Saturday, December 2, 2017

Court orders retrial of man on death row


By James Magai @TheCitizenTz

The Court of Appeal has nullified a death sentence against Adam Mkude and ordered retrial by the High Court.

The decision was delivered by a panel of three judges led by Judge Bernard Luanda. Other judges were Richard Mziray and Jacob Mwambengele.

The Court of Appeal reached the decision after learning that Judge Eliezer Feleshi, who delivered the sentence did not explain the reasons why he stood in for a different Judge, who started hearing it.

Reading the sentence, Deputy Registrar of the Court of Appeal Phocus Bampikya said what Judge Feleshi did was contrary to section 299(1) of the Criminal Procedures Act, 1985.

The Deputy Registrar further explained that the Court of Appeal, by using its legal authority, declared that Judge Feleshi’s presiding at the case was null and void.

“We are nullifying and quashing the sentence. In the interests of justice, we are ruling the hearing to start afresh before another judge and other court assessors.” According to court references, the case was previously heard by Judge John Utamwa, but it was later heard by Judge Eliezer Feleshi.

In his ruling, Judge Feleshi convicted the accused of the offence of deliberately murdering Sakina Muktasar and sentenced him to die by hanging.

However, the convict was not satisfied with the ruling and punishment and thus appealed to the Court of Appeal through his lawyer Juvenali Ngowi, who presented seven reasons for appeal.

On the day of hearing the appeal, the Appeals Court, before hearing the reasons of the appellant’s appeal, first used its jurisdiction to investigate to satisfy itself with the correctness of Judge Feleshi to take the responsibility of hearing the case from Judge Utamwa.

Judge Feleshi started hearing the case for the first time almost two years ago, since it was adjourned for the last time by Judge Utamwa.

The Court of Appeal, after looking into the case on the first day before Judge Feleshi, on May 18, 2015, realised that the Judge did not explain the reasons why he heard the case instead of Judge Utamwa.

Due to that flaw, the Appeals Court wanted to hear the views of both the prosecution and defence counsel, among other things.

State Attorney Nassoro Katuga and defence counsel Ngowi argued that, Judge Feleshi’s failure to explain the reasons for him to preside at the case instead of Judge Utamwa was contrary to the law.

Mr Katuga said such a failure had caused the case to be null and void and he advised the court to exercise its legal authority to nullify the ruling, punishment and order the hearing of the case again.

For his part, defence counsel Ngowi echoed Mr Nassoro’s arguments although the former was hesitant to advise the rehearing of the case.