Nyashadzashe Ndoro – Chief Reporter
Local businessman Tinaapi Nyawo has been released on US$300 bail by the High Court pending the outcome of his appeal against both conviction and sentence.
Nyawo, represented by lawyer Admire Rubaya, is appealing a three-year effective jail term imposed after he was found guilty of fraud involving a motor vehicle valued at US$65,000. He had initially been sentenced to five years’ imprisonment, with two years suspended.
The conviction and sentence were handed down by Regional Magistrate Feresy Chakanyuka, who delivered the judgment on behalf of former Regional Magistrate Clever Tsikwa, just two days after Tsikwa’s appointment as a Labour Court judge.
Nyawo subsequently applied for bail pending appeal.
Justice Happias Zhou granted him US$300 bail, allowing him to continue residing at his registered address and requiring him to report to the police once a month.
In his bail application, Nyawo argued that his appeal had prospects of success, describing the conduct of the trial court as unlawful.
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"The Applicant appeared before Justice Tsikwa, who was then appointed as a Judge of the Labour Court on 2 July 2025. Justice Tsikwa, with all due respect, lost jurisdiction to sit as a Regional Magistrate the moment the Government Gazette relating to his appointment was published, since the appointment was effective on 2 July 2025. Justice Tsikwa could not validly discharge the functions of a Magistrate in 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.
He further contended that as soon as Justice Tsikwa became a Judge, the proceedings should have been aborted and started afresh before another judicial officer. Rubaya asserted that Justice Tsikwa became a Judge upon appointment by the President and the publication of the Government Gazette, not after taking the oath on 4 July 2025, as argued by the State. He explained that the oath is a procedural requirement for assumption of duty, not for appointment as a Judge.
"Justice Tsikwa prepared the verdict even though he was already a Judge, which in itself constitutes a judicial irregularity. For Regional Magistrate Chakanyuka F. Esq to take over the proceedings for the purpose of delivering a verdict and conducting sentencing was brazenly irregular," he argued.
Rubaya added: "The Court a quo, per Chakanyuka F. Esq, proceeded to hear mitigation and aggravation submissions and conducted a pre-sentencing inquiry after the verdict had been prepared by Justice Tsikwa.
"It is clear from the sentencing judgment that the Court a quo abused the provisions of Section 334(7) of the CPEA, which is not applicable in these circumstances. The Court a quo, per Chakanyuka F. Esq, could not validly sentence the Applicant where the proceedings leading to the conviction were null and void."
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