The High Court has granted local businessman Tinaapi Nyawo bail pending appeal against his three-year sentence and conviction, which was imposed by former regional magistrate Clever Tsikwa.
Nyawo was convicted of fraud involving a US$65,000 motor vehicle and sentenced to five years in jail, of which two years were suspended, leaving a final effective sentence of three years.
The sentence was delivered just two days after Tsikwa’s elevation to a Judge of the Labour Court.
Represented by Admire Rubaya, Nyawo argued for bail, asserting that his appeal holds promise because the trial magistrate, then Justice Tsikwa, lacked the authority to deliver the sentence.
Nyawo’s application claims that Tsikwa lost the jurisdiction to sit as a Regional Magistrate the moment his appointment as a Judge of the Labour Court, effective July 2, 2025, was officially published in the Government Gazette.
“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,” read part of the application.
Rubaya further argued that because Justice Tsikwa lacked jurisdiction, the subsequent takeover of the case by Magistrate Chakanyuka was also rendered a nullity and constituted an abuse of duty.
Rubaya argued that the proceedings should have been aborted and started afresh before a new judicial officer the moment Justice Tsikwa became a Judge.
He contended that Tsikwa’s status as a Judge took effect not upon taking the oath on July 4, 2025, as the State argued, but upon his appointment by the President and the subsequent publication of the Government Gazette.
“Justice Tsikwa prepared the verdict even though he was now a Judge which on its own is a judicial impurity but for the Regional Magistrate Chakanyuka F. Esq to take over the proceedings for purposes of bestowing a verdict on applicant and conduct the sentencing proceedings, that is brazenly grossly irregular.
“The Court a quo per Chakanyuka F. Esq proceeded to hear the mitigation, aggravation and conduct a presentencing inquiry after she had bestowed the verdict prepared by Honourable Justice Tsikwa.
“It is clear from the reading of the Sentencing Judgment that the Court a quo abused the provisions of Section 334 (7) of the CPEA, which is not applicable in the circumstances. “It is submitted that 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.
Justice Happias Zhou granted Nyawo US$300 bail, on the conditions that he continues to reside at his given address and reports to the police once a month.
