Kasambara files appeal to Supreme Court of Malawi: Judge Mtambo made multiple ‘errors in law’, ignored evidence

Former justice minister Ralph Kasambara (Senior Counsel), convicted last month  alongside Pika Manondo and Macdonald Kumwembe on the charge of conspiracy to murder former Ministry of Finance budget director Paul Mphwiyo has filed a notice of appeal to the Supreme Court of Malawi against conviction.

Kasambara: Files appeal

Kasambara: Files appeal

Mtambo also found Manondo, a businessperson and Kumwembe, a former Malawi Defence Force (MDF) soldier, guilty of attempted murder in relation to Mphwiyo’s shooting on September 13 2013 outside the gate of his Area 43 residence in Lilongwe.

In a notice of appeal filed at Supreme Court, Kasambara and two other convicts now prisoners remanded at Maula Prison awaiting their custodial sentences, argue that  High Court judge Michael Mtambo  made an error in law one too many for reaching a guilty verdict.

In the notice, the trio argue that Judge Mtambo “erred in law and fact” in holding that the prosecution had made out a case to answer for the Appellants when the prosecution had failed to prove Manondo and Kumwembe had been identified as the persons at the scene of shooting.

They also argue that prosecution failed to prove that Kasambara, Manondo and Kumwembe had agreed to carry out an unlawful act of killing Mphwiyo.

“And the prosecution’s evidence was so contradictory that it could not make out a prima facie case of case to answer,” reads the notice of appeal.

The convicts also contend that the trial judge erred in law and fact in holding that the mere fact that the Manondo  and Kasambara  were communicating via mobile phones before and after the shooting of Mphwiyo  was conclusive evidence that these two people were conspiring to kill.

The appellants also argue that Judge Mtambo erred in law in holding that Kumwembe  had not given adequate notice of alibi when he told police officers who took his statement under caution  that at material time he was at Tete in the Republic of Mozambique and produced Mozambican currency, US Dollars and his travelling passport with official immigration stamps for both Republics of Malawi and Mozambique demonstrating that he left Malawi and entered Mozambique on 30th August, 2013 and left Mozambique and entered Malawi on 14th September, 2013.

The  appellants  point out that judge Mtambo made fundamental errors  in law, allowing the prosecution to call for rebuttal witness when the evidence that Kumwembe had adduced had not produced any new evidence that the prosecution were not aware of.

Mtambo is faulted holding that the official stamps by Immigration Officials in the passport of Kumwembe were not admissible as they required to be authenticated notwithstanding the fact that an Immigration Official called by the prosecution had testified that the stamps were genuine Immigration official’s stamps.

“The trial judge erred in law and fact in allowing the prosecution to adduce rebuttal evidence that only related to issue of credibility and not disapproving the defence of alibi,” reads the notice of appeal.

The notice also indicate that Mtambo erred in law and fact in accepting the version of the rebuttal witnesses when the same was so discredited by cross examination as to be unreliable.

The appeal bid also faults the trial judge in holding that a housemaid of Kasmbara, who was unceremoniously dismissed from her job in September 2013, Jesse Musa Kafuwe, was a reliable witness when in fact her testimony had been contradicted on material points by witnesses who included chief secretary in government George Mkondiwa and Airtel witnesses as well as  that several aspects of her written police statement were disowned by her in court.

Mtambo is also faulted  in holding that Manondo was under a duty to comply with Section 193 of the Criminal Procedure and Evidence Code Cap 8:01 when the case against him had started on conspiracy to murder and not attempted murder.

The judge is said to have errored in law by holding that Kumwembe and Manondo had been properly identified by call logs as the person that attempted to kill Mphwiyo when Mtambo had already made a finding that there was no proper identification of them by the gun shot survivor.

In holding that there was evidence of conspiracy to commit murder simply because there were call logs showing communication between the Kumwembe and Manondo  and also Kasamabra when the Kumwembe and Manondo denied ever conspiring on the phone and no witness had lead any information or evidence as to what the appellants were talking about on the phone, the judge errored, the appeal notice indicates.

The judge is also faulted  in holding that the motive of attempting to kill Mphiwyo was that he was being pressurized to make some payments to friends of Kasambara when in fact “no evidence was led “ that any of the alleged beneficiaries were friends of the former justice minister.

It said both prosecution’s witnesses and defence witnesses had proved that there were no such threats but that Mphwiyo and Kasambara  were friends and Mtambo himself had in his ruling of case to answer refused to accept this theory of the case by the prosecution.

The appeal says  the call log evidence had  only located Kumwembe and Manondo  to have been Lilongwe on the morning of 13th September, 2013 when Mphiwyo was shot at in the evening of the September 12.

Mtambo has also been fingured to have made an error in law forrefusing to recuse himself “when there was ample evidence of him being apparently biased”.

