Mvula v Nyirongo (Civil Appeal 99 of 2017) [2018] MWHCCiv 16 (1 January 2018)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL APPEAL NUMBER 99 OF 2017 (Being Civil Case Number 22 of 2016 in the First Grade Magistrate Court sitting at Lilongwe) BETWEEN: CHAR LES MVU LA---------------------------------------------------A PP ELLA NT AND JANE NYI RONG 0---------------------------------------------------R ES POND ENT CORAM: HON. JUSTICE M. C. C MKANDAWIRE Ndalama, Counsel for the Applicant Mwenelupembe, Counsel for the RESPONDENT ltai, Court Interpreter RULING On 11 th of May 2017 I ordered for stay of execution of judgment of the lower court pending determination of the appeal. In November 2017 the applicant filed an application to have the order of stay of execution set aside. The application is supported by an affidavit deponed by counsel Pachalo Nomsa Mwenelupembe. In a nutshell, the basis of this application is that before judgment herein was obtained in favour of the claimant, the claimant's mother died. Two older children obtained an order of Limited Grant to allow them to proceed with the matter on behalf of the other beneficiaries of the deceased. The applicant has heavily attacked the affidavit that was used to obtain the stay. In particular, it has been deponed that the sale agreement PNMS is fraudulent. It is also alleged that there are no grounds warranting stay of execution of the judgment. That the defendant has not disclosed grounds on how the appeal will be rendered nugatory. The applicant further said that since May 2017, no further steps have been taken to hear the appeal. I have looked at the response that was made by counsel Ndalama in relation to the application herein . I am aware that the stay order was granted through an ex-parte ___ application. After giving the case_the be~t of its scru!i_ny, I J1~reb_y__g rder tha~ _!he order of stay should be set aside. Let the judgment be executed to the letter. I am indeed not satisfied that execution of the judgment would lender the appea l nugatory. Costs to the applicant. MADE THIS DAY OF JANUARY 2018 AT LILONGWE M. C. C. MKANDAWIRE JUDGE 2