Kenneth Kaira (Suing In His Capacity As Acting Secretary General of United National Independence Party) v Mulenga Mwiche And Anor (APPLICATION 74/2024) [2025] ZMCA 37 (24 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPLICATION 74/2024 HOLDEN AT NDOLA (Civil Jurisdiction) BE:TWEEN: KI~NNETH KAIRA (SUING IN HIS CAPACITY AS ACTING SECRETARY GENERAL OF UNITED NATIONAL INDEPENDENCE PARTY) APPELLANT AND MULENGA MWICHE MIKE KAIRA CORAM: MCHENGA, D RESPONDENT ESPONDENT On 18th February, 2025 and 24th February, 2025. 067,LUS~I' For the Appellant: Mr. M. Makala - Messrs. LM Chambers Fo r the Respondent: Mr. A. D. Mwansa Mumba - Messrs. AD Mwansa Mumba & Associates RULING NGULUBE, JA delivered th e Ruling of the Court. Cases referred to: 1. Herman Josef Kibler vs Apollo Agricultural Holdings Limited Reportable Judgment No. 2 of 2020 2. Tommy Mwendalema vs Zambia Railways Board (1978) Z. R. 65 (SC) 3. 4. Shell & BP Zambia Limited vs Conidaris & Others (1975) Z. R. 174 Zambia State Insurance Corporation Limited vs Dennis Muliokela (1990) Z. R. 18 5. John Mumba & Others vs Zambia Red Cross Society SCZ Judgment No. 31 of 2006 6. Zambia Revenue Authority vs The Post Newspaper Appeal No. 36 of 2 016. 7. 8. 9. Zambia Revenue Authority vs Masiye - SCZ Appeal No. 56 of 2011 Patel vs Patel - SCZ Appeal No. 3 7 of 2012 Jamas Milling Company Limited vs Imex International Limited - (2002) Z. R. 79 10. NFC Africa Mining Plc vs Techro Zambia Limited (2 009) Z. R. 236 l. A?gislation referred to: 1. The Court of Appeal Act No. 7 of 2016 2. The Court of Appeal Rules, Statutory Instrument Number 65 of 2016. 1.0 INTRODUCTION 1.1 This is the app ellant 's application to vary, discharge or reverse the ruling of the single Judge d at ed 9 th August, 2024. It is m a de pursuant to Section 9(b) of the Court of Appeal Act1 and Order X Rule 2(8) of the Court of Appeal Rules.2 -R2- 2.0 APPELLANT'S ARGUMENTS 2. 1 The application was accompanied by an affidavit deposed to by Kenneth Kaira, the appellant, in his capacity as the Acting Secretary General of the United National Independence Party (UNIP). He deposed that he commenced an action in the lower Court claiming amongst other reliefs, a declaration that the respondents had no authority to interfere with the affairs of UNIP after having been suspended by the Central Committee of the party. The respondents raised preliminary issues and the Cou rt below delivered a Ruling upholding the preliminary issues. 2.2 It was deposed that being dissatisfied with the Ruling of the lower Court, the appellant appealed to this Court and made an application for an injunction in the lower Court, which was denied. The appellant renewed the application for an injunction before this Court and the application was heard by the single Judge of this Court. The respondents raised preliminary issues to the effect that the application was incompetently before this Court. The single Judge found merit in the preliminary issues and dismissed the application for an order of injunction. That the single Judge dismissed the application and ruled that a stay of - R3- execution of the Ruling was the appropriate application the appellant ought to have made and not an application for an order of injunction. He deposed that the decision of the Court below cannot be enforced and therefore a stay of execution is not the appropriate application. 2 .3 He averred that the appellant is entitled to an injunction because the appeal h as prospects of success and the respondents have continued to interfere in the affairs of UNIP by calling for a central committee meeting which was held on 22nd June, 2024. That it has therefore become necessary to grant an order of injunction to restrain the respondents from interfering with the operations of the Central Committee until determination of the appeal. 2.4 In the Skeleton Arguments in support of the application, Counsel for the appellant submitted that this Court has the requisite jurisdiction to grant an order of injunction pending appeal as was held in the case of Herman Josef Kibler vs Apollo Agricultural Holdings Limited1 where it was held that an order of injunction pending appeal, serves the purpose of preserving the subject matter of a pending appeal so that any order that is made by the Court will not be rendered nugatory. -R4- 2.5 In relying on the cases of Tommy Mwendalema vs Zambia Railways Board,2 Shell & BP Zambia Limited vs Conidaris & Others3 and Zambia State Insurance Corporation Limited vs Dennis Muliokela, 4 it was submitted by Counsel that this is a proper case to grant the injunction because the appellant has disclosed all material facts and his right to relief is clear. 