Cheru v Republic (1988 TLR C.A. 140) [1988] TZHC 783 (1 August 1988)

140 TANZANIA LAW REPORTS [1988] T.L.R A In assessing the sentence, the learned trial judge considered all these matters; but took the view that the appellant ’ s mode of retaliating by stabbing the deceased with a knife, a lethal weapon, was completely out of proportion to the deceased ’ s act of merely kicking him. B Mr. Rugarabamu, the learned advocate representing the appellant before us properly conceded that the memorandum of appeal, which was filed by the appellant, raises no new issues, and added that he himself had nothing to add to it. We are satisfied that no grounds have been advanced to show C that the sentence meted out to the appellant was excessive, or that the learned trial judge was wrong in assessing it. Therefore there can be no ground for interfering. In the result, the appeal has no merit and is accordingly dismissed. D Appeal dismissed. E NYEHESE CHERU v. REPUBLIC [COURT OF APPEAL OF TANZANIA (Makame, Kisanga and Omar, JJ.A.)] 1 August, 1988-MWANZA F Criminal Practice and Procedure - Assessors - Recruitment of a new assessor after the hearing has started - Ground for vitiating the proceedings. Criminal Practice and Procedure - Unsolicited order of the Court G to exhume - Whether properly made. On 18/8/87 Korosso J. condemned to death the appellant Nyehese Cheru following his conviction for the murder of his wife Kema Ntahaliye. In the Court of Appeal the appellant argued three grounds H and prayed for a trial de novo. The respondent did not resist appellant ’ s submission as he also felt that an order for a new trial would be the right thing. On 4/10/79 assessors Yusuf Omari and Mohamed Omari sat with Mushi, J. and on the following day the case was adjourned for good reasons. On 25/3/82 Omari Sungura and Hamis I Kabwe in their capacity as assessors assisted Rubama, J. who started hearing the case de novo. Due to unavailability of the remaining

NYEHESE CHERU u REPUBLIC (Makame, J.A.) 141 prospective witness, the matter was adjourned four days later. Over A two years later Chipeta J. made the order that “ As the learned trial Judge is away for treatment, hearing is adjourned to next session ” . After almost three years Korosso, J. took over the conduct of the case and on record it is indicated that he sat with Rubama, J. ’ s Omari Sungura and a new assessor Fadhiri Hamidi, B Held: (i) Neither the old Criminal Procedure Code nor the current Criminal Procedure Act allows a new assessor to be recruited after the hearing has started; (ii) under section 270 of the Criminal Procedure Code, what C a trial judge was empowered to do was to continue with only the remaining assessor or assessors; (iii) under section 286 of the current Criminal Procedure Act, if an assessor is absent, the trial shall proceed before the remaining assessors but only if they are not less than two in number; D (iv) both under the Code and under the Act the absence of an assessor had to be coupled with the condition that it is not practicable immediately to enforce his attendance. Appeal allowed. E No case referred to. Butambala, for the Appellant Nyabiri, for the Respondent. F Makame, Kisanga and Omar, JJ.A.: The High Court sitting at Tabora (Korosso, J.) condemned to death the appellant Nyehese Cheru following his conviction for the murder of his wife Kema Ndabawaliye, the mother of P.W. 1 and P.W.5. Mr. Butambala, G learned advocate representing the appellant before us, filed a total of six grounds, but in the event argued only three, and prayed for a trial de novo. Mr. Mussa, learned attorney for the respondent Republic, did not seek to resist Mr. Butambala ’ s submissions as he, too, felt that an order for a new trial would be the right thing. H With respect, we think that the case could have been presented and tried a lot more carefully. Mr. Butambala ’ s first complaint was that the learned High Court judge, when he took over, tried the case with one original assessor and another quite new assessor. We wish first to observe I two things in connection with this ground: First, that there is no

