Abdallah Zarafi v. Mohamed Omari, (PC) Civ. App. 150-D-68, 16/4/69, Saidi J.

Abdallah Zarafi v. Mohamed Omari, (PC) Civ. App. 150-D-68, 16/4/69, Saidi J.

            In a claim for a shamba, the primary court gave judgment in favour of the respondent. On appeal to the District Court, a date was set for the hearing; but as neither party appeared, the appeal was dismissed. Later, the District Magistrate re-admitted the appeal for hearing after the respondent had shown sufficient cause for non-appearance, namely an injured leg. This District Magistrate was subsequently transferred before the date of the hearing; and his successor in office referred the matter to the High Court contending that the District Magistrate was not entitled to set aside his own order dismissing the appeal of the appellant for non-appearance, and that the High Court alone was empowered to do so.

                        Held: (1) “There are occasions when a court is empowered by law to set aside its own orders. A trial court is empowered to set aside an exparte decree or an order dismissing a suit passed as a consequence of non-appearance so long as the person against whom the decree or order for dismissal of the suit is able to establish that he was prevented by sufficient cause from appearing in court on the material day. The same principle would apply to 

appeals dismissed in consequence of non-appearance by the appellant.” (2) “There could be numerous causes that would prevent parties from attending the court on the dates fixed for trials or hearings, such as illness, bad weather, civil disorders, death of family members and the like. All courts accept these and many other reasons as sufficient cause for non-appearance and normally set aside the orders against the parties affected so as to enable them to present their cases. Refusal to take this course would deny the unfortunate party the opportunity of proving or disproving the relevant case at hand when he could effectively do so an this would eventually amount to a denial of justice. In the present case the appellant had cut his left leg with a hoe while working this shamba 3 days before the hearing date and was then laid in bed on the material day. This was no doubt sufficient cause for non-appearance.” (3) “The relevant law in the present case is the Magistrates Courts” Act, Cap. 537 and the Rules made there under. Rule 17 of the Civil Procedure (Appeals in proceedings originally in Primary Courts) Rules, 1963, appearing in Government Notice No. 312 published on 29-5-64, is applicable to the appellant’s case. Rule 17 empowers the court to re-admit an appeal it had dismissed for default of appearance by the appellant on such terms as to costs or otherwise as it thinks fit. No particular formality is laid down to be followed by the court when acting under this rule. The learned District Magistrate suggested that his predecessor should have at 1st made an order setting aside his earlier order dismissing the appeal before he re-admitted the appeal for hearing. The suggestion is not without substance but reading rule 17 as it is drawn I do not feel that tit was necessary for the court to set aside  the 1st order before re-admitting the appeal for hearing although he did not use exactly these words. In the circumstances I would return the record to the learned District Magistrate with direction that he should proceed to hear and determine the appeal on its merits. “