Ndhlovu v Malawi Electoral Commission (Electoral Case 1 of 2025) [2025] MWHC 22 (10 September 2025)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL DIVISION ELECTORAL MATTER NO. 1 OF 2025 (Before Honourable Justice W. Y. MSISKA) IN THE MATTER OF SECTION 42 OF THE PRESIDENTIAL, PARLIAMENTARY AND LOCAL GOVERNMENT ELECTIONS ACT; AND IN THE MATTER OF AN APPLICATION FOR A DECLARATION THAT THE DECISION OF THE MALAWI ELECTORAL COMMISSION EXCLUDING THE CLAIMANT FROM THE OFFICIAL LIST OF PARLIAMENTARY CANDIDATES FOR THE 16 SEPTEMBER 2025 ELECTION IS UNLAWFUL AND UNFAIR, AND AN APPLICATION FOR CONSEQUENTIAL ORDERS; AND IN THE MATTER OF AN ELECTION APPLICATION BY JOHNSTONE NDHLOVU. IN THE MATTER BETWEEN: JOHNSTONE NDHLOVU CLAIMANT -AND- MALAWI ELECTORAL COMMISSION DEFENDANT CORAM: HONOURABLE JUSTICE WILLIAM Y. MSISKA : Mr. D. Sato, of Counsel for the Claimant : Mr. E. Chapo, of Counsel for the Defendant : Ms. E. Chilenga, Court Clerk/Official Interpreter RULING Introduction [1] This is a Ruling of the Court following the hearing of an application by the claimant in which the Court was requested to review a decision by the defendant excluding the claimant from the official list of parliamentary candidates for Lilongwe City Ngwenya Constituency. The application is brought pursuant to section 42 of the Presidential, Parliamentary and Local Government Elections Act, Act No. 10 of 2023 (PPLGEA) and Order 19, rule 13 of the Civil Procedure Rules (CPR). The grounds for seeking the Court’s intervention are that— (a) the defendant’s decision to exclude the Claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful in terms of the Presidential, Parliamentary and Local Government Elections (Act No. 10 of 2023) on the basis of failure of the defendant’s Returning Officer for Lilongwe City Ngwenya Constituency (113) to immediately notify the claimant or his election representative of the rejection of his nomination papers giving the reasons for such opinion, before the defendant proceeded to publish the final list of parliamentary candidates for all constituencies for the Malawi General Election slated for 16th September, 2025. (b) the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful and administratively unfair in terms of section 43 of the Constitution of Malawi for failure to furnish the claimant with reasons in writing. (c) the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful and administratively unfair in terms of section 43 of the Constitution of Malawi for failure to proffer justifiable reasons for the decision. (d) the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful and procedurally unfair in terms of section 43 of the Constitution of Malawi for failure to provide the claimant the right to be heard prior to the making of the decision. (e) the defendant’s conduct poses a potential breach of sections 40, 41 and 43 of the Constitution which provide for political rights, access to justice and legal remedies and for administrative justice. (f) the said decision is irrational and unreasonable as no reasonable authority in the circumstances can make such a grave decision without representations from the claimant or without affording the claimant an opportunity to appreciate the basis of the decision and to be heard on the same. (g) the said decision is irrational and unreasonable as no reasonable authority in the circumstances can make a decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) without formally explaining to the claimant any deficiencies in his nomination papers the same preliminary assessments accorded to Presidential candidates of the same scheduled election, and promised to the claimant by the defendant. (h) in the alternative and generally the defendant’s decision lacks justification and was made in bad faith. [2] Based on the above grounds, the claimant sought the following reliefs— (a) a declaration that the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful in terms of the PPLGEA on the basis of failure of the defendant’s Returning Officer for Lilongwe City Ngwenya Constituency (113) to immediately notify the claimant or his election representative of the rejection of his nomination papers giving the reasons for such opinion, before the defendant proceeded to publish the final list of parliamentary candidates for all constituencies for the Malawi General Election slated for 16th September, 2025; (b) a declaration that the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful and administratively unfair in terms of section 43 of the Constitution of Malawi for failure to furnish the claimant with reasons in writing; (c) a declaration that the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful and administratively unfair in terms of section 43 of the Constitution of Malawi for failure to proffer justifiable reasons for the decision; (d) a declaration that the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful and procedurally unfair in terms of section 43 of the Constitution of Malawi for failure to provide the claimant the right to be heard prior to the making of the decision; (e) an order of injunction mandating the defendant through its Returning Officer for Lilongwe City Ngwenya Constituency (113) to accept the claimant’s nomination as a parliamentary candidate of the above Constituency upon consideration of the statement of facts and opinion of the Returning Officer of the said constituency; (f) an order for costs; and (g) any other order the court may deem fit and just in the circumstances. Facts/ Sworn Statements [3] The facts of the case have been gathered from the sworn statements both in