Hilton Kasanyika, 28, was earlier sentenced by the Lusaka Magistrates Court to two years’ imprisonment with hard labour after being found guilty of theft involving COVID-19 Rapid Diagnostic Test (RDT) kits worth K2,834,777.
However, a panel of High Court judges sitting at the Economic and Financial Crimes Court (EFCC) in Lusaka ruled that the prosecution did not prove the case against him beyond reasonable doubt.
Kasanyika had appealed his conviction, which stemmed from charges of theft contrary to Section 272 of the Penal Code.
He had been jointly charged with Judith Dzekedzeke, 46, a biomedical technician; Malama Nkhata, 44, a driver; and Langson Kampango, 54, a station handyman. The charges included theft by public servant and theft.
It was alleged that between January 1 and March 30, 2022, the accused individuals stole COVID-19 test kits belonging to the Government of the Republic of Zambia.
In a judgment delivered by three judges led by Justice S.M. Wanjelani, the court found no evidence that Kasanyika stole, converted, or caused the theft of the kits.
“The evidence on record reveals that the Appellant was not found in possession of any stolen items,” the court stated. “It further reveals that there were no witnesses who testified that the Appellant physically took, diverted or caused the removal of the COVID-19 test kits from the facility, and no such kits were found in his possession.”
The court noted that Kasanyika’s role in making requisitions for laboratory supplies was part of his normal duties and did not constitute proof of theft.
According to the judgment, deliveries were carried out by drivers, particularly co-accused Malama Nkhata, at whose residence some of the test kits were later recovered.
“There is no evidence on record that the Appellant directed Accused No. 4 to divert the goods or that he benefitted from the recovered items,” the judgment stated.
The High Court also criticized the trial court for basing its conclusions on assumptions rather than evidence.
“The trial Court’s conclusion that only one benefiting would act without authority was pure speculation unsupported by evidence,” the judges said.
The court further observed that Kasanyika’s employment records confirmed he worked as a Medical Laboratory Technologist under the Lusaka Provincial Health Office, with responsibilities related to laboratory operations and supplies.
It emphasized that criminal convictions cannot be based on suspicion, administrative lapses, or poor stock management.
“Raising requisitions, without more, does not constitute theft nor amount to fraudulent conversion in the absence of proof of intent or participation,” the court stated.
“The Courts are required to act on the evidence placed before them. If there are gaps in the evidence, the Courts are not permitted to fill them by making assumptions adverse to the accused.”
The judges reiterated that suspicion alone, regardless of its strength, cannot substitute for proof beyond reasonable doubt.
The High Court also found that the trial court failed to properly distinguish Kasanyika’s role from that of his co-accused and did not sufficiently analyze whether the legal elements of theft had been established.
“The trial Court did not adequately analyse the evidence as it specifically related to the Appellant,” the judges noted.
They added that the lower court did not explain how the amount of K2,834,777 was attributed to Kasanyika.
“We have found that the essential elements of theft were not proved beyond reasonable doubt. We have further found that the conviction was founded on speculation and misdirection,” the court stated.
“For these reasons, we hold that the conviction of the Appellant is unsafe and cannot stand. Accordingly, the appeal is allowed. The conviction is quashed, and the sentence set aside,” the judges ruled.
Incompetent courts. In a hurry to convict instead of concluding cases