Mackanja, J.: When this matter came for hearing of a Chamber application in which the applicants D pray that an order be made to consolidate the hearing of the several cases listed in the Chamber summons, Mr Chandoo, Advocate, informed the Court that Mr Mohora, one of the defence lawyers had travelled to Zanzibar to appear before the Court of Appeal of Tanzania. In that connection he E applied for an adjournment for several days in that they expected Mr Mohora from Zanzibar the next day.
Mr Kisusi, learned Counsel for the plaintiff strongly objected to the application. His reasons in so objecting are quite sound; for as he said, appearance by an Advocate before another Court is not F sufficient cause for an adjournment. This, indeed, is what para (c) of the provise to Rule 1 sub-rule (2) of Or XVII provides. It states:
`The fact that the Advocate of a party is engaged in another Court shall not be ground for adjournment.' G
I nonetheless granted the application for adjournment and reserved my reasons. I now give the reasons.
The purpose for which, in my view, para (c) of the proviso to Rule 1(2) of Order XVII, was meant to H cover was to prohibit Advocates using their failure to maintain their diaries as a ground for adjournment. This is not one of those cases; for as Mr Chandoo stated in reply, these provisions do not cover situations which are beyond the control of the Advocate. Obviously, where the Court of I
A Appeal amends its calender as a result of which an advocate finds himself having to appear before both the Court of Appeal and this Court, he is bound to appear before the superior Court. Since the change of dates was made without the prior knowledge of learned Counsel, and since those changes were made well after this application was fixed for hearing, it was not Mr Mohora's B fault to find himself having to appear before the Court of Appeal and this court on the same date. I would have upheld Mr Kisusi's objection if, knowingly, Mr Mohora had participated in fixing dates for the hearing of this application so as to coincide with his appearance before the Court of Appeal. In C my opinion, therefore, Government Notice No 508 of 1991 which publishes the amendments in the Civil Procedure Code which Mr Kisusi, learned Counsel for the plaintiff, seeks to rely upon does not apply to the circumstances of this case.
D On the other hand, learned Counsel for the plaintiff sought to defeat the application for an adjournment on the premise that filing of an application for consolidation of summary suits is untenable unless the defendants seek and obtain leave to defend first. I think there are two aspects involved here: the right to defend oneself, and secondly, to have the claim consolidated so that the E defendant does not have to file separate application, to defend themselves in each civil case. What the defendants are enjoined to do now is to challenge the merits of the claim without leave of the Court. I do not see in that desirability an implied condition that the defendants are also barred from applying to the Court for an order that the several claims against them, if they be of the same F nature, be consolidated.
Since an application to consolidate the several civil cases does not affect the merits of the claim C against the defendants, it will be expedient that the defendants be heard if they can show sufficient cause.
G In the result the objections are dismissed. Costs shall be in the cause.
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