CHIWESHE JP: In
this matter the applicant sought on an urgent basis an order for stay of
execution of a judgment granted in favour of the respondent by this honourable
court under case number HC 510/10. I
dismissed the application with costs on the legal practitioner and client scale
and indicated then that my reasons for doing so would follow. These are they.
The
certificate of urgency is irregular in that it is signed by the same legal
practitioner who prepared the application.
On numerous occasions this court has held that a legal practitioner who
prepares the papers cannot be the same legal practitioner who certifies the
urgency of the matter.
Further
and in any event this matter is not urgent.
The applicant has been aware of the attachment of the property by the
Deputy Sheriff since 27 May 2010. On 2
June 2010 the applicant's representative signed a security bond binding himself
as surety and promised that the goods placed under judicial attachment shall
not be disposed of but shall remain in the possession of the applicant and
shall be produced to the Deputy Sheriff on the day appointed for sale in
execution of the judgment of this court.
On 4 June 2010 the Deputy Sheriff instructed auctioneers to advertise
the sale copying his letter to that effect to the applicant. The Deputy Sheriff advised the applicant to
deliver the motor vehicle to him by 23 June 2010.
The
applicant therefore knew as of 27 May 2010 that the goods had been placed under
judicial attachment. As of 4 June 2010
the applicant also knew that the goods would be sold. It is obvious that the applicant had
throughout that period ample opportunity to file an urgent application. It chose not to do so until 18 June 2010 when
it filed the present application, at the eleventh hour. The urgency is thus self created and
therefore non existent.
The
reason for filing the present application is to seek stay of execution on the
grounds that the applicant has filed an application for rescission of the
judgment which respondents seek to execute.
The applicant's prospects of success in such application for rescission appear
very remote. Firstly, the application
is hopelessly out of time. Secondly it
is unlikely that the application would succeed.
In a series of correspondences and meetings between the parties the
applicant has accepted liability in the sum claimed by the respondents and has
offered various settlement plans at every other turn. That is the reason why the applicant did not
oppose the application for summary judgment resulting in default judgment being
entered against it. The applicant never
intended to oppose that application. Applicant
was in willful default arising from acceptance of its indebtedness.
In
my view the present papers have been filed for purposes of delay and thus constitute
a serious abuse of court process. For
that reason I ordered that the applicant pay the costs of this application on a
legal practitioner and client scale.
Kanoti & Associates, applicant's
legal practitioners
Atherstone & Cook, 1st respondent's legal practitioners
