Ousman Kenn edy v. BIU & National Council for Higher Education Kenya t t a Nyirenda, J.

JUDICIARY
IN THE HIGH COURT OF MALA WI
PRINCIPAL REGISTRY

CIVIL CAUSE NO. 495 OF 2016

BETWEEN

OUSMAN KENNEDY (On his own behalf

and as President of the Blantyre International
University Students' Union Representing all
Students of Blantyre International University) ........ . ... ........ . .. ... .. PLAINTIFF

AND

BLANTYRE INTERNATIONAL UNIVERSITY ........ . ..... 1ST DEFENDANT

NATIONAL COUNCIL FOR HIGHER EDUCATION .. .. . 2No DEFENDANT

CORAM: THE HONOURABLE JUSTICE KENYATTA NYIREND A

Mr. Chinkango, of Counsel, fo r the Plaintiff
Mr. Msiska, of Counsel, fo r the 1 st Defendant
Mr. Khonyongwa, of Counsel, for the 2nd Defendant
Mr. 0. Chitatu, Court Clerk

ORDER
Kenyatta Nyirenda, J
This is this Court' s ruling on a preliminary objection raised by the 2 11 d Defendant.
On 23rd December 2016, the Plaintiff commenced the present action against the
Defendants by originating summons wherein the Plaintiff seeks the following
declarations and orders:

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Ousman Kenn edy v. BIU & National Council for Higher Education Ke nyatta Nyirenda , J.

1. A declaration that the JS 1 defendant University where the plaintiffs enrolled in

various degree programmes is a duly registered and an accredited institution;

2. A declaration that the conduct of the 1s1 defendant in ref using to render services to
the p laintiffs following the 2nd defendant's p urported declaration of the 1s1
defendant's programmes on which the plaintiffs "enrolled" "unaccredited "
amounts to breach of contract;

3. A declaration that the Minister responsible never promulgated standards for

accrediting higher education institutions and that the decision of the 2nd defendant
in revoking the 1s1 defendant's 'accreditation certificate ' for fa ilure to meet non-
existent requirements is wrong and unlawful;

4. A declaration that the 2nd defendant 's conduct in forcing the 1s1 defendant to
suspend offering programmes before the end of the academic cycle is unlawful.

5. A declaration that the 2nd defendant failed to follow procedures laid down in the
NCHE Act before revoking the 1s1 defendant 's accreditation certificate.

6. An order that the Jst defendant continue offering the accredited programmes to the
plaintiffs.

7. An order that the 2nd defendant suspends its order declaring the 1s1 defendant
and/or its programmes not accredited.

8. Alternatively, an order that the order declaring the 1s1 defendant not accredited
should not apply retrospectively to us who enrolled with the JS 1 defendant before
the declaration.

9. Any order of declaration the Court will deem fi t.

I 0. An order of costs. "

The 2nd Defendant is a statutory body whose functions include the registration and
accreditation of institutions of higher education. It objects to these proceedings on
the alleged ground that the case was commenced using the wrong mode of
commencement. It is contended that the action herein ought to have been
commenced by way of judicial review and not by writ of summons . In trying to get
a full appreciation of the 2nct Defendant's argument, it might be useful to set out in
full the relevant parts of the Defendants' written submissions:

"3.1. 7 A body acting under statute is considered as exercising public power and its actions
and decisions are thus amenable to judicial review. See In The Matter of th e
Ministrv o(Finance Ex Parte SGS Malawi Limited above.

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Ousman Kennedy v. BIU & National Council for Higher Education Kenyatta Nyirenda , J.

3.1.8 It cannot be disputed that the defendant has been acting in pursuance of its mandate
under the National Council for Higher Education Act and the Plaintiffs also
acknowledge this fact.

3.1. 9 The Plaintiffs claim is not based on the Act in itself so as to entitle the Plaintiffs to
commence this action by way of originating summons. It is based on the Conduct
of the Def endant body and its performance of the powers and fun ctions conferred
on it by the Act.

3.1.10 Clearly, the appropriate mode of commencement for the claims herein against the
2 nd Defendant would have been judicial review and not originating summons.

3.1.11 We note that if a matter is instituted by way ofjudicial review, the Court can only
examine the procedure adopted and would not be at risk ofusurpation ofthe powers
of the Defendant.

3.1.12 In effect, the permanent injunction being sought seeks to indulge the court to make
a determination that Blantyre University should not have its accreditation status
withdrawn.

