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Fidelis Munyoro-Chief Court Reporter
Building contractor George Katsimberis has lost a High Court bid to stay his prosecution on charges of defrauding a local land developer of close to US$1 million in a housing deal involving Borrowdale cluster houses.
The bid was launched because there are a pair of cases. In one, Katsimberis is the accused on fraud charges but in the other he is a witness in the trial of others on charges of perjury and malicious injury to property. But the accused in the second case are witnesses in the fraud case.
In a ruling delivered on Monday, Justice Paul Musithu threw out Katsimberis’ plea for a permanent stay of prosecution after he failed to the minimum required at law to justify the High Court’s interference with the unterminated proceedings in a lower court.
Generally, superior courts limit themselves to appeals and reviews of completed cases, but in exceptional cases can interfere in the proceedings in a lower court. Justice Musithu did not find this to be an exceptional case.
He agreed that the double prosecution was messy but he did not see any grave injustice arising.
Katsembiris allegedly duped a local property developer Mr Kenneth Sharpe and owner of Pokugara Properties of close to US$1 million in a joint venture to build cluster houses in Borrowdale Harare and this is the charge in the fraud case where he is appearing before magistrate Ms Letwin Rwodzi.
But since June 2020, Katsimberis has been appearing as a State witness before three different magistrates, Ms Barbara Mateko, Mr Noel Mupeiwa and Mr Stanford Mambanje in a trial for perjury and malicious damage to property.
Now in a bid to avoid prosecution on his fraud charges, Katsimberis approached the High Court saying that the failure of the prosecution to prosecute him for fraud was in violation of his rights as enshrined in the constitution him
He cited the Prosecutor-General, Minister of Justice, Legal and Parliamentary Affairs and all the four magistrate as respondents.
It was his contention that the whole process was so warped to the extent of constituting absurdity in that in view of many postponements and disruptions of trial dates, there may be days when he would be appearing as a State witness in one court and thereafter he would be expected to dash down the corridors to another court and appear as an accused person. He claimed that sometimes the cases were listed on the same date and time.
He argued that the conduct of the prosecution to have him appear before the same courts as both accused and State witness at the same time constituted a gross violation of his constitutional rights.
But the prosecution argued there was nothing wrong in having two matters prosecuted at the same time saying Katsimberis could still assert his rights as a witness.
Pokugara Properties was the first to make a police report against Katsimberis and it was the prosecution’s contention that while every person was entitled to equal protection of the law, Katsimberis had not been denied any of his constitutional rights. The witnesses in his fraud case should have been the ones complaining since they reported their case first.
The prosecution then urged the court not to interfere with the unterminated proceedings of the lower court as the issues raised were devoid of merit.
While the court agreed with Katsimberis that the manner in which the prosecution had set about prosecuting the two cases was indeed a messy, that alone could not be the basis for granting a permanent stay of prosecution.
“It is not the business of this court to interfere with the prosecutorial powers of the respondent (the Prosecutor General),” said Justice Musithu.
“This court will only interfere where there is a clear demonstration of grave injustice having been occasioned as a result of the parallel prosecution of the two matters.
The magistrates court is a court of law which is guided by the rules of evidence and procedure in the conduct of its business and Justice Musithu noted the lower court was not a kangaroo court in which the principles of law and justice are completely perverted.
The rights of accused are explained to them at the onset of trial.
The criminal justice system also has its own built mechanism of correction any wrongs that may have manifested themselves in the conduct of a criminal prosecution, said the judge.
He could not understand how the running of parallel criminal prosecution had the effect alluded to by Katsimberis, finding that the court can only conclude that the fears of the building contractor were most illusory than real.
“The trial process is replete with rules of procedure that regulates the adducing of evidence by parties, “he said.
“The law has inbuilt safe guards that are inherent to preserve the rights of accused persons and witnesses alike. I find no merit in this submission.”
Also, Justice Musithu said if Katsimberis’ complaint was about the perceived prejudices emanating from a parallel prosecution, then it was not advisable to seek a wholesale permanent stay of prosecution.
“For in doing so, this court would effectively determine that the charges against him were probably contrived,” said Justice Musithu finding that no firm foundation had been laid for interfering with the unterminated proceedings of the lower court and granting the relief sought.
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