The High Court in Blantyre has dismissed the national organising secretary for the governing Democratic Progressive Party (DPP) Richard Makondi application to discharge his case in which he argued the Anti-Corruption Bureau (ACB) has failed to prosecute him but the court has ruled in favour of ACB to roceedc to prosecute him.
The former Toyota Malawi employee has been under probe by the graft-busting body for their alleged respective roles in supplying 35 vehicles and other accessories worth K895 million to Malawi Defence Force (MDF) in 2013.
Makondi, through his lawyer Chancy Gondwe, requested Judge Healey Potani to permanently stay the matter, arguing since ACB cautioned him, there has been unreasonable delay to put him on trial.
In his ruling, Justice Potani observed that the proceedings have not been stayed or discontinued.
“The consent order executed in judicial review case number 45 of 2016 in so far as the court can fathom, while staying the warrant of arrest did not necessarily discontinue the proceedings.
“That being the position, the court would agree with the counsel for the defendant that the claimant has no alternative remedy of applying in those proceedings to be discharged from the proceedings on the ground failure to prosecute him with reasonable time,” read the ruling as seen by Nyasa Times.
ACB was being represented by counsel Kamudoni Nyasulu.
Further, the ruling states that it is trite law that the remedy of judicial review will not be available to a party that has an alternative remedy available and has not pursued or exhausted the available remedy.
“In the end result, the court comes to a conclusion that the claimant has not made out a case that is sufficient enough to warrant to grant permission to the claimant to pursue the intended judicial review,” ruled justice Potani.
The case has been dismissed with costs.
Makondi was questioned by ACB in connection to allegations of abuse of office when he was at Toyota Malawi where he allegedly negotiated the procurement the vehicles, a transaction that is said to have cost government about K215 million public funds.
Gondwe argued that ACB decided to prosecute his client with insufficient evidence; hence, the excessive delay without taking him to court, a development he said had affected his businesses and personal life.
Kamudoni Nyasulu, argued that the bureau never decided to prosecute Makondi as it was still investigating the matter.
In addition, Nyasulu said the authority to take the matter to court lies with the Director of Public Prosecutions (DPP) upon getting submissions on investigations from the ACB.
“The authority to make decision to prosecute is the Director of Public Prosecution and so far, she has not made a decision to prosecute because she can only make that decision after the ACB has submitted its investigations, and we are still investigating.
“So there is no reason to stop case on the basis that we don’t have evidence. We are investigating to look for that evidence before we submit our investigations to the Director of Public Prosecution to commence proceedings,” said Nyasulu.
In April last year, Justice Kenyatta Nyirenda granted Makondi an order restraining the bureau from effecting a warrant of arrest and also prosecuting them but ACB filed a notice of appeal and grounds of appeal challenging the stay.Follow and Subscribe Nyasa TV :