THE State V Victor MOYO

### Preamble
1
HB 168 - 25
HCBCR 1985/25
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THE STATE

versus

VICTOR MOYO

HIGH COURT OF ZIMBABWE

MUNGWARI J

GOKWE; 15 May 2025

Assessors:	Mr Gweme

Mrs Chitsiga

Criminal Trial

L Chitanda, for the State

W Hamadziripi with P Nyeverai, for the Accused

MUNGWARI J:    In the early hours of 5 July 2021, the occupants of house number 1953 Mbizo in Kwekwe were awakened from their slumber by the premises’ landlord, Prayer Banda (hereinafter the deceased). He stormed into the house and caused commotion.  He was shouting at the top of his voice as he demanded that Victor Moyo (hereinafter the accused) vacate his house because he wanted to occupy it. To demonstrate his seriousness, the deceased barged into the accused’s room and repeated his demands to him. The accused resisted and an altercation ensued between the two. It escalated into a scuffle. The accused who had identified the deceased stabbed him once in the chest with a knife. The deceased staggered out of the room and a short while later, succumbed to the stab wounds.

On these allegations, the accused was arrested and arraigned before this court on a charge of murder as defined in Section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] [the Code]. The state alleged that the accused unlawfully caused the death of the deceased, intending to kill him or realising that there was a real risk or possibility that his conduct could lead to death but despite that realisation of the real risk or possibility, he persisted with his conduct.

The accused denied the allegations. In his defence, he stated that when the deceased forced entry into his room that night, he did not know him. In fact, according to the accused, the deceased was not his landlord and had never been. He only learned that the deceased was related to his landlady on the morning of his arrest. On the fateful night, so he stated, he managed to detect the presence of an intruder in his darkened room. He however, did not do anything to the intruder, and that no scuffle occurred between them. He only managed to push the deceased out of his room, after which he closed the door behind him. A while later, he realised that the intruder’s noise had subsided. He said to him, this was an indication that the intruder had left. He had then opened his door and announced to his wife his intention to go to the police and report the incident. When he left his room, he saw a black motor vehicle parked outside surrounded by a number of men. He sneaked out through the back yard and advised his wife to seek help from the neighbours as he proceeded to the police station. At the police station, he said he was advised to wait for a motor vehicle to take him to the scene, which vehicle arrived much later that day.

STATE CASE

The state opened its case by applying to tender a copy of the post-mortem report. The remains of the deceased were examined on 8 July 2021 at United Bulawayo Hospitals by a forensic pathologist, called Dr Juana Rodriguez Gregori. The doctor noted marks of violence in the form of a single “incise wound 3cm in length located in the anterior thorax between the 4th and 5th costal arch on the left side, penetrating in thoracic cavity.” An internal examination noted a laceration in the left ventricle of the pericardium/heart. It also picked up a laceration of the lower lobe in the left lung. The doctor concluded that the cause of death was due to “hypovolemic shock, pulmonary laceration and stab wound. With the consent of the defence, the autopsy report was admitted into evidence. Essentially, the cause of death was uncontentious.

The state then called for the viva voce evidence of Grace Banda, Arnold Mbizo and Knowledge Dube. The accused, on the other hand, testified on his own behalf while the court called for the evidence of Joseph, Zhuwaki, a police officer.

GRACE BANDA (GRACE)

The witness, a sister of the deceased and a co-tenant with the accused, testified that on the night in question the deceased arrived around midnight. She was still watching television whilst sitting on her bed.  Her sons were asleep on the floor. The deceased announced his presence at the house by shouting and making noise. She listened intently and heard the deceased shouting and instructing the accused to vacate the house, claiming that he had brought soldiers with him. She then heard loud bangs on her door, and again the deceased shouted that she should come out and tell the accused to get out of his house. The door to her room bowed down under pressure and swung wide open. She quickly awakened her children and asked them to help her support the door and keep the deceased, who was alone, out of the room. The deceased, who was still standing by the doorway, then struck one of her sons, Arnold, with a clenched fist as he was busy trying to keep him out. The deceased moved away, and she heard him go to the kitchen where the accused resided.

