Modrick Matiki v The State

The applicant, aged 24, was convicted of culpable homicide for causing the death of Abraham Moyo, aged 38, on 22 August 2011 at Vungwi Business Centre under Chief Mazvihwa in Zvishavane. On the day in question, the applicant and deceased were drinking beer together at Hasienda Bottle Store with friends. When the deceased left and returned without buying the applicant beer, the applicant grabbed him by the collar and violently shook him. As they moved out, the applicant tripped the deceased to the ground and kicked him once in the stomach with a booted foot. The deceased, who was very drunk and did not resist, was pronounced dead at the scene. The post mortem report indicated death was caused by asphyxia secondary to bronchoaspiration in an alcoholic intoxicated person who was assaulted. The applicant was initially charged with murder but pleaded guilty to culpable homicide, which the State accepted. He was sentenced to 9 years imprisonment, with 2 years suspended for 5 years on conditions, leaving an effective sentence of 7 years. The applicant did not apply for leave to appeal orally immediately after sentence as required by the rules, but lodged a written application 11 days later on 7 February 2017.

• Whether leave to appeal against sentence should be granted
• Whether the procedure for applying for leave to appeal was properly followed under Order 34 rules 262 and 263 of the High Court Civil Rules
• Whether the sentence of 7 years effective imprisonment for culpable homicide was appropriate and involved a misdirection
• What test should be applied in determining whether to grant leave to appeal

The application for leave to appeal against sentence was dismissed.

1. Applications for leave to appeal against sentence must comply with the procedural requirements of Order 34 rules 262 and 263 of the High Court Civil Rules. Where an oral application is not made immediately after sentence, a written application filed later must state reasons for the failure to apply orally, the proposed grounds of appeal, and grounds for granting leave. 2. The test for granting leave to appeal is whether the appeal is reasonably arguable and not manifestly doomed to failure. 3. Sentencing is within the discretion of the trial court and an appellate court will not interfere with that discretion unless there has been a misdirection or the discretion was exercised capriciously, upon a wrong principle, with bias, or without substantial reasons. 4. Under section 49 of the Criminal Law (Codification and Reform) Act, a court convicting a person of culpable homicide has wide discretion to impose imprisonment for life or any definite period of imprisonment.

The court observed that it would be "highly irresponsible" to unleash the applicant on the Supreme Court under circumstances where his appeal is doomed before it has started, as such an appeal would only serve to massage the applicant's ego while wasting the appeal court's time. The court also noted the "invidious" nature of the task of a trial judge having to disabuse his mind of his own findings when considering leave to appeal applications, describing it as a "cross which judicial officers, in the nature of their duties, have to carry from time to time" to ensure justice and allow parties to exercise their right to recourse before a higher tribunal.

This case illustrates the strict procedural requirements for applications for leave to appeal in criminal matters in Zimbabwe, particularly the distinction between oral applications immediately after sentence (Order 34 rule 262) and written applications filed later (Order 34 rule 263). It reaffirms the principles governing appellate interference with sentencing discretion, emphasizing that courts of appeal will only interfere where there has been a misdirection or the sentence was not judicially arrived at. The case also demonstrates the application of the test for granting leave to appeal - that the appeal must be reasonably arguable and not manifestly doomed to failure. It reinforces judicial efficiency by preventing frivolous appeals that would waste the appeal court's time.