Mackanja J: G
Mr Mchora, one of the learned defence counsel, is applying for an order that he be allowed to proceed with an oral application for consolidation of Civil Cases No 122, 123, 124, 125 and 126, all of 1993. This application is made under the proviso to Rule 2 of H Order 43 of the Civil Procedure Code. Rule 2 makes it mandatory, unless otherwise provided, that all applications under the Civil Procedure Code shall be made by a chamber summons supported by affidavit:
I 'Provided that the court may where it considers fit to do so, entertain an application made orally....'
An oral application may also be made where all the parties to the suit by a written A memorandum signed by them or their advocates consent to the order applied for. Basically the oral application is sought because the written application has not been admitted by the Honourable the Principal Judge. In that connection Mr Mchora applied to B the court to withdraw all the papers relating to the written chamber application which was not admitted.
Mr Kisusi, learned counsel for the plaintiff/respondent, does not oppose the withdrawal of the written documents relating to the written application. He, however, opposes the C institution of the oral application on the grounds that the defence has neither suggested nor indicated why this is a fit matter for an oral application as opposed to the normal court practice of written applications supported by affidavit. Learned counsel has argued, and I think quite correctly, that there must be very good reasons why a party to a civil D action will be allowed to institute proceedings save according to the general practice of the Court. And since the proviso referred to grants discretionary powers, Mr Kisusi's contention that that discretion should, as is normal practice, be exercised judiciously, is also sound.
Learned counsel for the plaintiffs has raised another point, that the application, if made E orally, will affect six cases. That the mere number of cases entails the consideration of a collosal amount of facts in order to determine whether the six cases are fit for consolidation. He has raised concern that it is extremely difficult to digest orally facts involving six cases. There is no doubt that if the application is made in writing the F respondents will get advance notice which will enable them to prepare themselves; this is a fact which cannot be over emphasized. And, of course, as learned counsel for the plaintiffs/respondents has pointed out, instructions which were given by the Honourable G the Principal Judge, if any, are of an administrative nature an are therefore not binding on this Court. This argument brings us to one important consideration; under what circumstances can an oral application be made?
Mr Mchora argues that the circumstances which are required by the proviso came in place after the honourable the Principal Judge made the directive. I have gone through the record and I find no such instructions from the Honourable the Principal Judge, which form part of the record of this case. It is important to note, however, that this application is brought under s 95 of the Civil Procedure Code. According to Mr Mchora, applications of this nature are meant to provide avenues of justice which are not available in the
orders and that, ipso facto, this application falls under Order 43 Rule 3. I have examined A the law cited and I find nothing from what Mr Mchora has said which would justify this application to be proceeded with orally and not according to the general practice of this Court whereby applications are made by Chamber Summons supported by affidvit. B
The nature of civil litigation is such that it offers equal opportunity to both parties. It is not one of surprises. Every stage in the process of litigation is regulated by rules which create an elaborate procedure for pleading. As a general rule, the defendant or respondent, as the case may be, is entitled to know the case against him by advance C notice by way of a summons of whatever nature. And by the established practice of this Court all chamber summonses are supported by affidavit. This procedure has not been maintained over the ages for nothing. For one thing, an affidavit is evidence which sets D out how the applicant intends to establish the justification for the remedy he seeks from the court. The affidavit also provides evidentiary proof of what it contains. So that an application by chamber summons supported by affidavit gives two important opportunities to the respondent: notice of the remedy which the applicant seeks and the E course the applicant shall take in establishing his justification for the remedy. Unless there is something like an emergency, therefore, the Court will not lightly abandon a procedure and practice which have been tested by time and which are well-founded. In this regard an oral application may be allowed to proceed in very rare and non-contentions litigation; or where it is necessary to take prompt action for the purpose F of safeguarding the interest of the parties, especially immediately after judgment is pronounced. The purpose of such an application, therefore, should be designed to maintain the status quo such as during intermediate periods between execution of decree and hearing of an appeal against such decree; to prevent prejudice to the G applicant and to prevent one party from outwitting the opposite party by maintaining a fair balance between them.
I see neither the urgency nor the need in the instant application which justifies a deviation from an established procedure and general rule of practice. In the result the application H to proceed orally fails and is dismissed with costs. It is directed that the defendant may, if he so wishes, lodge an application by chamber summons supported by affidavit in line with the established practice of this Court. Costs shall be in the course. I
A