support of the application and in opposition. The claimant stated that he is a prospective parliamentary candidate for Lilongwe City Ngwenya Constituency (113) in the forthcoming General Election scheduled for 16th September, 2025 following the publication by the defendant of the notice of the 2025 General Election, in which it informed the public that collection of nomination papers for candidates intending to contest as Members of Parliament had commenced on 10th June, 2025 and would run until the 30th July, 2025 being the last day for submission of nominations. [4] The claimant averred that on 29th July 2025, he submitted his nomination papers for a parliamentary seat for Lilongwe City Ngwenya Constituency at Ngwenya L. E. A School. According to the claimant, before submission of the nomination papers, the procedure was that one would pay nomination fees and upon being satisfied that the requisite fees had been paid, the defendant would proceed to issue out a nomination form. [5] The claimant alleged that by 30th July 2025, which was the last day of receipt of nominations, he had not received any communication regarding any defect in his nomination for a parliamentary seat for Lilongwe City Ngwenya Constituency. From that point it was his expectation that going by the operational plan issued by the defendant and in accordance with the law, his name would be published in the Gazette, or in a newspaper or broadcast by radio by the 8th of August 2025 as being one of the candidates for the constituency. [6] The expectation of the claimant was not to come true as on 14th August, 2025, the day the defendant published the official list of parliamentary candidates who had been duly approved by the defendant to contest in the forthcoming elections, he was surprised that his name was missing from the list. Thereupon, he immediately engaged the Constituency Returning Officer who informed him that she was as well surprised that the name of the claimant was not appearing on the final list. Noting that he was not getting immediate help from the defendant, he decided to engage the services of legal counsel who through a letter dated 15th August, 2025 demanded from the defendant an explanation on why his name was missing on the official list for parliamentary candidates for the forthcoming elections. Still, no response was furnished. [7] The defendant is opposed to the application for review. The first sworn statement in opposition was made by Annita Juwani Lungu who is the Returning Officer for Lilongwe City Ngwenya Constituency. She deponed that having read the sworn statement of the claimant she noted that there were certain misrepresentations of facts which she needed to clarify. [8] It was in her evidence that on 11th November, 2024, the Commission published a General Notice on the prescribed fees for the Presidential, Parliamentary and Local Government Elections scheduled for 16th September, 2025. In that General Notice, the nomination fees for a male candidate for Parliamentary Elections was K2,500,000.00 while that for women, the disabled and the youth (persons less than 35 years old) was placed at K1,250,000.00. [9] According to the deponent, the claimant presented his nomination papers on or about 28th July, 2025 for Parliamentary Elections for Lilongwe City Ngwenya Constituency and that at the close of the nomination period on 30th July, 2025 all nomination papers were forwarded to the District Elections Office for Lilongwe City for further scrutiny and approval by the Commission. It was during the process of further scrutiny that the Commission observed that the claimant paid nomination fees in the sum of K1,250,000.00, which is half of the prescribed nomination fees for the male candidates. Going by the claimant’s Citizen Identification Card, he was born on 11th July, 1989 meaning that at the time of presentation of his nomination papers he was 36 years old and certainly not under 35 years old to qualify as a youth. Consequently, the Commission proceeded to reject the claimant’s nomination. [10] The deponent then stated that on 14th August, 2025, she informed the claimant through a phone call that his name was missing on the list of approved candidates for Parliamentary Elections for the constituency because his nomination had been rejected as he did not pay the prescribed nomination fees. Whereupon, the claimant asked for the phone number for the District Elections Officer, Ms. Alice Kanyangala, which the deponent provided. A screenshot of the WhatsApp conversation was produced as exhibit marked, “AJL 2”. [11] The deponent further stated that on 15th August, 2025, the claimant met the District Elections Officer who gave him the same information and also directed the claimant to go and meet with the deponent to collect the Notice and Statement of Rejection of Nomination. The District Elections Officer called the deponent in the presence of the claimant and she confirmed to both of them that she indeed had copy of the Notice and Statement of Rejection of Nomination. In that phone conversation, the claimant indicated that he was to go straight to the office of the deponent to collect the Notice and Statement of Rejection of Nomination. The Notice and Statement of Rejection of Nomination was exhibited as, “AJL3”. [12] It was alleged by the deponent that having noticed that the claimant was not coming to collect the Notice and Statement of Rejection of Nomination, she made numerous calls to the claimant who responded by stating that he was to meet the deponent after meeting his lawyers but he never did. Thereafter, in the subsequent coming days, despite