3.1.13 The Court does not have the power or even the technical knowledge to make that
decision. That is a decision which should be made on merit rather than on
procedural technicalities such as those pleaded by the Plaintiff.

3.1.14 If the matter were to be heard as judicial review, the Co urt would limit itself to the
procedures and refrain from commenting on the merits of the decision which is
protection that the Defendant would not have in a private action such as this one.

3.1.15 The issues that have been raised in the originating summons all relate to the
conduct of the Defe ndant in the exercise of its public f unctions and the subsequent
decision reached thereon. It is clear from a reading of the affidavit in support of
the originating summons that the Plaintifffe els that they were treated unfairly and
that the decision to withdraw their accreditation status was therefore flawed.

3.1.16 The plaintiff seeks some declaratory orders and remedies being sought are also
available at judicial review.

3.1.17 The Plaintiff raises no private law rights that have been purportedly violated by the
2nd Defendant.

3.1.18 It is our submission that the Defendant is a public body and that the decision the
plaintiff complains of was made in exercise of public powers and is as such this
subject to judicial review. The proceedings herein therefore, ought to have been
commenced through judicial Review. "

Counsel Khonyongwa cited a host of cases to buttress his submissions and these
included three Malawian cases, namely, The State v. Malawi Development
Corporation ex-parte Nathan Mpinganjira, HC/PR Miscellaneous Civil Cause

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Ousman Kennedy v. BIU & National Council for Higher Education Kenyatta Nyirenda, J.
No. 63 of2000 (unreported), Attorney General (Ministry of Education Ex Parte
Amos Suluma and Others Miscellaneous Civil Cause No. 49 of 2006 and In The
Matter of the Ministry of Finance Ex Parte SGS Malawi Limited, HC/PR Misc.
Civil Application No. 40 of 2003 (unreported) and three English cases, namely,
Cocks v. Thanet District Council (1982] 3 All E.R. 1135, R v. Criminal Injuries
Compensation Board, ex-parte Lain (1967] 2 All ER 770 and Chief Constable
of North Wales Police v. Evans [1982] 1 W.L.R. 1155.

The State v. Malawi Development Corporation exparte Nathan Mpinganjira,

supra, was cited for the proposition that judicial review lies against a person or body
carrying out public law functions and not private law functions and that private law
rights cannot be enforced through judicial review.

Counsel Khonyongwa submitted that the court in Cocks v. Thanet District

Council, supra, held that where an applicant is enforcing rights under private law
the proper remedy was an action under private law. He also argued that where the
action was on rights protected under private law the plaintiff could still proceed
under remedies in private law even if there was a public law issue.

With respect to Chief Constable of North Wales Police v. Evans, supra, Counsel
Khonyongwa drew the Court's attention to the observations at p. 1160:

"It is important to remember in every case that the purpose ofthe remedy ofjudicial review
is to ensure that the individual is given fair treatment by the authority to which he has been
subjected and that it is no part of that purpose to substitute the opinion of the judiciary or
of individual judges for that of the authority constituted by law to decide the matters in
question" Judicial review is concerned with reviewing not the merits of the decision in
respect ofwhich the application is made, but the decision-making process itself Therefore,
the purpose of the remedy ofjudicial review is to ensure that the applicant is given fair
treatment by the authority whose decision is subject to review. The court has no right to
substitute its opinion on the matter for that of the public authority concerned, otherwise
the court would, under the guise of preventing the abuse of power, be itself guilty of
usurping power of the authority concerned. "

Based on the above submissions, Counsel Khonyongwa forcefully contended that

the mode of commencement used by the Plaintiffs in the present action is so
fundamentally different from judicial review such that the error cannot be rectified
under Order 2 of the Rules of the Supreme Court.
Counsel Khonyongwa submitted that the general rule is as stated in O'Reilly v.
Mackman (1982] 3 All E.R. 1124, namely, that where a person seeks to establish
that a decision of a person or body infringes rights which are entitled to protection
under public law he must proceed by way of judicial review and not by way of an

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Ousman Kennedy v. BIU & National Council for Higher Education Kenyatta Nyirenda, J.

ordinary action whether for a declaration or an injunction or otherwise. The Court

was specifically referred to the following dicta in O'Reilly v. Mackman, supra, by
Lord Diplock at page 1134:
"it would in my view as a general rule be contrary to public policy, and as such an abuse
of the process of the court, to permit a person seeking to establish that a decision of a
p ublic authority infringed rights to which he was entitled to protection under public law to
proceed by way of an ordinary action and by this means to evade the provisions of Order
53 f or the protection of such authorities. "

Counsel Khonyongwa further argued that the general rule is subject to one major
exception. The argument was put thus:

"3.2. 5 The only exception recognised to the general rule where there may be exceptions,
particularly where the invalidity of the decision arises as a collateral issue in a
claim for infringement of a right ofthe plaintiffarising under private law, or where
none of the parties objects to the adoption of the procedure by writ or originating
summons. See [ 1982} 3 All ER 112 4 at 113 4.

