The accused is charged with the murder of Keniard Doro. The indictment charges that on 20 January 2015, and at Hereford Farm, Centenary, the accused, acting with an intent to kill or realizing the real risk or possibility that his actions may result in death, struck the deceased several times all over his body with a knobkerrie thereby inflicting injuries from which the deceased succumbed to his death.
The accused, when asked whether he understood the charge, confirmed that he understood it.
When asked what his plea to the charge was, he said:
“I do admit the charge although I would like to explain further.”
Counsel for the accused stood up and indicated to the court that the plea by the accused did not accord with his instructions. He requested the court for leave to consult with the accused so that he could fully appreciate the accused's position.
The court granted the leave.
Counsel for the accused advised the court that he had taken instructions and explained to the accused the procedural aspects of plea recording. The court then explained the indictment to the accused and the elements of the crime of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The accused confirmed that he fully understood the explanation of the indictment by the court.
When asked whether he admitted or denied the charge, in the light of the explanation which he had understood, he responded as follows:
“I will deny the charge because there are certain aspects I will agree to and others which I will deny.”
The court recorded a plea of not guilty, which plea was confirmed as according with his instructions by counsel for the accused. The court also recorded the accused's explanation.
The court is required to record the statements so made in terms of section 180(5) of the Criminal Procedure and Evidence Act [Chapter 9:07]….,.
The material facts alleged by the accused in his Defence Outline were as follows;
1. He denied taking part in any active act which led to the death of the deceased whom he did not know in his lifetime - albeit denying that the remains recovered by the police and said to be those of the deceased were not in fact those of the deceased....,.
The State opened its case by tendering a post mortem report as an exhibit in terms of section 278(2)(b) of the Criminal Procedure and Evidence Act.
The report pertained to the examination of the remains of a deceased person noted in the report as Keniard Doro Korekore. The remains were examined by Doctor Gonzalez, a legal medicine specialist employed by the Ministry of Health and Child Welfare. He examined the remains on 14 August 2015 at Harare Hospital after they were identified to him by Zimbabwe Republic Police details from Centenary. The doctors' observations revealed no fractures of the skull, ribs or long bones. He could not ascertain the cause of the deceased's death because only bones remained.
Counsel for the accused consented to the production of the report and it was accepted as exhibit 1.
The State led evidence from the following witnesses whose evidence is summarized hereunder.
Dorothy Simbi: Is the wife of the deceased. She testified that the deceased left home, that is Plot 13 Mukwengwere Farm, Centenary, on 20 January 2015 in the morning. He left driving his motor vehicle, a Toyota Ipsum registration No. ABL 4665. He was in the company of Shongedzai, their daughter. The deceased undertook the journey as part of his routine since he always ferried children to crèche at St Alberts. She said that the deceased relied on commuting passengers with this car for a living.
This was the last time that the witness saw her husband alive.
She last tried to call him on his phone around 10:00am but did not receive any response. The daughter, Shongedzai, who would have returned with the deceased, showed up in the evening - alone. Shongedzai narrated to the witness how she had moved with the deceased that morning. When the deceased did not show up the whole evening, something which he had never done before, she proceeded in the morning to St Alberts to make a report to the police. She also alerted members of the close family about the deceased having gone missing. Searches were carried out but the deceased was not found.
On 13 August 2015 the witness was shown some human remains by the police at Mvurwi police station. She identified the remains as those of the deceased. The remains consisted of a skeleton. She, however, identified the remains as those of the deceased through recognizing his belt and pair of cream trousers. She could not commit herself to saying that she identified the remains through a T-shirt though she mentioned it. The T-shirt had discolored. She also said that the head or skull had a jacked wrapped round it but she did not know whose jacket it was.
Under cross-examination, the witness refuted the suggestion that because the remains were just bones, she could not be certain that they belonged to the deceased. She steadfastly maintained her evidence that she identified the deceased's trousers and belt and also said that the deceased's bones were still intact, in a skeleton shape, and not just single bones....,.
The witness gave a simple narration of how the deceased left home in the morning on 20 January 2015 and was never seen alive again.