Once again, she heard a bang as the kitchen door was hit on. From the sounds that she heard, she concluded that just like her door, the kitchen door had been ripped open probably with the use of an iron bar. She then heard the sound of falling plates. The next thing she heard was the accused’s wife calling out to her to come out of her room because the accused had injured someone. The witness said she went out of the room and arrived in time to see the deceased in the passage holding his stomach and bleeding. She was able to see this by the illumination from the lights in the other rooms of the house. She said she called out to the accused, who was walking towards the gate, to come back as he had injured someone. Instead, the accused did not return and continued walking away. The witness said she has poor eyesight, so she went back into her room to fetch a torch. When she returned, the injured deceased had wandered off. With a torch in hand, she and the accused’s wife embarked on a search for him but did not find him. A few minutes later they were alerted to the deceased’s presence by their neighbour, who discovered him unconscious in the corridor of his house.

Grace, a timid and shy woman, seemed overwhelmed by the courtroom setting. Despite that timid posture and with her head to the side, she ploughed through her testimony and managed to deliver critical eye witness testimony.  She said she heard the commotion between the deceased and the accused. Her evidence that there was commotion was corroborated by the accused’s wife, who called out to her that the accused had injured someone. She had come out of the room and seen blood dripping from the deceased’s body. She had also seen the accused walk away. A short while later, the accused had returned and asked if her children could escort him to the police station, as he had done a bad thing. She had graciously allowed that they do, and the children, Arnold included, had left the house for the police station.

No meaningful cross-examination of this witness was conducted. Though lengthy and repetitive, it could not shake her from her testimony. We found her to be a credible witness.

ARNOLD MBIZO (ARNOLD)

The witness, now twenty years of age, was only sixteen at the time when the incident occurred. He is Grace Banda’s son and the deceased’s nephew. He resided at the residence and knew the accused as the deceased’s tenant. According to the witness, two weeks earlier, the deceased had brought the accused to live with them at the family house and had allowed him to use his room. He refuted the accused’s suggestion that he did not know the deceased insisting that in that brief period, the accused and deceased had a lessor and lessee relationship and that rent was paid to the deceased, which explains why on the fateful day, the deceased came and caused a commotion, insisting that the accused vacate his room.

With unquestionable eloquence and firmness, the witness narrated how on the day he was awakened by his mother and instructed to assist in supporting the door from his uncle who wanted to break it down. According to Arnold the deceased was shouting that the accused vacate his room as he wanted to occupy it. The deceased managed to break open the door to the room and from the doorway struck him with his hand once on the forehead. It was at that moment that he looked at the deceased and saw him clearly in the glaring light of the room. The deceased was alone and was holding a knife in his hand. He saw him turn and walk away. He was certain that at that point the deceased was not injured, but was just in a combative mood and spoiling for a fight. He, however, did not fight back. He then heard the deceased continue with his commotion as he demanded that the accused vacate his room. He heard sounds of breaking utensils and shortly thereafter heard the accused’s wife call out for assistance from his mother, Grace Banda, claiming that the accused had injured someone. Arnold further said he had only emerged from the room some five or so minutes later and met up with a shocking scene in the passageway of the house. The accused was holding the deceased on the shoulders with one hand as if trying to prop him up from falling. In the other hand, the accused was holding a knife. He saw the deceased bowed over clutching at his stomach and bleeding profusely. The witness instructed his mother, who followed him, to fetch a torch to aid her poor eyesight. He then saw the accused leave the house with the knife in hand. According to the witness, the accused was running when he left. A short while later, the witness saw the accused return without the knife and ask to be escorted to the police. He and his brothers then escorted the accused to the police station. Along the way, so he said, the accused expressed concern about whether Prayer had survived the stabbing. At the police station, he saw the accused being booked into the cells.