3.2. 6 Other exceptions, if any, should be decided on a case to case basis.

3.2. 7 One such exception is to be found in Roy v Kensington and Chelsea and
Westminster Family Practitioner Committee [1992] 1 All ER 705, where it was held
that,·

although an issue which depended exclusively on the existence of a purely public law right
should as a general rule be determined in judicial review proceedings and not othen11ise,
a litigant by way of claim or defence, was not barred from seeking to establish that right
by action by the circumstance that the existence and extent of the private right asserted
could incidentally involve asserting his entitlement to a subsisting private law right,
whether the examination of a public law issue .

.. . Accordingly, the court clearly had jurisdiction to entertain the respondent's action and
ought to have entertained it either because the general rule that issues depende nt on the
existence of a public law right were to be determined in judicial review proceedings did
not apply when private law rights were at stake or because the respondent's claim was an
exception to the general rule because his private law rights dominated the proceedings."

Additionally, Counsel Khonyongwa submitted that while the Court has the power to
convert a matter which was began by judicial review to proceed as though it were
began by writ, there is no converse power for the Court where a matter is commenced
by means other than judicial review to proceed as though it were began by judicial
review. He placed reliance on Practice Note 53/14/33 and the case of Muluzi and
Another v. Malawi Electoral Commission, Constitutional Cause No. 1 of 2009
(unreported). As Counsel Khonyongwa placed a great deal

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Ousman Kennedy v. BIU & National Council for Higher Education Ke nyatta Nyirenda, J.
of weight on this case, I deem it necessary to quote the relevant passage therefrom
in full:

"Reverting to the business at hand, the first observation we want to make is that as a Court
we fully appreciate the urgent nature of the matter before us. At the same time, however,
we wish also to observe that in any type ofproceedings that come before the Courts, issues
concerning Mode of Commencement are fundamental. The Law, as all its Practitioners
ought to appreciate, clearly makes the effort to classify proceedings that may be brought
before Courts ofLaw either by the Cause ofAction that gives rise to them, or by the subject-
matter they relate to .. .

Commencing proceedings in a correct manner, therefore, is like boarding the right bus or
train when traveling, because it is capable of getting you to the destination you want. In
like manner, commencing an action or proceedings in a wrong manner is like boarding the
wrong bus or train, because it does not have prospects ofgetting you to the destination you
desire, unless you disembark and restart the journey on the correct bus or train. It is
important, therefore, that urgent as this matter is, we need at the outset to carry out a
candid assessment of the preliminary objection raised against these proceedings, as
argued and counter-argued before us with the rich arguments we have earlier adverted to .

.. Finding therefore, as we have just done, that the Plaintiffs utilized a wrong mode of
commencement for their action, a question that immediately arises is whether their error
is at all curable or not curable. We are mindful that under Order 2 rule 1(3) of the Rules
ofSupreme Court, 1999, on which the application to strike out is based, a Court ought not
to rush to wholly set aside proceedings, or their Originating Process, on the ground that
the proceedings were required to be begun by a different Originating process, if that can
be helped. A Court, in our understanding of this provision, is only supposed to take such
drastic step, if the irregularity committed is so fundamental and serious, that it renders the
proceedings in which it has occurred, a nullity. See: Practice Note 2/ 1/3 under Order 2
rule 1 ofthe Rules ofSupreme Court on this. Further, a reading ofthe Practice Notes under
this rule, informs us that taken as a whole, from the existing authorities, Order 2 rule 1
ought to be applied liberally by the Courts in order, so far as reasonable and proper, to
prevent injustice being caused to one party by undue adherence to technicalities. Among
the considerations to be taken into account, therefore, when employing this Order and
Rule, we are aware, are questions such as whether the other side has suffe red prejudice as
a direct consequence of the irregularity applicable, in this instance prejudice as a result of
wrong mode of commencement of the case ..

