By GRACE CHAILE LESOETSA
The Appeals Court says time has stopped running in the main matter involving Bowman Lusambo and Joe Malanji, and the 21 days will not expire until the stay it granted the state is discharged
This is in a matter were the Court of Appeal has thrown out an application by Bowman Lusambo and Joseph Malanji to set aside its decision in which it halted election petition proceedings before the High Court.
On Friday, September 16, 2022, the Court of Appeal granted the State the application to stay proceedings in a matter in which Mr Lusambo and Mr Malanji are challenging the rejection of their nomination papers by the Electoral Commission of Zambia (ECZ) in the Kabushi and Kwacha by-elections.
The State appealed against the High Court’s ruling suspending elections in the two constituencies pending determination of the matter.
But the duo through their lawyers Makebi Zulu and Jonas Zimba filed an application to set aside the ex-parte order staying the proceedings in the High Court.
The lawyers argued that the determination of the matter in the High Court was time bound and as such must be concluded within 21 days, which period lapses on September 20, 2022.
They stated that with the Court of Appeal reserving hearing to September 22, the High Court would not have jurisdiction by then to deal any further with the matter as the same would lapsed on the midnight of September 20, 2022.
They referred the court to the constitutional Court decision of Hakainde Hichilema, Geoffrey Bwalya Mwamba v Edgar Lungu, Inonge Wina and the ECZ, where the court held that time is of essence where time limit has been set, outside which time the court will no longer have jurisdiction.
Court of appeal Judge Kelvin Muzenga in his extempore ruling on the application agreed with the decision of the Concourt that time is of essence but said that the Hichilema case was not entirely applicable to the Lusambo case as the facts are not “on all fours” with the matter.
Justice Muzenga added that in the Hichilema case, there was no stay in place.
He explained that the time only start running after the stay is discharged by the court of Appeal.
“ I am therefore of the considered view that the High Court will still have jurisdiction to deliver its judgement because the time will resume as soon as this Court discharges the stay,”
“Should the high Court fail to conclude proceedings within time after the discharge of the stay, only then will it be deprived of jurisdiction, the effect of which whatever it will do will then be a nullity for want of jurisdiction,” he said.
Justice Muzenga thus found no merit in the argument by Mr Lusambo and Mr Malanji’s lawyers and declined to grant the application for want of merit.