2.6 Counsel submitted further that the application for an order of injunction is the appropriate application beca use there can be no stay of execution of a Ruling or Judgment which cannot be enforced . Tha t therefore, the appellant could not h ave a pplied for a stay of execution because there was nothing to stay . To buttress this argument, Counsel made referen ce to th e cases of John Mum.ha & Others vs Zambia Red Cross Society5 and Zambia Revenue Authority vs The Post Newspaper. 6 3 .0 RESPONDENTS' ARGUMENTS 3 .1 The respondents opposed the application and filed an affidavit in opposition deposed to by the 1st respon dent. He deposed that the appellant commenced the action in the lower Court against the respondents, seeking declarations that the respondents h a d no authority or right to call for or conven e m eetings or preside over -RS- the affairs of the party because they were suspended. That further the suspension of the party president at the respondents' instance was null and void. 3.2 He deposed further that the lower Court dismissed the action on the basis that the suspensions for a prolonged period of over 21 months, contrary to the mandatory period of 12 months only. Further that the action was dismissed for being an abuse of Court process and on the basis of the appellant not having locus standi. 3.3 Further, that the respondents were not formally charged because the appellant's appointment as the party's Acting Secretary General was contested by the 34 majority members of the central committee, the position which had not been filled since May 14, 2022, and since expulsion of the party president. 3.4 It was deposed that the appellant's Court action was meant to resolve the issues instead of resolving them through the party Constitution and disciplinary rules. 3.5 It was deposed further that the appellant appealed against the Ruling of the lower Court and applied for an order of injunction pending appeal, which was denied. He renewed the application before this Court and was denied by the single Judge of this Court. -R6- That the single Judge of this Court properly held that the order of injunction could not be granted because the action in the lower Court was entirely dismissed. 3.6 In the Skeleton Arguments in support of the affidavit opposition, Counsel for the respondents submitted that the appellant ought to have applied for a stay of execution under Order XXXVI Rule 10 and Order XLVII Rule 5 of the High Court Rules, Order X Rule 5 of the Court of Appeal Rules and Order 59 Rule 13 of the Rules of the Supreme Court. Further, that the appellant ought to have applied for stay of execution because the circumstances of this case do not warrant the grant of an injunction. 3 . 7 In relying on the case of Zambia Revenue Authority vs Masiye, 7 Counsel argued that this is an irregularity which goes to the root of the appeal and therefore should be dismissed. 3 .8 Counsel also argued that rules of procedure should be adhered to for orderly administration of justice. For this proposition, Counsel referred us to various cases which included the case of Patel vs Patel,B Jamas Milling Company Li mited vs lmex International -R7- Limited9 and NFC Africa Mining Plc vs Techro Zambia Limited.10 4.0 DETERMINATION AND DECISION 4. 1 We have considered the Ruling of the single Judge and the parties' arguments. The appellant's discontent is with the single Judge's decision to dismiss his application for an order of injunction pending appeal on basis that the appropriate application he should have made was for a stay of execution. 4.2 The basis of the single Judge's decision was that the appellant failed to distinguish the case of Herman Joseph Kibler (supra) from the present case because the action was entirely dismissed by the lower Court. That therefore , there would be no basis on which the application for an injunction would rest. The single Judge found no special circumstance which would influence the grant of an injunction pending appeal. 