Kenmore Sign and Blessing Kutyauripo v The State

1
                                                                                    HH 336-21
                                                                            CRB MTD 877/20
                                                                           CRB MTD 1246/20


KENMORE SIGN
and
BLESSING KUTYAURIPO
versus
THE STATE

HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 15 June 2021


Review Judgment


       CHITAPI J:      The two records of proceedings suffer from the same procedural
irregularity in relation to the disposal of the cases by way of trial on a guilty plea procedure
as provided for in terms of s 271(2)(b) as read with s 271(3) of the Criminal Procedure and
Evidence Act, [Chapter 9:07]. The cases were dealt with by the same Magistrate at Mount
Darwin Magistrates’ Court.
       In the case of Kenmore Sign, CRB MTD 877/20, the accused was convicted of
robbery as defined in s 126(1)(a) of the Criminal Law Code [Chapter 9:23]. It was alleged
that on 20 September 2020 at Mukarachi panning site, Mt Darwin, the accused in the
company of accomplices tripped the complainant who fell to the ground. The accused and his
accomplices then forcibly took from the complainant a cell phone handset, and cash of
ZW$210 and USD $575.
       In the case of Blessing Kutyauripo CRB MTD 1246/20. The accused was convicted of
assault as defined in s 89 of the Criminal Code. It was alleged against him that on 12
December 2020 at a house in Mupfuri Heights in Mount Darwin, the accused assaulted the
complainant with a wooden plank thereby causing injuries to the complainant or realizing
that bodily harm could result. The accused was sentenced to 24 months imprisonment with 6
months suspended on conditions of future good behaviour.
       Both cases were unprocedurally dealt with in that the peremptory requirement that the
explanation of the charge be given to the accused before he is called upon to plead as
provided for in s 271(3)(a) of the Criminal Procedure and Evidence Act, were not complied
with. The magistrate in response to my query whether or not he was properly directed to the
                                                                                                     2
                                                                                             HH 336-21
                                                                                 CRB MTD 877/20
                                                                                CRB MTD 1246/20


provisions of s 27(3)(a) as aforesaid responded as follows in a reply minute dated 6 May
2021.
        “I have gone through the issues raised and wish to apologise for the error of omission in not
        recording the explanation of the charge to the accused person.

        My humble apology, that error of omission will not be repeated in the near future.

        I stand guided and to be corrected.”
        The position taken by the review court where such an omission has occurred was set
out in the judgment in S v Enock Mangwende HH 695/20. It was held that the provisions of s
271(3) were intended to ensure fairness to the accused by ensuring that the accused tenders a
guilty plea deliberately and knowingly. In other words a failure to comply with the provisions
of s 271(3) results in an unfair trial. An unfair trial cannot be condoned and no law may in
terms of s 86(3)(e) of the constitution limit the accused’s right to a fair trial. In the
Mangwende case (supra) the conviction and sentence was set aside. That course will
similarly be adopted herein since the proceedings under review are not certifiable as being in
accordance with real and substantial justice. The magistrate’s attention is also brought to the
case of S v Tamiriraishe Moyo HH 697/20.
        Resultantly the following order is made:
   1. The proceedings in case S v Kenmore Sign CRB MTD 877/20 and S v Blessing Kutyauripo
      CRB MTD 1246/20 are set aside and the convictions as well as sentences which were
      imposed.
   2. The accused persons shall be forthwith released from custody.
   3. The Prosecutor General retains his discretion to prosecute the accused persons afresh.
   4. In the event of a fresh prosecution being instituted the case shall be dealt with by a different
      magistrate and in the event of a conviction the accused shall not be sentenced to a more
      severe sentence than that imposed in the quashed proceedings and the sentence already served
      shall be considered as an already served portion of the sentence which the court may impose
      on retrial.
   5. This judgment disposes of both CRBs MTD 877/20 and MTD 1246/20 and the Registrar shall
      ensure that a copy of the judgment is assigned to each record.




        MUSITH J ………………………………………Agrees