Herbert Learnmore Chikiwa v The State

### Preamble
1
HH 641-25
HCH 2903/25
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HERBERT LEARNMORE CHIKIWA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE; 20 October 2025

Opposed Application

Applicant in person

C Muchemwa, for the respondent

MUREMBA J:

Introduction

On 19 June 2025, the applicant filed the present application in the Civil Division of this court in terms of Rule 107(1) of the High Court Rules, 2021 on the ground that there was a violation of his constitutional right to a fair trial in terms of s 69(1) of the Constitution of Zimbabwe, 2013. The matter initially proceeded on the unopposed roll due to the respondent’s failure to file a notice of opposition within the prescribed timeframes. There were a couple of procedural directions issued by the court, including orders for the filing of supplementary heads of argument and an application for upliftment of the bar by the respondent. Eventually the respondent filed its notice of opposition.

In view of the nature of the application, the matter was subsequently referred from the Civil Division to the Criminal Division. I set the matter down for hearing on 14 October 2025 and proceeded to hear it. After considering the arguments, I dismissed the application. Immediately thereafter, the applicant made an oral application for leave to appeal to the Supreme Court against the dismissal of his application, which I also dismissed. Both dismissals were delivered by way of ex tempore judgments. Upon inquiry, the applicant confirmed that he wished to receive written reasons. I now furnish those reasons.

Background

The factual background of the matter is as follows. On 17 August 2022, the applicant was convicted by this court under case number CRB 107/15, on two counts: unlawful entry into premises as defined in s 131 and murder as defined in s 47(1) of the Criminal Law Codification and Reform Act [Chapter 9:23]. He was sentenced to three years’ imprisonment for unlawful entry and thirty years’ imprisonment for murder, with the sentences ordered to run concurrently.

Dissatisfied with both conviction and sentence, the applicant lodged an appeal with the Supreme Court. The appeal against the conviction for unlawful entry was successful, resulting in an acquittal. However, the appeal against the murder conviction was dismissed in its entirety under judgment number SC30-23.

Following the dismissal of his appeal for the murder conviction, the applicant approached the Constitutional Court. The application before the Constitutional Court was for direct access under section 167(5) of the Constitution and Rule 21(2) of the Constitutional Court Rules, 2016. The applicant challenged the Supreme Court’s decision, alleging that it violated his fundamental rights under sections 56(1), 69(1), and 70(1) of the Constitution—specifically, the rights to equality and non-discrimination, a fair trial, and the rights of an accused person. He argued that the Supreme Court failed to properly adjudicate his appeal, did not uphold the presumption of innocence, and neglected to address concerns about the trial court’s conduct, the assessment of evidence, and the legality of the sentence imposed.

With regards to the right to a fair trial, the applicant alleged that the trial judge improperly descended into the arena during proceedings in the High Court. He contended that the judge’s conduct, specifically, questioning defence counsel about reliance on particular evidence to establish guilt demonstrated partiality and bias. The applicant argued that this created a real likelihood of judicial bias, which should have been scrutinized by the Supreme Court but was not.

The Constitutional Court held that the applicant’s allegation of judicial bias, specifically, that the trial judge descended into the arena by questioning defence counsel was not raised before the Supreme Court. The applicant conceded during the constitutional court hearing that this issue had not been placed before the court a quo (the Supreme Court) for determination. As a result, the Constitutional Court found that no violation of rights could arise from a matter that was never adjudicated by the Supreme Court. Furthermore, the Constitutional Court emphasized that it was not a court of first instance and therefore could not entertain the issue for the first time at that level. The application for direct access was dismissed under judgment number CCZ 4-25 on the ground that the applicant had failed to establish a sufficient case to warrant the relief of direct access.

The application before this court

The dismissal of his application in the Constitutional Court prompted the applicant to file the present application wherein he is seeking the following relief:

“1. The application succeeds.

2. The proceedings conducted under case number HCH 107/15 be and are

hereby set aside.

3. The matter be and is remitted to the High Court Criminal in Harare for trial de novo before a different judicial officer.”

The application was based on the same allegation of judicial impropriety by the trial judge during the trial—an issue that the Constitutional Court had already dismissed on the ground that it had not been raised on appeal before the Supreme Court. The applicant contended that the trial judge’s conduct, specifically, questioning defence counsel about reliance on particular evidence, demonstrated bias and partiality, thereby violating his constitutional right to a fair hearing under section 69(1) of the Constitution of Zimbabwe. The applicant argued that the judge’s approach created a hostile environment and undermined the defence’s ability to freely present closing submissions. The applicant asserted that the judge improperly engaged defence counsel in a question-and-answer format during summation, contrary to section 200 of the Criminal Procedure and Evidence Act [Chapter 9:07], and that this did not constitute a fair summation.

Further, the applicant highlighted that the prosecutor was not subjected to similar scrutiny, which he claimed reflected unequal treatment and judicial bias. He relied on the cases of S v Konson 2015(2) ZLR 201 (CC) and Musana v S 2019 (3) ZLR 234 (S) to support his position that the judge’s conduct compromised the fairness of the proceedings and prejudiced his defence.