..In deciding the fate of the present wrongly commenced proceedings, we have incidentally
noted that the question ofprejudice does not really arise ... we hold that no prejudice has
in fact been suffered.

..In terms ofapplying Order 2 rule 1(3) ofthe Rules ofSupreme Court in a manner befitting
the practice we have alluded to, however, we stumble across a number of complications, if
we were to employ the saving provisions on amendment or conversion of the matter from
its Originating Summons process mode to Judicial Review mode. Now,

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Ousma n Kenned y v. BIU & National Council for Higher Education Kenyatta Nyirenda , J.
since the Judicial Review manner of commencing proceedings mentioned in Section 76(5)
of the Constitution would, in the Rules of Supreme Court, fall under Order 53, we have
also perused that Order and its rules, as well as the Practice Notes thereunder, in
determining this matter. We note that whereas Order 53 of the Rules of Supreme Court
1999, requires that a party, before commencing such proceedings, ought first to seek the
leave of the Court ex-parte, in Originating Summons matters there is no such preliminary
requirement. Converting this matter just like that, therefore, to Judicial Review procedure,
would have the effect ofside-stepping the requirement for advance leave. Further, we note
that Judicial Review proceedings in their unique feature allow parties using their
procedure, apart.from the reliefs the Plaintiffs can and have in this case brought under the
Originating Summons procedure, to additionally pray for like Orders as Mandamus,
Prohibition, and Certiorari. A plain conversion of an Originating Summons matter to a
Judicial Review, we observe, cannot accommodate these types of Orders, in case the
Plaintiffs would have asked for them had they initially resorted to this mode of
commencement of their action.

The bottom line in, our judgment, is that the Originating Summons procedure employed in
these proceedings, is so fundamentally different from the Judicial Review procedure that
should have been employed, that the two cannot easily just exchange places for the case to
proceed without experiencing hitches ...

.. we find that we cannot set aside these proceedings in part only. The procedure that was
adopted by the Plaintiffs, of commencing this action in Originating Summons style cannot
be converted by our Order into the desired form , as at this stage we are not the forum that
would deal with issues of leave, and as certain prayers could be cut off the action if the
correct procedure is not allowed resorted to right from its beginning. On these grounds
therefore ... we must, and we hereby do, strike off the Originating Summons with costs."

Counsel Khonyongwa concluded by submitting that (a) there are no private rights in
this matter, (b) it is clearly not one of the exceptions to the general rule that matters
of public law rights against a public body must be brought by way of judicial review,
(c) a matter began by originating summons cannot be converted to one commenced
by judicial review or cured as the two processes are so fundamentally different that
they cannot be interchangeable and (d) this action is an abuse of court process and
must be dismissed with costs.

The Plaintiffs are of the opposite view. They maintain that the case was properly
commenced by way of originating motion. The submissions by Counsel Chinkango
were also concise and succinct and I cannot do better than quote them in full. They
read as follows:
"3.0 LEGAL ISSUES

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Ousman Kennedy v. BIU & National Council for Higher Education Kenyatta Nyirenda , J.
3.1 It is trite that judicial review lies against a person or a body carrying out
public law functions - State vs MDC, exparte Mpinganjira, Civil cause
Number 63 of 2000.

3.2 Judicial review cannot be used to enforce private law rights against a public
authority. In Re SGS Case, Miscellaneous Civil Application Number 40
o/2003.

3.3 There would therefore be no case arguable in judicial review, where the
mechanism is sought to enforce an otherwise private right against a public
authority. Re SGS, supra

3.4 In Cocks vs Thanet District Council, [1982] 3 ALL E.R. 1135 it was held
that where the action was based on the rights on the rights under private
law, the plaintiff is allowed to proceed under remedies in private law, even
where there is a public law issue.
4.0 ARGUENDO

4.1 The Plaintiff herein seeks to enforce a private law scheme under a contract,
with the first defendant, which by extension also involves the second
defendant. Such an action would not rise but for the contract between the
plaintiff and the second defendant. This is an obvious issue ofprivate rights
protected under private law.

4.2 Even where there is an interlock with public law, vis a vis the statutory
duties of the second defendant, this is not an issue enforceable under
judicial review as it is purely a matter ofprivate rights.

5.0 CONCLUSION

The plaintiffs seeking to enforce private rights, cannot be said to have wrongly commenced
the action, albeit against a public body. The action was rightly commenced by way of
originating Summons.

