Monday, February 10, 2014

KK appeals against High Court judgment
By Namatama Mundia
Fri 29 Nov. 2013, 14:01 CAT

DR Kenneth Kaunda has appealed to the Supreme Court against the Lusaka High Court's refusal to set aside a judgment in default that ordered him to pay over US $1.2 million (about K6 million) to five Lusaka law firms who represented him in civil and criminal cases.

This is in a matter in which Sakwiba Sikota's Central Chambers, Lukona Chambers, Patrick Mvunga and Associates, Lighthouse Chambers and Dove Chambers, the plaintiffs in the matter, sued Dr Kaunda and Sebastian Zulu as representatives of UNIP, claiming payment of US$1,208,026.25 plus interest and costs.

This related to the misprision of treason case, citizenship case, Black Mamba case, Kabwe assassination attempt and a presidential petition in which Dr Kaunda retained them.

The plaintiffs stated that Dr Kaunda failed to pay the money despite numerous reminders.

However, Dr Kaunda in his affidavit in opposition had stated that the plaintiffs volunteered their services and at no time during their conduct of the matters did they disclose that they were going to charge him legal fees.

But the Lusaka High Court deputy registrar on December 8, 1998 entered a judgment in default of appearance in favour of the plaintiffs in the sum of US1,208,026.25 with interests and costs.

Soon after the judgment, Dr Kaunda and Zulu applied that the default judgment be set aside.

The defendant appealed to the High Court and judge Dominic Sichinga on November 18, ruled that after considering the grounds of appeal, he found that Dr Kaunda's evidence that he thought the lawyers who sued him were retained on pro bono basis flew in the teeth of the averments he made in his affidavit that he instructed them to represent him personally and Zulu.

But judge Sichinga stated that Dr Kenneth had admitted in his affidavit that he instructed the plaintiffs to defend him but that he was now denying it.

"Further, it has been 15 years since the default judgment was made. I have considered the prejudice which would be occasioned as against the plaintiff. I am of the view that that prejudice is quite real," judge Sichinga ruled.

"In view of the fore stated, this appeal fails. I decline to set aside the default judgment entered on 18th day of December, 1998 as it lacks merit and I find that there has been inordinate delay. Leave to appeal to the Supreme Court is granted. Each party to bear their own costs."

According to a grounds of appeal filed in the Supreme Court, Dr Kaunda and Zulu have filed five grounds against the whole judgment of judge Sichinga.

The duo stated that judge Sichinga erred in law and in fact when he refused to set aside the default judgment and held that the application lacked merit without adjudicating on the evidence adduced before him that the basis of filing the action in issue was meant to help them raise money from well-wishers and that the amounts indicated in the action were based on estimates.

The appellants further stated that the judge erred in law and fact in not appreciating the fact that the alleged admission by Dr Kaunda to have instructed the respondents was contextualised and had to be read with other affidavits explaining the background and issues surrounding the matter in their entirety.

The appellants also stated that the admission was not an admission as to the amounts claimed.

Dr Kaunda and Zulu stated that the judge also erred when he refused to set aside the ruling without adjudicating on whether the action by the respondents was in compliance with the legal practitioners Act Chapter 30 of the Laws of Zambia.

In ground four, the appellants stated that the evaluation of the evidence by the court below was not balanced because only evidence against the appellants was analysed and relied on while evidence in favour of them was not analysed in the ruling such as the fact that the filing of the action was not used as a fundraising venture.

The appellants added that judge Sichinga erred in law by finding that there was inordinate delay.

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