The State v Robson Muleya

On 18 June 2021, the accused (aged 63) and the deceased John Mudenda (aged 72), who were brothers, attended a soccer tournament at Kamalundu grounds, Chief Saba, Binga, where they were drinking beer. At around 0100 hours, the accused was struck on the head with a brick by an unidentified person and suspected it was the deceased. The accused then kicked the deceased with a booted foot once on the head, causing him to fall. The accused further kicked the deceased on the head several times and stamped on him several times on the head. The deceased bled from the nose and became unconscious. Witnesses restrained the accused. The following morning at 0630 hours, the accused and deceased continued the altercation and the accused assaulted the deceased once on the cheek with an open hand, causing him to fall and lose consciousness. The deceased was referred to Binga hospital and discharged on 24 June 2021 when the family could not raise funds for referral to Mpilo hospital. The deceased died at home on 28 June 2021. The post mortem report showed the cause of death as epidural hematoma and assault, with extensive hemorrhaging in the brain.

• Whether the accused was guilty of murder as charged
• Whether the accused acted with intent to kill or realizing a real risk of death
• Whether the accused's conduct amounted to culpable homicide through negligence
• Whether the accused's use of force was proportionate given he believed he was under attack
• What is the appropriate sentence for culpable homicide in the circumstances

The accused was found not guilty of murder but guilty of culpable homicide in terms of section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 3 years imprisonment, of which 1 year was suspended for 5 years on condition that he does not commit an offense involving assault or physical violence on another person during that period for which he is sentenced to imprisonment without the option of a fine.

Where an accused uses excessive and disproportionate force in response to a perceived unlawful attack, and it is objectively foreseeable that such conduct (kicking and stamping on the victim's head with booted feet) would lead to death, the accused acts negligently and is guilty of culpable homicide rather than murder. Even if the accused believed he was under attack, the use of force that is unnecessary, excessive and disproportionate against an unarmed person negates any defense of self-defense and constitutes criminal negligence when death results. The test is whether a reasonable person in similar circumstances would have avoided acting in the manner the accused did.

The court observed that the stigma of having caused the death of one's own brother would haunt the accused during his entire lifetime, which was considered as a mitigating factor. The court also commented that a non-custodial term or community service would trivialize an otherwise serious case involving culpable homicide, emphasizing that courts must send a loud and clear message that the taking of human life will not be tolerated and must emphasize the sanctity of human life.

This case demonstrates the application of the principles distinguishing murder from culpable homicide in Zimbabwean criminal law, particularly where excessive force is used in response to a perceived attack. It illustrates how the courts assess objective foreseeability and negligence in homicide cases, and shows that even where an accused believes he is defending himself, disproportionate force resulting in death will constitute culpable homicide rather than justifiable self-defense. The case also provides guidance on sentencing considerations in culpable homicide cases involving family members, balancing the need to emphasize the sanctity of life against mitigating personal circumstances.