Judgment No. 7/2018
Civil Application No. SC 409/2016
Aggrieved by the court a quo’s order, the appellant sought to appeal to this Court.
He initially filed his notice of appeal on time but the application was struck off the roll with
costs for want of compliance with r 29. The appeal was fatally defective in that it did not state
the date on which the judgment appealed against was handed down, thereby prompting this
application.
The taxed costs amounted to $7 545.25. (Seven Thousand five hundred and
forty-five dollars twenty –five cents).
At the hearing Mr Mpofu counsel for the first respondent raised a point in limine
objecting to the continuation of the proceedings before the applicant has settled the first
respondent’s wasted costs. He accordingly moved for the proceedings to be stayed pending
payment of the outstanding wasted costs.
Mr Girach counsel for the applicant after taking brief instructions acknowledged
that his client owed the first respondent the taxed costs. He however countered that his client
is owed some untaxed costs by the first respondent. He then proposed that the first respondent’s
costs be set off against the applicant’s untaxed costs. When it was pointed out to him that a
liquidated amount cannot be set off against an illiquid amount he conceded the point but
countered that the respondent should execute against applicant’s property.
In further argument he submitted that justice must be dispensed quickly and fairly
with due regard to the need to effect finality to ligation. It was his submission that the first
respondent should effect execution for wasted costs awarded while the hearing proceeds to
finality on the merits.
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