6.0 PRAYER

It is our humble prayer that preliminary objection herein be dismissed with costs. "

Having considered the preliminary objection raised by the 2nd Defendant and the
submissions thereon by Counsel Khonyongwa and Counsel Chinkango, I find the
cases of Chioza v. Board of Governors of Marymount Secondary School [1996]
MLR 109 [Hereinafter referred to as the "Chioza Case"] and Korea i v. Designated
Board Schools [1995] 2 MLR 649 [Hereinafter referred to as the "Koreai Case"]
to be direct decisions on point.
In Chioza Case, the High Court held that:

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Ousman Kennedy v. BIU & National Council for Higher Education Kenya tta Nyirenda , J.
" .. . the remedy for judicial review will not lie against those carrying out private duties.
However, whilst the respondents may be performing certain private functions in the
running o f the school, they fall within the public domain when they perform such functions
as the admission or expulsion of students from the school, thus rendering their decisions
in the respect susceptible to iudicial review. " - Emphasis supplied

Further, a perusal of Order 53/14/25 of the RSC shows that it answers the question
"against whom does judicial review lie". In Ridge v. Baldwin [1964] A.C 40, the
court stated that judicial review lies against an inferior court or tribunal, and against
any persons or bodies which perform public duties or functions. The court went
further to say that the remedy of judicial review may lie against any person or body
which performs public duties or functions. What this means, therefore, is that
the remedy will not only lie against public officers or institutions but even private
institutions that carry out public duties or functions .

In Koreai Case, the Plaintiff commenced an action for a declaratory order and an
injunction to restrain the defendants from acting on certain invoices and expelling
pupils who had refused to pay the new tariff of tuition fee s. On the same day, the
Plaintiff was granted an interim injunction order, on an ex-parte summons,
restraining the defendants from excluding the Plaintiff's children from school on the
grounds of refusal to pay school fees.

In the course of its judgment, the Court dealt with the issue of whether or not the
plaintiff had rightly commenced the proceedings by way of ordinary action and it
remarked as follows, at page 651:

"The Defendant has subm itted that under Order 53/ 1-14/ 15 of the Rules of the Supreme
Court there is a provision that where a person seeks to establish that a decision of a private
body infringes rights which are entitled to protection under p ublic law he must, as a
general rule, proceed by way of judicial review and not by way of an ordinary action
whether for a declaration or an injunction or otherwise (0 'Reilly v Macke man) [ 1982J All
ER 1124). ! fa person commences an ordinary action where he should have applied for
iudicial review , the action will be struck out by summary process. It would. as a general
rule, be contrary to public policy and as such an abuse ofprocess of the court, to permit a
person seeking to establish that a decision ofa public or authority infringed rights to which
he was entitled to protection under public law. to proceed by way of an ordinary action
and. by this means. to evade the provisions of Order 53 for the protection of such
authorities.

The above exposition ofthe law in the submission ofthe defendant is correct." -Emphasis
by underlining supplied

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Gusman Kennedy v. BIU & National Council for Higher Education Kenyatta Nyirenda, J.
It might not also be out of order to mention that I do not agree with Counsel
Chinkango' s characterization of this action as being more to do with enforcement of
"a private law scheme under a contract, with the first defendant". To my mind, the
contrary is true: a perusal of the originating summons and the Plaintiff's affidavit
dated 23rd December 2016 shows otherwise. The substantive part of the affidavit
reads:
"3. The University is a private institution of Higher learning that offers different
disciplines in accordance to the Laws of Malawi. Some of the Disciplines include,
but not limited to:

a. Bachelor ofAccounting and Finance;

b. Bachelor ofActuarial Science;

c. Bachelor of Business Administration;

d. Bachelor of Counselling Psychology,·

e. Bachelor of Entrepreneurship;

f Bachelor ofJournalism;

g. Bachelor of Banking and Finance;

h. Bachelor of Economics;

i. Bachelor of Information Technology; and

j. Bachelor of Tourism and Hospitality Management;

4. Further, the 2nd defendant has refused, neglected or avoided explaining if Bachelor
o(Laws programme is still accredited since students enrolled in it believing that it
was duly accredited.

5. In addition to the aforementioned, the 2nd defendant has refused to register or

accredit the following programmes:

i. Bachelor of Public Administration and Political Science;

ii. Bachelor of Early Childhood Education;

iii. Bachelor of Education in Mathematical Sciences;

iv. Master of Arts in Community Development;

v. Master ofScience in Economics;

vi. Master of Business Administration; and

vii. Master of Science in Finance.

