Lusaka High Court Judge Wilfred Muma has declined to order the release of Chingola businessman Kabaso Mulenga, a.k.a Spax, on grounds that the case is now outside his jurisdiction since the latter appeared in the Chingola Magistrates Court on charges of murder.
According to Judge Muma, releasing Spax would be deemed prejudicial and offensive to the rules of criminal justice and has condemned the police for the passage of time taken to lay charges against the young Chingola tycoon.
In his ruling, Judge Muma said he declined to allow Mulenga to challenge his continued detention because his mandate in the matter expired when he was charged for murder which charge was explained to him before the Chingola Magistrates’ Court.
In this matter, Mulenga, a fortnight ago, applied for leave to have the court issue a writ of habeas corpus ad subjiciendum directing the police to present him before court to show cause why he should continue being detained.
When Judge Muma was presented with his habeas corpus application, he ordered the State to present Mulenga on March 13, 2020 but police failed to do so.
On March 13, 2020, instead of Mulenga being availed before Judge Muma, the police caused him to appear before the Chingola Magistrates’ Court where he had a charge of murder explained to him and others.
However, Mulenga, through his lawyer Irvin Mulenga, argued that the murder charge of his client was null and void because it was done after a writ of habeas corpus had been served on the police.
Mulenga said his client had not been charged by police since his arrest on February 26, 2020, forcing his lawyers to serve a writ of habeas corpus on the police on March 10 for them to give reasons for his arrest and detention.
He argued that police, however, late on the night of March 9, drove his client to Chingola where he appeared before the magistrate and was charged with murder.
But the State argued that the writ of habeas corpus was overtaken by events.
But in his ruling, Judge Muma said his mandate in the matter expired in the circumstances which occurred after the filing of the writ of habeas corpus.
He, however, explained that the State in Mulenga’s circumstances had an obligation to present him before court and render an account on the passage of time they held the applicant without any justification at all.
Judge Muma said nonetheless, the police proceeded to charge him thereby circumventing the process which was pending determination by the court.