Kasambala & Ors. v Ngozo (Civil Cause No. 1427 of 2015) [2017] MWHC 835 (01 July 2017);

Primary tabs

Share

Group

Headnote and Holding: 

The court considered an application for a declaratory order, declaring that the applicants had a right to live in a quiet environment, free from any noise pollution that can cause annoyance, inconvenience and interference with their comfort or exercise of their rights. The applicants attempted to rely on the rules of practice to ensure their order was granted by means of summary judgment. 

The defence argued that the procedure for a summary judgment was not covered by the available High Court rules, and the absence of new rules created a lacunae (not provided for in statute). 

The court found that in terms of the General Interpretation Act, s13 provides for a mechanism to avoid a lacunae in the event that a written law has been repealed. 

The court considered s14 of the Act, wherein it states that where there is a “written law which is repealed or re-enacted with or without modification, any provision of any other written law, then unless a contrary intention appears, shall remain in force.” 

The court found that the rules of Supreme Court are subsidiary legislation and that by repealing the summary judgment rule, it did not automatically repeal the rule of the supreme court unless they are replaced.

Application dismissed with costs.