THE State V Lovejoy Chikonzo AND Anderson Gunyani AND Innocent Musemwa

### Preamble
1
HCC60/25
HHCCR1188/25
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THE STATE

VERSUS

LOVEJOY CHIKONZO

AND

ANDERSON GUNYANI

AND

INNOCENT MUSEMWA

HIGH COURT OF ZIMBABWE

MUZOFA J .10 OCTOBER  2025

Assessors:	1. Mrs Mateva

2. Mr Mashavave

Criminal Trial

G.T Dhamusi, for the State

G Mukanduri, for the 1st Accused

C Museka for, the 2nd Accused

L G Ndlovu, for the 3rd Accused

MUZOFA J:

The 3 accused persons 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”). The accused persons acting in common purpose assaulted the deceased one Shepherd Taurayi Manenji a male adult aged 36 years by then, leading to his death.

On being arraigned the accused persons 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 1st accused Lovejoy Chikonzo is a male adult aged 33 years old and resides at house number 7546 Woodgate Phase 2, Kadoma.

The second accused Anderson Ganyani is a male adult aged 30 years old and resides at house number 6638 Woodgate Kadoma

The 3rd accused is Innocent Musemwa a male adult aged 36 years old and resides at 6606 Woodgate, Phase 2 Kadoma

The deceased Shepherd Taurayi Manenji was a male adult aged 32 years residing at Golden View Phase 2 Kadoma.

On the 19th of March 2025 the 1st accused’s wife Shamiso Mudzingwa, was allegedly robbed and a cellphone taken from her. The deceased was the prime suspect.

On the 22nd of March 2025 at around 2300hours the accused persons proceeded to the deceased’s house on a mission to recover the cellphone

At deceased’s house, the accused persons were ushered into the house by the deceased’s wife, who woke up the deceased as he had retired to bed.

The accused persons interrogated the deceased after Shamiso who was their company confirmed that the deceased had robbed her.

The deceased denied the allegations. The accused persons searched the deceased’s house but could not recover the cellphone

The accused persons took the deceased demanding that he shows them where the cellphone was. They force marched the deceased for about two kilometers. Along the way the 1st accused assaulted the deceased with a sjambok, in the process they took turns to assault the deceased with the sjambok. As if that was not enough the 2nd accused picked a log and continued to assault the deceased.

When they could not extract any helpful information leading to recovery of the cellphone, the accused persons left the deceased by the road side. They each retired to their respective homes.

As a result, the deceased sustained injuries which lead to his demise

On the 23rd of March 2025 the deceased probably found his way and lay behind Kudakwashe Makaza’s house where he died. The body was taken to Kadoma General Hospital.

The deceased’s remains were examined and the doctor concluded that death was due to subdural hemorrhage, severe edema and head trauma.

The accused persons lacked the requisite intention or did not have the realization that there was a real risk or possibility that death may result from their conduct, therefore they should be found guilty of contravening s49 of the Criminal Law Code.

The state produced by consent the post mortem report which was marked exhibit 4, affidavits by medical officers who handled the deceased’s body and the accused’s confirmed warned and cautioned statements marked exhibits 5,6 and 7 respectively.

The piece of wood/log used to assault the deceased was also produced. The meter long log weighing about half a kilogram was marked exhibit 9.

The accused person’s legal representative confirmed that each accused understood the statement of agreed facts and the pleas were unequivocal.

We also considered the facts of the case and agree with the parties that the accused persons negligently caused the death of the deceased in that:

When they set out to the deceased’s house their intention was to recover the cellphone and not to kill the deceased.

The assaults were meant to extract information about the cellphone.

The accused failed to act reasonably and take the deceased to the police.

The accused failed to assist the deceased after injuring him.

Accordingly, each accused is found guilty of culpable homicide.

Sentence

The degree of negligence in this case is on the high side contrary to the accused persons’ submissions. It is disconcerting that the defense simply submitted that the degree of negligence was low without any substation. The court expects the factors upon which a submission is to be articulated to persuade the court. It is wrong to simply place a bare averment to the Court to make whatever it should with it.

