Emmanuel Mukwewa v Huang Li Qiang

### Preamble
1
HH 489 - 25
HCH 5341/24
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EMMANUEL MUKWEWA

versus

HUANG LI QIANG

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE: 4 July & 2 September 2025

Opposed Application-Rescission of a default judgment

Mr F Murisi, for the applicant

Ms N G Maphosa, for the respondent

MUSITHU J:    This is an application for the rescission of a default judgement granted by this court per Dembure J under HCH 2383/24 on 31 July 2024. The applicant seeks an order couched in the following terms;

“IT IS ORDERED THAT: -

The application succeeds.

The default judgment in Case Number HCH 2383/24 be and is hereby set aside.

The applicant to filer his appearance to defend and plea in HCH 2383/24 within 5 days from the date of this order.

The respondent to pay costs of suit if opposed to the application.”

Background and the applicant’s case

The brief background to the matter is as follows. The applicant is a legal practitioner registered in terms of the Legal Practitioners Act, [Chapter 27:07], while the respondent is a Chinese national. Sometime in September 2023, the respondent and a certain Mr Richard Paswa entered into an agreement described as “Agreement of Consultancy of Immovable Property” (the agreement) for the sale of a stand known as Stand No. 403737 H.T. 431/2018 Coca Cola area measuring 20 000 square metres (the property). The said agreement was drafted by the applicant in his capacity as the legal practitioner representing both the respondent (as the purchaser) and Mr Paswa (as the consultant and the seller). In terms of the agreement Mr Paswa sold to the respondent his rights, title and interest in the property. The respondent proceeded to pay a total of US$ 170, 000.00, being part of the purchase price for the property.

Following the failure by Mr Paswa to make the property available as per the agreement, the respondent caused summons to be issued out against Mr Paswa and the applicant (herein) under HCH 2383/24 for the payment of US$ 176, 000.00, with US$ 170 000 being the purchase price and US$ 6,000.00, being damages for inter alia capital expenses, loss of business and bank charges together with interest. Despite being served with the summons, both Mr Paswa and the applicant failed to enter appearance to defend, and on 31 July 2024, a default judgment was granted in favour of the respondent in the following terms.

“IT IS ORDERED THAT

The defendants shall pay the plaintiff the sum of US$ 170 000 or the equivalent thereof in local currency at the interbank rate applicable on the date of payment together with interest on the sum at the rate of 5% per annum calculated from the date of issue of summons to the date of payment. The defendants’ liability to pay this amount is joint and several, the one paying the other to be absolved.

The defendants shall pay the costs of suit jointly and severally, the one paying, the other to be absolved.

The applicant averred that he only became aware of the default judgment on 11 November 2024 after he was advised of its existence by a certain Detective Sergeant Chikonyora who was the investigating officer in the criminal matter that involved the applicant and the respondent. When he became aware of the default judgment, he immediately engaged his legal practitioners on 13 November 2024 to institute the current application for rescission of the said default judgment.

The applicant averred that for an application of this nature to succeed, he had to satisfy two requirements which are that he was not in wilful default and that he had prospects of success in the main matter. The applicant averred that he was not in wilful default. The summons was not served on him personally. The summons was served by affixing a copy on an outer principal gate. The applicant claimed that he never had sight of the summons because on the date of the attempted service, he had already moved from that address and had put a notice advising all clients and stakeholders to reach his law firm through Messrs Thomas Nelson Attorneys. The applicant asserted that there was no way he would have seen the summons under the circumstances. There was therefore no proper service of the summons on him.

Further according to the applicant, he had a solid defence against the respondent. He had performed his job professionally when he drafted the agreement between the parties and could not be sued when one of the parties breached the contract. The applicant also contended that the averments made by the respondent that he was aware that the purported stand on sale was non-existent and that he colluded with Mr Paswa to make him pay the purchase price had to be proved by the respondent through evidence. That automatically spoke to the existence of a reasonable defence on his part that would require the respondent to prove his claims on a balance of probabilities.

