Former Attorney General Kalekeni Kaphale
* In Commercial Cause No. 259 of 2019 involving Prima Fuels Ltd, Attorney General against Total Malawi and Total Ltd
* Allowing his firm to continue acting for Total Malawi will, even to the most objective person, conjure injustice and unfairness to Prima Fuels
* Total Malawi Limited has several legal practitioners acting on their behalf in the case and should the company still desire to replace Messrs Kalekeni Kaphale Lawyers, they should do so within the next 30 days from the date of the order
By Duncan Mlanjira
High Court judge, Justice Trouble Kalua ordered yesterday, March 9, 2026, that Kalekeni Kachale should cease to represent the interests of Total Malawi Limited as the 1st defendant of the Commercial Cause No. 259 of 2019 involving Prima Fuels Ltd and the Attorney General against Total Malawi and Total Ltd — because he is conflicted having been involved in the case as Attorney General (AG) seven years ago.
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The case now involves Wapota Kita and E. Phiri as counsel for the 1st claimant, Prima Fuels Ltd, and current Attorney General Frank Mbeta for the Ministry of Finance & Economic Planning as 2nd claimant — with lawyers for Total Malawi as 1st defendant being Mordecai Msisha (SC), Noel Chalamanda, M. Chijere and N. Magubane-Matoga.
AG Mbeta brought before Justice Kalua for an order to have law firm Kalekeni Kaphale Lawyers to cease acting on behalf of Total Malawi Limited contending that “although to the best of his knowledge no formal notice of appointment of legal practitioners was filed with the Court, Dr Kaphale has, since 28th January 2026, been appearing in these proceedings, arguing applications and filing documents on behalf of the 1st defendant”.
Justice Kalua heard that the claimants’ legal representatives brought to Kaphale’s attention that January 31, 2020, the AG’s office wrote a letter to Prima Fuels Limited on the matter where Chizaso Eric Nyirongo, was sharing information on behalf of the AG “of evidential importance” with the then Prima Fuels’ lawyer, Joseph Kamkwasi, “aimed at making sure the case succeeds”.
The letter was exhibited as FFM 1, which indicated that the office of the AG under Kaphale “had in custody information to share with [Prima Fuels’] lawyers then”.
“It was obvious that Dr Kaphale was privy to information of evidential importance and, such being the case, it was against the Malawi Law Society Code of Ethics for him to act on behalf of the 1st defendant as he was conflicted,” observes Justice Kalua.
Justice Kalua
Thus this was the basis for current AG Mbeta that Kalekeni Kaphale Lawyers should be barred from acting on behalf of Prima Fuels but Kaphale opposed this in court, arguing that during his tenure as AG he used to delegate work to staff under him — and indicated that the FFM1 was not written or signed by him.
To the best of his recollection, he argued that never handled Prima Fuels’ claim or any correspondence with the AG’s office; and that “he never communicated with them or their lawyers and never got to possess any relevant material or confidential information in relation to this case as a matter of fact”.
“Dr Kaphale stated that he was never privy to news of any arbitration proceedings between the parties herein and no one showed him or brought to his attention any evidential material in that arbitration.
“Whilst he interacted with counsel Joseph Kamkwasi on a few other cases, it was never on the Prima Fuels matter. Dr Kaphale did also not recall interacting with counsel Nyirongo on this file or being shown documents by him within this file.”
Justice Kalua observed that “reading through FFM 1, it did not appear that there was any relevant confidential evidential material shared nor that counsel Nyirongo discussed the letter with him”.
“All this, he said, was mere supposition and he prayed that the application be dismissed,” says Justice Kalua, adding that counsel Nyirongo, who was principal secretary-legal) at the Office of the President and Cabinet, confirm he authored FFM1.
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But at the material time he was the Chief Legislative Counsel, head of the drafting section of the Ministry of Justice, a section under the AG’s department and that communication going outside the Ministry is signed off either by the Solicitor General and Secretary for Justice as the controlling officer or the AG as principal legal adviser to the Government.
Nyirongo also indicated in court that communication can also be signed off by a senior officer on behalf of the controlling officer thus a controlling officer cannot deny instructing a senior officer to author communication unless he proves fraud.
“Mr. Nyirongo stated that he discussed this matter with Dr Kaphale, who advised him to write the letter,” says Justice Kalua. “This being a huge claim there was no way he would have handled it alone when the Attorney General was still in office.
“The letter is on the Attorney General’s letterhead (which is different from the Solicitor General’s) and was signed off on behalf of the Attorney General. If the letter had been written on behalf of the Solicitor General as Dr Kaphale wants the Court to believe, it would have been signed off on behalf of the Solicitor General.
“It is probable that Dr Kaphale might have forgotten discussing the matter with counsel Nyirongo more than 6 years having elapsed since the letter was written but that a document speaks for itself.”
Attorney General Frank Mbeta
Justice Kalua thus ordered Kaphale, through the law firm Kalekeni Kaphale Lawyers, to forthwith cease acting for Prima Fuels in the case, saying allowing him to do so “would perpetrate the appearance of conflict of interest”.
“Whilst it may very well be that he never personally became privy to confidential information that can be used to the detriment of the 1st Claimant, the mere possibility of this being so smacks unfairness and invokes the conflict of interest concerns. “Applying the principle that justice must not only be done but also be seen to be done, we also do find that it will be inappropriate for Dr Kaphale, SC to continue acting for the 1st Defendant.
“Allowing his firm to continue acting for the 1st Defendant will, even to the most objective person, conjure an impression of conflict of interest and consequently, injustice and unfairness to the 1st Claimant.”
In conclusion of his judgement made in chambers yesterday March 9, 2026, Justice Kalua took note that Total Malawi Limited as 1st defendant “has several legal practitioners acting on their behalf” in the case and that should the company “still desire to replace Messrs Kalekeni Kaphale Lawyers, they should do so within the next 30 days from the date of this order”.
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