By Daniel Nemukuyu
The High Court has quashed a six-year jail term imposed on a Mutare man after establishing that the presiding magistrate erroneously found him guilty of culpable homicide.
Chengetai Kamba was jailed for negligently causing the death of a neighbour.
On review, High Court judge Justice Felistus Chatukuta found that Kamba killed the neighbour in self-defence.
On that basis, the judge set the sentence aside.
“The accused pleaded guilty without realising that he had the defence of self-defence available,” he said. “In light of the above, the conviction is unsafe and should be quashed.
“I have caused the issuance of a warrant for the immediate release of the accused. In the result, it is ordered that the conviction be and is hereby quashed.”
Justice Joseph Musakwa agreed with the findings of Justice Chatukuta in the matter.
The High Court also found that Kamba’s level of education at the time the offence was committed was very low and that it was highly probable that he could have just pleaded guilty without fully appreciating the court proceedings.
“The accused in the present matter is a youthful offender, only 22 years of age at the time of prosecution,” he said. “He submitted in mitigation that he was in Grade Seven (7) when he was arrested (despite being 22-years-old).
“Given this background, he is unlikely to have appreciated the proceedings, let alone that he had a possible defence.”
The magistrate, according to the Justice Chatukuta, erred in not considering a complete defence available to Kamba in the circumstances.
“While accepting that the deceased was the aggressor and had pursued the accused to the end, the trial magistrate did not consider that the accused might have acted in self-defence,” he said.
“Had he done so, he might not have convicted the accused as self-defence can in certain circumstances amount to a complete defence.
“Circumstances of this case begged for the trial magistrate to assist the accused who was unrepresented as the facts do not preclude self-defence.”
Facts were that Kamba had an altercation with Tirivangani Sigauke and the neighbour chipped in, in a bid to assist in resolving the dispute.
The neighbour failed to resolve the dispute and ended up joining Sigauke in attacking Kamba, who threw stones at the duo in self-defence.
Kamba later fled the scene and sought refuge at a nearby homestead where there was no one and the duo followed him.
Realising that he was being overpowered, Kamba drew out a knife and fatally stabbed the neighbour on the chest.