The applicant denied drafting the agreement which formed the basis of this dispute with an intention to commit fraud against the respondent. He also denied colluding with Mr Paswa or misrepresenting to the respondent in any way. Further according to the applicant, there was a criminal matter against him and Mr Paswa that was pending before the Magistrates court. The applicant maintained that he only drafted the consultancy agreement between the parties and received his fees as a legal practitioner for the job he did. He proceeded on the understanding that the parties had conducted their due diligence, and they assured him so. The parties were happy with the agreement and the alleged breach by Mr Paswa could not form a basis to sue him as the legal practitioner involved.

Further, the agreement provided remedies available against a party in breach and not against him as the legal practitioner who prepared the agreement. The essence of the consultancy agreement was that Mr Paswa, as the consultant was going to make the property available to the respondent. Mr Paswa was going to play two roles; firstly, to provide consultancy services where he would make available the property to the purchaser and secondly, to act as the seller of the property. The respondent was agreeable to the arrangement, and he freely and voluntarily signed the agreement.

Further according to the applicant, clause 4.1 of the agreement made it very clear that US$70,000.00 was paid as a deposit and that a further US$100,000.00 would be paid upon production of diagrams and circulars from the City of Harare. Clearly, the parties knew from the beginning that the property which was subject to the sale would only be available at a future date. There was therefore no basis to conclude that there was collusion to sell a non-existent stand. Further, clause 4.3 had a provision for the refund of the purchase price to the respondent if the seller failed to produce the relevant papers within sixty days.

The applicant averred that an application for a lease with the municipality of Harare was made through his law firm as was mandated by the seller. This demonstrated Mr Paswa’s willingness to make the property available as per the agreement. The applicant also averred that he wrote a letter to the Valuation and Estates Manager at the City of Harare wherein he advised them to also copy the respondent in all correspondences relating to the property in question. Mr Paswa made efforts to make the property available, and the respondent was aware of all the steps that were being taken in this regard.

The applicant further averred that the parties had agreed that the respondent was buying a property that was not yet available in anticipation of the property being secured in the future. The seller guaranteed a refund of monies paid by the respondent, and it was the seller who was to make the refund and not the applicant. The applicant averred that he performed his part and could not be faulted for having released funds to the seller when he did so in accordance with the release clause of the agreement.

Further according to the applicant, he carried out due diligence by enquiring from the parties if they had understood the nature of the agreement, as the terms were agreed upon before his engagement. The applicant also claimed that the respondent was in the company of his agent who was interpreting for him. The agent assured him that he had understood the nature of the agreement. There was therefore no basis for the respondent to claim a refund from him.

The applicant further averred that the order granted by the court under HC 2383/24 had a clause that stated that he should pay interest on the capital sum from the date of the summons but in the summons the interest was claimed from 1 April 2023. The issue of when interest would start to run was something that would have to be resolved after hearing evidence. Fraud was a criminal offence which could only be proved beyond reasonable doubt and the civil court would have to hear evidence and determine if the fraud was proved to the required standard. The applicant prayed that the application succeeds with costs.

The Respondent’s Case

The respondent averred that the applicant was in wilful default as the summons was duly served by the sheriff at his offices at No. 276 Samora Machel Avenue, Harare as demonstrated by the sheriff’s return of service. The respondent further averred that the current matter was not a matrimonial dispute or some other case that required personal service, and hence service of the summons by affixing a copy on the outer principal gate was proper service in terms of the rules. Further, that form of service could not be challenged as faulty unless there was proof that the sheriff acted unlawfully. The applicant must be held to have been in wilful default.

The respondent averred that the applicant did not have a solid defence. He was a habitual fraudster involved in so many fraud cases. The respondent had placed before the court in HC 2383/24, evidence which satisfied the court that he had a genuine claim before default judgment was granted. The documents relied upon by the applicant in this current application that were placed before the court as annexures F to L were fake, and hence criminal proceedings were initiated.

The respondent further asserted that the applicant was a habitual fraudster as demonstrated by two newspaper articles and a letter from the Law Society, wherein the applicant failed to respond to an enquiry by the Law Society regarding the case of fraud involving him and the respondent. The respondent also averred that there was nothing called “Consultancy of Immovable Property” at law and even if it existed, the contents of the agreement pointed to a sale. The applicant as a legal practitioner with 19 years’ experience, ought to have known that the agreement was void ab initio, but he proceeded to craft it with the intention of fleecing the respondent. The applicant received the full amount in his trust account and when asked for a refund, he failed to account for it.

