Senior resident magistrate Bracious Kondowe has set aside a warrant which the State obtained to conduct a search at Namuleri Farms Limited in Kasungu following allegations that it was keeping illegally acquired fertiliser.
In a ruling dated December 19 2025, Kondowe said the search warrant dated December 15 2025 which the same court issued was set aside for non- compliance with Section 113 as read with Section 113A of the Criminal Procedure and Evidence Code.
The farm belongs to Leader of Opposition Simplex Chithyola Banda, who is being represented by lawyer George Jivason Kadzipatike.
In his application to set aside the warrant, Kadzipatike argued that the affidavit used to obtain the search warrant does not bear full particulars of the fertiliser his client allegedly acquired illegally.
He also argued that the search warrant does not provide particulars such as the quantity, serial or batch numbers of the bags of fertiliser, the exact type of the fertiliser and the exact period when the said fertiliser was illegally obtained.
On the other hand, the State argued that a search warrant is a tool for investigation, as such, it does not need not be detailed.
Before making his ruling, Kondowe observed that while the affidavit gives a specific date and identifies the alleged offence of illegal possession of National Economic Empowerment Fund fertiliser, it is relying on information received rather than personal knowledge.
He said: “Section 113 emphasizes that affidavits should be based on personal knowledge. There is reliance on second-hand information rather than personal observation.
“It was important for the deponent have direct observation of the alleged legal activity or details of the source of the information. This would help the court to assess the reliability and credibility of the source of information.”
Kondowe also reminded the State that a search warrant is more than a tool for investigations, as it is a legal authorisation with specific limits and protections.
He said: “The respondent raised the issue of jurisdiction. It argued that this application was supposed to be heard by the High Court. This is misleading as this Court has powers to discharge or set aside its own orders under Section 53 of the Courts Act.
“The Applicant’s application succeeds, the search warrant dated 15th December, 2025 issued by this Court is hereby set aside for non-compliance with Section 113 as read with Section 113A of the Criminal Procedure and Evidence Code.”
Chithyola Banda served as minister of Finance in the immediate-past Malawi Congress Party regime.
