Central East Africa Railways Limited v Christina Chithila and Others (High Court Civil Appeal No. 13 of 2021; MSCA Civil Appeal 1 of 2026) [2026] MWSC 5 (25 June 2026)

) REPUBLIC OF MALAWI IN THE MALAWI SUPREME COURT OF APPEAL PRINCIPAL REGISTRY MSCA CIVIL APPEAL NO. 01 of 2026 (Being High Court Civil Appeal No. 13 of 2021) BETWEEN: CENTRAL EAST AFRICA RAILWAYS LIMITED -AND- CHRISTINA CHITHILA KONDWANI MKONDA DAVID KWENDA CHIMETA MULAMBIA APPELLANT IST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT ORDER (with Skeleton Reas ons) CORAM: Mzikamanda, SC, CJ; Chikopa, SC, DCJ; Kapanda, SC, JA; potani, SC, JA; Mkandawire, SC, JA; Kalembera, SC, JA; Madise, SC, JA; Mbvundula, SC, JA; and nyaKaunda Kamanga, SC, JA. -r@lEr 'G.d-*' 1 Skeleton Reasons Having carefully considered the record, the judgment of the court below and the submissions of the parties, we have reached the following conclusions. The Appellant's challenge to the finding of discrimination succeeds. The claim of discrimination was neither properly pleaded nor established on the evidence in the manner required by law. The Industrial Relations court therefore erred in finding that the Respondents had been subjected to discrimination and in awarding damages on that basis. The court below, in turn, erred in affirming that finding and declining to interfere with the resultant award on appeal. It follows that the finding of discrimination and all damages awarded thereunder cannot stand. The Appellant's challenge to the finding of unfair dismissal does not succeed. we are not persuaded that the court below erred in upholding the finding that the Respondents' employment was unfairly terminated. To that extent, the appeal fails and the finding of unfair dismissal is affirmed. However, the challenge directed at the assessment of compensation succeeds. In assessing compensation, the court below included awards associated with the finding of discrimination which this court has now found to be unsustainable. Further, having reviewed the awards as a whole, we are satisfied that the assessment resulted in overcompensation. The assessment therefore cannot be allowed to stand. In the circumstances, it is necessary to set aside the assessment and undertake a fresh reassessment based solely on the surviving causes of action and in accordance with the applicable principles governing compensation for unfair dismissal. we now tum to the Respondents' cross-appeal. In our judgment, the cross-appeal is both procedurally irregular and substantively without merit. The matters raised therein ought properly to have been pursued before the court below and cannot competently be advanced for the first time before this court through a notice seeking variation of the judgment. ,) Further, the Respondents'noticc is framed as one seeking variation of the judgment, yet in substance it seeks to challenge the validity and competence ofthe appeal that was before the court below. Such a challenge is not properly advanced under the guise of a notice to vary. In any event, we find no merit in the reliance placed on the doctrine of inchoate judgments. That doctrine concerns the prcmaturity of an appeal and the stage at which an appeal may properly be instituted. It does not render an appeal invalid or a nullity merely because issues are raised concerning the completeness ofproceedings below. The Respondents' argument therefore provides no basis for disturbing thejudgment of the court below. Accordingly, and for the foregoing reasons, the appeal succeeds onry to the extent indicated above, whilst the cross-appeal fails in its entirety and therefore dismissed. Operativc Order IT IS HEREBY ORDERED THAT: l. The appeal is partly allorved. 2. The finding that the Respondents were discriminared against is hereby set aside. 3' All awards and damages flowing liom or attributable to the finding of discrimination are hereby set aside. 4. The appeal against the finding of unt'air dismissal is dismissed. 5. The finding that the Respondents were unfairly dismissed is affirmed. 6. The assessment of compensation is hereby set aside in its entirety. 7. This court shall undertake a fresh reassessment of the compensation payable to the Respondents and shall deliver its reassessment order within ninety (90) days ofthe date ofthisjudgment. 8. The Respondents'cross-appeal is dismissed in its entirety. 9' Save as varied by this judgment, the judgment of the court berow is affirmed. lO.For the avoidance ofdoubt the stay order issued in the matter shall subsist until a further order of the Court. I LEach party shall bear their own costs. Mzika DATED and DELIVERED in open court at BLANTYRE this 25th day of June 2026. Hon. Lord Chief J ce R. anda, SC Hon. Lord Depu hief Justice . Chikopa, SC Hon. Lord J ce F. E. Kapanda, SC JA Ho Lord Justice H. Potani, SC JA Hon. Lord Justice M.C.C. Mkandawire, SC JA Hon. Lord Justice S.A. Kalembera, SC JA 4 Hon. Lord J adise, SC JA Hon. Lord Justice R. Mbvundula, SC JA Hon. Lady Justice D. nyaKaunda Kamanga, SC JA G-A Ul r_l*