142 TANZANIA LAW REPORTS [1988] T.L.R A indication in the record as to what happened to the gentleman assessor who disappeared from the scene, Hamisi Kabwe, and why, therefore, it was felt necessary to import a new gentleman assessor, Fadhiri Hamidi. Second, that Mr. Nyabiri, learned State Attorney conducting the case before Korosso, J., clearly misled the trial court B when he informed it, on 1 8th August, 1987, that “ The two Gentlemen Assessors are the very ones who participated in the trial of the case with the previous judge. ” This was patently incorrect, and quite misleading. In this case, which had a chequered history, assessors Yusuf Omari and Mohamed Omari sat with Mushi, J.; Omary Sungura C and Hamisi Kabwe assisted Rubama, J., when the trial started de novo and the evidence of four Prosecution witnesses was taken; and then, when Korosso, J., took over and heard the last witness, Juma Nyemese, he sat with Rubama J ’ s Omary Sungura and as aforesaid, a new person, Fadhiri Hamidi. D Mushi, J. heard one witness on 4th October 1979 and on the following day, for a good reason clearly recorded, and to which we shall have occasion to refer later in this judgment, the case was adjourned. On 25th March, 1982 Rubama, J. started hearing the case afresh and four days later he adjourned the matter because the E remaining prospective witnesses were not available. When over two years later, on 4th September, 1984, Juma Nyehese showed up Chipeta, J. made the following order. “ As the learned trial judge is away for treatment, hearing is adjourned to next session. Accused F.R.I.C. ” Then apparently nothing else happened until after almost F three more years when, on 18th August 1987, Korosso, J. took over the conduct of the case. Neither the old Criminal Procedure Code nor the current Criminal Procedure Act allows a new assessor to be recruited after the hearing of the case has started. Under Section 270 of the Criminal G Procedure Code what a trial judge was empowered to do was to continue with only the remaining assessor or assessors. Under Section 286 of the current Criminal Procedure Act if an assessor is absent “ the trial shall proceed before the remaining assessors but only if they are not less than two in number .... ” And both under the Code H and under the Act the absence of an assessor had to be coupled with the condition that it is not practicable immediately to enforce his attendance. This first ground of complaint is enough to vitiate the proceedings, but there is more. I The second ground argued by Mr. Butambala was that in taking over the conduct of the proceedings Korosso, J. was

NYEHESE CHERU v. REPUBLIC (Makame, J.A.) 143 presumably acting under the Criminal Procedure Act. As Mr. A Butambala pointed out, if that was so then Mr. Nyabiri referred the learned trial judge to the wrong section, section 264. The relevant section would have been section 299, in which case the learned judge did not fully comply with the provisions of the law under that section. If the continued trial purported to be under the Code there B was no enabling section: Section 196 of the Criminal Procedure Code of course only applied to trials in the subordinate courts. This second ground is also weighty. The third ground argued by Mr. Butambala was that, in any event, the evidence on record could not have been relied on to arrive C at the conclusion that the appellant was of sound mind when he allegedly killed the deceased. The trial court apparently did not get a feed back to the order made by Mushi, J. that: It is therefore ordered that the Accused be sent to Isanga D Institute (sic) in accordance with section 168A of the Criminal Procedure Code ....... In the course of his judgment Korosso, J. remarked that “ On the evidence, the question of provocation or insanity cannot arise. ” In view E of the background we think it would have been in the interest of justice for the trial court to equip itself with the report from Isanga, which should have been available at the purported trial some eight years after Mushi, J. had made his order. We respectfully agree with both learned Counsel that the F proceedings should be quashed. The appeal is thus allowed and the proceedings are accordingly quashed. We order a new trial. There is one other thing we desire to make a brief comment on. The learned trial judge ordered that the deceased ’ s body should be exhumed and given to the deceased ’ s relatives because it is “ their G birth right to bury their dead. ” This unsolicited order was made in August 1987, nearly ten years after the deceased ’ s body had been interred. We are not so sure that the deceased ’ s relatives would be anxious to see the mortal remains of their dear one after so many years. There might be aesthetic inhibitions and for all we know it H may well be taboo for them to handle what remains. They were not given a chance to decide. As these proceedings have been quashed the said order naturally goes with them, if, that is, it has not yet been carried out. Appeal allowed.