Msumi, J G
In the original suit appellant sued the respondents in the Court of Resident Magistrate Kisutu. On 8 November 1993 the suit was dismissed under Order 9 Rule 8 of the Civil Procedure Code for non appearance of the appellant. In response to this order, appellant filed a chamber application requesting the court to set aside the dismissal order. The said application was dismissed with costs on H the ground that it was defective as the chamber summons was not stamped with a court seal. Dissatisfied with this finding appellant decided to lodge the present appeal.
Counsel for each party was required to make his submission in writing and submit it by respective scheduled dates. Up to the time I
A of preparation of this ruling, counsel for the appellant had not presented his submission. So in the preparation of this judgment the court had only the advantage of the written submissions presented by counsels for the respondents. Without prejudice to his arguments against the appeal on its merits, Mr Kisusi, counsel for the first respondent raised two preliminary objections. His first B argument is that the ruling of the trial court does not amount to a decree against which the appellant would have an automatic right to appeal. The said ruling embodied an order and s 74 and Order 40 Rule (1) of the Civil Procedure Code C specify the orders which can be appealed against. According to the learned counsel the order in question is not among those specified for appeal. I am of a different respectful opinion. The order dismissing the application to set aside the dismissal order was made under Order 9 Rule 9 which, under Order 40 Rule 1(c) is appellable. It is surprising that the learned counsel could not see this clear provision. D
The second objection, to which Mr Nchimbi, counsel for the second respondent, associates himself, is that the chamber summons has not been stamped with a court seal. It is true that it was necessary that the chamber summons had such E stamp. But is the appellant responsible for this omission. It was for the court to imprint such stamp after the appellant had paid the necessary fees. It was unfair for the learned resident magistrate to punish the appellant for non-compliance of an action of which the appellant had no power to ensure its compliance. Hence this objection is also overruled. F
On the merits of the appeal, Mr Kisusi has submitted that the appellant has no valid ground to complain against the ruling of the trial court. He contends that since the chamber summons was not stamped with a court seal, the same was a nullity. In support of this view the learned counsel cited the judgment of this court in G the case of C P C International PLC v Zainab Grain Millers Ltd (1), In principle it is true that a chamber summons without a court seal is of no legal effect. However, it is not good law that such defect should be a ground for dismissal of a suit. Essentially a chamber summons is an order of the court requiring parties to H appear before the court on a specified date for the purpose of entertaining prayers sought by the applicant. Thus any defect on such order should, at most, have the effect of lacking legal force of commanding the appearance of the parties. Any party who default appearance by command of such summons cannot be subject to the legal conse- I
quences provided under the relevant provisions of the law. A
In conclusion, this appeal is allowed with costs. The trial court is directed to re-admit the application for setting aside the dismissal order. B
1997 TLR p109
