Court orders acquittal of man sentenced for manslaughter

THE Court of Appeal has ordered immediate release from Zanzibar Correction Institute a resident of South Region of Unguja, Hamdu Abdalla Abdalla, who was sentenced to life imprisonment for allegedly killing without intention (manslaughter) his daughter, Hudhaifa Suleiman Abdalla.

Justices Shaban Lila, Lugano Mwandambo and Lilian Mashaka gave the order in their judgment delivered in Zanzibar recently, after allowing Hamdu, the appellant, after going through the appeal he lodged to oppose the findings of the High Court at Vuga.

“We invoke our power of revision under section 4 (2) of the Appellate Jurisdiction Act, quashing the proceedings and setting aside the conviction and sentence of the High Court against the appellant, which we hereby do,” they declared and ordered the release of the appellant.

The justices noted from the record that the appellant was first brought before the Regional Court at Vuga which read over the charge, but was not asked to plead as the offence was triable by the High Court.

They observed further that when the appellant was committed for trial before the High Court and upon the filing of the information, he was not formally arraigned as required by the law.

The justices agreed with the parties that failure by the trial court to comply with the mandatory requirement imposed under the said provision vitiated the entire trial hence rendering it and the proceedings as well as the judgment a nullity.

“It is a fundamental procedural irregularity which went to the root of the case and incapable of any cure. In the event, we order the immediate release of the appellant from the Correction Institute (Chuo cha Mafunzo) unless otherwise lawfully held,” they ruled.

Before reaching into such conclusion, the justices considered circumstances whether there were possibilities of ordering retrial of the matter due to such failure by the trial court to allow the appellant to be formally arraigned as per section 250 of the Criminal Procedure Act.

They pointed out that a retrial could be ordered when the original trial was illegal or defective and that the prosecution will not take advantage to fill the gaps or shortfalls in their evidence.

The justices took into consideration that there was no dying declaration recorded of the deceased and the doctor who examined the deceased body failed to lay out his expertise as required.

“The irregular admission of the post mortem report which may make its way into evidence during retrial with the potential that the prosecution will strive not to repeat the mistakes made in the first trial and fill up the gaps. Therefore, we are satisfied that it is not fit for retrial,” they ruled.

Before the trial court, it was alleged that on October 1, 2000 at or about 20.30hrs at Bwejuu, in the South District within the South Region of Unguja, the appellant unlawfully beat one Hudhaifa Suleiman Abdalla with strokes causing her death.

Facts show that the deceased was the daughter of one Suleiman Mtumwa Vuai and Mtumwa Mohamed Ali. The record shows that the appellant requested the couple take her under his care and stay with their daughter because they were related.

The couple accepted his request and the deceased went to stay with the appellant and his wife Rahila, a sister to Mtumwa. On October 3, 2000, one Habiba Ali Mgana, grandmother to the deceased, visited the appellant’s residence and was informed that the deceased had high fever.

Upon inquiring on what had befallen her as she had wounds on her arm and back, Rahila, the appellant’s wife informed her that the appellant beat her badly.

Such grandmother took the deceased to Bwejuu dispensary. Due to her condition, she was transferred to Mnazi Mmoja Hospital where she was admitted. The information on the incident reached the couple.

According to their testimonies, their daughter had wounds and bruises on her back and she could not sit, walk and eat. They were told by the deceased that the appellant used to beat her using a wire. On October 4, 2000, the deceased died.

Before her burial, a doctor from the hospital conducted a post mortem on the body of the deceased and observed that the inflicted wounds produced poisonous bacteria, which infected the brain and caused her death.