Her evidence was largely not contentious save for the issue of how she identified the remains recovered by the police as those of the deceased. She maintained her position the she identified the remains as those of the deceased through the belt which was still wrapped round the trousers which trousers was still downed by the skeleton. She identified the remains through the trousers which she said belonged to the deceased.
The items of clothing were buried together with the remains and were not available to the court. The court noted that the issue of the identification of the deceased's remains did not appear to have been an issue and was not questioned until the trial commenced….,.
Shongedzai Doro: Is the deceased's daughter and was residing at the same Plot as the deceased. She worked, and still works, as an Early Childhood Development (ECD) teacher at St Alberts Centre, Centenary.
She left home in the company of the deceased on 20 January 2015 in the deceased's motor vehicle. They were headed for St Alberts. As the vehicle got to St Alberts police station, the deceased's cellphone rang and it was on loud. The person who phoned said; 'Wave kupi mudhara (Oldman where are you now?). The deceased responded that he had already left home and that the caller should wait for him at Zororo restaurant. The caller then responded that he was already at the place.
On arrival at Zororo restaurant, the witness saw the accused. He came to the driver's window and spoke to the deceased saying that 'they were late'. The deceased then asked the accused to wait whilst he dropped the children he was carrying in the car at the bus rank. The deceased then gave the witness $100 and asked the witness to give him $10. She did so and retained $90. She disembarked from the vehicle. The deceased then told her that he had been hired by the accused but that the witness should wait for him after work so that they would return home together.
She testified that the accused, whilst sitting in the passenger seat, kept his face down and did not look up nor speak to her. When she finished work she waited for the deceased but he did not show up. Around 4:00pm she telephoned her husband who came to pick her up and they returned home. She narrated to her husband, and mother, how the deceased had left her, on hire by the accused, and taken a direction which she did not notice. This was the last time that she saw the deceased.
She was part of the team which searched for the deceased on the following day. She also sought police assistance and tried to gather information on the deceased's movements at the bus rank to no avail.
The witness identified the remains of the deceased at Mvurwi police as well as the accused whom she saw having a meal. She said that she identified the deceased through his grey hair and T-shirt with a red line which was however no longer visible.
The witness was cross examined on the attire which the deceased had been wearing on the day in question and he said that the deceased was putting on a red T-shirt with a white stripe, grey trousers and a green jacket. When put to her that her mother had testified that the deceased was putting on a cream trousers, she disagreed and reasoned that her mother could have been mistaken on account of her age. She confirmed that the skeletal remains still had a belt round it but could not commit to the belt colour as it was dirty. There was still a little human flesh around the waist line of the skeleton with the rest being bones. Some of the grey hair was on the jacket and some on the head. The witness stated that she was scared when she saw the remains but maintained that her fears were related to her failure to have a second look at the skeleton. She was however satisfied that the remains were those of her father....,.
The witness's evidence was given in a simple narration. Despite the fact that the deceased was her father, she exhibited a high degree of composure. The court was impressed with her demeanor and accepted her evidence which was not seriously challenged save with respect to the identification of the deceased….,.
Elijah Doro: Is the deceased's son and stays at 61 Avenue Haig Park. He is employed as a Research Officer by the Parliament of Zimbabwe.
On 20 January 2015, he was in Harare when he received a phone call from his mother, the first witness, who reported that the deceased had not returned home after leaving in the morning. He advised his mother to report to the police after 14 days. In the meantime, he took time off work and went to join up with other family members to search for the deceased. The searches were in vain....,.
The witness identified the deceased by his clothing, namely, a cream trousers and golf t/shirt which he had bought for the deceased in Uganda. He noted that the deceased had a jacket wrapped on his head or skull and the jacket did not belong to the deceased....,.
Tapiwa Maziti: Is a detective sergeant in the Zimbabwe Republic Police and part of the investigating team.
He accompanied the investigating officer, Sergeant Chinyani, to Nembudziya and Kadoma Police Stations following the arrest of the accused and the last witness, Evans Mupundu. This was following the recovery of the deceased's motor vehicle. The team interviewed the accused, and, thereafter, the accused elected to make indications which he did freely and voluntarily.
