Former UPND Maramba Ward Councilor, Moses Simbaya has been convicted by the Livingstone Magistrate Court for obtaining money by false pretense contrary to section 309 of the Penal Code, Chapter 87, of the Laws of Zambia.
Simbaya, a businessman aged 36, of house number H12B Highlands, in Livingstone appeared before Senior Resident Magistrate Ireen Wushimanga for judgment and was sentenced to 12 months imprisonment with hard labour, suspended for six months.
Simbaya was jointly charged with Mubita Muyangwa, aged 35, of an unknown address in Livingstone, but Muyangwa was acquitted, as the Prosecution failed to prove his case beyond reasonable doubt.
Particulars of the offence are that Simbaya and Muyangwa on unknown dates but between 24th July, 2018 and 29th October, 2018, in Livingstone, jointly and while acting together and with intent to defraud, did obtain K24, 000 cash from Richard Siamiti, by falsely pretending they had a plot for sale, when in fact, not.
Simbaya and Muyangwa both pleaded not guilty to the charge.
And in reading the judgment, Senior Resident Magistrate Wushimanga said she had considered the evidence presented before court and established that K24, 000 was paid into Simbaya’s account in installments.
Ms. Wushimanga said Simbaya pretended to own a plot which belonged to Sylvester Moono and Catherine Moono, and engaged Muyangwa as an agent to find a buyer, who in this case turned out to be Richard Siamiti.
She further established that the plot did not belong to Simbaya and he had no right to sell, it.
He however, sold it but the prosecution failed to prove Muyangwa’s role as an accomplice and subsequently failed to prove his case beyond reasonable doubt.
Ms Wushimanga then acquitted Muyangwa and set him free.
She further said Simbaya had intent to defraud Siamiti as he failed to take the right steps to ensure he had the right documents to sell the land if he thought it was his.
“I find that the Prosecution has proved the case beyond reasonable doubt and find the accused Moses Simbaya guilty as charged of the offence of obtaining money by false pretence…and I convict him accordingly,” she said.
And in mitigation, Simbaya’s counsel, Fitzjohn Muleya of the Legal Services Unit said the convict was a first offender who deserved maximum leniency from the court.
Mr. Muleya said Simbaya had learnt a lesson and his desire was to be a better citizen and be an ambassador to his peers as he would warn them against being involved in offences such as the one he was charged with.
He further said Simbaya had refunded the money he had gotten from Siamiti and appealed to the court to consider using its discretion to suspend his sentence.
Ms Wushimanga said she had considered the mitigation and the fact Simbaya was a first offender entitled to leniency; and that the offence committed was a misdemeanor for which he had compensated the complainant.
“I will exercise leniency on you and sentence you to 12 months imprisonment with hard labour, suspended for six months and in addition, 60 days community services at the Subordinate Court premises,” she said.
She said Simbaya’s community service was with immediate effect and he would be supervised by the Clerk of Court.
“You will report at 07:00 hours and knock off at 16:00 hours daily. Failure to adhere to this will entail a jail term. You are community leader and should learn that, you should not do such things, so this should be a lesson to you and would be offenders,” Ms Wushimanga said.
Simbaya was until, September 2020, UPND Councilor for Maramba Ward in Livingstone.
He resigned as councilor purporting to have gotten a scholarship to study abroad.