A second attempt to stop Chief Justice Luke Malaba exercising his authority pending the outcome of a Supreme Court appeal ended yesterday when NGO Forum director Mr Musa Kika withdrew his latest urgent High Court application just an hour before the case management.
The High Court last month ruled that the Chief Justice did not have the right laid out in the latest constitutional amendment to opt to continue in office until he was 75, but Justice, Legal and Parliamentary Affairs Minister and the Attorney-General noted an appeal against the decision, effectively suspending the lower court’s order.
Following the noting of appeal, CJ Malaba returned to work, a development that upset Mr Kika, the leader of the original application to block the Chief Justice from continuing in the post after he turned 70, who then unsuccessfully sought another High Court order for the top judge to be found in contempt of court and committed to civil imprisonment for six months.
After losing that application after the two judges found that a long-settled law did stay judgments once an appeal was noted, Mr Kika again approached the High Court, this time seeking leave to execute the May 15 judgment pending appeal.
But just an hour before the case management meeting, set for 2pm yesterday before Justices Esther Muremba, Pisirayi Kwenda and Paul Musithu, Mr Kika, through his legal counsel, withdrew the application without giving reasons.
He tendered wasted costs of the suit.
The High Court last week ruled that CJ Malaba was not in contempt of court, when he resumed his judicial functions after an appeal to the Supreme Court was noted against the earlier High Court decision that the constitutional amendment giving him the option of five more years of service did not apply to him and other senior judges.
The judgment confirmed that the noting of an appeal automatically suspends the execution of any judgment or decision appealed against, including the declaratory order on May 15, and so dismissed the urgent application Mr Kika was seeking.
Two High Court judges, Justices Amy Tsanga and Sylvia Chirawu-Mugomba dismissed the urgent application by Mr Kika, for lack of merit.