the deponent making numerous follow up calls to remind the claimant to go and collect the Notice and Statement of Rejection of Nomination, the claimant never showed up. To show that she was calling the claimant, the deponent produced and exhibited screenshots of her phone call register and WhatsApp chat records which collectively indicate that she had been talking to the claimant from 14th August, 2025 to 20th August, 2025. [13] Accordingly, it was her belief that in those circumstances she discharged her duties to inform the claimant forthwith on the rejection of his nomination. It was her further belief that the claimant suppressed material facts when he failed to disclose that the deponent contacted him the same day the approved list was released (and in the subsequent days) and that the notice of rejection of his nomination has been available for collection ever since. [14] The second sworn statement in opposition to the application was made by Mr. David Matumika Banda, the Director of Legal Services of the defendant. This deponent only adopted all that was stated by Annita Juwani Lungu as a correct account of what happened on the part of the defendant. The deponent went further to aver that the action complained of by the claimant is false noting that he was promptly informed of the reasons for the rejection of his nomination and that the reasons provided were valid in that regard. [15] In reply to the sworn statements in opposition, the claimant reiterated that as a prospective parliamentary candidate for Lilongwe City Ngwenya Constituency (113) in the forthcoming General Election scheduled for 16th September 2025, and responding to a call for nomination as members of parliament, he went to FDH Bank plc, a bank the defendant had identified as recipient of nomination fees for the forthcoming elections where he deposited the nomination fees on 13th June 2025 in accordance with the earlier announcement issued by the defendant which was to the effect that presentation of nomination papers was to be done from 11th to 13th June 2025. As proof of that fact, the deponent exhibited a copy of the deposit slip which was marked as “JN 6”. [16] It was his assertion that while in the banking hall, he was asked by the bank teller what position he wanted to pay for. His response was that he was paying for nomination fees for member of parliament upon which the teller asked for his ID and advised him to pay the sum of MK 1, 250, 000.00. [17] According to the deponent, at the time when he paid the nomination fees, he was clearly 35 years old. Referring to all the communications from the defendant, neither of them qualified as to who was 35 years old for the purposes of the elections. In addition, it was on the guidance of the bank teller that he paid the sum of K1,250,000.00. [18] The deponent also asserted that he paid the nomination fees on the 13th June 2025, he proceeded to the office of the District Returning Officer (DRO), Alice Kanyangala where he presented evidence of payment of the requisite nomination fees as at the time. At the office of the District Returning Officer, he was issued with a Malawi Government General Receipt (G. R.), wherefrom he was directed to the Constituency Returning Officer to collect his nomination papers. He only managed to present his nomination papers on 28th July, 2025 owing to changes effected to the electoral calendar by the defendant. [19] Further, the deponent alleged that after presentation of the nomination papers, the Constituency Returning Officer, scrutinised them and confirmed to the deponent that everything was in order. It was therefore surprising that Annita Juwani Lungu in paragraph 7 of her sworn statement stated that the nomination papers were sent to the District Elections Officer on the day of closure for nomination which was 30th July 2025, for what the Constituency Returning Officer, Annita Lungu called further scrutiny. [20] The deponent emphasised that he paid the nomination fees on the 13th June, 2025, on which date he was 35 years old which was in line with earlier calendar which was that submission would be from 30th June to 5th July 2025, all dates falling within the period he was still to be 35 years before the defendant proceeded to change the calendar without advising of the effect of the changes in the calendar for those who had already paid nomination fees. [21] The deponent also stated that according to the Notice of the 2025 General Election, he understood the section titled “IMPORTANT” to mean that it was optional for candidate or his/her election representative to request the defendant to examine the nomination form and nomination papers before formal presentation and that it was mandatory for the Constituency Returning Officer to inform a candidate or his election representative of any defects in his nomination after the submission of his formal nomination papers but before the closure of the nomination period to allow the candidate to rectify the defect if he so wished. [22] According to the deponent it was evident both from his sworn statements in support of the application, as well as the sworn statements of Anitta Juwani Lungu and David Matumika Banda that there was no communication in writing to him prior to the defendant releasing its official list of duly nominated candidates for parliamentary seats for the forthcoming General Elections and that he was also not summoned by the defendant prior to the decision to exclude him from the official list of parliamentary candidates for Lilongwe City Ngwenya Constituency. Arguments by the Parties [23] Besides the sworn statements