Online Reporter
Fidelis Munyoro
Chief Court Reporter
DUNHURAMAMBO (Private) Limited, trading as Zambezi Cruise and Safaris, has successfully obtained condonation for its non-compliance with court rules.
As a result, the company’s previously abandoned case, which had been struck off the roll, has now been reinstated.
The application was heard by Justice Joel Mambara early this month in an opposed proceeding where the applicant sought to rectify prior procedural defects and revive the matter.
The case originated from a review application filed by Dunhuramambo challenging taxing officer Mr Charles Nikobasa’s decision on costs.
The original application was struck off on March 30, this year, due to procedural non-compliance, including the failure to file the review within the 14-day window prescribed by Rule 72(26) of the High Court Rules.
The matter was subsequently deemed abandoned after the applicant failed to cure the defect within the 30-day period stipulated by Practice Direction 3 of 2013.
Dunhuramambo argued that the delay was caused by misinformation from its previous legal practitioners, who allegedly misled the company into believing the taxation issue was still under consideration.
The company only became aware of the procedural default during a hearing on January 9, 2024.
An attempt to make an oral application for condonation at that time was unsuccessful, leading to the matter being struck off the roll.
Justice Mambara dismissed Nikobasa’s argument that the court was functus officio (performed its duty) and lacked jurisdiction to entertain the reinstatement application.
Citing a Supreme Court decision and Practice Direction 3 of 2013, the judge held that a matter struck off the roll is not decided on the merits and can be reinstated upon proper application.
The court emphasised that a struck-off case is not jurisdictionally dead, stating, “The doctrine of functus officio primarily guards against a court altering or revisiting its own final judgments… Here, there was no final judgment on the dispute.”
The respondent opposed the application, contending that the applicant’s delays were inexcusable and that the procedural non-compliance rendered the matter res judicata (already decided).
Mr Nikobasa, through his legal counsel, also argued that the applicant’s explanation for the delay was inadequate and failed to meet the threshold for condonation.
They further submitted that Dunhuramambo’s prospects of success in the main matter were not strong enough to justify the court’s indulgence.
In granting condonation, the court noted that the applicant had provided a reasonable explanation for the delay, which was primarily caused by the negligence of its legal practitioners.
Justice Mambara stated, “While courts are reluctant to penalise litigants for the negligence of their lawyers, there is a limit to such indulgence. However, in this case, the applicant’s explanation is reasonable and sufficient to explain the bulk of the delay.”
The court also considered the merits of the underlying taxation review and found them to be substantial.
Dunhuramambo raised issues of alleged irregularities in the taxed bill, including charges for correspondence allegedly billed in disproportionate time units.
The court remarked that denying the applicant an opportunity to challenge the decision on such grounds would risk perpetuating a potential injustice.
Addressing the issue of prejudice, the judge concluded that the respondent had not demonstrated any irreparable harm that would result from the reinstatement of the matter.
He stressed that the dispute concerns monetary costs and that the respondent’s ability to oppose the review on its merits remains intact.
In balancing the need for procedural compliance with the interests of justice, the court found in favour of Dunhuramambo.
Justice Mambara underscored that condonation is an equitable remedy, stating, “In this case, the balance weighs in favour of the applicant.
“ The delay, though protracted, has been satisfactorily explained in material respects. The applicant has demonstrated genuine remorse for the procedural missteps and has shown zeal in rectifying them once properly advised.”
