Murder conviction overturned, court slashes 16-year sentence to two
Tjihonyi Robert Jatwimana, who was sentenced to 16 years’ imprisonment last year by the Rundu Magistrate’s Court after being convicted of murder, has won an appeal, with the Windhoek High Court setting aside the conviction and substituting it with one of assault, for which he was sentenced to two years.
Jatwimana was arrested on 17 May 2018, along with a co-accused, Elifas Kudumo Thidjukwe, after the pair were accused of assaulting Hiskia Mangundu Kamambo the previous day in Kehemu, Rundu.
Kamambo later died at Rundu State Hospital as a result of injuries sustained during the assault.
According to court documents, the deceased was alleged to have stolen a mobile phone belonging to one of the accused, prompting the attack.
The pair were subsequently found guilty of murder.
On 10 May 2024, Rundu Regional Court magistrate Barry Mufana sentenced both Jatwimana and Thidjukwe to 16 years’ imprisonment.
Jatwimana, through his lawyer, Bernhard Tjatjara, appealed the conviction and sentence on several grounds, arguing in particular that the chain of custody of the deceased’s body was incomplete from the time death was declared to the post-mortem examination.
Evidence reviewed
During judgment on Friday, High Court justices Eileen Rakow and Claudeen Claasen, who heard the matter on 12 September, sided with the appellant, noting a significant gap in the state’s evidence.
The judges ruled that no evidence was presented by any hospital staff or other witnesses regarding the victim’s condition when he was admitted by the police.
The justices further noted that there was no testimony detailing what happened to the victim while in the hospital’s care.
The justices also noted that the police sergeant who allegedly identified the victim’s body to the doctor for the autopsy was never called to testify.
The court emphasised that the State bears the legal onus of proving the chain of evidence.
As it could not be satisfied that the victim’s body had not been tampered with, altered, or suffered additional fatal injuries after being admitted to the hospital, the court found that the link needed to establish that the assault caused the death was missing.
Conviction overruled
In its ruling, the High Court held that the murder conviction could not stand and was set aside.
The court found, however, that there was sufficient evidence from eyewitnesses to prove the assault itself.
Jatwimana’s conviction was therefore substituted with a verdict of assault with intent to do grievous bodily harm.
The original 16-year sentence was reduced to 24 months’ imprisonment, backdated to 14 May 2024.
Jatwimana was represented in court by Sijomunji Law Chambers through legal aid.
Meanwhile, Thidjukwe continues to serve his 16-year sentence, having not appealed his conviction.
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Jatwimana was arrested on 17 May 2018, along with a co-accused, Elifas Kudumo Thidjukwe, after the pair were accused of assaulting Hiskia Mangundu Kamambo the previous day in Kehemu, Rundu.
Kamambo later died at Rundu State Hospital as a result of injuries sustained during the assault.
According to court documents, the deceased was alleged to have stolen a mobile phone belonging to one of the accused, prompting the attack.
The pair were subsequently found guilty of murder.
On 10 May 2024, Rundu Regional Court magistrate Barry Mufana sentenced both Jatwimana and Thidjukwe to 16 years’ imprisonment.
Jatwimana, through his lawyer, Bernhard Tjatjara, appealed the conviction and sentence on several grounds, arguing in particular that the chain of custody of the deceased’s body was incomplete from the time death was declared to the post-mortem examination.
Evidence reviewed
During judgment on Friday, High Court justices Eileen Rakow and Claudeen Claasen, who heard the matter on 12 September, sided with the appellant, noting a significant gap in the state’s evidence.
The judges ruled that no evidence was presented by any hospital staff or other witnesses regarding the victim’s condition when he was admitted by the police.
The justices further noted that there was no testimony detailing what happened to the victim while in the hospital’s care.
The justices also noted that the police sergeant who allegedly identified the victim’s body to the doctor for the autopsy was never called to testify.
The court emphasised that the State bears the legal onus of proving the chain of evidence.
As it could not be satisfied that the victim’s body had not been tampered with, altered, or suffered additional fatal injuries after being admitted to the hospital, the court found that the link needed to establish that the assault caused the death was missing.
Conviction overruled
In its ruling, the High Court held that the murder conviction could not stand and was set aside.
The court found, however, that there was sufficient evidence from eyewitnesses to prove the assault itself.
Jatwimana’s conviction was therefore substituted with a verdict of assault with intent to do grievous bodily harm.
The original 16-year sentence was reduced to 24 months’ imprisonment, backdated to 14 May 2024.
Jatwimana was represented in court by Sijomunji Law Chambers through legal aid.
Meanwhile, Thidjukwe continues to serve his 16-year sentence, having not appealed his conviction.
[email protected]
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