Just like the witness before him, Arnold rejected the accused’s assertions that he did not know the deceased and that he had only pushed him from the room. He insisted that the accused knew him from his own relationship with the deceased as lessor and lessee. Given the magnitude of the noise that the deceased was making that night he was certain that the accused could not have missed the commotion. He was sure the accused had heard it all just as everyone else did and had braced for a confrontation with the deceased who was loudly calling out for his eviction from the room. Lastly, he was adamant that he saw the accused holding a knife soon after the distress call raised by the accused’s wife.

Although young the witness impressed us. His knack for recollection was remarkable. No amount of cross-examination could dislodge him from his testimony. He struck us as a truthful witness. Moreso because his testimony corroborated that of the first witness. Whereas the first witness fluffed and stammered, this witness was smooth in his testimony.  He explained to the satisfaction of all what transpired on the night in question.

KNOWLEDGE DUBE (DUBE)

The witness is a duly attested member of the Zimbabwe Republic Police stationed at Mbizo. He knew neither the accused nor the deceased prior to the murder.  He said at around 7 am of 5 July 2021, he reported for duty at the station. He was then informed of a murder that had occurred in the early hours of the same day, and was informed that the suspect had been arrested and was booked in the cells. At around 9 am he was assigned to attend the scene of a murder which had occurred at house number 1953/18 Mbizo Kwekwe. On arrival at the scene, he observed blood stains on the ground in front of house number 1953/18 Mbizo. He followed them until they reached house number 1954 /18 Mbizo. He then observed the body of a male adult lying in the corridor, which was identified to him by Grace Banda, the sister. On further inspection of the body, he observed a wound on the left side of the chest. He searched for the murder weapon but could not find it.

The witness said he interviewed the accused, and recorded a warned and cautioned statement from him. In graphic detail, the accused had made damning admissions against himself. According to the witness the accused was cooperative and voluntarily went for indications. He had submitted the docket for further management and does not know what could have happened thereafter.

The officer said, there was a second statement that was recorded from the accused five months later. That statement was tendered as an exhibit through this witness. In it, the accused simply stated that he knew nothing about the offence. The statement was confirmed according to law. When asked how it came about, the witness stated that he does not know, as he was neither the investigating officer nor the arresting detail in the matter. Thereafter, no meaningful cross-examination of the witness was conducted.

Crucially, the witness’s testimony confirmed the arrest of the accused prior to his arrival at the station that morning and gave an indication of the accused’s attitude towards the commission of the offence soon after it occurred.

DEFENCE CASE

Victor Moyo

The accused testified on his own behalf. He adopted his defence outline as his evidence in chief and added detail. In doing so, he prattled on and, in the process, volunteered unnecessary detail, which later came to haunt him. The following is what he said:

That he had been resident at 1953 Mbizo for six months and had a cordial relationship with his landlady, Grace and her family, and he knows no reason why they would falsify any evidence against him. He was surprised when he heard their false testimonies. He insisted that he did nothing to the unknown intruder except push him out of his room. He confirmed that no one else besides the deceased entered the house that night. He further explained that soon after the incident, he left the residence with his wife and children en route to the police station. Prior to their departure he said he noticed a black Honda Fit parked outside and surrounded by youths. Consequently, the family slipped out through the backyard. On the way, he told his wife to seek refuge from the neighbours. He boasted of his good relations with the neighbours, and so accommodating his family would not have been an issue for most of them. He confessed that he does not know where his family spent the night because he then continued with the journey to the police station alone. According to the accused, his intention was to go and report the unlawful entry into his premises by an unknown intruder.

At the station, the police took down his complaint but informed him that there was no vehicle available to transport them to the scene. They invited him to sit with them in the charge office where they shared groundnuts with him and invited him to warm himself before the heater. According to the accused, the motor vehicle did not come that night, and he, as well as the police officers, spent the rest of the night together chatting and eating. He recalled that one of the officers present was named Machipisa. He described him as a heavily built man. He insisted that he was never booked in the police cells as he was the complainant and not the accused. At that stage, he still did not know who the deceased was. He only learnt his identity later in the morning. He rounded up his testimony by stating that he had indeed gone for indications. He reluctantly admitted that he gave two statements which were vastly different from each other. On one he admitted to the crime but on the other he denied it. He proffered no explanation for his different attitudes.

