Wednesday 11 August 2021


A boob by a Guruve magistrate resulted in a rustler getting three times more than the actual sentence, while his co-accused got a lesser sentence in a classic case of gross incompetence and miscarriage of justice.

The circumstances which led to Kelvin Mushoshoma to serve a lengthy sentence of 36 years still remains unclear.

Mushoshoma was along with his co-accused properly charged with and convicted of two counts of stock theft in March 2012.

He was slapped with 12 years in jail and his co-accused got 22 years, according to the record of the trial magistrate.

However, Mushoshoma’s warrant of committal to prison had 36 years, a figure which appeared to have emerged from the blues.

His co-accused, who had been sentenced to 22 years was released from prison on presidential amnesty in 2018.

Mushoshoma’s plight came to the attention of Justice Jester Charewa in June when he applied for bail pending appeal against both conviction and sentence.

Upon perusal of the record, Justice Charewa noted the procedural irregularities regarding the review of the matter by a regional magistrate and the gross irregularities committed by the trial magistrate.

The record showed that Mushoshoma was sentenced to 12 years imprisonment and his co-accused to 22 years.

No reason was given for the differential of sentence between two-accused of similar age, who committed the crime acting in common purpose. As if that was not enough, the trial magistrate then ordered Mushoshoma to serve 36 years.

Where the 36 years came from, is anyone’s guess. Even if the magistrate had made an error and intended to add 12 and 22, the sum would not amount to 36 years.   There was no basis for adding the sentences of two accused persons.

Further it was not clear to whom the total 36 years applied, Mushoshoma or his co-accused.  

After considering the matter on review, Justice Charewa last week ruled that there was gross incompetence resulting in a grave miscarriage of justice, which cried out for review.

The judge noted that the matter was not brought to High Court for review, in terms of the provisions of the High Court Act. Instead it was sent to a regional magistrate for scrutiny.

Apart from exercising a jurisdiction which he did not have, the regional magistrate confirmed the proceedings and the record was consigned to the archives.  Justice Charewa said a reading of the record revealed gross irregularities in sentencing.

“Accused’s sentence was added on to his co-accused sentence resulting in a shockingly severe and mathematically incorrect total sentence of 36 years,” she said.

“It does not help matters, in the absence of the rectification of the record, that the warrant has the mathematically correct total of 34 years’ imprisonment. The fact remains that no reasons for this shocking sentence are contained in the record. In the absence of justification, such sentence must perforce be set aside.” 

Justice Charewa also criticised the trial magistrate for discriminating sentence between the two accused persons of similar age who committed the offence in common purpose.

The legal principle of equality of treatment dictates that unless, reasons for distinguishing sentence between co-accused is made, they must receive the same sentence.

Justice Charewa also condemned the regional magistrate for the unprocedural scrutiny of the trial proceedings when he had no jurisdiction to do so.

Thus, the judge quashed the confirmation proceedings because of the gross irregularities committed by both the trial and scrutinising magistrates on reviewing the matter in terms of the provisions of the High Court Act.

“This is more so given that these irregularities are that accused’s co-accused who received a longer term of 22 years has already been released, while applicant, who was sentenced to 12 years, is still serving an unjustified global sentence,” said Justice Charewa.

To this end, the judge said Mushoshoma having already served his sentence was entitled to his immediate release from prison. Herald


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