THE State V Leonard Mubaiwa

### Preamble
1
HCC61/25
HCCR1145/25
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THE STATE

Versus

LEONARD MUBAIWA

HIGH COURT OF ZIMBABWE

CHINHOYI,

MUZOFA J, 16 October 2025

Assessors:	1. Mrs. Mateva

2. Mr. Mutayiwa

Criminal Trial

Mr. Nikisi, for the State

Mr. T. K Chamutsa, for the accused person

MUZOFA J:

The accused appeared before the Court charged with murder as defined in s47 (1) (a) at the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”).

On being arraigned he denied the murder charge and tendered a plea of guilty to culpable homicide. The State accepted the limited plea. The Sate and the defense prepared a statement of agreed facts.

The following was agreed:

The deceased was a male adult aged 45 years at the time he died. The accused was aged 28 years at the time of the commission of the offence.

The accused and the deceased were employed as farm workers in Mvukwezi Farm, Mazoe Nyabira.

On the 14th of November 2024 the accused, deceased and other farm workers knocked off duty at their workplace and went to while up time at the farm house drinking beer together. Blessmore Matikiti, Calton Matikiti , Rodgers Kanyama, Tapiwa Dimba were also having quality time  at the farm house.

At around 0900hours or thereabout the deceased alleged that the accused person was involved an affair with his girlfriend. This led to a misunderstanding between the accused and the deceased. Tapiwa refrained the duo from further escalating the situation. Calton advised Tapiwa and other farm workers that they were making noise.

Tapiwa left the farm house together with the accused, Blessed, Calton and Rodgers. They went to Rodgers’ place. The deceased remained behind at the farmhouse.

Rodgers served his colleagues food, while others had their meal, the accused left the room and locked the door from outside.

The accused went away for close to two hours. The accused came across the deceased. A physical tussle ensued. The accused struck the deceased with a stone and the deceased fell down. The accused further attacked the deceased with some bricks.

The accused left the deceased and returned Rodgers’ place where he unlocked the door and joined others in the house.

The deceased was found lying dead near a fowl run in Plot 3 Mvukwezi Farm, Mazoe in the early hours of 15 November 2024 by Daniel. A Police report was at Nyabira Police station.

The deceased had visible scars on the face and head.

There were three bricks   and stone near the deceased’s body. The police officers took the three bricks and a stone as exhbits.

The police officers further conveyed  the body of the deceased to Sally Mugabe  Hospital where  Dr. H Matavata certified the deceased dead.

On 22 November 2024 a post mortem examination was conducted by Dr Robert Guillen who concluded that the cause of death was subdural haematoma, skull base and vault fracture and head trauma.

The accused admits being negligent in that he struck the deceased with farm bricks and a stone on the face and head a delicate part of the body with fatal consequences. He appreciated that the head is a sensitive part of the body.

By consent the State produced the post mortem report, the accused confirmed warned and cautioned statement, certificate of weight of the bricks and stones marked exhibits 1, 2,3 and 4 respectively.

The defense counsel, Mr. Chamutsa confirmed that the accused understood the statement of agreed facts and the plea was unequivocal.

After consideration of the facts and circumstances, we agree that the accused person negligently caused the death of the deceased in that:

The weapons used by the accused were not taken to the scene by accused but were weapons of chance.

The deceased was the aggressor.

The accused simply exceeded the bounds of self-defense.

Therefore, the concession made by the State was properly made and we find the accused guilty of culpable homicide as defined in s49 of the Criminal Law Code.

Sentence

We are not persuaded by the defense counsel’s position that the degree of negligence is on the lower side. In assessing the degree of negligence factors such as the weapon used, the number of blows, the injuries and the part of body targeted are taken into account. He used some bricks that were produced before the court. The detailed injuries set out on the post mortem speak for themselves, the violence unleased on the deceased was unprecedented. The deceased sustained nine visible injuries on the head and the face some were deep incisions. This is a bad culpable homicide case. The degree of negligence is high.

