Wednesday, July 6, 2016

Legal technicality delays hanging of two in Shinyanga

Legal technicality delays hanging of two in A LEGAL technicality has saved two people, Mabula Damalu and Makenzi Mihambo, alias Kabora, from being hanged to death for killing their village mate, Mayunga Elias, after posing to be medicine-men with repute, who could hold his shop business flourish. Instead, Justices Salum Massati, Kipenka Mussa and Augustine Mwarija ordered a fresh hearing of the murder trial having found that the High Court judge recorded almost all evidence of witnesses in the form of a reported speech, which was irregular. Referring to some provisions under the Criminal Procedure Act (CPA), they noted that the judge of the High Court was required to take down the evidence of witnesses in writing and not in the ordinary form of question and answer, but the form of a narrative. The justices said that noncompliance with the provision was fatal and may lead to the expulsion of the evidence of witnesses taken in contravention thereof and that any other form of recording of such evidence reduces it to no evidence at all. “In the peculiar circumstances of this case, including the little that could be gathered from the record, we exercise our jurisdiction revision, quash all the proceedings, judgment and sentence and order a retrial of the appellants as soon as possible before a different judge and set of assessors,” they declared. Meanwhile, the justices ordered the appellants to remain in remand prison to await the new trial. It is alleged by the prosecution that the two appellants committed the offence on September 15, 2010, at Itumbili Village within Kahama District, Shinyanga Region. Facts show that the deceased had a retail shop in his village called Ng’ananga. As is the desire with all businessmen, he wanted his business to flourish. On September 14, 2010, the appellants visited the deceased and held themselves to him that they were medicine men of repute who could help him achieve his ambition. The deceased was convinced. The following day, both the appellants and the deceased left with some money, an axe and a knife to Itumbili Village each riding his own bicycle. That was the last time the deceased was seen alive. On September 18, 2010, a naked, headless body with injuries on the neck and a buttock missing was stumbled upon in a bush in Itumbili village. The villagers reported about the discovery of the unknown body to the police. Since the body was not yet claimed, the police allowed it to be buried. Meanwhile, the family of the deceased, who all along kept on looking for him, got wind of the discovery of the body. They rushed to Itumbili Village where they identified the headless body as that of the deceased. This information was again revealed to the police, who applied for an exhumation order.


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