SN - Juris Academy

Natasha Patel-vs-Stanbic Bank Limited [9 June 2026] – Supreme Court Ruling on Severance Pay

By:
William Ngulube

Introduction
The Supreme Court of Zambia recently delivered its ruling in Natasha Patel-vs-Stanbic Bank Limited (SCZ/07/23/2023), a case that raised significant questions about the entitlement of dismissed employees to severance pay under the Employment Code Act, No. 3 of 2019. The matter stemmed from Patel’s dismissal from Stanbic Bank, where she had been employed on a permanent and pensionable basis. Her claim for wrongful dismissal and severance pay eventually reached the apex court after conflicting interpretations in the lower courts.

Background
Patel was dismissed following charges of dishonest conduct and causing financial loss. She sued Stanbic Bank in the High Court seeking multiple remedies, including damages for wrongful dismissal, mental anguish, accrued benefits, and severance pay.

The High Court dismissed her claims for wrongful dismissal but awarded severance pay under section 54(1)(c) of the Employment Code Act. Stanbic Bank appealed, arguing that severance pay only applies to employees under fixed-term contracts, not permanent and pensionable ones.
The Court of Appeal agreed with Stanbic Bank, holding that severance pay is limited to fixed-term contracts and that dismissed permanent employees are only entitled to accrued leave and salary up to the date of dismissal.

Motion Before the Supreme Court
Patel sought leave to appeal to the Supreme Court, arguing that:
1. The interpretation of sections 51 and 54 of the Employment Code Act raises points of law of public importance.
2. Conflicting Court of Appeal decisions necessitate clarification.
3. The matter has widespread implications for employees across Zambia.

Her counsel relied on precedents such as Bidvest Foods Zambia Limited-vs-CAA Import and Export Limited and the English case Tanfern Limited-vs-Cameron Macdonald, emphasising that the appeal had realistic prospects of success and would develop Zambian jurisprudence.

Stanbic Bank’s counsel countered that the law was already settled, particularly after the Court of Appeal’s interpretation, and that the issues raised were specific to Patel’s employment contract rather than of general public importance.

Consideration by the Court
The Supreme Court acknowledged that severance pay is indeed a matter of public importance. However, it noted that the issue had already been conclusively addressed in its recent decision in First Quantum Mining and Operations Limited-vs-Zubao Harry Juma (2026).
In that case, the Court clarified that:
1. Section 54(1)(b) and (c) applies only to fixed-term contracts.
2. Employees on permanent and pensionable contracts who are dismissed are not entitled to severance pay.
3. Such employees are limited to accrued leave and salary up to dismissal under section 51(1).
Given this precedent, the Court held that Patel’s intended appeal had “close to nil prospects of success” and did not warrant reopening a settled point of law.

Conclusion
The Supreme Court dismissed Patel’s application for leave to appeal, ruling that the matter had already been settled in Zubao Harry Juma. Each party was ordered to bear its own costs.
This ruling reinforces the distinction between fixed-term and permanent employment contracts under the Employment Code Act. It confirms that severance pay is reserved for employees on fixed-term contracts, while dismissed permanent employees are entitled only to accrued benefits and salary up to termination.

Key Takeaways
1. Employment Code Act distinguishes between fixed-term and permanent contracts regarding severance pay.
2. Permanent employees dismissed for misconduct are not entitled to severance pay.
3. Court of Appeal conflicts on severance pay have now been clarified by the Supreme Court.

Elizabeth Kavanagh-vs-Linda Mbewe Leonce (2003/HP/D/0011) - Wife Begs Court for Redistribution of Property she Gifted Hubby in Marriage

By:
William Ngulube

The above-mentioned case is a fascinating study in matrimonial property law, inheritance, and procedural discipline. It involved executrices of the estates of Richard Daniel Kavanagh and Mary Mbewe Kavanagh, who continued a dispute that had begun decades earlier when the couple divorced in 2004.