both parties also filed skeleton arguments in support of their respective positions. [24] In his oral arguments, counsel for the claimant started by submitting that under Order 19, rule 13 of the CPR, apart from the mode of commencement specified under the Parliamentary and Presidential Elections Act and, the Local Government Elections Act, an election matter shall, in any event, be commenced by an application. For the claimant, such a mode of commencement would also be applicable to matters arising under section 42 of the PPLGEA, more particularly, because it gives the claimant unqualified right to refer a dispute regarding nomination to the High Court. [25] In order to show that the decision of the defendant to exclude the claimant from the official list of parliamentary candidates for Lilongwe City Ngwenya was unlawful under the PPLGEA, firstly, counsel argued that under section 40 of the PPLGEA a prospective candidate is required to pay the nomination fees before collection of the nomination papers. By issuing a G. R. to the claimant, the defendant acknowledged receipt of payment of the nomination fees as determined. The understanding, therefore, being that as a public institution, the defendant through the returning officer, has a duty to satisfy itself that the requisite nomination fees as determined has been paid before the nomination form is issued to an aspiring candidate. By issuing the nomination form to the claimant, the defendant was satisfied that the requisite nomination fees was paid in that regard. [26] Secondly, it was argued that the decision of the defendant to exclude the claimant from the official list of parliamentary candidates for Lilongwe City Ngwenya Constituency was unlawful as the defendant through the returning officer did not comply with section 39 of the PPLGEA which deals with submission of nomination papers. It was argued that at the point of submission of the nomination papers two things may happen. First, the candidate has the right to request the returning officer to examine the nomination form and supporting documents before they are formally presented. If the request is made, the returning officer is under a duty to examine the nomination form and supporting documents and, then advise the candidate whether or not the nomination papers are in order. Where a candidate has not requested an examination of the nomination papers, the law places a strict duty on the returning officer to inform the candidate of any defect in the nomination papers at the earliest opportunity, and in any case before the close of the period allowed for nominations so as to give opportunity to the candidate to rectify the defect before close of the nomination period. [27] It was the view of the claimant that the defendant did not discharge this duty. If this was done the claimant would have been made aware of the defect with his nominations papers which he would have rectified owing to the fact that he presented his nomination papers two days before the closure of the nomination period. It was submitted that the failure by the returning officer to advise the candidate at the earliest opportunity that he paid less than the required nomination fees render the decision of the defendant to exclude the claimant from the official list of parliamentary candidates for Lilongwe City Ngwenya Constituency unlawful. [28] Turning to legitimate expectation as a ground upon which the decision to exclude the name of the claimant was unlawful, it was submitted that the defendant in the Notice of the 2025 General Election under the section titled “IMPORTANT” and in particular paragraph (ii) advised the public and promised the candidates including the claimant that: “The Commission shall, after the formal presentation of the nomination papers but before the close of the period allowed for nominations, advise the candidate or his or her election representative of any defect in the candidate’s nomination papers or supporting documents, and the candidate or his or her election representative may, before the closure of the nomination period, rectify the defect” [29] It was argued that the statement quoted above was a promise that created legitimate expectation in the claimant; that, if at all there were any defects in his nomination papers, he would be notified of the existence of the defects. It was also argued that it was the obligation of the defendant based on its undertaking to inform the claimant after his presentation of nomination papers but before the close of the nomination period of any defect in his nomination papers. Since the defendant failed to so, therefore the claimant was not accorded the chance to rectify the defect. In that respect, the defendant was clearly estopped from walking back on this self assumed responsibility. The case of Legione v Hateley (1983) 152 CLR 406 was cited for the proposition that a party cannot act contrary to a representation. [30] The claimant also cited several case authorities that describe and discuss in detail what the principle of legitimate expectation entails in relation to exercise of public authority or power. The cases cited are: S (On the application of Mapeto DWSM Limited) v Commissioner General of Malawi Revenue Authority Judicial Review Cause No. 4 of 2022; R v Devon County Council Ex parte P Baker [1995] 1 ALL ER 73; R (Bibi) v Newham London Borough Council [2002] 1WLR 237; R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1125C-D. Consequently, it was submitted that the claimant had legitimate expectation that his name was to appear on the official list of parliamentary candidates in light