Online Reporter
Zvikomborero Parafini-Court Reporter
THE High Court has freed local businessman Tinaapi Nyawo on bail pending appeal after he challenged his conviction and three-year sentence by former regional magistrate Clever Tsikwa two days after his elevation to be a Judge of the Labour Court.
He was convicted of fraud involving a motor vehicle worth US$65 000 and sentenced to five years imprisonment, before two years were suspended, leaving him to serve three years effectively.
Nyawo, represented by Admire Rubaya, took the matter on appeal, describing his conviction, which was delivered by Regional magistrate Feresy Chakanyuka on behalf of Tsikwa, as an exercise in futility, adding that she was acting outside the law.
He then applied for bail pending appeal.
Justice Happias Zhou granted him US$300 bail and ordered him to continue residing at his given address and present himself to the police once a month.
In his application for bail, Nyawo argued that his appeal had prospects of success, describing the conduct of the trial court as unlawful.
“The Applicant appeared before Justice Tsikwa, who was then appointed as a Judge of the Labour Court on the 2nd of July 2025.
“Justice Tsikwa, with all due respect, lost the jurisdiction to sit as a Regional Magistrate the moment the Government Gazette relating to his appointment was published, since the appointment was effective on the 2nd of July 2025.
“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,” the application read.
Rubaya argued that the taking over of the case by Magistrate Chakanyuka also became a nullity and an abuse of duty.
Rubaya further argued that as soon as Justice Tsikwa became a Judge, the proceedings should have been aborted and started afresh before another judicial officer.
He said that Justice Tsikwa did not become a judge after taking the oath on July 4, as argued by the State, but he became a judge on appointment by the President and 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 the 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 pre-sentencing 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,” he argued.