At the centre of the litigation was Subdivision A of Subdivision 16 of Subdivision C of Farm 401a, Makeni, Lusaka. Originally gifted to Mary by her father in 1989, she later executed a Deed of Gift in 1997, voluntarily adding Richard to the title. Years later, Richard became the sole owner after a transfer in 2002. Ironically, Mary’s estate sought a property adjustment order, asking the court to redistribute an asset she had once gifted to her husband. This paradox, seeking to reclaim what was voluntarily given, added a layer of complexity to the case.

The Respondent argued that the property was matrimonial in nature, acquired during the subsistence of the marriage, and therefore subject to redistribution under Section 55 of the Matrimonial Causes Act, 2007. Counsel relied on Watchel-vs-Watchel (1973) 1 All ER 829 and Connie Munalula-vs-Donald Mwaba (Appeal No. 20 of 2017), which define family assets as property acquired with the intention of benefiting the family unit. From this perspective, Mary’s gift did not strip the property of its matrimonial character.

The Petitioner, however, emphasised that Mary had already benefited from other assets, including a UK property she sold for £195,000. More importantly, Elizabeth Kavanagh argued that Mary had voluntarily transferred her share in the Makeni property to Richard, making him sole owner. Counsel also raised procedural objections, contending that the reactivation of dormant proceedings was irregular under Order 2 Rule 3 of the High Court Rules and Order 3 Rule 6 of the Rules of the Supreme Court of England, citing Oliver John Irwin-vs-Joan Irwin and Leopard Investment Co. Ltd (Appeal No. 84 of 2004) and Standard Chartered Bank Zambia PLC-vs-Wisdom Chanda (Appeal No. 92 of 2009).

Court’s Determination
Justice Malata-Ononuju acknowledged the discretionary power of the court to substitute parties upon death under Order 16 Rule 1 and Order 15 Rule 7, thereby allowing executrices to continue proceedings. However, the court was equally clear that procedural compliance is paramount. The reactivation of proceedings after years of dormancy had been irregular, as the Respondent relied on the wrong procedural rule. The court held that such irregularity rendered the proceedings a nullity, meaning the substantive application for property adjustment could not be entertained.

On the property issue, the court noted the irony of the Respondent’s claim: she sought redistribution of property she had once gifted to her husband. While the law recognizes that family assets may be redistributed upon divorce, the court emphasized that voluntary transfers and subsequent inaction, such as Mary’s failure to challenge ownership in the High Court after the Lands Tribunal dismissed her complaint, undermined her estate’s claim. The court concluded that the Respondent was not entitled to a share of the Makeni property, nor to any structures built upon it.

Significance
This case highlights three important principles in Zambian matrimonial law:

1. Survival of cause of action: Executors may continue matrimonial disputes after the death of the original parties.
2. Voluntary gifts and property adjustment: A spouse cannot easily reclaim property they once gifted, even if it was matrimonial in nature. Equity must be balanced against voluntariness and finality.
3. Procedural discipline: Courts will not overlook irregularities in reactivating dormant proceedings. Even substantive claims may fail if the procedure is not properly followed.

The paradox of Mary’s estate seeking adjustment of property she herself had gifted underscores the tension between legal title and equitable fairness. It demonstrates how acts of generosity within marriage can later become contested in divorce and inheritance and how procedural missteps can extinguish otherwise arguable claims.

Phiri-vs-BHB Contractors (Z) Limited & Others (Appeal No. 136 of 2017) [2018] ZMCA 249 - Unproven Damages

By:
William Ngulube

Background
This case arose from an oral contract between Cynthia Kaoma Kampape (now deceased) and the respondents, BHB Contractors and others. The respondents had been awarded a contract by the Rural Electrification Authority (REA) and required Kampape’s Certificate of Title as performance security.
The agreement was that the respondents would use the Title for four months at a consideration of K100,000, after which the Title would be returned. However, the Title was not returned within the agreed period, prompting the appellant, Msanide Phiri, to demand the outstanding K40,000 and damages for breach of contract.
“The terms and conditions of the agreement between the parties were that the respondents would use the Title for a period of 4 months at a consideration of K100,000 after which the Certificate of Title would be returned.”