of the fact that no defect in his nomination papers was communicated to him before closure of the nomination period. [31] Pausing here, this Court wishes to quickly deal with question of legitimate expectation in light of the present case. As this Court understands the law on the doctrine of legitimate expectation none arises on the facts of this case. Suffice to state that the doctrine of legitimate expectation is a public law equivalent or analogy of the doctrine of estoppel in private law. See Regina v East Sussex County Council (Appellants) Ex Parte Reprotech (Pebsham) Ltd [2002] UKHL 8. In this case Lord Hoffmann said— “There is of course an analogy between a private law estoppel and the public law concept of legitimate expectation created by a public authority, the denial of which may amount to an abuse of power.” [32] A legitimate expectation is said to arise as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of government or a public authority. The doctrine was developed as a response to common law failures by public authorities to honour policies and assurances made to citizens. [33] In the present case, the Court has considered the statement relied upon by the claimant as a basis for raising the doctrine of legitimate expectation to his aid. The Court has observed that the statement quoted above is not a promise at all as the claimant alleges that it was made by the defendant. If anything, and truth be told, the statement is actually the law as contained in section 39 (3) of the PPLGEA. It is, in fact, a paraphrase of that subsection. Consequently, legitimate expectation as a ground for challenging the decision of the defendant does not in any way arise. It is misconceived. [34] On the issue of the decision of the defendant contravening section 43 of the Constitution which deals with administrative justice, it was argued and submitted that from the totality of the facts the claimant was not heard, nor given an opportunity to make representations before the decision to exclude him from the official list of parliamentary candidates was made. The defendant alone, just carried out its further scrutiny and review of the nomination papers without involving the claimant and, went ahead to reject the nomination of the claimant thereby excluding the claimant from the official list of parliamentary candidates for Lilongwe City Ngwenya Constituency. [35] Relying on the case of Chawani v The Attorney General [2000-2001] MLR 77 (SCA) the claimant submitted that by not affording the claimant an opportunity to make representations contrary to section 43 of Constitution, the decision to exclude him from the official list of nominated candidates was unlawful. The Court was urged to set aside the decision of the defendant on this ground as well. [36] Lastly, the claimant argued on the point that excluding the claimant from the official list of parliamentary candidates for Lilongwe City Ngwenya Constituency is an affront to section 40 of the Constitution which provides for political rights of all citizens of Malawi and includes the right to stand for any elective office. By not offering the claimant an opportunity to be heard, no doubt the decision of the defendant has affected the substantive right of the claimant to participate in political activities and to stand for elective office. [37] The claimant therefore urged the Court to declare that the decision was unlawful for flouting section 43 of the Constitution, section 39 (3) of the PPLGEA, inequitable for failure to act as promised by informing the claimant of any defects in his nomination before the close of the nomination period and unlawful for failure by the Returning Officer to offer the claimant written reasons of his rejection or omission from the official list immediately when a decision to reject his papers was made, but before publication of the official list. [38] On the part of the defendant, counsel started by stating that the application by the claimant was based on a misguided position of law and fact. It was the argument of the defendant that the claimant wrongly invoked the jurisdiction of the Court noting that section 76 of the Constitution creates two avenues for challenging decisions of the defendant. The first one is by way of appeal under section 76 (3). It was argued that under this avenue the decisions of the defendant being the subject of challenge are those relating to the conduct of elections and those relating to compliance with the law in the conduct of elections. Second, is the avenue of judicial review under section 76 (5). This avenue becomes handy where one alleges non-compliance with the law in the discharge of other functions of the defendant. The case of Chisi v Malawi Electoral Commission Electoral Case No. 1 of 2014 (High Court) (Principal Registry) (unreported), was relied upon to demonstrate the argument. It was posited that in the Chisi case, the court stated that the appeals avenue will apply to election related decisions while judicial review will apply to administrative decisions of the defendant in which the right of appeal is not available. Similarly, section 42 (2) of the PPLGEA does not save the situation in so far as the mode of commencement is concerned. It does not in any way provide for the mode of commencement nor does it create a right to refer the matter to the High Court. [39] The defendant further argued that even Order 19, rule 13 of the CPR defers the procedure for mode of commencement to the Constitution and the relevant statutes. Since the claimant invoked the wrong mode then the application should be dismissed. [40] The defendant