The appeal said Mtambo’s bias was “right from the start of the case all the way up to the time when he capriciously revoked the bail” for the Kumwe and Kasambara.

Mtambo’s controversial decision to find the three guilty brought attacks from many quarters and especially that his written judgement had not been made available.

He has however set August 22 2016 to hear submissions of both the State and the defence before handing out the length of custodial sentence.

Under the Penal Code, the offence of attempted murder carries a maximum sentence of life imprisonment whereas conspiracy to commit murder attracts a maximum jail term of 14 years.

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32 thoughts on “Kasambara files appeal to Supreme Court of Malawi: Judge Mtambo made multiple ‘errors in law’, ignored evidence”

  1. Tadala Themba says:

    Kasambara wanted Mtambo to recuse himself because he had already bribed other lawyers to rule the case in his favour. Most likely he has already bribed the supreme court judges. Nde ma judges/lawyers ake kuno have no spine. We saw this in the case where the bastard impregnated a woman and everybody was afraid to represent her. SIC! We Malawians know who Ralph is – if the supreme court judges are citizens of this country, they know who he is BUT they will pretend not to know. They can only fight with their concience.

    Well done Dr Mtambo. Whichever way the case goes, am proud that Malawi has at least one judge who can weather the storm and stand against all the odds. A rare son of this soil who is making me feel proud am a Malawian!

    If only we had two of your kind- we would be seing a different Malawi.

    May Jehova continue being your guide in your lonely battles and I pray for you everyday!

    Take comfort- Prophet Elijah when he saw the army looking for him told his servant : ‘He who is within me is greater than the one who is without’

  2. malawian girl says:

    Slap these criminals with maximum sentence please my Lord Mtabo. U have already done the best for justice . first time to see true justice coming out in Malawi. criminals have now space among the innocent.

  3. Mapwevupwevu says:

    Olo apange apili Rough Kasambara satuluka cheke-cheke thwaa makate Baibulo!

    Afera kunzande ndithu! Nalikukuti wachabechabe!

  4. timve samusa says:

    Amene muli ndi nthawi please tawerengani comment ya James Gogoda in short akuti Linda Gasa passport yake inasonyeza kuti anatuluka kupita ku Zimbabwe koma anapezeka ali okufa ku Mangochi. Mzimu wake uwuse mumtendere. Ndiye izi mukuti munthu anapita ku Mozambique ndimaloto eni eni. Maula igwire ntchito.

  5. hola kuda says:

    Palibe kutuluka kundende zigawenga zachabe chabe izi. Raphael ndi anzakewo anthu woopsa padziko lapansi.Ati kufuna kulemera kwambiri. Ndiye zibwenzi za Kasambara achina Rita, Aggie, Clare akundandaulatu mu Lilongwe ndi Mzuzu. Ine amandimvesa chisoni ndi mkazi wake kuti zazamupha ndi matenda abale anzanga? Amuna tamayesesani kusunga maliseche anu osati yavi yavi yavi kuzichosa ulemu. Ndichifukwa chake mumaganiza zokuba ndalama kuti muzisangalasa zibwenzi zanu. Akazi kwao ndikulandira olo zili zokuba. It’s high time akazi ayambe kifunsa mamuna kuti source ya ndalama akangoti cashgate oasalandira imbani phone kupolisi. Awa awolele ku Maula.

  6. James Gogoda says:

    I just want you people to remember this that the late Linda Gasa from Zimbabwe had her passport stamped that she had left Malawi for Zimbabwe when she was buried in Mangochi and the body was found (may her soul rest in peace)

    1. The Analyst says:

      Nzeru nkupangwa! You have done well James Gogoda, by seeing even further.
      . . . I wish somebody (with access to Mary Kachale – the DPP) could share this Linda Gasa case study, as they (Kachale, and her team) warm and stretch themselves up, for the appeal. Otherwise, the passport alibi, is ust as inane as nihile.

    2. Samuel says:

      Oh! yes. Komanso phuma ya Raphael ndiumboni waukulu kuti Mtambo walasapo ndithu. Abale osayembekeza pa 22 agasitepo bwanji kenako kuchita apilo. Zikanamveka. Akufuna kumuopseza Jaji chani?

  7. A chachanda Kulaga says:

    Raphael and the two did not get a fair trial, Mtambo should either ask for ground to settle his case with Raphael not this way, though in Malawi it is like this the high court should led by example not this scarp please. Prove beyond reasonable doubt that is fare not what you think and have as a judge, remember if everyone is to work like this who in this country would expect justice? Rapha has his relative who will also meet Mtambo in one way or another is Mtambo going to be happy if the same happen to him? This is the world and its round let wait and see

  8. mwahenga says:

    Leave Judge Mtambo alone. Malawians are very sleepy people and behind technology. The call logs are enough evidence that the three were communicating with another. The judge was clear that Kumwembe was in Area 43 during the night of Phiwyo shooting. Ask yourself. What was doing there at that late hour?

