By FAUSTINE KAPAMA-Judiciary
THE Court of Appeal has
ordered retrial of murder case involving two people, Nuru Mangula and Sedeki
Mlugula, who were sentenced to death by hanging by the High Court for killing
their lover, Yusta Ndundulu and her son, Emmanuel Mangula.
Justices Ferdinand
Wambali, Mary Levira and Issa Maige reached into such a decision after allowing
one ground of appeal lodged by the duo, the appellants, noting that trial
judge's summing up to assessors was not in conformity with the requirement of
section 298 (1) of the Criminal Procedure Act (CPA).
“We nullify the
proceedings, quash convictions and set aside the sentences imposed on the
appellants. We order an expedited retrial which should be conducted before
another judge in accordance with the requirement of section 265 (1) of the CPA
with regard to the involvement of assessors,” they ruled.
The justices pointed out
that the main purpose of summing up to assessors who are bound to assist the
trial judge during the trial as provided under the law was to enable them have
a thorough understanding of the facts of the case and thereby arrive at an
informed opinion on the fate of the accused.
They said that the
assessors’ opinions, therefore, could only be of great value of the trial judge
if he has summed up the case properly to enable them understand the facts in
relation to the law.
The justices were aware
that in summing up to assessors, the trial judge is not required to reproduce
the entire evidence for both sides of the case.
“However, it is a
requirement of the law that the trial judge must sum up the substance of the
prosecution and the defence case and also bring to the attention of assessors
any vital points of the case in relation to the facts of the case which he
intends to rely in deciding the fate of accused,” they said.
It was their position
that the summing up of the trial judge to the assessors, therefore, must be
adequate with regard to the facts and vital points which he needs the
assessors’ opinion, regardless of the style he adopts.
“Proper summing up aims
to ensure that assessors have a thorough understanding of the facts of the case
and any specific matters in the case before they state their opinion. The
summing up notes thus should be in writing and be apparent on the record of
proceedings,” they said.
Reverting to the case of
the appellants, the justices went through the records of appeal and entertained
no doubt that the trial judge did not properly sum-up the case to the assessors
as required by the law.
On the contrary, they
noted, the trial judge simply outlined the headings of the matters which he had
intended to explain to the assessors and thereafter he required them to state
their opinions.
“Guided by the record of
appeal, we are not sure as to whether despite lack of the summary of the evidence
for both sides, he explained the points he had indicated on each heading as the
record is silent,” the justices said.
It was the prosecution
case that Yusta Ndundulu and Emmanuel Mangula who were mother and son,
respectively, met a violent death after they were severely beaten up on their
heads with a sharp object.
The postmortem
examination report in respect of Yusta revealed that the death of the deceased
was caused by a severe head injury due to penetration of a sharp object. It was
similarly established by another examination report that Emmanuel's death was
due to severe head injury.
It was, thus the
substance of the prosecution evidence that the appellants who previously had
sexual relationship with Yusta on different occasions, were fully responsible
for her death and that of Emmanuel Mangula, who also happened to be the son of
Nuru Mangula.
As it were, at the height
of the trial, the trial judge was satisfied with the prosecution story and
disbelieved the appellants’ defences. He thus found them guilty in respect of
both murder counts, convicted them and sentenced each to death by hanging in
terms of section 197 of the Penal Code.
Hakuna maoni:
Chapisha Maoni