Dr. Wakisa Simukonda t/a Horizon Building & Civil Engineering Contractors v Oxfam in Malawi (Commercial Cause 54 of 2026) [2026] MWHC 39 (11 June 2026)

Soi IN THE HIGH COURT OF MALAWI COMMERCIAL DIVISION BLANTYRE REGISTRY COMMERCIAL CAUSE NUMBER 54 OF 2026 (Before the Honourable Justice Dr Kachale) BETWEEN DR. WAKISA SIMUKONDA t/a HORIZON BUILDING & CIVIL ENGINEERING CONTRACTORG..........seseceseseseeeseeeeeseres¢ CLAIMANT -AND- OXFAM IN MALAWL........cssessessessnsensessensesenssteesenesseneateneeseeeeee/ DEFENDANT

Coram

HON. JUSTICE DR. CHIFUNDO J. KACHALE, Judge Banda, of Counsel for the Claimant Chinula SC, of Counsel for the Defendant Kapoloma, Law Clerk RULING ON APPLICATION FOR AN ORDER DECLARING THE STATEMENT OF DEFENCE INEFFECTUAL AND SETTING ASIDE FOR NON-COMPLIANCE

& Application for Summary Judgment

(Under Order 2, Rule 3(b) & (c), Order 7, Rules 6, 7 & 9 and Order 12, Rule 23 (1) of the Courts (High Court) (Civil Procedure) Rules 2017)

1. Dr. Wakisa Simukonda has sued Oxfam in Malawi to claim unpaid contract sums in respect of a contract to undertake some construction works in Zomba. Under the specially endorsed summons of 16" March 2026, the Claimant alleges that Oxfam has failed to honour a valid interim payment certificate generated through the contractually established protocols to the tune of MK25,957,122.63. He now claims payment of that sum, compound interest till date of settlement, damages for loss of business and investment opportunity, adjustment for devaluation and inflation as well as the applicable statutory collection charges and costs of the action.

2. Through its defence filed on 23” April 2026, Oxfam admitted having entered into a contract with the Claimant for the construction of a warehouse at Chiringa in Zomba district; other than that, the Defendant denied the rest of the claim and put the Claimant to strict proof of its allegations. Following that defence, Dr Simukonda filed the present application by which the Court has been moved to declare the defence as ineffectual for not complying with Order 7 Rules 6,7 & 9 of the Courts (High Court) (Civil Procedure) Rules 2017 (hereinafter CPR 2017); thus Claimant prays that summary judgment be entered under Order 12 Rule 23(1) of CPR 2017.

3. In support of this application, Dr. Simukonda has filed a detailed sworn statement identifying the alleged deficiencies in the defence and setting out the evidence said to render such a defence untenable. Asecondary sworn statement was filed by the claimant in response to the defendant’s sworn statement in opposition. The application is also supported by skeleton arguments citing relevant local authorities which have been instrumental in disposing of the process. In essence the Court has been urged to exercise its jurisdiction to strike out the defence for non-compliance with the relevant rules of procedure and also for not disclosing an arguable case in defence.

4. For its part Oxfam likewise filed a sworn statement (which in part recited matters of law instead of factual issues); skeletal arguments focusing on the judicial discussions around the principles applicable when considering summary judgment applications have also been presented for the defendant. The essence of the defendant’s arguments being that the present case cannot be competently dealt with under the summary judgment process because there is a legitimate dispute about the interpretation of a key term of the contract between the two sides.

5. The Court has taken time to consider all the evidence and legal arguments put forward by both parties. In the final analysis the Court has taken much guidance from the wisdom of my learned brother Justice Tembo in two decisions cited by the Claimant. The application