The accused persons set out to confront the deceased, they were armed with a sjambok, and violence was anticipated. When they whisked him from his house around midnight, they assaulted him interchangeably using the sjambok and a log. They left him beside the road. This was a gang attack on the deceased who was a mere suspect. In S v Mupatiki and Anor HMT 50/19 the accused assaulted the deceased with switches all over the body.  They suspected him to have stolen from them; the court considered the degree of negligence as high.  In S v Gunde and another HH 481/23 the accused persons persistently assaulted the deceased person with open foot and all over the body. The court held that the degree of negligence was high.

Where members of the community take the law into their hands, play the vigilantes and incessantly assault a suspect leading to death that cannot be ordinary negligence. It was reasonably foreseeable that the indiscriminate persistent assaults using weapon only result in injuries. In S v Mupatiki and another (supra)the court held that the degree of negligence can be determined through consideration of the weapons used, the time taken assaulting the deceased, the parts of body assaulted and the number of blows .To our mind taking into account those factors the degree of negligence is high.

In assessing sentence, we considered the accused’s personal circumstances that they individually addressed the court on under oath. They are all married with family responsibilities. They are contrite and the plea of guilty attests to the contrition, they all assisted during the funeral wake which was confirmed by the deceased’s wife. The accused persons did not spend much time waiting for the finalization of the matter. The accused persons will live with the stigma of killing a person for quite some time.

Sentencing is a balancing process, guided by the applicable principles.  The court must always impose a sentence that fits the offender, the offence and fair to the interest of justice. See S v Mukono HH 667/17. The interest of justice is represented by the public’s perception of justice . Where a life is lost, the public usually expect a custodial sentence to be imposed.

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 of Statutory Instrument 146 of 2023 sets the presumptive penalty of 5 years’ imprisonment for culpable homicide with aggravating factors and 3 years’ imprisonment for culpable homicide with mitigating factors.

The defense urged the court to impose a non-custodial sentence of community service. We were not persuaded; no valid factors were given to impose such a sentence. We were taken aback to hear the defence rely on factually incorrect information that there was no premeditation and that the accused persons wanted to take the deceased to the police they only assaulted him when he tried to escape. It is important for legal practitioners to be prudent in their submissions.

As if that was not enough, we were referred to S v Marati HMA 10/21 for authority to impose community service. Indeed, in that case the accused was sentenced to community service but the accused was convicted of assault not culpable homicide.That case therefore is irrelevant in the assessment of sentence in this case. In Mupatiki and another (supra) the court held that community service sentence is a noble form of sentence for minor offences and one cannot say generally assaulting another by two adult men occasioning death is a minor offence. Imposing community service in such a case would indeed put the criminal justice system into disrepute. Society will simply lose confidence in the justice delivery system.

The court must temper justice with mercy which is the hallmark of civilized society. In S v Richards (1) ZLR SC (2001) 129 the Supreme Court held that in sentencing an offender for culpable homicide the accused is being punished for being careless and or negligent but not for his evil intent. The rationale is to encourage the accused and the general public to be cautious at all times in dealing with others and be wary of the safety of fellow human beings.

The State urged the court to impose a sentence on the higher side and referred the court to a long line of cases where sentences of more than 5 years were imposed. See S v Gunde HH431/23, S v Mukumba HH338/23, S v Mbano HB14/15.

Although the degree of negligence is on the high side, we considered that the accused used a weapon, which we saw and is not anything remarkable that could cause death. We are alive to the state’s sentiments that a weapon regardless of size can be dangerous depending on how and where it was directed. Despite that acceptable fact, the accused persons showed contrition. The accused persons assisted the deceased’s family during their bereavement. They are willing to pay compensation.

In the final we find the aggravating circumstances and the mitigatory circumstances at break even.

Accordingly, the accused persons are sentenced as follows:

“4 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition accused persons 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 they will be sentenced to a term of imprisonment without the option of a fine. Effective 3 years.”

National Prosecuting Authority, the State’s legal practitioners

Zimudzi and Associates, 1st accused’s pro-deo Legal Practitioners

Matiyashe and Associates, 2nd accused’s pro-deo Legal Practitioners

Lomalinda Legal Group, 3rd accused’s pro-deo Legal practitioners