The Lusaka High Court has dismissed with costs, an application by expelled MMD National Secretary Richard Kachingwe to stay its earlier ruling that he had no authority to remove MMD president Nevers Mumba from the helm of the party.
High Court Judge in-charge Jane Kabuka said in her ruling yesterday that in the absence of a decision on the issue of whether or not Major Kachingwe was properly expelled from the party, there was nothing to be executed and consequently, there was also nothing to be stayed by the court.
This is in a matter in which Maj Kachingwe had asked the court to stay the ruling against him that he has no powers to expel Dr Mumba pending his appeal to the Supreme Court.
Ms Justice Kabuka on January 28, 2013 dismissed the application by Maj Kachingwe to remove Dr Mumba as MMD president saying he had no powers to do so as he had already been expelled from the party.
Maj Kachingwe has since appealed to the Supreme Court against the High Court ruling but had in the meantime, asked Ms Justice Kabuka to stay her ruling pending the determination.
He had contended that the High Court’s earlier ruling had prejudiced him as he was not free to associate with MMD members.
But Ms Justice Kabuka yesterday said the court was not invited to decide on the merits or demerits of his expulsion and that the court did not make a decision touching on his membership status in the MMD.
She said the application by Major Kachingwe for stay of execution was launched on a misconception that the court had made a decision touching on his membership status when infact the court made no such decision.
“I find the application for stay premised on that misconception as unsustainable, as in the absence of a decision on the issue of whether or not an application was properly expelled, there is nothing to be executed in that regard. Consequently, there is also nothing to be stayed” Ms Justice Kabuka said.
She said Maj Kachingwe’s initial relief from the court was for an order of the court to declare that his decision made to nullify the election of Dr Mumba to the position of party president was valid which her court refused.
She said she made it clear in the January 28, 2013 ruling that Maj Kachingwe’s expulsion was made by his own party and what her court did was to merely make an observation based on the affidavit evidence before her.
“The position remains that Rules of Supreme Court O, 14A(2) under which the preliminary issue was brought gives the court power on determination of a point of law to dispose of the whole matter summarily at a preliminary stage and without trial, when the issue raised goes to the root of the case,” she said.
Ms Justice Kabuka said her finding that Maj Kachingwe did not have authority to pursue the matter in a representative capacity was one which merited to the root of the matter and determined the whole case.
She said for this reason, she was not satisfied that there were any prospects in Maj Kachingwe’s appeal.