    Secondly, the guy claims he was in Mozambique when Phiwiyo was shot, but evidence through call logs shows he was in Malawi. For those who do not know, you can have your passport stamped on Malawian side and walk to the Mozambican side, have it stamped and then walk to Malawi again. The passport record will show that you are in Mozambique, but physically you are in Malawi. That is what Kumwembe did. He just stamped the passport on the Mozambican side and walked back to Malawi. Judge Mtambo is right when he said the alibi used was fake.

    Our borders are so porous that it even defeats the purpose of having a border. People just move back and forth. That is why people move without passport even to RSA. So these guys should cheat anyone that they did not commit the crime. They did.

    1. The Analyst says:

      O……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………..O
      A Malawi ndi anthu odabwitsa aise.Ndipo sungaamvetse. They always refuse to think mochuluka,
      . . . and yet tangible evidence of porosity of our borders; is well-documented, as you have rightly pointed out.
      Cant people see that . . .
      . . . the only thin and loose thread Kasambara is holding on to; is (according to him) lack of adequate evidence of his wanting to “disappear” Mphwiyo? and not that he and friends, did not want to kill?
      . . . And that this is because he (Kasambara) never expected that plans to twist evidence (by stamping passports) would be discovered by the more learned judge Mtambo?
      . . . Its just a wonder how an otherwise upright man can sympathise with evil.
      O……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………..O

  9. ANALYST says:

    Ralph Kasambara & Co stand a better chance of winning the appeal because of the way Justice Michael Mtambo handled (and continues to handle) the case. If I were Mtambo, I would have demanded Airtel and TNM to surrender to the court audio recordings of what Kasambara, Manondo and Kumwembe were discussing! They should have also paraded transcripts of the text messages they were sending to one another! Otherwise simply using a call-log is not enough to prove a prima-facie case against anyone! After all, if there is a big issue/news taking place, we all nowadays discuss it with friends and acquaintances – can that be evidence to convict us (including YOU -yes, yourself) of conspiracy in those issues? For example, take the death of Bingu wa Mutharika – how many of us called, whatsapped, SMSed, and facebooked our friends about those events in April 2012? Unless we see the contents of those communication otherwise, there can be no case! If I were Justice Mtambo, I would have summoned Airtel and/or TNm to surrender to the court the audios of the phone calls and transcripts of texts that these three exchanged with one another

  10. mwana says:

    bulandi bangala, osangonena kuti mumachinda mkazi wa judge bwanji? personal personal mpaka liti?

    1. Deal Boo says:

      If Kasambara can admit it, and is found to be true, then he can win the appeal in that the judge was likely to be biased. Koma akufuna kubisa tchimo limeneli. Pa mulandu timaulula chili chonse ngati ukufuna zikuyendere bwino. Ralph should know better. Koma mwina makani mwana ameneyu.

  11. The Analyst says:

    O…………………………………………………………………………………………………………………………………………………………………………………………………………………………………………….O
    Initially, the Kasambara team angrily decried unavailability of a copy of verdict on the premise they wanted to base their appeal on it. Unfortunately, the Malawi Law Society (using hired mouths), joined on the call (on false pretence, they wanted to disbar Kasambara). And yet, even without the said copy, an appeal has been made!
    . . . Are we not vindicated when we said the reasons for wanting the copy of the verdict were not geniune? and that they just wanted to buy public sympathy?, by making an indication that Mtambo is up to something sinister? . . . Nanga, how have they managed to come up with this unnecessarily too long and worded a document, if indeed they needed to have the hard copy of the verdict, in the first place? Liers!
    ……………………………………………………………………………….
    Can people see that Kasambara has no where in the appeal, denied his and friends’ involvement in wanting to evaporate Mphwiyo?, but only refutes the evidence which was brought before them?
    . . . Does this not tell us, the evidence was systematically annihilated hence making it as their only basis?
    . . . So Kasambara doesnt know that lack of proof is not proof of innocence?
    . . . Is it surprising therefore, to see Mtambo and Kasambara boiling at different degrees? as Mtambo (who has a PhD in law), knows this? and yet Kasambara (who has, who cares what) doesnt?
    ………………………………………………………………………………
    Whats known however is that Kasambara has played his game well (making noise, hiring mouths etc) and indeed managed to buy enough sympathy from the public and many people (certainly, even Judges at the Supreme Court); are now convinced that Mtambo somewhat, erred. A very crookedly shrewd lawyer!
    . . . This thus, presents a 50-50 chance of Kasambara kukakhala ku ndende or kupulumukira mkamwa mwa mbuzi. But this 50 percent probability (for kukakhala kundende) is statistically significantly big enough; and should cause worry to Kasambara and his drumbeaters.
    O……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………O

  12. Bikoko says:

    Am not a fan of Kasambara at all, but conviction of some one should be based on the FACTS and not atmosphere or enviroment? Ntambo was base Malawis atmosphere in additional to his personal issues to convict Kasambara on this case.
    Personaly (as some one who is not a lawyer) sees Kasambara take one way or another part in this case in which it has not been prooven by the state.
    Chilumgamo chapita padela apa!

