Relying heavily on the evidence of a best friend of the accused, rally
driver Carl Tundo, Justice Muga Apondi found that Mr Cholmondeley shot
and killed Mr Robert Njoya three years ago, but spared him death by
hanging because a murder charge could not be sustained.
A murder conviction carries a mandatory death sentence while
manslaughter carries a maximum of life imprisonment, but no minimum.
Immediately the judge pronounced his verdict, Mr Njoya's widow, who sat
next to the Delamere's throughout the session, left the courtroom.
She expressed satisfaction that her husband's killer had been found
guilty, but was also happy that Mr Cholmondeley was spared the
hangman's noose because she knows the pain of losing a loved one. I do
not want him to be hanged because his wife will undergo the troubles I
am going through as a widow, Mrs Serah Njoya told the Nation. Mrs
Njoya said what she needs right now is help to bring up her children.
The Director of Public Prosecution, Mr Keriako Tobiko, declined to
comment, saying he will wait until Tuesday when sentence is passed.
Defence lawyer Fred Ojiambo said he was disappointed. Of course I did
not expect this. I am disappointed by the judgement, he said.
The judgement, he said, failed to resolve the issue of whether Mr
Cholmondeley was the one who shot Mr Njoya or not. Justice Apondi
relied on the evidence Mr Tundo, who was with Mr Cholmondeley on the
fateful day, to rule that the accused shot and killed Mr Njoya. The
judge said he did not know whether there was any love lost between the
two families, but did not wish to intervene.
He found that the accused did not have intentions to kill when he shot
Mr Njoya at Soysambu ranch on May 10, 2006. This case has been proved
beyond any reasonable doubt both through direct and circumstantial
evidence. Due to lack of any malice aforethought, I reduce the charge
to manslaughter. The circumstantial evidence adduced irresistibly leads
to the guilt of the accused, said the judge. According to the judge,
Mr Cholmondeley had no malice aforethought.
Giving the history of the case, the judge noted that on that fateful
day, Mr Cholmondeley decided to go for a walk in the ranch together
with his friend, Mr Tundo, to specifically look for a suitable site for
building a residential house. Mr Cholmondeley carried a rifle, but not
because he knew he would meet Mr Njoya and, therefore, it cannot be
said that he planned to shoot and kill him, said the judge.
On the other hand, Mr Njoya and five other men had trespassed on the
farm to poach. The judge dismissed evidence by the defence that had
sought to link the fatal shooting to Mr Tundo's gun, dismissing the
argument as an afterthought that lacked merit. The judge said if the
issue of the second gun was genuine, the defence ought to have raised
it when Mr Cholmondeley was arrested.
I also concur that human conduct is usually led by self-preservation
and self-interest. I would also wish to use my own words and state that
the survival principle is very basic to human beings, said the judge.
The evidence adduced before the court, the judge said, clearly showed
that only one gun was present at the scene and it belonged to the
accused. The judge noted that the evidence of Mr Tundo tallied up with
statements from other witnesses.
The defence in the case had said that Mr Cholmondeley shot two brown
dogs accompanying Mr Njoya and other poachers. However, the two dogs
were never subjected to examination and bullet fragments retrieved and
matched with those found on the body of Mr Njoya to prove Mr
Cholmondeley's guilt or lack of it. This is because the fragments were
not suitable for microscopic examination.
And the judge on Thursday said that the fact that the bullet fragments
were not suitable for microscopic examination does not in any way
suggest that there was a second gun at the scene. Mr Justice Apondi
also dismissed evidence given by defence witness, Dr Andrew Gachie, who
testified as an expert witness.
Dr Gachie had prepared an independent report for the postmortem
conducted on Njoya's body and presented it to court. The court found
evidence by Dr Gachie as contradictory. His evidence was
contradictory. Whereas he stated that he expected more bleeding if a
high velocity weapon was used, the deceased died within a few hours of
the incident. He died due to haemorrhage, said the judge.
The judge quoted a decision by Lord Campell in which he (Lord Campell)
accused expert witnesses of being biased. He said: With rather less
delicacy, Lord Campell declared in the Tracy Peerage case that skilled
witnesses come with such bias on their minds to support the case in
which they are embarked that hardly any weight should be given to their
evidence'.
The judge added: Modern variations on this venerable theme continue to
be recycled by commentators, and to the rounds in practitioners'
anecdotal tales of cowboys,' hired guns,' instant experts,' and
liars for hire. The judge will pass the sentence next Tuesday after
mitigation by both parties in the case.
Daily Nation
Post published in: Zimbabwe News