Tinashe Mukote v The State

The applicant, who claimed to be a prophet, was a tenant of the complainant in Chivhu. He and his spouse (co-accused Delcy Joe) were left in custody of the complainant's homestead while the complainant and his family visited their rural home in Mahusekwa. During the complainant's absence, the applicant unlawfully entered the complainant's house by breaking in and stole property including cash. He then set the house on fire to destroy evidence of the unlawful entry and theft. The co-accused denied involvement and implicated the applicant, stating he had tried to persuade her to participate but she refused, warning him it would result in a lengthy jail sentence. She was acquitted. The investigating officer's testimony showed the applicant could not explain the source of money he used to purchase a vehicle and lavish on relatives. The complainant's property, including a driver's license, black satchel, English Exercise book, Covid exemption letter, CABS bank account statement, and Sunrise Reader's book were recovered from the applicant's bedroom and from Moses Mafukidze's residence where the applicant had taken them. After a protracted trial, the applicant was convicted of unlawful entry into premises in aggravating circumstances and malicious damage to property, and sentenced to 8 years imprisonment on count 1 and 10 years on count 2 on 29 October 2021.

• Whether leave to appeal out of time against conviction should be granted
• Whether leave to prosecute the appeal in person should be granted
• Whether the proposed grounds of appeal have reasonable prospects of success
• Whether it is in the interests of justice to grant leave to appeal where the conviction is supported by overwhelming evidence

The application for leave to appeal out of time against conviction and leave to prosecute the appeal in person was dismissed in its entirety.

Leave to appeal out of time will be refused where: (1) the proposed grounds of appeal are invalid, being mere statements of law or improperly formulated as heads of argument or review grounds rather than appeal grounds; (2) the intended appeal is certain to fail due to overwhelming evidence of guilt; and (3) granting leave would not be in the interests of the administration of justice as it would burden the criminal appeals court with an appeal whose outcome is obvious. Possession of stolen property recovered from an accused's premises and inability to explain the source of funds used after commission of an offence constitute strong evidence inexorably connecting the accused to the crime.

The court observed that the co-accused's defence appeared probable based on state evidence, resulting in her acquittal, but noted that the magistrate did not rely on her evidence implicating the applicant to convict him - rather, the conviction was based on independent overwhelming evidence. The court also noted incidentally that some of the complainant's property was recovered after the applicant had lavished it on his relatives.

This case demonstrates the approach of Zimbabwean courts to applications for leave to appeal where proposed grounds are defective and lack merit. It illustrates the requirement that grounds of appeal must be properly formulated and not consist of mere statements of law, heads of argument, or grounds for review. The case also reinforces that leave to appeal will not be granted where the appeal has no reasonable prospects of success and would unnecessarily burden the appellate court, particularly where conviction is supported by overwhelming evidence including unexplained possession of stolen property and inability to account for source of funds used after the crime.