LUSAKA principal resident magistrate David Simusamba says he will state his position on Chishimba Kambwili’s bail application, pending appeal to the High Court on October 22.
Magistrate Simusamba said it was irregular for Kambwili’s lawyers to file a notice of appeal to challenge his judgment before he could conclude reading it.
He said he would indicate in his ruling tomorrow why he could not hear the bail application yesterday.
On October 14, 2020, Kambwili was convicted and sentenced to 12 months imprisonment with hard labour for forgery and uttering a false documentrelating to the registration of his company Mwamona Engineering and Technical Services.
Before magistrate Simusamba could rise, state counsel Musa Mwenye and Keith Mweemba said Kambwili had lodged an application for bail pending appeal to the High Court as the outcome of the judgement was anticipated.
Magistrate Simusamba wondered what time the notice of Appeal to the High Court against his judgment had been filed when he had just delivered it.
He directed that the application for bail pending appeal be determined on October 20.
When the matter came up for hearing of the bail application yesterday, Kambwili’s lawyer Eddie Mwitwa of Mwenye and Mwitwa advocates informed the 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 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 explained that he was not before court on the material day and requested to address the court in chambers as the bail application was supposed to be a chamber matter.
After recess, Mwitwa asked agistrate Simusamba to consider the bail application.
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.”
Kambwili was not before court for his bail hearing as the prison authority did not have documents indicating that he was supposed to appear before court.
According to the notice of appeal, Kambwili wants to challenge his conviction and sentencing on grounds that magistrate Simusamba erred in law and fact when he declined to recuse himself and proceeded to hear the matter and convicted him notwithstanding the existence of [conditions] affecting independence and impartiality.
In his five summarised grounds of appeal, Kambwili contends that magistrate Simusamba erred in law and fact when he declined to refer his forgery case to the High Court for determination on whether or not his right to a fair trial before an independent and impartial court had been, was being and going to be infringed.
He said the court gravely misdirected itself in law and fact when it convicted him against the weight of the evidence on record.
The NDC leader contends that magistrate Simusamba erred in law and fact when he prematurely curtailed his continued defense in the forgery case and ordered the immediate closure of the defense when he (Kambwili) had applied for an adjournment.
Kambwili further stated that magistrate Simusamba erred in law and fact when he conducted trial in contumelious disregard and violation of Article 18 of the Constitution as regards the tenets of fair hearing, impartiality and adequate time and facilities for preparation of defence.