Application for Stay of Execution Dismissed in Chimwendo Banda Case

The Malawi Supreme Court of Appeal has dismissed an application by Hon. Richard Chimwendo Banda seeking a stay or suspension of execution of a remand warrant issued against him.

The ruling was delivered on 9 January 2026 by Justice of Appeal Dorothy NyaKaunda Kamanga, SC, in MSCA Miscellaneous Criminal Application No. 1 of 2026, in the matter of Hon. Richard Chimwendo Banda v The Republic.

Hon. Chimwendo Banda was arrested in December 2025 and subsequently applied for a stay of execution of his remand warrant while pursuing an appeal. He argued that his continued detention was unlawful on the grounds that he had not been formally charged.

In response, the State raised a preliminary objection, contending that the Supreme Court of Appeal had no jurisdiction to hear the matter. The prosecution further argued that the application amounted to an abuse of court process, as the High Court of Malawi had not yet made a final determination on the applicant’s bail application.

The central question before the Court was whether the Malawi Supreme Court of Appeal had the jurisdiction to grant a stay or suspension of execution of a remand warrant.

In its determination, the Court upheld the State’s objection and made several key findings: The Supreme Court of Appeal lacked jurisdiction to entertain the application because there was no competent appeal before it. The Court emphasized that jurisdiction is a fundamental legal requirement and not a mere technicality that can be overlooked.

It noted that its criminal appellate jurisdiction is limited to final decisions of the High Court. A remand warrant, the Court held, is a provisional or interlocutory order that does not finally determine the rights of the parties.

The concept of a stay or suspension of execution applies to final judgments or sentences, such as warrants of commitment following conviction, and does not extend to remand warrants.

The applicant failed to comply with Order I, Rule 18 of the Supreme Court of Appeal Rules, which requires an applicant to first seek a stay from the High Court before approaching the Supreme Court of Appeal.  As there was no final decision from the High Court, the application was deemed premature and an abuse of the court process.

The Court clarified that the Malawi Supreme Court of Appeal has no jurisdiction to grant a stay or suspension of execution in respect of a remand warrant, as such a warrant is an interlocutory order and not a final decision.

The Court upheld the preliminary objection raised by the State and dismissed Hon. Chimwendo Banda’s summons for a stay or suspension of execution of the remand warrant.

The ruling reinforces the limits of the Supreme Court of Appeal’s criminal jurisdiction and underscores the requirement that litigants must exhaust proceedings in the High Court before seeking relief at the appellate level.