also argued that the other claimant’s misguided position of the law and fact is on age category of the youth nomination fees. On this point it was submitted that section 40 of the PPLGEA creates two obligations, namely, duty on the part of the candidate to pay nomination fees; and gives the power to the defendant to set nomination fees. The defendant performed its duty by publishing the General Notice in which it was made clear that the nomination fees for the youth applied to persons who are less than 35 years old. Less than 35 years cannot be interpreted to mean 35 years old; it was so submitted. [41] On the duty to pay nomination fees, it was argued that it is not enough for a candidate just to pay nomination fees. A candidate is required to pay the prescribed nomination fees to satisfy the legal requirements of section 40 of the PPLGEA. The defendant went further to argue that there is nothing in section 40 of the PPLGEA that places the duty on the defendant or its officers to check the amount deposited before issuance of the nomination forms. In fact, under the law, deposit of nomination fees is contemporaneous to collection of nomination forms. [42] With regard to the claimant’s contention that he relied on the advice of the bank teller to pay the nomination fees prescribed for the youth, the defendant argued that at no point in time were bank tellers engaged by it as its agents, let alone employees of the defendant for purposes of advising candidates on the required nomination fees. The reason the law requires the defendant to publish prescribed fees is for the candidates to use only the information communicated officially to the public. A person who ignores official information he has himself to blame. [43] On the issue that the decision to exclude the claimant from the official list of candidates for Lilongwe City Ngwenya Constituency was unlawful as defendant did not comply with section 39 (2) of the PPLGEA, the defendant argued and submitted that the claimants were wrongly reading section 39 (3) in isolation. For the defendant, section 39 (3) follows from section 39 (2) on examination of nomination form and supporting documents on request. Where the option to request an examination of the nomination form and supporting documents has been exercised, the duty in section 39 (3) is triggered meaning that the returning officer must revert before closure of nomination period. According to the defendant, the claimant read section 39 (3) as creating an independent duty for the returning officer. [44] In relation to rejection of nominations under section 42 (1) of the PPLGEA, it was argued that rejection of nomination papers is placed at the end of the period of nomination. However, the import of the provision is that the receipt of the nomination papers is not final as to the correctness of the nomination papers. Placing the rejection of nomination papers at the end of the nomination period is to give ample time to the returning officer to scrutinise the nomination papers with a view to ascertain that the candidate has complied fully with law including whether or not a candidate has paid the prescribed fees. [45] In conclusion, the defendant asked the Court to dismiss the proceeding with costs on the grounds that— (a) the claimant wrongly proceeded under judicial review before exhausting the appeals process provided under the law; (b) having been born on 11th July, 1989, the claimant was not less than 35 years old when he paid nomination fees and collected nomination forms on 13th June 2025. Thus, he did not qualify for the discounted nomination fees for the youth who are defined as persons less than 35 years old; (c) the claimant did not pay the prescribed nomination fees for nomination as a candidate in a parliamentary election slated for 16th September, 2025. Accordingly, the claimant’s nomination was invalid as it did not comply with the requirements of section 40 (1) of the Act; (d) the defendant acted within the law in rejecting the claimant’s nomination as a candidate in parliamentary elections on 16th September, 2025. The rejection was done at the right time per section 42 of the Act; (e) the defendant promptly informed the claimant about the rejection of his nomination and the reasons therefore within 24 hours thereby complying with section 42 of the Act; and (f) the defendant acted within the law in both the rejection of the claimant’s nomination and the communication of the rejection to the claimant. [46] After listening to arguments, both parties were invited to address the Court on the following question— “What is the correct mode of commencement of an election matter?” [47] For the claimant, it was submitted that under Part II of Order 19, CPR commencement mode for election matters is a guided by the PPLGEA or in any other event, commencement is by way of application. Under the PPLGEA the mode of commencement is said to be by petition (section 101and section 99) which only covers instances after the conduct of elections thereby leaving challenges lodged in light of section 42 to be commenced by an application pursuant to Order 19, rule 13. The claimant urged the Court to hold that the matter was properly commenced. [48] On the part of the defendant it was argued that the starting point is section 76 of the Constitution which lists the functions of the Commission among which is resolution of complaints. After the Constitution, it is the PPLGEA which in section 99 deals with complaints at any stage of the electoral process to be lodged with the High Court as an appeal under section 100, and section 101 that deals with post voting