Court of Appeal rejects Kambwili application for judicial review

THE Court of Appeal has declined to grant Chishimba Kambwili leave to renew his application for judicial review challenging the decision of Lusaka principal magistrate, David Simusamba’s refusal to recuse himself from handling his forgery case and refer it to the High Court.

Mr Kambwili was in the Lusaka magistrate court charged with three counts of forgery, uttering a false document and giving false information to a public officer in relation to Mwamona Technical Services Company Limited.

He was found with a case to answer and placed on his defense , but he asked Mr Simusamba to recuse himself from handling the case for alleged biasness but the latter refused to do so or refer the matter to High Court.

As the embattled National Democratic Congress leader was waiting for a ruling of his application after the Court of Appeal hearing, magistrate Simusamba sentenced him to 12 months in two of the three counts which he was facing but the same would run concurrently.

In its ruling delivered by Court of Appeal deputy president, Chalwe Mchenga on behalf of Judge Petronella Ngulube yesterday, the court stated that the refusal by Mr Simusamba to refer the case to the High court on Constitutional reference could not be the subject of judicial review.

Mr Justice Mchenga said that since the court found that both claims were amenable to alternative statutory procedure for review, it found that the case was not one in which it was appropriate to grant leave to institute judicial review proceedings.

The Court said that judicial review may be available where there were exceptional circumstances but the majority ruling found no exceptional circumstance to grant relief by way of judicial review.

The ruling stated that Mr Kambwili still had an alternative avenue of appealing the Magistrate’s final decision in an event that he was not happy with it since he had alleged biasness from the trial magistrate .

And in his dissenting ruling, Judge Mwiinde Siavwapa said after his analysis of the issue at hand, he would have granted Mr Kambwili leave to appeal against Mr Simusamba's decision .

Mr Justice Siavwapa said the circumstances of the case justified the need for Mr Simusamba to recuse himself and refer the matter to the High Court for determination of constitutional issues.

"It is my considered view that the trial magistrate ought to have recused himself in view of the gravity of the allegations against him whether they were true or not should have left it to another tribunal," he said .