Maambo Simukuni v Tenyiwe (2021/HPA/013) [2024] ZMHC 192 (23 October 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: MAAMBO SIMUKUNI AND TENYIWE •.· 11 c.., (j y ---· -~o:.-m" - 2021/HPA/013 APPELLANT RESPONDENT Before Hoq.. Mr. Justice M. D.~~-· ... - & ,.. OW day of October 2023 For the Appellant: No appearance For the Respondent: Mr. C. Ngoma of Simeza Sangwa and Associates. RULING Cases referred: 1. Ruth Kumbi v Caleb Robinson Zulu (2009) ZRl 83 2. Wilson v Church No. 2 {1879} 12 ChD 454 3. Micheal Chilufya Sata v Chanda Chimba III and Others 2010/HP/ 1282 4. Nairobi City Council v Resley (2002) 2 EA 487 5. Total Marketing Kenya Limited Civil Appeal No. 43 of 2015 6. Sonny Mulenga and others vs investment Merchant Bank 1999) ZR 101; 7. Rush Bawa v Fred Mubiana and Zesco Limited (Appeal 121 of 2011) 8. Twampane Mining Co-operative Society Limited v E and M Stori Mining Limited (S. C. Z. Judgment No. 20 of 2011) 1. 1 The Appellant applied for leave to appeal against the judgment of this court dated 30th December 2022 . I granted the Appellant the application to appeal out of time but directed I would hear inter-parties the application for stay of execution of the said judgment. The summons and affidavit in support were filed into court on the 8 th of February 2023 accompanied by skeleton arguments of even date . 1.2 Muka Hamayangwe counsel seized with conduct on behalf of the Appellant deposed to the affidavit in support. He averred that the leave granted to the Appellant to appeal out of time does not operate as a stay, hence the filing of this application. He believed the appeal has merit and reasonable prospects of success. It was his further averment that the need has arisen to seek a stay of execution of the judgment failure to which the Respondent may proceed to enforce the judgment. He further believed the appeal. may be rendered nugatory if the execution of the judgment is not stayed. He averred and believed this to be a proper case in which the court should exercise its discretion and grant the order to stay execution of the judgment. R2 1.3 In skeleton arguments in support of the application dated 8 th February 2023, the Applicant relies on Order 3 rule 2 of Cap 27in imploring the court to favourably consider the application. Other authority cited are cases of Ruth Kumbi v Caleb Robinson Zulu 1, Wilson v Church2 and Micheal Chilufya Sata v Chanda Chimba III and Others. 3 1.4 The Respondent opposed the application by skeleton arguments dated 14thMarch 2023. It was argued that the matter is improperly before the court as the Appellant has not filed the notice of appeal and memorandum of appeal to warrant the stay of the judgment of the court pending appeal. Reference was made to a Kenyan Court of Appeal decision in the matter of Nairobi City Council v Resley4 in which the court held that: "It is trite law that without a notice of appeal against particular order, we would have no jurisdiction to grant a stay of those orders and we cannot therefore accept Mr. Oduols arguments to the effect that the notice of appeal against the ruling of the 11 th April 2002 entitled him to apply for a stay of execution of orders made on the 11 th March 2002. This argument is frivolous. It is also trite that once we have no jurisdiction, we must down tools and say we can go no R3 further, we must stop here. In view of the decision we have arrived at, we cannot go into merits or demerits of the application. This application is, therefore struck out with costs." 1. 5 Another Kenyan authority cited was the case of Total Marketing Kenya Limited5 in support of the proposition the matter is improperly before the Court. 1.6 It was thus argued that this court cannot exercise its jurisdiction to grant the stay of judgment until the Appellant files a notice of appeal and memorandum of appeal in the Court of Appeal. Further that the application for extention of time within which to bring the appeal filed into court, cannot form the basis for the court to exercise its jurisdiction in this application. 1. 7 In the second limb of the opposition, the Respondent argues that the application has not met the threshold for the grant of a stay of execution. The case of Sonny Mulenga and others vs investment Merchant Bank and Elephants Head Hotel Limited v Investrust Bank Limited6 was cited wherein the court observed. R4 "In terms of our rules of court, an appeal does not automatically operate as a stay of execution, and it is utterly pointless to ask for a stay solely because an appeal has been entered. More is required to be advanced to pers uade the court below or t his court that it is desirable, necessary and just to stay a j udgment pending appeal" 1. 8 That the court went further to hold that in exercising its discretion whether to grant a stay or not, the court is entitled to preview the prospects of the proposed appeal. I was also referred to in the case of Carmine and Watson Nkandu Bowa sued as administrator of Estate of Rush Bowa v Fred Mubiana and Zesco Limited7 in which the cou rt held: "That in a n application fo r stay of execution pending appeal, the conside rations are t he prospect of the appeal succeeding and t he irreparable damage if a stay is not granted and the appellant succeeds. " 1. 9 It was argued based on the authorities cited that the 2 key issues that have to be demonstrated are th e prospects of success which is discerned from the preview of the ground of appeal as set ou t in the memorandum of appeal; and that the Applicant will suffer irreparable damage if the stay is not RS of appeal were filed in the Court of Appeal on the 14th March 2023 following the court's order granting leave to appeal out of time on 13th February 2023 . Therefore, that it clear that the Appellant had, contrary to the assertion by the Respondent, complied with the rules as guided in Order 59 rule 13 of the RSC. The Appellant prayed that the court grants the stay with costs. 1.12 Court's determination 1.13 I have considered the parties respective positions. The parties failure to file affidavits in opposition and in reply invariably saw the parties introducing evidence through their submissions. The submission that there was no notice of appeal filed and counter submission stating this was actually done are matters of evidence which are best placed in affidavits. The affidavits in reply could have in this case, exhibited the notice of appeal. Suffice to state the application for the stay was filed into court on the 8 th of February 2023. The notice of appeal and memorandum were only filed on the 13th of February 2023 which necessarily implies there was no notice at the time the application was made. It is of course only logical that the R7 Appellant could only proceed to do so after obtaining the leave of court to appeal out of time. 1.14 Persuasive as the arguments for the Respondent are as regards the in appropriateness of the application before me, I find that the matter at the point of consideration of the application is property before me granted the notice and memorandum have since been filed. I find more compelling the consideration of the prospectus of success and whether any damage would be occasioned to the Appellant in the event of a refusal and subsequent success on appeal of the substantive matter. By failing to file an affidavit in reply, I do not have before me the proposed grounds of appeal to review the prospect of success in as much as I granted counsel the benefit of doubt that such filing has been made. There is further no averment that has been made before me on the likelihood of irreparable damage in the event of my refusal to grant the application. 1. 15 I have no basis to find there are prospects of success or that the Appellant will suffer irreparable harm. Both were the duty of the Appellant to establish which he has failed to do in this case. I accordingly dismiss the application with costs to be taxed in R8 • ... default of agreement. The Appellant is at liberty to renew the application before the Court ~eal. Dated at Lusaka this ... ?.: ...... day of . Q ........... 2024 c//)iJ: HON. JUSTICE M. D BOWA R9