a

being premised upon the alleged non-compliance with procedural rules, the Court has found the following dictum quite instructive in analysing the issues which have been raised by the present proceedings: in Ellina Silaju-v-Electricity Supply Corporation of Malawi Limited, Personal Injury Cause No. 348 of 2018 (unreported) Tembo, J made the following very pithy observations about the jurisdiction under Order 12 rule 23 as contrasted with that under Order 7 rules 6 and 7 of CPR 2017: This brings the Court to consider the correctness of the procedure adopted in this matter and in the Jafali case. This is a matter that was not raised by the parties, but which nonetheless exercised this Court's mind on the present application. This Court observes that what in effect happened in the Jafali case, and what the claimant sought in this matter, was to strike out the defence for non-compliance with Order 7 rules 6 and 7 of the Courts (High Court) (Civil Procedure) Rules. There is clearly an overlap in the Court's jurisdiction on an application to strike out a defence for non-compliance with the Rules, in this case, Order 7 rules 6 and 7 of the Courts (High Court) (Civil Procedure) Rules and an application for summary judgment under Order 12 rule 23(1) of the Courts (High Court) (Civil Procedure) Rules which provides that a claimant may apply to the court for summary judgment where the defendant has filed a defence but the claimant believes that the defendant does not have a real prospect of defending the claim. It is important that the two procedures are recognised and properly employed. This Court is of the view that summary judgment procedure is not an appropriate procedure where the allegation is that, in reality, the claimant seeks to strike out a defence for non-compliance with the Rules, in this case Order 7 rules 6 and 7 of the Courts (High Court) (Civil Procedure) Rules. The appropriate procedure in this case should have been to strike out the defence for non-compliance with the Rules, in this case, Order 7 rules 6 and 7 of the Courts (High Court) (Civil Procedure) Rules. And the application should have been taken out under Order 2 rule 3 of the Courts (High Court) (Civil Procedure) Rules which deals with noncompliance with the Rules. That application would have concentrated the parties’ attention properly on an examination of the defence herein and whether it was couched in compliance with the relevant rules, in this case, Order 7 rules 6 and 7 of the Courts (High Court) (Civil Procedure) Rules. (Emphasis supplied)

6. The distinction between the two jurisdictions is not a matter of semantics; it goes to the root of what legal issues (and therefore the questions implicated and the nature of evidence, if any) are relevant for judicial consideration (and therefore require attention of the parties) when dealing with which application. The learned Judge went on to explain this point as follows:

There is persuasive authority for treating applications for striking out a statement of case for non-compliance with the rules and applications for summary judgment differently regardless of the fact that there is an overlap in the two jurisdictions. This persuasive authority relates to the corresponding similar procedures that are provided under Civil Procedure Rules part 3.4.2 (a) for striking out statement of case and Civil Procedure part 24 for summary judgment in England. It has been persuasively stated in Saeed and another-v-lbrahim and others [2018] EWHC 3 (Ch) that in considering the two jurisdiction, namely to strike out a statement of case and for summary judgment An application under CPR 3.4 (2) (a) focuses exclusively on the statement of case, whereas an application under CPR 24 allows the court to look at the claim itself, the defence, and all the relevant evidence. It was therefore not appropriate to apply for summary judgment and to focus only on the statement of case without regard to any evidence of the parties on this application. (Emphasis supplied).

7. Later on, in the case of Francis Gondwe-v-John Matiyasi, Personal Injury Cause No. 441 of 2012(unreported) Tembo, J reiterated the conclusion that

Where a party is of the view that another party's statement of case in defence is lacking, as is alleged in this matter, then an appropriate application to strike out the defence for the alleged irregularity ought to be made in that regard to zero in on the impugned irregularity in the defence but nota summary judgment application.

This Court is buttressed in its view above considering the discussion of a similarly worded English Rule, CPR 24, providing for summary judgment in the case of Easyair Limited-v-Opal Telecom Ltd [2009] EWHC 339 (Ch)...where Mr. Justice Lewison stated a number of points for the Court’s consideration on a summary judgment application, namely, whether a claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.

8. Inthe present proceedings, it is quite instructive that the defendant’s skeletal arguments have focused exclusively to a discussion of the legal principles applicable to summary judgment applications; there is absolutely nothing about applications for non-compliance with the rules, although that is one aspect of the claimant’s case. Such confusion is inevitable where, as in the present case, the applicant has chosen to combine what should be distinct procedures in seeking his remedy. As the quotations cited earlier indicate, for noncompliance with the rules, the Court need only examine the statement of case (or pleadings as formerly known); as contrasted with an examination of the available evidence when it comes to summary judgment proceedings. In other words, the claimant’s failure to choose one pathway for his application renders the present proceedings quite irregular.

9. The principal basis of this application is that the Defendant’s defence does not comply with the procedural requirements governing pleadings. A party relying on another’s non-compliance must itself observe the applicable rules before its request can be considered, much less granted. By wantonly combining distinct procedural remedies, the Claimant has. made the application unwieldy and unsustainable. The Court would therefore dismiss it as procedurally irregular and substantively unclear, without examining the remaining

Issues

The Claimant ought to have pursued a single, proper procedural route.

The present application is hereby dismissed with costs. Made in Chambers this 11" day of June 2026 at Blantyre. eal C.J. Kaghale; PhD