HC frees Lusaka lab technician jailed of stealing COVID-19 test kits

A Chipata Level One Hospital laboratory technologist who was convicted and jailed for allegedly stealing COVID-19 test kits worth more than K2.8 million has been acquitted by the High Court.

Hilton Kasanyika, 28, had been sentenced to two years imprisonment with hard labour by the Lusaka Magistrates Court after being found guilty of theft in relation to the disappearance of COVID-19 Rapid Diagnostic Test (RDT) kits valued at K2, 834, 777.

A panel of High Court judges sitting at the Economic and Financial Crimes Court (EFCC) in Lusaka have however, found that the prosecution failed to prove the case against Kasanyika beyond reasonable doubt.

Kasanyika had appealed against the conviction after the lower court found him guilty of theft contrary to Section 272 of the Penal Code.

The lab tech had been jointly charged with Judith Dzekedzeke, 46, a biomedical technician, Malama Nkhata, 44, a driver and Langson Kampango, 54, a station handyman on two counts of theft by public servant and theft.

The allegations were that between January 1 and March 30, 2022, the accused persons stole COVID-19 test kits belonging to the Government of the Republic of Zambia.

However, in a judgment delivered by three judges led by Justice S.M Wanjelani, the prosecution had not established that Kasanyika stole, converted or caused the kits to be stolen.

“The evidence on record reveals that the Appellant was not found in possession of any stolen items, ” the court said. “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 judge noted that while Kasanyika had made requisitions for laboratory supplies, this was consistent with his duties at the hospital and did not amount to proof of theft.

“What emerges from the evidence on Record is that when the Appellant made requisitions for Laboratory supplies as part of routine Laboratory operation, deliveries were effected by Drivers, notably Accused No. 4, Malama Nkhata, at whose house some Covid-19 Test Kits were recovered, ” the judgment reads.

“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 High Court also faulted the trial court for relying on assumptions rather than concrete 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 found that Kasanyika’s employment records showed he was working as a Medical Laboratory Technologist under the Lusaka Provincial Health Office, with duties connected to laboratory operations and supplies.

The High Court stressed that criminal convictions cannot be based on suspicion, administrative irregularities 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 said.

“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.”

“Suspicion, however strong, could not provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.”

According to the High Court, the trial court failed to distinguish Kasanyika’s role from that of the co-accused and did not sufficiently analyse whether the evidence established any of the legal ingredients of theft.

“The trial Court did not adequately analyse the evidence as it specifically related to the Appellant, ” the judges said.

They added that the lower court had failed to explain “how the value of K2, 834, 777.00 was attributable to the Appellant.”

“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, ” said the court.

“For the said reasons, we hold that the conviction of the Appellant is unsafe and cannot stand. Accordingly, the Appeal is allowed. The conviction of the Appellant is quashed and the sentence imposed is set aside, ” ruled the judges. -Kalemba