LUSAKA principal resident magistrate David Simusamba has dismissed Chishimba Kambwili’s notice of appeal to the High Court challenging his conviction and sentencing for being irregular.
Kambwili’s bail application pending appeal to the High Court equally fell off following the rejection of his notice to appeal because according to the law, his application for bail ought to be accompanied by a notice of appeal.
Magistrate Simusamba ordered that Kambwili would continue serving his sentence until he complies with the procedure in applying for bail pending appeal to the High Court.
On October 14, 2020, magistrate Simusamba convicted and sentenced Kambwili to two years imprisonment with hard labor to run concurrently for forgery and uttering a false document in relation to the registration of his company, Mwamona Engineering and Technical Services Limited at Patent and Companies Registration Agency.
Kambwili, with the help of his lawyers, lodged an application for bail pending appeal to the High Court before magistrate Simusamba could deliver his judgment and sentence.
On October 21 when the matter came up for hearing of the bail application, Kambwili’s lawyer Eddie Mwitwa of Mwenye and Mwitwa advocates, who stood in for Musa Mwenye, informed court that the defence filed amended documents relating to the bail application and the notice of appeal in the court registry.
Magistrate Simusamba said he was before court to hear the admission of the summons for bail pending appeal and that he did not make any directions for amendments.
Mwitwa then said there were minor mistakes on the documents that were filed on October 14 as there were some inaccurate particulars such as the date of conviction.
Magistrate Simusamba said the notice of appeal was filed before the matter was adjourned which was contrary to the rules of practice and procedure as he had not concluded to render his judgment, neither had he risen when the said notice was filed.
“How did the accused know that he was going to be convicted? Why is it that I was presented with a notice of appeal before I could finish delivering judgment, at the time I had not yet risen?” magistrate Simusamba questioned. “Can you show cause why this was filed before I could even rise?”
In response, Mwitwa requested to address the court in chambers as the bail application was supposed to be a chamber matter.
After recess, Mwitwa asked magistrate Simusamba to consider the bail application as Keith Mweemba, Gilbert Phiri and Christopher Mundia u-turned against their decision to comply with the court’s guidance which was given in chambers.
In his ruling, magistrate Simusamba said “since you deviated from my guidance, I will deliver my ruling on Thursday on whether or not the application for bail is competent before me or defective and whether or not I will proceed to hear it. I will give a reason why I could not go ahead to hear it today in my ruling on Thursday.”
And when the matter came up for ruling yesterday, magistrate Simusamba said the procedure that ought to be followed under section 321 and 323 of the penal code in applying for bail was that after the court has delivered its last order in the case and adjourned the matter, either party, the convict or the DPP, could file a notice of appeal on any lawful grounds stated under Section 321 of the Criminal Procedure Code.
He said bail pending appeal could only be invoked after a notice of appeal has been successfully filed in accordance with section 332 of the penal code.
Magistrate Simusamba noted that the notice of appeal was filed before he could conclude delivering his judgment and sentence, which was contrary to the demands of section 321 of the CPC.
He said this was evidenced in both the grounds of appeal in the notice of appeal and the affidavit in support of summons for admission to bail pending appeal both filed on October 14.
“In the grounds of appeal, the convict (Kambwili) at ground 6 states that more grounds to follow upon perusal of judgment, meaning that at the time he was making the grounds of appeal, he had not perused the judgment or was simply not paying attention when it was simply being read out to him,” magistrate Simusamba said. “It is a strict requirement that the appellant signs the notice of appeal. One wonders at what point he signed the appeal for it purports to have been signed by him when he clearly had no such opportunity as he was listening to his judgment from the dock.”
Magistrate Simusamba said what was more shocking was the evidence in the affidavit in support of summons for admission to bail pending appeal where Kambwili said that on October 12 he was convicted by the court on the offenses of forgery and uttering a false document and he was currently in detention and Lusaka Central Correctional facility.
“Any person who has been following the proceedings would be gripped with shock, the date cited in the affidavit is October 12, 2020 which was initially set for judgment and later postponed to October 14,” said magistrate Simusamba.
He said what was most shocking was that Kambwili had appealed his acquittal on a charge of giving false information to a public officer despite having denied the charge during plea and throughout the proceedings.
“This is quite unprecedented in my 13 years of experience on the bench and I have never come across literature to that effect. The convict in his affidavit purports to have been detained at Lusaka Central Correctional facility when he was in fact in court on that day and not yet been committed to the said facility (Chimbokaila),” magistrate Simusamba said. “My interpretation to these unusual facts is that the notice of appeal was filed in court way before I could finish delivering my judgment and sentence in the case contrary to section 321 and 323 of the CPC and therefore irregular.”
Magistrate Simusamba ruled that owing to notice of appeal being irregular, there was no notice of appeal at all and consequently Kambwili could not invoke section 332 of CPC by applying for bail pending appeal without complying with sections 321 and 323 of CPC cap 88 of Laws of Zambia.
“I shall therefore not entertain any application for bail until such a time as the appeal procedure enshrined in the CPC is fully complied with. The convict will continue serving his sentence until further order of court or completion of the sentence,” said magistrate Simusamba.
Meanwhile, Kambwili’s lawyers have submitted a fresh application, which magistrate Simusamba would hear on Monday.