Issues on Appeal
The appellant advanced two grounds:
1. Whether the trial court erred in holding that there was no meeting of the minds regarding the duration of the contract.
2. Whether the trial court erred in failing to award damages for breach of contract.

Court’s Analysis
- Existence of Contract: The Court of Appeal confirmed that a valid oral contract existed. The dispute was over its duration.
- Duration: Evidence showed the REA project was to last 26 weeks (about six months). The Title was only returned in August 2015, well beyond the agreed timeframe.
- Breach: The respondents’ failure to return the Title within the agreed period constituted a breach of contract.

On damages:
- The appellant argued for a “rental value” approach, calculating damages at K25,000 per month based on the initial agreement.
- The Court, however, found that the appellant failed to prove actual loss suffered.
- Applying principles from Hadley v Baxendale, Konfos v Czarnikow Ltd (The Heron II), and Penarth Dock Engineering v Pound, the Court held that damages must be based on proven loss.
Since no actual loss was demonstrated, the Court awarded nominal damages of K5,000, citing The Mediana (1900) AC 113 and recent Zambian precedents (David Chiyengele v Scaw Ltd; Barclays Bank Plc v Chipepa).
“Although the appellant failed to prove the actual loss or damage, there was a wrong committed by the respondent entitling him to judgment for the legal injury or wrong.”

Holding
- Appeal allowed in part.
- The appellant was awarded nominal damages of K5,000 with interest.
- Costs awarded to the appellant in both courts.

Key Takeaways
- Oral contracts are enforceable if their terms can be objectively established.
- Failure to return collateral/security within agreed time amounts to breach.
- Damages require proof of actual loss; otherwise, courts may award nominal damages to recognize infringement of legal rights.
- Zambian courts continue to apply English common law principles (e.g., Hadley v Baxendale) alongside local precedents.

Precision Farming Holdings Ltd & Others-vs-Competition and Consumer Protection Commission & ATS Agrochemicals Ltd SP 28 & 32 (2025) Court of Appeal [2026] - The Threshold of Appealing a Matter to the Supreme Court of Zambia.

By:
William Ngulube

Background
This case arose from a prior judgment delivered on 17 June 2025 in Appeal No. 150/2024, where the Court of Appeal found that the Respondents had contravened section 8 of the Competition and Consumer Protection Act of 2010. Dissatisfied, the Applicants, Precision Farming Holdings Ltd, Tombwe Processing Ltd, and Syngenta Zambia sought leave to appeal to the Supreme Court under section 13 of the Court of Appeal Act No. 7 of 2016.

Their motions argued that the matter raised points of law of public importance, had reasonable prospects of success, and presented compelling reasons for further appeal.

The Majority Ruling
Justice Siavwapa JP (with Chishimba JA concurring) dismissed the motions. The Court reasoned that:

- The Applicants’ arguments were essentially attempts to re-litigate findings of fact and seek a more favorable interpretation of section 8, rather than raising genuine issues of public importance.
- The Supreme Court in Bidvest Foods Ltd v CAA Imports & Exports had already clarified that novelty alone does not qualify as public importance; the issue must transcend private interests and affect the wider public.
- The Applicants’ reliance on section 58(4) was misplaced, as it had been repealed by the Competition and Consumer Protection (Amendment) Act No. 21 of 2023.
- The Court emphasized that the Supreme Court is not meant to routinely correct lower court errors, but only to address issues of broad legal significance.

Ultimately, the majority held that the Applicants failed to meet the threshold under section 13(3) of the Court of Appeal Act. Both motions were dismissed with costs.

