High Court orders MLS to take disciplinary action on lawyer Kadzipatike for illegal sale of seized assets and lying under oath
In his involvement over an industrial contractual dispute involving KM Building Contractors and Zhejiang Communications Construction Group Company, lawyer Kadzipatike’s conduct in the execution process of the case has been deemed as bordering on perjury (lying under oath) and dishonesty and has since been referred to Malawi Law Society (MLS) to be disciplined.
The High Court Judge, Justice Charlotte Masikano has also ordered the Police and the Anti-Corruption Bureau (ACB) to urgently investigate Kadzipatike conduct as well as that of assistant Sheriff Nyirenda in the handling of the warrant of execution process of the case.
The case is that there was a contractual dispute between McDonald Kamwera, trading as KM Building Contractors, of which he sued Zhejiang claiming K13 million which was settled through consent after undergoing mediation in the Court.
It’s assessment ruling of January 13, 2022 determined that with interest at K35,541,831.27 it made the total sum to be claimed at K48,541,831.27 of which Zhejiang appealed.
After further assessment of costs, the court ruled on March 10, 2022 awarding K23,952,310 as legal costs.
However, 18 days after the first ruling, Kamwera filed an ex-parte sale and seizure order for the judgement sum of K48,541,831.27, which the court granted.
Between February 4-7, 2022 the Sheriff executed the Order by impounding 3 tippers and a Ford Ranger from Zhejiang while the assistant Sheriff Nyirenda went again on February 20 to seize another tipper.
On January 31, 2022, Kamwera applied and was granted interim third party Debt Order for the sum of K51,541,831.27 pending inter parties application on February 28 — that led to Zhejiang’s known accounts to be frozen.
Seven days later (February 17, 2022), Kamwera applied ex-parte and was granted leave to sell privately the seized vehicles of four tippers and the Ford Ranger total value of the was calculated at K192,603,397.62.
On February 21, 2022, Zhejiang contacted the Sheriff to redeem the vehicles and pay the judgement sum, only to be informed that the seized property was already sold by Kadzipatike and no report was provided by Kamwera nor Kadzipatike on the proceeds of the sale.
On March 9, Zhejiang was approached by assistant Sheriff Nyirenda with regards to the Judgement Order demanding a further K65 million failing which he was threatened to execute another seizure of property
The Judge observed that this was suspicious because the demand was being made before the Order for Costs had been made by the court and upon inquiry, the court then delivered the Order for Costs on March 10 awarding Kamwera the K23,952,310.
The Judge observed that this means the Order of the Court was delivered a day after the Sheriff had already called Zhejiang to pay the judgement sum and “in essence, the Sheriff’s office pre-empted the court order — they jumped the gun as what the court awarded was lower by K40 million.
The issues in dispute that Judge Malonda was to determine was the legality of the disposal of Zhejiang’s property by private treaty or otherwise to satisfy a judgement debt and to review the Order for Costs.
In her decision, Justice Malonda ruled that the sale of the seized vehicles be set aside and further said Kadzipatike did not conduct himself properly — observing that there was collusion between him and Nyirenda in the seizure and sale of Zhejiang’s assets.
“The conduct of the two officers is of a criminal natures should not be condoned as these are officers of the Court,” she said. “The abuse of Court processes to pursue selfish criminal ends is gross, uncouth and undermines the power of the Courts to settle disputes justly.
“It makes a mockery of the whole justice system and calls to question the integrity of the lawyers, courts and the legal profession at large.”
Justice Malonda further observed that lawyer Kadzipatike “buried the case record with multiple cross-applications to give a semblance of his level of engagement in the matter”.
On setting aside the sale of the seized assets, Justice Malonda observed that since more than one year has passed, and in Zhejiang’s own admission, the vehicles’ ownership has passed on to other parties and as motor vehicles, the state of the assets is unknown.
Thus she ordered that Kamwera and his lawyer Kadzipatike should pay the total value of the seized vehicles at K192,603,397.62 within 30 days as of the judgement made on May 16, 2023.
“This court has ordered the payment sum to be jointly honoured by the claimants lawyer Mr. Kadzipatike because there is evidence that he prevailed over the whole sale transaction. It is he and the claimant who have benefited from the illegality.”
She also ordered Zhejiang to pay Kamwera the initial judgement debt of K48,541,831.27 as per the court order of January 13, 2023 — because the ruling did not affect the validity of the Order “unless it is overturned by a superior Court”.
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