The accused indicated the route which he took from St Alberts and also how he, Ngonidzashe Dube and Amos Moyo murdered the deceased. The deceased's remains were recovered, on the accused's indications, covered by stones in a shallow cave. The remains were taken to Mvurwi CID and identified by the deceased's relatives. He said that a team was dispatched to Gokwe to investigate the whereabouts of Ngonidzashe Dube and Amos Moyo but the two could not be found or identified.
The accused then gave another address to which police were dispatched. The witness was then transferred to Chiredzi and did not know what the result of the subsequent investigation or follow up revealed.
Under cross examination, he agreed that the accused mentioned the involvement of his accomplices, Amos Moyo, whom he said was his brother, and Ngonidzashe Dube, whom he said was a friend. He denied that the names mentioned by the accused were Amos Dube and Ngonidzashe Sithole. He also denied that the accused mentioned that he was employed by Amos Dube, a policeman.
The indications took one and a half to two hours when the police got to the mountainous areas where the deceased's remains were found. However, the aggregate time from the time the police and the accused left the station was about eight (8) hours because most of the time was spent negotiating the roads and the place was about 150km away from Mvurwi.
The accused indicated a rented place where he said him and his accomplices were camping before meeting with the deceased. He also indicated the place where the deceased was attacked and also where the deceased's body was buried. The witness described the general area where the murder occurred as a newly resettled area, sparsely populated, with the nearest house, though unoccupied, being some 200-300 metres from the place where the deceased's body was recovered. There were also some 10 or so houses some 500m-600 metres away. The area has dense vegetation. The team did not meet any person nor see livestock during indications.
The witness denied that the deceased was assaulted by either him or anyone else.
He denied that he already had an idea of the area where the indications took place. He denied being aware of whether or not the accused's warned and cautioned statement was confirmed nor the reasons thereof. He admitted however that the accused alleged, at court, on 13 August 2015, that he had been assaulted.
He denied that the accused was denied food and said that, as a detainee, the accused was fed by the uniformed section of the police.
He denied the suggestion that he was out to mislead the court.
In re-examination, he said that he was not aware that the deceased was dead prior to indications.
On clarifications by the court, the witness testified that the remains of the deceased were located at Hereford Farm in Centenary being a place which the witness had never previously visited. Despite the suggestion by the accused's counsel that the witness was out to mislead the court, the court did not share this view. On the contrary, the evidence of the witness was clear and easy to believe.
The crux of his evidence related to indications allegedly made by the accused. The indications led to the recovery of human remains identified later as those of the deceased. It was not alleged that the remains were planted where they were found and the accused merely led to the place. It was not shown that the witness knew the place where the recovery of the remains took place prior to the accused's indications....,.
Roy Chinyani: Is a Detective Sgt in the Zimbabwe Republic police. He is the investigating officer.
He was allocated a docket concerning the missing deceased and his motor vehicle, an Ipsum, registration No. ABL 4605, on 21 January 2015. The witness interviewed Alexio Manyara and Roderick Chakabuda on 24 January 2015. They alleged that they had been offered employment by the accused as driver and assistant on 24 January 2015 but the accused just dumped them.
Roderick Chakabuda knew the accused. He alleged that he had previously stayed with him in Muzarabani. The witness later received information concerning the deceased's vehicle from Farai Doro. He teamed up with other police details and went to Nembudziya police station where he interviewed Evans Mupundu who narrated how he had been requested by the accused to drive the vehicle, and, later, paid a deposit fine for driving a vehicle without a licence. He recovered the deceased's vehicle and discovered that the accused had been released to go and collect the vehicle registration book before the vehicle could be released to him.
However, the accused did not return.
In August 2015, he was advised of the accused's arrest in Kadoma. He proceeded there and interviewed the accused under warn and caution. He then took the accused to Mvurwi Police Station for further investigations. At Mvurwi, the accused elected to make indications. The accused indicated the place where he was picked up by the deceased, the place where the vehicle failed to cross a stream, and the place where the deceased was attacked, as well the place where the remains were recovered in a shallow cave.
He said that the accused mentioned that he committed the offence with accomplices, namely, Amos Moyo and Ngonidzashe Dube. The accomplices could not be found at places where the accused gave out as their place of abode. The persons were not known.