“Arguments that seek to challenge findings of fact by an Appellate Court and to have another interpretation of specific provisions of the law do not qualify as points of law of public importance.” (Majority ruling, p.6)

The Dissenting Ruling
Justice Patel JA disagreed, delivering a strong dissent. Postulated that:

- The case raised fundamental questions about how an agreement, decision, or concerted practice under section 8 of the Act should be established.
- There is a jurisprudential gap in Zambia regarding competition law, particularly on what constitutes anti-competitive conduct and the threshold of “appreciable extent.”
- The absence of settled precedent means the Supreme Court’s guidance would have wide implications for business, commerce, and regulatory practice.
- Patel JA cited recent Supreme Court pronouncements (e.g., Rodgers Mbao v Standard Chartered Bank Zambia Plc and Manoj Patel v Sanmukh R Patel) that stressed the importance of clarifying unsettled points of law with broad public impact.

The Honourable Justice concluded that the motions did indeed raise points of law of public importance and should have been granted.

“A decision from the Supreme Court on what constitutes an ‘agreement, decision or concerted practice’… is of wide concern to the public and to commerce in general.” (Dissent, p.14)

Significance
This case highlights a tension in Zambian competition law:

- The majority view: Courts should guard against turning the Supreme Court into a forum for re-arguing facts or seeking favorable interpretations.
- The dissenting view: The novelty and lack of precedent in competition law make it essential for the Supreme Court to step in and provide clarity.

The ruling underscores the stringent threshold for leave to appeal under section 13 of the Court of Appeal Act, while also exposing the jurisprudential gaps in competition law that remain unresolved.

Conclusion
The Court of Appeal dismissed the motions for leave to appeal, but Justice Patel’s dissent signals that future cases may still push the Supreme Court to clarify section 8 of the Competition Act. For businesses and regulators, the case illustrates the uncertainty in Zambia’s competition law framework and the pressing need for authoritative guidance.

Mputa Ngalande-vs-The Attorney General 2025/CCZ/0019 (2026) - Suspension of Elected Council Leaders.

By:
William Ngulube LL.B

Background
This landmark case before the Constitutional Court of Zambia challenged the constitutionality of sections 56 and 57 of the Local Government Act No. 2 of 2019 (LGA). These provisions empower the Minister of Local Government and Rural Development to suspend elected councils and replace them with appointed administrators.

The petitioner, Mputa Ngalande, argued that such powers undermine local democracy and contravene the Constitution of Zambia (Amendment Act No. 2 of 2016), particularly Articles 147(3), 152(2), and 156, which safeguard devolved governance and the autonomy of local authorities.

Facts
- Kafue Town Council was suspended in November 2022, with an administrator appointed to run its affairs.
- Chongwe Municipal Council was suspended in January 2025 for alleged illegal land allocation, later reinstated after 180 days.
- The petitioner claimed these suspensions violated the constitutional principle of non-interference with elected councils.

Petitioner's Arguments
That sections 56 and 57 of the LGA allow the Minister to arbitrarily suspend elected officials, undermining the electorate’s democratic mandate. The terms “refusal, failure, or inability” in the Act are vague, giving the Minister unfettered discretion. Accountability of councillors should be achieved through lawful constitutional mechanisms, not executive suspension. Comparative Nigerian cases (e.g., Governor Ekiti State v Olubunmo) were cited, where similar caretaker provisions were struck down as unconstitutional.

“Elections… cannot just be removed or their Councils dissolved at the pleasure of other elected office holders.” (Petitioner quoting Nigerian precedent)

Respondent’s Arguments
The Attorney General argued that the suspensions were lawful under the LGA and necessary to curb illegal land allocations. That sections 56 and 57 were enacted under Parliament’s constitutional authority (Article 272) to give effect to provisions on local government accountability. Further that Councils are not absolutely independent; they remain accountable to both the electorate and national government.

Court’s Determination
The Constitutional Court examined whether sections 56 and 57 of the LGA were inconsistent with the Constitution.

Key findings:
1. Article 152(2) prohibits national government interference with local authorities’ ability to perform their functions.
2. Article 156 provides accountability of councillors to both the national government and residents.
3. Suspension of councils prevents them from performing their functions, amounting to unconstitutional interference.
4. Accountability must be achieved through other mechanisms (e.g., disciplinary measures, oversight), not outright suspension.

