THE Court of Appeal has nullified the proceedings, including the death
sentence imposed on a resident of Muheza in Tanga Region, Kerem
Benjamin, alias Jasasu, for allegedly killing his close friend, Simon
Isaka, later chopping his head.
Justices Sauda Mjasiri, Semistocle
Kaijage and Batuel Mmilla reached such a decision after noting that the
High Court had wrongly allowed court assessors to cross-examine the
witnesses instead of asking questions as contemplated by the law.
“In view of our finding that the act of
allowing the assessors to cross-examine the witnesses was fatal, we are
constrained to invoke the powers obtained under section 4 (2) of the
Appellate Jurisdiction Act, for which we quash the proceedings of the
trial High Court and set aside the sentence,” they declared.
Consequently, the justices ordered a
retrial before another judge sitting with a different set of assessors.
According to them, there was no gainsaying that in terms of section 265
of the Criminal Procedure Act all criminal trials before the High Court
are with the aid of assessors.
The justices pointed out that in the
course of discharging their duty to assist the judge, the assessors are
mandated to put questions to the witnesses as provided for under section
177 of the Evidence Act, but not allowed to dross examine them.
After carefully going through the
proceedings of the trial court, they noted, the defence counsel could
not be faulted in his complaint that the High Court allowed the
assessors to cross-examine the witnesses, which no doubt was fatal
irregularity.
It was alleged during the trial that
Benjamin, the appellant, and the deceased were close friends, who were
living in Chang’ata Village in Handeni District.
On January 18, 2012, in the morning, the
two friends went to a certain house where the appellant bought local
brew, which they drank together. In the evening, they left the place
together for their respective homes.
On the next morning, news circulated
that Simon Isaka was dead. His headless body was recovered in a certain
farm within the village. Such incidence was reported to the police.
Since the appellant was the person last
seen with the deceased alive, he was traced, apprehended and
interrogated. Joint efforts by the villagers and the police fruited into
the recovery of the missing head, which again had no eyes. At a later
stage, they recovered one eye after which the appellant was charged with
murder
