IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL CAUSE NO. 616 OF 2013
BETWEEN
COUNCIL OF THE UNIVERSITY OF MALALWI…………..PLAINTIFF
AND
FLYWELL BANDA AND OTHERS
t/a MEDI-CHAN CO TEAM .......................................... DEFENDANTS
CORAM: HON. JUSTICE R. MBVUNDULA
Kaime, Counsel for the Plaintiff
F Banda for himself and the other defendants
Mpasu, Official Interpreter
RULING
The defendants filed an application to dismiss the plaintiff s action herein for want of prosecution. The action was commenced on 22nd November 2013. The application to dismiss the action was filed on 11th March 2016.
The affidavit in support of the application discloses that as of the last-mentioned date, i.e. 28 months after the commencement of the action, the only step the plaintiff had taken was to file and serve an inter parties summons for an interlocutory injunction. On that ground the defendants submit that there has been inordinate and inexcusable delay in the plaintiff s conduct of the matter.
The plaintiff counters the application by stating that it has failed to prosecute the matter further due to the fact that the defendants were not responding to correspondences emanating from the plaintiffs legal practitioners. They cite, for example, a letter dated 23rd December 2013 to the defendants' then legal practitioners, to which the latter did not respond, and also a statement of issues sent to them in preparation for mediation. It is argued that since the defendants did not in tum submit their own statement of issues it is unconscionable for the defendants to take up the present application. In this regard the defendants argue that the plaintiff should not have sat back and done nothing further notwithstanding the defendants silence, and that to show seriousness with its claim the plaintiff should have taken further steps, that it is not "logical to any reasonable person" for the plaintiff if it had any valid claim against the defendants, to have waited for a further period of more than two years, without prosecuting the claim.
I am disinclined to accept the plaintiff s excuse for its inaction for a period of more than two years, It was incumbent upon the plaintiff, notwithstanding the defendants own alleged default, to still pursue its claim, if it had any confidence about it. I am inclined, in the circumstances, to agree with the defendants that the plaintiff be faulted for failure to diligently and timeously prosecute its claim. I accordingly dismiss the plaintiff s action for want of prosecution, with costs.
Made in chambers at Blantyre this 13th day of January 2017.
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R. Mbvundula
JUDGE
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