High Court sets aside judgment in Makamba case

Fidelis Munyoro

Chief Court Reporter

IN a closely-watched ruling, the High Court has set aside a default judgment granted earlier this year in a dispute involving prominent businessman James Makamba and Kestrel Corporation (Private) Limited against Magamba Echimurenga.

Justice Christopher Dube-Banda, last week, granted the application for rescission of judgment and ordered Mr Makamba and Kestrel to file their opposing papers within 10 days.

The case arose from a consent order issued in February 2020 in HC 1817/18, where Magamba Echimurenga had withdrawn a summons issued against Makamba and others.

Years later, in HC 5889/20, Magamba sought to rescind the consent order, alleging it had been procured through a mistake common to the parties.

The High Court, per Justice Siyabona Paul Musithu, upheld a procedural objection raised by Magamba and struck out the opposing affidavit of Makamba and Kestrel Corporation as defective, effectively treating the application for rescission as unopposed. The resulting order rescinded the original consent judgment.

Mr Makamba and Kestrel Corporation subsequently sought to overturn the May 2025 order, filing the present application for rescission of default judgment under Rule 29 of the High Court Rules, 2021.

The application was opposed by Magamba Echimurenga, who argued that it was fatally defective for being brought under the wrong procedural rule and that the applicants had no valid defence on the merits.

Justice Dube-Banda disagreed.

The court rejected Magamba’s procedural objection, finding that while the application was nominally filed under Rule 29, the substance of the applicants’ arguments aligned with the requirements of Rule 27, which governs rescission of judgments granted in default.

Citing established legal principles, the judge emphasised that “an application stands or falls on its founding affidavit,” which in this case satisfied the jurisdictional requirements for rescission under Rule 27.

Justice Dube-Banda noted that the applicants had provided a reasonable explanation for their default. He found that while their opposing affidavit in HC 5889/20 was procedurally defective, they had actively participated in the earlier proceedings by filing heads of argument and appearing at the hearing.

“On the facts of this case, it cannot be said that the applicants knew about the legal process and, at the date of the hearing, decided to ignore them,” the judge stated.

He concluded that the applicants were not in wilful default.

Turning to the merits, Justice Dube-Banda held that the applicants had a bona fide defence with reasonable prospects of success.

He questioned the legal basis for rescinding the original consent order, noting that such orders are generally binding unless specifically challenged under the appropriate procedural rule.

“My prima facie view is that the application for rescission was standing on a wrong rule,” the judge observed, suggesting that Rule 21, not Rule 29, would have been the proper basis for Magamba’s challenge.

The court also flagged substantive issues regarding the legal effect of a withdrawal of proceedings. Justice Dube-Banda noted that a withdrawal typically has the same effect as an order of absolution from the instance, raising doubts about whether it could be rescinded at all.

“This application genuinely and honestly seeks the rescission of the order in HC 5889/20, so that the matter may be determined on the merits,” the judge concluded.

In granting the rescission, Justice Dube-Banda emphasised that the court’s primary goal is to ensure fairness and justice between the parties.

The ruling allows Mr Makamba and Kestrel Corporation to file opposing papers in HC 5889/20, enabling the substantive dispute to be resolved on its merits.

No costs were awarded in the matter, with the judge noting that the applicants had not sought costs against the first respondent and that their application for rescission was an indulgence.

“A no costs order would meet the justice of this case,” Justice Dube-Banda ruled.

The decision reopens a complex legal battle involving multiple parties and raises critical questions about procedural compliance and the binding nature of consent orders in the country’s law.