Online Reporter
Fidelis Munyoro
Chief Court Reporter
The High Court has swept away a magistrate’s decision to withhold US$78,000 seized from two men who had been removed from remand after the State failed to substantiate theft charges against them.
Justice Joel Mambara delivered a scathing judgment, dismantling the magistrate’s ruling and ordering a fresh inquiry to resolve the contentious issue of ownership.
In his sharp rebuke, Justice Mambara declared the magistrate’s failure to determine the rightful claimant to the money a glaring miscarriage of justice.
By leaving the seized funds unlawfully in police custody, the magistrate had, according to the judge, shirked her statutory duty under the Criminal Procedure and Evidence Act (CP&EA).
Labeling the magistrate’s inaction as a “gross irregularity,” Justice Mambara condemned the refusal to address the ownership dispute, calling it a legal misstep that had plunged the matter into “limbo” and left it at odds with established law and judicial precedent.
The High Court’s decision not only dismantles a flawed ruling but also underscores the need for judicial accountability and adherence to procedural justice, ensuring the US$78,000 is no longer trapped in a legal no-man’s-land
Admire Musiza and Tafara Machokoto—had been accused of stealing the money from a company where
US$78000 was seized from them during their arrest.
The trial commenced, and multiple witnesses were called, but the State failed to locate a key witness.
Upon the applicants’ motion, the magistrate removed them from remand in April 2024, effectively halting the proceedings.
They subsequently sought the return of the money under section 58 of the CP&EA, which mandates the restoration of seized property once a prosecution is discontinued.
The magistrate dismissed their application in December last year.
Justice Mambara ruled that the magistrate’s failure to resolve the fate of the exhibits violated the CP&EA’s provisions, which require that property be returned to either the accused or its lawful owner unless it is contraband.
“The property cannot be left in limbo,” he said, citing the Supreme Court judgment, which ruled that, “The law does not recognize indefinite retention of exhibits.”
The State opposed the application, arguing the money might belong to a third party, National Foods Ltd, and should not automatically revert to the applicants.
The High Court found this argument insufficient, noting that the State had failed to present evidence of ownership during the trial or the subsequent hearing.
Justice Mambara emphasised that the law places the burden on the State or any claimant to substantiate a superior claim to seized property. Absent such proof, possession prevails.
“The magistrate had not just the jurisdiction but the duty to determine entitlement to the money,” said Justice Mambara.
“By refusing to do so, she abdicated her responsibility and misdirected herself in law.”
The judge ordered the matter to be remitted to the magistrates’ court for a fresh determination. The magistrate is directed to conduct an inquiry, allowing the applicants and any interested parties, such as National Foods, to present evidence of ownership.
Justice Mambara stressed that the inquiry must adhere to the civil standard of proof – a balance of probabilities – and the statutory framework.
“If no credible evidence is presented to establish another person’s claim, the magistrate is obliged to order the money returned to the applicants,” the judge ruled.
However, if it is proven that the money belonged to National Foods and was only in the applicants’ possession due to the alleged crime, the magistrate can order its return to the company.
Justice Mambara acknowledged concerns about returning potentially stolen property to accused persons but underscored that the law does not permit indefinite deprivation without due process.
“The presumption of innocence and property rights must be upheld,” he said, emphasising that the proper remedy for the State is to provide evidence or initiate forfeiture proceedings under the law.
The judgment, which directs the Chief Magistrate to prioritise the remitted hearing, according to legal experts, brings to the forefront the legal tension between protecting property rights and safeguarding against the return of suspected proceeds of crime.
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