The Malawi Supreme Court of Appeal has dismissed an application by former Ministry of Finance budget director Paul Mphwiyo and 17 others seeking a permanent stay of proceedings and the restart of the Cashgate trial.
In an application, the 18, through their lawyer Andy Kaonga were challenging the High Court of Malawi Judge Ruth Chinangwa’s decision to dismiss their application for recommencement of the proceedings, arguing that she was new in the matter.
The applicants also sought a stay pending judicial review on an application made in relation to the extension of retired High Court judge Esmie Chombo’s tenure who was initially handling the matter.
But delivering his ruling yesterday, Malawi Supreme Court of Appeal Judge Lovemore Chikopa dismissed Mphwiyo and the 17 others’ application.
He asked whether there is indeed an appeal at the Supreme Court of Appeal against Justice Chinangwa’s decision as the country’s upper court did not see any notice or grounds of appeal.
Reads the ruling in part: “In the presence of such doubt, we doubt whether it would be prudent, indeed in the best interests of justice, to stay the proceedings before Lady Justice Chinangwa.
“If it be the applicants’ wish to appeal, we are sure they will take the necessary steps to leave this court in no doubt that they have indeed appealed [or intend to do so] against the decision in issue.
“They will equally do the needful if it is also their intention to ask for a stay pending such appeal. The applications for stay are accordingly not granted.”
In a sworn statement signed by Mphwiyo, who is the first accused person in the Cashgate case, the 18 were dissatisfied with Judge Chinangwa’s decision, arguing that the High Court erred in law in refusing to recommence trial.
The accused persons believed that the continuation of the trial by the new judge would be prejudicial to their rights to a fair trial.
Reads the sworn statement in part: “The lower court erred in law in refusing to recommence trial when the record does not have any record indicating the basis and justifications of Justice Chinangwa seizing jurisdiction over the matter being a Judge who was not initially hearing the matter.”
In its submission in opposition to the application, the State through Director of Public Prosecutions Steve Kayuni argued that the applicants only wanted to delay the case which is close to completion.
Mphwiyo and 17 others are accused of defrauding K2.4 billion public funds in 2013. They were all found with a case to answer.
Mphwiyo was shot at the gate of his Area 43 residence in Lilongwe on September 13 2013 during the Joyce Banda administration.