The High Court of Malawi’s Commercial Division has delivered a stinging rebuke to former Attorney General Kalekeni Kaphale, barring him and his law firm from representing TotalEnergies Marketing Malawi Limited in a massive K824 billion fuel rebate dispute, citing a clear conflict of interest.
Blocked: Kaphale
In a ruling delivered in Lilongwe, Judge Trouble Kalua said Kaphale’s involvement in the case was incompatible with his previous role as the country’s chief legal advisor at a time when the dispute between Prima Fuels Limited, the Malawi Government and TotalEnergies was unfolding.
The court held that Kaphale’s position as Attorney General meant he was part of a process in which the government supported Prima Fuels’ claim against the fuel giant for alleged breach of contract—making it improper for him to now appear on the opposite side.
Kalua emphasized that the issue was not only about whether Kaphale personally handled the matter, but about safeguarding the integrity of the justice system.
“Justice must not only be done, but must also be seen to be done,” the judge ruled, stressing that Kaphale’s participation risked undermining public confidence in the fairness of the proceedings.
The court consequently ordered Kalekeni Kaphale Lawyers to immediately stop acting for TotalEnergies in the case.
“Messrs Kalekeni Kaphale Lawyers cease acting for the first defendant forthwith,” reads part of the ruling. The court, however, noted that TotalEnergies still has several legal practitioners representing it and granted the company 30 days to appoint another lawyer if it wishes to replace Kaphale’s firm.
The application to remove Kaphale from the case was filed by current Attorney General Frank Mbeta, who argued that Kaphale had access to sensitive information about the dispute while serving in government.
Mbeta told the court that by virtue of his office, Kaphale was privy to discussions and legal strategies relating to the matter. He argued that Kaphale’s decision to later represent TotalEnergies against Prima Fuels violated the Malawi Law Society’s Code of Ethics, which prohibits lawyers from acting in situations where prior roles create potential conflicts.
The Attorney General also cited a January 31, 2020 letter from the AG’s office—written by Chief Legislative Counsel Chizaso Nyirongo—which shared information of evidential importance with lawyers representing Prima Fuels during arbitration proceedings.
According to Mbeta, the letter indicated that government had preliminary information about the disputed fuel rebate contract and had pledged support to Prima Fuels in pursuing the claim.
But Kaphale pushed back against the allegations, insisting he never personally handled the case during his tenure as Attorney General.
He told the court that work relating to the dispute had been delegated to officers within the AG’s office and that he did not recall discussing the matter with Nyirongo. Kaphale also maintained that he had never possessed confidential information that could prejudice any party in the proceedings.
Despite those arguments, the court ruled that the mere possibility of prior involvement through his office was enough to create a conflict of interest.
At the heart of the dispute is a fuel rebate agreement signed in 2001, which allegedly required TotalEnergies to make payments to the Malawi Government. The company is accused of stopping those payments in 2006, triggering the ongoing legal battle that has ballooned into an K824 billion claim.
With the court’s ruling, one of the country’s most high-profile legal figures has now been pushed out of a case that could have far-reaching financial implications for Malawi’s energy sector.
