Zim GBC News | Crimes and Courts
HARARE – The High Court has granted bail to local businessman Tinaapi Nyawo, pending his appeal against a three-year fraud conviction, in a case that has taken a dramatic legal turn following the promotion of the presiding judicial officer.
Nyawo was convicted of fraud involving a US$65,000 motor vehicle and sentenced to an effective three years in prison by former regional magistrate Clever Tsikwa. The sentence was delivered just two days after Tsikwa’s elevation to a Judge of the Labour Court.
Represented by lawyer Admire Rubaya, Nyawo successfully argued that his appeal has strong prospects because the trial proceedings were rendered a nullity. The core of the application hinged on the claim that Tsikwa lost jurisdiction the moment his appointment as a judge was gazetted.
“Justice Tsikwa could not validly discharge the functions of a Magistrate relating to the Applicant’s criminal matter. Thus, once a Magistrate resigns, even consequent to appointment to a higher office, he becomes functus officio, loses jurisdiction and the proceedings before him become a nullity,” argued Rubaya in the application.
Rubaya further contended that the subsequent handling of the case by Magistrate Chakanyuka was also invalid. He asserted that Magistrate Chakanyuka presided over sentencing after bestowing a verdict prepared by the now-Judge Tsikwa, a process he described as “brazenly grossly irregular.”
“The Court a quo per Chakanyuka F. Esq could not validly sentence the Applicant in circumstances where the proceedings leading to the conviction in the first place were null and void,”
Rubaya argued, maintaining that the trial should have started afresh before a new judicial officer.
Justice Happias Zhou of the High Court granted Nyawo US$300 bail, ordering him to continue residing at his given address and to report to the police once a month pending the outcome of his appeal.
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