electoral disputes. In both cases, the mode of commencement is by petition. It was the further argument of the defendant that the application route under Order 19, rule 13 can only be taken in the absence of a prescribed mode of commencement. For the defendant, the CPR being subsidiary legislation it has to defer to the Constitution and the principal legislation. Based on this argument, the defendant submitted that the matter was not properly before the Court. Issues for Determination [49] Having considered the sworn statements both in support and in opposition to the application, the skeleton arguments and the oral address by the parties, the main issues for determination are as follows: (a) Whether or not the decision to reject or exclude the claimant from the official list of parliamentary candidates for Lilongwe City Ngwenya Constituency should be set aside; and (b) Whether or not the matter was properly commenced in this Court. Law, Analysis and Determination [50] The Court will start by considering the second issue for the reason that its resolution will determine the future of the proceeding. When dealing with the issue of mode of commencement in election matters, recourse should first be had to the Constitution which under section 75 establishes the Malawi Electoral Commission (Commission). Section 76 of the Constitution outlines the broad functions and powers of the Commission. The additional powers and functions of Commission are further elaborated in detail under section 8 of the Malawi Electoral Commission Act. [51] The duties and functions of the Commission as provided for under section 76 of the Constitution are reproduced hereunder, and for the purposes of this case, the relevant part reads as follows: “(2) The duties and functions of the Malawi Electoral Commission shall include— (a) ……………………………………………………………………..; (b) ……………………………………………………………………..; (c) to determine electoral petitions and complaints related to the conduct of any elections; (d) to ensure compliance with the provisions of this Constitution and any Act of Parliament; and (e) to perform such other functions as may be prescribed by this Constitution or an Act of Parliament. (3) Any person who has petitioned or complained to the Malawi Electoral Commission shall have the right to appeal to the High Court against determinations made under subsections (2) (c) and (2) (d). (4) ……………………………………………………………..; (5) Without prejudice to subsection (3)— (a) the High Court shall have jurisdiction to entertain applications for judicial review of the exercise by the Malawi Electoral Commission of its powers and functions to ensure that such powers and functions were duly exercised in accordance with this Constitution or any Act of Parliament; and” [52] It is clear from section 76 (2) (c) and (d) that the Commission performs adjudicative duties and functions by determining electoral petitions and complaints. It is for that reason that the courts have on uncountable times held that the Commission is a quasi-judicial body. See Chilima and Another v Mutharika and Another [2020] MELR 1 and Mutharika and Another v Chilima and Another [2020] MELR 406. No wonder, under section 76 (3) a person who petitions or complains to the Commission is accorded a right of appeal to the High Court against a determination made by the Commission under subsection 2 (c) and (d). [53] The Constitution by its nature has not provided the mode through which appeals from the determination of the Commission can be lodged in the High Court. However, under section 100 of the PPLGEA, an appeal from a determination of the Commission to the High Court is by way of petition. Section 100 (1) reads as follows— “An appeal shall lie to the High Court against a decision of the Commission confirming or rejecting the existence of an irregularity and such appeal shall be made by way of petition, supported by sworn statements which shall clearly specify the declaration the High Court is being requested to make by order.” [54] Reading section 76 (3) of the Constitution together with section 100 of PPLGEA what comes out is that an appeal to the High Court against a determination of the Commission can only be by way of petition. This is one of the modes of commencement of election matters in the High Court. [55] Besides exercising appellate jurisdiction commenced by way of petition, the High Court also exercises original jurisdiction as a court of first instance to hear election matters. According to law, such proceedings can only be had after results of the election have been declared. In such matters, when the High Court is exercising its original jurisdiction, the mode of commencement is also by way of petition. Section 101(1) of PPLGEA provides as follows— “A complaint alleging an undue return or undue election of a person to the office of President, member of the National Assembly, or a councillor, by reason of an irregularity or any other cause whatsoever shall be presented by way of petition to the High Court……” [56] From the foregoing, commencement of an election matter in the High Court both in the exercise of appellate jurisdiction and in the exercise of original jurisdiction is by way of petition. [57] Commencement of election matters by way of petition is also governed and recognised by the rules of practice and procedure in the High Court, the CPR. Order 19, rule 13 states as follows— “An election matter shall commence in the manner specified under the Parliamentary and Presidential Elections Act, the Local Government Act or, in any other event, by an application.” Two things have been observed with rule 13. First, it