Court name
Harare High Court
Case number
HH 254 of 2017
CRB 162 of 2016

S v Kichini (HH 254 of 2017, CRB 162 of 2016) [2016] ZWHHC 254 (24 October 2016);

Law report citations
Media neutral citation
[2016] ZWHHC 254
Coram
Hungwe J

1

HH 254-17

CRB 162/16

 

THE STATE

versus

TONDERAI KICHINI

 

 

HIGH COURT OF ZIMBABWE

HUNGWE J

MUTARE, 24 October 2016

 

 

ASSESSORS: 1. Mr Rajah

                        2. Mr Chidawanyika

 

Murder trial

 

 Ms M J Matsikidze, for the State

E Mvere, for the accused

 

 

            HUNGWE J: The accused killed his elder brother over access to food on 12 July 2015.

            Upon being charged of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] he admitted the charge of murder but as per procedure a plea of not guilty was recorded.

            The following facts were common cause at trial, or were not in serious dispute.

  1. The accused and the deceased were brothers, blood brothers during the deceased’s lifetime.
  2. On 10 July 2015 their mother left the two home proceeding to a funeral; two days later she did not find both boys home.
  3. Later in the evening, the accused came home. When their mother asked him where his elder brother was, the accused explained that he had gone to a nearby township for a beer drink earlier that day.
  4. The neighbour’s dogs began showing signs that they were feeding on the remains of something big from the 13 July 2015. The neighbour suspected that probably someone’s bovine was rotting away in the pastures so he scouted the grazing area. He did not find any dead animal.
  5. On 15 July 2015 he decided to follow one of the dogs as it left home for the regular feed. He noticed a blood trail and followed it. Where it ended was a freshly filled-up disused well. It was next to the accused’s home.
  6. That same day someone at the accused’s residence noticed a trail of blood leaving the kitchen. When he was asked where the blood could have come from, the accused lied that on the 12th July 2015 he had killed a bird.
  7. That same day around midday, the accused’s neighbour and uncle, Fungai Taona called out for the accused’s mother, Jane Kichini from the disused well.
  8. When she came to the well Fungai Taona asked her what her sons had killed accused buried at the disused well. The motherly instinct alerted her that this was her missing son’s burial site.
  9. She told Fungai Taona as much. Fungai Taona went to make a formal report to Police at Bezeley Bridge.
  10. When Police dug up the disused well they recovered the dismembered remains of the deceased in a sack. They confronted the accused who confessed to killing his brother Tichaona on 12 July 2015.
  11. The Police subsequently recorded a warned and continued statement from the accused. They also made photographical record of his warned and cautioned indications during which he indicated to the police where he has struck and killed his brother with an iron bar inside the kitchen.
  12. The accused indicated the axe, the knife, the chopping board as well as the storage sack and the bee-hive. He had chopped and sliced up his brother’s body and stored away the body parts in shallow grave and a bee-hive.
  13. The post mortem examination confirmed that the deceased had suffered severe trauma to the forehead and a fracture of the skull. These injuries were of sufficient degree to cause his death. They were also consistent with the accused’s confession that he struck the deceased three times to the head killing him instantly.

 

In court the accused put up a feeble defence when he instructed counsel appearing for him.

The accused quickly abandoned his defence outline when asked under cross-examination if there was a fight between him and his brother.

His only explanation as to why he brutally killed his brother was that he feared that he could be killed. The curious point about this explanation is that accused admitted that he struck the deceased as he walked out of the kitchen. He did not try to fight back. In other words by his own admission there was no fight, contrary to his instructions to counsel. The accused admitted that when he struck the deceased he intended to kill him. His actions after he had killed him are consistent with this intent.

In the result the accused must be found guilty of murder as defined in s 47 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

 

SENTENCE

            In assessing your sentence the court takes into account the submissions made by counsel in mitigation. In your favour is the fact that you are a young first offender. You admitted your guilt thereby saving court time. That is in all probability what anyone could have said in your favour. I say this because this was a heartless and savage killing of a human being. This is notwithstanding the fact that his only crime was to control your access to food in the kitchen. By your own admission, the deceased appears to have been leaving you when you launched this cowardly attack on him. This increases your moral blameworthiness.

            Murder is a serious crime hence the law permits the imposition of capital punishment in appropriate cases. Society frowns on all such conduct which results in the loss of human life as here. The brutality with which you committed this crime calls for a tough sentence notwithstanding the mitigatory features of the offence. You proceeded to dismember your brother’s body and buried it in a shallow grave that was dug up by dogs in an effort to conceal this heinous crime. You lied about the blood trail left after the commission of the crime. Such conduct demonstrates the lengths to which you were prepared to go just to cover up your vile deed. What this says then is that your contrition only came when it was all too clear that you cannot evade the long arm of the law. You had no option but to confess your role.

In this case the following sentence is appropriate

           

Life imprisonment

 

 

National Prosecuting Authority, legal practitioners

Mvere, Chikamhi & Mareanadzo, accused’s legal practitioners