David P Banda v Attorney General (Malawi Electoral Commission)
- Status
- Judgment
- Jurisdiction
- Malawi
- Posture
- Election Case; Application for Interlocutory Injunction / Ruling on a Without Notice Application
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The application for interlocutory injunction was dismissed because it was founded on an unsubstantiated assumption that the Commission would not address the claimant's complaint in the proper procedure, refusal of the injunction would not cause irreparable damage given the statutory right to appeal under section 100, and the application was procedurally improper as election-related interim injunctions must be made inter partes.
Court disposition
Application dismissed
Orders
- The application for an interlocutory injunction is dismissed.
02
Material facts
Parties
DAVID P BANDA
ClaimantATTORNEY GENERAL (MALAWI ELECTORAL COMMISSION)
Defendant03
Procedural history
Posture
Election Case; Application for Interlocutory Injunction / Ruling on a Without Notice Application
04
Questions and positions
Legal issues
- 01
Whether an interlocutory injunction should be granted restraining announcement or recognition of parliamentary election results for Lilongwe Mpenu Constituency.
- 02
Whether the applicant had shown a basis for urgent interim relief before the electoral complaint process was completed.
- 03
Whether an interim injunction in an election matter should be made without notice or inter partes.
Party arguments
- Applicant
- The claimant sought to restrain the defendant from announcing or recognizing a winner in the parliamentary election for Lilongwe Mpenu Constituency, alleging anomalies in the election process and requesting a vote recount at the Constituency Tally Centre.
05
Court’s reasoning
Legal principles
- 01
Section 99 of the Presidential, Parliamentary and Local Government Elections Act
Under section 99 of the Presidential, Parliamentary and Local Government Elections Act, complaints alleging electoral irregularities should be examined and decided by the Commission if not satisfactorily resolved at a lower level, and necessary corrective action taken if irregularities are confirmed.
- 02
Section 100 of the Presidential, Parliamentary and Local Government Elections Act
A party dissatisfied with the Commission's decision may appeal to the High Court under section 100 of the Act.
- 03
Order 19 rule 19 of the Courts (High Court) (Civil Procedure) Rules
An application for an interim injunction in connection with an election matter shall be made inter partes.
- 04
The ruling
The Court will not grant interlocutory relief based on an unsubstantiated assumption that the Commission will not procedurally deal with the complaint.
06
Ratio, limits and disposition
Ratio decidendi
The application for interlocutory injunction was dismissed because it was founded on an unsubstantiated assumption that the Commission would not address the claimant's complaint in the proper procedure, refusal of the injunction would not cause irreparable damage given the statutory right to appeal under section 100, and the application was procedurally improper as election-related interim injunctions must be made inter partes.
Court disposition
Application dismissed
- The application for an interlocutory injunction is dismissed.
Source and reliance status
Official court record
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Judgment reading view
Judgment text
The complete available source text.
Court record
Judgment
REPUBLIC OF MALAWI
IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CIVIL DIVISION ELECTION CASE NO 12 OF 2025
BETWEEN
DAVID P BANDA CLAIMANT AND ATTORNEY GENERAL (MALAWI ELECTORAL COMMISSION) DEFENDANT CORAM: HON. JUSTICE B M KALEMBA Kalemba, J.
RULING ON A WITHOUT NOTICE APPLICATION FOR AN ORDER OF
INTERLOCUTORY INJUNCTION Order 10 (27) of Courts (High Court) (Civil Procedure) Rules The Claimant, David P. Kambalame, has filed an application for an order of interlocutory injunction restraining the defendant from announcing parliamentary election results for Lilongwe Mpenu Constituency or deeming or recognizing any candidate as a winner of the said parliamentary election held on the 16th September, 2025 until determination of the matter by the Constituency Returning Officer, District Returning Officer or The Malawi Electoral Commission or further order of the Court. In his sworn statement in support of the application, the applicant alleges numerous anomalies in the election process at Lilongwe Mpenu Constituency. In paragraph 8 of his sworn statement, the claimant states that he has submitted a complaint to the Constituency Returning Officer, District Returning Officer or The Malawi Electoral Commission requesting that vote recounting at the 1 Constituency Tally Centre be done. A copy of the said letter is attached and marked Exhibit “DPK 3” Section 99 of the Presidential, Parliamentary and local Government Elections provides as follows; Save as otherwise provided in this Act, any complaint submitted in writing alleging any irregularity at any stage, if not satisfactorily resolved at a lower level of authority, shall be examined and decided on by the Commission, and where
the irregularity is confirmed, the Commission shall take necessary action to correct the irregularity and its effects. Section 100 of the Act provides for appeals to the High Court where a party is dissatisfied with the decision of the Commission. The Court will not grant an interlocutory injunction because, inter alia, it is based on an unsubstantiated assumption that the Commission will not procedurally address the Claimants’ complaint before making a determination on his complaint. Further, refusal to grant the interlocutory injunction will not result in the irreparable damage to the Claimants’ case, he has recourse to section 100 referred to above. Finally, in any case, Order 19 rule 19 of Courts (High Court) (Civil Procedure) Rules provides that an application for an interim injunction in connection with an election matter shall be made inter partes. Accordingly, I dismiss the application. Pronounced in Chambers this 23 of day of September 2025. Bruno MacDonald Kalemba
JUDGE 2
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