BIGKNOWS WAIROSI

v

THE STATE

SUPREME COURT OF ZIMBABWE

ZIYAMBI JA, GOWORA JA & MAVANGIRA AJA

HARARE, MAY 29, 2014 & MAY 21, 2015

M Nkomo, for the appellant

E Makoto, for the State

GOWORA JA: On 7 March 2011 the High Court convicted the appellant of one count of murder with actual intent to kill.  He was sentenced to death.  This is an automatic appeal against the conviction and sentence.

THE FACTS

The deceased, Ronald Wairosi, was aged nine at the time of his death.  He was the elder of the appellant’s two sons with his first wife.  The appellant and the children’s mother had divorced when the children were very young. The deceased and his younger brother Tawanda resided with their grandmother, the appellant’s mother in Chivakanenyama area in Hurungwe. The appellant lived in Banket with his new wife.

The only eye witness to the murder was Tawanda.  He gave evidence in camera as the court found that he was a vulnerable witness.  When the murder occurred he was aged seven.  He gave evidence two years later at the age of nine.  His evidence was to the following effect. On 11 June 2007 the appellant arrived at his grandmother’s homestead and informed his mother that he wanted to take the boys to Karoi to obtain birth certificates for them.  The following day, despite his grandmother’s protestations, the appellant left with the two boys.  He took them to Karoi.  In Karoi, they proceeded to Madiro Supermarket where they boarded a single cab truck with three male occupants.  The driver was alone in the front and the other two were seated at the back in the cab.  The three men were dressed in black attire.  The appellant and the two boys sat in the back of the pick-up truck.

From Karoi the vehicle travelled a considerable distance along Chiumbarukwe Road.  The driver stopped the vehicle by the roadside in a bushy area within the farming area.  The appellant and the two children disembarked.  The occupants of the vehicle remained in the vehicle which remained stationary.  The appellant and the children walked further into the bush. Once in the bush, the appellant picked up a stone and struck Ronald.  Tawanda ran off into the bush where he spent the night.  He was found wandering in the grazing area of Sandara Farm the following day by Munyaradzi Kondo and taken to the police where a report was made.  On 16 June 2007, Japhet Mauzeni, a security guard with Sandara Farm discovered the remains of the deceased in the grazing area whilst on patrol.  He made a report to the police who attended the scene and recovered the body.