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Ousman Kennedy v. BIU & National Council for Higher Education Kenyatta Nyirenda, J.
6. Before enrolling with University, we took steps to establish if it was duly registered
with the authorities and if indeed the above mentioned programmes were duly
registered and accredited with the 2nd defendant. Our aim was to ensure that the
degrees to be awarded to us will be recognized by the 2nd defendant as required by
law and the society at large.

7. The 1s1 defendant assured us that we are going to be awarded with recognizable
degrees on completion ofour respective academic cycles as it touted the institution
and the aforementioned degrees as 'accredited'. I attach and exhibit hereto the 1s1
defendant's advert marked as OU] which clearly show that the 2nd defendant
allowed the 1st defendant to enrol students to pursue studies at the Jst defendant
institution.

8. The 2nd defendant also encouraged this belief by displaying in its website that the
1s1 defendant and the above mentioned programmes are accredited and this
encouraged us to enrol with the university a copy of the said document is attached
and exhibit hereto and is marked as OU2.

9. I also exhibit hereto what I term as 'certificate ofaccreditation 'from the authorities
marked OU3 which also removed the doubts we had regarding accreditation of the
1s1 defendants and its programmes.

10. We were therefore surprised when the 2nd defendant released a statement in the
local papers to the effect that the JS 1 defendant's aforementioned programmes were
not accredited and that it is illegal for the 1s1 defendant to offer the above
programmes/courses. The 1s1 defendant was also informed of the decision and I
attach and exhibit hereto the said statement marked OU4 in Novem ber, 2016.

11. We protested the 2nd defendant's decision and we were verbally informed that the
decision will not affect students who graduated before the assessment but those
graduating after the declaration.

12. This created confusion in all of us considering that some of us have just finished
our programmes and we are awaiting award of degree certificates whilst others
will be finishing within a semester, a year, 2 years or 3 years.

13. Due to the 2nd defendant's decision, the Jst defendant, on 20 1h December, 2016,
indicated to us that it has stopped offering the above listed courses in compliance
with the 2nd defendant 's order and that we have been ordered to go home awaiting
possible 'reaccreditation' or 'deregistration' of the institution at least after a
year. " - Emphasis by underlining supplied

It is clear fro m the originating summons as read with underlined provisions of the
Plaintiffs affidavit above that the case of the Plaintiffs is premised much more on
the 2nd Defendant's exercise of its statutory duties. As such, the action ought to have
been commenced by way of judicial review.

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Ousman Kenn edy v. BIU & National Council for Higher Education Kenyatta Nyirenda, J.

Finally, I wish to agree with Counsel Khonyongwa that error committed by the
Plaintiffs in commencing the present action by way of an ordinary action cannot be
rectified under Order 2 of the RSC : the Court cannot, instead of striking out the
action, convert the writ of summons to a proper mode of commencement and give
directions as to how the case can be proceeded with. I read and re-read the RSC
and searched in vain for a provision therein allowing an action begun by
originating summons to continue as if it were an application for judicial review. I
am confirmed in this view by the apt observations by Lord Diplock in O'Reilly v.
Mackman, supra, at page 1133:
"So Ord 53 since 1977 has provided a procedure by which every type of remedy for
infringement of the rights of individuals that are entitled to protection in public law can
be obtained in one and the same proceeding by way of an application fo r judicial review,
and whichever remedy is found to be the most appropriate in the light of what has
emerged on the hearing of the application, can be granted to him. If what should emerge
is that the complaint is not an infringement of any of his rights that are entitled to
protection in pubic law, but may be an infringement of his rights in private law and thus
not a proper subject of judicial review, the court has power under r 9(5), instead of
refusing the application, to order the proceedings to continue as if they had begun by
writ. There is no such converse power under the Rules of the Supreme Court to permit an
action begun by writ to continue as if it were an application for iudicial review. " -
[Emphasis by underlining supplied]
In light of the foregoing, the Plaintiffs action is strike-out. As an interlocutory
injunction is dependent upon there being a pre-existing cause of action (see the
Siskina (1979) A.C 21 and Channel Tunnel Group Limited v Balfour Batty
Construction Limited [1993] AC 334), the injunction granted to the Plaintiffs
cannot stand. It is, accordingly, vacated.
On costs, the Court would exercise its discretion by ordering each party to bear its
own costs incidental to this case

Pronounced in Chambers this 5th day of September 2017 at Blantyre m the

Republic of Malawi.

Kenyatta Nyirenda
JUDGE

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