In mitigation we considered his personal circumstances which must be balanced with the offence and the interests of justice. In some cases, the circumstances may require the Court to strike a balance that is skewed emphasizing one factor over the others. Obviously, the balance postulated in S v Zinn 1969 (2) SA 537 (A) cannot be achieved by means of mathematical precision. In S v Van Wyk 1993 NR 426 (SC) the court underscored that in considering the triad (the offender, the crime and the interests of justice) the Court can take into account the context within which the offence is committed which must influence the balancing of the triad. In that case the Court bemoaned the unprecedented levels of violence and in sentencing it gave weight to the interests of justice, the need to protect members of the public and to send a message to would be offenders. In this case we take note of the escalating violence on petty issues leading to unnecessary deaths.

The accused is 29 years and a first offender. He gave evidence in mitigation. He comes from a broken family. Although he could not tell the Court dates maybe owing to his level of education, he went up to grade six. His mother died when he was seven years, his father also died when he was young. He was raised by an aunt and an uncle who ill-treated him. He decided to leave them after grade six. He was therefore tacitly emancipated at a very tender age. He said he was told he had brothers in Botswana but he has never seen them. In essence he had no close relatives to fall back on. As a society people are organized around family. A family is the institution expected to raise a child and inculcate good morals and prepare the child for their future. He did not benefit from all that.

We were advised that he had good relations with his work mates. He pleaded guilty which is a sign of remorse. He is willing to pay compensation but has no means and no family to assist him. On this day he was intoxicated which interfered with his mental faculties. He has been in custody for 8 months before trial which is not a long time. Despite that we are enjoined to take the period into consideration.

He was provoked by the accusations by the deceased, even so, it was his sole responsibility to take charge of his temperament. Everyone is duty bound to control his/her temper. Emotions must not be allowed to take control otherwise many people may lose their lives unnecessarily. Provocation in this case is not applicable. The accused locked his other friends in the house. It cannot be farfetched to infer that he did this so that he can deal with the deceased without interference from the other friends. Although we were not told where he was going it cannot be by coincidence that he just met the deceased, fought and then returned to his friends. When he returned to the friends he did not even tell them about his encounter with the deceased which means he had planned to attack the deceased. Our finding is that he set out to find the deceased and settle their unfinished business.

In aggravation, Mr. Nikisi led evidence from the deceased’s uncle one Daniel Love who told the Court that the deceased was not married but had a child. He supported the child and his parents financially. A sentence of 10 years was proposed on the basis of the degree of negligence which he said is high.

In terms of s 49 of the Criminal Law Code, a person convicted of culpable homicide is liable to imprisonment for life or any definite period of imprisonment or a fine up to or exceeding level fourteen or both. The Third Schedule to Statutory Instrument 146 of 2023 sets the presumptive penalty of 5 years’ imprisonment for culpable homicide committed in aggravating circumstances and 3 years’ imprisonment where there are mitigating factors.

Justice must always be tempered with mercy. A life was lost and a child will live without a father over a minor dispute. The accused will live with the stigma that he killed a person. Even if no one points a finger at him, his heart will be his greatest judge forever. A reading of similar cases shows that a custodial sentence in such cases is imposed. A non-custodial sentence would surely be a slap on the criminal justice system. See S v Migori and Another HH868/22.

After taking into consideration mitigating and aggravating factors together with the degree of negligence this is a case that could attract a sentence over ten years imprisonment. However, we also considered the accused’s background which could have influenced his social and emotional intelligence as mitigatory. He was thrust into the deep end of survival at an early age without proper family guidance. We also took into account the time spent in custody.  In the whole, we find that the aggravating circumstances outweigh the mitigatory factors.

Accordingly, the accused is sentenced as follows:

“Nine years imprisonment of which two years imprisonment is suspended for five years on condition the offender does not, within that period commit any offence involving the use of violence upon the person of another and or negligently causing the death of another through the use of violence and for which upon conviction he will be sentenced to a term of imprisonment without the option of a fine. Effective seven years.”

National Prosecuting Authority, the State’s Legal Practitioners

Chamutsa and Partners, accused’s pro-deo Legal Practitioners