Winfridah Chomba Katalo and Anor v Dennis Nkumbwa (CAZ/08/627/2023) (1 December 2025) – ZambiaLII

IN THE COURT OF APPEAL FOR ZAMBIA CAZ/08/627/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: IN THE MATTER OF: ORDER 113 RULE 1 OF THE RULES OF THE SUPREME COURT WHITE BOOK IN THE MATTER OF: ORDER VI RULE 2 OF THE HIGH COURT RULES, CHAPTER 27 OF THE LAWS OF ZAMBIA IN THE MATTER OF: AN APPLICATION FOR SUMMARY POSSESSION OF MARM NO. 5140, MUFULIRA BETWEEN: ~J\LOi WINFRIDAH CHO MB 2 AA 1 ST APPLICANT Q\)t\l Of AP ERNEST KATALO 1 / · --. 2ND APPLICANT T AND [1,t O1 DEC 2025 L---·- DENNIS NKUMBWA '" RESPONDENT 'C :•; ""'•-.,,:- Before the Honourable Madam Justice Y. Chembe in Chambers. For the Applicants Mr. I.K. Mulenga - Messrs Iven Levy Legal Practitioners For the Respondent Mr. J .N. Hara - Messrs Hara & Co with Mr. E. Sakala- Messrs JB Sakala & Co RULING Cases Referred to: 1. Twampane Cooperative Society Limited vs E.M. Storti Mining Limited (2011) Z.R. 67 R2 2. NFC Africa Mining Pie vs Techno Zambia Limited (2009) Z.R. 236 3. Birket vs James (1977) 2 ALL ER 801 4. Allan vs Sir Alfred Mcalpine & Sons (1968) 1 ALL ER 543 5. Danmore Mulima vs Zambia Revenue Authority SCZ No. 16/2014 6. Guardall Security Limited vs Renford Kabwe CAZ Appeal No. 44/2019 Legislation Referred to: (i) The Court of Appeal Rules Act Statutory Instrument No. 65 of 2016] (ii) Halsbury's Laws of England Volume 37, 4th Edition paragraph 448. 1. The Respondent filed a notice of motion to dismiss the Applicants' appeal for want of prosecution dated 19th September, 2025. The motion was accompanied by an affidavit in support deposed by the Respondent herein. 2. It was averred that on 8th December, 2023 the High Court delivered judgment in favour of the Respondent declaring he was the lawful owner of Farm No. 5140, Mokambo Mufulira and that it formed part of the estate of his late father. R3 3. It was deposed that the Applicants had not taken any further steps such as filing and serving the record of appeal and heads of argument in prosecuting their appeal in accordance with the Court of Appeal Rules. The Respondent averred that the delay and inaction by the Applicants have prejudiced him as it has delayed the enjoyment of the judgment. It was also stated that the Applicants have abandoned their appeal and as such the appeal must be dismissed for want of prosecution. 4. In the skeleton arguments filed, the Respondent relied on Order 10 Rule 7 of the Court of Appeal Rules. It was submitted that the compliance with procedural rules was mandatory and not optional. Parties must adhere to the rules of court to ensure that matters are heard in an orderly and expeditious manner. The cases of Twampane Cooperative Society Limited vs E.M. Storti Mining Limited1 and NFC Africa Mining Pie vs Techno Zambia Limited2 were referred to in support of the submission. It was further submitted that the rules of procedure are meant to be followed and any failure to do so undermines the due administration of justice. In conclusion, the Court was urged to dismiss the appeal for want of prosecution. R4 5. The Applicants opposed the application and filed an affidavit in opposition as well as skeleton arguments dated 17th October, 2025. It was deposed that the Applicants' delay in filing the record of appeal was attributed to the preparation of the court proceedings from the court below. It was averred that no prejudice had been occasioned to the Respondent due to the delay as the land in issue was sold and the Respondent had not exhibited any proof that the transaction was reversed. It was further averred that the Applicants denied having abandoned the appeal. 6. In the skeleton arguments the Applicants relied on Order 10 Rule 7 in submitting that an application of this nature could only be granted where it had been shown that there was inordinate delay which was inexcusable and that the other party is likely to be prejudiced. It was submitted that the Respondent had since sold the land and as such had not been gravely prejudiced. The case of Briket vs Jones was cited. RS 7. It was submitted that the reasons advanced by the Applicants are plausible and it is therefore in the interests of justice that the case be heard on its merits. 