The Defendant/Applicant represented by the Attorney General seeks an order to set aside an order to proceed exparte so that he may be heard in the suit. The Respondent/Plaintiff disagrees and cites the strict view of Order 9 rule 18 of the Civil Procedure Rules to say that such an application cannot be brought.
In the present case the Attorney General’s counsel states that on the day the suit came up he was involved in a barrage of Constitutional Petitions and had been unable to come to this court. He also states that the chambers had not been able to appreciate that another counsel should be sent to court even if to seek adjournment. It is my view that having read the pleadings in this case and written submissions by both sides, it comes out that there are circumstances that suggest that the Applicant had good cause to have been unrepresented on the day in question. In such a case court would grant an order prayed for Norah Nakiride Namwandu vs Hotel International 181 HCB 85. I do find it rather difficult to believe that the Attorney General was so outrageously negligent rather he was belligerently pursuing Constitutional Petitions which took precedence over the suit and no alternative State Attorney was available to prosecute this suit. In the circumstances it is only fair that justice be done and in the pursuance of that I would grant the application that the applicant be heard in this matter on its merits. That entails that I vacate the order to proceed exparte and as such set aside the exparte proceedings so that the suit proceeds before another Judge inter parties. Costs to be in the cause.