THE Court of Appeal has refused to stay proceedings in a matter Chishimba Kambwili has renewed his application for leave to commence judicial review proceedings against principal resident magistrate David Simusamba’s refusal to recuse himself from handling the matter in which the former is facing charges of forgery, uttering a false document and giving false information to a public officer.
Solicitor General Abraham Mwansa had asked the court to stay the proceedings pending his Appeal to the Supreme Court against justice Chalwe Mchenga’s decision to dismiss the preliminary issue he raised in regards to the court’s jurisdiction to entertain Kambwili’s application when it was filed out of time.
In this matter, the NDC leader has renewed his application for judicial review before the Court of Appeal and has cited the Attorney General as respondent and ex-parte magistrate David Simusamba, seeking a declaration that the latter’s decision to decline to recuse himself from presiding over the matter before him is unlawful and irrational.
Kambwili wants an order of prohibition, restraining magistrate Simusamba from continuing to preside over his case and an order of mandamus directing him to recuse himself forthwith and surrender the case record to the chief resident magistrate for re-allocation to another magistrate.
He is seeking an order that the leave if granted should operate as a stay of magistrate Simusamba’s decision until determination of the application or until the court orders otherwise.
In September this year, judge Chitabo refused to grant Kambwili leave to commence judicial review proceedings against magistrate Simusamba.
He said magistrate Simusamba acted within his judicial powers when he refused to disqualify himself from handling the matter as well as refer it to the High Court, therefore, Kambwili, having been aggrieved with the court’s decision, should have appealed against it to the superior court.
Mwansa had raised a preliminary issue arguing that Kambwili’s application to renew his judicial review application challenging magistrate Simusamba’s decision was filed out of time and he did not seek leave of court to renew the said application.
Justice Mchenga, however, dismissed the preliminary issue raised by Mwansa indicating that the Court of Appeal had no jurisdiction to hear Kambwili’s application.
Aggrieved with the court’s ruling, Mwansa said the State wished to file an application for leave to appeal in the Supreme Court against the court’s decision to dismiss its preliminary issue.
He said the State needed more time to go through the court’s ruling which dismissed its preliminary issue before filing a notice of appeal.
But Kambwili’s lawyer Musa Mwenye objected to the application saying the case was urgent as magistrate Simusamba was scheduled to pass judgment in the matter on October 12.
Judge Mchenga directed Mwansa to file the notice of motion on October 2.
When the matter came up for hearing of the notice to appeal, Mwansa said the limit set for the court to grant leave to appeal to the Supreme Court, set out in section 13 of the Court of Appeal Act, had been met.
He said the intended appeal raises a point of law of public importance.
In response, Kambwili’s lawyer Eddie Mwitwa of Mwenye and Mwitwa advocates argued that the intended appeal does not raise a point of law of public importance, neither does it have prospects of succeeding.
In their ruling, Court of Appeal judges Chalwe Mchenga, Petronella Ngulube and Mwiinde Siavwapa said the intended appeal does not raise any point of public importance.
“We are of the view that the threshold for the grant of leave to appeal as is set out in Section 13 of the Court of Appeal Act has not been met. Consequently we decline to grant the leave sought. Having declined to grant the leave to appeal, the application for the stay falls off,” ruled the court.