In opposition to the application, the respondent’s counsel argued that it was grossly irregular and procedurally improper for the applicant to invite the High Court to revisit issues arising from a judgment that had already been deliberated on and partly vacated by the Supreme Court. The respondent’s counsel contended that the applicant’s claim of a constitutional violation, specifically, that the trial judge descended into the arena was never raised as a ground of appeal before the Supreme Court and amounted to an afterthought. Furthermore, when the applicant sought direct access to the Constitutional Court following the dismissal of his murder appeal, he did not raise the present issue in that application either. However, this averment by the respondent’s counsel was not correct because the applicant did raise this issue in his application in the Constitutional Court.

The respondent’s counsel contended that the applicant was engaging in piecemeal litigation by filing multiple applications and raising disjointed issues that should have been addressed comprehensively. It was submitted that the High Court judgment had already been overtaken by decisions of both the Supreme Court and the Constitutional Court, making any attempt to revive it untimely and legally untenable. The relief sought was incompatible with the final and binding judgment of the Supreme Court.

Reasons for the dismissal of the application

During the hearing of this matter, I asked the applicant why he had brought before this court an issue that had already been dismissed by the Constitutional Court, given that this court was the trial court. He responded that, in his understanding, the Constitutional Court had dismissed the particular issue on the basis that it could not be raised for the first time before it, as it is not a court of first instance. He interpreted that statement to mean that he could return to the High Court and raise the issue here, since this court is the appropriate forum of first instance.

It is evident that the applicant misinterpreted the Constitutional Court’s remarks. The Court did not suggest that he should or could return to the trial court merely because it is a court of first instance. Procedurally, such a course of action is untenable. Once a court has concluded a matter and delivered a final judgment, it becomes functus officio. Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. This legal principle means that the court has exhausted its jurisdiction over the case and cannot revisit, alter, or set aside its own decision, except in limited circumstances expressly provided for by law, such as correcting clerical errors or ambiguities.

The fact that the case was originally presided over by a different judge of the High Court does not empower another judge of the same court to overturn or set aside that decision. All judges of the High Court operate with equal authority, and none may review or reverse the judgment of a colleague. Such an act would amount to the High Court reviewing its own decision, which is procedurally impermissible. The High Court functions as a unified institution, and its judges, being of coordinate jurisdiction, cannot interfere with each other’s judgments except in very few instances specifically provided for by the law.

Although the applicant framed his application as a constitutional challenge alleging a violation of his right to a fair trial, it is evident from the substance of the application that it is, in reality, a disguised attempt to seek review. The applicant seeks to litigate an issue that he failed to raise on appeal, now presented under the pretext of a constitutional violation. However, even if the applicant was correct in asserting that the trial judge descended into the arena and thereby infringed his right to a fair trial as enshrined in section 69 of the Constitution, this court lacks the jurisdiction to adjudicate that claim. As previously stated, a trial court cannot review or set aside its own decisions; such authority lies exclusively with a higher court. The purpose of the doctrine of functus officio, referred to above, is to provide finality in litigation. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.

Moreover, the judgment of this court in the matter was appealed to the Supreme Court, which upheld the applicant’s conviction. As the Supreme Court is a superior court to the High Court, its decisions are binding on this court. The Constitutional Court also affirmed the Supreme Court’s decision and found no constitutional violations in the manner the appeal was handled. As correctly submitted by the respondent’s counsel, this court has no jurisdiction to set aside a judgment that has been replaced by that of the Supreme Court. John Reid Rowland explains that once the Supreme Court has delivered its judgment on appeal, that decision is conclusive and binding, unless a further appeal is expressly permitted by law. The case cannot be reopened or reconsidered, except in rare circumstances where the judgment was obtained through fraud. Beyond that, no second appeal is allowed based on procedural irregularities or dissatisfaction with the merits of the decision. Additionally, the matter cannot be brought on review. There is no legal avenue to appeal a decision of the Supreme Court.  Its rulings mark the end of the litigation process. In matters involving constitutional issues, the legal framework provides a distinct pathway.

I must hasten to point out that, during the hearing, when I indicated that this court lacks jurisdiction to set aside its own decision or a decision that has been upheld by a superior court, the applicant made a request to amend the relief he was seeking. He proposed to substitute his original prayer with a request that the matter be referred to the Constitutional Court. This request was entirely without merit. It amounted to seeking referral to the very same court that had already dismissed the issue on the basis that it had not been raised before the Supreme Court. The applicant’s attempt to reintroduce the matter in the Constitutional Court through referral was therefore futile and procedurally wrong. The request was frivolous and demonstrated a fundamental misunderstanding of the legal framework governing constitutional referrals on the part of the applicant.

The principle of finality in litigation must be respected. Once the applicant failed to raise the issue of the trial judge allegedly descending into the arena during his appeal to the Supreme Court, that avenue was closed. As noted in para 17 above, once the Supreme Court has ruled, its decision is final. Therefore, the applicant cannot now seek to revive the matter through applications in this court disguised as constitutional challenges. The litigation must come to an end.

In light of the foregoing, I dismissed the applicant’s application to set aside the proceedings conducted under CRB HCH 107/15 and to have the matter heard de novo before a different judicial officer.

Following the dismissal of the application, the applicant made an oral application for leave to appeal to the Supreme Court against my decision. The State rightly opposed the application, arguing that the relief sought was legally untenable and procedurally improper. I dismissed the application on the grounds that it lacked merit. It was fundamentally defective in both substance and procedure, and had no legal foundation.

MUREMBA J…………..