The respondent further averred that the applicant as a practising lawyer was a danger to the society. He could not purport to make Mr Paswa a seller of a property which the latter was yet to apply for from the City Council, and which property the applicant knew was not in Mr Paswa’s name. It was the applicant’s duty to verify the genuineness of the ownership of the property. The respondent being a lay person needed guidance from the applicant as a legal practitioner. Regarding the application to the City Council, the respondent averred that it was a ruse, meant to entice the respondent to release a further US$100, 000.00 after payment of the initial deposit of US$170, 000.00.

Further according to the respondent, the City Council disowned the letters which purportedly came from its offices. The letters did not cite the property mentioned by the applicant in his founding affidavit, but it was an application to operate a service station along Glennara road. This was meant to confuse the respondent as it had nothing to do with the property that was purportedly sold to him. The respondent also averred that the agent that the applicant referred to in his founding affidavit was a mere translator, a lay person who would not know the import of such an agreement. To prove his innocence, the agent even refunded what he had been paid after becoming aware of the fraud. The respondent could not even disclose what he received as legal fees nor offer to pay the amounts back.

Further according to the respondent, the issue of interest was resolved by the court. The respondent also averred that the fact that a criminal matter was pending at the Magistrates Court would not bar this Court from granting the respondent a civil remedy that would allow him to recover his loss. The applicant did not have any defence at all, and he brought the reputation of the legal fraternity into disrepute. The respondent was a Chinese National who trusted his office as a legal practitioner, but the applicant abused his office. The respondent prayed for the dismissal of the application with costs on a higher scale.

The Submissions

Mr Murisi for the applicant submitted that the current application was one for rescission of a default judgment in terms of r 29 of the High Court Rules. When the court queried if the application was properly before the court with regards to the provision in terms of which the application was brought before the court, Mr Murisi apologised to the court for the error and averred that what was pleaded in the papers was a rule 27 application. Mr Murisi submitted that for an application of this nature to succeed, the applicant had to satisfy two requirements which were that the applicant was not in wilful default and that the applicant had prospects of success in the main matter.

Counsel submitted that the applicant was not in wilful default as the summons was served by affixing on the gate where the applicant no longer operated from. There was no proper service of the summons on the applicant. Counsel averred that the applicant had moved from the address where service was made, as confirmed by the notice advising the public that the applicant had moved to new offices.

Considering that, even if the nature of service was proper, it was clear that he was not in wilful default. Notice was also put on the notice board at the High Court. When queried by the court if the sheriff had had sight of the notice, counsel admitted that the sheriff might not have had sight of the notice. Mr Murisi submitted that the applicant could not deny that the sheriff may not have been aware of the notice, but he had proffered a reasonable notice as to why he was not in wilful default.

Regarding prospects of success, Mr Murisi submitted that it was the parties that looked for the applicant, and not the other way round. The basis for the claim was the alleged collusion between the applicant and Mr Paswa and this was a triable issue. Counsel submitted that there was a criminal matter and a complaint made to the Law Society of Zimbabwe by the respondent. The cases were still pending. Mr Murisi averred that there was no fraud on the part of the applicant. The applicant did his job. He drafted an agreement that suited the parties. When the court queried the propriety of referring to the agreement of sale as ‘Consultancy Agreement’, counsel conceded that it was improper but still submitted that the name did not suggest that there was fraud.

Mr Murisi also submitted that the respondent was aware that the property in question was not available when he entered into the agreement. From the evidence placed before the court, it was clear that Mr Paswa made efforts to regularise the issues concerning the land in question. It was a lease to buy agreement and there was proof of payments done pursuant to application. The breach by Mr Paswa could not be attributed to the applicant. Both parties were the applicant’s clients. Counsel further submitted that remedies available to the respondent were part of the agreement, and proceeding against the applicant was not one of them.

Ms Maphosa for the respondent submitted that a legal practitioner’s career was dependent on upholding professional integrity. The respondent was a Chinese national who operated through an interpreter who was not a legal person. The applicant ought to have treated the matter as a peculiar, which called for higher levels of responsibility. Summons were issued and the sheriff requested for the applicant’s address. When the sheriff effected service, the applicant’s signage was still at the address. The sheriff did everything to alert whoever was present.