4 .3 In the case of Zambia Revenue Authority vs The Post Newspaper (supra), the Supreme Court guided as to whether a stay of execution would be the appropriate application where an action has been dismissed. The question that arose for determination of the Court was whether a Judgment which -RS- dismissed an action for judicial review could be stayed. The Supreme Court guided that- "Where a Judgment or Ru ling refuses Judicial Review or an injunction, there is nothing to stay; because such a Judgment or Ruling does not award a remedy, such as money or property, which can be obtained by court execution. In short, a/ailed Judgment or Ruling cannot be stayed because it did not award anything. If there is nothing to execute about such a Judgment or Ruling, then there is nothing to stay about it. Only a Judgment or Ruling which awards a remedy and which can be enforced by court process, can be stayed. The Judgment of 3()th October 2015 did not award ZRA any compensation in the Jorm of money or property. It simply refused to give the Post Judicial Review. It was not capable of enforcement by court execution. There/ore, there was nothing to stay about it.,, 4.4 The Supreme Court clearly guided that a Judgment that did not grant a r emedy is not capable of enforcement and therefore nothing to stay about it. 4 .5 In the present case, the respondents had raised preliminary issues in the Court below which led to the dismissal of the -R9- appellant's action. There were no remedies granted. The Ruling which dismissed the action is the subj ect matter of the appeal in this Court. There was therefore nothing to execute from the Ruling of the lower Court and therefore nothing to stay. We are therefore of the considered view that the application for an injunction was the appropriate application. 4.6 As to the merits of the application for an order of injunction p ending appeal, we have carefully perused the parties' arguments which were before the single Judge. In the case of Hermann Josef Kibler vs Apollo Agricultural Holdings Limited (supra), the Supreme Court guided that the principles guiding a stay of execution and an injunction pending appeal are the same. The Court summarized the principles granting injunctions at page J45 as follows: 1. The Court must be satisfied that the appeal has a real prospect of success. 2. If the Court is satisfied that there is a real prospect of success on appeal, it will not usually be useful to attempt to form a view as to how much stronger the prospects of appeal are, or to attempt to give weight to that view in assessing the balance of convenience. -RlO- 3. It does not follow automatically from the fact that an interim injunction had or would have been granted pre-trial that an interim injunction pending appeal, should be granted. The Court must assess all the relevant circumstances following judgment, including the period of time before any appeal is likely to be heard and the balance of hardship of each party if an injunction is refused or granted. 4. The grant of injunction is not limited to the case where its refusal would render an appeal nugatory. Such a case merely represents the extreme end of a spectrum of possible factual situations in which the injustice to one side is balanced against the injustice to the other. 5 . As in the case of stay of a permanent injunction, which would otherwise be granted to a successful claimant, the Court should endeavor to arrange matters so that the Court of Appeal is best able to do justice between the parties once the appeal has been heard. 4. 7 Th e Su preme Court went on state that in considering wh ether th e applicant has raised substantial issues of law, it must tread carefully and cautiously and it is not the duty of the Court at this stage to con sider wheth er th e appeal will su cceed or not. It stated that this does not depend on th e importance or -Rll- seriousness of the ground of appeal taken in isolation, rather it relates to the effect of refusal of the injunction if the appeal succeeds. 4. 8 After careful consideration of the factors mentioned above, we are of the considered view that the appeal has prospects of success and it is necessary to restrain the respondents from interfering in the party's affairs pending appeal, in order to prevent the respondent from disrupting the status quo . 5.0 CONCLUSION 5.1 In view of the foregoing, the application for an injunction pending appeal has merit and the order of injunction pending appeal is hereby granted. P. C. M . NGULUBE COURT OF APPEAL JUDGE ~ Y. CHEMBE COURT OF APPEAL JUDGE -R12-