Legally aided Nyamithambo and Mazika after acquittal
The First Grade Magistrate Court in Mwanza has set free David Nyamithambo and Isaac Mazika who were arrested in November 2022 on suspicion that they committed an offence of theft.
It was reported that the two were housemates with another man named Andrew. Andrew went out one day and returned home with a bag full of money that included foreign currency. The bag was said to have belonged to someone who runs a TNM Mpamba business in Mwanza township and the money in it totaled MK2.8 million. It got stolen when he went to safe-keep other items he uses for his business.
On the sidelines, Andrew took Nyamithambo and Mazika on a drinking spree at Zalewa which initially was supposed to be a meet-up with Andrew’s relative. Andrew kept dishing out money for beer and food which raised some eyebrows among his colleagues.
The three however continued with their enjoyment and together they travelled to Ntcheu. Andrew booked and paid for a room for Nyamithambo and Mazika and further bought them more food and beer.
In the midst of it all, Andrew gave one of the two some South African Rands to change to Malawi Kwacha to use for transport. At the place, an argument broke out and Mazika was forced to narrate the whole ordeal of how the three are spending money.
As the initial owner of the said money reported to police that his bag of money was stolen, arrests were made.
Nyamithambo and Mazika were jointly charged with the offence of theft contrary to section 278 of the Penal Code following their arrest in November 2022. In court, they were represented by Principal Legal Aid Advocate Tiwonge Penama with assistance from Legal Aid Officer Catherine Mkonda.
The accused both pleaded not guilty to the charge and three State witnesses were paraded. One of the accused persons, Isaac Mazika, was granted bail while David Nyamithambo’s bail was denied.
The accused persons were found with a case to answer and through Legal Aid Bureau, they entered defence. Counsel for the defence argued that the State had failed to prove that the accused persons were the ones who took the bag of money as none of the prosecution witnesses testified to have seen the two accused persons taking it.
Counsel further said that the offense of theft involves taking, hence failing to prove an element pointing to the accused, a conclusion would be drawn that the state had failed to prove the matter.
Before judgement could be given out, the Magistrate who was handling the matter got transferred in February 2023. This meant that one of the accused, David Nyamithambo, continued to stay in custody.
On 11 August 2023, the Magistrate Court while giving its judgement agreed with the defence by pronouncing that the State has failed to prove that the two accused persons were the ones who took the said bag of money.
The Court further noted that there was no disagreement that the offence of theft was committed, but none of the prosecution witnesses testified seeing the two accused persons taking the bag.
The Court highlighted that per the evidence given by the State and the defence, the offence of theft was committed by a third person mentioned in Court.
The Court then guided that the State charged the two accused persons with a wrong offence. The right offence, according to the Court should have been that the accused persons were accessories to the theft offence.
Nyamithambo and Isaac Mazika have since been set free.
- 19 views