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Fidelis Munyoro Chief Court Reporter
A Chinhoyi magistrate facing trial for allegedly showing favour to a woman believed to be his lover in a maintenance case is seeking to quash the criminal proceedings against him arguing that the record is in a shambles. In a review application filed at the High Court, the magistrate, Funny Nyakudya, is suing Harare magistrate Mr Elijah Makomo, who is presiding over his trial.

Mr Makomo and the State are named as respondents in the application.

Nyakudya, who is being represented by Advocate Edley Mubaiwa of Harare Law Chambers, wants the court to quash the criminal proceedings instituted and conducted against him.

It is Nyakudya’s prayer that the High Court nullify the proceedings and remit the matter for fresh trial at the lower court, but before a different magistrate.

The matter has since been set for hearing as unopposed at the High Court, after Mr Makomo and the prosecution did not file opposing papers.

Though Mr Makomo has been requested to provide a full and complete record of proceedings to enable Nyakudya prosecute his case at the highest court, he has failed to do so.

It has, however, emerged that Mr Makomo has not captured all the proceedings on record as required.

“I submit from the nature of the record that the proceedings before first respondent (Makomo) were unlawful, grossly irregular and invalid,” said Nyakudya.

“I submit that first respondent sat as a court of record charged and mandated by law to keep and maintain a record of all that transpired before him. He abdicated that duty.”

Nyakudya further contends that the proceedings the presiding magistrate chose to omit would forever remain lost and incapable of redemption.

He said the contentions that he could have made on the basis of the missing contents were lost forever plunging him into incurable prejudice.

“It has literally become impossible for me to prosecute my application in the Constitutional Court because the record is in a shambles,” he argued.

Nyakudya is accused of being in a relationship with a woman, who applied for maintenance against her estranged husband before ruling that the man pays $1 000 per month in an attempt to fix him.

The court heard that Nyakudya and the woman, Moreblessing Chabvonga, are now staying together at Number 3717 Mzari Extension in Chinhoyi.

Nyakudya is facing two counts of criminal abuse of office as a public officer.

The complainant in the criminal matter is Mr Michael Musamirapamwe, who was once married to Chabvonga. It is alleged that Musamirapamwe and Chabvonga’s marriage, which was blessed with two children aged nine and five years, ended in 2009.

In January 2013 Chabvonga applied for maintenance against Musamirapamwe. Nyakudya presided over the matter and ordered Musamirapamwe to pay $1 000 as maintenance.

In April 2013 Musamirapamwe lost an appeal at the High Court and filed for downward variation of the maintenance order of $1 000 per month.

“The downward variation matter was set for July 12 at Murombedzi Magistrates’ Court.