Former president Peter Mutharika and former Secretary to the President and Cabinet Lloyd Muhara have applied for a review of assessment of costs after the court ordered them to pay K69.5 million in legal fees.
Mutharika’s lawyer Mwayi Banda confirmed in an interview yesterday the money has not been paid yet as Mutharika and Muhara are seeking a review of the costs.
Mutharika and Muhara, who was chief secretary to the government (title now reverted to Secretary to the President and Cabinet) during the Mutharika administration, were on March 12 2021 ordered to pay K69.5 million in legal fees to lawyers representing Malawi Law Society (MLS), Human Rights Defenders Coalition and Association of Magistrates in Malawi.
The three institutions sought a judicial review on the decision by Mutharika through Muhara to send Chief Justice Andrew Nyirenda and Justice of Appeal Edward Twea on leave pending retirement ahead of the court-sanctioned fresh presidential election on June 23 2020. They argued the decision threatened judicial independence, an argument the court upheld.
The former president and chief secretary then applied to the court to put aside the execution of order for them to pay costs, but in his ruling dated March 22 2021, High Court Judge Kenyatta Nyirenda said there was no merit in the application.
But yesterday, Banda said an application to review the costs has already been filed in the court, adding that Muhara’s lawyer Charles Mhango has also applied for a stay of execution of the costs and that Mutharika’s lawyers will be joining the application.
He said: “We have applied for review of the assessment of the costs. We are within the 21 days from the day the order for costs was made.
“We also intend to apply for stay of execution of the order of the costs. However, since there is already an application by Muhara’s lawyer, we intend to join since it is the same issue.”
Banda said they want the costs to be lower, but could not state how much they would deem appropriate.
In a separate interview, Mhango confirmed making an ex-parte application for stay of execution of order of costs before the registrar and that the application has been referred to a judge.
He said the application for stay is in connection with the review of assessment of costs, adding the defence wants the costs assessment review to be attended to first before execution can be made.
Said Mhango: “The basis is to stay execution until the application for review of assessment of costs has been made.”
When contacted, lawyer for HRDC and the Association of Magistrates in Malawi Khumbo Soko said he was yet to be served with the costs assessment review documents.
However, he said Mutharika and Muhara are still required to pay the costs since there is no order stopping that. He said the 14 days expired and it is time to make the payment.
Soko further warned that there are various avenues that can be used to claim the money if the two do not pay.
Asked if he was aware of the application for stay of execution, Soko said he had not heard about it.
Said Soko: “If there is a court process, we will be notified. It is their right to apply for stay. But the situation at the moment is that there is no stay and we will simply enforce the judgement on costs.”
During the March 22 ruling, the judge also ordered Mutharika and Muhara to pay costs for the application to stay execution of the order for costs.
Said Nyirenda: “For the foregoing reasons, I am of the considered view that this application is devoid of merit. In the result, it has to be dismissed with costs to the applicants. It is so ordered.”
In an interview on Wednesday, MLS president Patrick Mpaka, who represented MLS in the case, said he was not surprised that the court threw out the application to stay execution of order for costs.
He said by the time the application was being made, assessment of costs had not been done; hence, there was no figure to be disputed.
Mutharika’s lawyer Mwayi Banda said for the time being, Mutharika’s accounts cannot be accessed.
Prior to the 2020 fresh presidential election, Mutharika and Muhara wrote Nyirenda and Twea, ordering them to go on leave pending retirement, claiming that the judges had accumulated leave days more than the period left before they retired.