During cross-examination, the accused’s story could no longer hold. He was quizzed on why he left with his wife to go and find accommodation elsewhere if the motivating factor was fear. He failed to explain the grey area. We inferred from his failure to do so that the wife did not even go outside the house with him, but remained at home with the other tenants, as stated by the two witnesses. He was also quizzed on why he did not seek assistance from the co-tenants that he enjoyed cordial relations with, particularly if he said Grace’s husband was in the room. He could only mumble an incoherent response. Further, the accused was taken to task on what exactly he was going to report at the police station at that time of the night if he had not erred, and was afraid that the intruder might still be lurking somewhere. Once again, he failed to explain to the satisfaction of the court.

We were left wondering what motivated him and why he did not seek help from the co-tenants. In the absence of a satisfactory explanation, we concluded that just as the witnesses had stated, he had been accompanied to the police station by Arnold and his brother and his lack of fear at that time was motivated by the fact that he knew that he had immobilised the intruder. This would explain why the witnesses said along the way, he expressed concern that he may have fatally injured the deceased.

Yet again, from the haste in going to the police station that very same evening and asking Arnold and his brothers to accompany him, we concluded that the accused was in a cooperative mood. His true state of mind. There was just no way out. He had been seen in the company of a bleeding deceased with a knife in hand. Even when the police officer Dube attended to him some hours later, he was cooperating and even went to the scene for some indications. And to be absolutely sure, the court engaged section 232 of the Criminal Procedure and Evidence Act [Chapter 9:07] [CPEA] and called for the evidence of Machipisa or the police detail who took down the accused’s statement on the fateful night. The intention was to ascertain exactly what occurred at the police station on the day in question.

COURT WITNESS – JOSEPH ZHUWAKI

The witness a duly attested member of the Zimbabwe Republic police stated that on the night in question, the accused arrived at the police station in the company of several young men who were not known to him. It was around 1 am. He was on duty at the charge office reception that night, and recorded the accused’s report. The witness stated that the accused reported that he had been assaulted by an intruder named Prayer Banda. He then promptly began taking down the report. Before he could finish he received an anonymous call informing him that the deceased had passed on. According to the witness, they notified the accused of his change in status from complainant to accused. That same night, two officers, Siyajena and another, visited the scene. While at the scene, they called him and informed him that, indeed, Prayer Banda was deceased. The witness said he lodged the accused in the cells as an accused person at around 2 am. The witness denied all of the accused’s testimony regarding what transpired at the police station. He clearly explained that when the accused arrived at the station he reported unlawful entry by the deceased, meaning he already knew who the intruder was. He denied sitting before the heater with the accused and sharing food and said none of his colleagues did so too.  Officer Siyajena the only hefty police officer at the station had gone on a site visit, and as a result could not have done so. He outrightly denied that there was at the station, a police officer named Machipisa at the time and claimed that it was a figment of the accused’s imagination. The testimony of this witness rubbished the accused’s evidence and exposed him for being untruthful. As a police officer, he said he had no reason to lie against the accused, whom he did not know prior to that day but only got to know him in connection with the murder.

COMMON CAUSE FACTORS

Common cause facts established at the end of the trial are that the deceased was stabbed at house no 1953 Mbizo in Kwekwe on the fateful night. He was alone and had arrived unharmed. He had been loud and quarrelsome. He was armed with a knife. He entered the accused’s bedroom unharmed and left the room injured. The room was occupied by the accused and his family. No one saw how he sustained the injuries. He died shortly after he was stabbed.

THE ISSUE FOR DETERMINATION

With the evidence adduced by the state and the defence’s arguments, it is apparent that the issue for determination is whether the accused caused the death of the deceased.