If there was a notice inside the gate, the sheriff would have seen that. Even if the notice was placed on the notice board it was not adequate to notify all legal practitioners. There was nothing in the media to advise of the change of address. The High Court and the sheriff were not notified as well. Counsel further submitted that the current case was not a matrimonial matter that required personal service, and service in the manner effected by the sheriff was sufficient. Ms Maphosa also submitted that service was effected on 11 June 2024 and the applicant conveniently prepared the notice of change of address and backdated it to 3 June 2024.

Ms Maphosa further submitted that she believed that the notice was contrived to the extent that it was not stamped to acknowledge service by whoever received service. The date of the notice was not the issue but whether the notice was served on the relevant stakeholders, became the critical issue at this stage. The record must show that rescission of the default judgment was sought on 26 November, though stay of execution was sought on 4 April some five months later when the sheriff wanted to execute. Counsel further submitted that the applicant’s conduct was tantamount to gross negligence.

Regarding the second requirement of good and sufficient cause, Ms Maphosa submitted that there was nothing at law called an ‘Agreement of Consultancy of Immovable Property’. The consultant was said to be selling rights, title and interest in a certain immovable property. The moment one talks of title, it meant ownership. That property actually belonged to another person.  What was the respondent paying for? What diagrams and circulars were being referred to? The vagueness in of the agreement pointed to the fraudulent intent.

Ms Maphosa submitted that the agreement did not clearly state what sort of diagrams and circulars would come from the City of Harare where the seller said he had title. The submission by the applicant that the property was not available at the time of signing the agreement and that the parties knew the position was not true because clause one of the agreement stated that the property existed as at the time of signing of the agreement.

Ms Maphosa further submitted that some of the evidence placed before the court in support of the application for rescission clearly showed the applicant’s intention. There was a letter to Mukwewa Law Chambers, in response to an application for lease of land in Glennara and the Coca Cola area. The letter referred to a service station, yet the agreement between the parties was an agreement for an immovable property. Counsel also submitted that the evidence placed before the court spoke of a service station, yet this had no link to the property being sold.

Ms Maphosa further submitted that one could only breach a contract that existed. Counsel also argued that the present case was not one concerned with a breach of contract but clear fraud. The claim was substantiated in HC 2383/24 before the default judgment was granted. The court was satisfied on the merits of the case before granting the default judgment. Ms Maphosa also submitted that it was clear that the applicant created fake documents. Any legal practitioner who produced documents like those placed before the court was not fit to practice law.

In his brief reply, Mr Murisi submitted that the court must look at the standard of negligence. The respondent focused more on the agreement itself, yet the summons revealed that parties had met and discussed the transaction in the absence of the applicant.

The Analysis

Rule 27 of the High Court rules, 2021 states as follows:

“Court may set aside judgment given in default

27. (1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment for the judgment to be set aside, and thereafter the rules of court relating to the filing of opposition, heads of argument and the set down of opposed matters, if opposed, shall apply.

(2) If the court is satisfied on an application in terms of subrule (1) that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute the action, on such terms as to costs and otherwise as the court considers just.” (My emphasis)

The court was invited to determine whether the facts as pleaded by the applicant disclosed a good and sufficient cause to rescind the judgment granted in default. In Stockil v Griffiths 1992(1) ZLR 172(SC) at 173D-F Gubbay Cj had the occasion to deal with the requirements that an applicant must satisfy in an application of this nature. He held as follows:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving “good and sufficient cause”, as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971, are well established. They have been discussed and applied in many decided cases in this country. See for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd S-16-86(not reported); Roland and Another v McDonnell 1986 (2) ZLR 216(S) at 226E-H; Songore v Olivine Industries (Pvt) Ltd 1988(2) ZLR210(S) at 211C-F. They are: (i) the reasonableness of the applicant’s explanation for the default; (ii) the bona fides of the application to rescind the judgement; and (iii) the bona fides of the defence on the merits of the case which carries some prospect of success. These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”

The court associates itself with the sentiments of the court in the above authority. With that it mind, the court will proceed to interrogate these requirements in the context of the parties’ respective cases herein.

