D Mfalila, J.A., delivered the following considered judgment of the court:
In the High Court sitting at Arusha the appellant Lekasi Mesawarieki was charged jointly with his E fifteen-year-old son Zephania Mesawarieki with the offence of murder. His son was acquitted, but he was convicted as charged and sentenced to death. He lodged this appeal against both his conviction and the sentence of death.
Before us, Mr Sabaya, learned Counsel who appeared for the appellant argued two grounds of F appeal after abandoning the second ground. In ground No 1 the appellant complained that the learned Trial Judge erred in law and fact when she allowed the appellant to proceed to defend himself on such a serious charge of murder without availing him with the services of a lawyer. During the G hearing, Mr Sabaya argued that the appellant was greatly prejudiced by being allowed to prosecute his own case involving such a serious charge carrying the death penalty. He added that for the same reason that this Court ordered a retrial in Laurent Joseph & Another v Republic (1) a retrial should be ordered in the present case.
H In reply Mrs Sumari who had initially supported the appellant's conviction arguing that he had freely informed the Court that he was prepared to proceed with the trial on second thoughts she conceded that the appellant was prejudiced by proceeding with the trial without Counsel, hence in her view the I appellant did not get a fair trial.
The record shows that when the trial of the appellant and his young son opened on 29 September A 1992 the following is what transpired:
1st accused:
If no advocate has turned up to defend us we shall conduct the defence by ourselves. The case should not be B adjourned.
2nd accused:
Let the case proceed. We shall defend ourselves.
These statements by the appellant and his young son appear to have been given spontaneously, for C they are not preceded by any comments or address by the Court. After recording those spontaneous statements, there was no attempt by the Court to explain to the accused the dangers that they were faced in conducting their own defence in such a serious charge of murder. The Court D simply ordered the trial to proceed as schedules oblivious of the fact that one of the accused persons was just a child. As it turned out, the going proved too difficult for the appellant. When cross-examined by Mrs Lyimo, he is recorded to have replied at one stage:
`I was not able to ask anything I wanted because I am not literate and the case has many corners.' E
We think that this statement sums up graphically the difficulties which the appellant and his son faced in the conduct of their defence at the trial. We are thus inclined to agree with both counsel that F the appellant did not and could not get a fair trial without legal assistance.
For these reasons we allow the appeal, quash the appellant's conviction and set aside the sentence of death. However in view of the state of the evidence on record, we order that the appellant be G retried before another judge in accordance with the law.
A
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