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Wanyaka v Uganda (Miscellaneous Application 18 of 2020)

Supreme Court · [2021] UGSC 62 · 2021 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out a notice of appeal and dismiss the intended appeal for failure to file a memorandum of appeal
Decision
Application granted; the respondent's notice of appeal struck out for failure to file a memorandum of appeal and to prosecute the intended appeal

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Holding

The IGG, dissatisfied with the Court of Appeal's acquittal of the applicant, filed a notice of appeal in November 2019 but, nearly two years later, had never lodged a memorandum of appeal nor sought an extension of time. The Supreme Court held that a notice of appeal merely commences the appeal process and cannot substitute for a memorandum of appeal, which has distinct contents under rule 62. The respondent's mere assertion that it had not been served with the record, without evidence of any active steps to obtain it, amounted to dilatory conduct and breached rule 58(2). The Court resolved both issues against the respondent, granted the application and struck out the notice of appeal.

Facts

The applicant was convicted by the High Court of embezzlement, abuse of office and false accounting under the Anti-Corruption Act, ordered to refund shs. 822,965,000 to the government and barred from public office for ten years. On appeal, the Court of Appeal quashed the conviction and set aside the sentences on 31 October 2019. Dissatisfied, the Inspectorate of Government (IGG) filed a notice of appeal to the Supreme Court on 13 November 2019, requesting a typed record of proceedings to formulate grounds of appeal. The notice was registered as Supreme Court Appeal No. 9 of 2019. Nearly two years later the IGG had never lodged a memorandum of appeal, applied for an extension of time, or served the notice on the applicant. The applicant applied to strike out the notice of appeal, contending the respondent had filed no appeal and taken no further steps to pursue it. The respondent's affidavit in reply asserted that time to file a memorandum runs only after service of the record, but adduced no evidence of steps taken to obtain that record.

Issues

  1. Whether the respondent filed a memorandum of appeal in the Supreme Court following its notice of appeal.
  2. Whether the respondent failed to take active steps to pursue the intended appeal.

Orders

  • Application granted.
  • Notice of appeal struck out.

Key headnotes

Criminal Appeals — Notice of Appeal — Distinction from Memorandum of Appeal
A notice of appeal merely commences the appeal process and is the first step in appealing; it is not itself an appeal and cannot be substituted for a memorandum of appeal, whose required contents under the rules are distinct.
Criminal Appeals — Duty to Prosecute — Dilatory Conduct
The duty to prosecute an appeal rests on the appellant, who must act with vigilance and diligence; an appellant who merely files a notice of appeal and waits to be served with the record, without demonstrating active steps to obtain it or applying for an extension of time, is guilty of dilatory conduct.
Appeals — Service Requirements — Director of Public Prosecutions / IGG Appeals Against Acquittal
Where the prosecuting authority appeals against an acquittal, it must under rule 58(2) notify the court of the accused's address for service and of the date of hearing; failure to comply, coupled with failure to file a memorandum of appeal, warrants striking out the notice of appeal.

Legislation cited (13)

  • Judicature Act s.16
  • Judicature (Supreme Court) Rules SI 13-11 rule 2(2)
  • Judicature (Supreme Court) Rules rule 5
  • Judicature (Supreme Court) Rules rule 58(2)
  • Judicature (Supreme Court) Rules rule 61(1)
  • Judicature (Supreme Court) Rules rule 62(1)
  • Judicature (Supreme Court) Rules rule 62(2)
  • Criminal Procedure Act Cap 116 s.28(1)
  • Criminal Procedure Act Cap 116 s.28(2)(b),(3),(4)
  • Criminal Procedure Act Cap 116 s.44
  • Anti-Corruption Act 2009 s.11(1) & (2)
  • Anti-Corruption Act 2009 s.19
  • Anti-Corruption Act 2009 s.22

Cases cited (3)

  • Uganda v Ntambi Vincent (Criminal Application No. 08 of 2019)
  • Kasibante Moses v Electoral Commission (Electoral Petition Appeal No. 7 of 2012)
  • Nalukenge v Uganda (Criminal Appeal No. 67 of 2008)
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.