The reasonableness of the applicant’s explanation for the default

The applicant averred that the summons in HC 2383/24 was not served personally on him. He averred that on the date of the attempted service, he had already moved from that address and had put a notice advising clients and stakeholders to reach his law firm through Messrs Thomas Nelson Attorneys. The applicant pointed to the sheriff’s return of service which showed that service was done by affixing the summons on the outer principal gate. The sheriff made the following remarks on the return of service:

“Copy of Summons and plaintiff’s declaration for the 2nd defendant served by manner of affixing at 11:09 Hrs on the outer principal gate at the address for service after the sheriff received no response from the address, despite hooting and knocking persistently several times on the gate.”

In terms of rule 15 of the High Court rules, 2021, service by affixing a copy of the summons to the outer principal door of the office or place of business constitutes proper service. The applicant’s contention that service was not made personally on him, therefore, does not have a sound legal basis. The present matter does not qualify as one that required personal service in terms of r 15 (12). There was nothing irregular about the manner in which service of the summons was done by the sheriff. It is therefore my view that the applicant has failed to give a reasonable explanation for his failure to enter an appearance to defend the principal matter.

Further, the applicant averred that the time service was done, he was no longer operating from the address given in the sheriff’s return of service. He pointed to the Notice of Change of address which was part of the record. The notice is dated 3 June 2024. Service was said to have been done on 11 June 2024, a week after the applicant had moved from the address. Counsel for the applicant conceded that the sheriff might not have had sight of the notice assuming it was affixed to the High Court notice board as claimed by the applicant. I agree with the submission by the respondent’s counsel that the mode of communicating the change of address was not sufficient to inform all the stakeholders that were supposed to benefit from the notification. The applicant’s legal practitioners needed to identify a mode of communication with wider circulation such as a daily publication which reached out to a larger audience than the mere use of a court notice board.

Even assuming that a notice was placed on the High Court notice board advising of the change of address, the applicant ought to have gone a step further by serving the notice of change of address on key stakeholders such as the Registrar of the High Court as well as the sheriff. No proof of such service on these key stakeholders was placed before the court. In the absence of such which demonstrated that the critical stakeholders were aware of the change of address, then the service of process at the applicant’s last known address for service, which was number 276 Samora Machel Ave, Eastlea, Harare, was therefore proper service. The court determines that the applicant’s contention that he was not in wilful default because there was no proper service of the summons on him was without merit.

The bona fides of the application and the defence on the merits which carries some prospects of success

The second leg is for the court to determine whether the application is bona fide and that there exists a defence on the merits of the case which carries some prospects of success. The applicant averred that his role in the transaction was merely limited to the drafting of the agreement. For that reason, he averred that he could not be sued for a breach that was committed by Mr Paswa. The court here is being called to interrogate whether the conduct of the applicant in the whole transaction made him susceptible to a claim at the instance of the respondent. In Addenbrooke v Pattison & 2 Ors HB 118/18 the court made the following apposite remarks:

“In dealing with the liability of an attorney I find the following remarks by Mokgoathle J in the case of Elizabeth Mokgothu Ramoyi and L. P. Malope Attorneys (a case referred to me courtesy of plaintiff’s counsel) to be apposite:

‘Professional negligence is the failure by an attorney to act with the competence reasonably expected of ordinary members of the attorney’s profession. An attorney must be meticulous, accountable. ...He or she must serve his client faithfully and diligently. An attorney who fails to explain, his or her precise instructions and lays possum invites an adverse inference against him or herself.’

“…An attorney is liable for the consequence of gross negligence if he or she displays a lack of reasonable skill and diligence in the performance of his or her duties in matters within his or her field of practice, expertise or knowledge.”

In casu, the applicant is a legal practitioner with considerable work experience in the field of law. He was approached by the parties because of his professional skill in matters of law. None of the parties who approached him possessed the same legal skills for which he was approached. The respondent was not represented by any legal practitioner of his own. Both parties were therefore looking up to him as the legal expert to provide the relevant expert advice that would protect their respective interests. Even if the applicant were to argue that his involvement in the transaction was confined to the preparation of the agreement, as he claimed, still that does not make his conduct immune from scrutiny. The applicant’s conduct must therefore be considered from an appraisal of the entirety of the circumstances of the case, and whether it measured up to the level of performance expected of a legal practitioner in similar circumstances.