“Clearly, the Constitution does not provide for suspension of the councils… accountability has to be in other ways such as suspending their decisions.”

Significance
This case is a watershed moment for local governance in Zambia. It reinforces:
1. The supremacy of the Constitution over statutory provisions.
2. The autonomy of elected councils as a cornerstone of devolved governance.
3. Limits on ministerial discretion, ensuring that democratic mandates cannot be overridden by executive fiat.

James Investments 2000 Limited-vs-Vesa Juhani Korhonen & Caroline Chithuli Makota (2026) - Breach of Contract & Frustration

By:
William Ngulube LLB

Background
In June 2023, James Investments 2000 Limited entered into a contract to sell Subdivision No. 58 of Farm No. 4301, Lusaka, for USD 1.2 million. The agreement required the purchasers, Vesa Juhani Korhonen and Caroline Chithuli Makota, to pay a USD 1,000,000 deposit upon exchange of contracts and the balance of USD 200,000 within two months. The defendants were given possession of the property and the original certificate of title in July 2023.

The plaintiff alleged breach of contract when the defendants failed to pay both the deposit and the balance, claiming damages for unpaid rentals, increased property transfer tax, fittings costs, and potential market fluctuations.

Defence
The defendants admitted signing the contract but argued that payment was contingent on financing from ABSA Bank Zambia PLC, which later withdrew unexpectedly. They claimed this unforeseen withdrawal frustrated the contract. They also highlighted that they had spent over ZMW 1 million on renovations, showing commitment to the purchase, and denied liability for the plaintiff’s claimed losses.

Evidence
Plaintiff’s witness (Lesley Siemonek) insisted the defendants breached the contract by failing to pay on time and that damages were justified.
The Defendant’s witness (Vesa Juhani Korhonen) testified that the financing arrangement was communicated and acknowledged by the plaintiff, and the bank’s withdrawal was unforeseen.

Court's determination
Justice S. Kaunda Newa ruled on 11 May 2026:
- Breach of Contract: The Court held that the defendants breached the contract by failing to pay the agreed purchase price. The financing arrangement with ABSA Bank was not part of the written contract and could not excuse non-performance.
- Frustration Defence: Rejected. The withdrawal of financing did not frustrate the contract because it was not a contractual condition precedent.
- Damages:
- Awarded nominal damages of K20,000 plus interest for breach.
- Dismissed claims for rentals, tax losses, fittings, and market fluctuations due to lack of proof.
- Possession and return of the certificate of title were already satisfied.


Implications
This case reinforces key principles in Zambian contract law:
1. Contracts must be enforced as written. External financing arrangements cannot alter obligations unless expressly included.
2. Risk allocation in property transactions lies with the purchaser if financing fails.
3. Damages must be proven. Courts will not award speculative losses without evidence.

For property buyers in Zambia, this judgment is a cautionary tale: reliance on bank financing must be explicitly written into contracts, or else parties remain bound by strict payment obligations.

The In Duplum Principle in Zambia: Recapitalised Interest and the Limits of Non-Performing Loans

Article by:

William Ngulube LL.B

Abstract
The in duplum principle remains a cornerstone of banking and financial regulation, limiting the accumulation of interest on debts. This article examines the nature and scope of the rule, with particular attention to its application in Zambia under section 110 of the Banking and Financial Services Act. It further interrogates whether recapitalised interest falls within the rule and whether such recapitalisation can cure a non performing loan. Drawing on local and comparative jurisprudence, the article argues that recapitalised interest remains subject to the in duplum principle and cannot be used to circumvent statutory protections.