The accused denied knowing the accused. He denied stabbing him but stated that he had simply pushed him out of the room, after which he had gone to the police station to report the intruder. The state, on the other hand, stated the opposite, and that is that he knew the intruder and he stabbed him when he entered his room. He had gone to the police station to hand himself over. We must therefore ascertain what occurred that night and thereafter apply the law. In its closing submissions, the state urged the court to find the accused guilty of murder and stated that all the evidence pointed towards this. The defence, on the other hand, was adamant that all the witnesses, including the court’s witness, were untruthful witnesses. They stated that in the event that the court is so inclined, it in the least, find the accused guilty of a lesser charge of culpable homicide.

Because no one saw the accused stab the deceased, the evidence against him is largely circumstantial.

THE LAW ON CIRCUMSTANTIAL EVIDENCE

Circumstantial evidence refers to testimony that suggests an accused's guilt without directly establishing that guilt. In Zimbabwe, the legal principles governing circumstantial evidence are well established. While circumstantial evidence lacks the direct nature of eyewitnesses’ testimony, it is nonetheless a valid and critical form of evidence. When the established facts of a case lead unequivocally to a single inference, the court may justifiably rely on such circumstantial evidence to reach a conclusion. Conversely, in instances where the facts give rise to multiple reasonable inferences, it is deemed unsafe for the court to draw a definitive conclusion based solely on circumstantial evidence. This principle underlines the necessity for caution and thorough examination in the evaluation of evidence, ensuring that any inference drawn is supported by a clear and singular interpretation of the facts presented.

Circumstantial evidence is classified as indirect proof, which, in isolation, does not establish the existence of a fact in issue. Its significance lies in its ability to provide a basis for logical inferences that suggest the existence of the fact in question. In the case of Muyanga v The State HH 79-13, the court explained the principles that govern the use of circumstantial evidence as follows,

“The law regarding circumstantial evidence is well-settled. When a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else; and

The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation by any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”

In casu, we hold the view that all four witnesses were credible. They corroborated each other and narrated a credible story backed by evidence. It is not in dispute that the deceased was quarrelsome on the night in question. He wanted to evict the accused. His target was the accused. In his combative mood he passed through his sister Grace’s room, shouting that he wanted the accused out as he was not paying rentals. He had a knife in his hand which he however did not use. He also declared that he had come with soldiers even though he had not. Grace and Arnold saw him. He was fit but very quarrelsome. He was alone .He went to the accused’s room, which appearance the accused himself confirmed. He emerged from the accused’s room injured. There is no possibility that someone else injured him as he was alone and no one else entered the house during that time. The accused himself highlighted that no one else entered his room, hence it was himself and his family and the deceased. Added to this, Arnold said when he got out of his room:

“The accused was holding the deceased on the shoulders with one hand as if trying to prop him up from falling. In the other hand, the accused was holding a knife. He saw the deceased bowed over clutching at his stomach and bleeding profusely.”

Further, that the accused knew the deceased as Grace Banda’s brother is not in doubt. He inadvertently confirmed this when he told the court that he had stayed at the residence for six months contrary to the state witnesses’ assertion of fourteen days. If we go by his own testimony of the longer stay at the house it increases his chances of having seen him and known him since he was residing in the deceased’s room at the residence. But even if we take the correct narrative of fourteen days given by the state witnesses, he would still have known the deceased as he is the one who had contracted with him to lease the said room and to whom he paid rentals. We hold that the accused knew the deceased because he was his landlord.

The deceased was armed with a knife, and the accused must have disarmed him. To confirm this a distress call directed towards the deceased’s sister Grace Banda was then raised by the accused’s wife. In the alarm call she notified her that the accused had stabbed the deceased. The witnesses who reacted to the alarm call came out of the room and saw the accused now holding the same knife that the deceased had a few minutes before, held in his possession in one hand and with the other hand trying to assist the bleeding deceased. It is not true therefore that the accused only pushed the intruder and did nothing else to him. He had followed after him with the knife still in his hands and driven by remorse tried to assist him to stand. The only inference to be drawn from this is that the accused had a violent altercation with the deceased who died shortly thereafter.

