Mutech (Z) Limited v Kenya Airways Limited (Appeal No. 164/2007) [2012] ZMSC 58 (16 July 2012);

                                                                               APPEAL NO. 164/2007

IN THE SUPREME COURT FOR ZAMBIA         

HOLDEN AT LUSAKA

(Civil Jurisdiction)

B E T W E E N:

MUTECH (Z) LIMITED                                             APPELLANT

      AND

KENYA AIRWAYS LIMITED                                         RESPONDENT

CORAM:            Mumba, Ag/DCJ, Wanki and Muyovwe, JJS

                        On 18^th April, 2012 and 17^th July, 2012

For the Appellants:    N/A

For the Respondent:  Mr. C. K. Bwalya of Messrs D.H. Kemp and Company

RULING

Mumba, JS, delivered the Ruling of the Court.

Legislation Referred to:

1.  The Supreme Court Act, Chapter 25 of the Laws of Zambia.

By Notice of Motionthe respondent applied for costs under Rules 48 (7), 63 (3) and 77 of the Supreme Court Act Chapter 25 of the Laws of Zambia.

The record shows that the appellant appealed to this Court against the judgment of the High Court, the appeal was scheduled for hearing on 19^th May, 2009.   On that date the appellant applied for an adjournment which was granted and the appeal was rescheduled for hearing on 16^th June, 2009. Before   that date the appellant filed a Notice of Discontinuance of the appeal on 8^th June 2009 by their advocates on record, Messrs Wilson and Cornhill.  At no time had the respondent consented to the withdrawal of the appeal. The respondent had incurred costs responding to the appeal by filing written heads of argument and a list of authorities when the appeal was on record.

There was no agreement on costs between the parties.  The Notice of Motion with supporting affidavit were duly served on the appellant and the same duly acknowledged by one C.B. Mwango on behalf of the appellant.  For reasons not presented to court, the appellant did not appear at the hearing. Rule 63 reads as follows:-

63.(1) An appellant may at any time after lodging the appeal and

before the  appeal is  called on  for hearing  serve  on  the parties to the

appeal  and  file  in  the  Registry  a notice  in  form  CIV/7 of the Third

Schedule to the effect that he does not intend   further to prosecute the

said appeal.

(2 )If all parties to the appeal consent   to the  withdrawal  of the

 appeal  without   order  of the  Court, the  appellant   may   file  in the

Registry the   document  or   documents   signifying  such consent and

signed by the  parties or by their  practitioners,  and  the  appeal  shall

thereupon be deemed to have been dismissed.  In such event any  sum

lodged in Court as security for the cost of the appeal  shall be  paid out

to the appellant.

(3) If all the parties do not consent to the withdrawal of the appeal

          as aforesaid, the appeal shall  remain on the  list, and shall come  on for

the hearing of any  issue as  to costs  or otherwise  remaining   outstand-

ing between  the parties,  and for  the  making of an  order as  to  the dis-

posal of  any  sum lodged   in   Court   as security   for  the   costs of  the

appeal.

The evidence on record shows that Rule 63 (1) was not complied with by the appellant as there was no service of       the Notice of Discontinuance on the respondent.  Thus, the respondent had no opportunity to react to the said withdrawal of the appeal.  Besides, the appellant has not challenged the Motion.

       We have fully considered the Motion and affidavit evidence supported by exhibits on record.  We are satisfied that the respondent did not consent to the withdrawal of the appeal and that the parties did not agree on costs at any stage of the appeal.  We have noted that the exhibited Notice of Discontinuance dated 8^th June, 2009 was not even addressed to the respondent.

The Motion for costs stands successful. Costs of the appeal inclusive of today’s hearing shall be for the respondent, to be taxed in default of agreement.

……………………………………

F. N. M.  Mumba

SUPREME COURT JUDGE

………………………………                  …………………………..

M.E. WANKI                                            E.C. MUYOVWE

SUPREME COURT JUGE                        SUPREME COURT JUDGE