Kaleya Smallholders Company Ltd v Maxwell Mwinga and Ors (CAZ/08/382/2025) (29 December 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/382/2025 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: KALEVA SMALLHOLDERS COMPANY LTD APPELLANT AND MAXWELL MWINGA RESPONDENT 1ST MODROW MPANDE 2ND RESPONDENT LIVERT LWINDI 3RD RESPONDENT BENSON CHILAPYA .,. 4TH RESPONDENT SIANAMOONO RESPONDENT 5TH KILLIAN MACHULU RESPONDENT 6TH BEFORE THE HON. MRS JUSTICE P. C. M. NGULUBE IN CHAMBERS . . For the Applicant Mr. Z. Sampa Messrs. Simeza Sangwa & Associates For the Respondents: Mrs. K. Tembo- Muyombo, Messrs Milner~ Paul Legal Practitioners RULING Cases referred to: 1. Shaw vs Hollard (1846) 15 L. J. EX 87 2. Linotype Hell Finance Limited vs Baker (1992) 4ALL ER 887 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument Number 65 of 2016. 2. The Rules of the Supreme Court, (White Book) 1999 Edition. 1.0 INTRODUCTION 1.1 This is the applicant's application for an order of stay of proceedings pending the determination of the appeal. It is made pursuant to Order 59 Rule 13(1) of the Rules of the Supreme Court of England, 1999 Edition. 1.2 It is accompanied by an affidavit in support deposed to by Zikhalo Mubanga Sampa, Counsel seized with conduct of the matter on behalf of the applicant. It was deposed that the appeal has realistic prospects of success and that there are special reasons warranting the grant of a stay of proceedings. It was further deposed that it is in the interest of justice that the proceedings in this action are stayed to avoid them being nullified in the event that the appellate court holds that the matter ought to have been referred to arbitration. -R2- 2.0 SKELETON ARGUMENTS IN SUPPORT OF THE APPLICATION 2.1 The applicant's Advocates referred to the authors of Halsbury's Laws of England on Practice and Procedure, at paragraph 926 which states that- "926. In general, a stay ofp roceedings arises under an order of the court which puts a stop or "stay" on the further conduct of the proceedings in that court at the stage which they have reached so that the parties are precluded from taking any further steps in the proceedings." 2.2 It was submitted that the appeal challenges the High Court's holding that the arbitration clause in the agreement which is the subject of these proceedings is inoperable and declining to cede jurisdiction to the arbitration process. 2.3 It was submitted that the court went beyond the scope of what parties pleaded in the Ruling which is the subject of appeal. It was submitted that the intended appeal has good prospects of success and that there are special circumstances warranting the grant of the stay of proceedings so as to avoid. the court proceeding with a matter where there is a possibility that the -R3- proceedings may be rendered a nullity and of no legal effect if the appeal questioning the court's jurisdiction succeeds. 2. 4 I was urged to stay the proceedings pending the hearing and determination of the appeal because there are special circumstances warranting the grant of the order of stay. 3.0 RESPONDENT'S AFFIDAVIT IN OPPOSITION 3 .1 The respondents filed an affidavit in opposition deposed to by Benson Chilapya, the 4th respondent. He deposed that the applicant had not demonstrated exceptional circumstances to warrant the grant of an order of stay of proceedings. 3.2 It was argued that staying the proceedings will prejudice the respondents who have been ousted of their farms and are being denied access on the premise of an earlier eviction notice dated 7 February, 2022. 3. 3 It was deposed that if the proceedings are stayed pending the hearing and determination of the appeal, the respondents will be prejudiced and their livelihoods and source of income will be cut short. -R4- 4.0 SKELETON ARGUMENTS IN OPPOSITION 4.1 The respondent's Advocates filed skeleton arguments 1n opposition to the application. The case of Shaw vs Hollard1 was referred to where the court stated that- "The general rule, I think should be that the proceedings under a Judgment should not be stayed pending an appeal unless on special grounds." 4.2 It was submitted that there are no special circumstances warranting the grant of a stay of proceedings. The case of Linotype Hell Finance Limited vs Baker2 was. referred to, where the court stated that- "It seems to me and that if an appellant can say that without a stay of execution he will be ruined and that he has an appeal which has some prospects of success, that is a legitimate ground for granting a stay of execution." 4.3 It was submitted that this is not a proper case for the court to exercise its discretion and grant the appellant an order of stay of proceedings as there are no special circumstances warranting the stay. I was urged to dismiss the application accordingly. -RS- 4 .4 The applicant filed an affidavit in reply deposed to by Paul Mumba, the Finance Manager and Company Secretary in the appellant company. The gist of the affidavit in reply was that in the interest of justice, these proceedings be stayed so that in the event that the applicant succeeds in this court, the proceedings herein will be rendered null and void. 5.0 MYVIEW 5.1 I have carefully considered and read the affidavits, submissions and the Ruling of the lower Court. In an application for stay of proceedings pending appeal, the considerations are the prospects of success and whether the applicant will suffer irreparable damage if a stay is not granted in the event the appellant's appeal succeeds. 5.2 The fact that a party has exercised his or her rights to appeal to a higher Court does not mean that the proceedings in the High Court must be stayed. The appellant must also show special circumstances in favour of granting a stay of proceedings. 5.3 Having read the affidavits in support and in opposition, skeleton arguments and list of authorities, this Court is entitled to -R6- consider whether to grant an order of stay of proceedings in the circumstances. 5.4 I am of the view that the applicant has not shown any special circumstances in favour of granting an order of stay of proceedings. I am therefore not persuaded to grant an order of stay of proceedings pending the hearing and determination of the appeal. 5.5 The applicant's application for stay of proceedings pending appeal fails, with costs to the respondent. Dated this 29th day of December, 2025. ~ HONOURABLE MRS JUSTICE P.C.M. NGULUBE COURT OF APPEAL JUDGE -R7-