By CHARLES MUSONDA
IN a momentous irregularity, Chishimba Kambwili has appealed against an offence for which he was acquitted.
And this is after Deputy High Court Registrar David Simusamba, sitting as Principal Resident Magistrate discovered and exposed more irregularities yesterday.
Magistrate Simusamba confessed that in his 13 years on the bench he had never come across a defendant who appealed against his acquittal.
The blunder, he said, was indicative of the grave irregularities in the application which was prepared long before judgment was delivered.
This, he said was irregular and therefore unacceptable and that he shall not entertain any application for bail pending appeal by Kambwili until he fully complies with appeal procedure enshrined in the Criminal Procedure Code (CPC).
Making a ruling on irregularities in Kambwili’s notice of appeal yesterday, Mr. Simusamba, who sits as Principal Resident Magistrate in the matter, said the convict will continue serving his sentence until further court order or completion of the sentence.
“The notice being irregular, I therefore hold that there was no notice of appeal at all. Consequently the convict cannot invoke Section 332 of the CPC by applying for bail pending appeal without complying with Sections 321 and 323 of the CPC,” Mr. Simusamba said.
He said Kambwili’s notice of appeal was filed way before he could finish delivery of judgment and sentence, a position which is contrary to the demands of Section 321 of the CPC.
He said evidence of this fact can be seen in the grounds of appeal contained in the notice of appeal and the affidavit in support of summons for admission to bail pending appeal both filed on October 14, 2020.
Mr. Simusamba said in the grounds of appeal Kambwili said, “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 he was simply not paying attention when it was being read out to him.
He said it is a requirement that the appellant signs the notice of appeal and one wonders at what point he signed the notice of appeal as 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.
He said what is even more shocking is the evidence in the affidavit in support of summons for admission to bail pending appeal in which Kambwili says he was convicted for forgery, uttering false documents, and giving false information to a public officer on October 12, 2020, the date which was initially set for judgment before it was postponed to October 14, 2020.
Mr. Simusamba said the most shocking is that Kambwili has appealed against his acquittal on the charge of giving false information to a public officer despite having denied the charge at the time he took plea and throughout his trial.
“This is quite unprecedented in my 13 years of experience on the Bench and I have equally never come across literature to that effect. In addition to that 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 had not yet been committed to the same facility. My interpretation of these unusual facts is that the notice of appeal was filed into court way before the court could finish pronouncing his judgment and sentence in the case,” Mr Simusamba said.
By CHARLES MUSONDA