Mukuyu and Another v State (451 of 2025) [2025] ZWHHC 451 (9 June 2025)

2 HH 451-25 HCHCR 43/22 KUDZANAI MUKUYU and CHRISPEN JORDAN versus THE STATE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE; 31 March & 9 June 2025 Criminal Appeal Appellants in person Ms L Chitanda, for the respondent ZHOU J: The appellants were convicted of 4 counts of robbery as defined in s 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were each sentenced to a total of 32 years imprisonment of which 8 years imprisonment was suspended on condition of good behaviour. A further 6 months imprisonment was suspended on condition of restitution. Effective 23 ½ years imprisonment. They filed separate notices of appeal in accordance with the order by Foroma J of 19 July 2024. The same order also granted them leave to prosecute their appeals in person. In the court a quo Kudzanai Mukuyu was accused 5, while Chrispen Jordan was accused 6. In this appeal they will, respectively, be referred to as the first and second appellants. They were facing 7 counts of robbery but were convicted on 4 counts- 1,2,4 and 7. In count 1, the court found that on 19 July 2016 and at Westgate, Harare the accused robbed the complainant, Petros Takaindisa, of his Toyota Raum motor vehicle, a wallet containing US$55, and a Nokia E62 cellphone. In count 2 the court a quo found that the appellants and their accomplices robbed Absolom Shonhiwa of his Honda CRV motor vehicle, US$100 and a G Tel cellphone. In count 4 the court a quo found that the appellants robbed Wilfred Magura of his Toyota Fun Cargo motor vehicle, a Nokia C3 cellphone, a Karbon smart cellphone, a driver’s licence, a passport, and cash in the sum of US$70. In count 7, the Magistrates Court found that the appellants and their accomplices robbed Amos Farai Mutevera of his Honda Fit motor vehicle. The registration details of the motor vehicles concerned are given in the judgment of the court a quo. Although they filed their notices of appeal separately, they raise the same issues, which relate to the fact of having been implicated by co-accused’s, the issue of identification or what they allege was dock identification, reliance on similar fact evidence and the alleged failure to show how common purpose applied to them. As regards the sentence, the allegation is that there was a misdirection in the failure to order the sentences or some of them to run concurrently. There is also an attack on what is alleged to be extravagant and over blown language of the Magistrate as showing that the Magistrate’s sentence was induced by emotions and was unduly harsh. It is common cause that in all the counts the same modus operandi was deployed, in that the appellants would hire the motor vehicle of their victims before robbing them. The number of assailants was generally the same for all the counts. In court 1 second appellant was clearly identified by the complainant. Accused 4 upon his arrest led the police to the first and second appellants who were then also arrested by the police. Following their arrest they were positively identified by the complainant in count 2. Given the modus operandi and the number that was involved in the other robberies, the court a quo correctly found that the state had proved the guilt of these two beyond reasonable doubt. The court a quo also correctly found that the appellants were co-perpetrators with their co-accused persons who were also convicted. In all the robberies they were present and played their different roles as identified by the witnesses. As regards the sentence, this is a matter within the discretion of the trial court. The appellate court does not lightly interfere with the exercise of that discretion in the absence of evidence that it was not exercised judicially. In casu the sentence imposed does not induce any sense of shock. There was careful planning and execution of the robberies. The property involved in the robberies was one of value,a motor vehicle. Any lesser sentence than that imposed by the court a quo would be a threat to the administration of justice. In all the circumstances this is an appeal that is wholly without merit In the result, IT IS ORDERED THAT: The appeal be and is dismissed in its entirely. Zhou J:……………………………………………… Chikowero J:………………………………..agrees. 2 HH 451-25 HCHCR 43/22 2 HH 451-25 HCHCR 43/22 KUDZANAI MUKUYU and CHRISPEN JORDAN versus THE STATE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE; 31 March & 9 June 2025 Criminal Appeal Appellants in person Ms L Chitanda, for the respondent ZHOU J: The appellants were convicted of 4 counts of robbery as defined in s 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were each sentenced to a total of 32 years imprisonment of which 8 years imprisonment was suspended on condition of good behaviour. A further 6 months imprisonment was suspended on condition of restitution. Effective 23 ½ years imprisonment. They filed separate notices of appeal in accordance with the order by Foroma J of 19 July 2024. The same order also granted them leave to prosecute their appeals in person. In the court a quo Kudzanai Mukuyu was accused 5, while Chrispen Jordan was accused 6. In this appeal they will, respectively, be referred to as the first and second appellants. They were facing 7 counts of robbery but were convicted on 4 counts- 1,2,4 and 7. In count 1, the court found that on 19 July 2016 and at Westgate, Harare the accused robbed the complainant, Petros Takaindisa, of his Toyota Raum motor vehicle, a wallet containing US$55, and a Nokia E62 cellphone. In count 2 the court a quo found that the appellants and their accomplices robbed Absolom Shonhiwa of his Honda CRV motor vehicle, US$100 and a G Tel cellphone. In count 4 the court a quo found that the appellants robbed Wilfred Magura of his Toyota Fun Cargo motor vehicle, a Nokia C3 cellphone, a Karbon smart cellphone, a driver’s licence, a passport, and cash in the sum of US$70. In count 7, the Magistrates Court found that the appellants and their accomplices robbed Amos Farai Mutevera of his Honda Fit motor vehicle. The registration details of the motor vehicles concerned are given in the judgment of the court a quo. Although they filed their notices of appeal separately, they raise the same issues, which relate to the fact of having been implicated by co-accused’s, the issue of identification or what they allege was dock identification, reliance on similar fact evidence and the alleged failure to show how common purpose applied to them. As regards the sentence, the allegation is that there was a misdirection in the failure to order the sentences or some of them to run concurrently. There is also an attack on what is alleged to be extravagant and over blown language of the Magistrate as showing that the Magistrate’s sentence was induced by emotions and was unduly harsh. It is common cause that in all the counts the same modus operandi was deployed, in that the appellants would hire the motor vehicle of their victims before robbing them. The number of assailants was generally the same for all the counts. In court 1 second appellant was clearly identified by the complainant. Accused 4 upon his arrest led the police to the first and second appellants who were then also arrested by the police. Following their arrest they were positively identified by the complainant in count 2. Given the modus operandi and the number that was involved in the other robberies, the court a quo correctly found that the state had proved the guilt of these two beyond reasonable doubt. The court a quo also correctly found that the appellants were co-perpetrators with their co-accused persons who were also convicted. In all the robberies they were present and played their different roles as identified by the witnesses. As regards the sentence, this is a matter within the discretion of the trial court. The appellate court does not lightly interfere with the exercise of that discretion in the absence of evidence that it was not exercised judicially. In casu the sentence imposed does not induce any sense of shock. There was careful planning and execution of the robberies. The property involved in the robberies was one of value,a motor vehicle. Any lesser sentence than that imposed by the court a quo would be a threat to the administration of justice. In all the circumstances this is an appeal that is wholly without merit In the result, IT IS ORDERED THAT: The appeal be and is dismissed in its entirely. Zhou J:……………………………………………… Chikowero J:………………………………..agrees.