INCARCERATED NDC leader Chishimba Kambwili’s application for bail, pending appeal, could not be heard yesterday morning as Lusaka Principal Resident Magistrate David Simusamba has adjourned the matter to Thursday for ruling.
Magistrate Simusamba is expected to rule on whether or not Kambwili’s application for bail is competent before him and whether or not he can proceed to hear it.
Meanwhile, Kambwili has filed five grounds of appeal in the Lusaka High Court against his conviction and sentence, among them that Magistrate Simusamba gravely misdirected himself both in law and fact when he convicted him against the weight of the evidence on record.
He has also argued that the learned Magistrate in the court below erred in both law and fact when he prematurely curtailed his continued defence and ordered immediate closure of defence when he (Kambwili) had applied to adjourn the matter.
Kambwili has also argued, among other grounds, that the learned Magistrate in the court below erred in both law and fact when he declined to recuse himself and proceeded to hear the matter and convict him notwithstanding the existence of circumstances affecting his independence and impartiality.
Last Wednesday, Magistrate Simusamba convicted and sentenced Kambwili to 12 months’ imprisonment with hard labour on charges of forgery and uttering a false document.
He, however, acquitted him on the other charge of giving false information to a public officer.
Kambwili was facing charges of forgery, uttering a false document and giving false information to a public officer in relation to the registration of Mwamona Engineering and Technical Services following a complaint lodged by Economic and Equity Party (EEP) leader Chilufya Tayali in 2018.
Magistrate Simusamba had set yesterday for hearing of Kambwili’s bail application after one of the defence lawyers in the matter Musa Mwenye, State Counsel, said in the previous session that the defence wanted to apply for bail, pending appeal.
But when the matter came up for hearing of the bail application, pending appeal to the High Court, Tuesday morning, Magistrate Simusamba adjourned the matter to Thursday morning.
He adjourned the case for a ruling on whether or not the application for bail was competent before him.
“I have to put it in my ruling on whether or not the application is competent before me and whether or not I can proceed to hear it,” Magistrate Simusamba said.
Earlier on, one of the defence lawyers Eddie Mwitwa confirmed to the Court that the defence had filed a notice of appeal.
He, however, added that it was noticed after filing the documents (notice to appeal and application for bail) that there were some inaccurate particulars on the documents such as the date of conviction.
But Magistrate Simusamba raised concern that the defence had filed the notice of appeal before he could even finish delivering his judgement on October 14.
He wondered how Kambwili could file a notice of appeal before he (Magistrate Simusamba) could pronounce the conviction and adjourn the matter.
Magistrate Simusamba said the law required that Kambwili would only file an application for notice to appeal and application for bail after the Court had convicted and sentenced him.
“The issue that I raise concern with State Counsel is that the notice [to appeal] was filed before the matter had adjourned. This notice together with the summons were filed at the time when I had not risen,” said Magistrate Simusamba.