8. I have carefully considered the application, the affidavits in support and in opposition, as well as the arguments by both parties. Order 10 Rule 7 of the Court of Appeal Rules gives this Court discretion to dismiss an appeal for want of prosecution. The learned Authors of Halsbury's Laws of England state the following on the dismissal of an appeal for want of prosecution: "The power to dismiss an action for want of prosecution, without giving the plaintiff the opportunity to remedy his default, will not be exercised unless the court is satisfied: (i) That the default has been intentional and contumelious (e.g. by disobedience to a peremptory court order or by abuse of process; and (ii) That there has been prolonged or inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the R6 defendants either as between themselves and the plaintiff or between themselves and third parties." 9. In addition, the English case of Allan vs Sir Alfred Mcalpine & Sons4 Limited the Court stated the following: "When delay in the conduct of an action is prolonged or inordinate and is inexcusable, the natural interference in the absence of credible excuse, and there is substantial risk by reason of the delay that a fair trial of the issues will no longer be possible or that grave injustice will be done to one party or the other or to both parties, the court may in its discretion dismiss the action straight away. In order to exercise this discretion justly, the Court will consider the circumstances of the particular case, and away other factors, whether the blame is really the defendants." Similarly, the Supreme Court in Danmore Mulima vs Zambia Revenue Authority5 held that: "The court must consider the circumstances of the particular case and among other factors, whether the blame is really the Plaintiff's before concluding that failure to appear before the court has been intentional or contumelious." R7 10. It is clear from the cited authorities that the deciding factors are that there must be intentional or contumelious disregard of the relevant rules and prolonged or inordinate delay in prosecuting the appeal. In this matter the Applicants filed their Notice of Appeal and Memorandum of Appeal into Court on 20th December, 2023. 11. Order 10 Rule 6 (a) provides for the period in which an appellant ought to file the record of appeal and heads of argument after filing the notice and memorandum of appeal. It provides as follows: "Subject to an extension of time and to an order made under order XIII rule 3, the appellant shall, within sixty days after filing a notice of appeal- (a) lodge the appeal by filing in the Registry twenty-one hard copies of the record of appeal together with heads of argument and an electronic copy of the record of appeal;" 12. The Applicants have argued that the delay was occasioned by the failure to obtain the court proceedings from the lower court. Letters dated 9th May, 2025 and 30th May, 2025 were exhibited respectively in this regard. Going by the rules of this Court, the R8 Applicants ought to have filed their record of appeal and heads of argument on or about 20th March 2024. The letters exhibited on record are dated way beyond the required period and cannot be relied on as an excusable reason to warrant the determination of the appeal on its merit. 13. This Court has emphasized time and again that practice and procedure to be followed in conduct of business of this Court is as provided for in our rules. Ends of justice can only be met by strict adherence to the rules of Court which by their very nature are intended to achieve the proper and orderly administration of justice. In the case of Guardall Security Limited vs Renford Kabwe6 this Court held as follows: "Failure to act within the set time limit robs the court ofj urisdiction to take any further action in that matter. Whether or not the non-compliance has been caused by the court or the other players is immaterial as the cesser ofj urisdiction is by act of law". 14. I therefore find that the delay is inordinate and the explanation advanced for the delay is inexcusable. As such the Applicants' R9 failure to take steps is an indication that they have no intention to prosecute the appeal. 15. In view of the foregoing, I hereby find the Respondent's application to dismiss the appeal for want of prosecution has merit. The Notice of Appeal and Memorandum of Appeal filed on 20th December, 2023 is dismissed with costs to the Respondent, to be taxed in default of agreement. DELIVERED AT LUSAKA THIS 15 DAY OF DECEMBER, 2025 . T ••..•......................................... MADAM JUSTICE Y. CHEMBE COURT OF APPEAL JUDGE