He went to Chikurubi Prison where the accused gave him names of girlfriends of the said accomplices and where to find them so that they could assist in the location of the accomplices. The girlfriends were not located nor known.
The witness' evidence, as to the recovery of the deceased's remains, was the same as that of the last witness and no purpose will be served by regurgitating it. Under cross-examination the witness said that the belt and trousers were buried with the remains of the deceased and he did not consider it necessary to keep them as exhibits....,.
The witness gave his evidence in a straightforward manner. The evidence was not contentious. Again, the materiality of his evidence lies in the indications made by the accused...,.
The accused elected to give evidence and he took the oath.
He gave a long story in which a lot of what he stated had little relevance to his defence.
His defence, per his Defence Outline, was basically that whilst he had knowledge of the case, his involvement was peripheral or indirect because he was acting on instructions of Amos Dube, a serving member of the Zimbabwe Republic Police, who was his employer.
The evidence will not be repeated but a summary of the same will suffice.
He said that he had been employed by Amos Dube for three (3) years as a herd boy. He was told by his employer that they were going to buy cattle in Muzarabani and he was surprised. He was given a phone and directed to telephone the deceased. The deceased was known to Amos Dube. Amos Dube told the accused, on phoning him, to say that they would be going to pay lobola and would meet Amos on the way. He did connect with the deceased and met with Amos Dube and Ngonidzashe Sithole at a place called Chinyani.
It was at this place that the deceased was ordered to disembark from the vehicle, grabbed by his hands, and handcuffed. Ngonidzashe Sithole then put the deceased in leg irons. The deceased was tied to two trees whilst prostate. He called out for help but no one assisted him. He was left there.
He said that the handcuffs belonged to Amos Dube. He admitted that the three of them, with Amos driving, left or abandoned the deceased. In short, they robbed the deceased of his motor vehicle.
The rest of the evidence concerned how the trio continued to use the vehicle for their errands.
He admitted being sent to try and retrieve the car registration book from the deceased's place and posing as a policeman there after being given a police uniform by Amos Dube. The trio later returned to where the deceased was. He was still alive. The deceased was asked for the car registration by Amos Dube and Ngonidzashe Sithole. He told them that the book was at his home.
He went to the deceased's homestead. He admitted lying to the deceased's family about the registration book.
He admitted that he again returned to the scene with Ngonidzashe Sithole and Amos Dube and found that the deceased had died. He said that Ngonidzashe Sithole then gave him keys to unlock the handcuffs and leg irons. Amos Dube, however, volunteered to unlock the cuffs and did so. The deceased's body was then placed beside a rock and covered with grass and stones. The deceased's remains were left there and the trio drove away.
The accused testified that after covering the remains of the deceased, Amos Dube drove the vehicle, with him and Ngonidzashe Sithole as passengers, to Centenary. Whilst in Centenary, Amos Dube then said that he was known in the area. He was asked to look for a driver because he (the accused was not known). He then went to the bus rank and looked for a driver to drive his boss. He engaged a driver whose name he does not remember but that driver was in the company of Roderick Chakabuda whom he knew. He said that the driver, him and Roderick Chakabuda then proceeded to Chegutu where Amos Dube and Ngonidzashe Sithole had proceeded in advance. The driver and Roderick Chakabuda were dropped off in Chegutu and Amos Dube took over the driving and the trio, that is, the accused, Amos Dube and Ngonidzashe Sithole then proceeded to Kadoma.
From Kadoma, they drove to Copper Queen where the vehicle ran out of fuel and it was left on the roadside. The trio went to their homes.
On the following morning, the accused was instructed to go and collect the vehicle and he went with fuel. He said that he engaged a driver whom he knew to drive the vehicle but it would not start as the battery was flat. He then returned to Amos Dube's place and collected a tractor battery. The driver was able to start the vehicle. From there, he said that the vehicle, with him and the driver as the occupants of the vehicle, was driven to Kuwirirana Business Centre. He did not tell the driver their exact destination. At Kuwirirana Business Centre, he was instructed by Ngonidzashe Sithole to take the vehicle home. He however never got the opportunity to do so because he was then arrested at that Business Centre and detained by police details from Nembudziya. He was released on the following day to go and collect the vehicle registration book.
