Shaba v Saulosi (1386 of 2002) ((1386 of 2002)) [2005] MWHC 53 (11 April 2005);




CIVIL CAUSE NO. 1386 OF 2002


A.K.G. SHABA…………………………………………………PLAINTIFF




R. Mapila of Counsel for the Plaintiff

T. Mvalo of Counsel for the Defendant

Baziliyo, Court Interpreter


This is an application by the defendant to set aside an order for possession of land obtained by the plaintiff under Order 113 of the Rules of the Supreme Court on 10th August, 2004. The said order was obtained after the court had entered a default judgment against the defendant in civil cause No. 70 of 2004 on 28th May 2004. The defendant now, by an application dated 7th March, 2005, seeks to vacate the order of possession of land granted to the plaintiff and be allowed to file a defence. An affidavit in support of the application was made. In the said affidavit, the defendant depones that and prays to the court to set aside the order of possession to enable the defendant to re-enter the land in question to process his tobacco. The defendant also seeks to rely on an affidavit of 9th May, 2003 sworn by Counsel. Briefly, the two affidavits urge the court to set aside the plaintiff’s order obtained on the grounds of an irregularity.

It is also deponed in the said affidavits that the defendant be allowed to set aside the default judgment obtained by the plaintiff on 28th May, 2004. The plaintiff opposed the application on the grounds that the said application does not comply with Order 2 r. 2 RSC which lays out the proper procedure for an application to set aside an irregularity. On the issue of setting aside the default judgment the plaintiff deponed that the defendant had adequate time to apply for the setting aside of the said judgment and file the necessary defence to court within a reasonable time after it was passed in May, 2004.

According to Order 2 r. 2 RSC it is stated that:

  1. An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document or order therein shall not be allowed unless it is made within a reasonable time before the party applying has taken any fresh after becoming aware of the irregularity.

  1. An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motion.

{Underlining supplied for emphasis}

An application to set aside a default judgment must be made within a reasonable time if the court is to allow it. The term reasonable time was discussed under Order 2/2/2 and guidelines given as follows:-

“Unless made within a reasonable time” – It was held to be too late, after a year to set aside service out of the jurisdiction (Regnolds v Cole (1887) 36 Ch.D. 453, C.A.);

A defendant who applies to set aside an irregular judgment three months after learning of the judgment may be too late to rely on O. 2, r.(1) and to have the judgement set aside as a matter of right;”

After the default judgment was obtained, the plaintiff, by his counsel, took steps to serve the same on the defendant by letter reference No. IYW/GIV/161 of 31st May, 2004. The defendant’s affidavit in which an application to set aside the said default judgment was on 7th March, 2005; close to nine months after the said judgment was entered by count. Given the test of what is reasonable time as set out in O.2, r. 2(1) RSC is, no doubt, not within “reasonable time” and the defendant cannot rely on this particular provision.

Secondly, it is required by the same provision that the grounds for the objection must be stated in the summons or motion. According to the affidavit deponed by the defendant the said grounds are contained in the affidavit sworn in 2003.

The defendant contains that the irregularity in the writ of possession does make the order so obtained null and void ab initio. In his submissions counsel argued that the application before the court was a strange one, one that is unknown to courts and should therefore be set aside. He argued that the said application does not conform to the form in O. 113 under which it is purported to have been made.

The defendant has deponed, among other reasons, that the order be set aside because it has caused inconvenience to the family of the defendant. The court considered this point as being irrelevant to this particular application. With respect, this cannot be a proper ground for setting aside an order regularly obtained.

I find that on the record, there are irregularities committed by both parties which necessitate a re-lock at the processes, In so far as the default judgment obtained by the plaintiff is concerned it was regularly obtained and properly served on the defendant. If therefore the defendant was desirous of setting it aside that ought to have been done at least within three months from the date it was passed. The defendant now submit that both counsel and the defendant failed to come to court due to some failure by Counsel’s Secretary to indicate the same in Counsel’s dairy. When, however, the copy of the default judgment was sent to Counsel on 30th May, shortly after it was obtained, an application to set aside with the particular reasons should have been done then. The court cannot therefore allow the same to be done now on the grounds that there has been some inordinate and unjustifiable delays in making the said application.

The defendant has successfully argued that the order or possession was made on the wrong form and this makes it irregular. The effect of non-compliance with rules, as provided under O.2/1/1 RSC is that:

“An irregular step or order remains irregular until application is successfully made to the court to correct it”.

The court now therefore orders that only the order of possession be set aside and the plaintiff be and is hereby ordered to apply for the same under the correct from within 7 days from the date of this order. The said order should be served on the defendant who shall have occasion to respond within the normal time of service. Upon service being effected, the court will set a date of hearing the said application in Chambers accordingly.

I order that each party shall bear its own costs.

MADE IN CHAMBERS this 11th April, 2005.

E. Chombo