1. Introduction
The in duplum principle is a long-standing legal rule that serves to protect borrowers from excessive interest accumulation. At its core, the rule provides that interest on a debt ceases to accrue once unpaid interest equals the outstanding principal debt.
This principle has evolved through judicial interpretation and statutory codification, particularly within modern banking frameworks. In Zambia, its application is now anchored in section 110(1)(b) of the Banking and Financial Services Act, which explicitly limits recoverable interest.
The growing complexity of financial instruments, particularly practices such as recapitalisation of interest, raises critical questions regarding the continued effectiveness of the rule. This article addresses two central issues:
• Whether recapitalised interest is subject to the in duplum principle; and
• Whether such recapitalisation can cure a non performing loan or defeat the operation of the rule.

2. The Nature and Scope of the In Duplum Principle
The classical formulation of the rule was articulated in Standard Bank of SA Ltd-vs-Oneate Investment (Pty) Ltd 1995 (4) SA 510, where the Court held that the in duplum principle regulates the accrual of interest such that interest stops accumulating once it equals the outstanding principal debt.
This interpretation has been reinforced in comparative jurisprudence. In Mwambeja Ranching Company Limited & Another-vs-Kenya National Capital Corporation [2019] KECA 436 (KLR), the Court of Appeal clarified that the rule applies to the total outstanding indebtedness at any given time, including arrears and accumulated interest, rather than merely the original loan amount.
In Zambia, the Supreme Court affirmed this position in Stanbic Bank Zambia Ltd-vs-Longwe Appeal No. 144 of 2015, confirming that lenders cannot permit interest to exceed the principal debt.
Further statutory clarity is provided in First National Bank Zambia Limited-vs-Quatt Investment Limited and Another (2024/HPC/0518) [2024] ZMHC 141, where the High Court interpreted section 110(1)(b) of the Banking and Financial Services Act to mean that interest ceases to run when arrears equal the outstanding principal.
Importantly, the Court also emphasized that classification of a loan as non-performing does not automatically suspend the charging of interest.

3. Recapitalised Interest and the In Duplum Rule
3.1 Conceptual Framework
Recapitalised (or capitalised) interest refers to accrued interest that is added to the principal debt, thereby forming a new base upon which future interest is calculated. While this is a common banking practice, it raises the question of whether such interest retains its character or becomes part of the principal.
3.2 Judicial Treatment
This issue was recently addressed in Sactwu Investments Group (Pty) Ltd-vs-Sekunjalo Independent Media (Pty) Ltd and Another (915/2024) [26 March 2026], where the Court considered whether capitalised interest falls outside the in duplum rule.
The lender argued that deferred and capitalised interest was not “arrear interest” and thus should not be subject to the rule. The Court rejected this contention, holding that:
• Interest that is not paid when due constitutes arrear interest; and
• Capitalisation does not alter the essential character of that interest.

In reaffirming established authority, the Court relied on Standard Bank of SA Ltd-vs- Oneate Investment (Pty) Ltd 1995 (4) SA 510, reiterating that:
“interest remains interest and no methods of accounting can change that.”
Further reliance was placed on Paulsen and Another-vs-Slip Knot Investments 77 (Pty) Ltd (CCT 61/14) [2015] ZACC, where arrear interest was defined as accumulated but unpaid interest.
3.3 Legal Implication
The implication of this jurisprudence is clear: recapitalised interest remains substantively interest and must be included in applying the in duplum limitation. It cannot be transformed into principal by mere accounting mechanisms.

4. Recapitalisation and Non Performing Loans
4.1 Whether Recapitalisation Cures Default
A critical question arises as to whether recapitalisation can “reset” a loan and thereby remove it from the constraints of the in duplum rule.
The legal position, as derived from statutory and judicial authority, is that recapitalisation does not cure a non-performing loan. Rather, it is treated as a continuation of the same debt obligation.
Under section 110 of the Banking and Financial Services Act, interest recoverable on a non performing loan is capped such that it cannot exceed the principal outstanding at the time the loan became non-performing.

4.2 Judicial Interpretation
In Chilola Intertrade-vs-Citizens Economic Empowerment Commission CAZ Appeal No. 282 of 2022, the Court of Appeal clarified that once a loan remains in arrears for more than 90 days, it becomes non-performing, and:
• The lender may recover the principal outstanding;
• Together with interest in arrears;
• But not exceeding the principal amount at the point of default.
This interpretation effectively prohibits the charging of further interest beyond the statutory cap once the loan becomes non-performing.

