Ndidde Khalid & Another v Uganda (Criminal Appeals No 237 of 2017 & No. 518 of 2016)

Court of Appeal · [2020] UGCA 2047 · 2020 Convictions Quashed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal against conviction and sentence for murder from the High Court at Mukono

Decision

Both convictions quashed; appellant no.1 to be retried before another judge; appellant no.2 ordered released immediately.

The full judgment

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Holding

The Court of Appeal quashed both convictions. As to appellant no.2, the trial judge failed to swear the assessors and to sum up the law and evidence to them contrary to sections 67 and 82(1) of the Trial on Indictments Act, an incurable defect rendering the trial a nullity. As to appellant no.1, the record of his guilty plea did not comply with section 60 and the Adan v Republic procedure, occasioning a miscarriage of justice; plea-bargaining does not displace these requirements. A retrial was ordered for appellant no.1 given the gravity of the offence. Appellant no.2, a minor whose lawful maximum sentence under the Children Act was three years and who had already served longer, was ordered released immediately.

Facts

The appellants were indicted for the murder of Mbalangu Ibra on 10 October 2015 at Nakagere village, Mukono district. Appellant no.1, Ndidde Khalid, was convicted on his plea of guilty under a plea-bargain arrangement and sentenced to 20 years' imprisonment. Appellant no.2, Kawere Abdul, was tried, convicted and sentenced to 30 years' imprisonment. On the record of appellant no.1's plea, it was not shown that the indictment was read and explained to him, the agreed facts were not recorded, and his response was not recorded. In the trial of appellant no.2, there was no indication that the assessors were sworn after appointment or that the judge summed up the law and evidence to them. Appellant no.2 claimed he was 17 at the time of the offence, born 7 July 1999; a medical examination estimated his age at about 18. The trial court did not inquire into his age before sentencing him as an adult.

Issues

Whether the trial judge's failure to sum up the law and evidence to the assessors and to swear them rendered the trial of appellant no.2 a nullity.
Whether the trial court followed the proper procedure for taking the plea of guilty of appellant no.1.
Whether the trial court erred in failing to inquire into the age of appellant no.2 and treating him as an adult at sentencing.
Whether a retrial should be ordered after quashing the convictions.

Orders

Conviction and sentence of appellant no.2 quashed and set aside.
Immediate release of appellant no.2 ordered, unless held on some other lawful charge.
Conviction and sentence of appellant no.1 quashed and set aside.
Retrial of appellant no.1 ordered before another judge.
Registrar of the High Court directed to list the matter for trial at the earliest opportunity.

Key headnotes

Trial on Indictments — Assessors — Summing Up and Oath

A trial judge's failure to swear the assessors after appointment and to sum up the law and evidence to them, contrary to sections 67 and 82(1) of the Trial on Indictments Act, is a mandatory procedural defect that is incurable under section 139 and renders the trial a nullity.

Plea of Guilty — Procedure for Recording — Murder Cases

On a plea of guilty the court must ensure the indictment is read and explained to the accused, record the agreed facts and the accused's response, and satisfy itself that the plea is unequivocal; failure to follow this procedure occasions a miscarriage of justice and renders the conviction liable to be quashed.

Plea Bargaining — Relationship to Statutory Plea-Taking

The plea-bargaining procedure is a pre-trial process that does not replace the court's obligation to conduct plea taking in accordance with statute and established case law.

Sentencing — Child Offenders — Age Inquiry and Maximum Sentence

Where there is doubt as to an accused's age it must be resolved in his favour; a child above sixteen convicted of a capital offence may be sentenced to a maximum of three years under section 94(7) of the Children Act, and a sentence exceeding that maximum is illegal and must be set aside.

Retrial — Exercise of Discretion

An order for retrial is a matter of judicial discretion to be exercised on settled principles, weighing the seriousness of the offence and the interests of justice against the risk of subjecting the accused to double jeopardy through expense, delay and inconvenience.

Legislation cited (15)

Penal Code Act s.188
Penal Code Act s.189
Trial on Indictments Act s.60
Trial on Indictments Act s.61
Trial on Indictments Act s.62
Trial on Indictments Act s.63
Trial on Indictments Act s.64
Trial on Indictments Act s.65
Trial on Indictments Act s.67
Trial on Indictments Act s.82(1)
Trial on Indictments Act s.139
Children Act s.94(7)
Children Act s.95(5)(a)
Judicature Act s.11
Judicature (Court of Appeal Rules) Directions r.30

Cases cited (13)

Adan v Republic [1973] EA 445
Bogere Moses v Uganda [1998] UGSC 22
Kifamunte Henry v Uganda [1998] UGSC 20
Sam Ekolu Obote v Uganda [1995] UGSC 7
Agaba Lillian and Another v Uganda [2019] UGCA 226
Byamukama Francis v Uganda [2018] UGCA 134
Mbaguta Ronald and Another v Uganda [2018] UGCA 235
Tomasi Mufumu v R [1959] EA 625
R v Yonasani Egalu and Others (1942) 9 EACA 65
Musinguzi Appollo v Uganda [2019] UGCA 157
Wapokra v Uganda [2016] UGCA 33
Fatehali Manji v R [1966] EA 343
Odongo Tonny v Uganda (Criminal Appeal No. 452 of 2016)

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