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Judge refuses to step aside 

  • Says ACB failed to put up a case
  • ACB to challenge application for judicial review

 High Court of Malawi Judge Kenyatta Nyirenda has dismissed an application by the Anti- Corruption Bureau (ACB) for him to step aside from a case involving former Inspector General of Police George Kainja for disregarding procedures.

Delivering his ruling on Monday on the application, the judge said the ACB failed to put up a case to support its position that he should stop hearing the matter.

Nankhuni (in black suit) walks out of court after the judgement

Nyirenda gave 11 reasons why the application had to be dismissed with costs, among them that the graft-busting agency did not cite any law under which recusal was being sought.

He said: “An application that does not cite any law under which it has been brought is as good as an application grounded on wrong legal provision. The second reason for dismissal is that the application for recusal lacks legal basis.

“Even if the court was to give the first defendant the benefit of the doubt by assuming that the application for recusal has been brought by invoking Order 10 Rule 1 the CPR [Civil Procedure Rules], as was the case with Notice of Motion for Preliminary Objections, the said provision is an ‘omnibus’ provision, providing for the mode of making any application which the law gives a party a right to make.”

The judge said Order 10 Rule 1 of the CPR does not provide for the making of an application for recusal of a judge.

Nyirenda further noted that the ACB application for recusal was not signed by the registrar of the High Court of Malawi, as such, had to be dismissed.

He also observed that the application for recusal was not served on all other parties and that ACB failed to meet the requirement that it be served at least two clear days before the time set for hearing.

Nyirenda said: “It is, therefore, imperative that a party thinking of making an application for recusal of a judge must not bring it unless he or she is definite that there are good grounds for doing so and, more importantly, he or she has legally relevant facts to prove the allegation to the high standard of proof set by the law. Bare allegations will not do.

“The practice of making unsubstantiated allegations of bias must be left to the Luhangas and Longwes of this world and people of their ilk.”

In the case at hand, the former Police chief is challenging the decision of the bureau to arrest him based on foreign evidence connecting him to United Kingdom-based businessperson Zuneth Sattar, who is facing corruption charges in that country. Sattar also has multi-million dollar procurement contracts with Malawi Government ministries, departments and agencies.

Through lawyer Imran Saidi, the ACB wanted the judge to recuse himself from the case, but said it would be tricky to make a written submission due to the sensitivity of the reasons. However, he said the reasons were to do with Sattar.

In an interview after Nyirenda delivered his judgement, Saidi said ACB will proceed to challenge the application for judicial review as filed by Kainja.

He also said ACB will study the ruling to see if it should appeal.

But Kainja’s lawyer Gift Nankhuni said the ACB applied for a stay of the ruling and he objected to the application to have the ruling put aside.

He said the ruling for the application for stay has been reserved.

“The ACB applied for a stay of the judgement today so that they can appeal to the Supreme Court. So, we objected and the ruling for that has been reserved,” said Nankhuni.

ACB arrested Kainja on June 23 2022 for allegedly receiving bribes from Sattar to influence the awarding of a contract to the businessperson for supply of 350 000 police food ration packs.

However, the former IG applied for judicial review of the decision to arrest him based on information from Britain’s National Crime Agency (NCA).

The ACB also made an application asking Nyirenda to step aside from hearing the judicial review application.

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