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Kashaka v Uganda (Criminal Application 5 of 2020)

Supreme Court · [2021] UGSC 28 · 2021 Application Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application in a pending Supreme Court criminal appeal for leave to file a supplementary record of appeal containing additional evidence and a supplementary memorandum of appeal.
Decision
Application partly allowed: leave to file a supplementary record of appeal and the recusal-based ground refused; leave granted to file a supplementary memorandum of appeal limited to the ground challenging the compensation order.

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Holding

The Supreme Court declined leave to file a supplementary record of appeal annexing Madrama J's Commercial Court judgment, finding the application irregular: the criminal-appeal rules provide no supplementary record, and the evidence had been available before the Court of Appeal, so admission under rule 2(2) was unwarranted. The applicant's objection to Justice Madrama sitting on his criminal appeal, though known earlier, was raised too late and was waived. Leave to file a supplementary memorandum of appeal was refused for the recusal ground but granted for the ground challenging the compensation order, which had already been argued at the Court of Appeal. The application succeeded only in part.

Facts

The applicant, formerly Permanent Secretary in the Ministry of Local Government, was convicted of causing financial loss contrary to section 20(1) of the Anti-Corruption Act, sentenced to ten years and ten days' imprisonment, disqualified from public office for ten years, and ordered, jointly with co-convicts, to refund US$1,719,454.58 to the government. The conviction and sentence were upheld by the Court of Appeal, and a further appeal to the Supreme Court was pending. Separately, the Attorney General had sued Niko Insurance Ltd in the Commercial Court to recover sums under a performance bond connected to the same transactions; Madrama J gave judgment for the Attorney General, finding no evidence of fraud against the government officials. Madrama J later sat, as a Justice of Appeal, on the panel that heard the applicant's criminal appeal. Blaming his former counsel for not seeking Madrama's recusal, the applicant applied for leave to file a supplementary record of appeal annexing the Commercial Court judgment as additional evidence, and a supplementary memorandum of appeal raising recusal and the compensation order.

Issues

  1. Whether the applicant should be granted leave to file a supplementary record of appeal containing additional evidence.
  2. Whether the applicant should be granted leave to file a supplementary memorandum of appeal.

Orders

  • Leave to file a supplementary record of appeal refused.
  • Leave to file a supplementary memorandum of appeal refused in respect of the first proposed ground (recusal of Justice Madrama).
  • Leave to file a supplementary memorandum of appeal granted in respect of the second proposed ground (the compensation order).
  • The applicant to file the supplementary memorandum of appeal within 48 hours of delivery of the ruling, in accordance with rule 44(3).
  • Costs of the application to abide the outcome of the appeal.

Key headnotes

Evidence — Additional Evidence on Appeal — Due Diligence and Finality of Litigation
Additional evidence will not be admitted on appeal where, with the exercise of due diligence, it was available to and could have been adduced by the party before the first appellate court; the power to admit such evidence under rule 2(2) is reserved for exceptional cases and must not be allowed to reopen litigation that has been completed.
Civil Procedure — Supplementary Record of Appeal — Not Available in Criminal Appeals
A supplementary record of appeal contains material that was before the lower court but omitted from the record of appeal; the Supreme Court Rules provide for it only in civil appeals, not criminal appeals, and it cannot be used to introduce new evidence that featured neither at trial nor before the first appellate court.
Civil Procedure — Recusal for Bias — Waiver by Inordinate Delay
A party who is aware of grounds for objecting to a judge's participation must apply for recusal at the earliest practicable opportunity; inordinate and inexcusable delay in raising the objection amounts to a waiver of the right to object.
Civil Procedure — Mistake of Counsel Distinguished from Error of Judgment
A genuine mistake or error of counsel should not be visited on the litigant, but where counsel exercises a judgment as to what course of action to take, the litigant bears the consequences of that decision.
Civil Procedure — Supplementary Memorandum of Appeal — Leave under Rule 63
Leave to file a supplementary memorandum of appeal under rule 63 may be granted for a ground that was already argued and determined in the court below, but will be refused for a ground founded on evidence the court has declined to admit or that was never canvassed in the lower court.

Legislation cited (11)

  • Judicature (Supreme Court Rules) Directions SI 13-11 r.2(2)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.44(1)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.44(3)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.63
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.30
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.60(2)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.86
  • Judicature Act s.7
  • Civil Procedure Act s.98
  • Anti-Corruption Act s.20(1)
  • Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019

Cases cited (5)

  • Kyaggwe Coffee Curing Estate v Lukwajju (Civil Application No. 12 of 2016)
  • Attorney General v Afric Cooperative Society Ltd (Miscellaneous Application No. 6 of 2012)
  • Attorney General v Ssemwogerere (S.C. Application No. 2 of 2004)
  • Tropical Africa Bank Ltd v Muhwana (Civil Application No. 3 of 2012)
  • Baker v Quantum Clothing Group [2009] EWCA Civ 566
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.