Kauya and Anor v National Housing Empowerment Fund Ltd (HPC 960 of 2020) [2020] ZMHC 383 (21 December 2020)

IN THE HIGH COURT FOR ZAMBLAl_ AT THE COMMERCIAL REGISTJEH^^^SS^S^ 2020/HPC/0960 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: F / s •H!^!CIARY MX. v x \ ((® 21 DEC 2020 'W \\ L~ J Xj*OMMERCiAL REGISTRY/ MALCOM MISHECK KAUYA LUMBA NKAUSU AND 04 ___ X .50067, FIRST PLAINTIFF SECOND PLAINTIFF NATIONAL HOUSING EMPOWERMENT FUND LIMITED DEFENDANT Before the Honourable Mr Justice K. Chenda on 21st December 2020. EX TEMPORE RULING On Application for an Interlocutory Injunction I have CLOSELY STUDIED the documents in this application and deemed it necessary to invoke the provisions of Order 30 Rule 6A of the High Court Rules as amended by Statutory Instrument No. 58/2020 to deal with the application notwithstanding the unexplained absence of the parties today. After a CAREFUL CONSIDERATION thereafter, my decision is as follows. In Kekelwa Samuel Kongwa v. David Nkhata (Appeal No. 102/2013 at p. 13-14), the Supreme Court guided that pleading for damages or other monetary relief in the originating process is acknowledgement that such relief would serve as adequate compensation and that there is no irreparable injury to be suffered without an interlocutory injunction. The Supreme Court further guided that where there is a plea for such relief, the burden is on the applicant for the injunction to prove that the responding party has no financial capacity to satisfy the damages or monetary relief sought. In the case before Court, perusal of the originating process shows that not only do the Plaintiffs seek damages (relief no. (iv) but they also seek monetary awards (relief no. (ii). I have anxiously searched the body of evidence led by the Plaintiffs in this application and found no proof or even a bare averment that the Defendants’ would be unable to meet any damages awarded and/or monetary sum judgment if the Plaintiffs succeed in this action. The end result is that I am bound by stare decisis to refuse this injunction application which I hereby do. Costs shall be in the cause. Dated this day of K. CHENDA Judge of the High Court To: M. K. Achiume 8s Associates R2