Wakilii

Ssebinyonyi v Uganda (Criminal Appeal 270 of 2016)

Court of Appeal · [2023] UGCA 222 · 2023 Conviction Quashed — Retrial Ordered ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction for murder, against conviction and sentence
Decision
Conviction and sentence set aside; proceedings declared a nullity; matter remitted for retrial before a different judge, appellant remanded in custody with liberty to apply for bail

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Holding

The Court of Appeal held that the taking of an oath by assessors under section 67 of the Trial on Indictments Act is a mandatory prerequisite, and that assessors must be present throughout the trial. Where the record showed no evidence that the assessors were sworn in (a fact the respondent conceded) and the assessors were absent when two prosecution witnesses testified, the irregularity was fatal and rendered the High Court proceedings a nullity. Ground one succeeded, so the Court did not consider the sentence ground. The conviction and sentence were set aside and a retrial before a different judge was ordered, with the appellant kept in custody pending retrial but at liberty to apply for bail.

Facts

On 16 December 2014 at Kisanysa 'B', Kiyita Parish, Nabingola Sub-county in Mubende District, the deceased and one Besiga Wilson were assaulted by the appellant and two unidentified persons at a place where they were distilling crude waragi. The two victims fled towards their home, but the deceased failed to reach home and died on the way as a result of the assault inflicted on him by the appellant. The appellant was indicted and convicted of murder in the High Court at Mubende and sentenced to 28 years and 3 months' imprisonment. On appeal, the focus was on the trial record concerning the assessors: the record did not show that the assessors took the oath at the commencement of the trial, and the assessors were absent on 22 March 2016 when prosecution witnesses PW4 and PW5 gave evidence in chief and were cross-examined.

Issues

  1. Whether the trial was a nullity where there was no evidence that the assessors took the oath required by section 67 of the Trial on Indictments Act and the assessors were absent during part of the evidence.
  2. Whether the sentence of 28 years and 3 months' imprisonment was manifestly harsh and excessive.

Orders

  • Ground 1 of the appeal succeeds.
  • A retrial before a different judge is ordered.
  • The appellant must be kept in custody pending the retrial.
  • The appellant is at liberty to apply to the High Court for bail pending his retrial.

Key headnotes

Criminal Procedure — Assessors — Oath under section 67 Trial on Indictments Act as a mandatory prerequisite
Under section 67 of the Trial on Indictments Act, the taking of an oath by each assessor at the commencement of the trial is a mandatory prerequisite, and failure to administer the oath is fatal to the proceedings, rendering the trial a nullity.
Criminal Procedure — Assessors — Absence of assessor during part of the evidence
An assessor who has absented himself from part of the trial and has not heard the evidence of even one witness should not be permitted to resume participation and give an opinion, as allowing this is a fundamental irregularity occasioning a miscarriage of justice because the opinion is based on incomplete evidence.
Criminal Procedure — Assessors — Mandatory participation in High Court criminal trials
Section 3 of the Trial on Indictments Act requires that all criminal trials in the High Court be conducted with at least two assessors, and the participation and role of assessors goes to the legality of the trial.
Criminal Procedure — First appellate court — Duty to re-evaluate evidence
A first appellate court is enjoined to carefully and exhaustively re-evaluate the evidence as a whole and reach its own conclusions of fact, bearing in mind that it neither saw nor heard the witnesses, and may reverse the trial judge's findings, including inferences of fact, where on review it considers them wrong.

Legislation cited (6)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Trial on Indictments Act s.3
  • Trial on Indictments Act s.66
  • Trial on Indictments Act s.67
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.30

Cases cited (6)

  • Pandya v R [1954] EA 336
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Bogere Moses and Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Byaruhanga Fodori v Uganda (Court of Appeal Criminal Appeal No. 24 of 1999)
  • Okao Jimmy alias Baby, Ogwanga Patrick alias Osinde and 3 others v Uganda (Court of Appeal Criminal Appeal Nos. 55, 62 and 67 of 2017)
  • Alenyo Marks v Uganda (Supreme Court Criminal Appeal No. 08 of 2007)
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.