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Court rules in favour of Khato

The Supreme Court of Appeal on Wednesday lifted the injunction which was granted to the Malawi Law Society (MLS) by the High Court stopping all groundwork on the Lilongwe-Salima Water Project.

Khato Civils Proprietary Limited, which is owned by Simbi-Phiri, was awarded the $500 million (K400 billion) project.

On September 16 this year, the High Court granted MLS an injunction restraining Khato from implementing the said project until there was a judicial review.

MLS argued that the contract cannot continue without an Environmental Impact Assessment (EIA), but Khato objected to MLS’s application for an interlocutory injunction, asking the court to grant it leave to appeal “against its grant and order a stay thereof”.

And, on Wednesday, Supreme Court Judge Lovemore Chikopa vacated MLS’ injunction pending a court appearance of concerned parties on October 4 this year.

“Looking at the facts even at this stage it cannot be denied that all parties including the Applicant and the Interested Party/Appellant agree that the contract cannot proceed without an EIA first being carried out. The facts also more than suggest that an EIA will in fact be carried out before the contract is implemented. On its part the Interested Party/ Appellant has had an affidavit sworn on its behalf to the effect that the contract was in fact suspended by the Attorney General of the Republic of Malawi until an EIA is carried out.

“The question that arises is whether in those circumstances there is an issue between the parties the status quo around which must be preserved by the grant of an interlocutory injunction the same to subsist until such issue is determined to finality. It is a question we think can best be answered after hearing all the parties. For the time being we will grant the Interested Party/Appellant’s prayer for leave to appeal and a stay of the interlocutory injunction pending such hearing and further order of this court,” Chikopa said.

He, then, granted Khato its wish.

“Accordingly leave is granted to appeal. The appeal shall of course be filed in accordance will applicable rules of procedure. The interlocutory injunction is hereby stayed until further order of this Court. The parties shall attend this Court on October 4th, 2017 at 1000 hours for a hearing on whether or not to sustain the stay hereby granted,” reads the order.

Meanwhile, lawyer representing Khato, Chancy Gondwe, said this means it is up to Khato to decide on what steps to take next.

“But, then, work was already suspended. The main thing is that the injunction that was initially granted [to MLS] has been lifted,” Gondwe said.

Gondwe added that, in the end, everything will hinge on the determination of the Supreme Court after hearing from concerned parties.

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