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Judge refuses to be drawn into making a sympathetic judgment for Nakacinda

THE Court of Appeal has thrown out an appeal by nominated member of Parliament Raphael Nakacinda and George Kangwa in which they were challenging the refusal by High Court judge Sharon Newa to stay her judgment declaring Nevers Mumba the legitimate president of MMD.

Court of Appeal judge Mwiinde Siavwapa dismissed the appeal with costs to be taxed in default of agreement for lack of merit.

“Assuming that the judgment in this case was capable of being stayed, upon review of the grounds of appeal as set out in the memorandum of appeal, I am not persuaded that the appeal has reasonable prospects of success to warrant an order of stay,” judge Siavwapa said.

Nakacinda and Kangwa who cited the National secretary for MMD Winnie Zaloumis asked justice Newa to stay her judgment which declared their May 22, 2016 convention which saw them and others as leaders of MMD illegal.
But judge Newa struck out the appeal on grounds that staying the judgment would be going against her decision.
However, Nakacinda and Kangwa renewed the application before the Court of Appeal.

But the Court of Appeal has ruled that a judgment that does not give an award capable of enforcement, either in monetary form or in property is incapable of being stayed adding that it was also impossible to stay a judgment that has already been executed.

Judge Siavwapa said the declaration by the High Court that the convention that ushered Felix Mutati, Nakacinda, and Kangwa, among others, as leaders of MMD who opted not to appeal illegal and consequently the election of the applicants and others null and void, was incapable of being stayed as it merely made declarations without any award to Winnie Zaloumis.

He said that the order to the registrar of Societies to rectify the list of office bearers which was complied with on November 8 before Nakacinda appealed the judgment could equally not be stayed as it would amount to reversing justice Newa’s decision before hearing the substantive appeal.

He said he would not be drawn to render a sympathetic judgment owing to the prayer by Nakacinda that his political career will be ruined if the judgment of the High Court was not stayed.

“I wonder how, but even assuming that that would be the case, I would not be drawn into sympathising with a litigant’s prospective loss at the expense of applying the law as sympathetic judgments are to be frowned upon as guided by the Supreme Court in the case of Zambia Revenue Authority v Post Newspapers limited (Supra),” said Judge Siavwapa.

“I therefore find no merit in the application before me and I dismiss it with costs to be taxed in default of agreement.”

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