Court snubs AG on Mulli contracts ban
High Court of Malawi Judge Chimbizgani Kacheche has rebuffed the State’s application to stop judicial review proceedings pending appeal in a case Mulli Brothers Limited (MBL) is challenging its blacklisting and debarring in public contracts.
The judge has consequently directed that the State, represented by Attorney General (AG) Thabo Chakaka Nyirenda, is free to appeal in the Malawi Supreme Court of Appeal.
However, he said the High Court will proceed to hear the substantive judicial review. The case is now set to proceed to scheduling a conference.
Chakaka Nyirenda wrote a memo to government ministries, departments and agencies in 2022 advising them to stop conducting any business with MBL or allow the company to participate in any public procurement.
Further, on May 12 2022 the Public Procurement and Disposal of Assets Authority (PPDA) wrote the Secretary for Health withholding a ‘No Objection’ in a contract where MBL was to provide to the ministry warehousing and distribution services of long-lasting treated nets (LLNS).
However, the company applied for permission for judicial review as well as stay of the decisions to blacklist it on grounds that, among others, the AG had no authority to make such decisions.
But upon hearing the applications together with the AG’s opposition last year, the court proceeded and granted MBL both permission for judicial review and stay of the decision.
The court found that there were issues worth to be heard in the judicial review, and the injunction issued against AG effectively permitted MBL Holdings, owned by businessperson Leston Mulli, to participate in government contracts.
However, dissatisfied with the court’s outcome, the AG applied for stay of the ruling pending appeal which Judge Kacheche refused to grant.
Kacheche, in his ruling dated January 16 2024, observed that there was no legal or procedural impediment against the AG right to appeal against the order granting permission to apply for judicial review provided that “they are granted leave to appeal”.
He said: “On the practical side though, it would be convenient for the defendants to wait for the judicial review proceedings to come to their logical end and then appeal against both the permission and the decision on judicial review at the same time.”
The judge further said should the AG be unsuccessful on the appeal lodged and the judicial review proceedings go against him, he may want to appeal again which would effectively mean going through the same route twice on what would be termed “similar facts.”
In an interview, one of the lawyers representing MBL John Kalampa said they were happy with the fact that the court had denied granting the AG the stay and they will push to have the judicial review heard speedily.
Reacting to the judgement, Ministry of Justice spokesperson Frank Namangale yesterday said the AG will study the ruling and map the way toward.