A perusal of the agreement that he prepared reveals some disturbing details. The agreement was styled as an “AGREEMENT OF CONSULTANCY OF IMMOVABLE PROPERTY”. Clause 1 of the agreement implied that it was one for the sale of an immovable property. It reads as follows:

“The Consultant hereby sells to the Purchasers its rights, title and interest in a certain piece of land in the District of Salisbury stand number 40737 H.T 431/2018 Coca Cola area measuring 20000 square metres, Harare”

That citation of the merx was misleading. It gave the impression that the property was in existence at the time the applicant prepared the agreement of sale. Yet as it turns out, and going by the applicant’s own admission, the property did not exist at the material time. What also makes the applicant’s conduct inexcusable was the appellation that accompanied the agreement. Counsel for the applicant was at pains to explain whether in law there exists such an agreement as one “Of Consultancy of Immovable Property”, whatever that meant. The content showed that what the transaction concerned the sale of an immovable property.  If that was the clear intention of the parties, then why give the agreement some strange name that does not even exist in legal parlance?

Further, the applicant averred that the respondent was aware that the property was not available at the time of signing of the agreement. However, a reading of clause 1 of the agreement suggests otherwise. It showed that the parties signed an agreement of sale for a property that existed at the time. The applicant ought to have satisfied himself about the legality of the transaction before he committed himself to providing the service for which he was approached. For him to satisfy himself about the legality of the transaction, then he ought to have conducted his own due diligence instead of relying on the word of the parties. Strange enough, in a letter dated 11 October 2023, the applicant wrote a letter to the City of Harare’s Estate Evaluation Manager as follows:

“RE: APPLICATION FOR A SERVICE STATION-STAND NO. 40737 H.T 431/2018 COCA COLA ALONG SEKE ROAD

WE REFER TO THE ABOVE.

We made an application for the above-mentioned land. Kindly note that in the papers? correspondence in this application going forward you add HUANG LI QUANG care of Mukwewa Law Chambers, 276 Samora Machel Avenue, Harare”

It is not clear why the applicant was making an application for a service station to the City of Harare yet the agreement between the parties was not one for a service station. Having earlier averred that his duties were merely confined to the preparation of the agreement, seeing as the parties had already reached agreement between themselves, the applicant failed to proffer a reasonable explanation as to why he was writing such a letter to the City of Harare.

I agree with Ms Maphosa submission that in terms of the agreement, the property existed and there was no reason to make such an application to the City of Harare. Further, the applicant also failed to explain why and how, given the circumstances of the case, the sum of US$170, 000.00 was released to the Mr Paswa. At the time that he released the funds, the applicant knew or ought to have known whether the property existed not.  As already stated, the applicant owed a duty of care and skill to the parties who appeared before him because of his professions skill which the parties did not possess. He ought to have released the funds, only upon satisfying himself that the respondent’s rights had been protected.

The mere fact that there was a clause which permitted the release of funds in the manner he did, does not make the applicant’s conduct less culpable. He is the one who prepared the agreement that placed one of the parties at risk. He owed it to the parties to explain to them the risk of releasing funds prior to the transfer of title to the purchaser, and worse still in respect of a property which he knew did not exist.

The applicant also chose not to explain how much he received by way of legal fees in the transaction, and at what point he billed the respondent for the legal work. The way the applicant handled the transaction, as well as the movement of the funds, was all shrouded in secrecy. It bears all the hallmarks of a fraudulent transaction, and regrettably, with the applicant as the main facilitator.

The apparent lack of care exhibited by the applicant in the manner he handled the transaction and performed his duties makes him susceptible to a claim of this nature. The mere fact that there are other parallel proceedings that may be pending elsewhere does not impinge upon the jurisdiction of this court to deal with the matter.

It is for the above reasons that the application to rescind the default judgment was not bona fide, and that the purported defence on the merits bears no prospects of success. The applicant therefore failed to satisfy the requirements for the setting aside of the default judgment.

Costs

The general rule is that costs follow the event. I find no reason to deny the respondent as the successful party its costs. I also found no basis to mulct the applicant with an order of costs on the punitive scale.

Resultantly, it is ordered that:

The application for rescission of judgment is hereby dismissed.

The applicant shall pay the respondent costs on the ordinary scale.

Musithu J: ……………………………………………………….

Murisi and Associates, applicant’s legal practitioners

Messrs Sawyer and Mukushi, respondent’s legal practitioners