Shocking reason why Kambwili’s bail application was denied
Magistrate Simusamba denied Kambwili bail pending appeal on grounds that he did not comply with sections 321 and 323 of the Crinimal Procedural Code (CPC).
He said he was not going to entertain any application for bail pending appeal until such a time as the appeal procedure enshrined in the said CPC is fully complied with.
Magistrate Simusamba further ordered that Kambwili will continue serving his sentence until his further order or completion of the sentence.
He also observed that Kambwili’s Notice of Appeal was filed into court way before he could finish pronouncing both his judgment and sentence in the case contrary to the demands of sections 321 and 323 of the CPC, saying this made it irregular.
He said since the notice of Appeal was irregular, he would hold that, there was no Notice of Appeal at all.
He said Kambwili cannot invoke section 332 of the CPC by applying for bail pending appeal without complying with sections section 321and 323 of the CPC.
“My interpretation of these unusual facts is that the notice of appeal was filed into court way before I could finish pronouncing both my judgement and sentence in the case contrary to the demands of sections 321 and 323 of the CPC and therefore, irregular. The notice of appeal being irregular, I therefore, hold here that there was no notice of appeal at all, ” magistrate Simusamba ruled.
“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. I shall therefore, not entertain any application for bail pending appeal until such a time as the appeal procedure enshrined in the said CPC is fully complied with. The convict will continue serving his sentence until further order of court or completion of the sentence.”
Magistrate Simusamba said the procedure to follow under sections 321 and 323 of the penal code in simple language was that after the court had delivered its last order in the case and adjourned the matter, either party to the case, the convict or Director of Public Prosecutions (DPP) could file a notice of appeal on any lawful grounds stated under section 321.
He said it was only after a notice of appeal had been successfully filed that section 332 of the penal code-bail pending appeal could be invoked.
“In the present case the Notice of Appeal was clearly filed before I could conclude the delivery of judgement and sentence. A position which is contrary to the demands of section 321 of the CPC. Evidence of this fact can be seen 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, 2020,” he said
He said in the grounds of Appeal, the convict stated at ground six that more grounds to follow upon perusal of judgement.
Magistrate Simusamba said the above meant that at the time Kambwili was making the grounds of Appeal, he had not perused the judgement or he was simply not paying attention when it was being read out to him.
He added that it was a 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 judgement from the dock,” he said.
Magistrate Simusamba said what was even more shocking was the evidence in the affidavit in support of summons for admission to bail pending appeal, at paragraph 3, where Kambwili stated that “on October 12, 2020, I was convicted by this honourable court of the offences of forgery; uttering false documents; and giving false information to a public officer. And I’m currently in detention at Lusaka Central correctional facility”.
He said any person who has been following these proceedings and reading the foregoing would most definitely be gripped with shock.
“Firstly, the date cited in that affidavit is October 12, 2020, which is the date that was initially set for judgement and later postponed to October 14. Secondly and perhaps most shocking is that the convict 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 through out 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,” magistrate Simusamba said.
He said Kambwili in his affidavit purports to have to been detained at Lusaka Central facility when he was in fact in court on that day and not yet been committed to the said facility.
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