Khamwano v Khunga and Another (Civil Cause 252 of 2019) [2023] MWHCCiv 36 (27 March 2023)

IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 252 OF 2019 BETWEEN: MR. FRANCIS KHAMWANO. ....0 00... cece cece ee eeeeeeeeeeeneecesueeeesenenensasens CLAIMANT AND MAR. WILLIAM KHUN GA cries sess cxam srwescunnsaanenawins anise canes siniieh ea anneanes 15ST DEFENDANT MR. DAVIE MKORONGO...........cesceseccecseneeeceseeecncasessneesuensesssnenes 2ND DEFENDANT CORAM: Honourable Justice T. R. Ligowe Mr. J. Chiwalo, Counsel for the Claimant Counsel for the Defendants, Absent Mr. K. Thadzi, Senior Court Clerk Mrs. J. N. Chirwa, Senior Court Reporter Ligowe J, ORDER 1. Then it means the notice of examination of judgment debtor was somehow misconceived. When you read the whole of Order 28 rule 5, especially sub rule (3), it gives the impression that the enforcement debtor or independent witness may be in attendance at the time the court deals with the 1 application for an order that the enforcement debtor or independent witness attends an enforcement hearing and be examined about his financial circumstances and how he proposes to pay the amount of the judgment debt and bring sufficient documents to enable him to give a fair and accurate account of his financial circumstances which is otherwise referred as the “enforcement hearing order.” In sub rule (3), if the said enforcement debtor or independent witness is not present, the enforcement creditor has to ensure that the order is served on the enforcement debtor or independent witness not less than 7 days from the date of the hearing. Take note that the first outcome of the process is called an “enforcement hearing order” and not a “notice of examination of a judgment debtor.” In the present case, today’s date was given for the hearing of the application for an enforcement hearing order. The record shows that the enforcement hearing order had not been given at the time today’s date was given. And as admitted by Counsel, the notice of examination of a judgment debtor and not an enforcement hearing order was served on Counsel for the enforcement debtor. As already noted, it should have been an enforcement hearing order and it should have been served on the enforcement creditor or an independent witness. It should be admitted thai # was a mistake to issue the said notice of examination of a judgment debtor and that an enforcement hearing order had not been granted. In view of the circumstances, because today’s date clearly shows on record as the date for the application of an enforcement hearing order, this court grants the order upon reading the sworn statement in support. The order should be perfected and served directly on the enforcement debtor apart from his legal practitioner, for the hearing to take place on 18" April 2023 at 2:00 p.m. Made in Chambers this 27 day of March 2023. T. R. Ligowe JUDGE