makes reference to the Parliamentary and Presidential Elections Act and the Local Government Elections Act which were repealed in 2023. There is now the PPLGEA which should be read into rule 13. Of course, rule 13 merely confirms the position under the PPLGEA that election matters should be commenced by way of petition. The second observation is that apart from a petition under the PPLGEA, an election matter is also to be commenced by “an application”. [58] Be that as it may, however, the question worth answering is: where the principal legislation, in this case, the PPLGEA has specified a mode or modes of commencement of an election matter can subsidiary legislation add on another mode of commencement? The answer is a resounding no. The reason is simple. The CPR is subsidiary legislation. Being such subsidiary legislation, it cannot in any way add on or subtract from what has been given or specified by an Act as the mode of commencement of an election matter unless the Act expressly authorised or permitted that an additional mode of commencement may be prescribed through subsidiary legislation. If the Act has not expressly provided for it, then subsidiary legislation cannot do otherwise. see Mutharika and Another v Chilima and Another [2020] MELR 406. Consequently, “an application” is not a mode through which an election matter can be commenced in the High Court. [59] Admittedly, decisions of the Commission pertaining to its exercise or performance of its public functions are amenable to be challenged in the High Court by way of judicial review. Section 76 (5) of the Constitution cited above is to that effect. The import or meaning of that subsection is that without in any way limiting or without in any way affecting the right of appeal granted under subsection (3), a person is at liberty, depending on the nature of the complaint to seek redress from the High Court by way of judicial review. The mode of commencement of judicial review proceedings is through originating motion and the use of Form 86 A. See State (on application of Francis Bisika) v Malawi Communications Regulatory Authority Judicial Review Case No. 71 of 2017. Originating motion and the use of Form 86 A is specific and special to such proceedings. [60] As it stands, and depending on the nature of the particular election matter, this Court is satisfied and convinced that the proper modes of commencement or of bringing an election matter to the High Court is by way of petition (under section 99 as read with section 100; and under section 101 of the PPLGEA) or through originating motion and use of Form 86 A for judicial review. [61] Having found that the modes of commencement of an election matter is either by way of petition or through originating motion and use of Form 86 A for judicial review, it is now time to apply the law to facts obtaining in this case. From the facts, commencement by way of petition is not supported by the law. In the first place, there was no determination by the defendant to form the basis of an appeal to the High Court as envisaged under section 99 as read with section 100 of the PPLGEA. Similarly, the complaint by the claimant does not meet the criteria or scheme of a petition contemplated under section 101 of the PPLGEA. Proceedings by way of petition envisaged under section 101 is where the defendant has declared results. That is not the case in the present proceeding. [62] The gravamen, pith or the main substance of the claimant’s application is for the Court to review a decision by the defendant excluding the claimant from the list of parliamentary candidates for Lilongwe City Ngwenya official Constituency. Clearly, this calls for the remedy of judicial review. Even the eight grounds upon which the application is based are typical to the remedy of judicial review. The eight grounds, inescapably fit into what is provided under Order 19, rule 20 (1) which reads as follows— “(1) Judicial review shall cover the review of— (a) a law, an action or decision of the Government or a public officer for conformity with the Constitution; or (b) a decision or action or failure to act in relation to the exercise of a public function in order to determine— (i) its lawfulness; (ii) its procedural fairness; (iii) its justification of the reasons, if any; or (iv) bad faith, if any, where a right, freedom, interests or legitimate expectation of the applicant is affected or threatened.” [63] Following from the foregoing discussion, this Court finds and holds that the claimant used the wrong mode for commencement of the proceeding, that is by way of application under Order 19, rule 13 of CPR instead of originating motion and use of Form 86 A which was suitable in the circumstances of this case. The error of using the wrong mode of commencement not applicable to the remedy of judicial review is fatal and incurable. [64] Consequently, the answer to the question whether or not the proceeding was properly brought before this Court is in the negative. Being an issue upon which the life of the proceeding depended, this Court feels that addressing the remaining issue would be moot and an exercise in futility. [65] In view of all the reasons given and the analysis herein, this Court, therefore, proceeds to dismiss the application by the claimant for not being properly brought before the Court. [66] The application to review the decision of the defendant is dismissed. Costs normally follow the cause. For that reason, costs are for the defendant to be assessed if not agreed. It is so ordered. Made in Chambers this 10th day of September, 2025 at Lilongwe. W. Y. Msiska JUDGE 19