within seven days of the date of this order, file
their opposing papers.
3.
The parties shall file their heads of argument within the time limits as
stipulated within the High Court Rules, and obtain a date of set down for the
hearing of the application for rescission on the opposed roll.
4. Costs shall be costs in the cause.