He lied to the deceased's family that upon his release he was given the police uniform by Amos Dube. He then masqueraded as a policeman and tried to get the deceased's family to give him the book after lying to them. He gave details of the lies he told the deceased's family about who he was and why he wanted the registration book. He had said that he had business at St Alberts after failing to get the book. He returned to his accomplices and they agreed to abort the efforts to retrieve the book.
The deceased's family members continued to phone on the numbers which he had given them when he lied that he was going to St Alberts. Amos Dube would cut them off.
In terms of sequence of events, the visit to the deceased's homestead occurred before they went back to where they had left the deceased in handcuffs and leg irons to retrieve the same and bury the deceased's remains. He said that he then returned to his workplace in Gokwe and continued with his duties of herding cattle and doing other chores. He then went to Kadoma for some shopping, missed his bus back home and was arrested by police officers patrolling the bus rank. He was detained for four (4) days and was collected by police officers from Mvurwi CID on the fifth day.
He denied having been in police uniform upon his arrest. He said that police assaulted him.
He testified that he told the police to quickly arrest Ngonidzashe Sithole and Amos Dube but the police did not believe his story about the involvement of Ngonidzashe Sithole and Amos Dube. They accused him of lying.
The accused was asked by his pro-deo counsel whether he did anything in the goings on which contributed to participating in the commission of the offence charged. The accused's response was that;
“I was following instructions.”
He said that he was forced to sign a warned and cautioned statement and was thoroughly beaten to a point where the magistrate at Guruve ordered that he be treated as he was coughing and nose bleeding.
The court noted, however, that the statement was no tendered in evidence.
He said that Amos Dube and Ngonidzashe Sithole used to visit him at prison. He further testified that each time he gave the police the correct names of his accomplices, the police would deliberately change the names to fix him because he is an orphan. He said that the police changed the names to Amos Moyo and Ngonidzashe Dube yet he had given them the names Amos Dube and Ngonidzashe Sithole.
The accused was cross examined by the prosecutor.
He was just on the defensive and evaded questions. He however agreed that the person whom he lured on the pretext of hiring him is the same person whose remains were recovered by police. The admission, of course, put paid to his denial, in the Defence Outline, that the remains recovered by the police were those of the deceased in this indictment.
He denied that Shongedzai Doro saw him when he was picked up by the deceased. He denied picking up Arnaldo Maguina Mussaliva, the priest. He denied being in uniform when he went to the deceased's residence to try and get the vehicle log book.
Asked why he impersonated a police officer, he said that he was not educated and had in fact asked Amos Dube and Ngonidzashe Sithole whether, when they sent him to try and get the vehicle log book, he would not meet up with the police.
He denied that he introduced himself to the deceased's family as Constable Makomo of Bindura Traffic.
Asked about the cell number which he gave to the deceased's relatives being that of a teacher he said that the number belonged to Amos Dube.
He said that when the deceased was being tied up, he sat inside the car and did not do anything. Asked what he thought was happening when the deceased was being tied up, he said that he was pre-occupied with his thoughts which were troubling him, in particular, that he no longer wanted to work for Amos Dube. Asked why he did not report the incident to the police, he said that he was not given a chance. As to why he continued associating with Amos Dube and Ngonidzashe Sithole, to the extent of hiring drivers and also accompanying them to Kadoma, Chegutu, Sanyati and Copper Queen, he said that he had nowhere to go.
He agreed that when the trio returned to the place where the deceased had been left tied up, to follow up on the vehicle log book, the deceased was still alive but very hungry. He appreciated that the deceased could die.
Asked if he cared at all what would happen to the deceased, he said that he did care, but that Amos Dube and Ngonidzashe Sithole were hard-hearted or headed.
He agreed that he was 26 years old at the time of the incident, an adult, but that Amos Dube stopped him from helping the deceased. He said that he was illiterate and did not own a driver's licence.
