Emil Woiso Lesheya vs Aenea E Makoninde, misc civil Application no 136 of 2022

Thi case posed a question on whether an advocate may move a court on non appearance though whatsapp?

The applicant herein beseechs this Honourable Court to be pleased to set aside the dismissal order made on 13th September, 2022 in Civil Appeal No. 44 of 2021. Briefly, the applicant was an appellant in Civil Appel No. 44 of 2021 before this court. The matter was scheduled for

hearin by way of written submissions but the applicant did neither comply to the submission schedule not enter appearance on the date fixed by court hence, the appeal was dismissed for want of prosecution The

applicant has brou ht this application seekin for the court to vacate from its order dated 13/9/2022.

In the matter at hand, it is indeed true that the counsel to the applicant was appearin before Hi h Court at Moshi as per the

proceedin s annexed to the affidavit. He however, did not demonstrate if he informed the court that he will be havin another case before another registry. The procedures are very clear that an advocate who think that

he will not be in attendance has to notify the court in writin of his absence and reason for his absence. However, it has become a routine for advocates to ask fellow advocate to hold their brief even without clear

instructions.

The claim by the applicant’s counsel that he asked his fellow advocate to hold his brief is unjustified. The WhatsApp text messa es

attached to the affidavit could not be re arded as formal way to move the court to consider that the advocate acted dili ently in prosecutin the case. 

The counsel for the applicant knew that he had another case and was supposed to appear at Moshi. His offices are based herein Arusha as per the address in the pleadin s but, he did not consider submittin a letter of absence before he travelled to Moshi for another case and instead, he thou ht that he could adjourned court case by a mere WhatsApp message. 

In my view, the counsel was not dili ent in prosecutin the case and the same was dismissed out of his ne li ence.

It is my settled view that ne li ence of an advocate cannot stand as ood reason for restoration of the dismissed suit for non-appearance.

On the ar ument that the appeal was dismissed on the date scheduled for mention, I a ree with reasonin by Ms. Lilian that the

circumstance of this case does not fall within the interpretation iven in Dar Express Co. Ltd Vs. Mathew Paulo Mbaruku, (supra). This

appeal subject to this application was dismissed after the applicant failed to file submission in lieu of hearin . The mention order in the circumstance of this case was a necessary order with view of ascertain if the submissions schedule was complied with so. 

This is different from when the normal suit is schedule for mention for any reason before bein scheduled for hearin .

In the matter at hand mention order was made after an order for hearin by way of written submission was made and the applicant was aware of the order. It is settled that failure to file written submission is tantamount to non- appearance and the remedy is to dismiss the matter for want of prosecution. I therefore find the ar ument that the appeal was dismissed on the date of mention baseless.