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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Tadala Themba
Guest
Tadala Themba
1 month 25 days ago
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… Read more »
malawian girl
Guest
malawian girl
1 month 26 days ago

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.

Mapwevupwevu
Guest
Mapwevupwevu
1 month 26 days ago

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

Afera kunzande ndithu! Nalikukuti wachabechabe!

timve samusa
Guest
timve samusa
1 month 26 days ago

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.

hola kuda
Guest
hola kuda
1 month 26 days ago

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.

James Gogoda
Guest
1 month 26 days ago

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)

Samuel
Guest
Samuel
1 month 25 days ago

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?

The Analyst
Guest
The Analyst
1 month 26 days ago

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.

A chachanda Kulaga
Guest
A chachanda Kulaga
1 month 26 days ago
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?… Read more »
mwahenga
Guest
mwahenga
1 month 26 days ago
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… Read more »
The Analyst
Guest
The Analyst
1 month 26 days ago
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)… Read more »
ANALYST
Guest
ANALYST
1 month 26 days ago
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… Read more »
mwana
Guest
mwana
1 month 26 days ago

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

Deal Boo
Guest
Deal Boo
1 month 26 days ago

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.

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