The High Court has set aside a without notice leave for judicial review it granted Paul Mphwiyo and others against the President, Chief Justice, Secretary to the President and Cabinet and Judicial Service Commission over extension of the contract for Judge Esme Chombo, who continued hearing their case after reaching her mandatory retirement age.
Mphwiyo and 14 others got the leave to apply for judicial review, saying the defendants’ actions violated Section 119(1) of the Constitution.
But, upon hearing the defence, Judge Simeon Mdeza set aside the leave on June 20 2022.
He indicated that he made the decision on the basis that the claimants had opted to apply for nullification of the proceedings in the first place and not judicial review.
Mdeza said when their application for nullification of the proceedings was dismissed by the court, the other option was to appeal the court’s decision and not seek judicial review.
“There were available to the claimant several avenues for verifying the legality of the process of extending the tenure of office of the Honourable Judge. The said options include, but are not limited to, judicial review, permanent stay of proceedings and nullification of proceedings. Out of these options, the claimants chose to apply for nullification of proceedings within the criminal trial and the application was dismissed by the presiding judge. After the dismissal of the application, the claimants decided to commence judicial review proceedings. This court is inclined to believe that, after opting to apply for nullification of proceedings above stated, the remaining options are no longer available to the claimants.
“The claimants should not be allowed to go juggling the available options in the face of the courts. Since the chosen option was not successful, the least that this court expects is for the claimants to wait for the appropriate time to appeal against the decision of the judge. Allowing the claimants to drop the chosen option to proceed to seek judicial review amounts to abetting the abuse of court process. It is clear that it is an appeal of the judge’s decision dressed as a judicial review,” he said.
Judge Chombo’s tenure was extended twice for her to continue hearing the case— firstly for 18 months on December 23 2018 and, later, for 12 months on May 21 2020— effective June 1 2020.
Mphwiyo and others are challenging the legality of the two extensions, saying they were not made in line with Section 119(1) of the Constitution in the sense that, for the first extension, the Chief Justice presented his views to the President on the length of the extension period contrary to what was agreed by the Judicial Service Commission while, for the second extension, that did not come from the President but government since it was communicated by the Secretary to President and Cabinet.
Chombo’s tenure was not extended after the expiry of the second 12-month period and the case is now with Judge Ruth Chinangwa.
Mphwiyo and his co-accused asked Chinangwa to restart the case all over, a proposition she declined.