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 the 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 to the trial judge if he had 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 was 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 reveal 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.