To confirm his awareness of his unlawful actions the accused asked to be accompanied to the police station in the vain hope that the deceased might still be alive. Once at the station he reported assault /unlawful entry by the deceased who he stated by name. He clearly knew who the intruder was, and by his report, he confirmed that he had come into contact with the deceased.

The only reasonable inference which can be drawn from the chain of events above is that it was the accused who stabbed the deceased with a knife. The deceased was being a nuisance that night. Unfortunately, the accused did not suggest that the deceased provoked him or that he acted in self-defence. He simply stated that on that fateful night he managed to deal with the irritating intruder by pushing him out of the room and closing the door and that nothing else occurred afterwards. We agree that the accused is not required to prove his innocence but at the same time, it is also not the responsibility of the court to create defences for him. We can only conclude therefore that annoyed by the deceased’s ranting and disturbing actions, the accused had stabbed him and subsequently done away with the irritation.

For the defence to then suggest that the accused be convicted of a lesser offence is missing the point particularly when the accused had only denied stabbing the deceased and not alleged any other defence. In the end the stab wound tallies with the findings of the pathologist that the deceased died due to hypovolemic shock, pulmonary laceration and stab wound. From the evidence, the accused possessed the requisite mens rea. He stabbed the deceased in the heart a vital organ, the injury to which can cause instantaneous death. Even if we grant the accused the benefit of the doubt and accept that he did not intend to kill the deceased, his conduct nevertheless entailed a foresight of a real risk or possibility of death. After foreseeing that risk, he still stabbed the deceased in the heart heedless of whether or not death would result. In light of the defence raised by the accused and the evidence before the court, there is no halfway house for him.

It is for the above reasons that we reject the accused’s contention that he did not stab the deceased because he did. His explanation is not only false but palpably so as already shown. He denied that he knew a man who was not only his landlord but had literally brought him to the house where he lived. He had told the police the identity of the man who had stormed the house that evening. He was seen holding the knife with which he inflicted the fatal wound on the deceased. For those reasons, we are therefore convinced that the state managed to prove its case beyond reasonable doubt as required at law. We accordingly find the accused guilty of murder as charged.

SENTENCING JUDGMENT

On the early morning of 5 July, 2021, at house number 1953 Mbizo, Kwekwe, the landlord of the property, Prayer Banda (the deceased) woke the occupants and demanded that his tenant Victor Moyo (the offender) vacate the house. The deceased forcibly entered the offender's room and an altercation ensued between the two. In the melee that followed, the offender seized the knife that the deceased had in his hand and stabbed him once in the chest. The deceased left the room bleeding and died a few moments later. Subsequently, the offender was arrested and charged with murder in terms of Section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as "the Code"). He denied the charge saying that the deceased was a stranger to him and that on the fateful day he merely pushed the intruder out of his room and closed the door. He had done nothing else to him.

Contrary to the offender’s assertion, we found the evidence of state witnesses irrefutable that it was him who had stabbed the deceased. We rejected the offender’s defence and concluded that it was him who had stabbed the deceased in the chest with a knife. We therefore convicted him of the murder.

THE LAW ON SENTENCING

The initial stage in the assessment of sentences for murder convicts requires the court to ascertain whether or not the murder was committed in aggravating circumstances. Section 47(4) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] stipulates that a person convicted of murder shall be liable to imprisonment for life, or imprisonment for any definite period of not less than twenty years, if the crime was committed in aggravating circumstances as provided in subsection (2) or (3).

The above provision makes it a prerequisite that when sentencing an offender, the court has to assess whether or not the murder was committed in aggravating circumstances. Where it was, then the potential penalties, including life imprisonment or a minimum of twenty years, become applicable.

In contrast, should the court find that the murder was not aggravated in any of the ways provided for by law, the court is liberated to impose imprisonment of any duration it deems appropriate regard being had to the general aggravating and mitigating factors advanced.

In casu, state counsel Ms Chitanda submitted that the murder was committed in aggravating circumstances for the reason that the offender used a knife to attack the deceased. In advancing that proposition she relied on the sentencing guidelines SI 146/23 which provide that the use of a lethal weapon may be considered as aggravatory in sentencing an offender convicted of murder. She concluded her address by suggesting that the offender be sentenced to 20 years imprisonment.