  13. Stupid MPs says:

    Kasambara wakhala ndi ma personal issue kwa anthu angati?now its him nde muzimu bakila apa forsake murder should go to jail mulira muona simunati

  14. cornwell Dangaya Mulenga says:

    Let him face justice if he is not guilty its up to the courts to determine.Poti ndi wa ku mpoto ndiye a law society mutinyase?Atumbuka ndi atonga munakhala bwanji? wakumpoto salakwa??Isaaaa

    1. chiphwisi ntibule says:

      awuze ngozi anyapapi akumpotowa ase amvesesedi ndithu.hes highly esteemed among them northerners and they suppose hes got special powers SMH but nada..hes got this tym and he aint going anywhere but JAIL.

    2. Collezen Jamali says:

      Ayise ngati uli ndi nzeru just talk issues not being tribalistic. The issue here is not Mtambo or Kasambala NOT even your good tribe or others bad tribes BUT the issue is MALAWI. Tonse ndife amodzi let the courts do their job with impartiality. Not the Nosense you are commenting here. I am from the north I work here in the south not as a foreigner but a proud Malawian. GO to the North its very rear to hear from a northerner blaspheming someone from south or central, am not saying kuti si onse from the north are good NO but they are very few who think like the way you think – Sorry. DONT BE SAVAGE. If you are able to have access to nyasa times webpage it looks ndiwe munthu wozindikira koma mwina sukulu sinakupindulire. Think twice before commenting next time.

      Ngati ndakulakwira undikhululukire.

  15. chiphwisi ntibule says:

    we 17 million plus people in this Nation of Malawi, how special are the three of u to have just been selected at random in connection with that mphwiyo shit??? musamayese mapwaxy inu kalipo kalipo komwe munapangapo pankhaniyi..muzatiuza mukazakha mazi bwinobwino kundendeko sikulina ndithu

  16. mwana mulopwana says:

    mtambo sangamake apa, ,

  17. Pirates says:

    Whether Kasambara survives this or not, the future for judge mtambo’s career is as opaque and cloudy with vengeance and retribution.

  18. Mfana odzisata says:

    The bias was there, even if the accused were guilty of the offences.
    If the judge had personal issues with Ralph, which appeared obvious, then he should have recused himself. Justice might not have been served.
    I am not a fan of Ralph, but I would not be happy for him to languish in jail just because the judge who heard his case had a personal vendetta against him.

    All the best Ralph !!!! Will follow your appeal case !!!!

    1. Nachithidzi says:

      My sentiments too Mfana odzitsata. I wonder why he refused to recuse himself. I dont support Ralph either but he deserved a fair trial. With Justice Mtambo, Kasambara didnt get a fair trial. All the best with the appeal.

    2. Huwiii Dausi says:

      That’s my opinion too, because we believe justice has to be done to all not just to a selected few.

  19. masa masina says:

    These are kicks of a dying horse. young lawyers should take tough lessons and desist from using Kasambara as their role model. This is a sad ending to an intelligent lawyers career all because of lack of good character.

  20. Zadziwika says:

    Sometimes the law is bent in order to send the right candidate to the gallows. Our gods may use Mtambo to punish the accused even if evidence is not conclusive. Innocent people died because these greedy and stupid lawyers stole money that led to the shooting of Mphwiyo. They thought they were smart but our gods are smarter than them. The appeal is welcome. He doesn’t want to be in jail…kkkkk.

  21. Gwenjengwe says:

    Not Guilty Or Not ? God Knows !

  22. dododo says:

    Mutiuza ngati angawine——ulendo uwoooo wakundende palibe zoti aname apa…walakwa walakwa basi kkkkkk.

    1. Denesio Bisika says:

      If people can make any official stamp how come they can’t forge that stamp that the guy went to Mozambique on 30 August and come back on 14 September ,Pls Kasambara ,Manondo and Kumwembe don’t fool Malawians pls fool yourself , God is watching everything we doing day and night that y he is only the one know our date of birth and death , many thank Judge Mtambo let them die in jail if u left them outside they ll kill u

  23. Achimidzimidzi says:

    Iwe ndiye you did not err when you stole Judge Mtambo’ CV ?
    You want to be clever and win sympathy while you deliberately provoke people? Showbiz basi

    At least three weeks in prison suffice to teach you to respect other people

Comments are closed.