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Malawi Supreme Court of Appeal - 2017 January

3 judgments
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3 judgments
January 2017
Mhango and 1 other v Limula (MSCA Civil Appeal 14 of 2016) [2017] MWSC 19 (24 January 2017)
Delay, non‑prosecution and procedural defects justify refusal of stay and refusal to certify a defective constitutional referral.
  • Civil procedure — stay of execution — default judgment — laches and non‑prosecution; Criminal procedure — section 302A CPEC — applicability where accused not charged; Constitutional procedure — referral/certification under Rule 8 and Chief Justice’s role — originating motion required for non‑referral constitutional challenges; Court’s duty to assess substantiality before referral; Registry and drafting obligations.
24 January 2017
Kaudzu and 4 Others v R (Criminal Appeal 16 of 2016) [2017] MWSC 6 (11 January 2017)
Expired statutory custody limits make detention unlawful; bail decisions must follow custody rules and Bail Guidelines.
  • Constitutional right to release — s.42(2)(e); Custody time limits — ss.161A–161J CPEC mandatory; No power to extend time after expiry except as statutorily provided; Bail incidental to release; Bail Guidelines Act — mandatory factors and information duty; Juvenile protections; Remittal for reconsideration.
11 January 2017
Mbeta & Ors. v R (Criminal Appeal 15 of 2016) [2017] MWSC 1 (9 January 2017)
Failure to apply mandatory Bail Guidelines and exceeded custody time limits justified bail pending appeal.
  • Criminal procedure — bail — distinction between constitutional right to release (s.42(2)(e)) and statutory bail (s.118) — applicant must prove threshold facts; State bears evidential burden. Bail (Guidelines) Act and Guidelines mandatory — courts must consider all prescribed factors and may order production of missing information. Custody time limits (s.161A–161J) binding — detention beyond limits requires release. Bail pending appeal — application should accompany notice of appeal but Court may waive and hear it. Single member cannot determine substantive bail appeal; full court required
9 January 2017