The High Court sitting in Lilongwe has rebuffed former Finance Minister and an erstwhile Secretary to the treasury, Joseph Mwanamvekha’s ex-parte bail application, which sought to have him released from detention without notifying, let alone hearing, the State about such proceedings.
However, Mwanamveka and Kabambe have since been granted bail by Senior Resident Magistrate Florence Msekandiana after pleading not guilty to the charges levelled against them.
But, before being granted bail, Mwanamvekha’s lawyer, former Attorney General in the ousted DPP led government, Kalekeni Kaphale applied to the High Court that he should be released from detention on bail pending his trial.
In the application, Mwanamvekha claimed that he made an application to be released on bail before the Chief Resident Magistrate Court, sitting at Lilongwe, but the Court refused to attend to the application since the police had not taken him before the court to be formally charged.
Mwanamveka further claimed that the Chief Resident Magistrate Court orally directed that he should make the application before the High Court.
However, a ruling by the award winning Judge, Justice Redson Kapindu’s on the application, which Nyasa Times has seen questioned Mwanamveka’s motive described it as an unorthodox approach.
“It however strikes me with a great sense of surprise that, notwithstanding, this rather unusual statement allegedly made by the Chief Resident Magistrate, the Applicant does not provide particulars of the cause number of the proceedings in the Court below.
“I also find it rather odd that he does not exhibit a copy of the alleged decision by the learned Chief Resident Magistrate Court, in whatever form of writing it might have been made. Even if the alleged decision was orally made, which I should add would be highly uncharacteristic of the Chief Resident Magistrate, I would have expected the Applicant to expressly state under oath that the decision was oral,” reads in part Kapindu determination delivered on December 10, 2021.
Having brought it as an exparte application, Justice Kapindu said he was surprised with the applicant’s approach as he did not want the State to know that he has made this application.
Kapindu, therefore, ruled that an application for bail was supposed to be made in the Senor Resident Magistrate court where it was being heard, and that it should only be brought to the High Court by way of appeal.
“Yet, in the face of this express provision of the law, and notwithstanding the fact that he has already made application for bail in the Senior Resident Magistrate Court at Lilongwe, which has been heard inter partes and a decision whereof is still pending as I deliver this decision, he has still thought it appropriate to come to this Court alleging that he made a prior application before the Chief Resident Magistrate Court, who declined to entertain his application on the purported ground that the police had not yet taken him before the court to be formally charged.
“The application is also found wanting as the Applicant evidently substantially suppressed material facts. The Applicant failed to disclose to this Court that he had a pending Application before the Senior Resident Magistrate Court at Lilongwe.
“Even if he were to claim that he made the application before this Court first, and then proceeded to also file a similar application before the SRM’s Court, then he surely should have withdrawn the present application,” further reads Kapindu’s ruling.
Kapindu said Mwanamveka did not do so and that as a result this turned the application into a clearly vexatious one.
“The Applicant seeks to vex the State into attending to the same issue of application for bail before a subordinate Court and the High Court at the same time. Such conduct constitutes an abuse of the process of the Court.
“Again, on this this ground, the Application herein must fail and thus falls to be dismissed,” reads part of the ruling,” said the learned judge.
Justice Kapindu, therefore, ordered Kaphale to, within two clear days from the date hereof, furnish under oath in an affidavit, details of the case reference number for the proceedings that took place before the Chief Resident Magistrate Court which, according to the Applicant have formed the basis of the present application; and must exhibit a copy of the relevant page(s) of the Court record where the Chief Resident Magistrate made the decision refusing to hear the bail application and directing that the application should be made in the High Court.Follow and Subscribe Nyasa TV :