Mwaikasu, J:
This is an appeal by one Fabian Munraha against the judgment of the lower court which on 5 March 1990 dissolved the appellant's marriage to one Rukaya Munraha. H
The judgment of the lower court has been impugned on the grounds, inter alia that the appellant was condemned unheard for no fault of his. In that, as shall presently hereinafter be demonstrated, I think he is quite right. I
The saga appears to have started on 30 October 1989. As the typed record of the lower court shows, on that day only the appel-
lant, then respondent, appeared. The case was then adjourned for mention on 9 A November 1989 when a hearing date was to be fixed. When the case was called for mention on 9 November 1989, the appellant did not appear but counsel for the petitioner appeared. On that day a hearing date was fixed and that came to be 28 December 1989. When the case came up for hearing on 28 December 1989 in absence of the appellant B then respondent, it was submitted by Mr Kashumbugu, learned counsel for the petitioner that since the appellant was present on 30 October 1989 and was aware of the hearing date, then the respondent should be allowed to proceed to prove her petition C ex-parte. That was then accordingly granted by the lower court. The ex-parte proof was then fixed for 29 January 1990.
At this point it is to be pointed out that the lower court erred in granting such leave for such ex-parte proof. For it is evident that though the appellant was present on 30 D October 1989 the day when the respondent did not appear and the case had to be adjourned to 9 November 1989 for mention for the purposes of fixing a hearing date, in such mention date when the hearing was fixed for 28 December 1989 the appellant did not appear. Yet no notice was ever sent to him to notify him of such hearing date as E fixed on 9 November 1989 when he was absent. There is no evidence to show that the appellant was ever made aware in any way of the hearing date on 28 December 1989. And when he was present on 30 October 1989 such hearing date was not at all suggested, that is why the case had to be adjourned to 9 November 1989 to consider a F suitable hearing date.
Thus the respondent was, on 28 December 1989 granted leave to prove the case ex-parte and did proceed to prove the same on 29 January 1990 without the knowledge of the appellant, and on the basis of such ex-parte proof the marriage was dissolved, the G appellant was clearly thereby condemned unheard. The appellant was therefore effectively and wrongfully denied the right to be heard, thus contravening one of the basic principles of natural justice.
Consequently, on that ground alone, and without going further to consider other grounds H raised, I allow this appeal, quash the decision of the lower court with an order that the case be remitted back to the lower court for retrial, hoping that this time the lower court will ensure that both parties are afforded equal opportunity to be heard before final determination of the case. Order accordingly. I
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