5. Effect of Non Performing Status on Interest Obligations
An additional issue concerns whether classification as a non performing loan suspends the borrower’s obligation to pay interest.
In Credit Africa Bank Limited-vs-George K. Kalunga and Terry Simwanza SCZ Appeal No. 144/1997, the Supreme Court rejected the notion that non accrual status extinguishes interest obligations.
The Court held that statutory provisions such as Statutory Instrument No. 142 of 1996 were not intended to provide a “magic wand” for defaulting borrowers.
Allowing borrowers to avoid interest obligations merely because their loans were classified as non-performing would undermine the integrity of the financial system and encourage strategic default.

6. Conclusion
The jurisprudence and statutory framework governing the in duplum principle in Zambia demonstrate a consistent commitment to substance over form.
First, recapitalised interest does not escape the application of the in duplum rule. Courts have repeatedly affirmed that interest remains interest, regardless of how it is recorded or structured within financial accounts.
Second, recapitalisation does not cure a non performing loan. Once a loan falls into non-performing status, section 110 of the Banking and Financial Services Act limits recoverable interest to the amount of the outstanding principal at that point.
Finally, classification as a non performing loan does not extinguish the borrower’s obligation to pay interest, but it does trigger statutory limits designed to prevent excessive accumulation.
In sum, the in duplum principle in Zambia operates as a robust safeguard against abusive lending practices, ensuring that financial institutions cannot circumvent statutory protections through accounting techniques such as recapitalisation.

Good Living Investment-vs-Theresa Mwila Banda Appeal No. 155/2023 (CAZ) [30 April 2026] - Effect of a Counsel Sworn Affidavit and Appeals to the Supreme Court

By:
William Ngulube

Background
The matter before the Court was that of a Notice of Motion by the Applicant for leave to appeal to the Supreme Court against the judgment of the Court. The motion was made pursuant to section 13 (2) and (3) (A) of the Court of Appeal Act, supported by an affidavit and skeleton arguments.
The motion was that the intended appeal raised fundamental points of law of public importance, particularly concerning the circumstances under which a court may invoke Order 22 rule 3 of the High Court Rules.
The Respondent opposed the motion on both procedural and substantive grounds. On the procedural aspect, it was argued that the affidavit in support was irregular on the basis that it had been sworn by counsel for the Applicant. That the said affidavit contained contentious issues of fact and ought to have been deposed by the Applicant personally.

Issues for determination
1. Whether the affidavit should have been sworn personally by the Applicant
2. Whether the Applicant had satisfied the requirements for the granting for leave to Appeal to the Supreme Court pursuant to section 13 (1) and (3) (A) of the CAA.

Court's determination
On the first issue, the Court noted that the law is settled that there is no absolute prohibition against counsel swearing an affidavit. Counsel may properly depose to matters within his knowledge, particularly those arising from the court record, procedural matters, or questions of law. Reaffirming the position in Akatoka Thomson Mulumbwa-vs-David Kang'ombe Bulaya.

In addressing whether the Applicant had satisfied the requirements for grant of leave to appeal to the Supreme Court; the Court looked to determine whether the intended grounds of appeal demonstrated the following:
a. points of law of public importance
b. reasonable prospects of success
c. compelling reasons to warrant the grant of leave

The Appellant argued that the recasting of legal issues by the Court raised a point of law of public importance. However, the Court observed that a Court has discretion to recast issues and that it did not occasion any miscarriage of justice nor alter the nature of the dispute. Therefore, it did not raise a point of general public importance but challenged the propriety of the Court’s approach in determining the matter on the facts of the case.

The Court further noted that the proposed grounds of appeal largely challenged the findings of the Court on the construction of the Contract, the effect of the addendum and text messages, and the conclusion that the Applicant’s were in breach and therefore not entitled to specific performance. These were settled issues and did not raise any point of public importance.