It was put to him that Amos Dube and Ngonidzashe Sithole were an afterthought of his and he said that the police deliberately recorded the names wrongly.
He could not explain the discrepancy between his Defence Outline and his evidence regarding indications and said that the police are the ones who made him indicate the various indications and that he was in leg irons.
He agreed that he stayed with his accomplices in a hut near the place where the deceased was attacked but that he stayed there with his accomplices only once. Asked by the court whether he appreciated that he and his alleged accomplices were committing an offence, he said that he could not do much as he was employed.
Asked why the police would shield criminals by recording wrong names to the ones he gave them, he said that he did not know.
The accused did not impress the court at all as witness in his defence. He failed to present a coherent account of his involvement in the events leading to the death of the deceased. The court was of the view that the accused was making every effort to make a clean breast from blame or involvement in the death of the deceased and sought to portray his role as being on the peripheral.
He sought to convince the court that he was just an unwilling log in a machine being operated upon by his accomplices. Measured against the State witnesses, the accused presented himself as a pathetic witness who did not care to tell even the most obvious lie. Each time that the accused opened his mouth to speak, one expected surprises if not fairy tales. The court rejected the evidence wherever it conflicted with that of State witnesses.
The prosecutor submitted that there were really few, if any, material disputes of fact when one considered or contrasted the evidence of the State witnesses with that of the accused. The only point of disagreement or departure consisted in the accused's involvement of his alleged accomplices whom no one appears to have seen – except, of course, the accused.
The police tried to follow on the leads regarding the accomplices but drew a blank.
The accused's assertion that the police, when given leads and names of the accomplices, deliberately changed the names given to them, is so improbable and unbelievable as to be decidedly false.
Only a gullible court would accept that, in the circumstances of this case, and given the seriousness of the charge of murder, the police would have sought to sacrifice the accused and exonerate the accomplices. No motive for such dereliction of duty or un-professionalism on the part of the police was suggested and the allegation just didn't make sense and must be dismissed.
The objective evidence in this matter clearly established, beyond any reasonable doubt, that:
(a) The accused purported to hire the deceased for purposes of going to pay lobola in Mount Darwin - which was a lie. The motive for the hire was intended to lure the deceased to agree to the hire as he would have wanted to know the purpose of the proposed trip.
(b) At all material times, the accused was in the deceased's motor vehicle and had possession and control of it, either by himself or through third parties whom he engaged to drive the vehicle under the guise that he had employed them only to dump them.
(c) The accused's actions leave the court, and, indeed, any reasonable trier of fact, in no doubt that he intended to deprive the deceased of his motor vehicle and went to the extent of impersonating a police officer and lying to the deceased's family as to his identity in a bid to cause the family to release the registration book. If the registration book had been released to the accused, he would have again hoodwinked the police at Nembudziya to release the deceased's vehicle to him.
(d) The accused could not have remained in the motor vehicle when the deceased was being disposed of his vehicle as he alleged. It is also inconceivable that the deceased would not have offered some resistance. In any event, even if it were accepted that the accused had accomplices who helped him disable the deceased, he, nonetheless, did not dissociate himself from the unlawful acts of the accomplices and thus made common purpose with them. He clearly appreciated what had been done to the deceased, that is, robbing him of his motor vehicle. He then willingly took a ride with his accomplices in the vehicle, that is, if there were any accomplices at all.
(e) The remains of the deceased were found as a result of indications made by the accused....,.
The accused's pro deo counsel submitted that there was no evidence led, beyond reasonable doubt, that the remains recovered by the police were those of the deceased.
This submission was startling because the accused himself indicated the place where the remains of the deceased had been buried. There was no suggestion that the remains could be of anyone else other than the deceased. The accused admitted that the deceased died as a result of the actions of the accused's accomplices and they recovered their handcuffs and leg irons from the deceased's body before burying his remains under stones and grass.
What better evidence of identification could one have sought for?
This was a clear case where the identification of the body of the deceased was made by the accused and confirmed by the State witnesses. No scientific evidence was necessary.
In any event, it would not have mattered that the remains were not of the deceased but of another human for as long as such unidentified person would have been killed as a result of the unlawful actions of the accused. See section 56 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code).
