Wakilii

Mukuye Samuel & Anor v Uganda (Criminal Appeal No. 232 of 2012)

Court of Appeal · [2018] UGCA 68 · 2018 Conviction Quashed — Retrial Ordered ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction for murder against both conviction and sentence
Decision
Conviction quashed and sentence set aside; retrial ordered before a different judge with appellants remaining in custody pending retrial

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal, on its own observation, found that the trial Judge had irregularly assigned a new assessor midway through the trial to replace one who had absented himself, and then accepted that new assessor's opinion in convicting the appellants. Under section 69 of the Trial on Indictments Act, the trial should have proceeded with the single remaining assessor. The Court held this was a fundamental irregularity that occasioned a mistrial, vitiating the conviction. Applying the principles governing retrials, the Court allowed the appeal, quashed the conviction, set aside the 60-year sentence, and ordered a retrial before a different judge, with the appellants remaining in custody subject to bail.

Facts

On 20 April 2009 at Lukungu Landing Site, Nangoma Parish, Kyebe Sub-county, Rakai District, the deceased Kalyango and Abdul Lubega allegedly found the appellants stealing fish from their nets. A quarrel and fight erupted in which the deceased was killed while Abdul Lubega escaped. The appellants were arrested and charged with murder. At trial in the Masaka High Court the prosecution called five witnesses; the appellants gave sworn evidence denying the offence. The trial began with two assessors, Mr. Dominic Wasswa and Mr. John Katongole. Midway through the trial, when PW5's evidence was due, the court replaced Mr. Katongole, who had absented himself, with a new assessor, Mr. Ndinoha Ronald, who heard the remaining evidence and gave an opinion that the trial Judge took into account. The appellants were convicted of murder and sentenced to 60 years imprisonment.

Issues

  1. Whether the trial Judge's decision to assign a new assessor midway through the trial to replace an absent assessor, who then gave an opinion, was a fatal irregularity occasioning a mistrial.
  2. Whether the appropriate remedy for the irregularity was an order for retrial.

Orders

  • Appeal allowed.
  • Appellants' conviction quashed.
  • Sentence of 60 years imprisonment set aside.
  • Retrial ordered before a different judge.
  • Assistant Registrar in charge of the Criminal Registry directed to bring the matter to the immediate attention of the Resident Judge at Masaka for retrial in the next convenient criminal session.
  • Appellants to remain in custody pending retrial, subject to their right to apply for bail from the High Court at Masaka.

Key headnotes

Criminal Procedure — Assessors — Replacement of Absent Assessor under Trial on Indictments Act s.69
Where an assessor absents himself from part of a trial before the High Court, the trial must proceed with the remaining assessor under section 69 of the Trial on Indictments Act; assigning a new assessor to replace the absent one and accepting that assessor's opinion is a fundamental irregularity resulting in a mistrial.
Criminal Procedure — Mistrial — Effect of Fundamental Irregularity on Conviction
A conviction based on a fundamental irregularity in the proceedings that occasioned a mistrial cannot stand, and the interests of justice may require that a retrial be ordered.
Criminal Procedure — Retrial — Considerations Governing Exercise of Discretion
An order for retrial is a judicious exercise of the court's discretion, guided by considerations including the seriousness of the offence, the strength of the prosecution case, avoidance of double jeopardy, that a retrial must not allow the prosecution to fill evidentiary gaps, and that it should not be ordered where it would deprive the accused of a chance of acquittal.

Legislation cited (5)

  • Penal Code Act Cap 120 s.188
  • Penal Code Act Cap 120 s.189
  • Trial on Indictments Act s.69
  • Trial on Indictments Act s.139
  • Rules of the Court of Appeal r.30(1)

Cases cited (13)

  • Bogere Moses and Anor v Uganda (Criminal Appeal No. 1 of 1997)
  • Kiwalabye Benard v Uganda (Criminal Appeal No. 143 of 2001)
  • Uganda v George Wilson Simbwa (Criminal Appeal No. 37 of 1995)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bwengye Patrick vs Uganda, CACA No. 54
  • Abdu Komakech vs Uganda, [1992-1993] HCB 21
  • Rev. Father Santos Wapokra v Uganda (Criminal Appeal No. 204 of 2012)
  • Fatehali Manji v R [1966] EA 343
  • Ahmed Ali Dharamsi Sumar v R [1964] EA 481
  • Ratilal Shahur [1958] EA 3
  • Muyimbo v R [1969] EA 433
  • M'kanake v R [1973] EA 67
  • Tamano v R [1969] EA 126
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.