Philimon Mugijima v The State

On 8 March 2017, the applicant pleaded guilty to 3 counts of stocktheft as defined in section 114(2)(a)(i) and (ii) of the Criminal Law (Codification and Reform) Act. He was convicted on all three counts. The magistrates court found no special circumstances and imposed a sentence of 9 years imprisonment on each count, totaling 27 years imprisonment. On 18 April 2019, the applicant was granted leave to appeal out of time against sentence only and leave to prosecute the appeal in person. On 4 December 2019, the appeal was struck off the roll because the grounds of appeal were fatally defective, rendering the appeal a nullity. On 6 April 2022, the applicant filed an application for reinstatement of the appeal that had been struck off.

• Whether an appeal that has been struck off the roll as a nullity due to fatally defective grounds of appeal can be reinstated
• Whether the court has jurisdiction to reinstate an appeal that does not legally exist

The application for reinstatement of the appeal was struck off the roll.

An appeal that has been struck off the roll due to fatally defective grounds of appeal becomes a nullity and ceases to exist as a valid appeal. A nullity cannot be reinstated because there is no legally existing appeal on the court roll to reinstate. An application to reinstate such a non-existent appeal is improperly before the court and must be struck off the roll.

The court noted that notwithstanding the striking off of the original appeal on 4 December 2019, the applicant nevertheless proceeded to file the reinstatement application on 6 April 2022, suggesting either a misunderstanding of the legal effect of the earlier order or a procedural error in seeking the wrong remedy.

This case clarifies the procedural principle in Zimbabwean criminal appeal procedure that where an appeal has been struck off the roll due to fatally defective grounds, rendering it a nullity, there is no valid appeal capable of reinstatement. It reinforces the importance of proper compliance with appeal procedures and the filing of proper grounds of appeal. The case demonstrates the court's strict approach to procedural requirements in criminal appeals and the consequences of failing to comply with such requirements.