The defence counsel Ms Nyeverai, urged the court to find that the murder was not committed in aggravating circumstances. She reasoned that while a knife had been used in the perpetration of the offence, it was the deceased who had brought the knife with him. The offender had merely disarmed him and used it on the deceased instead. According to the defence counsel, the weapon was an opportunistic weapon rather than a weapon of choice and should not be deemed aggravating. In any case so the defence argued, had the deceased not entered the offender’s room, the crime would not have been committed. In light of those submissions she suggested a sentence of 15 years as a suitable punishment.

The evidence on record shows that the offender was rowdy on the night in question. He was quarrelsome and his target was the offender whom he wanted to evict from his room. He was armed with a knife. But even in the face of the deceased’s rantings the offender did not set out to arm himself as at that time he did not know that the deceased was armed with a knife. It was only when the deceased barged into the offender’s room that he came to know of this. He seized the knife from the deceased’s hands and stabbed him. Had the deceased not entered the offender’s room all this would not have happened. Indeed the circumstances of the commission of the offence show that the lethal weapon was an opportunistic one. This being the only reason that the state counsel relied on we are not persuaded that the murder was committed in aggravating circumstances. We also considered other aggravating factors and found none. Accordingly, we hold that the murder was not committed in aggravating circumstances.

In mitigation we were informed that at the time he committed the offence, the offender was only 21 years of age and that this was his first transgression with the law. This court in the case of S v Migeri and Anor HH 870/22, explained the uniqueness of sentencing young adults who are prone to making ill-considered and impulsive decisions. They cannot be expected to display the same stability and self-control as fully mature adults. The offender is now 24 years old and even at this relatively young age still qualifies to be considered a youthful first offender. We find this highly mitigating.

Although the offender did not argue that he was defending himself, it is not in doubt that the deceased contributed to his own demise. He was the aggressor on the day in question as he approached the offender at night and in a hostile manner which prompted a physical confrontation. Had the deceased not engaged in this confrontation, the circumstances resulting in the offender's prosecution would not have arisen. That fact did not qualify as a defence but is clearly weighty mitigation.

In aggravation, the state could only lament the loss of life and its irreversibility. It tendered a victim impact statement authored by the deceased’s sister Grace Banda. Grace lamented the lack of remorse exhibited by the offender and his family members. She also urged the court to sentence the offender to twenty years imprisonment noting that the deceased was a beloved member of the family, who according to Grace was still young. We agree with Grace’s submissions on the lack of remorse by the offender. We noted a troubling degree of impunity in his testimony. He appeared intent on evading responsibility for his actions and in so doing wove a web of lies that ultimately ensnared him. We observed him engaging in a sequence of performances, preaching to the gallery and then in the next moment playing the victim followed by a sudden display of rebelliousness all aimed at evading accountability. His conduct on the witness stand undermined any claim of genuine remorse and reflected poorly on his credibility.

But in that same vein, we note again that the same victim (Grace) and her children had cowered and quivered at the deceased’s belligerence that evening. He barged down the door to her room and almost injured Grace’s son. The victim impact statement does not therefore take away the undeniable violence perpetrated by the deceased.

We have already stated that the offence was not committed in aggravating circumstances. We have also highlighted some weighty mitigating factors and circumstances. As such a sentence of 20 years would be too harsh. In the end however, it cannot be over emphasised that the loss of human life must always be guarded against. People who act in the way the offender did and end up causing loss of human life must appreciate that because of the gravity of their crimes it is not possible to escape punishment in one form or another. Against that backdrop, the court must endeavour to send the correct message to all who are prone to violent tendencies that violence in whatever form will not be condoned.

In the circumstances, it is ordered that the offender be and is hereby sentenced to 15 years imprisonment.

Mungwari J: …………………………………………………

National Prosecuting Authority, State’s legal practitioners

Mavhiringidze and Mashanyare, offender’s legal practitioners