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Yeukai Karengezeka Court Correspondent

The defense case of businessman and property manager for East River Investment Bishop Jeche who is facing fraud and perjury allegations emanating from a housing transaction could not kick off last Friday after his defense counsel filed an application seeking the matter to be referred to the Constitutional Court.

The development comes after a medical expert, Psychiatrist Dr Anesu Isabel Chinoperekwei testified last week in court that Jeche was not fit to stand trial as he was suffering from dementia and memory loss.

Another medical expert, Dr Charles Nyamukachi testified in court that he diagnosed Jeche of dementia and depression among other chronic ailments.

However, the presiding Magistrate Mr Hoseah Mujaya (retired) at the instigation of the State ruled that the matter was supposed to proceed to defense with immediate effect.

Jeche’s lawyer Mr Admire Rubaya filed an application seeking an order for referral to the Constitutional Court as proceeding with defense may infringe the rights for a fair trial to Jeche.

“Based on the evidence given by medical experts on second applicant (Jeche) we seek guidance on whether the refusal by the regional magistrate’s court to grant a postponement of the matter to allow the 2nd Accused person to recuperate from bipolar depression and dementia, which impair his memory and ability to participate effectively in the legal proceedings.

“By comprehending questions, providing definitive answers, and both challenging and adducing evidence during legal proceedings, particularly during examination and chief and cross-examination,” said Mr Rubaya challenging the court.

The application is based on the Constitution section 174 :4 which says if a constitutional matter arises in any proceedings before a court, the person presiding over that court may and if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous and vexatious.

Mr Rubaya also argued that court indicated that it was under pressure to complete the trial hence the accused became worried and expected independent impartiality in the matter.

The court took a brief adjournment and the State led by Mr Ephraim Zinyandu decided to respond to the application orally.

He refuted the claims that the court was under pressure to complete the matter and challenged the defense council to place any evidence to support their claim.

The added that the court determined the issue of competence of the accused person after hearing evidence from the doctors and their evidence was just an expert opinion which is not binding on the court.

As a result of the new developments, the defense is expected to bring their witnesses to testify in support of their position and the State will do the same before a ruling can be made to either refer the matter to ConCourt or not.

The matter returns to court on March 20 for continuation.

It is the State’s case that in August 2009, the complainant Stephen Leonard Nyoka entered into a loan agreement of US$19 000 with Frank Buyanga and his company, Orton’s Drift Properties (Private) Limited.

The terms of the loan were that an interest of 10 percent per month would be paid together with the capital amount within a period of three months.

However, since Buyanga and his company were not registered money lenders in Zimbabwe, the loan agreement was to be concealed by disguising it through a simulated agreement of sale of Nyoka’s house styled stand number 1018 Mabelreign township otherwise known as number 6 Danbury Avenue, Mabelreign.

Nyoka was made to sign a Power of Attorney to pass transfer which is a declaration as a seller and an acknowledgement of receipt of US$19 000 and also handed over his title deed as security for the loan.

The power of attorney had initially been given to Stewart Nyamushaya or in his stead Farai Zuva as conveyancers to effect transfer of the property.

The attorney was fraudulently altered in the name of Shakespeare Karuwa and a forged Capital Gains Tax Clearance was issued to effect the transfer while a forged declaration by seller was tendered purporting that Nyoka has sold the house for US$19 000.

In order to conceal the transaction as purported proceeds of crime, an agreement of sale was entered into between East River Investments to transfer the property from Orton Drift Properties (Private) Limited in which the latter is the seller and the former as the purchaser for the sum of US$35 000.

Due to Jeche’s actions, Nyoka lost his house valued at US$130 000 through a High Court order and nothing was recovered.