Alenyo Marks v Uganda [2019] UGSC 62

Supreme Court · 2019 Conviction Quashed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court against conviction and sentence in a murder case

Decision

Trial declared a nullity; retrial declined; appellant ordered released immediately unless held for other lawful cause

The full judgment

Read the complete, verbatim text of this 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 Supreme Court allowed the appellant to argue a new ground raised for the first time on second appeal because it concerned the legality of the trial. It held that under section 67 of the Trial on Indictments Act the swearing-in of assessors is a mandatory pre-requisite, and that a trial which proceeds without the assessors taking oath is a nullity. As the assessors here were not sworn, the trial was a nullity and the conviction could not stand. Exercising its discretion under Abdu Komakech, the Court declined to order a retrial because the co-accused had served their sentences and the appellant had already served a long period in custody, so a retrial would cause injustice. It ordered his immediate release.

Facts

On 16 December 2000 the appellant, a police officer on patrol duty in Jinja District with five colleagues, received communication to intercept a motor vehicle suspected of carrying armed robbers. After stopping the vehicle, the officers ordered its three occupants out and onto the ground, and the three suspects were shot dead. The appellant and two co-accused were indicted for murder in the High Court at Jinja. The appellant pleaded not guilty but admitted intercepting and shooting the deceased, raising self-defence and claiming the occupants had fired at the officers. The trial judge rejected the defence, convicted all three and sentenced them to death. Following the abolition of the mandatory death penalty in Susan Kigula, the case was remitted for re-sentencing; the appellant received 20 years, later set aside and substituted by the Court of Appeal with 27 years for failure to deduct remand time. The assessors who participated in the High Court trial had not been sworn in before performing their role.

Issues

Whether the appellant could raise, for the first time on a second appeal, a new ground not argued in the Court of Appeal.
Whether a criminal trial in the High Court conducted without the assessors taking the oath required by section 67 of the Trial on Indictments Act is a nullity.
Whether, the trial being a nullity, an order for retrial should be made.

Orders

Ground 3 succeeds.
The trial is declared a nullity.
The Court declines to order a retrial.
The appellant is to be released immediately unless held for any other lawful cause.

Key headnotes

Criminal Procedure — Assessors — Failure to administer oath under s.67 Trial on Indictments Act

The swearing-in of assessors under section 67 of the Trial on Indictments Act is a mandatory pre-requisite of the trial process, and a criminal trial in the High Court which proceeds without the assessors taking oath is a nullity.

Criminal Procedure — Appeals — Raising a new ground for the first time on second appeal

An appellate court may consider a ground of appeal not raised in the lower court, for the first time on a second appeal, where the ground touches on the legality of the trial or the orders made.

Criminal Procedure — Retrial — Discretion where trial a nullity

The power to order a retrial is discretionary and must be exercised judicially; a retrial will not be ordered where it would cause injustice to the accused, such as where co-accused have already served their sentences and the accused has served a substantial period in custody.

Legislation cited (6)

Penal Code Act s.188
Penal Code Act s.189
Trial on Indictments Act s.67
Trial on Indictments Act s.3
Constitution of Uganda Article 23(8)
Rules of the Supreme Court r.70(1)(a)

Cases cited (5)

Susan Kigula v Uganda (Constitutional Appeal No. 3 of 2006)
Komakech v Uganda (Criminal Appeal No. 1 of 1988)
Imere Deo v Uganda (Criminal Appeal No. 16 of 2015)
Fatehali Manji v Republic [1966] EA 343
Salim Muhsin vs. Salim Bin Mohamed & others

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.