Msume (2nd from left) with counsel Ndeketa (in white shirt) and family
The High Court sitting in Zomba has overturned the conviction and 21-year prison sentence of Tellah Msume, a security guard who had been found guilty of defilement and abduction by the Senior Resident Magistrate’s Court at Mulunguzi. The decision follows a successful appeal filed by the Legal Aid Bureau.
Msume was initially convicted in 2022 on the charges of defilement, contrary to Section 138(1), and abduction of a girl under the age of 16, contrary to Section 136 of the Penal Code. The charges related to an incident that allegedly occurred between 21 and 22 August 2021 at Mpunga location in Zomba, where Msume was accused of unlawfully taking a minor against her mother’s will and engaging in unlawful carnal knowledge.
In January 2023, Msume’s wife approached the Legal Aid Bureau (LAB) for legal assistance. The appeal was taken up by Assistant Director for the LAB’s Eastern Region, Zaheed Ndeketa, who successfully applied for leave to appeal out of time. The matter was subsequently heard in 2023 and early 2024 before High Court Judge Justice Texious Masoamphambe.
The primary ground of appeal was that the conviction was unsafe, as the lower Court failed to properly consider Msume’s alibi defence. In criminal law, an alibi is a defence strategy in which an accused asserts that they were elsewhere when the alleged offence occurred and therefore could not have committed it.
Msume had informed the Court that he was on duty as a security guard at FINCA during the alleged incident and submitted logbooks, duly signed by his employer, to support his claim. He also indicated that he had a witness who could corroborate his alibi. However, the witness failed to appear on the day of the hearing. Despite the evidence, the Court proceeded to convict him, reasoning that the absence of a witness weakened his alibi.
In its ruling, the High Court found merit in the appeal and agreed with LAB’s position that the lower Court erred in disregarding the logbooks solely because the witness did not show up. The Court held that it was up to the State to rebut the defence alibi if there is other credible evidence, such as employer-signed documentation to support it.
Justice Masoamphambe concluded that the conviction was not safe and, as a result of the ruling, both the conviction and the sentence were quashed, affirming Tellah Msume’s release from custody.
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